Duane Frymire, post: 373471, member: 110 wrote: 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.
Maybe Leon can weight in here, but I believe (I don't have time right now to look it up in the code), it was something about a written boundary line agreement needs to contain quit claim language, it had nothing to do with acquiescence.
You begin a survey that described a boundary between two landowners as that part of the north 600' of the SW1/4 lying west of the west ROW of a county road.
You talk to the landowners and they tell you that their fathers (two brothers) created the legal and laid out the line knowing were the W1/4 was and staked and built a fence line between the west Section line and the CR.
You find the fence which isn't in dispute being just slightly south of the 600' line.
This line has been used and built for 45 years and really is it in "error" to a 600' call?
Not in my opinion.
Why would I go and make the line 6 or 8 feet from the fence where I make a 600.0000' distance?
They would have a line that isn't lining up with their occupation and need to either rebuild the fence or live with a conflict that wasn't there until I show up.
There is no dispute, there is no need for an "adjustment", "agreement", affidavits, lawyers to "clear it up".
In this case it's simple, they both need new deeds and when I did my M&B descriptions I referenced the line and call out that it is along a fence line surveyed as the 600' line called for; and on my plat I show the geometry. Since both parties signed off on the new deeds that "clears any ambiguity up" as if there ever was any.
Often ambiguity only resides in the mind of a surveyor obsessed with little numbers when the law has a very different opinion.
Brian Allen, post: 373476, member: 1333 wrote: Maybe Leon can weight in here, but I believe (I don't have time right now to look it up in the code), it was something about a written boundary line agreement needs to contain quit claim language, it had nothing to do with acquiescence.
If I recall it required the written agreement, with quit claim deeds on either side, if your opinion is that acquiescence has determined the line instead of the deed. Now don't lecture me on how that's not how it works. Legislators can tell both us and the courts how it's going to work if they want to (within certain very broad limits of course).
Duane Frymire, post: 373490, member: 110 wrote: If I recall it required the written agreement, with quit claim deeds on either side, if your opinion is that acquiescence has determined the line instead of the deed. Now don't lecture me on how that's not how it works. Legislators can tell both us and the courts how it's going to work if they want to (within certain very broad limits of course).
Calm down, I wasn't "lecturing" anybody. Here it is, if this is what you were referring to (please note that the acquiescence isn't even mentioned, and boundary by agreement and boundary by acquiescence are two separate doctrines in Utah law, read the above referenced Bahr v Imus case):
57-1-45. Boundary line agreements.
(1) If properly executed and acknowledged as required under this chapter, an agreement between property owners designating the boundary line between their properties, when recorded in the office of the recorder of the county in which the property is located, shall act as a quitclaim deed and convey all of each party's right, title, interest, and estate in property outside the agreed boundary line that had been the subject of the boundary dispute that led to the boundary line agreement.
(2) A boundary line agreement described in Subsection (1) shall include:
(a) a legal description of the agreed upon boundary line;
(b) the signature of each grantor;
(c) a sufficient acknowledgment for each grantor's signature; and
(d) the address of each grantee for assessment purposes.
Amended by Chapter 88, 2011 General Session
Brian Allen, post: 373497, member: 1333 wrote: Calm down, I wasn't "lecturing" anybody. Here it is, if this is what you were referring to (please note that the acquiescence isn't even mentioned, and boundary by agreement and boundary by acquiescence are two separate doctrines in Utah law, read the above referenced Bahr v Imus case):
57-1-45. Boundary line agreements.
(1) If properly executed and acknowledged as required under this chapter, an agreement between property owners designating the boundary line between their properties, when recorded in the office of the recorder of the county in which the property is located, shall act as a quitclaim deed and convey all of each party's right, title, interest, and estate in property outside the agreed boundary line that had been the subject of the boundary dispute that led to the boundary line agreement.
(2) A boundary line agreement described in Subsection (1) shall include:
(a) a legal description of the agreed upon boundary line;
(b) the signature of each grantor;
(c) a sufficient acknowledgment for each grantor's signature; and
(d) the address of each grantee for assessment purposes.
Amended by Chapter 88, 2011 General Session
This is a dumb statute. Put in there by some confused title folks and surveyors. It's basically a boundary line adjustment statute.
The common law is well and healthy in Utah. Our Supreme Court just made a ruling that states what has always been the case that once a line has been established by acquiescence the title is fixed at the line (transferred). I think they are a little confused on the language but its really hard to get folks to understand that the line ÛÏmovedÛ by there was no transfer of title. Anyway it was challenged that for acquiescence to actually take effect you had to go to court and get a judgment. The court said no, once the elements have been met the line is fixed, put it plainly in your face as to how the law is (title has already transferred).
I didn't think I was going to stir it up so much with this thread. To me this is straight forward. The buyer and seller surveyed this line in the beginning, an original survey. The seller sold half his property to the seller. They went out and the seller marked the line and they jointly built the fence in 1990. They had what is a very common and very poor deed description made up and recorded. Just bearings and distances mostly cardinal bearings, maybe had a title company hack in half the prior description. That's how its been done here for 150 years. They are real particular to keep their nice little and fictional paper records all lined up (a cardinal and 5280 fictional paper record in a much more chaotic real world).
So after all that all subsequent parties have respected and treated the fence as the boundary, more than 25 years. So even if the ÛÏoriginalÛ survey is challenged next the line has been established by acquiescence (20 years in Utah).
So lets say some surveyor goes in there and marks off a new line a few feet off the established fence and the landowners believe him. So the same principles kick in. If they tear down the old fence and build a new one then the clock is restarted on the twenty year period. After 20 years of treating the ÛÏnewÛ fence as the line it will become the established boundary. The establishment principles that applied before now apply again.
Of coarse the time period could be eliminated by doing a boundary line agreement or adjustment to put into the record signed documents by the parties fixing the boundary line and hopefully with a description that has calls to monuments set and mapped by a surveyor with a filed record of survey. So they can accept what has already long been accepted (existing conditions) or move to a new line and accept that.
On any existing boundary a surveyor is just giving an opinion. That opinion doesn't become a boundary until the parties accept it.
Brian Allen, post: 373497, member: 1333 wrote: Calm down, I wasn't "lecturing" anybody. Here it is, if this is what you were referring to (please note that the acquiescence isn't even mentioned, and boundary by agreement and boundary by acquiescence are two separate doctrines in Utah law, read the above referenced Bahr v Imus case):
57-1-45. Boundary line agreements.
(1) If properly executed and acknowledged as required under this chapter, an agreement between property owners designating the boundary line between their properties, when recorded in the office of the recorder of the county in which the property is located, shall act as a quitclaim deed and convey all of each party's right, title, interest, and estate in property outside the agreed boundary line that had been the subject of the boundary dispute that led to the boundary line agreement.
(2) A boundary line agreement described in Subsection (1) shall include:
(a) a legal description of the agreed upon boundary line;
(b) the signature of each grantor;
(c) a sufficient acknowledgment for each grantor's signature; and
(d) the address of each grantee for assessment purposes.
Amended by Chapter 88, 2011 General Session
Right, so a boundary line agreement acts as a quitclaim deed. It is an acquiesced line that is disputed and is settled out of court. Or it is a retracement v. an original survey that are in disagreement, and is settled out of court. Or in both cases, as a settlement of a court action.
LRDay, post: 373512, member: 571 wrote: This is a dumb statute. Put in there by some confused title folks and surveyors. It's basically a boundary line adjustment statute.
The common law is well and healthy in Utah. Our Supreme Court just made a ruling that states what has always been the case that once a line has been established by acquiescence the title is fixed at the line (transferred). I think they are a little confused on the language but its really hard to get folks to understand that the line ÛÏmovedÛ by there was no transfer of title. Anyway it was challenged that for acquiescence to actually take effect you had to go to court and get a judgment. The court said no, once the elements have been met the line is fixed, put it plainly in your face as to how the law is (title has already transferred).
I didn't think I was going to stir it up so much with this thread. To me this is straight forward. The buyer and seller surveyed this line in the beginning, an original survey. The seller sold half his property to the seller. They went out and the seller marked the line and they jointly built the fence in 1990. They had what is a very common and very poor deed description made up and recorded. Just bearings and distances mostly cardinal bearings, maybe had a title company hack in half the prior description. That how its been done here for 150 years. They are real particular to keep their nice little and fictional paper records all lined up (a cardinal and 5280 fictional paper record in a much more chaotic real world).
So after all that all subsequent parties have respected and treated the fence as the boundary, more than 25 years. So even if the ÛÏoriginalÛ survey is challenged next the line has been established by acquiescence (20 years in Utah).
So lets say some surveyor goes in there and marks off a new line a few feet off the established fence and the landowners believe him. So the same principles kick in. If they tear down the old fence and build a new one then the clock is restarted on the twenty year period. After 20 years of treating the ÛÏnewÛ fence as the line it will become the established boundary. The establishment principles that applied before now apply again.
Of coarse the time period could be eliminated by doing a boundary line agreement or adjustment to put into the record signed documents by the parties fixing the boundary line and hopefully with a description that has calls to monuments set and mapped by a surveyor with a filed record of survey. So they can accept what has already long been accepted (existing conditions) or move to a new line and accept that.
On any existing boundary a surveyor is just giving an opinion. That opinion doesn't become a boundary until the parties accept it.
No matter how clear the law is, the facts can almost always be argued. It's why there are so many lawyers. Acceptance of a survey and a clearly unambiguous deed is presumed every bit as much as acceptance of a fence. The reason for all the interest is because your post implies surveyors must use a certain law under less than ideal fact pattern for its application or risk the derision of their peers. Your post contains conflicting evidence, as most surveys do, and I wouldn't criticize a surveyor for making a determination either way on it. If it goes to court it is not because of some surveyor who doesn't know the law, it is because the landowners messed it up by not retaining a competent surveyor to begin with. Now it will cost them more than anything they saved by doing it themselves, but that doesn't mean it is a surveyors fault.
No disagreement from me. All summed up nicely by the Utah Supreme Court in 1963.
As the old adage goes, ÛÏ[g]ood fences make good neighbors.Û Obviously, it is better to avoid potential boundary disputes through correct measurement and placement of fences or other boundary markers. Unfortunately, most property boundaries are not reviewed on a regular basis, so mistakes can be perpetuated for several years and later cause heated disputes between neighbors. Many years ago, the Utah Supreme Court acknowledged this fact of life, with a small dose of cynicism: It is significant that in most cases, a physical, visible means of marking the boundary was effected at a time when it was cheaper to risk the mistake of a few feet rather than to argue about it, go to court, or indulge the luxury of a survey, pursuance of any of which motives may have proved more costly than the possible but most expedient sacrifice of a small land area. The rub comes when, after many years, land value appreciation tempts a test of the vulnerability of a claimed ancient boundary. The struggle usually involves economics. Nothing is wrong in the urge to acquire or retain. But neither is there anything wrong in the lawÛªs espousal of a doctrine that says that with the passage of a long time, accompanied by an ancient visible line marked by monuments with other pertinent and particular facts, and with a do-nothing history on the part of the parties concerned, can result in putting to rest titles to property and prevent protracted and often belligerent litigation usually attended by dusty memory, departure of witnesses, unavailability of trustworthy testimony, irritation with neighbors and the like. This idea is based on the concept that we must live together in a spirit justifying repose or fixation of titles where there has been a disposition on the part of neighbors to leave an ancient boundary as is without taking some affirmative action to assert rights inconsistent with evidence of a visible, long-standing boundary. In the vernacular, the doctrine might be paraphrased to enunciate that boundaries might be established by an ÛÏI donÛªt give a hootÛ attitude on the part of neighbors. King v. Fronk, 14 Utah 2d 135, 378 P.2d 893, 896 (Utah 1963).
The best thing in these situations where there is no on-going disputes, is not to create on from your survey,,,,,,,,if at all possible,,,,,,,,,,I know things are not always simple, but disputes can often be avoided by allowing what land owners in harmony have already decided.
LRDay, post: 373261, member: 571 wrote: That book should be thrown into the trash bin of past history!!!
Yeah. It probably should, considering the publication date for the edition being sarcastically quoted was around the time I started surveying.
Duane Frymire, post: 373521, member: 110 wrote: No matter how clear the law is, the facts can almost always be argued. It's why there are so many lawyers. Acceptance of a survey and a clearly unambiguous deed is presumed every bit as much as acceptance of a fence. The reason for all the interest is because your post implies surveyors must use a certain law under less than ideal fact pattern for its application or risk the derision of their peers. Your post contains conflicting evidence, as most surveys do, and I wouldn't criticize a surveyor for making a determination either way on it. If it goes to court it is not because of some surveyor who doesn't know the law, it is because the landowners messed it up by not retaining a competent surveyor to begin with. Now it will cost them more than anything they saved by doing it themselves, but that doesn't mean it is a surveyors fault.
Duane
Would you recommend a Line of Agreement in this type of situation?
Brian Allen, post: 373254, member: 1333 wrote: 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.
It's amazing how two people can read the same book and have completely different views of what the author was trying to accomplish. Even in editions of the book that are less than 20+ years old, the principles are stated in very absolute terms. However, there are a number of passages that provide some additional information if one bothers to read them.
That doesn't fit the narrative
There is a difference - understanding that the courts have been inconsistent
The book accomplishes what it intends - relay several guidelines that work well in many instances; with explanations, if one cares to read beyond the principles, that inform the reader that - surveying is not easy.
roger_LS, post: 373556, member: 11550 wrote: Duane
Would you recommend a Line of Agreement in this type of situation?
Absolutely. If there is ambiguity, first try to agree with a previous retracement surveyor opinion, or agree it's an original survey so I have to agree with it per retracement principles. If you can't, then recommend an agreement. If that doesn't work then you go to court and defend your opinion. But clients should be made aware of the costs. I'm not going to prepare, and testify for any less than other experts. Some surveyors do it for free because, I guess, they think it's required or some kind of public service. To that I say BS. Do it yourself is fine, but suffer the consequences.
Jon Payne, post: 373557, member: 312 wrote: It's amazing how two people can read the same book and have completely different views of what the author was trying to accomplish. Even in editions of the book that are less than 20+ years old, the principles are stated in very absolute terms. However, there are a number of passages that provide some additional information if one bothers to read them.
That doesn't fit the narrative
There is a difference - understanding that the courts have been inconsistent
The book accomplishes what it intends - relay several guidelines that work well in many instances; with explanations, if one cares to read beyond the principles, that inform the reader that - surveying is not easy.
I agree. Nothing wrong with the book (well, it could always be better). But it does need a teacher to help students interpret what it is saying. True with all complicated subjects. I mean, we're talking about ambiguity in a one paragraph deed. How can one expect an entire textbook to be without ambiguity that needs help interpreting? Many of the quoted passages are explained and qualified in other parts of the text. But most students will get the wrong impression from merely reading the text without any help.
Duane Frymire, post: 373576, member: 110 wrote: I agree. Nothing wrong with the book (well, it could always be better). But it does need a teacher to help students interpret what it is saying. True with all complicated subjects. I mean, we're talking about ambiguity in a one paragraph deed. How can one expect an entire textbook to be without ambiguity that needs help interpreting? Many of the quoted passages are explained and qualified in other parts of the text. But most students will get the wrong impression from merely reading the text without any help.
It seems to be a backwater of the law where few lawyers and Judges practice. It is also one of the remaining niches highly dependant on common law rules and due to the large variability in fact scenarios sometimes it seems the Courts are somewhat inconsistent. Then they construct fictions like true lines vs established lines, fictions which they gleefully knock down saying accuracy doesn't matter or it does.
One thing is true, Boundary Surveyor's should read it themselves. The Law is not a precision instrument; it's not always as strict as a lot of surveyors think nor is it completely untethered from the Deed either.
I came across an interesting Virginia case today at the Alexandria Law Library, should've picked it up. It said something like acquiescence doesn't affect the rights flowing from a Deed. Their library is cool, chock full of all the National reporters, a little lighter on treatises but Virginia doesn't have a lot.
Uh, California hasn't been part of Virginia since about the time of Virginia Dare and Roanoke Colony.
