Working on a parcel split survey. To my north is a subdivision from 1990. In interviewing the original landowner of the subdivision I gather the following.
I'm trying to find out about his north fence line. It wasn't there in 1990 as be bought half of a larger parcel from an old farmer. They didn't have it surveyed. How did they mark the line. The old farmer who sold the property somehow decided or measured where half the distance was on the west side and east side. They then jointly built a fence to that line. The deed has none of this info. It simply says staring at a point south of a section corner then it goes west then south and such back the point of beginning. No mention of of any corner marker or calls to any adjoiners just a standard metes without bounds description so very common in this area. They probably had a title company conjure it up from the existing record same as still goes on today.
The subdivision owner told me he drew up the plat himself but got an old surveyor to help him and sign it (probably a rubber stamp). When trying to find out what the surveyor set at the corners I couldn't get a positive answer but there are some nice railroad ties at the since built lot fence corners. The owner told be the old surveyor really didn't have any good survey equipment. I suspect the owner did most of the layout himself but it was his land.
So there is a couple of ways to go here. There is a deed without any called for monuments you can ÛÏsurveyÛ onto the ground, and there is subsequent evidence this has been done missing the fence line built by the original parties to the land deal. West seems to vary about 7 feet from one end of the about å? mile line to the other along the fence. The one end measured from the section corner seems about right.
The other way to go is that the fence is the boundary via a practical location by the original parties to the deed. If you take this view you are basically bucking the way things are being done by most surveyors and public officials in my area. None of the info to base the practical location is in the public record. I don't think anybody else took the time to interview the landowners.
I know what I'm going to do and the law in my state. How would it go by the law in your state? Does the deed conveyance and its measurements control or the line put on the ground by the parties to the deal in 1990?
Probably would be where the seller and buyer built their common fence.
A surveyor is competent and can record testimony in affadavit form from client and other parties that can relate facts about the creation of a boundary and make a decision based on that information.
The intent was expressed and agreed upon by both parties building the fence to mark their common boundary.
0.02
LRDay, post: 373193, member: 571 wrote: Working on a parcel split survey. To my north is a subdivision from 1990. In interviewing the original landowner of the subdivision I gather the following.
I'm trying to find out about his north fence line. It wasn't there in 1990 as be bought half of a larger parcel from an old farmer. They didn't have it surveyed. How did they mark the line. The old farmer who sold the property somehow decided or measured where half the distance was on the west side and east side. They then jointly built a fence to that line. The deed has none of this info. It simply says staring at a point south of a section corner then it goes west then south and such back the point of beginning. No mention of of any corner marker or calls to any adjoiners just a standard metes without bounds description so very common in this area. They probably had a title company conjure it up from the existing record same as still goes on today.
The subdivision owner told me he drew up the plat himself but got an old surveyor to help him and sign it (probably a rubber stamp). When trying to find out what the surveyor set at the corners I couldn't get a positive answer but there are some nice railroad ties at the since built lot fence corners. The owner told be the old surveyor really didn't have any good survey equipment. I suspect the owner did most of the layout himself but it was his land.
So there is a couple of ways to go here. There is a deed without any called for monuments you can ÛÏsurveyÛ onto the ground, and there is subsequent evidence this has been done missing the fence line built by the original parties to the land deal. West seems to vary about 7 feet from one end of the about å? mile line to the other along the fence. The one end measured from the section corner seems about right.
The other way to go is that the fence is the boundary via a practical location by the original parties to the deed. If you take this view you are basically bucking the way things are being done by most surveyors and public officials in my area. None of the info to base the practical location is in the public record. I don't think anybody else took the time to interview the landowners.
I know what I'm going to do and the law in my state. How would it go by the law in your state? Does the deed conveyance and its measurements control or the line put on the ground by the parties to the deal in 1990?
I just did one basically identical to what you are describing, I held the fence, it was clearly the division line, and I don't see it conflicting with the deeds. It was laid out (surveyed by the owner, 600' south of a section line and given to his two children).
That the fence was about 606' and 610' from the line didn't bother me at all, nor did I see it as in "error".
Hold the fence as the agreed upon line as per the property owners and give calls per the fence location and then show both on your survey and denote each as per deed and per measurment.
Oklahoma has a good case about this exact thing...and sorry, I can't remember their names or the case number. Mark Meyer here on this site quoted it not too long ago however.
Basically the conveyance was as the parties marked it on the ground.
In Arkansas the line is were the owners 'surveyed' it...
DDSM:beer::beer::beer:
Whoa! Whoa! Whoa!
Per BCLP, 4th Ed.
Pg. 364-65: "A land surveyor locates boundary lines according to the legal description in the deed and then relates lines of possession that do not agree with these lines and reports the facts to the client, in writing".
Pg. 107-108: "For a corner and its monument to be controlling in a description, the corners must be called for in the written conveyance and the monuments identified.
"In the priority of calls the lines actually run, if called for, are superior to all other elements."
Pg. 255-56: "When establishing the boundaries of a property in accordance with a written deed, the boundaries must be established in accordance with the written terms of the deed. Parol evidence may not be taken to determine the terms of a deed, but may be used only to explain ambiguous terms of a deed.
"To allow an owner to express an opinion as to what the terms of a deed were is equivalent to permitting land to be transferred by parol means."
Pg. 264: "Title lines established by estoppel, agreement, prescription, or other unwritten means are local in character and cannot be used to establish lines of the written deed."
So apparently unless the fences are called for in the legal description, they cannot control. The surveyor has NO authority to make a legal interpretation, he only has the power to report the facts to the client. Unless the terms of the deed are ambiguous, the surveyor cannot take and consider parol evidence. The title lines are as described in the written deed. Yes, the property line may be along the fence, but the title line is where it is described in the deed. The surveyor doesn't have the authority to apply the law, that is reserved only for the courts.
I'd advise the client and the adjoiners to seek legal advise in getting the possession derived property lines to agree with the title lines.
Sorry, I couldn't resist......... 😀
That book should be thrown into the trash bin of past history!!! WHAT A BUNCH OF BS!
LRDay, post: 373261, member: 571 wrote: That book should be thrown into the trash bin of past history!!! WHAT A BUNCH OF BS!
Lots of folks claim their "eyes have been opened" when donning "Robillardian Blinders".
...printed kool-aid....
Would this particular scenario create what is known as a latent ambiguity ?
Where would this boundary be in your state?
Very very far North Texas 🙂
LRDay, post: 373193, member: 571 wrote: If you take this view you are basically bucking the way things are being done by most surveyors and public officials in my area. None of the info to base the practical location is in the public record. I don't think anybody else took the time to interview the landowners.
where you are sounds similar to my area in NY. (Besides us being a M&B state) We are non recording and nobody monuments surveys unless added to the scope of work. Almost all deeds are either a lot in a subdivision or M&B with no bounds, only bearing and distance with no called for monuments (unless you can find a 'point' bc they all seem to go 'to a point')....
If you hired 10 surveyors here they would all agree similarly close with the derived location being it's mathematical position.
If I were to do the fence method, right or wrong, I would look wrong once a few more opinions are gathered, all agreeing and against mine. Now, I guess it can go to court and ultimately I can be declared as being correct, however I feel almost every time it won't go to court, land owners will just take the agreeing opinions and move on, pushing my 'erroneous' conclusion to the side. (Which would probably end up hurting me and my business in the end)
That being said.... I have started reading a bunch of law in this area/state and have started tinkering with true boundaries when there is a reason. Such as the M&B on adjoining parcels do not coincide (unless it's just an obvious slight difference in a measured angle and the overlap/gore is minimal like a few tenths) but like the case I just posted a few days ago there was a 2.5' gap between descriptions which to me defines a latent ambiguity, which now does allow me to gather information outside the deed to get to the truth. Yes I could easily have just shown the line as deeded and moved on as most around here would have, but I felt in the bare minimum I have to at least show the lines that conflict and make note of it.
"... but like the case I just posted a few days ago there was a 2.5' gap between descriptions which to me defines a latent ambiguity, which now does allow me to gather information outside the deed to get to the truth. Yes I could easily have just shown the line as deeded and moved on as most around here would have,"
Welcome to the profession of land surveying!
" but I felt in the bare minimum I have to at least show the lines that conflict and make note of it."
The final step would be have enough evidence and properly apply the law, come to a professional opinion, and then present your conclusions to the landowners. By only showing the problem (not saying that is all you did, but it is what most would do) you haven't provided a complete professional service. I hope you have reached a proper solution and documented what you have done.
To answer LRDay's question in the OP, by quoting (emphasis added) Campbell v Weisbrod, 245 P.2d 1052 (1952), (I guarantee, that with a little effort you can find similar case law in all 50 states, including Texas):
The evidence of the marking, agreeing upon, and acquiescence in, the established boundary, is competent and should have been considered. Price v. De Reyes, 161 Cal. 484, 119 P. 893; Cummings v. Laughlin, 173 Cal. 561, 160 P. 833; Schlender v. Maretoli, 140 Kan. 533, 37 P.2d 993; Baker v. Jones, 141 Kan. 240, 40 P.2d 346; Windsor v. Bourcier, 21 Wash. 2d 313, 150 P.2d 717; Hirt v. Entus, supra.
The fundamental principle underlying all of the rules of construction of deeds, as well as all other contractual instruments, is that the courts must seek and give effect to the intention of the parties. Schmidt v. Williams, 34 Idaho 723, 203 P. 1075; Molyneux v. Twin Falls Canal Co., 54 Idaho 619, 35 P.2d 651, 94 A.L.R. 1264; McLean v. Row, 56 Idaho 646, 57 P.2d 689; Mammoth Gold Dredging Co. v. Forbes, 39 Cal.App.2d 739, 104 P.2d 131; Losee v. Jones, Utah, 235 P.2d 132.
The general rule is that monuments, natural or artificial, or lines marked on the ground, control over calls for courses and distances. Blaffer v. State, Tex.Civ.App., 31 S.W.2d 172; Carter v. Texas Co., 1935, 126 Tex. 388, 87 S.W.2d 1079; Snyder v. Magnolia Petroleum Co., Tex.Civ.App., 107 S.W.2d 603; Crosbyton-South Plains Ry. Co. v. Hutchinson, Tex.Civ.App., 204 S.W.2d 643; Dean v. Thompson, Tex.Civ.App., 213 S.W. 2d 327; Conner v. Jarrett, 120 W.Va. 633, 200 S.E. 39; Klapman v. Hook, 206 S.C. 51, 32 S.E.2d 882; Neill v. Ward, 103 Vt. 117, 153 A. 219; Richards & Richards v. Stewart, 102 Pa.Super. 488, 157 A. 331; 8 Am.Jur., Boundaries, å¤å¤ 53, 54, 55.
The particular rule applicable here is that where the seller and the buyer go upon the land and there agree upon and mark the boundary between the part to be conveyed and the part to be retained by the seller, the line thus fixed controls the courses and distances set out in the deed executed to effectuate the division agreed upon. Martin v. Lopes, 28 Cal.2d 618, 170 P.2d 881; Lake, for Use and Benefit of Benton v. Crosser, 202 Okl. 582, 216 P.2d 583; Nebel v. Guyer, 99 Cal.App.2d 30, 221 P.2d 337; Millikin v. Sessoms, 173 N.C. 723, 92 S.E. 359; 170 A.L.R., note, 1144.
In S. S. M. Realty Co. v. Boren, 211 N.C. 446, 190 S.E. 733, it was held that a boundary line, established by tenants in common going upon the premises and marking the dividing line and making deeds intending to divide the property along the line thus marked and agreed upon, controls over the courses and distances set out in the deeds; and that by so doing and thereafter dealing with the land with reference to the line thus established they estop themselves and their privies from thereafter claiming a different line under the calls in the deeds.
And no, there is no "title line" that differs from the true boundary line, they are one and the same.
When we fail to gather ALL the evidence (that means we must get out from behind our computers and knock on doors) and properly apply the law (quit just reading, erroneously interpreting and applying Robillard, Brown, and Wilson etc.), we fail as a profession, and then we wonder why we can't demand profession fees and receive the respect that other learned professions receive.
When the parties to the transaction physically established the boundary it is the original boundary and they are the original surveyors. It is not required for the monuments set by them be called for in the Deed but it obviously helps. One of the critical things is notice. A boundary fence imparts at least inquiry notice. Calling for the fence in the Deed would impart constructive notice but that is not the case here.
Does the deed state anything like "being one-half of...(the parent parcel)" ?
My answer would be that, "It depends."
The deed was written a certain way for a reason. The fence was built for a certain reason.
I would need to know if the fence was intended to be the boundary.
You and I can construct a fence on the understanding that a future survey may better define the line. Then the fence does not control. And, parol evidence from the grantor would be pretty low on the list of useful evidence.
The field notes of the surveyor would be useful...
dmyhill, post: 373346, member: 1137 wrote: My answer would be that, "It depends."
The deed was written a certain way for a reason. The fence was built for a certain reason.
I would need to know if the fence was intended to be the boundary.
You and I can construct a fence on the understanding that a future survey may better define the line. Then the fence does not control. And, parol evidence from the grantor would be pretty low on the list of useful evidence.
The field notes of the surveyor would be useful...
Our Courts are really inconsistent on this. I've seen cases where they have all sorts of evidence supporting the fence yet they say no and at least one other where one neighbor discussed it with her neighbor then rebuilt the fence into a block wall but no discussion of uncertainty or agreement of it as the boundary yet they green lighted the fence as the boundary. I think the Court in the second case did not like the loser, a "vexatious litigant."
The best thing to do is ask the property owners about it then recommend a solution such as a boundary line agreement. Maybe they'll say, oh no, the fence was just provisional, stake the so-called true location.
LRDay, post: 373193, member: 571 wrote: Working on a parcel split survey. To my north is a subdivision from 1990. In interviewing the original landowner of the subdivision I gather the following.
I'm trying to find out about his north fence line. It wasn't there in 1990 as be bought half of a larger parcel from an old farmer. They didn't have it surveyed. How did they mark the line. The old farmer who sold the property somehow decided or measured where half the distance was on the west side and east side. They then jointly built a fence to that line. The deed has none of this info. It simply says staring at a point south of a section corner then it goes west then south and such back the point of beginning. No mention of of any corner marker or calls to any adjoiners just a standard metes without bounds description so very common in this area. They probably had a title company conjure it up from the existing record same as still goes on today.
The subdivision owner told me he drew up the plat himself but got an old surveyor to help him and sign it (probably a rubber stamp). When trying to find out what the surveyor set at the corners I couldn't get a positive answer but there are some nice railroad ties at the since built lot fence corners. The owner told be the old surveyor really didn't have any good survey equipment. I suspect the owner did most of the layout himself but it was his land.
So there is a couple of ways to go here. There is a deed without any called for monuments you can ÛÏsurveyÛ onto the ground, and there is subsequent evidence this has been done missing the fence line built by the original parties to the land deal. West seems to vary about 7 feet from one end of the about å? mile line to the other along the fence. The one end measured from the section corner seems about right.
The other way to go is that the fence is the boundary via a practical location by the original parties to the deed. If you take this view you are basically bucking the way things are being done by most surveyors and public officials in my area. None of the info to base the practical location is in the public record. I don't think anybody else took the time to interview the landowners.
I know what I'm going to do and the law in my state. How would it go by the law in your state? Does the deed conveyance and its measurements control or the line put on the ground by the parties to the deal in 1990?
Really a question of fact, not law. The boundary location rests on the first and most basic question; is it a retracement or an original survey you need to perform. Presumption is always retracement in this type of situation. You have testimony that corroborates the presumption. On the other hand, if the old farmers grandson shows up and tells a different story, then it becomes a question of credibility of witnesses. Judge or jury might believe the grandson. If so, then you could argue a line different than the deed line had developed by operation of law.
To illustrate the twist this can take, I was presented with a similar deed a few years ago. Closed metes description with no bounds, but definite tie to a road intersection. Deed was a couple of years old. Client said he thought they had agreed to run the boundary along existing barb wire fences. Sorry, not called for. And that testimony does not indicate a stakeout per the deed, it only indicates a purchase agreement superseded by a binding contract. If you want it to be the wire we have to reform the contract. Should have retained a surveyor before you purchased.
dmyhill, post: 373346, member: 1137 wrote: My answer would be that, "It depends."
The deed was written a certain way for a reason. The fence was built for a certain reason.
I would need to know if the fence was intended to be the boundary.
You and I can construct a fence on the understanding that a future survey may better define the line. Then the fence does not control. And, parol evidence from the grantor would be pretty low on the list of useful evidence.
The field notes of the surveyor would be useful...
If you change the facts of the OP, then yes, the outcome may change. Imagining and stating different"what if's", doesn't change the facts as presented.
What, in the original fact set, leads you away from the presumption that the fence was intended to be the boundary?
Why do you consider parol evidence form the original grantor low on the list of useful evidence?
Dave Karoly, post: 373350, member: 94 wrote: Our Courts are really inconsistent on this. I've seen cases where they have all sorts of evidence supporting the fence yet they say no and at least one other where one neighbor discussed it with her neighbor then rebuilt the fence into a block wall but no discussion of uncertainty or agreement of it as the boundary yet they green lighted the fence as the boundary. I think the Court in the second case did not like the loser, a "vexatious litigant."
The best thing to do is ask the property owners about it then recommend a solution such as a boundary line agreement. Maybe they'll say, oh no, the fence was just provisional, stake the so-called true location.
This sounds logical to me and a reasonable path to solution
