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I have compiled a few interesting facts about Fences from my research library...I hope they will interest others as much as they interest me.
I believe most of today's surveyors think of fences as wire or wooden fences, and are extremely cautious of them when defining an old property line.
In New England, wire fences were not in use prior to the mid 1800's!! The first US Patent for a wire fence was US Patent 10211 granted to William H. Meriweather of New Braunfels, Texas. YES, Texas!!
When I searched through my library I found that both as late as the 1785 Massachusetts laws and the 1821 Maine laws regarding fences and fence viewers both describe fences hence: "Be it further enacted, That all fences of four feet high, and in good repair, consisting of rails, timber, boards or stone walls, and also brooks, rivers, ponds, creeks, ditches and hedges, or other matter of things equivalent thereto, in the judgement of the Fence Viewers, within whose jurisdiction the same shall lie. shall be accounted legal and sufficient fences;..."
Isn't that amazing...wire fences weren't being mentioned in the earliest of our states until the mid 1800's!
However, fences, as described, were being described in these same laws as partition fences..in other words, the partition or property line between neighbors. In New England, in rural areas generally built stone walls (fences) along these lines, and in cities they built board fences.
Another interesting little tidbit regarding fences is the old layout of roads "subject to gates and bars". There was a very practical reason for this road layout law. When laying out a road through a farmer's property, the town would build a gate at both the entrance and exit of the road on a property, and the travelling public would have the responsibility of opening AND CLOSING the gate after they had passed through. This would serve two very practical purposes: 1st) It would prevent the Farmers livestock from getting out, and 2) It would save the farmer from having to build stone walls along the road! Just think, if the farmer had a property that was 1000 feet square, and the road went square through his property, the law would save him from building 2000 feet of stone wall !!
It is interesting that today many states, especially in the West, still have Fence and Fence Viewer laws.
One of the most satisfying, though, to me as a land surveyor, is a fence viewer law recently rewritten in the Town of Colebrook, New Hampshire in which the lawmakers specifically stated that the fence viewer could not make any boundary line decision...boundary line location is for licensed land surveyors. HURRAY for Colebrook (I had an office there for 12 years).
David C. Garcelon
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We always considered fences to be of some value as evidence in Pennsylvania. You never knew if they were built to be on the line or on one side of it depending on the relationships between adjoining owners. Ron Blauch
Did you see where Lucas decided to try and out-do you in this article on POB... i mean, can't they come up with their own topics?
It seems that we are all feeding on each others energy in this tiny geospatial microcosm of punditry and authority. At some point, the fence has to be torn down and the leadership engage in treaty, or the future of the profession may trend with the currents of the monopolies.
Unfortunately people like Lucas at POB have completely misunderstood the concept of possession as boundary evidence. Writing articles insisting that a fence (no matter what the character) is absolute proof of a legal boundary have become common over that last decade or so much to my professional embarrassment.
While I agree that fences can certainly be used as evidence to support a legal boundary, I will not go as far as to suggest that possession (like what a fence indicates) is proof of any legal boundary, original or otherwise.
I believe that understanding the origin and character of a fence are critical in many cases where possession is an issue. I also believe that the knowledge of the history of various types of fences is very valuable for a Land Surveyor in aiding the practice of this profession. How useful this knowledge and understanding is in supporting a boundary conclusion varies depending on where you practice.
It is a good topic, thanks for bringing it up.
Oh yes fencing - I recently was involved in a Colorado case where fencing became the primary means of property line location/acceptance by plaintiffs surveyor. This surveyor appeared to be a disciple of the Lucas teachings as Mr. Lucas' writings were endorsed by him as the authority for the case at hand. The ends of the fencing or the prolongation of the fencing was the means of placement for the section corners which were also the title lines. Of interest I contacted the two prior owners of the ranch land (circa 1985), and neither party had the land surveyed. They acquired the land with the existing fences and lived by those fences. Actual location through means of survey did not become of importance until land values forced the issue. Of signficance to this case is that the adjoining lands (in part) were held by both the Federal Government and the State of Colorado. Beleive this heavily influenced the outcome.
Yes - the surveyor is to not discount the fencing, but it is not the sole means of property line location.
Here description of fences .and the state of the fence (on our field notes ) is taken
seriously
as our avidence will be the desiding factor under precription Law ( if somebody
can prove with evidense he was enjoing the plot for 10 years cort may give
decree in his favour
Yes, local knowledge is extremely important, and gives great credibility to the opinions formed by the surveyor in that community.
It was not until I was preparing as an "expert witness" (1973) that it dawned on me that the type of wire fence I had found "dead center" through a 12" diameter balsam fir in Guildhall, Vermont could not have been more than 100 years old (thank goodness for "Barbs, Prongs, Points, Prickers, & Stickers" by Robert T. Clifton, which had come out just three years before, in 1970). That, along with several other things, including studying the Fence and Fence Viewer laws of Vermont, helped me to form an opinion that was upheld by the court...SOOO. as you said, Deward, local knowledge is very important. If you are mentored by a local surveyor (and attorneys, and farmers, and anyone else who has a good understanding of local history), consider yourself blessed.
I am grateful that you and Scott have contributed to the discussion, and hope others will also.
David C. Garcelon
Here is another thought regarding fences. The Fence and Fence Viewer Laws of the early Colony's all made it clear that a stone wall was a fence.. Today New England is well known for its stone walls. Stone walls were most commonly built by two neighbors along their common property line as the result of clearing their fields, as a result the two neighbors would not even think of claiming that a small gore on his neighbors side of the wall belonged to him.
The wall was accepted as the property line through several generations of owners, even though it was not on a straight line as the deed called for. Lets conjecture that the wall was built in 1675 and maintained as the boundary between the neighbors until 1900...they maintained and added to the wall as they maintained their properties. Then along came a surveyor in 1900, held a point in the center of the wall corners at the two ends of the wall, calculated a straight line between these two points, and informed his client that the wall between these corners was not the property line. His client was extremely unhappy with the surveyor because his purpose in having his property surveyed was simply because he was going to subdivide his property and knew he would need a perimeter survey prior to designing the subdvision. He perfectly willing to accept the stone wall as the line, as was his neighbor and all their predecessors in title.
Here are a few other things to consider:
1) The fact that the surveyor held the all corners does not mean they were the original lot corners.
2) None of the predecessor's in title had left any verbal or written testimony stating the stone wall was not the property line.
3) The first deed defining the lot corner said it was N45E for 1000 feet, more or less.
4. The line defined by the surveyor, defined the line as N42 - 37-23"E, 1015.72 feet.
And I would like to add my own final comment: Didn't Justice Cooley indicate that even though a surveyor served in a quasi-judicial role, their job was to solve controversy, not create it?
How do you think the surveyed should have behaved in this case?
David C. Garcelon
From Walter G. Robillard, Esq., PLS: all in quotation.
"Secret agreements by adjoining landowners, however binding between the parties, cannot affect those dealing with them in ignorance of the agreement."...
"Parties who by their acts, indicate that they have recognized a fence as the true and correct line between the respective tracts and have used the land up to the fence, claiming to own it to the fence for an extended period of time, be construed to have established the line by practical location.".
But to what end is a land surveyor able to draw a practical line between two tracts of land, which is not an expressly written agreement traceable by or in accord with public records?
Where does the surveying stop, and the attorning <<pun intended>> begin?
SDW
Walter's use of the word secret reminds me of the old saw that a secret is no longer a secret if shared by two or more people.
In spite of my cynicism, there does arise the question whether the secret is verbal or written...remember that the definition of secret does not exclude written documents signed, sealed, and "delivered" by the parties privy to the secret. How often have we seen pictures of documents by the government stamped "Top Secret". The difference between a verbal and written secret agreement is big. If one surveyor is fortunate enough to extract the written secret agreement from its owners and another surveyor is not, the surveyor who was able to find the unrecorded but genuine written secret agreement may very well provide the clincher for the courts to rule in his client's favor....as Walter said, then it depends on the "attorning".
As Walter indirectly pointed out, not finding evidence, whether physical or written, is what creates nightmares for a good surveyor.
For written evidence, it has also created lots of legal arguments about the Recording of Title or the Registration (Torrens system) of Title. Here in the United States the Recording of Title is by far the norm, but it does contribute to the fact that written, unrecorded documents can be introduced in a Petition to Quiet Title case. The Torrens System,, used in a few jurisdictions in the US, by requiring registration of title, pretty much eliminates that problem.
It is very interesting to note that none of the fence viewer laws said that any differences of opinions of the two parties about the location of a partition fence had to be solved by a surveyor. The laws were quite specific that questions regarding partition fences were to be solved by the officially appointed fence viewer. The legality of a fence viewers decision was part of the law, and because the fence viewer made the decision, (as a town official), the establishment of the fence as a partition was not secret. The Fence and Fence Viewer laws are what make "holding" a fence" such a conundrum for surveyors, especially in New England. Stones walls were built from the very beginning of the colonization of America, wire fences didn't begin until the mid 1800's, so that creates one of the conundrums. Don't discount wire fences entirely, because they have the possibility of being 160 years old in 2013!
Walter's writing and lectures have always been thought provoking and very instructive to all of us (surveyors..and attorneys)!
David C. Garcelon
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