Fence, Stone, and a Fast Closing
You are a licensed land surveyor in Montana retained by a seller to survey a 40-acre rural parcel before closing in 21 days. The deed calls for the northeast corner of Section 14, T3S, R8W, P.M.M. In the field you find an original 1890 GLO stone mound with bearing trees and a legible scribe matching the plat. The seller's existing fence lies 18 feet east and north of that corner and has been there since 1998. The seller says the fence is the "real boundary" because "that's how everyone has treated it," and asks you to set new pins at the fence and show the fence as the boundary on the plat so the title company will clear the sale. The adjoining owner has not been contacted. A 1975 survey of record shows a different corner 12 feet west, likely based on a later resurvey. Closing is in three weeks.
1. Identify the boundary evidence in the setup and explain which evidence controls under Montana boundary law. Address the 1890 stone, the 1975 survey, and the fence.
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The 1890 GLO stone mound is the strongest evidence: it is an original government monument called for by the deed. Montana boundary law follows the hierarchy of evidence-original monuments control over later surveys, courses, distances, and area. The 1975 survey is secondary evidence. It may reflect a resurvey or an error, but it cannot override the original corner unless the original monument is shown not to be the true corner. The fence is occupation evidence. A fence can support a practical-location or acquiescence claim, but only if the required elements are established, such as mutual recognition of the line, intent to fix it, the statutory period, and the parties' conduct. The surveyor cannot simply declare a new boundary because the neighbors have treated the fence as one. The adjoining owner's rights are affected, so the evidence must be investigated and disclosed rather than assumed.
2. What should you do about the seller's instruction, and what must appear on the survey or plat?
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Do not set pins at the fence or label the fence as the deed boundary. Show the found 1890 monument, the 1975 corner, the fence as an occupation line, and all discrepancies. Explain to the seller that the plat must be truthful and that a boundary agreement or quiet-title action may be needed to change the legal boundary. If Montana requires a certificate of survey or plat for this work, file it with the proper county office. Notify the adjoining owner as a professional courtesy and to avoid surprise. Document the seller's request and your refusal. If the seller insists on a false plat, withdraw from the engagement rather than seal a misleading document.
3. If the seller insists and you seal the plat showing the fence as the boundary, what professional and legal consequences are foreseeable?
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Sealing a plat that shows the fence as the boundary would misrepresent the survey. The surveyor could face Board discipline for fraud or misleading conduct, civil liability to the buyer, lender, or adjoining owner who relies on the plat, and possible criminal fraud exposure. The title company's desire for a clear sale is not a defense. The surveyor's duty runs to accurate evidence and the public, not to the client's desired result. The 1975 survey and original stone would be part of the record, making the misrepresentation easy to detect later.