Lines of Possession
Use of Possession/Occupation Lines: 1. Evidence of the record boundary. 2. Foundation for title boundary. a. Estoppel b. Adverse possession c. Acquiescence d. Practical Location e. Unwritten Agreement 3. Evidence of possible encroachment Surveyor’s Responsibility: 1. Determine the location of the record boundary. It is the responsibility of the surveyor to determine where the record boundary is located and its relationship to other apparent boundaries that may be founded upon equity or contract. 2. Locate and document occupation/possession lines that conflict with the record boundary. 3. Explain to the client the ramifications that result when the occupation does not coincide with the location of the record boundary. 4. Provide the client with options. Options for the Surveyor: 1. In some cases the record boundary may be sufficiently vague or uncertain that one of the doctrines may have to be used by the surveyor to “stand as the best evidence” in order to fix the record boundary. 2. If the record boundary has been established with sufficient certainty, the other boundaries may be treated as possible encroachments. Title is not marketable until such time as title is litigated and recognized or the record owner(s) have released their claims. The surveyor should seek legal aid. 3. If the record boundary differs with what had been assumed or agreed to be the boundary, sometimes the surveyor may best aid the client by seeking to make the assumptions or implied agreement binding (using written agreement, exchange of quit claim deeds, etc.). Ownership Boundary Changed by Occupation: 1. Estoppel — Estoppel is based on equity (unclean hands). A person is barred from rightfully pursuing that which is theirs because they started or helped create the problem. Note: While estoppel may appear to transfer title, the denial of relief to the wrongdoer allows the aggrieved party to possess the title (hold title).  One person puts forth declarations, acts, omissions, words, actions, conduct, or admissions;  causing reasonable and foreseeable reliance by another person;  so that person makes expenditures or takes action contrary to what a reasonable person would do, would the truth be known; and  the person will suffer injury, damage, loss, or other calamity to their detriment if the law acted in favor of the person who misled the other. Note: In some cases a time limit has expired or a period is set, allowing the injured party enough time to recover the cost of the construction before being ejected. 2. Acquiescence (Mutual Recognition) — Boundary by acquiescence is a doctrine whereby persons may establish their boundaries by their inaction or silence. Acquiescence is an agreement that is presumed by the situation. Agreement and practical location is the intent to establish the location of the record boundary while acquiescence is the recognition of what is thought to be the location of the record boundary. A boundary established by acquiescence must be founded upon either a presumed agreement, estoppel, or adverse possession. If the foundation is a presumed agreement, a mistaken location will not support the doctrine. On the other hand, acquiescence founded upon estoppel or adverse possession will support a boundary that is later found to be located by mistake.  Uncertainty or doubt as to the location of the true boundary; Note: The true boundary may be found by a competent surveyor or based upon a mistake.  location of the boundary made by one party in a visible or ascertainable manner (e.g. monuments, fences, etc.) not based on fraud or deceit;  actual or constructive notice to the adjoining landowner of possession;  conduct or lack thereof by adjoining landowners from which acquiescence and recognition can be inferred; and  fixed thereafter by: 1) occupation for a given period (normally the statutory period for adverse possession); 2) boundary cannot be made certain by reasonable methods; or 3) circumstances that would cause a substantial loss by a change of its position (estoppel). 3. Practical Location (Location by Common Grantor) — Practical location is similar to acquiescence except that a common grantor or both parties take affirmative action to mark the boundary and subsequent buyers rely upon the location. A common example of practical location is a party wall. Practical location differs from boundary agreement in that a boundary agreement is based on contract and a mistaken location can repudiate the agreement. Practical location is based on equity and a mistaken location will not necessarily repudiate it. Furthermore, a dispute is not required. Finally, practical location is the only method whereby a common grantor can fix boundaries different from those described in the record. • The boundary is vague or unknown; • Parties in interest by their acts or deeds fix the boundary by definite monumentation. • Location by visible or ascertainable manner. 4. Unwritten Agreement (Parol Agreement, Consentable Line) — Unwritten agreement is not normally viewed as an unwritten transfer of property since such an act would be in violation of the statute of frauds. Rather, it is used to define or locate the written boundary which, without the agreement, would be vague or unknown. Unwritten agreement can only be binding if the following elements have been met: • The true boundary is unknown or uncertain and can not be established with certainty; • The boundary is in dispute;. • The agreement is considered and accepted by all parties concerned or affected by the 1
agreement (acted on); and • The agreed boundary must be discernible or in relation to a discernible boundary or based upon a method to discern the boundary. 5. Adverse Possession: — Adverse possession is a method to acquire fee-­‐simple title through possession adverse to the record owner. Occupation Acceptance Check-­List ___ Original monument or position NOT found ___ Other more reliable evidence NOT found ___ Reasonable correlation with record Measurements ___ Improvements made respecting occupation as boundary ___ Occupation began when evidence of boundary markers existed (close correlation in age & time of original survey) ___ Builder(s) more likely than not knew where record boundary was located. ___ No evidence or indications of a disagreement regarding the occupation. ___ No evidence casting doubt on occupation’s reliability. Survey Report Narrative Corner 5 was created in 1975 (see deed book 86, page 122) and marked by a blazed maple. Records for the adjoining property call for the corner to be a “marked maple.” (see deed book 88, page 23) A diligent search of the area failed to reveal a blazed maple or the remains of a blazed maple. The intersection of a 30+ year old wire fence with a historical stone wall were present. The fence and wall appear to date to the approximate time of the original survey. There was no evidence suggesting the occupation has been disputed and is at odds with the location of the record boundary. There is reasonable correlation with the record measurements and measurements along the lines of occupation. Based on this analysis, the occupation lines were accepted as the best evidence fixing the former location of the maple. Boundary 7-­‐10 was created in 1893 (see deed book 127, page 87). The boundary is cited to be “S87°E 102 poles.” Records for the adjoining property cite the boundary to be “North 85 ½ degrees West, 101 poles” The boundary was found to be S82° 12’ 32”E, 1665.45 feet. Between the corner monuments there exist the remains of a wire fence in excess of 40 years old that deviate from a straight line by as much as 25 feet. This is not an unusual situation. Where the occupation differs from a straight line, title may follow the occupation lines by such doctrines as adverse possession, acquiescence, practical location, or estoppel depending on the circumstances involved in the construction, use, and recognition according to the fence. Consultation with an attorney is recommended should this deviation be a concern. 2
Wanda & Michael Client Anyplace Street Anytown, Zena 01111 23 April 2014 Mr. William Neighbor Anyplace Street Anytown, Zena 01111 Bill: As you are aware, we have recently had a survey done to locate the boundaries to our property. The surveyor has told me that the fence between our houses is located on my property by approximately one foot. The purpose of this letter is to let you know that we have no problem with the fence. You have always been a good neighbor and we have no intention of moving the fence or asking you to move it anytime soon. I will let you know if I want or need it moved in the future. My point is, please don’t be concerned when the surveyor sets the corner pins. If anyone asks about the fence, you can show them this letter so people will know that you have permission to have the fence in its present location. Michael Client 3
A Summary of Ivalis v. Harding 496 N.W.2d 690, 173 Wis.2d 751 (Wis. 1993) This case involved an action to quiet title based on adverse possession that arose because of a negligent survey. In 1915 a county surveyor erroneously located a parcel of land in the wrong government lot. The monuments set by the county surveyor were used by subsequent survey practitioners for subsequent surveys. In 1971 a subsequent surveyor relying in part on the county surveyor’s monuments performed a retracement survey before the sale of a property. The title to the lot had to be based on adverse possession. The lot owner sought damages from the subsequent surveyor for the cost of asserting their claim and quieting their title. The trial court allowed adverse possession and found the subsequent surveyor liable for damages. The Wisconsin Supreme Court affirmed that adverse possession had ripened into title and that damages against the subsequent surveyor were proper. The case dealt with several important points that are important to practitioners. 1. While the erroneous location was caused by the county surveyor in 1915, the subsequent surveyor may be held liable for all damages since the subsequent surveyor perpetuated the error. 2. When a practitioner provides services for a client knowing and intending that they be used by others (i.e., subsequent owners), the practitioner may be held liable in tort to the others. 3. In general, costs and expenses of litigation, other than the usual and ordinary court costs, are not recoverable from the other party barring a statute stating the contrary. However, under Wisconsin law a losing party may recover costs where: 1) the wrongful acts of the party have involved the opposing party in litigation with others, or 2) placed the opposing party in such relation with others as to make it necessary to incur expense to protect their interest. Should one of these two events occur the costs and expenses of litigation are treated as damages flowing from the negligent act. 4. In his defense, the subsequent surveyor was allowed to show that the county surveyor’s monuments were relied upon by other surveyors, including the experts testifying on the other side. However, the Court concluded that this situation does not mitigate the negligence of the subsequent surveyor and can not stand as a defense. Rather, the acceptance of the erroneous county surveyor’s monuments by the other experts goes to the credibility of the other experts’ testimony and may in fact be evidence toward their own negligence. 4
Scenarios 1. The deed description states: “Thence along the wall, S56°E 131 rods to a post…” The wall meanders from a straight line. 2. The 1932 subdivision plan shows lots along a lake shore. There are no bearings shown on the plan. The original monuments are “cedar stakes” The distances are to the nearest foot. A strict application of the distances to locate the boundaries will place the boundaries at odds with the possession lines. In two cases, the lines would go through camps that are 50+ years old. There are some pipes and pins that appear to be corner monuments. They are within a couple of feet of the occupation lines. 3. The clients deed calls for a stone monument thence “S78 ½°E 67 rods ” to a post. The client’s deed calls for a marked maple thence “S88°W 120 rods” to a post. The post is not found. The stone and maple are found. Using the measurements from the found monuments results in a possible location indicated by the circles. There exist a fence coming into the approximate area of the former post. 4. The surveyor’s client is the buyer. While surveying the property being purchased, the current owner and seller talks to the surveyor. The following conversation occurs: Seller: “So, is that pin where the corner is located.” Surveyor: “Yes Sir, it is” Seller: “It looks like I was wrong when I told the neighbor where the corner was located.” Surveyor: “Is that why the fence is on your property?” Seller: “Yes, the neighbor wanted to build a fence and I told him the wrong corner. I should have told him to get a survey. I suppose the buyer can just tell him to move it. It hasn’t been there that long.” 5. Two neighbors are talking after mowing their lawns. They are not sure where their common boundary is located. They decide to go to the tax office and figure out where the boundary is located. At the tax office, the get a copy of the tax map showing their lot dimensions. One neighbor knows where a corner pin is located. Using the tax maps, a 5
corner pin up the street, and a fiberglass tape owned by a neighbor, they reset their common corner pin. Five years later, one neighbor gets a survey and discovers the pin set for the common corner is three feet off. 6. In 1958 a will divides the decedent’s estate by giving the E ½ to the daughter and the W ½ to the son. The current deeds reference the 1958 will. Surveying the property, the surveyor discovers a fence crossing the original decedent’s property. The fence was built between 1960 and 1970. In 1975 the daughter sold her property. In 1981, the son sold his property. West of the fence is 45.23 acres. East of the fence is 46.01 acres. 7. The client’s deed description is the following: “north by the public road, east by lands of James Sneed, south by lands of Wanda King, and west by lands of James and Sally Ford.” The neighbor’s description is the following: “north by the public road, east by Martin’s land, south by King’s land, and west by Mark’s land.” There are no corner monuments. There is the remains of an old stone wall that each owner appears to have respected as the common boundary. 6