> Oklahomans aren't as concerned about a few square feet as they are about a fixed boundary.
I trust that you noted that (a) the record of the above case was silent on the question of how far the fence was off the section line and (b) the adjoining tracts had been owned by the same persons prior to the conveyance to the country club and the fence in question divided the two tracts at the time of the conveyance.
That last doesn't fit Paden's fact situation at all, at least as far as what he's posted discloses.
> > I assume that you'd need to look no further than the Oklahoma laws in force in 1964.
> That would be Lewis v. Smith, which is commonly cited to this day.
How would that be applicable if the 1/4 section in Paden's example left USA as a 1/4 section? In Lewis v. Smith, the fence had been constructed to effect a partition of a section under private ownership and that strikes me as an important distinction.
The other element that I did not see mentioned in Lewis v. Smith was the actual use of the adjoining tracts. Planting and cultivating row crops right up to a fence line is a different fact than merely running livestock in a pasture.
These records makes it easy...
> After all I've seen out there, Durkee seems to be the one that at least tried the hardest. Everybody else seems to be ambiguously aloof about the the section exterior.
As a point of interest, have any of the original government corners on the exterior of the section been perpetuated or is it all railroad spikes in road pavements on fence splits?
This case is fairly recent and a failed acquiescence in Oklahoma
Even cases that fail cite and explain the law.
The evidence showed it was a livestock fence and the previous owners knew it. So the facts need to be sorted out and assumptions not be made.
> The evidence showed it was a livestock fence and the previous owners knew it. So the facts need to be sorted out and assumptions not be made.
If you're thinking of Berry v. Mendenhall, the key facts that stand out in the record of that case are these:
¶ 2 The Berrys purchased their one and a half acre tract in the southwest corner of the northwest quarter of section 21-14N-4E, Lincoln County, in 1965. Ronnie Berry testified that when he and his wife purchased the property there was a fence on the north and east edges of the property. On the north, the fence was 25 feet from the Berrys' house; it ran along the tree line on the east. Ronnie Berry further testified that the tract borders a county road on the west side, which is not fenced. The south side is not fenced because Berry farms the land south of the tract at issue.
¶ 3 Berry testified that when he purchased the property the fence was made of barbed wire and hog wire. By 1996, 100 feet of the fence was in the same condition it had been in 1965. The remaining fence had been improved with newer wire and steel posts. The location of the fence had not changed during the Berrys' ownership. Berry testified that he built a well house along the fence line in 1971.
In other words, this wasn't a fence between two tracts in agricultural use, but was a fence from which valuable improvements that had apparently been located in relation to it. The surveying evidence is, naturally, just glossed over, so there is no way to tell from the record what the quality of it might have been. Absent a very good discussion of conclusive surveying evidence, this is just another case decided on grounds of equity in which something beats nothing.
The PLSS, a great system!
Don't think there is any question about the dimensions of the tract of interest or the 3 recovered monuments. That description used calls that indicate no measurements were ever taken of the actual parent tract, which is probably an Aliquot part of a Platted Section, then it was apparently surveyed strictly from the description with no noted attempt to reference it to the GLO. Now the tracts position and dimensions are established on the ground, time to determine where it lies within the GLO and correct the deed descriptions to reflect that. The GLO was first and was not used to describe or locate the tract except for one call to a Aliquot GLO corner. Using that description and the survey that will never settle the location of the center of section, may go unchallenged for years but if land values reach the point where a few feet is valuable, a sharp lawyer will challenge that assumption, it won't be for this the benefit of this tract but for the benefit of another within that section. Liability, you betchya, not for holding what you found as ownership lines, but the assumption that those lines control the undeveloped parts of that section and not the GLO rules. Won't require much effort, all been done already except what you place on the record of survey to protect against that possibility. That tract does not even corner on the center of section, looks to me like the NE corner is at least 165 */- feet from the center of a perfect 80 chain X 80 chain square, orientated with cardinal, section. Probably hear no more from me on the post, no offense intended, but my opinion should be clear.
jud
What I linked was:
Calvin EUBANKS and Naomi Eubanks, Plaintiffs/Appellees,
v.
Sheryll ANDERSON, Defendant/ Appellant.
It references the case you cite.
In Eubanks V. Anderson the court talks about the pig fence, built to keep the pigs in which is still in place many years later. The new adjoiner didn't know or research the facts before going to court and lost badly.
Considering the power of search these days any surveyor that looks any further should be able to find and sort out the facts/law and then apply the law.
The hard part then is to look away from your computer, math, manual, and data collector and call it to the boundary by the law.
Yes, the fence in the Eubanks case is the classic convenience fence. The record indicates that it wasn't even constructed by any former landowner, but by a tenant.
> Considering the power of search these days any surveyor that looks any further should be able to find and sort out the facts/law and then apply the law.
I trust you realize that you're saying that a surveyor should be able to determine exactly the same facts that depositions of a whole carload of people under oath may develop. Beyond that, even in some ideal world where people don't lie or dissemble when they believe it to be in their interest, surely you aren't claiming that you can predict the outcome of any future litigation, might one yet hope?
No a surveyor can't predict the exact outcome of future litigation. But I believe a surveyor doing the best job they can applying the law and searching out the evidence and facts can prevent most of the stupid litigation from happening. In fact I don't think there is anyone better equipped for this kind of work. A lot of litigation would never get going without fence line surveyors or deed stakers.
Personally I try to get the parties to an agreement where I have no liability. Usually (at least in my experience) if they are shown the facts and the law some agreement can be reached.
> No a surveyor can't predict the exact outcome of future litigation.
No, a surveyor can't. The same facts with different plaintiffs have been decided differently in different courts. Attorneys are distinctly unequal in their abilities and clients in their abilities to hire good ones.
So, to pretend that a surveyor can basically anticipate what a court would decide if presented with some future dispute is not realistic. This is why many times the best that a surveyor can do is to inform his or her client of the alternate possibilities that may eventually prevail in the event of litigation.
'This is why many times the best that a surveyor can do is to inform his or her client of the alternate possibilities that may eventually prevail in the event of litigation.'
Maybe true. But that doesn't give a pass to either the deed staker or the fence line surveyor to finish a survey and issue an opinion, plunge the situation into the battle of the surveys. Sometimes you need to admit you can't locate the boundary.
I know that is what is expected of a surveyor (mark the boundary). But there should be a liability attached to that, rolling the dice with thin evidence, not looking far enough.
> I know that is what is expected of a surveyor (mark the boundary). But there should be a liability attached to that, rolling the dice with thin evidence, not looking far enough.
So, are you saying that you think Paden should spend next week looking for the 1/4 corners on the exterior of the section?
I'm not suggesting anything directly to Paden. It's Paden's situation, he's the one that needs to go far enough to determine if he has an established boundary or not and by what boundary law. I think that's what I stated in my first post to this thread. But a general statement like that just blows through the Twilight Zone.
I think we've taken this about as far as it goes. I'm satisfied we had a civil discussion.
Paden's Hand
I'm satisfied with everything I've done in "Durkee's Quarter". It's always refreshing to see everyone's pros and cons and inputs. That is one thing I enjoy about this forum.
In my practice I view the preparing, monumenting and certifying a survey and report as very similar to a poker hand; I may lay down a pair of nines to take the pot. But there is also a good chance I have another nine and a pair of jacks in the remaining three cards that no one got to see.
I think it was Abraham Lincoln that said, "If you're going to try to bluff a poker hand, it helps to be holding four aces."
Good discussion. I enjoyed it.
Paden's Hand
I like the poker analogy a lot. It's pretty much exactly on point when one is giving an opinion in the typical situation where every fact that can possibly be laid out on the table isn't known and, as a practical matter, can't be. So, one has to look at the adjoining owners's titles and make some estimate of what facts they might have in play, as well as the likelihood of some future surveyor drawing some card that trumps everything yet dealt.
Paden's Hand
Parts of the discussion was misleading. This survey is as close to a clear cut boundary as it gets. You have testimony and original subdivision pins. You have adjoining parcels in agreement. This boundary is not about acquiescence, fence line surveying, agreement or how far is too far. It's about pins the owner and everyone else in the neighborhood accepted since the day Durkee set them. Durkee wrote that his subdivision is a subdivision of the 40. No one has questioned where the north line of the 40 is since the day it was surveyed for the existing deeds. Any discussion that the 40 line is anywhere other that where Durkee marked it is misleading. 99 times out of 100 the surveyor is the only person who will give adjoining owners their day in court. Discussing the what ifs about the other 1 % is not very meaningful.
Paden's Hand
> Parts of the discussion was misleading. This survey is as close to a clear cut boundary as it gets. You have testimony and original subdivision pins.
Actually, if Paden posted that the 1/4 section didn't leave the USA as a 1/4 section, I missed it. I didn't read anything to indicate that the section was all under one private ownership when the 1964 survey was made to attempt to locate it.
> You have adjoining parcels in agreement. This boundary is not about acquiescence, fence line surveying, agreement or how far is too far. It's about pins the owner and everyone else in the neighborhood accepted since the day Durkee set them. Durkee wrote that his subdivision is a subdivision of the 40. No one has questioned where the north line of the 40 is since the day it was surveyed for the existing deeds.
The principle that overlooks is that where a gross mistake is made, mere acquiescence in the mistaken line doesn't prevent an adjoining landowner from claiming to the true line. In Paden's case, it sounds as if the true line cannot be determined except by recourse to rules of construction to locate the 1/4 corners from which the center of the section is determined.
That is, if the rest of the "Certified Iron Pin Records" for the section are like the two he posted, then basically no one knows where any of the original government corners are and it is uncertain whether they will ever be found at the rate things are going.
The missing piece is the order in which the various parts of the section left USA. The situation does not seem to be that where the section was split up by the survey and the new owners took possession with the 1964 surveyor's work in view, building and maintaining improvements in relation to it.
Paden's Hand
I won't bite. You get the last word.
Paden's Hand
The USA is not a party. They left the scene without marking all of the controlling lines. The County Surveyor or a local Surveyor or the Patentees were expected to finish the original surveys. In some cases this didn't happen for decades.
Paden's Hand
I think I first saw it on this forum:
"The biggest problem with quotes on the internet is verifying their authenticity." _Abraham Lincoln
