Twenty-Six Years of a Fence in the Wrong Place
Yamhill County. Two 5-acre parcels created by a 1978 partition plat share a north-south common line. A woven-wire fence with a planted Douglas-fir windbreak runs 7.4 feet west of the plat line over the full 660-foot depth. The fence was built in 1998 by the man who then owned the west parcel; he told neighbors at the time he was "putting it on the line" and grazed to it until he sold in 2011. The present west owner has farmed to the fence since 2011 and replaced a gate in 2016. The east owner has paid the taxes assessed on the full platted acreage every year, including a 2019 assessment appeal that listed the plat acreage. No written boundary agreement exists, and nobody questioned the fence until the east parcel went under contract in 2024 and the buyer's lender required a survey. The east owner now asks you to monument the plat line; the west owner's attorney sends you a letter asserting the fence is the true boundary.
1. What theories could move the boundary to the fence, and how does the evidence measure up against each?
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Three theories, each with a different failure point here.
Adverse possession (ORS 12.010, ten years; and the added requirements of ORS 105.620 - verify current text). The ten-year period is easily met and the possession looks open, continuous, and exclusive. The problems are the statutory extras: an honest belief of ownership at filing, and payment of taxes assessed on the claimed property. The east owner has paid the taxes on the full platted acreage every year, including an appeal that relied on plat acreage - the claimant has never borne the tax burden on the 7.4-foot strip.
Boundary by agreement (ORS 105.615). This requires a genuine uncertainty or dispute that the parties resolved by agreement and then performed. In 1998 there was no dispute; the fence builder simply built in the wrong place, and no one agreed to anything.
Estoppel or acquiescence. Oregon courts generally require more than mere acquiescence; a neighbor standing by while another improves land can estop a later claim, but here the east owner's consistent tax payments undercut an estoppel argument.
Conclusion: the record line probably controls, but that is a legal determination, not yours.
2. How do you show the line on your survey, and what do you report to the east owner?
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Monument and show the plat line as the boundary of record. Show the fence as a separate found feature labeled "fence - not a boundary," with perpendicular offsets to the record line at each end and at the windbreak. Do not erase it, do not absorb it into the boundary, and do not call it a trespass - "fence not a boundary" is neutral and accurate.
Add a map note along these lines: "A claim of adverse possession or boundary by agreement has been asserted by the owner to the west regarding the fence line. This survey shows the boundary of record; the claim is unresolved and is a matter for the parties, their counsel, or a court."
In your report to the east owner, lay out what you found and why the fence sits where it does, note the tax-payment facts that bear on any adverse possession claim, and state clearly that you cannot adjudicate title. Point out that the pending sale and the lender's requirement make this the moment to resolve it, and that a recorded boundary line agreement or a quitclaim is far cheaper than litigation - but the decision and the instrument are for counsel.
3. What should you not do, and where does your role end?
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Do not give a legal opinion. Saying "the fence is not the boundary" or "the west owner has adverse possession" crosses from surveying into the unauthorized practice of law, and either statement can be quoted back at you in a deposition.
Do not refuse to survey because a dispute exists. A correctly prepared survey is exactly what the parties need to negotiate, and declining leaves them with nothing but argument. Do not take sides in correspondence, do not sign a letter drafted by either attorney as your own analysis, and do not record anything that purports to establish the boundary.
Do not allow the pending sale to rush you into an unsupported line. Do not accept a boundary line agreement for recording that was not prepared or reviewed by counsel, and do not accept a description of the fence line as the boundary unless the parties have actually agreed and counsel directs the preparation.
Your role ends at: locating and monumenting the record line, depicting the fence and any claimed line as evidence with offsets, noting the unresolved claim on the map, and providing factual findings. Recommend both owners retain counsel, and keep complete files - you may be subpoenaed.