This time around we have a question from a Georgia reader about the doctrine of acquiescence and applying it to an existing fence that does not match the deeded measurements.
Question: In the case of a line of acquiescence with an existing fence that has a history, would I be out of place to include a note that: 1) identified the fence line, as it exists, as the boundary line despite measurements to the contrary; and 2) caution whoever may rely on my map in the future to leave the fence in place for future generations to honor as the boundary?
The determination of any property boundary is a two-part question of law and fact. The first question to be asked and answered is “what” is the property? That’s the legal question. Once it is determined what the property is, then the question becomes “where” is it located? That’s the factual question. The boundary location doctrines, what the ALTA/NSPS Standards refer to as the “appropriate boundary law principles,” work to answer the factual question of location without affecting the legal question of title.
The boundary location doctrines, like boundary by acquiescence, come into play when there is confusion, conflict, ambiguity, or doubt as to location of a boundary. It is also an evidentiary tool. The long-time acquiescence into a fence by the parties is evidence, and in some cases may be the best available evidence, as to the true location of the property boundary line.
Another way of saying “confusion, conflict, ambiguity, or doubt” is uncertainty. The retracement surveyor needs to understand there are two types of uncertainty. There is subjective uncertainty, the landowners just don’t know where the boundary is located. That is not to say the true location cannot be found by an objective party with the skills to do so, like a surveyor.
The other type of uncertainty is objective uncertainty. When an objective surveyor, independent third-party with no skin in the game, finds that there is uncertainty as to location, this is objective uncertainty. In other words, after finding and gathering the best available evidence, evaluating that evidence, and concluding there is uncertainty as to location, that’s when a fence may become something more than just a fence.
My advice to retracing surveyors is, you need more than just subjective uncertainty to leave the deed in favor of occupation. You need subjective uncertainty to the point where intent can no longer be found within the four corners of the deed. If you can find the true boundary line and there is little or no doubt in your objective opinion, a fence not on the true line is just a fence. The fence may have been purposefully built off the line for some unknown reason. Before I would hold the fence, I would want to know what both parties think about the fence (parol evidence). They may just provide you the answer you are looking for.
The reader asked his question after reading the September 2022 edition of my newsletter, “What Went Wrong V.” In 1859, the GLO subdivided the Township. In 1891, a second surveyor laid out some lots for a subdivision off the southwest corner of the section. In 1920, a third surveyor retraced some of those lots and improvements were made, including a fence on a particular boundary. In 1946, a fourth surveyor came along, ostensibly surveying the same lot line that was fenced in 1920, instead running it through an old house. That is a tell-tale sign you are probably considering the wrong or faulty evidence. Parol evidence was available, unfortunately for the landowners and the ensuing lawsuit, this last surveyor was neither objective nor interested in any other evidence save measurements.
In that case there were at least two possibilities (i.e., uncertainty) for the location of the boundary line. My suspicion is that the 1946 surveyor was working off a section corner that had been moved in the ensuring years by misguided surveying activity. By and large, surveyors are the ones moving “unchangeable” section corners, but that’s a sectionalized surveying problem for another day. If my choices are running a line through an old house or along the accepted fence line, all things being equal, I’m going down the fence line. And explaining your survey with copious notes in such a situation is well advised. Thank you, good reader, for your question.