I will never understand nor agree with saying "the 1/16th section line has moved to the existing fence".
The original section lines and Headright lines never move, they are always where they were to begin with.
Ownership and/or title boundary may have changed location and that is all.
0.02
What I heard in a seminar, is that when you have an acquiesced-to property line, (or section line) or a court-ruled section line, it becomes the section line for those two parties. But not necessarily for everyone else who relies on a different, or original, ?¬-Section corner. It makes sense to me that if one party purchases the adjoining ?¬-section, that there is no longer a boundary between the two parcels. Now if he sells off one of the ?¬-sections by aliquot description, it should be aliquot (like the court-case Leon mentioned)
Tom Adams, post: 454925, member: 7285 wrote: an acquiesced-to property line, (or section line) or a court-ruled section line, it becomes the section line
That's like the Supreme Court saying a tomato is a vegetable, when it is, in fact, a fruit...
RADAR, post: 454931, member: 413 wrote: That's like the Supreme Court saying a tomato is a vegetable, when it is, in fact, a fruit...
Yes, there are facts in reality, and legal facts based on rulings. If OJ had murdered his wife in reality, and the court rules not guilty, legally he is not guilty.
When is a fence "just a fence"?
When it has never been accepted as a boundary location.
linebender, post: 454958, member: 449 wrote: When is a fence "just a fence"?
A fence is ALWAYS "just a fence"; until it is called for in a deed. Then, and only then, is a property line...
Keep in mind that state laws may vary on this issue (quite a lot in some). My state, Utah, is probably at one far side.
I wouldn't say that a boundary established to a fence would become the 1/16 line. The aliquot lines should never move (but they do when the sectional corners get obliterated or lost and then replaced other than where they really were).
As far as a boundary established under law at the fence. The question then is what does the deed say. This is the tricky part. The deed description remains the same, doesn't need to be changed BUT must be read to go the the established boundary location. Very difficult for title folks. A survey can show where, the boundary (fence) is but I think it's best to leave the description alone. So you have the description, an aliquot part, and you have the established boundary line. Maybe a Record and Measured shown on the survey. If folks won't accept the survey then I suppose its either to boundary line agreements to put a new description blessed by both parties to the boundary or go to court. A court would rule where the boundary is but still wouldn't require the parties convey to a new description.
In the case I posted before there is a good discussion of how this works in the dissenting opinion along with cites to many other cases.
JUSTICE KOURLIS dissenting:
"An acquiesced boundary often will not lie on the surveyor's true location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson, 3 Cal. App. 3d 607, 83 Cal. Rptr. 744, 746 (1970); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, 1010 (1953). An acquiesced line "becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location." Young v. Blakeman, 153 Cal. 477, 95 P. 888, 890 (1908). "Thus, if the distance call in the deed is '500 feet,' it may henceforth be treated as if it read '517 feet' or '483 feet,' and every future deed of the land which copies or incorporates the original description will also be so read." Roger A. Cunningham et al., The Law of Property ?? 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958).
The policy underlying this construction of the language in the deed is the doctrine of repose, or "the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents." Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries ?? 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
Young, 95 P. at 889. Hence, boundary lines which have been recognized for the statutory period are regarded in law as being the true and permanent boundaries described by the language in the deed.
Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891."
I highlighted "by operation of law". Don't know about other states but Utah's Statute of Frauds refers to "by operation of law" as a way that title may be transfered without a written document. The Statute of Frauds doesn't require all conveyances to be in writing, as the transfer may occur by operation of law.
LRDay, post: 455015, member: 571 wrote: Keep in mind that state laws may vary on this issue (quite a lot in some). My state, Utah, is probably at one far side.
I wouldn't say that a boundary established to a fence would become the 1/16 line. The aliquot lines should never move (but they do when the sectional corners get obliterated or lost and then replaced other than where they really were).
As far as a boundary established under law at the fence. The question then is what does the deed say. This is the tricky part. The deed description remains the same, doesn't need to be changed BUT must be read to go the the established boundary location. Very difficult for title folks. A survey can show where, the boundary (fence) is but I think it's best to leave the description alone. So you have the description, an aliquot part, and you have the established boundary line. Maybe a Record and Measured shown on the survey. If folks won't accept the survey then I suppose its either to boundary line agreements to put a new description blessed by both parties to the boundary or go to court. A court would rule where the boundary is but still wouldn't require the parties convey to a new description.
In the case I posted before there is a good discussion of how this works in the dissenting opinion along with cites to many other cases.
JUSTICE KOURLIS dissenting:
"An acquiesced boundary often will not lie on the surveyor's true location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson, 3 Cal. App. 3d 607, 83 Cal. Rptr. 744, 746 (1970); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, 1010 (1953). An acquiesced line "becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location." Young v. Blakeman, 153 Cal. 477, 95 P. 888, 890 (1908). "Thus, if the distance call in the deed is '500 feet,' it may henceforth be treated as if it read '517 feet' or '483 feet,' and every future deed of the land which copies or incorporates the original description will also be so read." Roger A. Cunningham et al., The Law of Property ?? 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958).
The policy underlying this construction of the language in the deed is the doctrine of repose, or "the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents." Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries ?? 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
Young, 95 P. at 889. Hence, boundary lines which have been recognized for the statutory period are regarded in law as being the true and permanent boundaries described by the language in the deed.Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891."
I highlighted "by operation of law". Don't know about other states but Utah's Statute of Frauds refers to "by operation of law" as a way that title may be transfered without a written document. The Statute of Frauds doesn't require all conveyances to be in writing, as the transfer may occur by operation of law.
Appreciate the material. I love to read up on such matters.
As for my client and his real-estate deal, I hope they work it out without any additional work on my end.
But I kind of think the seller has screwed himself out of contending the fence is the boundary. The sale price was figured as a "per acre" price for 395 acres (I measured 395.23 acres). The only way you can make the area, the description and the price all fit is to use an accurate subdivision of the section. It's one thing the say the fence is the property line...but it's NOT the property line of a 160 acre tract. It may very well be determined to be the property line of a 158 acre tract (what's under fence), but he shouldn't be able to have it both ways.
I'm trying to stay out of it until I might be able to do something that might clear things up. Seems as though I've already "helped out" way too much. 😉
Kris Morgan, post: 454728, member: 29 wrote: Good on ya. A Fence is just a Fence until it's proven otherwise.
Maybe if it's a new fence. But if it's an old wire, wood, or stone fence, I feel the opposite, that I lean toward accepting it as the boundary, unless proven otherwise.
A fence may be evidence as to where the original aliquot corner was set. It can imply occupation, and help you look for further evidence. You may determine by a preponderance of all the evidence, that the fence was set on the section line even if it isn't called for in a deed.
A patent is issued, the patentee lays out his 160 acres off found section and 1/4 corners, this sits for 100 years in repose and then a surveyor comes in and lays out the math solution "missing" the fences by 15 feet. This of course is the age old issue.
MightyMoe, post: 455051, member: 700 wrote: A patent is issued, the patentee lays out his 160 acres off found section and 1/4 corners, this sits for 100 years in repose and then a surveyor comes in and lays out the math solution "missing" the fences by 15 feet. This of course is the age old issue.
Why do you think they sold barbed wire in 1320 foot rolls[emoji848][emoji1063]
That poster, RADAR; sure is a swell guy.
douglascasementl, post: 455067, member: 11341 wrote: Why do you think they sold barbed wire in 1320 foot rolls[emoji848][emoji1063]
That poster, RADAR; sure is a swell guy.
That's it. The difference. One guy measured with chain-link and the other with barbed-wire. Just a conversion factor.
douglascasementl, post: 455067, member: 11341 wrote: Why do you think they sold barbed wire in 1320 foot rolls[emoji848][emoji1063]
That poster, RADAR; sure is a swell guy.
80 rod rolls of barbed wire have probably done more for the PLSS than the actual original surveys. 😉
The only reason the 1320-foot roll works is the extra wire required to wrap around the corner posts comes from that not needed to get from the section line to the edge of the right-of-way. The next quarter mile, though, requires some splicing to make the full distance. The things one learns from real world experience.
I have no doubt that land owners measured their own land off with a roll of barb wire as they were building their fence.
When is a fence "just a fence"?
When it's just a fence!
Duh.
Loyal
RADAR, post: 454998, member: 413 wrote: A fence is ALWAYS "just a fence"; until it is called for in a deed. Then, and only then, is a property line...
This is the "thinking" that has gotten many a surveyor off the track of what we are supposed to be doing out there. The big problem is that in most states this isn't the law, just another surveyor myth.
Brian Allen, post: 455112, member: 1333 wrote: This is the "thinking" that has gotten many a surveyor off the track of what we are supposed to be doing out there. The big problem is that in most states this isn't the law, just another surveyor myth.
If a little knowledge is a dangerous thing, then ignorance is a thermonuclear weapon!
Loyal
Loyal, post: 455113, member: 228 wrote: If a little knowledge is a dangerous thing, then ignorance is a thermonuclear weapon!
Loyal
I stand corrected...
That poster, RADAR; sure is a swell guy.
