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Old 03-23-2012, 09:14 PM   post #31 of 81
jdemaris
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Default Re: Who do you think should decide?

[QUOTE=LilysDad;2088125]
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Originally Posted by jdemaris View Post
In those situations - a judge either decides - or asks for compromise and mutual agreement between the landowners involved.
QUOTE]

I don't want to enflame this discussion, but I find it hard to believe there is no legal, definative way to establish property boundries, other than a judge's best guess.
Many legal matters are made by "best guess." When we find someone guilty of murder and put him/her to death - it's done by "best guess."

And what/who do you suppose the final say would be if not a judge when land owners cannot reach agreement? Name me one state in the USA that regards a licensed surveyor's work as the "final word." Bet you can't find one. A survey will be used as evidence to help decide a case - but not always taken as proof. That would be silly. What if you had 2 or 3 surveys that were all slightly different?

Not all properties are well defined. Some older parts of the USA use poorly defined British Land Patents from the 1600s as "starting points" or "baselines" for surveys. Other states that got settled later have neat quarter-sections - or something similar that were surveyed much more recently. Heck - even the Statue of Liberty and island it sits on is in question right now.

A licensed surveyor is supposed to use established baselines when possible and feasible. He/she is also supposed to do a deed search and follow boundary lines back into the history of the land. Sometimes marks are as crude as "blaze mark on a hemlock tree" in 1795 (like on one of my deeds).

So yes - often two surveyor will do a survey on the same land and come up with two sets of boundaries. One might use some baselines and the other might use lines from his prior surveys of adjacent lands. And - NONE of them are legally binding. In that case - either the land owners involved in the dispute reach an agreement or compromise - OR - a judge and/or court makes the decision for them. I've got forest and farm land in northern Michigan that got it's boundaries established by court order 10 years ago because of such a mess. And Michigan is a newer state with well defined sections of land -unlike here in old New York State.
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Old 03-23-2012, 11:04 PM   post #32 of 81
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Default Re: Property Line Question

I'm learning so much from you all, i can see that this is a touchy subject to everyone. I'm just happy it's staying civil, on any other forum we'd have descended into chaos already.
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Old 03-24-2012, 07:47 AM   post #33 of 81
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Default Re: Property Line Question

jdmaris, thank you for an intelligent explanation. Your probably right.
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Old 03-24-2012, 09:17 AM   post #34 of 81
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Default Re: Property Line Question

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jdmaris, thank you for an intelligent explanation. Your probably right.
I know I'm right but . . as I stated earlier . . . situations can differ a lot.

If you have a small piece of land that was recently taken from a larger well defined parcel and all the corners are well marked - it's pretty hard for anyone to dispute. If it's very recent , it will not only have corner marks but also coordinates that can be verified with GPS. I'm talking about disputing original boundaries and not any new claims of adverse use or ownership.

Obviously when there IS a dispute - there are people with different opinions based on the same set of facts. This often happens in areas where established baselines are vague - or very far away. Where I live in NY, I've got around 100 acres that show up as 7 different tax map parcels. The nearest established "baseline" is 30 miles away. So - you can imagine how impractical it would be for a surveyor to measure 30 miles to verify. What is usually done in this sort of case is - the surveyor compares adjacent and nearby properties - especially those that were surveyed. More especially surveys that were high profile - like governent land, a State highway, etc. He will also walk in areas where lines ought to be and look for signs of use/borders over the years. That can be stone walls, old wire fence grown into trees, etc. It is not exact science and often no one will ever know for sure. Two of my deeds - written 1790 to 1820 - give borders as a town road and high water mark of a mill-pond. Since then the road has been moved at least three times and the mill-pond has been gone since 1850.
Also note that often a rural area will have one popular surveyor for a given area. Since he/she has done most of the local surveys - the work is cheaper then if done by others because it uses already established lines from prior surveys on other properties. Well - what do you suppose happens when this surveyor has made a few mistakes over the years? Sometimes they carry over into the new surveys. Where I live the surveyor in town is much cheaper then anyone else. Several of the non-local surveyors charge much more because they refuse to use exisiting survey lines done by the local guy. So, they have to do much more work using distant baselines. And - usually their "from scatch" surveys do not agree with the local ones. Logging disputes are the biggest cause of this around here. Most always wind up in court.
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Old 03-24-2012, 10:27 AM   post #35 of 81
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Default Re: Property Line Question

I know someone who was trying to sell a house that they had moved out of. The real estate agent was showing someone the house, and the real estate agent went into her car to get something and a nieghbor came over and told the young couple that wanted to buy it "Listen, me and the people who lived here before didn't have any problems, you even come close to my property, and there will be a problem." and then he went on showing them a bunch of fake land markers he put into the ground increasing his property by about 10 feet. The young couple didn't buy the house, probably due to him.
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Old 03-24-2012, 11:57 AM   post #36 of 81
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Default Re: Who do you think should decide?

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Some older parts of the USA use poorly defined British Land Patents from the 1600s as "starting points" or "baselines" for surveys.
As an example, many of the older farms and properties in my county have deeds referring back to original Penn land grants issued by the sons of William Penn.

They typically reference boundary markers of specific trees and rocks that haven't existed in 200 years.
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Old 03-24-2012, 01:54 PM   post #37 of 81
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Default Re: Property Line Question

Two of my neighbors had a dispute over the property line dividing them. The problem for me was that I border both of them. One neighbor was pretty sure her property line was some 60' onto my property. I was sure of where my survey pins were so I wasn't concerned.

These two neighbors, however, were nearly to the shooting point when one bet the other she was right and would pay for the survey with the stipulation that if she was right the other neighbor had to reimburse the payment. They agreed to these terms. They each wanted my opinion on the line so I warned them that each was in for a bit of awakening. My property actually crosses the road into what each of them use as driveway/parking. I walked to a point in their driveway, scratched a circle, maybe 2' in diameter, in the gravel, and pointed out the straight lines that would define their boundaries. The surveyor found the metal pin within the circle I'd drawn.

The "bettor' was wrong. She paid the $600 for the survey. Hopefully this is settled for a long time.
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Old 03-24-2012, 02:50 PM   post #38 of 81
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Default Re: Property Line Question

Having worked in a Courthouse I can tell you that the courts are the "final" say as to whether the "surveyed line" will be enforced or not. Judges will listen to all evidence in a case and make a decision based upon the evidence. Do you have some pictures of your back yard last year? Then again now since he's encroached some more? Get the survey it will be necessary in court, he can also opt to get one too by the way! We had a lumber company come in several years ago and survey their land which most of my neighbors and I border on. The lines were where I thought they should be where I bordered it but the neighbor had built a shed that they told him was on their land. He had it resurveyed and his survey showed it on his property, they went to court and the Judge placed the line just off the side of the shed and then told both parties that there would be no more encroaching one way or the other.
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Old 03-24-2012, 10:31 PM   post #39 of 81
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We have pictures from when we purchased the house that i was using for reference, i'll take a couple up to date ones tomorrow. The problem is that I don't have any from the last two summers, showing what i was mowing. The neighbor refused to get a survey on another piece of property when he wanted to put up a fence earlier this year, so hopefully he'll not want to spend the money again. During our "conversation" he was telling me how much surveys cost and that I wouldn't want to spend that kind of money, basically trying to talk me out of doing it. My other neighbor dropped off a copy of his last survey(2003) last night, and the drawn out map shows my 110' property width.
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Old 03-24-2012, 11:02 PM   post #40 of 81
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Default Re: Property Line Question

Here are a couple original images of the property. Picture #1, view from about middle of property, looking east, road is on other side of house, property line in question on right side of photo. Like i said long skinny lot. Picture #2, Looking east from edge of woods. The mowable yard ended where i was standing in picture #1, everything from there back to the woods was small saplings and brush. The dirt patch on the right side is what i was mowing last year, as i had turned it into grass. This fall the farmer disked right up to the tree. Picture #3 show the view looking to the west from the same spot as #2, the dirt spot has been tilled and the trail down the side of the woods is gone to.





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Old 03-25-2012, 11:27 AM   post #41 of 81
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Here are couple images from this morning, it was overcast so they are a little dark. Picture #1, middle of yard again, looking east, property line in question on right side. Picture #2, middle of yard looking west showing how I cleared all the brush and saplings to make area mowable. Picture #3, Edge of woods looking east, field disked up to tree. Picture #4, edge of woods looking west. Picture #5 shows property line from road, neighbor says he owns up to driveway, just lets me have the grassy area next to it. The first big pine tree is where he starts coming over farther into the yard. Picture #6 is same property line, just stepped to the south to see whole line.












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Old 03-25-2012, 11:50 AM   post #42 of 81
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Default Re: Property Line Question

That is pretty significant encroachment. Looks like 20 feet or more, for the entire depth of your property. I would get going on sorting this out before he plants this season. Good luck and keep us posted.
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Old 03-25-2012, 12:30 PM   post #43 of 81
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Default Re: Property Line Question

Oh yeah! Significant grab of land there! That's why they say a picture is worth a thousand words!
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Old 03-25-2012, 08:41 PM   post #44 of 81
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Default May not matter anymore where your boundaries are

Quote:
Originally Posted by trucknut85 View Post
Here are a couple original images of the property.

Here's my take on this. My opinion is free so take it for what it costs. I DO have a law degree and have worked on a few survey crews. I have also done title searching for several attorneys. I do not and never will practice law. I have also been involved in several land boundary disputes in the state of Michigan and New York (which is even more screwed up then New York!).

The issue of where your deeded boundaries are may not matter anymore. I suspect the farmer knows he's been encroaching and does not care. I suspect he feels entitled because he's done it for so long.

The fear about him getting land by "adverse possession" is kind of ridiculous. It won't happen if things have happened as you've explained.

I also doubt he can get an "easement by prescription."

However - in Michigan - you've got another legal problem that we don't have in New York. The "doctrine of acquiesence." With that, he would never own your land but could get a right to use it. Here's a simple definition for what it means in Michigan:

The doctrine of acquiescence provides that where adjoining property owners acquiesce to a boundary line for at least fifteen years, that  line becomes the actual boundary line.

You've only been there a couple of years, yet this farmer has been "crossing the line" much longer.

If you cannot reach agreement with him - you can either give up, or fence it. If you fence it -and he cuts the fence down, you can call the police and have him charged. Michigan has very strong fence-cutting laws. Then the burden of proof will be on him to prove his case and it will cost money (which he might have). If he can persuade a judge that he's been using that land for at least 15 years and the prior owners never complained or tried to stop him - he has a case. Your only chance would be to track down some prior owners and maybe find out a few gave him permission to use it. If they gave some sort of temporary permission, he has no case.

Going back in time and trying to prove these sort of things can be very difficult and extremely expensive. Again though, the burden of proof would be on him. - mostly. You already have the "preponderance of proof" showing you are the owner. At least I assume you do. If the actual deeded boundary lines are in doubt - check and recheck. If your one neighbor has a survey done - read it and find out what establish baselines were used. You DO know for sure what your width but you need to verify that the survey is correct. You can also go the the county clerks office and get copy of the farmer's deed. Read it and see what his measurement are and from what baseline. Farmland often is not well described.

I've been in similar situations. I'd do a lot more research and try to establish what went on with prior owners before you. If you don't or can't - I suggest this. Talk to the guy and try not to act like you want to kill him (like I tend to do). See if you can work out a compromise OR see if he will accept a written permission slip from you. If you write a slip indicating he may farm up to a certain line with your permission for the time being - and he accepts - it might void any future chances of him trying any legal tricks. If he scoffs at it? Well - I don't know the guy. He might be fool enough to spend thousands of dollars on a 20 foot strip of land he doesn't need. You never know. I did this recently with 100 acres I have in northern NY. I had so much trouble with people using a road on my land to get to other lands - I sent out five permission slips to all adjacent owners. And I did it again every 5 years. They all accepted the slips and I did it for 15 years. I finally sold the land and the new owner was able to enforce his ownership rights - because of the record of those permission slips.

Any judge (if he's sober and sane) will hear the evidence and then refer to prior case law. Here's an example of where a guy with a situation like your's won his case. But I'm sure it cost him a lot of time and money. Read if closely if interested.

S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
FRED BAKI and JUDITH BAKI,
Plaintiffs-Appellees,
UNPUBLISHED
January 29, 2002
v No. 226780
Genesee Circuit Court
PATRICK KELLY and WENDY KELLY, LC No. 95-040507-CH
Defendants-Appellants.
Before: White, P.J., Whitbeck, C.J., and Holbrook, Jr., J.
PER CURIAM.
Defendants Patrick and Wendy Kelly appeal as of right from a judgment settling a
property line in favor of plaintiffs Fred and Judith Baki. We affirm.
I. Basic Facts And Procedural History
The Kellys and Bakis own adjacent pieces of property in Fenton, Michigan. The Bakis
own what is known as lot 7 and the Kellys own what is known as lot 8, with lot 7 situated north
of lot 8. Margaret Drive sets the western boundary of the two lots and Lake Fenton serves as the
eastern boundary. Around 1965, the Kellys’ predecessors in title, Arthur and Virginia Phelon,
installed a split-rail fence at a position they believed to be about two inches south of the
boundary between the lots. The fence, which was subsequently replaced, runs approximately 50
feet, with bushes and shrubs marking the remainder of the boundary. The Phelons, their
successors in title, as well as the owners of lot 7 and their successors in title, cared for the
property on their respective sides of the fence.
A dispute arose between the parties in May or June 1995 when the Kellys claimed that
landscaping ties the Bakis were installing in the ground encroached on the Kellys’ land. Though
the trial testimony is conflicting about what occurred next, it is clear that Wendy Kelly and
Judith Baki began to fight and, eventually, the police had to intervene. Each woman blamed the
other for the scuffle.
In October 1995, the Bakis filed this lawsuit, asking the trial court to settle the line
marked by the fence and tree line as the legal boundary between lots 7 and 8. The Bakis set forth
three grounds for establishing title to the disputed property: adverse possession, easement by
prescription, and acquiescence. The Kellys later filed a counter complaint alleging intentional
trespass, but this claim was dismissed at trial and is not at issue on appeal.
-2-
At trial, the past and present owners of the two lots testified concerning the property line
and the fence line, as well as the trees, bushes, and flowers on the disputed area. Arthur Phelon
testified that he built the split-rail fence in the 1960s to support grape vines, not to mark the
property as a boundary. In fact, Phelon indicated, there never was any specific agreement about
where the fence line was, and he never intended the boundary between the two lots to be
anything other than the surveyed line. In what would later prove to be significant to the trial
court’s ruling, Phelon said that after the fence was installed, he would mow the grass on his side
of the split rail fence and Mr. Smith, who owned lot 7 at that time, would mow the grass on the
other side of the fence. Phelon also noted that he did not store anything on the Smiths’ side of
the fence. Although Phelon stated that he occasionally mowed on the Smiths’ side of the fence
and that he sometimes picked grapes from that side of the fence, the Smiths and Phelons
essentially stayed on their respective sides of the fence. After selling lot 8 to the Rowlands in
July 1977, on the occasions he drove or walked past the fence, Phelon observed that the
Rowlands and Smiths also stayed on their respective sides of the fence.
At the close of the Bakis’ case, the Kellys moved for a directed verdict on all three of the
Bakis’ claims. The trial court took the motion under advisement and proceeded with the Kelly’s
case. In early May 1999, the trial court issued its opinion in the case, ruling that the Bakis had
failed to establish a right to the land based on adverse possession because they failed to show
that the “Kellys, Phelons or Rowlands understood their property interest was being invaded.”
Further, the Bakis failed to satisfy the 15-year statutory period for adverse possession. The trial
court, however, found that the Bakis had established a right to the land under their theory of
acquiescence. The trial court noted that the testimony showed that after the Phelons erected the
fence, the various property owners “through their conduct alone, accepted, recognized
acquiesced in and used the fence line . . . as the boundary between Lots 7 and 8.” The trial court
was careful to distinguish between the fence line and the vegetation between the two pieces of
property, which the trial court found had not been respected as a boundary between the lots. In
the end, with it unnecessary to address whether an easement existed, the trial court adjusted the
legal boundary between the two lots to reflect the position of the fence for its length and the
original survey line where the fence ended and the vegetation continued.
On appeal the Kellys challenge the trial court’s decision that the Bakis demonstrated
possession by acquiescence. They claim that the trial court erred by construing the property
owners’ decision to say on their respective sides of the fence as a tacit agreement that the fence
was a boundary line in light of the testimony that the fence line was never intended to set the
boundary line.
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Old 03-25-2012, 08:50 PM   post #45 of 81
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Default One more comment . . What herbicides is he using?

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Here's my take on this. My opinion is free so take it for what it costs . . .

One more thing I forgot to mention. If this guy is farming he might be using chemicals illegally. Just something to think about. Anybody that is growing crops and not just hay or buckwheat/rye is probably using a weed-killing herbicide before plowing. Then after he plants, he will use a pre or post emergen herbicide again. Then later he might use some insecticides and/or fungicides. These are controlled chemicals and using requires a license to buy and spray. Most have strict distances they MUST be kept for other peoples residences - especially their water wells if you have one. Did you ever see a spray rig get used near your house? If so, you have a legal right to be informed exactly what chemicals he's using and what legal distances are allowed from people's homes. I find it hard to believe he's allowed to use them that close to you - especially if he's using certain types of Roundup, Atrazine, Bicep, Prowl, etc. Find out. If he IS breaking EPA laws - that will give you a lot of ground to stop him.

Now if he's Amish and using no chemicals and just horse manure and child labor plus horse-drawn cultivation - I might be wrong. But I doubt it.
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