Fence Line, Deed Line, and Fifteen Years of Occupation
A surveyor is retracing a 42.6-acre tract in central Kentucky. The deed calls for a rectangle: beginning at a stone at the forks of Dry Run; thence S 12° E 1,320 ft to a white oak; thence S 78° W 1,410 ft to a stake; thence N 12° W 1,320 ft to a stone; thence N 78° E 1,410 ft to the beginning. The white oak is gone, but the other three corners are found and fit the deed within 0.3 ft. A woven-wire fence runs 3.4 ft south of the computed south deed line for its full 1,410-ft length. The neighbor has mowed, grazed, and paid taxes on the strip since 2001, and the client says that is more than 15 years. The client wants the fence line shown as the boundary and asks the surveyor to certify adverse possession so the title company will insure it. A 20-ft utility easement crosses the south line near its west end.
1. How should the surveyor treat the fence line in the boundary retracement?
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The surveyor should locate and describe the fence as occupation evidence, not as the deed boundary. The deed calls control the record boundary: the three found corners fit the deed within 0.3 ft, so the computed south line is the boundary of record. The fence is 3.4 ft south of that line and is a separate physical fact. The surveyor should show both the deed line and the fence line on the plat, with a clear note such as 'fence line - not a boundary of record; possible occupation/adverse possession claim, consult counsel.' The surveyor should not set monuments on the fence line as if it were the deed boundary, and should not certify title or adverse possession. A surveyor locates evidence and reports discrepancies; a court or a recorded boundary line agreement determines title.
2. What is the significance of the 15-year period, and what must the surveyor avoid saying?
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Kentucky's 15-year statute for recovery of real property is relevant to a possible adverse possession claim, but the surveyor should not treat the passage of 15 years as automatic proof. Adverse possession requires actual, open, notorious, exclusive, hostile, and continuous possession for the statutory period, and the facts must be evaluated by counsel. The neighbor's mowing, grazing, and tax payments are evidence, but tax records alone do not establish title, and the surveyor does not know whether the possession was permissive or whether any disability or other tolling applies. The surveyor must avoid saying 'the fence is the boundary because 15 years have passed' or 'adverse possession is established.' The correct statement is that the fence line may support a claim, that the claim is a legal question, and that the plat shows the discrepancy.
3. What should appear on the plat and in the surveyor's report to the client and title company?
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The plat should show the deed boundary by courses and distances, the found corners and their monument record, the fence line with offsets at its ends and at least one intermediate point, and the 20-ft utility easement. A note should state the source of the deed boundary, the fact that the white oak corner was not found and was computed from the remaining calls, and that the fence is occupation evidence only. The report should explain that the surveyor cannot certify adverse possession, that a boundary line agreement or quiet title action may be needed, and that the title company should obtain legal advice before insuring the strip. If the client insists on a plat showing the fence as the deed boundary, the surveyor should decline and explain the professional and legal risk. The surveyor may offer to prepare a record of the occupation line and offsets for counsel.