The Missing Rear Pin and the Forty-Year Fence
A 1962 recorded plat of Oak Ridge Subdivision shows Lot 14 as 100.00 ft wide by 210.00 ft deep, all lines at right angles to Elm Street. The current owner's deed repeats the plat: "beginning at an iron pin on the southerly line of Elm Street; thence S 12°30' E 210.00 ft to an iron pin; thence S 78°15' W 100.00 ft..." You recover the two iron pins on Elm Street (original, undisturbed, accepted by both owners) and the pin at the southeast rear corner. The rear northwest pin is lost. The street-line pins measure 100.18 ft apart. A woven-wire fence, reportedly built about 1985 by the prior owner of Lot 15, runs 4.2 ft west of the position your proportional math gives for the west lot line. Lot 15's owner has mowed and grazed to that fence since 1986 and now claims the strip.
1. Which evidence controls the location of Lot 14's west line, and how do you dispose of the 0.18 ft excess on Elm Street?
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Monuments control over courses and distances. The two Elm Street pins and the southeast rear pin are original, undisturbed, and mutually acceptable; they fix the lot's position and orientation. The record bearing and distance are secondary evidence that must yield to the monuments.
The 0.18 ft excess is distributed, not held at one corner. The plat is internally consistent (rectangular lot, stated angles), so you do not simply hold record distance from the southeast pin and let the northwest corner float. Instead:
- Establish the west line's bearing from the plat geometry and the found street pins.
- Proportion the excess across the lines lying between found monuments, or, more defensibly for a city lot, hold the plat's angles and distribute the 0.18 ft so that the rear line parallels Elm Street and the side lines remain perpendicular to it.
Perspective on magnitude. 0.18 ft in 100.00 ft is 1:556 - well inside what a 1962 transit-and-tape survey could be expected to reproduce. There is no basis to prefer record distance over an original monument at that scale.
The 4.2 ft fence is a different animal. It is not a called-for monument of the 1962 survey, so it carries no weight as original evidence of the boundary. The recovered position of the rear pin should be set from the plat geometry and monument control, not from the fence.
2. The Lot 15 owner asserts the fence is the true line because it has been there since 1985. What doctrines is he invoking, and what facts must you develop before you can advise your client?
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He is really making three alternative claims, each with its own elements:
- Adverse possession. In North Carolina the period is 20 years, and the possession must be actual, open and notorious, hostile (or under a claim of right), exclusive, and continuous. Possession under color of title extends to the deed boundaries; possession without color extends only to the area actually enclosed or used. Here his deed calls to the plat line, not the fence, so his color of title does not include the 4.2-ft strip - his claim to the strip rests on actual possession of the fenced, mowed, grazed area.
- Boundary by parol agreement. Requires an uncertain or disputed line, an agreement by the adjoining owners to fix it, and possession following the agreement. A fence built unilaterally without agreement does not qualify.
- Acquiescence / practical location / estoppel. Requires mutual recognition of the fence as the line over a long period and reliance by the claimant.
Facts to develop: who built the fence and why (permission? convenience? belief as to the line?); whether any predecessor claimed to the fence rather than merely using it; whether the strip has been improved, fenced on all sides, or taxed as part of Lot 15; whether Lot 14's owners ever objected or gave permission; and any written agreement or survey of record. Report the facts and the occupation line; the legal conclusion belongs to the client's attorney.
3. Your client says: "Just set the rear pin at the fence and label it as the boundary on the plat - everybody's been treating it that way for 40 years." How do you respond, and what do you actually show?
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You decline, and you explain why in writing if necessary.
- A surveyor locates and reports evidence; a surveyor does not convey title. Setting a corner where the record and the physical evidence do not place it, and labeling it the boundary, would convert an opinion into an apparent conveyance and could cloud or transfer 4.2 ft of land by plat.
- Show what you found. The plat should depict the record/plat line as computed from the original monuments, and separately show the line of occupation by a distinctive line type with a clear note such as "line of occupation - not a boundary of record," together with the fence's location and the monuments recovered and set.
- Point him to the correct remedies. A boundary line agreement (recorded), a quitclaim from the adjoining owner, or a judicial determination of the boundary. Once a recorded instrument or order exists, the plat can reference it.
- Document the decision. Note in the file the field evidence, the client's request, and the professional basis for the depiction. This protects both the client and you if the adjoiner later sues.