The Cedar Fence That Isn't the Line
Lots 12 and 13 of the Aldergrove Tract (1925 map) each front 60.0 feet on Alder Street. The subdivider set 3/4-inch iron pipes at every lot corner; the pipes at the street line are found and agree with the map, but the common rear corner pipe between Lots 12 and 13 is gone. A cedar fence built around 1988 runs from Alder Street to the rear lot line about 3.2 feet inside Lot 13. Both owners have mowed, planted, irrigated and maintained to that fence for 35 years, and no one has ever disputed it. Lot 13 just sold, and the new owner hires you. He wants the fence treated as the boundary so his side yard is larger, and asks you to 'set the corner at the fence.'
1. Identify the legal theories under which the fence could be the boundary, and the facts in this record that support or defeat each. How do you evaluate them before setting anything?
Read the worked answer
Theories to test:
- Boundary by agreement (parol agreement + monuments). Requires an uncertainty or dispute about the line, an agreement to fix it, and performance (usually building the fence/monument). Here the record line is knowable - the street pipes are found and the map is unambiguous - and there is no evidence the parties ever discussed a dispute. Weak on this record, though an oral agreement may still be provable.
- Acquiescence / recognition and acquiescence. Requires that the adjoining owners treated the fence as the line for the statutory period, with knowledge of the true line (or such notoriety that knowledge is presumed). Long, open, mutual use to a fixed marker for 35 years is the strongest theory here. Acquiescence does not require hostility or tax payment in most jurisdictions, but the statutory period and the knowledge element are locally specific and must be verified.
- Adverse possession. Requires actual, open and notorious, exclusive, hostile and continuous possession for the statutory period (plus, in some states, payment of taxes). Mowing/planting a 3.2-foot strip is arguably sufficient actual possession, but the hostility element may fail if the use was by mistake and permissive.
- Estoppel / practical location where one side improved in reliance.
Surveyor's limit: these are title questions for a court or a written agreement. Evaluate the facts, document them (dates, who built what, when, witnesses), and report them - do not decide them unilaterally in the field.
2. Where do you set the corner monuments in your survey, and how do you depict the fence on the map?
Read the worked answer
Set the corners on the record/retraced position.
- Hold the found street pipes as the controlling evidence of the original survey.
- Reinstate the missing rear corner by the record geometry from the found corners and the tract map (bearing and distance from two independent, reliable controlling corners where possible). Set a new monument only after documenting that the original is truly lost, not merely unfound - search for the pipe, a depression, and any remnant.
- Monument one position: the record corner. Do not set a monument at the fence on the strength of a unilateral judgment that the fence has become the boundary.
Depict the fence as evidence, not as title:
- Show the fence as a line of occupation/improvement, dimensioned from the record line (3.2 ft), with a note such as "fence, not a record monument."
- Note the distance from the record corner to the record rear corner and the fence crossing.
- Do not label the fence "property line" and do not label the strip as belonging to either owner. A map that silently adopts one party's claim is a misrepresentation.
- Note that the fence location and the longevity of use are relevant to a claim that must be resolved by agreement, deed, or court.
3. The buyer's lender wants a map 'certifying 63.2 feet of clear side yard.' What is your response, and what do you tell the buyer?
Read the worked answer
Refuse to certify the larger width. A 63.2-foot certification would assert that record title extends to the fence, which your evidence does not establish. The record title frontage/width is the record line; the extra 3.2 feet is an unadjudicated claim.
What you can produce: a map or report that shows the record boundary, the fence and its offset, and a clear statement that the strip between the record line and the fence is the subject of an unadjudicated claim. Lenders and title insurers routinely accept a disclosed-claim note; they do not accept a false certification.
Advise the buyer in writing:
- A survey is not a title opinion, and it cannot create or transfer rights.
- Options are a quitclaim deed from the Lot 12 owner, a lot line adjustment, a written boundary agreement, or a quiet title action.
- Do not tell the client which theory will win or draft the deed language for the parties - refer them to counsel.
Document the request and your refusal in the project file.