Lucas - December '10

Garfunkel's Subdivision.

I agree with Mr. Lucas' opinion regarding which lines are the boundaries given the facts at hand. However, Mr. Lucas has used artisitic license to give his imaginary surveyor a perfect window into events at the time of the original subdivision and all times since. Such a window is generally not available. 

So without the testimony of Mr. Garfunkel, what then?  No monuments at the corners, just fencelines. Perhaps he could interview everyone in the neighborhood about whether they considered the fences the boundaries or not? Who does that, really? And if he did he would likely get several conflicting stories. Many of them would be along the lines of " the fence was there when we moved in and we just used it." 

I'd be loath  to just monument the fence lines. I'd be loath to put my monuments 10 feet into the neighbors yard. And I'd be loath to tell my client he needs to get quitclaims from maybe 6 different adjoiners. 

So what would you do?

You are right that Mr. Garfunkel solves the puzzle for the imaginary surveyor. It was a good story though.

In Massachusetts a long standing fence (20 years) can become the boundary without any further evidence. In this case the block corners were found and the subdivision plan existed so the fences would not be superior evidence. A survey of the entire block would be SOP.

A nearby town proposed a zoning ordinance that a fence shall be set back from the property line proportional to its height. Something like 2 feet set back for a 4 foot high fence, 4 foot set back for a 6 foot high fence and 6 foot set back for an 8 foot high fence. I thought that was ridiculous.

The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained.Theriault v. Murray, 588 A.2d 720, 721, 722 (Me.1991).

In this story thr former location could be ascertained because the original subdividing owner verified the evidence along the lines of occupation. Lucas uses this example for a reason. He knows almost every surveyor will accept the lines of occupation because of the testimony of the original sub dividing owner. In this story the strongest ascertion of the location of the origianl line did not come from the most precise measurements, it came from testimony.  It would follow that the strongest ascertion of the location of the line in any survey would be found by testimony, not by presice measurements from a remote location. Many would be willing to accept the ascertion by the original subdividing owner that the occupation is the location of the original line. But the testimony that " the fence was there when we moved in and we just used it." be damned. In fact the question is raised Who does that, really? That question would seem to ascert that surveyors refuse to seek the stongest evidence of the footsteps. If the boundary is infallible because of what the entryman did how can testimony that " the fence was there when we moved in (20 years ago) and we just used it." be so easily cast aside in favor of some distant block, subdivision or section corner?

Mark had the right question -- what if Garfunkel weren't around? As he usually isn't. The sounds of silence!

I found the most compelling fact on the ground to be the fact that the blazed lines all resembled each other. To me that seems like strong evidence that they were made at the same time by the same person -- if not the original surveyor then someone with an interest in the entire subdivision and thus most likely working at a time when all of the original monuments were in place and quite visible. 2 or 3 feet of wash in a 700 foot line run in 1974 is not so rare around here and would only slightly subtract from the reliability of the blazed lines. So I like to think I'd have gone with the red lines without Mr. G's harmonies.

The article and its fact set essentially concern retracement so I did find the court case citations regarding acquiescence to be superfluous -- acquiescence has to do with the acts, intentions, and rights of the parties and not with whether they have accurately retraced the original surveyed lines. It is least relevant in a case like this where the evidence regarding original monument positions conforms quite well with local occupation and is in fact somewhat overwhelming.

From "A Practical Guide to Disputes Between Adjoining Landowners - Easements", by Backman & Thomas, the Intro to Chap 8, 'Boundary Disputes', you will find the following:[i]
 8.01    Introduction and Chapter Overview
Setting boundaries between adjoining properties is a commonly recurring problem. Care should be taken in the first instance to use an accurate description in all transactions involving real property. The first section of the chapter explores judicial doctrines of construction utilized in choosing between alternative possibilities of meaning of ambiguously stated property descriptions.
The record description of a property boundary is merely the first element in establishing the actual boundary line between properties. In order to establish the actual location of the boundary, property owners are regularly assisted by professional surveyors who scientifically determine the location on the ground.
Property surveys are the surest means of establishing an accurate boundary. Because they involve an additional expense in the conveyance of properties, however, many property owners disregard this measure of safety. As a conse­quence,[b] a number of doctrines have been established in order to give recognition to boundaries which have been set by the acts of one or both of the adjoining property owners.1 In addition to adverse possession, considered in Chapter 7 supra, boundary disputes may also be settled through the application of three other judicial doctrines—boundary by agreement,2 boundary by acquiescence3 and boundary by estoppel.4 Under these three doctrines, adjoining owners may create a boundary that differs from the record description if that boundary has been established and recognized for a substantial period of time[/b]. All of these doctrines are intended to achieve similar policy objectives, i.e., to promote efficient use of property, to reduce litigation, to establish a status of repose, to remove stale claims, and to avoid the necessity of producing evidence as to events from the distant past.5[/i]

Remember, Iowa recently passed a 'Boundary by Acquiesence' statute and many other states have similar statutes of repose or limitation that will recognize the established physical boundary as the legal one and it is the surveyor's responsibility, (NOT THE LAWYERS OR JUDGES), to recognize when a particular statute or legal principle applies to the survey.

Interpreting deeds, not perpetuating them, is the surveyor's professional work product and deciding when a record description needs to be corrected is the surveyor's responsibility along with knowing what process is used in your state to create and record any necessary corrections.

Richard Schaut

In the story the lot is vacant so how does acquiescence apply here?

The owner, Garfunkel, did not challenge the established boundaries.  In some jurisdictions, that is acquiesence.

Richard Schaut

It's a slam dunk, the occupied lines are the original.  So why do many surveyors have problems?  What if the original subdividers testimony weren't available? It's the surveyors job to gather the evidence that locates the boundary.  It's the same ole, same ole.  Lost boundaries are the easiest to locate, just do some simple math.  No need to dig very deep or even seek out any testimony from people.  Plats, deeds and math, any further research is just losing money on a project budget.

My point is that usually evidence of the sort Lucas produces just doesn't exist. And if it does, it might only be uncovered by finding and questioning every current and living former owner in the subdivision. The sort of exhaustive search that the budget never bears. 

In my post above, the quoted information covers your 'point': "... a number of doctrines have been established in order to give recognition to boundaries which have been set by the acts of one or both of the adjoining property owners. ...", is the specific portion.

Lawyers do not know the rules of evidence that pertain to established physical boundaries because they have no professional responsibility to recover and analyze physical evidence; SURVEYORS DO THAT!

Ignorance of the legal principles and the law of boundaries in the surveying profession is just begging a smart lawyer to clean out your retirement fund.

Surveyors are not technicians, we are legal experts and our professional opinions are legal opinions.

Act like a professional and you will be treated like one, act like a dumb techincian and you will be treated like one.

Richard Schaut