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Old deed / new survey nothing is the same  

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I recently bought a 2 tract piece of property totaling about 26 acres. The issues is a previous owner originally had a total of 55 acres (no home), it was passed through the family from 1947 (the earliest I can find an original purchase deed) in 2008 it was split out into 6 tracts and sold a couple times between then and us buying the southern most two last year 2017.  The problem arises with the western boundary, by looking at the old 1947 deed that was passed through the family until it was split in 2008, the heading direction is out by a fair bit? On the recent tract deed from 2008, it is N 07 32 56. The original 1947 or prior wording is plain North 63 poles East 63 poles .... etc. Even accounting for declination, which is only be about 3*, it is still off to the east more. The neighboring property bought most recently in 1998 is S 04 37 26. (need to search an older deed for this property)

The long leg of this original and the neighbor is 2000-2250 feet. My math shows the 3* at a distance of 2000 feet would be out by 100 feet, the neighbors 1998 deed is 4.62* = 150 out, the 7.5* from the 2008 deed is 250 feet. 

I question it mostly because there is an old barb wire fence the entire length of the western edge of the properties (marked in Pink on the  image attached), which falls about 10-15 feet past the 'new' markers done in 2008. In my researching I have said, I don't want more than what is mine, but I feel like the neighboring land owner has 'acquired' extra by the boundary shifting in his favor. 
I have contacted the surveyor who split it out in 2008, he did not elaborate on where he got his info, but I am assuming from the more recent surveys of surrounding plats.
Against my assumptions, the new 2008 deed is roughly 1045-1050 feet to the west from the road. The original 1947  E W measurements are roughly 63 poles (which if my math is correct, is roughly 1040 feet) 

QUESTIONS :
 from experience, what is the likely hood that fence is the original edge of our property?
Is there a way to prove that?
How do you *collective surveyors* convert old deeds with I am assuming magnetic directions, to current, or true north? How do I know exactly which was used? The lines are obviously skewed from map north but measurements are also off. 

I should also note our northern neighbor has a fence (visible in the aerial photo) that is roughly 60 feet on our property per the tract deed from 2008. The neighbor bought and built in 2011/2012, brother in 2013/2014. There are pins and 4 foot pvc poles at the markers, so we aren't really sure why that fence is so far out at that end. I am not as concerned with that though, friendly Amish folks, I'm not going to ask him to move his whole fence. IF he ever sells, you better believe it will come up to those buyers though. 

Aerial photo with pva yellow lines, green markers are pins from 2008 and currently in the ground, pink line is the old fence row in the woods. 
Old deed (tracts 1, 2, & 3) same wording as the 1947 found but easier to read
1998 deed for neighboring property, first described line is the western edge of our property. 
2008 Tract description scan (bad quality I know)

20180426 095303
new deed boundries
plat scan

20180426 095427

15 Answers
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If I were doing the survey for the subdivision, the first thing I would have been looking for is the stone and the trees called for in the old deed along the west line of the original 3 tracts.  If I could follow the old fence and it led to what appeared to be those corners, I would lean toward the fence being the line.  As everybody has pointed out, the bearing differences dont mean anything.  I am licensed in Ky., you are lucky they even are in generally the right direction.  I would also need to see what the deed of the neighbor to the west says.

It looks like the north and south lines of the tracts on the plat extend to the center of New Hope Rd.  Without seeing a deed for the road, that may or may not be correct.  Apparently there was no road there when the original tracts were described as there is no mention of it in the old deed.  It calls for stones and trees on that line. 

I would venture a guess that the fence on your north side may be where the north line of the original 25 acre south tract was.  The east end of that line is in the woods, I'd check for old wire there.  That wouldn't necessarily change where your line would be because the plat doesn't show a fence on the line, but might explain why the fence is where it is.

 

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Disclaimer

I am not licensed to survey in your state.  My comments are based on practice and law in my state.  

Record bearings are considered least in evidence of boundary location. So although the comparisons are interesting that's about the extent of it's value. Don't get to hung up on the math. The question you raise about evidence of the original boundary and how to prove it is the important question. The question to be answered when accepting a fence as a boundary is has it ever been accepted as the boundary by current or former owners and for how long? A survey does not move the boundary. Courts have said that established landmarks recognized by the owners as the boundary hold as the boundary when the owners do not intend to claim any more than their deed calls for even when a survey shows otherwise.  So the question to be answered is who built the fence and for what purpose? How have the owners treated the fence over time? Did they use it to mark the limits of their property? I must also caution you that the same issues may apply on your northerly fence. I'm not sure you can successfully allow your neighbor to use land you believe is yours and then call it in when ownership changes without an understanding between you that the fence is not the line. 

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Also a very (very very) quick observation, is that the old timers likely assumed that the road was North-South. So, again don't get too hung up on the N-S calls.  If the road line was called N-S, and the rear line was called N-S, then likely they were meant to be (roughly) parallel to each other regardless of the actual bearings.

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Posted by: linebender

I must also caution you that the same issues may apply on your northerly fence. I'm not sure you can successfully allow your neighbor to use land you believe is yours and then call it in when ownership changes without an understanding between you that the fence is not the line. 

Thank you for pointing that out. Besides going to the neighbor and asking him to move the fence? Is there another legal option to put on file, such as acknowledging the fence is on our property and as long as it is only a wire fence for containment of his grazing animals there is no issue. However, if any other improvements or changes to the property or fence it must be moved back to the established line with the pins.

I am somewhat baffled that he put the fence so far off the line, the front is more understandable to go around the woods rather than through it. But the back is open and the pin is very obvious as it has a 4 foot white pvc pole next to it and is visible from a fair distance when trees are bare. 

Posted by: KgatesKY
Thank you for pointing that out. Besides going to the neighbor and asking him to move the fence? Is there another legal option to put on file, such as acknowledging the fence is on our property and as long as it is only a wire fence for containment of his grazing animals there is no issue. However, if any other improvements or changes to the property or fence it must be moved back to the established line with the pins.
 
I am somewhat baffled that he put the fence so far off the line, the front is more understandable to go around the woods rather than through it. But the back is open and the pin is very obvious as it has a 4 foot white pvc pole next to it and is visible from a fair distance when trees are bare. 

 

If you have no problem with the adjoiner encroaching, you can give them a license to prevent adverse possession from occurring. 

https://www.nolo.com/legal-encyclopedia/adverse-possession-trespassers-become-owners-46934.html

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I also thought possibly the road was not here in the original deed, which wouldn't surprise me its a short dead end (total a mile) with mostly fields at the end. However my neighbor across the road has been here since 74, and he made mention that when he bought it was already a 'little old farm house' So I would guess it was built in the 50s/60s  or earlier . Also to be noted that the woods on my side at the road are all a lot of old growth, sadly one that was cut for the power was a good 100 year old oak. But there are no trees on the opposing side, so my assumption that the road was put in on that property because it was a small gravel road for the one or two farm houses back there and no one wanted to cut a bunch of trees to put a road on the line. ? 

The oldest historical satellite image from 1998 shows no houses or cross fencing on the original 55 acre property, that cross fence was put in sometime around 2012 from historical google earth images when the neighbor bought and built on that place.  I have seen no evidence of any old wire fence there at either end, but he may have removed it when putting in his fence also. I get the eastern side going down the outside of the wood patch, but the west end being 60ish feet off the pin is odd, there are plenty of trees to anchor to. It is a mess in that corner, so maybe approach the idea of us 'cleaning up that brush so the fence can be moved back over to the pin. ' ?? 

I guess with the answers from here and finally got a call back from another local survey company in town about 30 minutes ago, consensus is that there is no real way to know exactly because the fence isn't referenced in any deed, I will have to go off the recent survey and pins from 2008. I am also contacting the westerly neighbors and hopefully they are understanding / chill about it. 
Our big concern was when we found the other northern pins early this year, none were easily visible last year when we explored. So we assumed the fence was the line while clearing some down trees for firewood (primary heat source) I just don't want to over step my bounds as there is a lot of wood back there we could put to use, if they are ok with it.  Also should note the neighboring property owners do not live on site and have private property/no trespassing signs every 50-100 feet or so with mentions of 'cellular camera surveillance' that transmit images immediately to them. Being it is a great deer hunting plot I see that. Just don't want them thinking I am knowingly pulling trees out of their property. 

 

I really appreciate the input here! 

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aerials back to 1950:  https://www.historicaerials.com/viewer

OK, Thanks but that just opened up a whole new can of worms!  ? 

What those 1950's photos show is that there was definitely a fence on the west side and the road was there then. So either the description came from an earlier deed before there was a road, or the line is not the center of the road, since the description calls for trees at the corners. That's my take based on just what I've seen, your mileage may vary.  There can be any number of reasons for the pins to be where they are. 

I first note that you have not shown a copy of your survey. I assume the plan information you show is from the subdivision plat. In all probability the fence and dwelling may predate the 2008 subdivision and should have been included on such. Then you say now you are just looking for pins?

Too much unknown information, my suggestion is hire a surveyor and after it is surveyed ask him your questions.

Paul in PA

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Posted by: Paul in PA

Too much unknown information, my suggestion is hire a surveyor and after before it is surveyed ask him your questions.

Paul in PA

In the process of conducting the survey the questions should be in his mind so he might have a clue how to answer them. JMHO

.., it is far more important to have a somewhat faulty measurement of the spot where the line truly exists than it is to have an extremely accurate measurement to a place where the line does not exist at all. (A.C.Mulford)

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to Paul in PA, that file attached above, the scan of the tracts is from the 2008 survey splitting the original 55 acres into 6 tracts. That is the one that the placed pins are 10-15 feet to the east of the old fence. Prior to that there has been no other survey on file besides what I found conveyed in 1947 (survey may have been older). 
The 1951 aerial clearly shows a fence between my property and the adjacent western neighbor property. Considering the original deed(oldest for the family who owned 47-08)  for the property is from 1947, and when the neighbor bought his property in 1997 there were no pins set along my property line (only the south western most point between 3 owners and a northern one at the highway), would that fence line  be considered the 'agreed upon boundary' , is that a correct term/assumption?

If I employed a surveyor with my compiled evidence, would they at all be likely to change the 2008 survey to move the western pins to the original fence line? Or would they just accept the 2008 survey as established boundary? Without outright disputing the work of the original 2008 surveyor, would there be a way to approach them to 'correct' their work based on the old deed and old aerial? When I spoke with him to see if he had been out since that 2008 survey he said he hadn't, but was almost indignant when I asked why they would be set so far in front of the old fence, saying 'fence lines aren't always property lines' while I get that, typically if people have fences up they are going to enclose their property, especially when this was fenced out more than 70 years ago. 
I get that surveyors aren't exactly personally invested in each property as much as the land owner would be, but I guess I am disappointed / confused that the pins wouldn't be set on the old fence.  And I am not exactly looking to spend another $1500-2000(the big name surveyor in town's quote) for at best an acre of woods, I only worry if that property is sold (and I can't buy it at the time) they will log it, the current owners use it for hunting, so they aren't going to cut it.

Please excuse any confusion in this reply, I have had two little girls home today interrupting every two minutes and this has taken well over two hours to compose. 🙂   And another Thank You to everyone, I really appreciate the input!

That answer would be NO!

From what you state, I assume you own Tracts 5 & 6 of the 2008 subdivision, so that fence is not on the property you own per the deed and filed map. While you may ultimately prevail in court for land west of your described tracts to the fence, those costs would far exceed the value of that land. BTW the filing of that map places a high bar against any claim that the owner at that time owned any more than what was shown and monumented. That being said that owner can only pass rights to what he owned.

You could hire a surveyor to review your so called evidence without doing a survey, but could not get any opinion of real value without a survey on the ground.

BTW, you should be much more concerned with the fence to the North.

Paul in PA

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The tract descriptions from the 1947 deed are most likely copied successively from deeds dating back to the middle or late 1800's. Most surveyor's stopped using perches, rods, and poles as units around that time frame and started using decimal feet.

As for the term "agreed upon boundary" - that is a correct term, but not a correct assumption. The courts generally require more evidence of an agreement than just a fence, if a boundary dispute should arise. You would need something further to prove the fence was agreed to mark the boundary at some time in the past.

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K

Your terminology and your posted exhibits are not what I would expect from a layperson. So I have my doubts you are who you represent. Nevertheless I'll play along and give you the benefit of doubt. A fence location dating back to the 50's "could" be more than an agreed boundary. It could be the best evidence of the 1947 boundary location. The stones from the description would be the best evidence. Has anyone really tried to find them? Has anyone researched the establishment of New Hope Church Road? Was it established equally on each side of the existing boundary or all on one side? The existence of a fence in and of itself does not make an agreed boundary and something tells me you know this and that you are asking leading questions. The questions a court would ask need to be answered before that can happen. When was it established? For what purpose? Has it existed for a statutory time? Have the owners used it as a boundary witnessed by their words or actions?  Did the 2008 subdivision attempt to lay out the existing boundary and were any of these questions answered then? Did the 2008 survey intend to subdivide the entire 55 acre tract or leave a strip to the west? 

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Well Linebender, I guess I am flattered? by your assumption that I am more than just a land owner.  I really am just a 'layperson', just a somewhat well educated 33 year old. My husband and I bought 26 acres in the country. I did a fair bit of research with the clerks office and PVA already but generally am of the intelligent bunch so I learn quickly. I also work on computers and graphics for a living so graphics/blueprints/scans etc are no stranger either.  Also might be slightly OCD trying to figure this out, like I said the biggest concern is if the western property is sold and then cut that they will use the recent pin, even though there is the old fence in the woods. 

By the old description there should be a stone at the south west corner, and north east corner, I have seen no evidence of either, however it has been too wet to trek through the field for the SW one since I got the recent descriptions. Although the NE one is 'corner to Amos Wilson' so assumption would be that the road was not there only a neighboring property.  It is supposed to dry up some and I'm going to check some things out, search again for the SW stone, and find the southern 'existing' pins from the 2008 survey and see who did the southern property survey, maybe they have info, I don't know.  From what I gathered talking to the neighbor across New Hope Rd who has been here since the mid 70s, this property was split and sold, I got the feeling it was an estate thing and kids didn't want to keep it but felt it would sell better in smaller tracts but not entirely sure.

Without words from the older owners, there wouldn't be much evidence to prove the accepted use as a boundary, neither had herds of livestock in the older aerials, no barns or associated trails from cows moving etc. neither was farmed as row crop. 

We've had a few have some fun with us in the past so I'll take you at your word.

Was there a legal description with the 2008 survey of the parent tract of the land being split? If it indicates all of the parent tract and the 2008 survey did not locate the exterior of the parent tract and the owners never accepted the 2008 boundary by their actions the exterior line is where it has always been if it is in a different location. Can it be expensive to prove? Sure it could. But it might not depending how reasonable neighbors want to settle it. 

 "Also should note the neighboring property owners do not live on site and have private property/no trespassing signs every 50-100 feet or so with mentions of 'cellular camera surveillance' that transmit images immediately to them."

Where are these signs in relationship to that old fence? When were they put there? Did the owner intentionally place those signs on what they understood to be their boundary or just in a convenient location? 

Javad GNSS

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Private Property signs on the neighbor at the highway are all on the outside trees, all the ones on the boundary with my property are behind the old fence, none are even on the trees in the fence.  I get the feeling they acknowledge the old fence as the actual boundary. 
I have spoken with the Northern neighbor and he is ok with a notarized statement about the adverse possession to acknowledge his fence being on my property but any changes or improvements the fence will be moved.  

Thank you, you all have clarified and answered my questions: that while the old fence is likely the original property line from the old deed (which is also is likely older than 1940's, more like early or mid 1800's?) but since there is no evidence of the fact when the surveyor split/drew new tract lines in 2008 I have little recourse to legally prove my lines go back to that fence rather than the pins he placed and the map he filled with the clerks office. 
As I said above, I have smoothed things over with the Northern neighbor, I wasn't worried about him anyway, laid back Amish. But the Western neighbor if sold, I just have to say a prayer, maybe win the lottery, because my soul is owned by the bank for 25+ years on this place, doubt I could get another 45 acres. 

Again, Thank you all for your time and input. 

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"Before I built a wall I'd ask to know

What I was walling in or walling out,
And to whom I was like to give offence."
 
-Robert Frost, the Mending Wall

O death, where is thy sting? O grave, where is thy victory? -1 Corinthians 15:55

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Interesting thread here...

 

Professional Surveyor - MO, AR, KS, KY
sUAS Certified Pilot

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