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...
Apparently you've never been to New England and NE NY. There are so many old stonewalls and wire fences that are the only evidence of to where boundaries are, and they're not always called for in the deeds.
I fall into the camp of those who say that, in this particular case, the fence is not the line. Here is my thinking on it.
A lot of time, I would look at the fence and question intent. But in this case, the intent is spelled out in the agreed upon contract. Seller can not claim, in my opinion, "I know it says this, but I only wanted to sell this" because he AGREED to the wording. He cannot later come back, retroactive and unilaterally, and change the agreement to the harm of the purchaser. If there is a discrepancy between deed and physical location, the part most benefiting purchaser, not seller would apply.
To act otherwise, IMHO, would be akin to saying that seller purposely committed fraud by "selling" him land and then taking the land between the deed and the fence back.
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Lsws and habits change from State to State and even community to community. This discussion shows that very well. There is one point that keeps getting lost.
The Surveyor was hired to survey a clear and identifiable description with one possible meaning. The parent parcels were under conmon title and no prior ajudication of lines had occured.
The Surveyor did his job. If the owner wants something different he needs to pay for it. The buyer has bern offered a defined parcel at a fixed price. He can enforce the contract, resulting in mass expenditures and bad relations with his new neighbor, or they can work out what they want to do. This time the Surveyor needs to be in yhe conversation and he needs to be paid for it.
paden cash, post: 454723, member: 20 wrote: 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.
This was something I was wondering about the PLSS, and this question in my mind came from reading the thread from OkieMike about certifying a certain m&b description fell wholly within some predefined aliquot part.
The question(s) become; In the previous case wouldn't the written conveyance have followed a format of;
'..Being the West 660' of the SW-1/4, and the West 660' of the NW-1/4 of Sec.__ ..being more particularly described as follows ..'
And if this were true, wouldn't the call for section(s), or aliquot parts thereof, be a call for a BLM survey, and all the records and appurtenances associated with that BLM survey ? Wouldn't this have been the more particular description, as opposed to the recital of cardinal directions and flat distances ?
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.
Loyal, post: 455113, member: 228 wrote: If a little knowledge is a dangerous thing, then ignorance is a thermonuclear weapon!
Where is Kent McMillimeter when you need him...
Sorry; I didn't mean to imply that a fence is ABSOLUTELY ALWAYS just a fence. I do understand that SOMETIMES it can be the only evidence you have, to define the original boundary. Do a search for "It Depends" on this board and you will see what I mean.
BUT
You better be prepared to document the exact location of the fence. Is it the center of the fence? Is it the fabric side of the fence? does the line have an angle point at each post? Does it define each end of the line? What if it stops short or extends past? How does it affect the neighborhood?
These are just a few of the questions that WILL come up; you better have the all the RIGHT answers...
Best Regards,
Dougie
If ignorance is bliss; I'm the happiest guy you know (Thank you Larry P...)
RADAR, post: 455164, member: 413 wrote: Where is Kent McMillimeter when you need him...
Sorry; I didn't mean to imply that a fence is ABSOLUTELY ALWAYS just a fence. I do understand that SOMETIMES it can be the only evidence you have, to define the original boundary. Do a search for "It Depends" on this board and you will see what I mean.
BUT
You better be prepared to document the exact location of the fence. Is it the center of the fence? Is it the fabric side of the fence? does the line have an angle point at each post? Does it define each end of the line? What if it stops short or extends past? How does it affect the neighborhood?
These are just a few of the questions that WILL come up; you better have the all the RIGHT answers...
Best Regards,
DougieIf ignorance is bliss; I'm the happiest guy you know (Thank you Larry P...)
No worries Dougie,
I wasn't taking a shot at you personally.
My point (such as it is), is simply that I don't believe that there are any absolutes in Land Surveying. Words like NEVER and ALWAYS have no place in our lexicon. Obviously MANY fences are "just fences," BUT, the contrary can (often) be shown. Like everything else in Land Surveying, LOCAL (& State) Laws, customs, and conditions, have to be factored in. Fences are often (but not ALWAYS) evidence of "something." Whether or not 'they' are evidence of THE Boundary, is a big part of what WE do.
Just my 2-bits,
Loyal
thebionicman, post: 455151, member: 8136 wrote: Lsws and habits change from State to State and even community to community. This discussion shows that very well. There is one point that keeps getting lost.
The Surveyor was hired to survey a clear and identifiable description with one possible meaning. The parent parcels were under conmon title and no prior ajudication of lines had occured.
The Surveyor did his job. If the owner wants something different he needs to pay for it. The buyer has bern offered a defined parcel at a fixed price. He can enforce the contract, resulting in mass expenditures and bad relations with his new neighbor, or they can work out what they want to do. This time the Surveyor needs to be in yhe conversation and he needs to be paid for it.
I would agree. If BOTH parties want to agree to the fence, then that would be a different story. And if that is the case, they SHOULD pay both for the initial survey and section breakdown as well as a second survey notating the location of the new line along fence as they agree (be it center of post, thence along barb wire fence, call by call, whatever). But, and this is a big but, it does not read that way. It reads that the seller wants to sell by price at acreage of a section breakdown but transfer title by the fence amount which is short. The seller is generally recognized as knowing his or her property better than the buyer. So if the seller had wanted to sell by the fence, he SHOULD wave written the contract as such.That was his error, not the buyers, not the buyer's surveyor and not even the l@wyers! Sucks to be him, but legally the buyer, IMHO, has more ammo from a legal standpoint than does the seller and, while the deal may fall through, the seller has definite cause for action to sue seller for the cost of survey and other harms should seller back out of agreement.
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This actually echoes pretty well a case we had to debate in my GA Law class. In that one sale had completed, no survey involved. About 9 yrs later original seller the sold property next to original buyer to original seller's child. Original buyer was surrounded by a fence (Not called for in any deed), Original seller's child built and occupied right up to fenceline. Original buyer sold his land 6 yr's after child purchased. New owner had his tract surveyed. Fence was 20-30 ft inside original buyer's property and Child's house was over the line.
Basically, judge ruled the deed was the line. Adverse could not run because seller (and his child) had higher requirement to prove the fence was the line. Judge said that if seller had wanted the fence the line, he SHOULD have called for the fence to be the line in the deed. Seller the deed must be read most advantageous to buyer so seller could not claim the land between fence and deed line so he could not deed it to his child.
Of course your mileage may vary based on your state case law.
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I swear autocorrect must hate me.
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There is something I took into consideration I don't believe anyone else has touched on; I could find NO evidence of any previous surveys within the sections.
Oklahoma Statues state:
245:15-13-2. Minimum Standards
(c) Minimum technical standards for land or boundary surveys (field and office).
(8) Referencing surveys.
(A) Surveys based on the United States Public Land Survey System shall be referenced to original or properly restored corners. The appropriate Bureau of Land Management Manual of Surveying Instructions shall be used as a guide for the restoration of lost or obliterated corners and subdivision of sections into aliquot parts.
This is, of course, a simplistic approach AND only appropriate if I am not retracing any other survey (recorded or unrecorded) other than the original GLO survey prior to patent. In my opinion one of the most egregious errors a modern surveyor can execute is to attempt to apply "the manual" to lands that have been previously subdivided by private parties. I found no evidence of any previous surveys; hence I calculated and monumented the protracted interior lines per State Statutes and in a manner that all the excesses and deficiencies in the section were borne equally by all parties. Barring the discovery of any additional evidence I consider my survey to be the "original" interior subdivision.
Then the 800 gorilla in the discussion becomes: How were the interior fences originally set WITHOUT the benefit of any surveying?
It's a viable argument. And it is not merely as simple as asking whether the fences were or weren't lined out by a surveyor. "Surveys" can (and are frequently) be performed by the owners themselves. I based my decision on the fact that the original patents consisted of 4 quarters (160 acres). The obvious initial determination would be to locate the center quarter corner. The actual center of section is non-existent (in the middle of a cultivated field) and in the section to the west, while an east-west fence occupies most nearly the quarter line, there is no prominent visible evidence the interior common quarter corner has ever been a physical location. I believe the fences to be a product of line-of-site and the fact that fencing comes in conveniently measured rolls, generally 40 and 80 rod rolls. There is no evidence, in my opinion, that indicates the interior lines were ever sutveyed.
I don't care how the buyer and seller settle their differences. The buyer wanted the protection of a survey. The seller saw no need in a survey and has considered anything I've attempted to provide as either erroneous or at best, merely a hindrance.
While I acknowledge the possibility that another surveying solution could exist; I stand by my decision after a preponderance of all the existing evidence and records.
Being aware that the existing fence is not the same fence called for in a deed is very important.
Many people wanting to build a fence simply move over into the open ground and will build a new fence allowing the older fence to disappear into the growth and/or fall to the ground and become covered.
Have spend many an hour using Shonstedt looking for old fence in ground and trees.
Sounds like there is a lot of fences and that the total sale area is enclosed with fences. Any fence that the seller owns the land on both sides in the same ownership name due to merger of title is most likely just a fence. So there, if the sale specifies the sectional breakdown lines, then the section lines would apply. If that was not the understanding maybe they can do some more talking (buyer and seller). Any fence along a line in this transaction that has another landowner on one side other than the seller, at least in my state needs to be looked at more closely than just an aliquot survey line. The boundary, if that is what the seller is intending to sell to (no land of the adjoiner in the sale or leaving any strips), I'd assume is what they wanted surveyed and that should be determined before any survey work was begun. Communication problems seem to always be in the mix. So the facts about the fence needs to be considered. In Utah if the fence has been in place for 20 plus years and treated as the boundary by at least one of the owners it's likely that the boundary has been established at the fence. Whether it was ever surveyed by anyone is irrelevant . A survey is not the relevant thing here, it is the landowners and what they have done over time that maters and establishes the boundary. In an ideal world the line would have been surveyed and then the owners accepted the survey and built the fences to the survey line. What they actually did many years ago we often do not know. You can see an existing fence and you can usually determine about how long it has been there (aerial photos, long time residents). Sorting out the law is probably the most difficult and differs from state to state.
paden cash, post: 454723, member: 20 wrote: The seller refused to participate in facilitating the survey because "it's already fenced...".
Red flag---Why would the owner say such a thing? This bears more investigation.
paden cash, post: 454723, member: 20 wrote: 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?"
Question: Was the request to subdivide the section or to retrace the quarter line established before 1978?
paden cash, post: 454723, member: 20 wrote: the fence was the "property line" when the current owner purchased the quarter to the south in 1978.
So legal council states that the fence was the boundary of the aliquot part deed when it was purchased. And above he is implying that it is now being moved. Who can blame him for that?
paden cash, post: 454723, member: 20 wrote: 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.
So does the "merger" mean that any aliquot line established before 1978 gets set aside? The owner has no right to expect that the boundary of the aliquot part when he acquired the land is still the boundary of the aliquot part when he sells the same description that was used when he bought it? I know the argument well. Many surveyors argue boundaries such as the 1978 boundary just cannot be the boundary called for in the aliquot part deed. The courts have disagreed with this thinking time and time again and have also stated that boundaries once established are bound to all subsequent heirs and assigns,
linebender, post: 455198, member: 449 wrote: Red flag---Why would the owner say such a thing? This bears more investigation.
Question: Was the request to subdivide the section or to retrace the quarter line established before 1978?
So legal council states that the fence was the boundary of the aliquot part deed when it was purchased. And above he is implying that it is now being moved. Who can blame him for that?
So does the "merger" mean that any aliquot line established before 1978 gets set aside? The owner has no right to expect that the boundary of the aliquot part when he acquired the land is still the boundary of the aliquot part when he sells the same description that was used when he bought it? I know the argument well. Many surveyors argue boundaries such as the 1978 boundary just cannot be the boundary called for in the aliquot part deed. The courts have disagreed with this thinking time and time again and have also stated that boundaries once established are bound to all subsequent heirs and assigns,
But, Linebender, you are ignoring red flags the other way. The seller stipulated a per acre price. If he stated a per acre price, rather than a flat rate, does it not stand to reason that there was an Expectation from both parties that the land being exchanged was the specific acreage. And, you do not seem to distinguish between whether the line WAS the fence or did seller THINK it was the fence. And there is a very real difference between the two. What did the DEED that transferred the property into him in 1978 state? Was it a flat fee or a per acre amount. If flat, I would argue that he presumed the line to be along the fence. And in the last 40 years, it is possible that seller has repaired the fence and the fence location could have changed during those repairs. And, the seller CLAIMS the fence was the line prior to 1978, but is there any real evidence that this is the case? I mean, again, is that fence 40 yrs old? For the last 40 yrs, he may have "evolved" his memory of where the property toward "near the fence" to "the line is the fence".
On the other hand, he has VERY CLEARLY written a contract specifying $XXXX an acre with an agreed upon price. That is pretty clear evidence that the buyer was led to believe by the seller that the acreage is there.
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What does the price per acre price have to do with the intent to sell the same amount of land that was understood to have been purchased in 1978? I would like to explore further who "everybody" is that council referenced as well as gather as much evidence as is available about conditions that existed before 1978 before making a final determination.
Not sure I follow the logic:
Land deal for 400 acres say at $1000 per acre ($400,000). 400 acres comprised of 10 ?? 40 acre aliquot parts in sectional land. Most know that the acreage in sectional land is not exact. ie. A 40 is not exactly 40.0000 acres. So something has to give. Normally I'd think you hold the price per acre and adjust for the actual acreage within the boundary. Here it seems that they want to hold the price per acre, total acreage and adjust the boundary to fit the pricing.
LRDay, post: 455216, member: 571 wrote: Not sure I follow the logic:
Land deal for 400 acres say at $1000 per acre ($400,000). 400 acres comprised of 10 ?? 40 acre aliquot parts in sectional land. Most know that the acreage in sectional land is not exact. ie. A 40 is not exactly 40.0000 acres. So something has to give. Normally I'd think you hold the price per acre and adjust for the actual acreage within the boundary. Here it seems that they want to hold the price per acre, total acreage and adjust the boundary to fit the pricing.
linebender, post: 455244, member: 449 wrote:
Linebender,
If you look at time stamp, I think he was replying to me, not you.
In any event, we will have to agree to disagree. Quite often I do look at fences as indicative of property rights, but in this case saying "I sold you 400 acres but only want you to have what is inside the fences" seems to be an untenable position. Did seller have the ability to transfer 400 contiguous acres? The answer is yes. Did seller put ANYTHING in the contract that limits the transfer of acres to what was fences? From OP's post, no. All we get is recollections of a guy of where the line WAS 40 yrs ago when it transferred into his property. Nothing in the law says he must sell by what he bought. And again, I believe, and my state has ruled that a deed must be read in favor of the buyer, not the seller. And the difference between a mathematical breakdown and a NON occupation line of the fence would require the more favorable reading which is the mathematical breakdown.
Of course, your mileage may vary based on your state law and case law.
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Let's not bring logic into this. This wouldn't be the first time you thought I was nuts. If the seller wants to sell 400 acres exactly I missed that. We all surely agree that can't be done by an aliquot description but I thought the whole point here was that the task is to resurvey the section. My point is that if there was evidence of interior subdivision in 1978 that was a legal boundary of the aliquot deed and that same aliquot deed was being sold in 2017 a surveyor should not mark the boundary in a different location than it was when purchased if the owner wants to sell no more or less than was acquired. Is it 160 acres? Certainly not. Is 2017 the first time the section has been subdivided? If not, the interior lines should be retraced using best evidence of previous division.
Ok, my wife and I were discussing this and she says I may not be explaining my logic as clearly as I think that I am.
Pretend it is 1978. Neighbors are standing there at the fence. Do they know the section breakdown is the fence or do they reckon it is close enough. I think you are hard pressed to state it was the absolute line in 1978. There is nothing, other than an 80 some odd yr old man's memory of the fence being the line. My mother is in her 80's. I don't trust her memory from 40 yrs ago. Because she has rose colored glasses about things from my childhood.
The seller says it was the line. But I tend to think that the seller and the old owner just kind of agreed the fence was in the ballpark but did not have any knowledge that this fence we agreeing to live by was, in fact, the physical location of the breakdown. They just agreed that as long as each other did not cross that occupation line that neither would attempt to determine the section location. So in effect, he purchased the land on that side of the fence on condition that old owner quit claimed any right to lands between the fence and a mathematical breakdown.
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