I know that subject doesn't make any sense to many surveyors. But, the situation we are dealing with today fits that description. I've had to deal with this sort of thing very few times through the decades.
My client has a deed to the south half of the southwest quarter of a Section 22 (normal section). His neighbor to the north has a deed to the north half of the same quarter section. The Government survey was completed in 1865. The patent holder had the entire southwest quarter. In 1877 he deeded the north half of it to someone else. In 1884 he deeded the south half that he had kept since 1877 to a different party. Both halves have been conveyed numerous times since then. My client's father-in-law acquired the south half about 70 years ago. There is a row of large old trees running in what is very close to a straight line between the two halves (well sort of). Evidence of remnants of very old fence wire still exists along the tree line in addition to the fairly modern wire that is currently getting the job done.
We have found the exterior section corners and confirmed an existing corner post with fences running from it in four directions to be within two feet of current mathematical perfection, hence, we love the post. The midpoint of the line connecting the center corner with the south quarter corner falls 51 feet south of the tree row/fence line. The midpoint of the line connecting the west quarter corner with the southwest section corner falls 42 feet south of the tree row/fence line. This produces an area of about three acres between the true line and the historically claimed line. So one owner has had 77 acres while the other has had 83 acres for many, many years. BTW, these are friendly neighbors of longstanding. Both properties, however, have mortgages which should complicate the remedy.
All we were attempting to do was cut out a tract to be sold that needs to go to the north line of the property (wherever that is).
Danged surveyors! There has been peace and harmony for 137 years, until now.
You Have Surveyed And Found The Aliquot Boundary
Since both sides continued to transfer by the aliquot description neither passed on claim to the treeline/fence, it is merely a fence of convenience.
The fence cannot be claimed as an original boundary set by the original surveyor. No transfer was ever made calling for the fence, because such a description would not be an aliquot parcel.
Had you found original monuments set by the original surveyor at the treeline/fence this would be a different discussion.
Paul in PA
Cow, that is a hard question
You and Karoly are confusing me and I don,t know the answer.
I can think about your situations and I will, but I have no certain solutions at this time.
Others may have.
I would like to hear from Brian Allen, he's always pretty insightful.
Nate's cat is about all I can comment about right now and I'm not even going to do that for fear of looking stupid.
Guess I'll just sit back sippin' and being useless.
🙂
Don
It sounds like a pretty solid established boundary to me.
After patent, half splits do not necessarily go by government measure.
A physical practical boundary is solid evidence of the intentions of the parties to the original deeds.
The general duty of a surveyor in such a case is plain enough. He is not to assume that the monument is lost until after he has thoroughly sifted the evidence and found himself unable to trace it. Even then he should hesitate long before doing anything to the disturbance of settled possessions. Occupation, especially if long continued, often affords very satisfactory evidence of the original boundary when no other is attainable; and the surveyor should inquire when it originated, how, and why the lines were then located as they were, and whether a claim of the title has always accompanied the possession, and give all the facts due force as evidence. Unfortunately, it is known that the surveyors sometimes, in supposed obedience to the state statute, disregard all evidences of occupation and claim of title, and plunge whole neighborhoods into quarrels and litigation by assuming to establish corners at points with which the previous occupation cannot harmonize. It is often the case when one or more corners are found to be extinct, all parties concerned have acquiesced in the lines which were traced by the guidance of some other corner or landmark, which may or may not have been trustworthy; but to bring these lines into discredit when the people concerned do not question them not only breeds trouble in the neighborhood, but it must often subject the surveyor himself to annoyance and perhaps discredit, since in a legal controversy the law as well as common sense must declare that the supposed boundary long acquiesced in is better evidence of where the real line should be than any survey made after the original monuments have disappeared.
...it is not likely that any one summoned would doubt or question that his duty was to find, if possible, the place of the original stakes which determined the boundary line between the proprietors. However erroneous may have been the original survey, the monuments that were set must nevertheless govern, even though the effect be to make one half-quarter section ninety acres and the one adjoining seventy; for parties buy or are supposed to buy in reference to these monuments, and are entitled to what is within their lines and no more, be it more or less.
Was Cooley from Michigan, Oklahoma, or Kansas, or .........?
Yeah, a mortgage will un establish established boundaries. Does the mortgage predate the establishment of the boundary? When you pledge a property for a loan/mortgage are the boundaries redrawn? Can a mortgage tie up part of the neighbors land because the mortgage description goes into that land? Just some things to contemplate.
I agree. Private party transaction, not a patent controlled by statutory language. The south 1/2 could have meant by government patent methods, or it could have meant the south 1/2 as we determine it ourselves and mark it. So, weigh the evidence. Which intention is more likely based on the best available evidence?
I wouldn't worry about the mortgage. But then in my area at least, bankers don't have authority to opine about land boundary locations. Their mortgage is limited to the area as shown by a surveyor, until a higher authority in the court system determines a different area.
Sometimes I think we need to recognize that there is not always one and only one line. Yes, you might be able to read court case after court case and maybe even one of the cases will have the exact same circumstances that yours does.
Sometimes a "boundary line agreement" is in order. The circumstances for a BLA are generally that the line is not absolutely known, and both parties "agree". The boundary line agreement does not transfer title, but it sets where the called-for line is. The lenders should have no say in it, because the act (again) does not transfer title. You come in TO a harmonious situation, and you leave with a harmonious situation along with the fact that you now have a recorded document that clarifies exactly where the line is.
Those are my thoughts from reading the post.
I ran into a similar situation last Summer. Everyone had been happy for many, many years. There was a survey from about 1935 filed with the county showing how a part of one of the two "equal" aliquots was to be separated. That survey noted that the divide line did not conform to the standard measurements by about 30 feet on one end. We followed the work of that surveyor. The title company involved in the deal last Summer refused to accept what we had done. They forced the owners to resolve everything, so we ended up resurveying and writing several new descriptions for all parties involved, whether they wanted to be or not. Chaos reigned where there had been none.
You feel the old survey is "too far" out?
The fence got there somehow and sounds like it's been in place for maybe more than 100 years.
So you have a decision to make: do you accept the fence and tree line as the 1/16 line "established" by the entryman and therefore an original survey or do you reject it.
If you accept it then it becomes the 1/16 line in your opinion and there are no conflicts, the north parcel comforms to the deed as the N1/2SW1/4 and the south parcel is the S1/2SW1/4, monument the ends of the line as 1/16th corners and each person still has 80 acres.
Of course this may effect what is going on in the SE1/4 of 22 and the SE1/4 of 21, which also needs to be considered. Have fun!!;-)
Danged surveyors! There has been peace and harmony for 137 years, until now.
This is where I depart from some of our brethren,
It is not our job to disrupt the peace and harmony of established boundaries.
Regardless of what the math shows the intent is King!
You are a status quo type.
Go/flow with the status quo.
Then as a surveyor you persuade all parties involved.
You continually preach here about the 'wisdom' of being the local yokel surveyor and the benefits of that condition.
It looks like it applies here. Posters here are not aware of the local status quo. Since you stated that you have had experienced this in the past, you already have established the status quo.
My extra 2 cents would be to dig more in the field and courthouse in addition to thorough research of the adjoiners
> This produces an area of about three acres between the true line and the historically claimed line. So one owner has had 77 acres while the other has had 83 acres for many, many years. BTW, these are friendly neighbors of longstanding. Both properties, however, have mortgages which should complicate the remedy.
>
Isn't the TRUE line the originally established, recognized, relied upon line, whether marked by a surveyor or the adjoiners themselves? Intent is everything. Weigh the equities and harmony. My 0.02
The North Line Of The South 1/2 Is Not The Fence
In order to subdivide to the fence, the descriptions must be re-written in a non aliquot form.
If you do not get the North 1/2 owners agreement you will create an overlap.
I cannot say who owns what, I can say that the deeds do not reflect the apparently agreed to conditions in the field.
I can say that, "as you describe the situation, they are not aliquot parts".
Fix it right.
Paul in PA
In my schooling, by definition, it is either an aliquot part, or it's not. Any exclusion would nullify the equitable nature of the description.
The North Line Of The South 1/2 Is Not The Fence
In order to subdivide to the fence, the descriptions must be re-written in a non aliquot form.
From the manual: "Chief among this class of evidence forming the basis of recognized positions of land boundaries are; recorded monuments established by local surveyors and duly agreed upon by interested property owners; the position of boundary fences determined in the same manner ............................If a point qualifies for acceptance, having satisfied the requirement for substantial agreement with evidence of the original survey, the presumption is strong that its position bears satisfactory relation to the original survey and the burden of proof to the contrary must be borne by the party claiming differently."
You have a really old deed and line marking that deed. You have agreement by interested property owners. Does it conform to the original survey? Is it only the 40 foot out of position that is at issue?
The burden of proof is on the parties rejecting the line.
I would not and I can't think any surveyor would reject an old 1/16th corner that marks a number of subdivisions in a town when the section breakdown shows it 5' "off". That is a no-brainer, nor would I reject a resurvey BLM 1/16 just cause I am a few feet different.
Those are easy, but now Cow has to decide if he rejects this fence as the establishment of the 1/16 line, and why it isn't accepted (math only?).
If it's accepted there is no conflict, no missing or extra acreage, no title issue, no title person who can complain.
That's one of my favorite things about surveying. Nothing is ever set in stone, except the chiseled "X". Reading Cooley and Lucas' Pincushion book has taught me more than Brown and Clark combined. All I know for sure is that nobody knows anything for sure. The learning never stops.
The Fence May Be The Lot Line
But it is in gross error to the aliquot description.
There are no original survey records in evidence here.
An aliquot description is not appropriate, the Manual requires a metes and bounds description.
End of story.
Is Cow in fact advocating for the owner who benefits from the extra acreage?
Would his opinion be different if he were on the North side of the fence?
Paul in PA
The North Line Of The South 1/2 Is Not The Fence
The new manual (and common sense) give us great latitude to leave things at peace. It does sound as though these two have used the line, but it is also apparent that it is not the 1/16th line. If these two like the line leave it be and correct the record. At the same time consider the impact on other parties. If you call the agreed line the 1/16th you are changing things for everyone touching the line. You may end up with a void agreement as it impacts parties that didn't get a say...
The North Line Of The South 1/2 Is Not The Fence
:good: :good: :good:
