The 1890 Stone Bound, the 1970 Plat, and the Occupied Fence
An owner asks you to retrace the east line of a 22-acre NH parcel described in an 1890 deed as running 'from a heap of stones at the north bank of Mill Brook, N 14° E 24 rods to a white oak stump standing in a stone wall.' The white oak stump is gone. You find a 1970 subdivision plat that shows the same east line as a straight line bearing N 12°30' E for 395.0 ft, tying to an iron pipe at the brook and a granite bound at the wall. Your 2024 total-station survey finds the granite bound 3.4 ft west of the plat position and an old wire fence 2.1 ft east of your computed deed line; the abutter has mowed to the fence for at least 18 years. The deed distance converts to 396.0 ft. The client wants the line 'put back where the plat shows it' because the lot will be marketed at 22.0 acres. You have not found the stump or the heap of stones.
1. Rank the evidence for locating the east line and explain how the missing white oak stump, the stone wall, the 1970 plat, and the granite bound should be weighed. State what line you would adopt for the survey and why.
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Ranking: (1) original 1890 calls, (2) later monuments or plats that may preserve original evidence, (3) occupation, (4) courses and distances. The call to the north bank of Mill Brook is a natural monument; the stone wall is a permanent artificial monument. The white oak stump was an original monument but is missing, so I would search for a stump hole, decayed wood, scars, bearing trees, fence intersections, and references in later deeds before relying on the 1970 plat. The 1970 granite bound is later evidence; if it was set by the 1970 surveyor, it is not an 1890 original and does not automatically control. The 3.4-ft offset between that bound and the plat position must be explained: disturbance, a different bound, or a plat error. The 24-rod deed distance is 396.0 ft, only 1.0 ft from the plat's 395.0 ft, so distance does not resolve the offset. I would adopt the line fixed by the best original evidence at the brook and wall, use the 1970 plat as a check, and show the granite bound and fence as evidence with dimensions and notes. I would not simply put the line where the plat shows it.
2. How should the 2.1-ft fence and 18 years of mowing be treated in the survey and on the plan? What may you conclude as a surveyor, and what must be left to a court?
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The fence is occupation evidence, not a deed monument. Mowing to the fence for 18 years is evidence of use, but it is not by itself 20 years of adverse possession under New Hampshire RSA 508:2; predecessors may be tacked, but that requires title research. Adverse possession also requires open, notorious, hostile, continuous, and exclusive possession, and mowing alone can be ambiguous. The fence may support a practical-location or acquiescence argument, but that is a legal conclusion. As surveyor, I would locate and dimension the fence, label it 'occupation line' or 'fence,' show its offset from the computed deed line, and report the discrepancy to the client and abutter. I would not label it the boundary or move the boundary to it. I would recommend that the client consult a title attorney before marketing the lot as 22.0 acres.
3. The client insists that the plan show 22.0 acres and the 1970 plat line. What do you do?
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I would explain that I can show the 1970 plat line as a separate exhibit labeled '1970 plat line,' but I cannot label it the boundary if the evidence does not support it. The area must be computed from the boundary I determine; I can show both 'area per survey' and 'area per 1970 plat' with notes explaining the difference. I would not certify a false acreage or conceal the granite-bound and fence discrepancy. The seal certifies my professional work, so I must either prepare a truthful plan or decline the assignment. If the client continues to demand a misleading plan, I would withdraw and document the refusal.