Reality check--neighbor's fence on in-law's property

[LBrown59]

Why does the only survey that counts is the last one.

 

[dodge man]

Let me weigh in here. I am a land surveyor and there is a lot of misinformation in this post.

First off, the OP says the original corners were found. From what he says and the way I read it, this is a statement of fact. Without further info we have to assume this statement is correct.

Second, GPS can be used to do boundary surveys. I use it all the time, but like any equipment, it can be misused.

Fences and boundary lines? Sometimes a fence is just a fence, and sometimes a fence also defines the boundary line. In this case the fence is not the boundary line. I work in Illinois, but I suspect Texas is similar. Adverse possesion is very difficult to claim and prove in court.

I agree with the others that say to move the fence sooner rather than later. It might be a pain in the butt, but I'd just go out there and move it for her. There is some danger in this legally, but I doubt it.

I'll give an example. There was a property I surveyed over 20 years ago. The person was losing most of his ground because he couldn't keep up with his payments. He called and complained about our survey, although his complaint had no merit. It turned out he moved my corner markers and built a fence. Fast forward about 15 years and a new owner acquired the adjoining property and hired us to survey it. At first I thought we screwed up on our original survey since the markers weren't where they should be. I then remembered the original owner complaining about the first survey and do to some other circumstances, I knew they had been moved. I advised the new owners that adverse possesion may have occured, they said the heck with it and bull dozed the fence out. They then rebuilt it where it belonged. That new fence is still there.

 

[blueriver]

The offical markers would be pieces of rebar set in the ground? By "official", I'm assuming he meant corner stakes from a previous, presumably filed survey. The only offical marker I've ever seen anywhere near my property is a brass plate set in the middle of the road adjacent to the north western corner of my land. The old, now retired surveyor who did a 1960's survey of my acreage property explained to me that my northern border coincides with one of the original Kayadrossera Patent purchased from the Mohawk and Iroquois in the early 1700's.

Having said that, the surveyor finding previous survey corner posts at the point where he determined the corners should be certainly add weight to his survey.

In a dispute such as this I suspect the eldery ladies borders will need to be confirmed independently, unless she conceeds that the fence was placed in error and accepts the more recent survey. I doubt if the moving of the fence will reduce the price of her land, but people can get funny about fence lines and spend money on lawyers far in excess what the actual value of the disputed area is worth.

After disclosing the issue to her perhaps an offer to share in the expense of moving the fence and clearing up the title in the process prior to her listing the property will entice her to be nice and agree.

I think offical markers vary ... One piece of property I owned had 4x4 post set at the corners per the survey and the plat map ... One piece I now own has concrete posts at the corners and another has rebar.

 

[ustmd]

I appreciate the feedback.

Just to clarify, the survey was a legal survey--actually, there have been two of them in the last 6 months, with the same conclusion.

Also, when I say the survey found the corner markers, these are iron bars driven into the ground with a serial number on the top. The serial number and position of the bar are referenced on the county plats as part of the legal description of the property. The older women's property was broken out from a larger tract in 1999, so the boundary lines/reference markers are more "sophisticated" than a property going back 200 years.

So, there really is no doubt about the property boundaries.

Down looking at the property in more detail, I am fairly sure I know how the fence ended up off of the property line. In one corner there is a wash, with a slope. This slope/wash is on the edge of the older women's property line. The current fence line is pushed back 20-30 feet out of the wash onto some flat ground. If I look were the fence currently is vs. where it should have been, the current location is a much easier installation-500 ft of fence on a relatively level run. If the fence was put in correctly, because of the slope, there would have been a lot more work. Right now the fence line has 2 wooden posts (concreted in) in the run (with t-post in between). If the fence was on the actually property line, I think you may have needed 5-8.

I knew the guy who put in the older women's fence. He was not a guy to out in extra effort to do something correctly when there was an easy way out. At the time he put in the fence, her property bordered 500 acres of open grass land that was essentially abandoned. I am sure the guy pushed the fence line to the top of the wash/slope to make the installation much easier. He probably figured no one would notice or care, or if they did care, he would be long gone. Of course, the guy is lone gone now, so no one can ask him or chase him.

 

[MikeD74T]

...I'm always amused that people put so much credibility into a fence as to say they define property. A fence is not a legally defined entity for property. How many legal property descriptions say, "In a line from a barbed wire fence. . . " or some such? To my knowledge, fences never define survey marks...

My deed is described in a clockwise direction from a point of origin on the south east corner. Distances/directions, & pins on 3 sides. The east end of the north boundary is described as "to where it meets the brook, then follows the brook (downstream) to where the fence crosses the brook, then follows the fence..." to the point of origin. Problem is -THERE IS NO FENCE! Property was subdivided about 1952 & the east boundary is subject to flooding. Old areial photos from late 40's show where the fence crossed the brook but nothing beyond. Fortunately I've know the abutor since about 1956 & partially because there's a sizable amount of unusable wetland on his side of the brook he's not worried about the exact location. NH has a law allowing abutors to reach agreement re: disputed boundaries I'll try to work out a defined line over the next couple of years, get it surveyed & recorded, while we're both alive to get it done. There's probably not 5 people alive that know for sure where that fence was. MikeD74T

 

[Pirate]

Just went through all of this myself, but easier. One neighbor moved his fence after surveying on one side, the other neighbor was told he could mow a section of my property but nothing else. It was a small strip he wanted to use for access to his backyard. One day I went up and checked this little piece out and found he had been spraying some form of vegetation killer right up into the woods. I told him to stop mowing, move his firewood, and within a week I put up a fence. It pissed him off to no end but I asked him why he was mad at me for me using my property how I wanted. He apologized. I'm glad I fenced it but wish I just would have done it when I had the survey done a couple years prior.

 

[bruceha2000]

and it would appear your inlaws may benefit from the fact that they recently purchased the property and only found out about the issue recently, which by my reading of the law, the statute of limitations (3, 5 or 10 years depending) may start from the date they received the new survey

Hmmm, interesting thought related to that. If they had the survey done BEFORE they bought the property and bought it anyway, knowing there was a potential unresolved boundary issue, does that change the legal circumstance?

 

[bruceha2000]

That's why you see Google and Bing aerials with roads overlaid that are not coincident.

Possibly but not necessarily. I had some email exchanges with the guy who does the Vermont Agency of Natural Resources about the new version of their Environmental Interest Locater web app (VERY cool BTW). The distance and area calculations are not correct. He said it was related to something about Microsoft mapping (in this case I think that means Bing) and the higher latitude. It is off (high) by about 50%. I gather it is more accurate at the equator.

 

[bruceha2000]

"to where it meets the brook, then follows the brook (downstream) to where the fence crosses the brook, then follows the fence..."

Yep, those get messy. Brooks and rivers move and at least in Vermont (gee thanks Irene for bringing this little factoid out for the poor peoples' land you ripped through) the brook is the boundary EVEN WHEN IT MOVES. I'm thinking they need to get some new language so people can get the CURRENT boundaries marked so the brooks are NOT the boundary. And, just to be a bit safer, get GPS points on them so you can find those points again when the pins wash a mile down river during a hurricane.

 

[two_bit_score]

Since this is Texas, naturally Texas law on adverse possession would apply. .... .... ....

Also, curious if the inlaws purchased title insurance? If they did, couldn't legal fees might be covered under the insurance?

In Texas title insurance policies make it clear in the exclusions that it does not cover the survey. They completely exclude any liability for the survey matching what is on the ground.

Not a bad idea about notifying the real estate agent handling the listing. She will be quick to bring it up with the owner.

But since this is only a three strand elect fence he should probably ave it moved by now anyway.