If you are going to hold the fence as the originally intended boundary it would be prudent to prove that the fence was in place at the time the first aliquot deed was prepared.
If you can't prove the fence was in existence at the time of the deeds you may just be looking at a fence of convenience.
I have seen many cases in my short career where neighbors acknowledge that the fence is just a fence not a representation of the boundary. Track down those landowners and gather all the evidence you can about that fence.
Good luck.
The North Line Of The South 1/2 Is Not The Fence
Every boundary line between two landowners stands on its own. If these landowners have accepted and established the line as the 1/16 line that's what it is to them. It doesn't perpetuate mathematically through the rest of the section. Every change or resurvey or establishment of a "lost" corner doesn't relocate every other line in a section. It's surveyors doing that that cause the chaos. From my view that's what the manual is telling you.
The North Line Of The South 1/2 Is Not The Fence
I completely agree the lines and ownership are independent. I would say we agree regarding the manual to an extent. What if one of the 1/16 corners they agree on is not in harmony with the adjoining properties? What if they have acted in a manner the places the 1/16 100 feet south? At some point a distinction better be made between the agreed line and things that control others. I use agreed lines where the law allows but I do not call it a particular line if that connection can't be made...
The North Line Of The South 1/2 Is Not The Fence
It's their 1/16 corner for their boundary only. It's not everybody else's 1/16 corner.
As long as surveyors are going to insist that a section breakdown must comply perfectly with the protraction rules there is going to be chaos. Most sections been subdivided long ago. Sort of late for the section breakdown at this point, has already been done somehow. A plan is a plan, the result and boundary establishment is reality. How we ever get the record and the exact measurements of boundary locations perfectly in sync I don't know. It seems like it could be possible but it has never happened yet and may never.
In Utah we have some pretty clear law like Imus vs. Bahr. The law and technology are at odds with each other. It should be clear as ever that many of our deed records are not based on mathematical reality (or even original field measurements). Just because the deeds (metes without bounds which are almost patently defective) and the established boundaries (if you apply the law) are out of sync shouldn't surprise anyone with boundary knowledge at this point. Blindly punching these deeds into the ground is insane and shows complete ignorance of the law as it applies to boundaries.
The Fence May Be The Lot Line
But it is in gross error to the aliquot description
100+ years ago the landowners established the line, they were the original surveyor, this deed goes waaaaaaaayyyyy back and from the description so does the line with old trees and old, old fences. Then it's relied on by all owners, it can well argued it IS the 1/16 line and marks the 1/16 corners.
I recently accepted a 1974 BLM 1/16 corner that is almost 30 feet "out", cause it has been accepted since the 1970's and used to establish a line between owners.
I also rejected a 1974 BLM 1/4 corner 70 "out" of position cause it was in error (guessing a bad move) but was never used for any division of land.
Each case stands on it's own, but what the manual is telling you and court cases are also is the burden of proof is on you to reject such a line, not as an ownership line but as the ORIGINAL SURVEY line for the division of the SW1/4.
Look I don't envy Cow this one, 40-50 feet is a lot, but gross error, nah, I wouldn't go there............
The last thing I would want to do is start "cleaning up" this line with quit claim deeds and such, and there may be no reason to anyway.
The North Line Of The South 1/2 Is Not The Fence
We still have a great number of Sections to ruin in this neck of the woods...
It is horrible to see Surveyors imposing another math solution on Sections that have been subdivided or creating pin-cushions because they think they own a better instrument. That's not what I'm advocating. I'm urging caution in the manner the solution is memorialized. I am working through one right now where two owners worked things out 30ish feet from a controlling 1/16th. The 'new' corner was marked as the 1/16th and nary a word was said on the map, or to the good folks to the east who had used the other location for decades. It is apparent some Surveyors never looked into it before imposing mathematical violence on the neighborhood.
Now we have about a dozen easements, takes and parcel cuts starting at the 1/16th. Each had to be traced back to creation. Fortunately I was able to determine which corner was actually used in each case. Had the owners waited a few dozen years it would have ended up as a thread on a Surveyors discussion board:^)
TTYL, Tom
The North Line Of The South 1/2 Is Not The Fence
I completely agree the lines and ownership are independent. I would say we agree regarding the manual to an extent. What if one of the 1/16 corners they agree on is not in harmony with the adjoining properties? What if they have acted in a manner the places the 1/16 100 feet south?
This should all be considered of course, possibly there is some reason the fence is off, a reservation for a right of way, a ditch, move it cause where it was the fence kept getting buried in drifts in the winter, the tree line was planted one side of the line as a wind break and over time the fence line was hooked to it as a convenience.
The fence may run to the section line and then jog over 40 feet to the midpoint of the west line of the SW1/4, then you can see the fence has issues and shouldn't be used as the 1/16 line. But you need to have a reason to reject it and if you don't believe it is in satisfactory relation to the original survey then you probably should.
However, if accepted, then the 1/16 lines and lines or ownership are not independent, they are the same.
The Fence May Be The Lot Line
> But it is in gross error to the aliquot description
>
> 100+ years ago the landowners established the line, they were the original surveyor, this deed goes waaaaaaaayyyyy back and from the description so does the line with old trees and old, old fences. Then it's relied on by all owners, it can well argued it IS the 1/16 line and marks the 1/16 corners.
>
> I recently accepted a 1974 BLM 1/16 corner that is almost 30 feet "out", cause it has been accepted since the 1970's and used to establish a line between owners.
>
> I also rejected a 1974 BLM 1/4 corner 70 "out" of position cause it was in error (guessing a bad move) but was never used for any division of land.
>
> Each case stands on it's own, but what the manual is telling you and court cases are also is the burden of proof is on you to reject such a line, not as an ownership line but as the ORIGINAL SURVEY line for the division of the SW1/4.
>
> Look I don't envy Cow this one, 40-50 feet is a lot, but gross error, nah, I wouldn't go there............
>
> The last thing I would want to do is start "cleaning up" this line with quit claim deeds and such, and there may be no reason to anyway.
Agreed. If a good faith effort was made to conform to the PLSS, whether by a surveyor or the land owners, the long relied upon boundary is infallable. To rebut good faith, you need to prove fraud. Not easy to do that. This is how I understand it, anyway.
Hope you all have enjoyed this so far
A few comments. This was offered for discussion as it represents one of the fairly common dilemmas those of us in PLSSia face. Arguments can be made in two, or more, directions based on the same data. I'll add a little extra info to see if any of this might influence some of you.
1. There is no continuous chain of ownership on either side of the line to provide a perspective on what really happened in 1877.
2. The tree row may or may not have been in place prior to 1877. No GoogleEarth photos to check. None of the existing trees would appear to be about 140 years old.
3. There is nothing to require that the tree row/fence line be where it is as the ground to either side is common tillable farm land for the majority of the distance. That is, being 50 feet or 100 feet in either direction would not change the land use. In this area, common tillable farm land is normally fenced to permit foraging of the crop stubble/stalks by livestock at certain times of the year.
4. Common measurement errors such as being close to 1320 feet from the south or from the north do not apply and the discrepancy on the two ends differs somewhat and is not close to some number of rods. The east end is more than three rods while the west end is more like two and a half rods. Pacing might have been used in 1877 as there was only minor settlement in the area at that date. Some land was still in Government possession as no one had filed a claim. There should have been no significant topographical challenges along any side of the quarter section which might increase the opportunity for a measurement error.
5. The adjoining southeast quarter of the section has always been a full quarter. So has the southeast quarter of the section directly west of the subject quarter section. Thus there has been no need for anyone to compare their idea of the aliquot line location with an adjoiner's opinion.
6. A small ditch exists along a few hundred feet of the far west end of the line in question which has skewed the fencing away several feet and a dozer took out any evidence of trees in that short length. So the line in question has been extended across that reach based on the best fit of the major length
7. I get to have an opinion. Each land owner can have their opinion. Attorneys involved, if any, can have their opinion. Based on the cooperative nature of the two neighbors, I am 99 percent positive that a judge will not be consulted for an opinion.
Who cares about these midpoints? Were they previously monumented? Have the current or previous owners shown any indication of having ever placed any importance on these midpoints? Do they even have any idea where they are and that they do not coincide with the old fence & tree row?
You've been surveying way too long to turn a boundary matter into a mere math problem.
It May Not Have been The Only Original Fence
When it was in common ownership it could have been a fence around a 3 or 6 acre pasture. Other sides are now gone.
I worked on a subdivision many tears ago, the North line went so many perches to a called for stone row. The survey was 1 rod short when measured to the stone row. after discussion with neighbors it was found that there was originally a farm road with a stone row on either side. The farm to the East called for a stone row as the West line. When the field were partially cleared years ago the farmer had the easterly stone row removed and not the westerly one, gaining a 1 rod strip. The seller was getting a lump sum for development and the developer gained no extra lots by recovering the shortage. The record was corrected by the filed map.
When the South 1/2 was sold the seller may not have made a statement as to the remaining fence being the 1/16 line. There is no record that it was so declared.
If both parties are in acceptance of the fence then that must be put on the record.
An aliquot description does not do that, period.
Survey it right and you can ensure that the record remains forever. Otherwise aliquot descriptions just push the problem down the road.
Paul in PA
The North Line Of The South 1/2 Is Not The Fence
If the occupied lines turn out to be the best evidence of the 1/16th line they are coincident. If they have become the boundary of the properties by some other operation of law and the 1/16th proves to be elsewhere they are not.
In this State where much of the land is still dependent on the Sections and their subdivisions the distinction is extremely important.
Good problem.
Moe and those who understand Cooley's decision nailed it. Math is not the solution. Why create a problem that does not exist?
Pretty much the same set of facts except you are the first surveyor. The patent was for the entire quarter section. The quarter section was one owner until the family split it into the north half and south half, a half to each brother. You are hired by the owner of the south half to survey the line for the first time. The son of the original owner of the south half and the original owner of the north half both tell you the intent was for equal area. Given that set of facts would you stake an equal area line or an aliquot line?
Easy, an aliquot line is an equal area line, 80 acres each, so an aliquot line is the answer;-)
An aliquot line results in unequal area as always. Not the intent of the parties. Don't the owners of private land have the right to define what half means to them?
They certainly can split it anyway they want too.
However, the N1/2 and S1/2 of a 1/4 is defined a certain way, and the acres are fixed with the patent and the plat as 160 and 80, just as in a platted 6500 sq ft lot in a subdivision, once made record it stays that way, so go ahead and split the 1/4 into 1/2's just like the book tells it to be done and there aren't any conflicts, they are both 80's.
If they really, really want to do it differently then they can, but it should probably be some kind of metes and bounds description.
If I'm given a deed that says the S1/2SW1/4, S.22, I'm going to stake it like the book says and know it is legally 80 acres from the plat and patent, we all know it will be slightly different mathematically.;-)
This is similar to the discussions I'm having with the planning people, can someone sell two 1/41/4's. My argument to them is that since the plats and patents show them as 160, 80 and 40 acre tracts then yes they are legally considered 80 acres and they conform to the subdivision/zoning regulation. I think I've finally won them over on that one.:-)
I don't agree that the N 1/2 and S 1/2 are defined in a certain way when there is no federal interest involved. The meaning is uncertain. When a family splits a parcel into two even parts they do not anticipate that a survey to mark the line for the first time will show different quntities of land.
The manual has no control over the way the line is staked when the intent of the parties is equal quantity.
The California Courts have commonly handled this type of problem as an agreed boundary.
For example, the true boundary is as protracted on the plat (or a half by area split depending on the evidence in the case) but there is a practical boundary in a substantially different location. The Courts have often tested to see if the practical boundary is enforceable as an agreed boundary; the results are mixed, sometimes they say the evidence supports the agreed practical location and sometimes not.
I have looked but haven't found much discussion of practical boundaries being accepted by the Courts as the actual aliquot boundary despite a difference from where the Survey would place it. I did find one older case where they said the line of existing stakes down the east-west centerline should have been used instead of a more accurate line between the quarter section corners.
I'm think I'm in Paul and Kevin's court. Sometimes a fence is a fence is a fence. Lord knows how many hours and bottles of whiskey it took to complete its construction. No survey stakes were set (or so it would seem) so the only 'monument' you have is a few wood posts. I don't see this as evidence superior to do the deed. Are you going to map every sinuosity of that fence and claim it as a section line? Stray from the deed when it is unclear. I see a lot of misquoting of Lucas and the manual and others going on, in order to support a notion. When you boil it all down, the deed says they split it! Ignorance by a chain of owners who relied, incorrectly on a fence does not weigh heavier than your duty to follow the good, sound, defensible deed. Now, in some cases, a deed is certainly written to 'fit' existing conditions or convey a very finite and specific piece of land. Had you got your hands on an old survey map or drawing which illustrates a fence and tree line, then perhaps that would be a reason to stray. You don't have this, and you state the fence and trees are not likely 140 years old. you don't know a lot of things, but you DO know what the deed says. Too many are too quick at jumping off the math-bandwagon because 'anyone can use math to solve a predicament'. Let's to forget that math and measurements, while not the only means to an end, is also one of the best tools in our belt--right up there with a pipe finder and rag tape. All three helps us get back to intent and original evidence, be it physical or mathematical. The other issue being, that you are going to write new descriptions based on your survey. What sort of mess would you be creating if you simply wrote it aliquot, all the while hanging on a fence which may get blown or torn down next year. then what? Maybe you set corners but they get plowed under as well. Now, you have created a mess. All because many on this thread told you to throw out the math, the breakdown, the description, etc. Jeebus, if I could set a pipe at the end of a fence and throw out the math, I'd have a year's worth of work done in 3 weeks. As much as we can analyze our measurements vs existing conditions, then opt to throw out the math, we can also opt to throw out the existing conditions. The manual certainly talks a lot about evidence when restoring corners. But lets not forget, they are the feds, resurveying their own interest. They play by different, albeit, ground rules for surveying. But as a CFedS, I will add, that BLM and local surveyors are playing on different fields. And, I can assure you that BLM looked hard and long before jumping on a local fence corner. The fact that two guys hang their hats on that post certainly will not compel BLM to do the same. Lucas discusses a lot about pin cushions, but let's not forget that the reason these probably occur is because someone goofed. Just because you set the first pin, does not make it holy. An erroneous first pin is the start of a pin cushion. You are writing new deeds, creating new lots, you better fix the issue. The solution is simple. Survey the clean and unambiguous deed, note the fence and how it is unreliable (as you appear to have stated many reasons why it is so). Then, get the two friendly adjoiners to agree to either your line or the fence, re-write descriptions and perform an adjustment to clean title if necessary, then write deeds based on good clean work. If the two neighbors cant agree, it's not our job to mitigate their happiness. Besides, its not they you have to worry about. Its the call you get in 6 years from the owner of that new lot. I would be curious how a judge would interpret the defense of a survey being "I wanted to keep the peace, so I set it at the end of the fence ".