The Fence That Wasn't the Line: A Lost Quarter Corner in Ward County
You are retracing the E 1/2 of the SW 1/4 of Section 14, T152N, R81W, 5th Principal Meridian, in Ward County, North Dakota. The 1883 GLO plat gives the south boundary of the SW 1/4 as 2,640.00 ft and the east boundary as 2,639.50 ft. The original quarter corner is not found. You recover a 1907 concrete monument at the northeast corner of the SW 1/4 that matches the GLO record, and a 1-inch iron pipe with a cap marked "L. JONES 1974" near the expected quarter-corner position. A 1974 record of survey on file with the county shows Jones set that pipe as the quarter corner. The pipe is 0.8 ft north of the GLO record bearing. The adjoining owner's fence is 14 ft east of the pipe and has been in place since at least 1988; the neighbor has farmed and mowed to it. The deed calls the east line "to the quarter corner, thence south." The client's sale closes in 10 days and demands that you "hold the fence" because it is the practical line. No written boundary agreement exists.
1. Rank the evidence and state which line you would show as the boundary of the E 1/2 of the SW 1/4. Explain how the 1974 pipe and the fence affect that decision.
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The controlling hierarchy is: original GLO monument, then an undisturbed perpetuation monument set by a licensed surveyor to mark the original corner, then a proportionate position computed from accepted corners, then occupation evidence such as a fence. The 1907 concrete monument is not the 1883 original, but it matches the GLO record and is accepted as evidence of the northeast corner of the SW 1/4. The quarter corner itself is lost.
The 1974 pipe is the key intermediate evidence. Because a recorded 1974 survey shows Jones set it as the quarter corner and there is no evidence it was disturbed, it is an undisturbed perpetuation monument. Its 0.8-ft offset from the GLO bearing is not automatically fatal: record bearings and distances yield to monuments when the original corner is lost. I would accept the pipe as the quarter corner unless field evidence shows it was set for another purpose, was disturbed, or conflicts with a better original monument.
The fence is occupation, not a boundary. It may support boundary by acquiescence, adverse possession, or estoppel, but those are legal determinations for a court or the parties, not the surveyor. I would show the record boundary through the accepted pipe, show the fence 14 ft east as an occupation line, and note the discrepancy. I would not move the boundary to the fence merely because it is old and practical.
2. What do you tell the client about the 10-day closing and the request to hold the fence? Identify what you will put on the survey and what you will not do.
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I would tell the client that the surveyor cannot "hold the fence" as the legal boundary unless the evidence supports it or the parties reach a written agreement. The survey can show the record boundary, the recovered monuments, the 1974 pipe, and the fence line, but it cannot convert occupation into title.
The closing can still proceed with full disclosure: the client's attorney can address title exceptions, an escrow holdback, a boundary line agreement, or a quitclaim from the neighbor. Rushing the survey to meet a closing is not a reason to omit a 14-ft discrepancy.
On the survey I would show and label: the accepted quarter corner and its ties, the record boundary line, the 1974 pipe and cap, the fence line, and the measured 14-ft offset. I would add a note that the fence is shown as occupation only and that boundary by acquiescence or adverse possession has not been determined.
I would not certify the fence as the boundary, omit the fence from the plat, backdate the survey, or seal a drawing that does not reflect the field evidence. If the client insists on concealment, I would decline the work and document the refusal.
3. If the quarter corner is truly lost, describe the method you would use to reestablish it and the documentation you would provide.
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I would first identify the nearest accepted corners at each end of the line on which the quarter corner lies, such as the section corners or other recovered quarter corners. I would measure between those accepted corners and compare the measured total with the GLO record total.
For a lost corner on a line between two accepted corners, I would use single proportionate measurement. The reestablished position is set at a distance from one accepted corner equal to the GLO record distance to the lost corner divided by the GLO record total line length, multiplied by the measured total line length. I would also evaluate the 1974 pipe: if it is a valid undisturbed perpetuation monument, it controls over the proportioned position. If it is not valid, I would set a new monument at the proportioned position.
The new monument would carry a cap with my license number, the corner name, and the date. I would tie it to at least two accepted corners, prepare a corner record or monument record, and include field notes, raw observations, the proportion computation, a sketch, and the survey plat. I would file or record the documentation as required by county and Board practice and would note the basis for accepting or rejecting the 1974 pipe.