need help from surveyor or property laywer...



#2

Hello,

I have a question that I hope some of you might be able to answer...

if a surveyor made a mistake 50~60 years ago in placing property lines (in this case, 5 parcels are affected), and everybody builds to these lines and uses these lines with no questions...
what happen 60 years later when the error is discovered and someone complains? is everyone supposed to move to the 'real' property line (possibly destroying structures while doing so), or do the currently used, but erroneous, property lines take force of law and become the new property lines?

thanks, Cyrille (BTW, this is in Idaho)...


#3

Without knowing anything about survey rules in the US:

The first question I have: what makes the actual property lines in the field to be regarded as "incorrect"?

Who and based on which data is declaring the lines to be wrong?

#4

I'm neither a surveror nor a lawyer, so bear that in mind.

I'm pretty certain that a mistake that's gone unnoticed for 50 years is not rectifiable. The principle in law is called "laches."

Basically, you have to be vigilant in protecting your rights. For instance, if your neighbor builds and extension to his house that infringes on your property, and you wait until after he's completed the extension, lanscaped the area, and furnished the extension to complain, you're out of luck.

That's why you'll often see companies filing what seems like frivolous claims of copyright infringement. If they can be shown to have failed to act on a prior infringement, they could lose a subsequent, more serious case.

#5

Cyrille,

A quick search turned up the following about what is called "Adverse Possession:"


From Wikipedia

#6

Cyrille;
You'll have mail as soon as i'm through babbling here. I'll send you the email address of the man to talk to - he's a licensed surveyor in Idaho along with a couple of other states and he uses HP calculators too.
First though, a couple of things:
* This has nothing to do with adverse possession - that is legal thievery, your problem is an old error.

*I've never heard of "laches". I don't think it applies here. Most, if not all states have a "discovery clause" in statute or case law which states that SOMETIMES no matter how old a mistake is; property lines may be adjusted if the case is pressed within a certain number of years after discovery of the problem, usually seven or so.

*The age of the original survey may not be that important. What might be more pertinent to the outcome is if the 5 or 6 parcels were created simultaneously as a subdivision or if one was divided then one of those was divided etc. so you have senior rights to contend with. If there are old sectionalized land (aliquot parts) boundaries involved; you just added a whole other pile of complications to this.

*In the end: the only person who can decide where a property line actually is is a judge, and he will use testimony about math, history, intent of the original owner/subdivideor, lines of occupation, wording of the deed, common surveying practice in the area at the time of the mistake and more but all that may not matter much. His finding might be based solely on "gastronomic jurisprudence".

*Anyway; as Brown & Eldrige said: "The opposite may be shown". - den


addendum:
Don't loose too much sleep on this yet. If there is a problem; these things can be resolved relatively painlessly, with just a little application of money (like everything). If acreage is the problem and everyone (or the judge) decides to; you can probably do (in California you can do) a "lot line adjustment" where you hold the lines of occupation where there are improvements and adjust the property lines "down on the back 40" where only the cows will know that you've evened out the areas. Just be sure that a Land Surveyor and not a lawyer writes any new deeds. Even if Idaho allows lawyers to write legal descriptions; all they will do is to make sure that your kids will be back in court some day and that his kids will be on retainer to one side or the other.


Edited: 17 June 2009, 1:19 a.m.


#7

I'm polarbear Mike Reed, PLS 6049 (Ca). Essentially, I agree with what DB just wrote above. The laws are very different in each state, though. Make sure the surveyor you contact is licensed to practice in the state where the problem is! In California, even though the lines of occupation are not the same as the lines of ownership, the lines of ownership are still valid legally until/unless a lotline adjustment is agreed to or a judge settles their location and rules. Once the judge rules, they are and will forever remain where HE says they are. Also, as DB stated, money cures all evils! E-mail me privately if you want - polarbear_mike @ yahoo.com (no spaces)

#8

Quote:

*In the end: the only person who can decide where a property line actually is is a judge, and he will use testimony about math, history, intent of the original owner/subdivideor, lines of occupation, wording of the deed, common surveying practice in the area at the time of the mistake and more but all that may not matter much. His finding might be based solely on "gastronomic jurisprudence".

Cyrille, regarding the issues with your five parcels, you might find this article interesting about lines of occupation affecting four very large "parcels".
#9

Quote:
Hello,

I have a question that I hope some of you might be able to answer...

if a surveyor made a mistake 50~60 years ago in placing property lines (in this case, 5 parcels are affected), and everybody builds to these lines and uses these lines with no questions...
what happen 60 years later when the error is discovered and someone complains? is everyone supposed to move to the 'real' property line (possibly destroying structures while doing so), or do the currently used, but erroneous, property lines take force of law and become the new property lines?

thanks, Cyrille (BTW, this is in Idaho)...


What does this have to do with HP calculators?


#10

Quote:
What does this have to do with HP calculators?

Most likely, if the original surveyor had had an HP calculator, he would not have made the mistake in the first place...


#11

Quote:
Most likely, if the original surveyor had had an HP calculator, he would not have made the mistake in the first place...

Unfortunately, the original surveyor couldn't help it. HP calculators were nowhere to be found... 60 years ago.

Except in dreams.

#12

Cyrille,

First of all, hire a licensed, reputable surveyor to verify the error. My next-door neighbor tore down a barn because the former owner of my house had a survey that said part of the barn was on his land. As it turned out, the survey was incorrect, but now my neighbor doesn't have a barn....

Assuming that the mistake is real, talk to a lawyer who's knowledgeable about this stuff and see what he/she says. Actually, there's a good chance that the surveyor will be able to tell you about the laws in your state.

Finally, once you know the facts (from the survey) and the law, get all the people together and see if you can come to a friendly solution. If you can, then get the lawyer and/or surveyor to write up whatever legal docs are necessary. If you can't come to a resolution, then you'll have to argue the case before a judge I fear.

I'm not a surveyor, but I'm good friends with one and, for what it's worth, he's said on may occasions that after enough years, the agreed-upon property lines become legally effective, even if they aren't where they should have been, so I wouldn't worry that the property line will be redrawn through someone's bedroom.... :)

#13

hello,

First of all, thanks for your help...

To answer one of the question: what does that have to do with calculators... well, nothing, BUT I know that they are a bunch of surveyor on this forum and I knew that they would be able to help me. finding a surveying forum in which I am a total stranger would probably have been a whole lot less productive!

anyhow, for those of you interested in what I have found:

It looks like, in my case, an old surveyor pin does give the position of the corner of my property. the fact that this pin might have been misplaced is secondary to the fact that this 'monument' is now, because no one ever contested it, by definition the property boundary regardless of being properly or improperly placed...

If for some reason, a Judge rules otherwise and his judgment hold, I could then use an 'adverse possession' defence to still hold on the property, BUT this would mean that I admit that I do encroach on the other guy's property (which I will not do unless a final judgement forces me to).

thanks for your help, Cyrille


#14

There is an old English law that says that if you occupy a piece of private land for a period of time with the owner's knowledge, then, you have certain rights over the land (Adverse possession).
This situation reminds me of an old saying " Whereas doctors bury their mistakes, surveyor's dig them up ". I just discovered a mistake made by a very respected surveyor where he ran a boundary line 16 metres by 125 metres into someone else's property. The surveyor did the work in 1992 and now is 2009. To make matters worst, he died about 5 years ago also. The statutory period in my country (16 years) has passed, so I guess my clients dont have much of a case. Still, it is the job of the surveyor to pick up evidence and let the final say rest with a Judge.
So while the law is clear, I am sure there is a lawyer who will gladly take my client's money and fight their case.


#15

Hi Iqbal;
In California, and pretty much the rest of the states, we added a twist to the common law concept of adverse possession. The legalese here says that the thief must be open and notorious about his use of the land he is stealing and it must be used exclusively for himself and not for the rightful owner. That's probably just like your country. Here, in almost all of the very rare adverse possession cases; the thief fences the owner out of his land and he must have paid taxes on it for a specified number of years in order to gain title. Our "prescription" is closer to what these people here are talking about but that's not it either. If this is real; it's just a mistake and like the one you discovered; they happen all the time.
To your "doctors bury their mistakes" we add lawyers visit theirs in prison. We have another too. It goes: architects and lunatics are certified, engineers and sex offenders are registered, dogs and surveyors are licensed. Woof.

#16

Cyrille,

We can hold HHC2010 on your property. Once your neighbor sees all us "geeks" roaming in the yard with antique calculators and talking RPN, he will be happy to sell you his property for a real low price, so he will never have to see us again!!!

Namir


#17

Having been in cyrille's back yard a few times I can tell you that I am certain we'd not fit. . .

TW


#18

We're THAT GOOD!!!!?????

:-)

Namir

PS: I was thinking more of the SHOCK and AWE effect!!!

Edited: 18 June 2009, 7:45 p.m.

#19

This happened to my parents many years ago (in Kansas), only probably in reverse. The neighbor had a survey done so that he could build a fence. The surveyor placed the flags marking the property boundary eight feet into my parents yard (out of a 100 foot wide lot). A fence existed between the properties. The error seemed to originate from a problem with determining the otherside of the neighbor's lot, which butted up against undeveloped land that used to be a railway right of way, but had not been in used for years (30-50). My parents were afraid the neighbor would build his new fence 8 feet on their side of the old one, and they consulted a lawyer. The lawyer said that if the neighbor decided to build the fence, they would have to get their own survey done, and contest the action in court. But, if they could only wait a few more years (for a total of 15, 17, 20, I can't remember), then all they had to do was prove the fence existed that long without being contested, and it would become the legal property boundary. This was from the mid-70's.

In the end, the neighbor was a good neighbor, and did not move the existing fence. The property had sold several times before that, and several times since then, and no other issues ever came up with the boundary. That original fence still stands today, almost 50 years after it was put in.

Dan

Edited: 18 June 2009, 11:44 p.m.

#20

I am considering the same sort of thing on my property. The Magna Carta defines these rules but mostly one must just try to come to mutual agreement with neightbors (try to be frendly in negoations).
It's just what is just is just. Maybe your guy says "I will not release that land but i will lease it to you for $1 per year for the next 100 years, pay me $100 and it's solved".

Edit Note: in 100 years all the structures will be gone. Don't try to take anyones rights and be friendly.

Edited: 2 July 2009, 7:46 a.m.


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