The following paragraph is from this month's (September 2012) edition of "The Lucas Letter". It stands out to me and begs the question "Why do so many surveyors have a problem with this?".
In Lynch, we explained that what was important was that the true line was actually unknown and uncertain to the parties acquiescing in the boundary. The parties were free to forgo the expense and trouble of having a survey conducted and to agree upon a division line. As stated by another court, [LLHN4] "the fact that an accurate survey is possible is not conclusive of the question whether a doubt exists as to the location of a boundary."11 It is the uncertainty in the minds of the landowners of the line on the ground that is relevant to the ability to acquiesce to a boundary, not the uncertainty in the written description of the deed.12 That the true boundary is "knowable" because the deed contains a metes and bounds description that a registered surveyor could have properly marked on the land-but did not-does not preclude the property owners from acquiescing in a boundary they believe corresponds with the deed's description.13
11Kirkegaard v. McLain, 199 Cal. App. 2d 484, 491, 18 Cal. Rptr. 641, 645 (1962).
12Norwood v. Stevens, 104 Idaho 44, 655 P.2d 938 (Idaho App. 1982).
13See, Lynch v. Egan, supra note 7; Piotrowski v. Parks, 39 Wash.App. 37, 691 P.2d 591 (1984); Sanlando Springs Animal Hosp. v. Douglass, 455 So.2d 596 (Fla.App. 1984); Wampler v. Sherwood, 281 Or. 261, 574 P.2d 319 (1978); Nunley v. Walker, 13 Utah 2d 105, 369 P.2d 117 (1962).
So many just ignore the directions that the courts have given us over the years and continue to lay out the distances called for in the deeds of record, sending their clients and adjoiners into nasty, needless disputes and wasting countless dollars. These same surveyors, with a straight face, ask why we are not respected as professionals.
Great post David,
I have to wonder about those surveyors who simply are good measurers and demonstrate that fact on the ground, without any judgement in what they are doing.
Or is it simply the crew that measures, sets a two-bit rebar and heads to the bar?
Hence, the land surveyor did not see the corner evidence within a finger length distance that was ignored.
Sometimes it is really amazing what some think!
Keith
I haven't read the source letter you mention, but the first question that comes to mind is should we then just knock on the neighbor's door's to ask them where they think their lines are and simply document that for them??
In the real world, neighbors have differing "ideas" of where their common boundaries are, hence the call to a surveyor.
Let's say one of them is spot on correct and in line with the record documents and field monumentation. Should we have them acquiesce some of their land because a neighbor thinks (uncertainty in the minds of the landowners ) the boundary is somewhere other than the record?
In response to your first question, a simple "yes". EVERY boundary survey we perform should include input from our client and each adjoiner.
Those differences in opinion you speak of is where our expertise comes in as a problem solver. We would never know those problems, or differences of opinion, existed without speaking to everyone first.
Should it be mandatory that land owners on both sides of a boundary line that the surveyor is attempting to locate, be notified and communicated with?
If there were a link to the entire case it might shed more light on the ruling.
The paragraph you highlighted shows and adjudicated boundary, and maybe solely as a
practical matter, you're left wondering what instigated the litigation when parties involved apparently forewent a defining land survey in favor of an agreed line ?
It is mandatory in WV
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> Let's say one of them is spot on correct and in line with the record documents and field monumentation. Should we have them acquiesce some of their land because a neighbor thinks (uncertainty in the minds of the landowners ) the boundary is somewhere other than the record?
hi andy,
i can't speak for florida, but maryland, some. for acquiescence (sp)to occur here, there has to be an ignorance or uncertainty of BOTH parties for a surveyor to handle an boundary line agreement.
The Torrens system results in the exact opposite. Acquiescence, occupation or other unwritten means of conveyance are invalid for registered land.
I think that's correct. Uncertainty on the part of only one party does not acquiescence make. Other factors may enter into the question, i.e. improvements made, actions taken, knowledge of the parties, communications whether oral or written.
Yes it does, but those of us in non-Torrens Title states deal with this every day.
It's called the ......
Statute of Frauds.
If the true location is known then they can not agree on a different location because that involves the conveyancing of land. The Statute of Frauds say that conveyancing of real property requires a written instrument. If the location is not known then the courts have concluded that a conveyance has not taken place.
Also, if you are in an area where there are zoning and subdivision regulations then those come into play as well. So owners can not get around those regulations just by agreeing to move a line.
Life is not as simple as we would like it to be.
It's called the ......
This has nothing to do with moving a line. It is quite the opposite. It is locating a boundary where it has always been.
Link to the case
Here ya go. It has all the classic elements we like to argue over.
Oh no, we deal with the same thing half the time as only half the properties are registered. Applying one set of rules half the time skews your outlook the other half.
It's called the ......
> This has nothing to do with moving a line. It is quite the opposite. It is locating a boundary where it has always been.
Well, yes, if it's always been there. Acquiescence is a matter of case law, and sometimes addressed in statute law. Many times, it has to have met an element of time, and other issues. Including the fact that neither party knew where a deeded line was. If the party that stands to gain land by asquiescing to the new line always knew where the deeded line fell, he negates the acquiescence. (from my understanding.)
I would think you could aid in writing up a description as to where the acquiesced line is physically on the ground, but I am not sure that giving the legal advice (such as telling them that all the elements of acquiescense has been met and that is the true boundary line) might be a little beyond your authority. I would think a best-case scenario would be that a lawyer write up the legal language as to an agreement, and that the surveyor create a legal description that could be retraced by another surveyor as to where the acquiesced line falls on the ground.
It's called the ......
A very poor thing to let happen, if you can locate the described line, reading into the rule something that is not there, that is the norm for attorney's, surveyors don't have that right and also have accountability that an attorney does not. If a boundary was in doubt for what ever reason, deeds need to be exchange to bring occupation and the deed description into harmony, without those writings it could cloud the title later because of occupation not being in agreement with the documents that provide ownership rights. Leave a paper trail in the deed records by exchanging lands, recording them so those who follow will know why the lines are where they are. Attorneys are trained to complicate and use abstract thinking to win cases, it is unfortunate that so much of the attorney's arguments get into case law. Surveyors job is to locate ownership lines, when they find occupation and recorded description not in agreement they need to guide the owners into a solution, not take it upon himself to transfer title. If a surveyors work can be ignored by owners, what makes a surveyor think he can move ownership lines without the owners doing so by deed.
jud
> I haven't read the source letter you mention, but the first question that comes to mind is should we then just knock on the neighbor's door's to ask them where they think their lines are and simply document that for them??
>
Really??? No. But as the courts have told us for many decades, our job is find the boundary between two estates in the same place that a court would find them if properly adjudicated. When an ambiguity arises, how are we supposed to do that without gathering evidence through research and asking the PROPER questions of the affected/interested parties? No one has advocated just "asking them where they think their lines are and simply document that for them". Please put the straw man back in the barn and leave him there.
> In the real world, neighbors have differing "ideas" of where their common boundaries are, hence the call to a surveyor.
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Not in all cases, I have found my clients have numerous reasons for having a survey performed. In fact, most of the time, the adjoiners have no idea the property is being surveyed, which can be very beneficial to the evidence gathering process - you get honest, unbiased answers.
> Let's say one of them is spot on correct and in line with the record documents and field monumentation. Should we have them acquiesce some of their land because a neighbor thinks (uncertainty in the minds of the landowners ) the boundary is somewhere other than the record?
This was answered below. It takes uncertainty by both parties. However, that doesn't necessarily mean the current owners, it can be any owners in the chain of title.
It's called the ......
Yes there are requirements that have to be met but there is nothing that prevents a licensed surveyor from opining that the boundary is in a location in which the landowners have acquiesced.
In a situation such as the one in this case, the landowners measured the distance called out in the deed and acquiesced in that location. Years later, a surveyor (in this case an expert deed staker) comes out and determines that their boundary line is precisely at the distance called for in the deed. As we see from the decision, the courts disagreed with the surveyor. When will we learn?
It's called the ......
> Also, if you are in an area where there are zoning and subdivision regulations then those come into play as well. So owners can not get around those regulations just by agreeing to move a line.
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In cases where they are knowingly moving a line (conveyance), then yes the local regulations can come into play. But in the principles and cases we are talking about they don't. Well, unless the surveyor raises them because he doesn't know the principles/laws involved.