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Journal Review - Article #3 In this article we will respond to a question from one of our readers. The individual in this case (owner #1) lives on a property that has been in his family for over 100 years. An old fence line marks one of the accepted boundaries of the land. Recently a survey was performed for the property owner adjacent to this old fence line (owner #2) and survey markers were placed two to three feet interior to owner #1's side of the fence. Owner #1 wants to know if he is required to accept the survey line established by the surveyor. The answer to this question is no. However, there are many aspects of this situation that need to be investigated before owner #1 will know how to approach defending his right of ownership. For instance it may be assumed that owner #2's surveyor performed a re-tracement or record document survey which established the "deed" line or "record" line as described in his deed description. It is not unusual for a record line not to match a fence line or other line of occupation. The reasons for this could be numerous. For instance, a property owner may build a fence line or plant a line of trees to indicate a line of occupation without the benefit of a survey line that would have marked the deed (record) line. Or predecessors in title of the two properties may have simply agreed to the location of the line (termed a "common line of agreement"). Also if a survey had been performed to establish a fence line, which was by a later survey found not to agree with the deed line, it is possible that the survey methods or precision of the instruments used in the first survey do not match present standards. Another reason for this type of discrepancy is that a property line fence is sometimes moved as a matter of convenience in order to stay out of the tree line that has now grown up in the original boundary line fence or to miss a building or other structure that has been erected subsequent to the original fence. Our recommendation to owner #1 is to either acquiesce to (accept) the location of the survey points after discussing their location with the surveyor that set them or with another Registered Professional, or to employ the services of a different surveyor than was used by owner #2. The new surveyor should be informed that a boundary dispute is involved. Owner #1's surveyor would then, to the best of his ability, produce a survey line that represents his interpretation of the record or deed line. The problem could have been created by an overlap in the deeds or by a difference in information gathered or the methods used by the two surveyors. The surveyor is bound by law to make his judgment on the location of the survey line based upon his investigation of all recorded information (owner #1's deed, all adjacent deeds of record, original government survey notes, other recorded surveys in the area, field measurements, and verbal testimony from individuals in the area that have personal knowledge of the location of the original boundary (called parole evidence). The two surveyors should then exchange information to determine if a reason can be found for the discrepancy (if not already determined). If an agreement cannot be reached between the surveyors or property owners the matter becomes a legal one and will need to be settled in a court of law. Notice we have referred to the line between the owner's as a "survey" line up to this point. A "survey" line can be considered a "boundary" line if it is agreed to by all property owners involved (should be written agreement) or by the ruling of a court of law. In this case, if the second survey upholds the location of the first survey and the fence is found to be improperly located, owner #1 may still be able to claim ownership to the old fence line by a law called "adverse possession". However, several conditions need to be met and proven in a court of law and decreed by a judge (or jury) in order for a line of possession to be considered the boundary line. We will discuss the various aspects of this law and boundary disputes in general in a future article. |
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