Jawja, post: 455250, member: 12766 wrote: 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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And there is the golden nugget. If the fence was an attempt to divide the quarters it may be the best evidence. If it was to keep cattle in or out it would be a fence of convenience. You have to ask those who know and see what they assert. Mrmorialize it well before they get coaching from an Attorney.
From the original post it sounds like the NE corner of the SE1/4 is 45 feet north of a fence corner. This of course would be the E1/4 corner of the section. If so and the original monument is recovered, then there is no question that it's the corner and the fence would be incorrect.
If no original monument is recovered then the fence holds weight, for many of the townships I work in a 45' out of place for an original 1/4 stone wouldn't be the least bit surprising.
I would not say that merging the parcels back into place in 1978 would cause the 1/4 line to shift. Once established the 1/4 line is the 1/4 line forever, property lines may shift from possession but not the established 1/4 line.
The 2009 manual discusses accepting fences, it's an important topic. Paden no doubt has a handle on local conditions and has good reasons beyond the math to reject this fence corner. 45' sounds more like a fence that was "guessed" at in the flat oke country.
