I got roped into a rural survey a few weeks ago. An older gent (85 year old grouch that owns everything from here to there) is selling around 400 acres of cow pasture to my client. The seller refused to participate in facilitating the survey because "it's already fenced...". The contract is specific to the tune of "the S2 SW/4, the SE/4...yadda, yadda" and I proceed to break down the section as per the description in the contract.
And most of the fences fall in a predictable location near the calculated subdivision corners (+/- 5' to 10'). One east-west fence, a quarter line fence, follows the calc'd line most nearly within a foot or two..except as it enters a wooded area on the east end. As the fence exits the wooded area and terminated at a closed section line the fence corner is actually around 45' south of my calc'd corner. The seller would "lose" the area north of the fence if the proper subdivision of the section was followed. He's crying foul.
I had a phone discussion with his attorney (he has a copy of my report) and explained no one wanted me to survey any fences; I was just asked to subdivide the section and mark the aliquot corners as described in the contract. I also noted the fence locations on the survey. His reply was, "So you're moving the property line north 45' from the fence?"
I kept my composure (hard at my age) and explained I had done my job as contracted and in a professional manner. I had to ask him though why he thought the fence was a "property line"...since the same owner (seller) actually owned both sides of the fence. No where in the contract does it mention any 'fence'.
He countered the fence was the "property line" when the current owner purchased the quarter to the south in 1978. I disagreed because the 1978 conveyance description was for the "SE/4" and also fell short of describing any sort of boundary description other than that. His argument was that "everybody" (wtf?) has always held the fence as the line between the NE/4 and the SE/4. I mentioned that I considered a merger of title had occurred when the old man bought the SE/4 and any "property line fence" between the two quarters probably became a moot point at that time. I reiterated I was not privy to any recorded document that represented any sort of acknowledgement from "everybody" that the fence marked the line between the SE/4 and the NE/4. I explained if the seller had only meant to convey what was south of the fence I would have been happy to survey such. As far as I was concerned the "SE/4" as mentioned in the contract is a proper description and I merely marked the corners as such. He said he'd get back with me.
I don't feel good about this for some reason. And I bet I haven't heard the last of it. I can't believe I had to drive 45 minutes just to step in a pile crap.
Good on ya. A Fence is just a Fence until it's proven otherwise.
okay At first glance I thought that said "I got Grouped" after looking again, I can continue to read post.
The intent of the Grantor is what is important and that should be spelled out in a proper description of what is being sold.
There should always be a specific statement as to what part of a section is being sold and afterwards there may be a general statement "and to include all the property enclosed by fence" or not.
Like you said, the contract does not mention a fence.
Seeing that the deed is not yet made, the conveyed property line is yet to be determined.
It would probably be best to use existing fence lines considering the expense related to moving and rebuilding a proper fence.
It sounds like you are dealing with two old coots that like to bicker and do not care what is or what is not.
What is written down and what is intended are frequently two very different things.
That happens when people try to save expenses by not obtaining enough legal representaton and not having a proper survey.
Anyone can put words on a deed form and get it signed and sealed and recorded whether the words are correct or not.
I have witnessed many promises that were never signed on paper where the Grantee came away with much less than what they paid for.
Bottom line is that what is spelled out in your deed is probably gonna be exactly all you have.
Is it to late to change the description from the aliquot parts to a surveyed line based on the fence? If that's what he wants to sell he just needs a different description.
A Harris, post: 454741, member: 81 wrote: ...Bottom line is that what is spelled out in your deed is probably gonna be exactly all you have.
I had a conversation with the buyer (my client) about that when all this kicked off. He's a good friend of a good client, but at first all he wanted was for me to use that "GPS thingie" where I could just walk up and shoot a corner...
In an effort to help out friends of business connections I explained as a surveyor, I couldn't really "just shoot something" and tell him whether it was right or not. He would either have to accept things as they were, or enable me to perform a proper survey. He eventually asked me to survey the entire property. I didn't hurt myself any, but I did give him a good "brother-in-law" price. He even thought that was too much...and this coming from someone fixing to drop three quarters of a million bucks on a cash sale.
My fear is that I'm gonna get wrangled into shooting all the fences, writing and pinning some bullcrap description and having the client complain because my invoice is twice of what we agreed on.
No good deed ever goes unpunished.
Holy Cow, post: 454735, member: 50 wrote: What is written down and what is intended are frequently two very different things.
Arguable at least. I mean, when you write down and sign your intent, it holds a lot stronger than saying "that's not what I meant".
(but I understand what you meant, we all, at times, sign agreements where we didn't read or didn't understand the fine print)
Hmmm, this "surveyors moving the property line" thing is epidemic. We don't move anything. Their title doesn't match their occupation. One fella wants to sell what he has title to and the other fella is occupying some of it -- but hasn't been, ahem, proactive enough to get a survey and get quiet title to what he is occupying. News to him now. News to them both. The unpleasant consequences when title doesn't match occupation. Sort of a "race to the courthouse" situation of the quickest survey rather than the quickest deed. Unwritten title is best written quickly.
Easy Peazy.
Give him a google earth image with big red arrows pointing to the fences. Attach to it a proper and formal legal description with the following description of property:
"As-is"
When an unambiguous description ends up in a contract or deed, you have the intent. Actions of owners may change that over time, but you surveyed what they asked you to. If they want something else they need to pay for it.
Just survey the fences, he owns it all anyway, and write the description, it will be less cost than moving the fences to the 1/16 lines 😉
Simple, after all you have one of those GPS thingies.
Old long term boundary fences in my state would become the boundary. They do need to have to separate ownership. I'd assume if they hired a surveyor they wanted to locate the boundaries and not just the sectional lines. I would agree on the merger of title issue but as MightyMoe says you can locate the fence through common ownership and write a metes and bounds for the seller to convey to the fences as he wishes.
Interesting case from Colorado where merger of title was involved. Fence had been in place since before 1914. It had even been to court before and ruled the fence had established the boundary. Then for a period of 15 days both sides of the fence was owned by a common owner. Then the land was conveyed by the aliquot description as it always had. Before the merger of title of 15 days the court ruled the fence was the boundary. After the merger of title the court ruled the original aliquot line determined the boundary. Tricky, eh?
Salazar v. Terry 911 P.2d 1086(1996) Colorado
https://law.justia.com/cases/colorado/supreme-court/1996/94sc704-0.html
"The acquiescence to the fence as the boundary separating the two tracts of land was wiped out when common ownership of both tracts was held for a period of fifteen days. Once the two tracts fell under common ownership, the fence no longer served any legal purpose, i.e., there was no need for an internal boundary to separate land belonging to one owner. When the two tracts again came under separate ownership, the process of acquiescence and adverse possession commenced afresh.
III.
For the foregoing reasons, we affirm the court of appeals and hold that the common ownership of two tracts of land extinguishes any acquiescence in boundary lines attributable to the prior landowners of the tracts unless the deed adopts the boundary lines as previously acquiesced upon."
Is "The East Half of Section 18" the same thing as the combination of the southeast and northeast quarters or is it the mathematical east half or is it defined by a fence or two? Or is it something else?
Holy Cow, post: 454821, member: 50 wrote: Is "The East Half of Section 18" the same thing as the combination of the southeast and northeast quarters or is it the mathematical east half or is it defined by a fence or two? Or is it something else?
The East half of a Section is not a correct aliquot description (for the reason you mention). An even better one is 'the SE 1/2 of Section so and so'. I've never been so happy to find pins and a fence...
LRDay, post: 454793, member: 571 wrote: Old long term boundary fences in my state would become the boundary. They do need to have to separate ownership. I'd assume if they hired a surveyor they wanted to locate the boundaries and not just the sectional lines. I would agree on the merger of title issue but as MightyMoe says you can locate the fence through common ownership and write a metes and bounds for the seller to convey to the fences as he wishes.
Interesting case from Colorado where merger of title was involved. Fence had been in place since before 1914. It had even been to court before and ruled the fence had established the boundary. Then for a period of 15 days both sides of the fence was owned by a common owner. Then the land was conveyed by the aliquot description as it always had. Before the merger of title of 15 days the court ruled the fence was the boundary. After the merger of title the court ruled the original aliquot line determined the boundary. Tricky, eh?
Salazar v. Terry 911 P.2d 1086(1996) Colorado
https://law.justia.com/cases/colorado/supreme-court/1996/94sc704-0.html
"The acquiescence to the fence as the boundary separating the two tracts of land was wiped out when common ownership of both tracts was held for a period of fifteen days. Once the two tracts fell under common ownership, the fence no longer served any legal purpose, i.e., there was no need for an internal boundary to separate land belonging to one owner. When the two tracts again came under separate ownership, the process of acquiescence and adverse possession commenced afresh.
III.
For the foregoing reasons, we affirm the court of appeals and hold that the common ownership of two tracts of land extinguishes any acquiescence in boundary lines attributable to the prior landowners of the tracts unless the deed adopts the boundary lines as previously acquiesced upon."
It's like AP, the clock can start, AP created, get stopped, started in the opposite direction and be reversed.
The argument in Paden's case would be that the long possession caused the fence line to become the 1/16th line. Then when the parcels were merged back together it didn't matter what the math solution was anymore.
Sounds like that would be a very weak position from what Paden is describing.
Sometimes a fence is just a fence.
I was just kidding about surveying the fence and writing a metes and bounds, you would want to be paid for that:cool:
You can take a horse to water.........
McGlothlin v. Livingston; 276 P.3d 1042, 2012 Okla.Civ.App. 48 (2014)
[INDENT]"In McGlothlin I, which is now the law of the case, this Court held the fence did not create a boundary by acquiescence because there was no evidence yet produced to prove that the fence was built to divide a commonly owned unit of real property; further, that "No boundary dispute was being settled by the erection of the fence." Rather, there was "some implication in this record that the fence was erected and maintained to enclose cattle, not to delineate a boundary." Finally, Judge Reif, now Justice Reif, specially concurred for the purpose of emphasizing:
[INDENT]"??a property owner is not required to place a fence on the property line and does not give up any rights by placing a fence off the property line and along some line within the property. In my opinion, East Landowners have the additional burden of showing who built the fence for purposes of boundary by acquiescence and adverse possession." "[/INDENT][/INDENT]
Note that the Oklahoma courts are not big on AP. Case of boundary by acquiescence outnumber AP cases in the record by maybe 10 to 1, just the reverse of Oregon. As such the legal requirements for AP in OK are not highly developed by the courts. Now that Paden has made all parties aware of the difference between the fence and the record boundary no form of boundary by agreement is possible without violating the Statute of Frauds.
Mark Mayer, post: 454879, member: 424 wrote: ...Note that the Oklahoma courts are not big on AP. Case of boundary by acquiescence outnumber AP cases in the record by maybe 10 to 1...
That is probably an understatement.
My brother is an attorney and has lunches on occasion with an old fraternity bro that is a District Judge south of here. I joined them for one of their get togethers a few years ago.
The conversation turned to "crazy cases" and I asked if he had ever had any "boundary disputes" in his courtroom and the topic eventually turned to AP. The judge proudly announced, "he had never had a successful AP case in his court...and as far as he was concerned probably never would".
I believe him for some reason...
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