The January issue of the Treasure State Surveyor (MT), in the "Land Surveyor's Guide to the Montana Supreme Court", written by Brian Portwood, PLS has a review of the case Tillinger vs Frisbie (1957), Similar to LR's case, which I think would reject the fence over the actual line location. It can be foundat marls.com, under the link to the land surveyor's guide.
Mr. Portwood should be applauded for the effort he has put into the project for his guides, not just for Montana but the other states he has done as well. They make for an interesting and informative read.
Scott
scottb, post: 373365, member: 2124 wrote: The January issue of the Treasure State Surveyor (MT), in the "Land Surveyor's Guide to the Montana Supreme Court", written by Brian Portwood, PLS has a review of the case Tillinger vs Frisbie (1957), Similar to LR's case, which I think would reject the fence over the actual line location. It can be foundat marls.com, under the link to the land surveyor's guide.
Mr. Portwood should be applauded for the effort he has put into the project for his guides, not just for Montana but the other states he has done as well. They make for an interesting and informative read.
Scott
I miss Brian's posts.
I put the book on my iPad for airplane reading, thanks for the tip.
http://marls.com/FILES FOR MARLS 2009 WEBSITE/NEW TO POST/MT SC Book Brian Portwood 12.7.11.pdf
Duane Frymire, post: 373352, member: 110 wrote: 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.
Yes, it sounds as much like a problem of documentation as anything. Can the surveyor get both of the original parties to the transaction to execute an affidavit giving a mutually consistent account of the facts or is this all just anecdotal evidence that will remain outside the public record, subject to future challenge?
Duane Frymire, post: 373352, member: 110 wrote: 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.
If the facts of the original location by the parties were called into question then the fence line in this situation under Utah law would still be the boundary as more than twenty years have passed where the fence line has been treated as the boundary by the parties and subsequent parties. All the elements for boundary by acquiescence have been met. Yes, it could be challenged but unless one got a really incompetent attorney the line would hold.
I agree that in some other states the paper record might be supreme but not in Utah.
LRDay, post: 373392, member: 571 wrote: If the facts of the original location by the parties were called into question then the fence line in this situation under Utah law would still be the boundary as more than twenty years have passed where the fence line has been treated as the boundary by the parties and subsequent parties. All the elements for boundary by acquiescence have been met. Yes, it could be challenged but unless one got a really incompetent attorney the line would hold.
I agree that in some other states the paper record might be supreme but not in Utah.
Whether the elements of one of the establishment doctrines are satisfied is usually handled as a question of fact since the elements are well settled in most states. We do have a very recent unpublished agreed boundary case where the court reviewed it as a question of law but that is definitely outside the norm. They usually review the trial court judgment for substantial evidence giving deference to the trial court's judgment.
from Sharma v. Tyannikoff, Calif 3rd District, unpublished:
http://www.courts.ca.gov/opinions/nonpub/C078238.PDF
Here, the parties agree the facts are largely undisputed. The dispute is over the precise requirements of the defenses of agreed boundary and laches and how those requirements may be proved. We review the trial courtÛªs resolution of that dispute de novo, and conclude defendants failed to establish a defense.
Brian Allen, post: 373354, member: 1333 wrote: .
What, in the original fact set, leads you away from the presumption that the fence was intended to be the boundary?
I have incomplete information, I took the OP to be that the evidence of a jointly built fence was the parol evidence from the grantor.
And, if the grantor wanted to have the fence divide the land, why not put it in the deed? It is his instrument. Unless the fence line doesn't benefit him over the deed line, then I suppose the grantee (or his assigns or heirs) would also agree in that case.
But the question remains, why the deed? Building a fence in an agreed upon location is not agreeing to a boundary in this state, unless that is the stated intent. I dont remember the case names where this was demonstrated, but I remember studying it for the test. Perhaps I should freshen up.
In any case, it doesn't change where the legal lot is, it would define ownership, if it was, in fact, an agreed boundary. But, a recorded Boundary Line Agreement would be a good idea to align the ownership and legal lot (deed), if any sort of development or futher subdivision was contemplated.
This puts surveyors in conflict at times.
He asked about our individual states. I am in WA, things may be different where you are.
Dave Karoly, post: 373350, member: 94 wrote:
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.
Absolutely, agree.
dmyhill, post: 373406, member: 1137 wrote: I have incomplete information, I took the OP to be that the evidence of a jointly built fence was the parol evidence from the grantor.
And, if the grantor wanted to have the fence divide the land, why not put it in the deed? It is his instrument. Unless the fence line doesn't benefit him over the deed line, then I suppose the grantee (or his assigns or heirs) would also agree in that case.
But the question remains, why the deed? Building a fence in an agreed upon location is not agreeing to a boundary in this state, unless that is the stated intent. I dont remember the case names where this was demonstrated, but I remember studying it for the test. Perhaps I should freshen up.
In any case, it doesn't change where the legal lot is, it would define ownership, if it was, in fact, an agreed boundary. But, a recorded Boundary Line Agreement would be a good idea to align the ownership and legal lot (deed), if any sort of development or futher subdivision was contemplated.
This puts surveyors in conflict at times.
He asked about our individual states. I am in WA, things may be different where you are.
The way the Courts look at this in most States is that it doesn't change the location, it merely defines it and the description is simply inaccurate, otherwise it would be a violation of the Statute of Frauds. So if one of the doctrines applies then it is the Deed location despite the inaccuracy of the location.
The legal question is: is the boundary controlled by the Deed or is it controlled by one of the establishment doctrines?
The fact question is: where is the boundary located? Per the description (absolute precision is not expected or required) or at an established location (such as a fence or non original monuments)?
The stricter states (such as California) require evidence of mutual uncertainty and mutual agreement in the monuments or fence as a boundary to enforce the establishment doctrine. Some states are more liberal in that the mere passage of time may allow for those things to be implied.
dmyhill, post: 373406, member: 1137 wrote:
And, if the grantor wanted to have the fence divide the land, why not put it in the deed? It is his instrument. Unless the fence line doesn't benefit him over the deed line, then I suppose the grantee (or his assigns or heirs) would also agree in that case.
But the question remains, why the deed? Building a fence in an agreed upon location is not agreeing to a boundary in this state, unless that is the stated intent.
Perhaps the parties surveyed and marked the line, and not having the 'document skills', had the local Squire do the dirty deed...
https://surveyorconnect.com/community/threads/how-you-know-an-attorney-wrote-a-legal.267684/#post-267750
DDSM:beer::beer:
[QUOTE=Dave Karoly, post: 373411, member: 94The stricter states (such as California) require evidence of mutual uncertainty and mutual agreement in the monuments or fence as a boundary to enforce the establishment doctrine. Some states are more liberal in that the mere passage of time may allow for those things to be implied.
And, of course, the other shoe to drop will be when the adjoining landowner learns that a literal construction of his deed would grant him more land beyond the fence (which is I assume the reason why Leon is even asking for a rationale to use the fence as conclusive evidence of the boundary when the public record is completely silent). If that owner won't execute any recordable evidence of an agreement regarding the fence, then there is the question of prudent practice.
dmyhill, post: 373406, member: 1137 wrote: I have incomplete information, I took the OP to be that the evidence of a jointly built fence was the parol evidence from the grantor.
And, if the grantor wanted to have the fence divide the land, why not put it in the deed? It is his instrument.Unless the fence line doesn't benefit him over the deed line, then I suppose the grantee (or his assigns or heirs) would also agree in that case.
But the question remains, why the deed? Building a fence in an agreed upon location is not agreeing to a boundary in this state, unless that is the stated intent. I dont remember the case names where this was demonstrated, but I remember studying it for the test. Perhaps I should freshen up.
In any case, it doesn't change where the legal lot is, it would define ownership, if it was, in fact, an agreed boundary. But, a recorded Boundary Line Agreement would be a good idea to align the ownership and legal lot (deed), if any sort of development or futher subdivision was contemplated.
This puts surveyors in conflict at times.
He asked about our individual states. I am in WA, things may be different where you are.
A couple of things.
" I took the OP to be that the evidence of a jointly built fence was the parol evidence from the grantor."
Yes, that is the evidence presented, and unless we have conflicting evidence, which I trust Leon looked for, the presumption of the boundary being coincident with the fence stands.
"And, if the grantor wanted to have the fence divide the land, why not put it in the deed? It is his instrument."
The fence probably wasn't mentioned for several reasons, 1) that writing descriptions by metes only, without mentioning monuments is just the way things are done in that area, as they are here, and have been since before the GLO wondered through. 2) A likely probability is that the deed was written and the transaction completed before the fence was built - in other words the likely scenario was Smith asked Jones if he could buy half his land, and after agreeing on price, the deed was written, signed, and recorded, then Smith and Jones met on the land and decided where the "half" line was actually located. This is quite common, and probably the way the majority of such transaction occur in these rural areas.
In reality, it doesn't matter why the deed doesn't mention the fence. The extrinsic facts are what control.
"Building a fence in an agreed upon location is not agreeing to a boundary in this state, unless that is the stated intent. I dont remember the case names where this was demonstrated, but I remember studying it for the test. Perhaps I should freshen up."
From my limited reading of Washington cases:
Elements of Boundary Acquiescence:
To establish a boundary by acquiescence, the party claiming title to the land must prove by
clear, cogent, and convincing evidence: (1) the line is "certain, well defined, and in some fashion
physically designated upon the ground"; (2) the adjoining property owners, or their predecessors
in interest, have manifested a mutual recognition and acceptance of the designated line as the true
boundary line "by their acts, occupancy, and improvements" on their respective properties; and
(3) mutual recognition and acquiescence continued for the period of time necessary to establish
adverse possession (10 years). Lamm v. McTighe, 72 Wn.2d 587, 593, 434 P.2d 565 (1967); see
also Merriman v. Cokeley, 168 Wn.2d 627, 630, 230 P.3d 162 (2010). Evidence is "clear,
cogent, and convincing" if it shows the ultimate facts are "highly probable."
In construing a description in a deed the court should consider the circumstances of the transaction between the parties and then read and interpret the words used in the deed in light of these circumstances. Hirt v. Entus,37 Wn.2d 418, 224 P.2d 620 (1950); Roeder Co. v. Burlington Northern, Inc.,105 Wn.2d 269, 714 P.2d 1170 (1986). "[W]hat are the boundaries is a question of law, and where the boundaries are is a question of fact." Rusha v. Little,309 A.2d 867, 869 (Me. 1973); Texas Co. v. Andrade, 52 S.W.2d 1063 (Tex. Civ. App. 1932).
Where it is shown by competent evidence that a monument does not accord with a survey or plat, the monument as established on the ground must control. Martin v. Neeley,55 Wn.2d 219, 347 P.2d 529 (1959). If the property is resurveyed, the resurvey must rediscover where the original surveyors placed the boundaries rather than determine where new and modern surveys would place them. Staaf v. Bilder,68 Wn.2d 800, 415 P.2d 650 (1966); Thein v. Burrows,13 Wn.App. 761, 537 P.2d 1064 (1975).
Courts should ascertain and carry out the intention of the original platters. In case of discrepancy, however, between lines actually marked or surveyed on the ground and lines called for by plats, maps or field notes, the lines marked by survey on the ground prevail (Stewart v. Hoffman,64 Wn.2d 37, 390 P.2d 553 (1964); 11 C.J.S. Boundaries å¤ 49 (c) (1938)),
A really good read is Stewart v. Hoffman, 64 Wn.2d 37 (1964)
"... The pertinent rule is that, where a boundary has been defined in good faith by the interested parties and thereafter for a long period of time acquiesced in, acted upon, and improvements made with reference to the line, such a boundary will be considered the true dividing line and will govern. Whether or not the line so established is correct is immaterial. Mullally v. Parks, 29 Wn.2d 899, 906, 190 P.2d 107 (1948), and cases cited."
However, this isn't an acquiescence or agreement case, it is an example of the common grantor doctrine, or the doctrine of original monuments. Where the buyer and seller go upon the ground and mark the boundary between them, it is an original split/conveyance/survey, and therefore controls the location of the boundary over whatever bearings and distances were recited in the deed. In this case, the fence became the original monument marking the original intended boundary, and as originally marked on the ground by the original grantor and grantee is therefore without error in location.
"In any case, it doesn't change where the legal lot is, it would define ownership, if it was, in fact, an agreed boundary. But, a recorded Boundary Line Agreement would be a good idea to align the ownership and legal lot (deed), if any sort of development or futher subdivision was contemplated."
This, if I am understanding you correctly, is the more troubling part. There are not multiple "lines". The deed line = the legal lot line = the true boundary line = the true ownership line. This is (legally) just like an original section line run by the GLO/BLM. The line as run and marked on the ground is controlling - not the planned line, not the bearings and distances they said they ran and recorded on the plat and in the notes. The "ownership" and the "legal lot (deed)" are aligned - perfectly.
Yes, many times a title company may not agree, but that is usually because we, as surveyors, have incorrectly taught them the erroneous interpretation of the law. Many times we create this perceived "conflict" by re-writing perfectly valid descriptions where it is unnecessary to do so.
"This puts surveyors in conflict at times."
Yes, unfortunately it does. Usually not because one measures better than another, but because some surveyors gather all relevant evidence and understand and correctly apply boundary law, while others do not.
Yes, preserving the evidence, and even having a boundary agreement or affidavit recorded asserting the facts and location of the boundary line is preferred, but sometimes, as I have had happen too many times, the landowners say "I know where my boundaries are, and I ain't signing nuthin' for nobody."
However, having a place where records of survey can be recorded or filed as a public record is an advantage that some do not have.
Brian Allen, post: 373417, member: 1333 wrote: However, this isn't an acquiescence or agreement case, it is an example of the common grantor doctrine, or the doctrine of original monuments. Where the buyer and seller go upon the ground and mark the boundary between them, it is an original split/conveyance/survey, and therefore controls the location of the boundary over whatever bearings and distances were recited in the deed. In this case, the fence became the original monument marking the original intended boundary, and as originally marked on the ground by the original grantor and grantee is therefore without error in location
No, it does not appear to be an acquiescence case. But I don't believe it to be a common grantor case either. I don't see any credible evidence of that in the OP. But, that's just my opinion. And that opinion is worth just what you paid for it. 🙂
Brian Allen, post: 373417, member: 1333 wrote: There are not multiple "lines". The deed line = the legal lot line = the true boundary line = the true ownership line. This is (legally) just like an original section line run by the GLO/BLM.
No, it is not like a section line, unless the common grantor doctrine is applied, which I would decline to do without further evidence.
But, the concept of multiple lines may be an artificial construct, but it is not my construct. If there were not multiple lines, no Boundary Line Agreement would ever be legally applied, (these are legal only when there is ambiguity in the lot line location). An Boundary Line Adjustment would be the only option (which are open to review).
I just worked on a ALTA where the called deed line did not match the momuments set by the surveyor at the time of the BLA line at issue. The line on the map didn't match the legal, but no big deal, everyone knew the monument controlled. But some surveyor (not me) decided to draw a gap or overlap or whatever, by putting both lines on the paper on the ALTA prior to ours. That created all sorts of issues. So, I don't disagree with your opinion, if I agreed it was common grantor doctrine at work. It may be, just need more evidence than a single party.
I did a survey where the old man claimed the same thing, that a certain fence was built as the dividing line after the division was accomplished on a survey plat/short plat. The (relatives) adjoiners disagreed, and there were other ancient fences that crossed the lines, some ran kind of parallel, and all had nothing to do with ownership, so it might have just been a fence. However, I believed the old man, and I was pretty happy to find the orginal corners from the platting surveyor, right next to the fence. Did I "miss" the corners by a quarter of a foot, sure. But I had no doubt where the line was (one line). If I hadn't found the corners, would the fence control? I was convinced it should, but I did not feel it had the preponderance since there were differing stories, until I found the rebar and caps.
(Occupation and use would have been moot, the adjoiners were dad and daughter, and her husband, and they all acted like it was one big happy family and property until dad died.)
My survey showed the found corners, referenced the original plat, showed the plat's calls, and what I found on the ground.
So, I dont think we disagree on the concepts (except the existence of multiple lines, and even then it may just be semantics). We disagree on whether the grantor's testimony is greater evidence than his signed deed.
Kent McMillan, post: 373415, member: 3 wrote:
And, of course, the other shoe to drop will be when the adjoining landowner learns that a literal construction of his deed would grant him more land beyond the fence (which is I assume the reason why Leon is even asking for a rationale to use the fence as conclusive evidence of the boundary when the public record is completely silent). If that owner won't execute any recordable evidence of an agreement regarding the fence, then there is the question of prudent practice.
That is my point exacly, I wouldn't jump on any conclusion without more information.
dmyhill, post: 373433, member: 1137 wrote: But, the concept of multiple lines may be an artificial construct, but it is not my construct. If there were not multiple lines, no Boundary Line Agreement would ever be legally applied, (these are legal only when there is ambiguity in the lot line location). An Boundary Line Adjustment would be the only option (which are open to review).
The concept multiple lines is not only artificial, it is false. It is a construct of those who do not believe surveyors are able or should be able to understand and apply boundary law. What else are we supposed to do, just be technicians?
As surveyors performing a retracement survey, our only duty is to find the boundary. There can only be one boundary between two estates. There cannot be multiple lines. Therefore the assertion that "no boundary line agreement would ever be legally applied" makes no sense. A boundary line agreement (acquiescence? check your state cases to see if there is a difference and what the difference(s) are) is a legal doctrine in which the landowners, having an uncertainty or dispute (not an ambiguity) in the actual location of the boundary line, agree to identify the uncertain or disputed location. Once the requirements of the doctrine are met, at that point in time, the agreed upon location becomes the true location of the boundary line and that location is the "deed" line. As the courts have stated many times for many decades: "an agreement fixing the boundary line is not regarded as a conveyance of any land from one to the other, but merely the location of the respective existing estates and the common boundary of each of the parties."
While we can (and often do) have conflicting evidence that may indicate differing locations of the one boundary line, we cannot have multiple lines. Once we know and understand the laws of evidence and the laws that control the locations and creation of boundaries, we can then sift through the conflicting evidence, properly apply the controlling boundary law(s), and then issue a well reasoned opinion on the location of the boundary line.
Check out Piotrowski v. Parks, 691 P.2d 591 (1984)
LRDay, post: 373392, member: 571 wrote: If the facts of the original location by the parties were called into question then the fence line in this situation under Utah law would still be the boundary as more than twenty years have passed where the fence line has been treated as the boundary by the parties and subsequent parties. All the elements for boundary by acquiescence have been met. Yes, it could be challenged but unless one got a really incompetent attorney the line would hold.
I agree that in some other states the paper record might be supreme but not in Utah.
That seems to be the trend, at least in some western states. But it would appear a similar fact issue is still present. Has the fence really been there 20 years? Will someone else testify to the contrary? And, if I'm not mistaken, an acquiescence in Utah means you are performing an original survey and a new description would be required to show the new parcel. So, the basic question of retracement v. original is still at play, although in a somewhat differing format.
Essentially the states with that method have gone back to a pre statute of frauds, feudal type of boundary determination. There are many reasons that system was done away with after hundreds of years of experience. But maybe they'll have better luck this time.
In California, the surveyor's opinion on retracement survey is simply just that, an opinion. A record of survey does not impart constructive notice (see Stearns v Title and Trust). A record of survey may memorialize conditions, but the boundary determination is really only an opinion of location and is open to contest.
In the original post if it happened in California and a surveyor filed a record of survey showing the fence as being the one and only boundary, all may be fine in the eyes of the owners, title insurer's etc. But as soon as a surveyor or title reviewer or other questions the boundary opinion contained in said record of survey, then the appearance of cloud of title is revealed. The surveyor's opinion may well identify the principles of law which would likely prevail in a court, but it is still simply an opinion not unlike that of an attorney's.
Duane Frymire, post: 373455, member: 110 wrote: And, if I'm not mistaken, an acquiescence in Utah means you are performing an original survey and a new description would be required to show the new parcel. So, the basic question of retracement v. original is still at play, although in a somewhat differing format.
I don't understand what you are saying here. Are you saying that acquiescence is a conveyance of land?
Essentially the states with that method have gone back to a pre statute of frauds, feudal type of boundary determination. There are many reasons that system was done away with after hundreds of years of experience. But maybe they'll have better luck this time.
From Bahr v Imus, 250 P.3d 56 (2011)
B. Boundary by Acquiescence
å¦ 35 The doctrine of boundary by acquiescence is rooted in policy considerations of "avoiding litigation and promoting stability in landownership." Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). It "derives from [the] realization, ancient in our law, that peace and good order of society [are] best served by leaving at rest possible disputes over long established boundaries." Id. (internal quotation marks omitted). A successful invocation of boundary by acquiescence requires a showing of the following four elements: "(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners."[7] Id. at 420 (internal quotation marks omitted).
å¦ 36 The first element may be satisfied where land up to the visible, purported boundary line is farmed, occupied by homes or other structures, improved, irrigated, used to raise livestock, or put to similar use. See id. In evaluating whether this element is satisfied, courts should consider whether a particular "occupation up to a visible line" would place a reasonable party on notice that the given line was being treated as the boundary between the properties.
å¦ 37 The second element is satisfied where neighboring owners "recognize 66*66 and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property." Ault v. Holden, 2002 UT 33, å¦ 19, 44 P.3d 781. This element is met where neighbors do not "behave[] in a fashion inconsistent with the belief" that a given line is the boundary between their properties. Staker, 785 P.2d at 420. Failure by the record title owner to "suggest or imply" that the dividing line between the properties is "not in the proper location" suggests acquiescence. Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Nonacquiescence in a boundary would be signaled where, for example, a landowner notifies the adjoining landowner of her disagreement over the boundary, or takes action inconsistent with recognition of a given line as the boundary, such as tearing "down significant portions of [a] fence and, without objection by [the adjoining landowner], proceed[ing] to plant trees and shrubs, store firewood, and construct a chain link fence in a different location." See Staker, 785 P.2d at 421.
å¦ 38 To satisfy the third element, an unbroken period of no less than twenty years must pass during which each of the other elements is continuously met.[8] See id. at 420; see also Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (explaining that fifteen years of mutual acquiescence was insufficient). To satisfy the fourth element, "the parcels involved" must be "contiguous." Staker, 785 P.2d at 420.
clearcut, post: 373461, member: 297 wrote: In California, the surveyor's opinion on retracement survey is simply just that, an opinion. A record of survey does not impart constructive notice (see Stearns v Title and Trust). A record of survey may memorialize conditions, but the boundary determination is really only an opinion of location and is open to contest.
In the original post if it happened in California and a surveyor filed a record of survey showing the fence as being the one and only boundary, all may be fine in the eyes of the owners, title insurer's etc. But as soon as a surveyor or title reviewer or other questions the boundary opinion contained in said record of survey, then the appearance of cloud of title is revealed. The surveyor's opinion may well identify the principles of law which would likely prevail in a court, but it is still simply an opinion not unlike that of an attorney's.
I know of no state where the surveyors opinion is anything but an opinion.
In today's litigious society, everything is "open to contest".
I'm pretty sure no one has claimed that Mr. Day expressing his opinion on the location of the boundary line in the OP is absolute and completely unchallengeable by anyone at any point in the future.
In reality, far more boundary disputes are started by surveyors who possess no little or no knowledge of how to properly apply the legal principles discussed in this and other threads, than those who do..
Brian Allen, post: 373464, member: 1333 wrote: I don't understand what you are saying here. Are you saying that acquiescence is a conveyance of land?
Essentially the states with that method have gone back to a pre statute of frauds, feudal type of boundary determination. There are many reasons that system was done away with after hundreds of years of experience. But maybe they'll have better luck this time.
From Bahr v Imus, 250 P.3d 56 (2011)
B. Boundary by Acquiescence
å¦ 35 The doctrine of boundary by acquiescence is rooted in policy considerations of "avoiding litigation and promoting stability in landownership." Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). It "derives from [the] realization, ancient in our law, that peace and good order of society [are] best served by leaving at rest possible disputes over long established boundaries." Id. (internal quotation marks omitted). A successful invocation of boundary by acquiescence requires a showing of the following four elements: "(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners."[7] Id. at 420 (internal quotation marks omitted).
å¦ 36 The first element may be satisfied where land up to the visible, purported boundary line is farmed, occupied by homes or other structures, improved, irrigated, used to raise livestock, or put to similar use. See id. In evaluating whether this element is satisfied, courts should consider whether a particular "occupation up to a visible line" would place a reasonable party on notice that the given line was being treated as the boundary between the properties.
å¦ 37 The second element is satisfied where neighboring owners "recognize 66*66 and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property." Ault v. Holden, 2002 UT 33, å¦ 19, 44 P.3d 781. This element is met where neighbors do not "behave[] in a fashion inconsistent with the belief" that a given line is the boundary between their properties. Staker, 785 P.2d at 420. Failure by the record title owner to "suggest or imply" that the dividing line between the properties is "not in the proper location" suggests acquiescence. Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Nonacquiescence in a boundary would be signaled where, for example, a landowner notifies the adjoining landowner of her disagreement over the boundary, or takes action inconsistent with recognition of a given line as the boundary, such as tearing "down significant portions of [a] fence and, without objection by [the adjoining landowner], proceed[ing] to plant trees and shrubs, store firewood, and construct a chain link fence in a different location." See Staker, 785 P.2d at 421.
å¦ 38 To satisfy the third element, an unbroken period of no less than twenty years must pass during which each of the other elements is continuously met.[8] See id. at 420; see also Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (explaining that fifteen years of mutual acquiescence was insufficient). To satisfy the fourth element, "the parcels involved" must be "contiguous." Staker, 785 P.2d at 420.
Utah statutes now describe it as a change in title I believe. So, yes it's a conveyance in Utah, if not specifically then practically. I could be wrong, but that's the way I recall it from some previous posts that led me to read the statute. Relatively recent development, which may have been changed back.
Brian Allen, post: 373467, member: 1333 wrote: I know of no state where the surveyors opinion is anything but an opinion.
In today's litigious society, everything is "open to contest".
I'm pretty sure no one has claimed that Mr. Day expressing his opinion on the location of the boundary line in the OP is absolute and completely unchallengeable by anyone at any point in the future.In reality, far more boundary disputes are started by surveyors who possess no little or no knowledge of how to properly apply the legal principles discussed in this and other threads, than those who do..
Yes, and worth noting that only a trial court judge or jury can alter the surveyors opinion on the facts. Of course a surveyor can change their mind if presented with facts or evidence they didn't know about at the time of the original opinion. But the point is, even the courts decision is "just an opinion". An attorney once posted on this site (or its predecessor): ...something like the following - I've never been wrong, but certain judges on certain days in the past have disagreed with me.
