The Prescriptive Ditch Across the Back Ten
A landowner hires you to survey a 40-acre tract. Along its north boundary, an irrigation ditch runs 12 ft inside the deed line for 1,320 ft. The ditch was dug in 1978 by the neighbor to the north, who has used it continuously to carry water to his fields every season since. The ditch crosses a corner of the subject tract where the deed calls for a stone monument that you find displaced 3 ft. The neighbor claims the ditch as the boundary. The subject owner's deed is from 1995 and makes no mention of the ditch. There is no written easement of record. The neighbor has never paid taxes on the strip.
1. Analyze the neighbor's claim under Alabama law and advise your client.
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Three theories to test: (1) Prescriptive easement - open, notorious, adverse, continuous use for the statutory period (20 years for prescription in Alabama, Ala. Code § 6-5-170 et seq. as applied to easements). The ditch has been used since 1978, over 40 years, openly and continuously, so a prescriptive easement for the ditch is likely. But an easement is a right of use, not ownership of the fee. (2) Adverse possession of the fee - requires, among other things, payment of taxes on the disputed strip for 10 years under color of title (Ala. Code § 6-5-200 et seq.); the neighbor has paid no taxes on the strip, so fee-title adverse possession fails. (3) Boundary by acquiescence - requires recognition of a line as the boundary; a ditch alone, without agreement or dispute, is weak. Conclusion: the neighbor probably holds a prescriptive easement for the ditch, but the deed line remains the boundary. Advise the client of the easement exposure and that the strip is still his, subject to the easement.
2. How do you treat the displaced stone monument, and what do you show on the map?
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A found monument that is displaced from its record position is evidence, but not controlling if you can show it was moved. Test it against the deed calls and the plat geometry; if the stone is 3 ft off a computed corner and other evidence (adjacent corners, distances, bearing) supports the computed position, set a new monument at the computed corner and note the found stone as 'found, displaced, not accepted.' Show on the map: the deed line, the ditch as an occupation/easement line, the found stone and its offset, and your set monument. Do not silently accept a disturbed monument - document why you rejected it. Record the basis for your corner in your notes and on the plat.