property line dispute

[Polly]

    a fence line that has been in extience the last 75 years be offical boundry line between 2 pieces of property my neighbor says no who is right

[ely]

depends on your state law. in okla you would be correct.

[dsgsr]

The surveyor When there's a dispute thats what usually happens, if it ain't written down somewhere.  I've had that problem, but I'm lucky enough to have a little (see little) knowledge in that area and I gave them a quick lesson in changing a Baring into an azimuth and add the declination and woolll-ah, thats where the line is. Course it's not always that easy.

David

[Ron Wenrich]

I have seen fences right on property lines, and some that are offset.  Your deed has metes and bounds that tells you where the property line is at.  Fences can be moved, metes and bounds can't (unless you move the corners). 

[SwampDonkey]

Cedar Rail fences here were lines historically, but not all other forms of fence were lines. I've seen fence run down through woods that allowed the cattle to run down to a brook or for shade. Some areas have rock walls as the line. A lot of old abandoned fields have rock piles all through the woods and at field ends. Those field end rock fences aren't usually the line, just the edge of the agriculture clearing and rock picking.  I can always tell when Joe Land Owner thinks he's a surveyor when I see a new painted line through the woods that meanders like a snake on no set Azimuth. 

[Ron Scott]

As previously stated, it depends. Your "registered" surveyor should be able to make a proper determination of the legal boundary line.

From the Newsletter for Michigan Timbermen

“Fixated on Fences"                Vol. 05 Issue 01

Rook E. Buyer is a timber buyer for Big Timber Sawmill and is buying timber from Sally Landowner.  Just prior to signing the contract Landowner had her south line surveyed.  While marking the other three boundary lines, Buyer noticed that there is an old fence on the south line, which is 10 feet north of the new survey line. Buyer marks 15 trees located between the fence and the survey line, which are later harvested. The adjacent owner, Ima Trie Lover, devastated by the destruction, hires the law firm Webeat, Anlaugers, & Howe.

Were the 15 trees lawfully harvested?

Perhaps, perhaps not! Old fence lines are the bane of timber buyers, and with good reason. Often a fence line is very close to the true boundary line and does not pose a significant problem for lawful purchase of trees. But the opposite is also often the case.

The danger for the unwary is in the well-established legal doctrine of acquiescence.

“A claim of acquiescence to a boundary line based on the statutory period of fifteen years requires a showing that the parties acquiesced in the line and treated the line as the boundary for the statutory period, regardless of whether there was a bona fide controversy regarding the boundary.” Sackett v Atyeo, 217 Mich App 676, 681 (1996).

“The law of acquiescence is concerned with a specific application of the statute of limitations to cases of adjoining property owners who are mistaken about where the line between their property is. Adjoining property owners may treat a boundary line, typically a fence, as the property line. If the boundary line is not the recorded property line, this results in one property owner possessing what is actually the other property owner's land. Regardless of the innocent nature of this mistake, the property owner whose land is being possessed by another would have a cause of action against the other property owner to recover possession of the land. After fifteen years, the period for bringing an action would expire. The result is that the property owner of record would no longer be able to enforce his title, and the other property owner would have title by virtue of his possession of the land.” Kipka v Fountain, 198 Mich App 435, 438-439 (1993).

In our case, if the fence has been in place for longer than fifteen years, Ima Trie Lover may very well claim ownership of the 15 trees harvested under the doctrine of acquiescence!

Even though Sally Landowner learned of the true boundary by having her land surveyed, the fifteen-year statute of limitation would have run, and she may have lost her ability to enforce her rights between the fence and the survey line. If Sally Landowner has no rights to the trees, then no rights pass to Big Timber Sawmill.

[logwalker]

That is interesting reading. It very closely compares to "Right of Adverse Possession" in which a person that uses a neighbors property "openly and notoriously" can get title to the land after a "period of Repose" of 10 years.  In most jurisdictions it is common law, not statute law. Goes back to Olde English Law. In order to stop the action the neighbor only needs to make the trespasser aware of his trespass before the 10 years is up. This can be a letter, certified or otherwise, a conversation, a phone call, or any other form of communication.

I would say the fence stands as the line after 75 years.

Who benefits from the fence position?     Joe

[Onthesauk]

In Washington, stock fences don't apply to adverse possession.  But you still have to go to court to resolve it if you can't settle.

[GHRoberts]

Adverse possession requires that the property owner be aware that another is claiming property as his own.

I share a fence line with a neighbor. He put up a fence. I suspect near the property line. For his efforts I allow him to use any of my property on his side of the fence.

Despite the fence line, despite my neighbor having sole and exclusive use of the property, there is no right of ownership granted.

One has to be very careful in legal matters. The presentation to the court is very important.

[Ron Wenrich]

I think adverse possession has a lot to do with how the land is being used and how the courts view it.  If landowner A has woodland that squatter B is using as his hunting spot, does can the squatter claim the land after 15 years (or whatever the statutes stipulate)?

I doubt it, since all landowner A has to say is that he is growing timber.  The squatter is trespassing, and although he hasn't been sent packing by the landowner, it doesn't mean that the landowner has given up his rights.  Growing timber is a passive use of the land, and you would be hard pressed to get it by adverse possession, no matter where the fence was placed.

[thecfarm]

I have old fences and stone walls that are a long ways from my lines.In that case the answer would be no,but there are some that is the line.That case would be yes.Just depends where the line is.

[Black_Bear]

First, adverse possession rarely occurs even though it seems to be the doctrine that most landowners are aware of, and deathly afraid of for some reason. The time required for adverse possession or acquiescence to ripen into a bona fide right is a state by state thing.

If the neighbor has never recognized the fence as the ownership boundary, and does not currently recognize the fence as the ownership boundary, and none of the previous landowners recognized the fence as the boundary, then the fence probably isn't the ownership boundary by acquiescence or any other doctrine. It  may be the title line, but it would not be a line that has ripened into the possession line via acquiescence.

A licensed land surveyor would be the best person to hire in order to obtain an opinion as to where your boundaries (yes, boundaries: title, possession, ownership) lie. The surveyor will (should) research historic records and deeds, obtain parol (verbal) evidence as to the purpose of the fence and when/why the fence was built, and should search for other evidence, such as corner markers, blazed lines, etc. that would prove/disprove the validity of the fence. The surveyor should then show where the deed (title) line falls in relation to the possession line. When these two boundaries are one in the same then we have harmony and everyone is happy. But, when the two boundaries are not one line then that is when the problems occur and the surveyor needs to opine as to where the ownership boundary lies. Keep in mind the surveyor cannot determine where the ownership line lies. He/she can only form an opinion that is based on the evidence collected, case law, and statute law. In other words, the surveyor can only give an opinion as to where he/she thinks a judge would place the line if the case went to court.

In short, it depends. Hire a licensed land surveyor if you and the neighbor are in disagreement and can't work it out.

Here is a link to an article about fences that was written by a highly respected land surveyor/lawyer/civil engineer:

http://www.umaine.edu/set/svt/Articles/Fences.pdf

[Polly]

    thanks for the info i copied it down surveyor will be here friday the property line in question is fence line that was recognizer as property line by both parties since 1947 the property was sold about one year ago to new owner the new owner claims fence is not property line now the problem appears to be the two deeds do not agree with each other in acouple of areas they overlap  now good news the lady that was owner of property since 1947 is still in area and swears along with her daughter the fince was recognized as property line by her me and original owner of this property  we will see what happens   

[Black_Bear]

Polly, the surveyor should be able to sort it all out.

Often times a third party, such as a realtor, will try to show a prospective landowner the boundaries only to muddle things that weren't muddled before. Not a knock on realtors, just something I have observed in practice. Poorly written deeds that create overlaps and gaps are also reasons why surveyors stay in business.

Good luck.

[cantcutter]

Black Bear
You are not talking about some really old Vermont deeds are you
We have 600 acres give or take in Sharon/South Royalton that the deed reads that the property line is from the ledge at the top of the north ridge running south east to the stone wall near the creek etc etc ect..... Nobody has ever had it survayed so we pay taxes on 600 +/- acres

Pretty common in Vermont

[maple flats]

I own a piece of property where the deed it was parceled from makes reference to "Mrs Smith's old hay wagon" as one of the corners. That was from a discription from the late 1800's. There does not seem to be any old hay wagon near there now. It puzzles me to no end how descriptions ever got written so carelessly, those were sure SIMPLER times. Luckily my piece is not at the end of the property thus described. I do have survey maps that show and state that the old fence meanders along the line. Most likely these thing started when an informal deal (non technical?)was made and thru the years the lines have been better defined in deed descriptions.

[Polly]

  8 surveyor has came and neighbors deed says property line meandering down center of hollow my deed list corridinates neighbors deed has practly same corridinates as mine fence line  i told him he was correct we would go by his deed center of hollow  i have no problem with this timber is on my side of hollow

[woodmills1]

I bought a pacel of 60 more or less with a survey.  I had it surveyed when I bought part of the property in front of my land to get street access.  It turned out that is was almost 11 acres larger than the 60 deed should have said more not less

[Polly]

  i had a uncle like that bought property more or less he had it surveyed sold off the excess acres paid for hole thing some people are lucky        

[cantcutter]

My neighbor bought 84 acres several years ago that joined his property. The bank that owned it lost the 8 somehow and listed it as 4 acres so he jumped on it at 15k. After the closing they noticed that they had lost the 8 in front of the 4 and contacted him about it, but it was too late. At the end of the year the town sent him a tax bill on 150 acres. He went down to the clerks office and they pulled two deeds that where connected together and in his name for 150 acres. Apperently the previous owner had seperated the property and drew a morgage on the 84 acres which the bank later forclosed on and didn't know that the additional property was still attached to it. So he ended up with 150 acres at 100.00 an acre.   

[SwampDonkey]

Must be some sloppy banking practices. They don't miss a trick around here. Some won't even take a bill payment at a branch other than your own, even though it all ends up on Bay Street at the same bank. 

[beenthere]

cantcutter
Sounds like a good story....

[cantcutter]

I know, sounds like a tall tale, but its true. The property is in Wheelock/Sheffield Vermont. The bank was Passumsic savings bank and it was less than 10 years ago. The only regret I have is that I didn't have the cash money at the time to buy it, we all knew it was more than 4 acres and the bank mailed everybody with ajoining land a sale notice. The property had been clear cut so it was just raw land until the back 76 acres turned up, it too has now been cut and the front 50 divided off and sold.

[jpgreen]

My friends bought land up here over 15 years ago, and didn't realize until recently that a guy built his house right on one corner of it.. 

I told em' to get a survey and have em' stake it every 50'. Can't wait to see the look on the guys face with stakes runing across his from yard and porch.. 

That takes some nerve to blatently build on your neighbors property and think you can get away with it just because you never saw them and they hadn't been there in years.. 

[SwampDonkey]

If they've been there for a period of time depending on state or province, they may have squatter's rights to the land.

[Ron Scott]

I've encountered a few such cases over the years. Some required removal of the dwelling from the property, some were settled by land exchange or purchase, and in some a lifetime permit was given.

One that we discovered through a survey a couple years ago where a new home was "knowingly" built on the neighboring property where we were planning a timber harvest is still in court. I don't know how it will turn out since it appears to have been more than an innocent trepass case.

We have not moved ahead with any of the timber harvest yet.

[SwampDonkey]

Here's an article on squatter's rights in Canada.

http://www.wwlia.org/ca-re13.htm

[Furby]

You've got me thinking now SD!

[Dan_Shade]

I'll bet you can't squat land away from the government!

[Furby]

DanG it Dan, that was the plan!
But if they can squat your land with a military base, why can't you squat their land

[SwampDonkey]

Over the years I have known personally 3 that I can think of, off the top of my head. Most landowners just let them dwell there because they are down on their luck, poor, ignorant (education and intellect wise), disabled or old and they aren't hurting anything anyway.

[SwampDonkey]

Dan, I think you're right. Seems I read the government convicts and/or evicts squatters. But, the reasons may not be what you think. For instance here in NB the Crown land owned by the province is controlled by license holders for timber, maple sugar bushes, camps and such. Basically the government wants the taxes and the licenses want total control. I mean you can't even cut firewood with a permit where you want, you are told where you can cut and that is part of someone's management plan.

[Sprucegum]

Interesting link SD, I think I'll move my outhouse over to the neighbor's land. I use it regularly   

[Furby]

So, is all crown land controlled by timber license holders?

[SwampDonkey]

Timber licenses, sugar bush leases and camps. Mostly timber licenses. DNR staff have been twindling  in numbers since the 60's. Basically the timber companies police themselves and DNR spot checks for compliance. Now with certification in effect, there are 3rd party audits as well. Now within that are sublicensees, firewood permits and sugar bush thinnings, but it follows someones Management Plan. In other words, that volume cut is part of an Annual Allowable Cut for a timber license holder.As a NB citizen and woodlot owner, I have no say in how it's managed. According to the Crown Land Lease package you send to apply for a parcel of crown land, "Only timber licenses have the right to cut timber on Crown Land". You have to have a cutting permit to clear a camp site or any site, then all the environmental, insurances and boundary line survey costs on top, then the annual tax.

[Ron Scott]

No, "squatter's rights" are recognized on U.S. government lands.

Depending upon the circumstance, a permit may be issued for a period of time, but when the time is up, "off you go".

There is a current case her now where the National Park Service issued an elderly lady a 25 year permit on her home site when they condemed the land she was on for the National Park. Her time is now up and she is being moved off her property. The case is getting a lot of media coverage since the woman now more elderly refuses to move.

[Black_Bear]

Cantcutter:

That deal sounds like highway robbery. We cut a lot of beautiful hardwood in that area in the 90s and me and some friends have a camp in Wheelock near the PineBerry farm. We have shot many a deer in the Sheffield/Wheelock area. I'll be in the town clerk's office in a couple of weeks and may have to look that property up. Good for him!

[just_sawing]

My grandfather let the neighboro put a fence over about 30 feet so his cattle could have water and it would not wash. Fast forward Grandfather passes away the kids know the deal but there kids sell there dise telling the new owners the fence is the line. The new neighboros build a pond and barn on out land. The court gives it to them even though the deed says the line is in the center of the creek. they got ten acres by the time the full fence was ran.

[Black_Bear]

Just_Sawing: I would say that the court found for the neighbor on the grounds of "equitable estoppel".

Briefly described it means that your family had a chance to assert their true rights (find the true line), but because they didn't within a certain time period they are bound to the agreement (telling the neighbor the fence is the line) by their subsequent silence, or inaction.

Unwritten agreements can come back to haunt a less than diligent land surveyor, and as you have found out, landowners. That is why we interview all adjoiners and send letters asking them to come forward with any documents or agreements that may not be in the public records. If they lie to us then we are protected professionally because we did our due diligence.

I've dealt with a lot of family lots over the years and most of the family members state that "it doesn't matter, that's my family member and he/she would never do anything to harm me or my rights". I tell them that is fine for now, but I also explain to them that times change and it may not always be a family member who owns the next lot over. Document all agreements; this at least puts the public on notice and the court may not be able to use estoppel as a ruling.

Ed 

[LeeB]

Anybody familiar with Arkansas law on this subject? I may have a fence problem to deal with myself.

[bitternut]

Here is a link that will get you some info for your state. Adverse possession is why I had my land surveyed and keep the property line well marked.

http://www.lawchek.net/resources/forms/que/advposs.htm

[Ron Scott]

That's the best "front end" investment that one can make on their property.