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Chris Bouffard
(@chris-bouffard)
200+ posts Member

@skeeter1996 I agree with you 100% on this.  Dirving cattle or even tractors to work the land are an entirely different scenario though.  Admittedly, my example of hunting access is too, regardless, any sustainable claim would have to be adjudicated.

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Posted : October 22, 2021 12:56 pm
Skeeter1996
(@skeeter1996)
1,000+ posts Member

@chris-bouffard That's the textbook answer, but I have seen where a Judge has granted a Prescriptive Easement, and Adverse Possession  by Acquiescence because the Defendants' lawyer was a better Liar.

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Posted : October 22, 2021 12:58 pm
Chris Bouffard
(@chris-bouffard)
200+ posts Member

@skeeter1996 A Survey crew tresspassing to survey a land lock parcel would not hold up to those standards unless your state has a right of entry statute.  NJ does, but certain legal requirements have to be fulfilled through proper notification to make entry of adjacent property legal. 

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Posted : October 22, 2021 1:02 pm

dmyhill
(@dmyhill)
1,000+ posts Supporter
Posted by: @chris-bouffard
Altering title and rights can only be done by voluntary or judicial means

This is simply not the case. Adverse possession is the prime example. The court is not giving anything away (they have no right to). Unless by title we mean a scrap of paper? 

The court cannot grant or alter rights or title. That is not what they are doing at all, at least not in these sorts of cases. I have a lot of learning to do, but every court case I have read, the judges have been careful to make this obvious.

The only reason that this matters to me is that this is an important understanding for adjoining owners. The adverse possessor is not stealing something by the court action, the "theft" happened long ago. The court is only determining facts that are used to apply the law, and then handing down a decision based on the fact and the law.

This is also why, if you fight an adverse possession claim in WA and lose, you get to pay the court costs, which has greatly reduced adverse possession cases in my experience. They always come to an agreement.

 

 

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Posted : October 22, 2021 1:03 pm
Lurker
(@lurker)
200+ posts Member

@dmyhill I'm curious why we need to make the distinction between judicial recognition of the easement and the creation of the easement. When would this distinction become relevant in a practical matter?

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Posted : October 22, 2021 2:51 pm
Dave Karoly
(@dave-karoly)
10,000+ posts Member

@lurker because it is not necessary to go to Court unless somebody challenges your title.

The Court has no jurisdiction until 2 real parties with standing to sue join in litigation. Meanwhile the possessor has title with or without a Court.

Most AP is held under color of title therefore the adverse possessor has a Deed with some defect or a prior defective deed in the chain of title.

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Posted : October 22, 2021 3:07 pm

Dave Karoly
(@dave-karoly)
10,000+ posts Member

All of these rules we are familiar with were developed by Appellate Courts to be an objective means to resolve disputes. If the 2 parties can agree then there is no need for the Court to resolve a dispute.

For example, say A delivers a Deed to B with a description calling for monuments. If there is a blunder in 2 of the monuments and A & B can’t agree to a resolution they can submit it to the Court which has jurisdiction. Generally that Court has to hold the monuments unless that would create an absurd result. It is a rule of construction, not property and the Court is attempting to objectively determine the intentions of the parties. Traditionally it was assumed physical marks were more likely to show their intentions than measurements which were hard to repeat accurately.

I don’t think there would be anything stopping A & B from signing an agreement to reset the blundered monuments. The Court can’t do it, the retracing surveyor can’t do it but they can do it.

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Posted : October 22, 2021 3:23 pm
Skeeter1996
(@skeeter1996)
1,000+ posts Member

@dave-karoly Prescriptive Easements, Adverse Possession, and Acquiescence are legal terms. Of course if there's no argument between Landowners they wouldn't have to be exercised.

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Posted : October 22, 2021 3:41 pm
Mike Marks
(@mike-marks)
1,000+ posts Member

Back to the original question,  I'm surprised to learn there are some States where land surveyors are not privileged to innocuously trespass after serving notice to perform their tasks.  All my work has been in right of entry States and I rarely encountered owners who refused entry.  In those cases I withdrew immediately if presented with deadly force (duh!), but if the owner was conversant I'd explain things and if he/she still said no I'd return with a County Sheriff's protection another day. 

The downside was the County Sheriff's fee for services was costly so I'd alert my client of the billable added cost, either they'd say no problem, tell me they were on neighborly terms with the landowner and straighten it out amicably, or blow up and demand I solve my access problem(s) at my cost.  Um, if door #3 I'd politely withdraw from the survey.

When surveying as an employee or under contract with a Federal/State/County/City they'd provide LEO support gratis and there was never a problem.

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Posted : October 22, 2021 3:50 pm

BStrand
(@bstrand)
1,000+ posts Member

@mike-marks

The downside was the County Sheriff's fee for services was costly...

What the...?  Since when do cops get to charge extra for doing the job they were hired to do?

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Posted : October 22, 2021 6:46 pm
holy cow
(@holy-cow)
10,000+ posts Member

@bstrand 

Never heard of such a thing happening.  That is ridiculous.

In my case, the Sheriff is a long time friend and was a classmate of my oldest daughter.  His mother, now deceased, was one class ahead of me and his father was two classes ahead of me.  Among other things, when he has time, he has baled hay for me probably a dozen different years.  I would love to hire his son to work for me fulltime, but, he is so talented he can make more money elsewhere.

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Posted : October 22, 2021 8:19 pm
Skeeter1996
(@skeeter1996)
1,000+ posts Member

@holy-cow The times the Sheriff has been called on me, I just tell the Deputies, "I know whose property I'm on you better know where you're at. A cloud of dust and Hiho Silver they're gone.

I've ATVed up some hellish terrain to stay on my clients property. I'm not in a particularly friendly frame of mind when they come upon me.👺

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Posted : October 22, 2021 10:52 pm

Mike Marks
(@mike-marks)
1,000+ posts Member
Posted by: @bstrand

@mike-marks

The downside was the County Sheriff's fee for services was costly...

What the...?  Since when do cops get to charge extra for doing the job they were hired to do?

You have not heard of the Off-Duty Sheriff's Program?  It's a way for them to make a little spending money on the side.   I pulled up the costs for a Deputy around here, $86 per hour including squad car, 4 hour minimum, drive time and any resulting paperwork time is chargeable.  Short notice details  are defined as any job scheduled with less than 2-days (48 hours) notice. A $100 per deputy assigned late notice fee will be charged for a late notice job.

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Posted : October 23, 2021 10:01 am
Dave Karoly
(@dave-karoly)
10,000+ posts Member

@mike-marks the wealthy neighborhood here hires extra sheriff’s patrols instead of a private security firm.

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Posted : October 23, 2021 10:05 am
holy cow
(@holy-cow)
10,000+ posts Member

What???  That's fine for a profit-making concert requiring a dozen cops for crowd control and security.  A surveyor's request is strictly normal on-duty work.

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Posted : October 23, 2021 10:10 am

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