Real Estate Disputes: The Case of the Fence
Podcast episode by Art Macomber
A house built back in 1978 had a fence that followed the section line perfectly, but at a point, the fence meandered and took 3 or 4 acres from the property owner. During a suit, Art helped the property owners resolve the case by performing the basic research that had not been done upfront. This podcast highlights the importance of understanding boundary law.
The fence was built in ’78. So we followed the section line perfectly, up until it started to meander west a little bit. And pretty soon there were three or four acres that were taken from the guy with 50 acres and given to the people who were there. TimelyContract solutions helps buyers and sellers avoid these kinds of problems that are seen at the law office every week. When it comes to investing your hard earned money, better information means more money in your pocket.
One of the interesting things that we do is, because we specialize in real property law, easements, and boundaries, and all that kind of stuff, we get referrals from other attorneys, other attorneys that are handling a lawsuit. And then suddenly their client walks into our office and says, well, I’m not sure that they are handling this right or something’s going wrong. Then we analyze it. They can do that. They hire us and we take a look at it.
We had a real interesting boundary dispute that cropped up in one of our local counties here in North Idaho. And apparently, there was a north south fence line on one side. On the west side was 50 acres of property. And on the on the east side, or the the right side of the fence looking north, there was a house that had been there since 1978. They had actually built the fence, and the fence followed the section line very clearly. The section line is in the public land survey system. And so that followed the section line perfectly up until, kind of towards the top. And then it started to meander west a little bit. And pretty soon there were three or four acres that were taken from the guy with 50 acres and given to the people who were there when the first fence was built in ’78.
So, we got a client. One day he came in, him and his wife, and they had a problem with the way that their lawsuit was being handled. Apparently, some attorneys don’t do their research upfront. We do our research upfront, just so we don’t get our client in a position where they might, you know, get in trouble. Certainly, if the client’s theory of the case is wrong, we want to point that out to them early so they don’t spend all this money. But these folks were in for 20 or $30,000, they had had depositions, and it was turning into quite an expensive case. And so they came in, we took a look at it. I read the deposition transcripts, I looked at the complaint, I looked at what had gone on. And I realized that the basic research had not been done so. So we ordered title reports on both parcels, we saw what was at the recorder’s office and the public record and I did my analysis. Then I looked at what the information said from the case already about when the fence was put in and that type of thing.
I decided to clarify my research on boundary law in Idaho. In order to write the initial research letter, I looked up the Idaho cases and and there were some, I believe it was 39 cases in Idaho, that mentioned a doctrine called boundary by agreement. What is boundary by agreement? Boundary by agreement is where, number one, there’s an unknown boundary. Nobody really knows where it’s actually located on the ground, you can’t find pins, nobody really knows. And then the owners agree to a location for the boundary. And they can agree in one of two ways. They can agree explicitly in writing, and then actually sign their name, notarize it, and record it. That’s an express agreement. Or, by implication, they can agree through what’s called acquiescence, which is to say, that fence was there for so long, and you never did anything about it. You never complained about it, you never sued the guy, you never talked to your neighbor about, like hey, your fence is in the wrong spot. That just never happened. You just lived with it.
Well, in this case, the 50-acre parcel owned by my client was vacant land. There was no house on it so it wasn’t as if they were looking out the window. Well, let’s clear up first, boundary by agreement. There was no express agreement in the public records, the recorders office. So that was out. So it was going to turn into acquiescence. Out of 39 cases where they mentioned that agreement, in 19 of the 39 cases, the fence won. That is to say, that it goes all the way up to the Idaho State Supreme Court and the State Supreme Court says well, you acquiesced to the existence of this fence for years and did absolutely nothing. So we are going to imply a boundary by agreement and the fence wins. And that’s where the boundary is. That was 19 out of the 39 cases. Well, in another six cases, they mentioned those three words together boundary by agreement. But then the case went off in a different direction. And they went to adverse possession, or they went to some other legal doctrine to resolve the case. And in 14 of the cases, the fence lost.
I’m reading all these cases, and I’m going, okay, I gotta figure this out. Turns out the fence loses if the intent behind the original fence builder was to make it a barrier for animals. Okay, well, that makes sense. So it wasn’t as if I agreed with my neighbor that the fence is the boundary, somebody just put up a fence because they had animals, they wanted to either keep in their animals or keep out the neighbor’s animals. But, in this case, the fence wasn’t built as a boundary. So I began looking at the facts of this case, Well, turns out the neighbor who had lived there since the late ’70s, had a couple horses, a couple of cattle, a couple of three or four sheep, you know, chickens. I mean, they did a lot of animal husbandry, and this was in a rural area. And this is kind of exciting for me, because I’m a city boy, I mean, I grew up outside New York City, and we had a dog, but that was it. I mean, I don’t know fences. You know, I know what they look like but if he asked me about the difference between a Rhone and Appaloosa or an Arabian, I’d say, I don’t know. Because I don’t.
And so what I realized was, is that we needed to dig down into the facts and find out why this fence was built. And so we we got the opposing party in a deposition. I decided to depose the wife instead of the husband. And that’s because in the documents I had read, it looked like the husband was the passive one. And the wife was the firecracker. In other words, she knows just what’s what, and is going to tell you why. And if you disagree, then oh, buddy, you’re in big trouble. And the husband is just kind of sitting there going, can we go home now? So I realized that I need to depose the wife because she’s the one with the better information. She’s the firecracker in the case, so we get her in a deposition. And I, you know, I’m ignorant about animal husbandry. So I started asking her about that. And I said, why did you build the fence? , When I walked the fence line with my client, I noticed you had a number of fences, and they had cross fencing this way, in that way. And I said, why do you fence, you know, across this way, and then have a fence going the other way? And what is that? And she says, oh, that’s cross fencing. And I said, why do you have cross fencing? And so I started asking her all about the fences inside the property. And she told me that she had fences for her horses and the other animals, not the chickens, of course, they go where they want, but she had had two cattle all the time since the late ’70s. As one got older, and they slaughtered it and ate it, they would get another one. And, and it was an interesting way to name their cattle. And I won’t tell you that because, you know, it’s in the public record. They named their first two cattle A and B, and their next cattle was named C and D then E. And they were up to like G H, or something like that by this time. And they raised these cattle from when they were babies. And this woman was all too happy to take this city boy attorney to the woodshed and explained to him how and about how a farm worked. And so she did. And I let her. She told me everything. Finally, we got to the fencing issue that was on or near the boundary line. And I said, well, what about this fence? She goes, well, that keeps our animals in. I’m like, well, what are you talking about? And she she said, well, we don’t want the horses running around the neighborhood. It’s no good. And then she told me this great story about how the former owner of my client’s parcel actually used to run cattle up in there. And that’s the, that’s the nomenclature. You know, we used to run cattle up in there. And if they grow hay, they used to grow hay up in there. Even if it’s down, they grew up in there. And that’s just kind of the the lingo right? And she said, you know, even the cowboys next door with their cattle would come over and help us fix the fence.
I said, well, why would they do that? And she goes well, so the cattle wouldn’t get out. And she kind of looked at me like, of course. Meanwhile, opposing counsel is sitting over there who had not done a lick of research and he’s looking at me like, why is Art talking about the animals? I mean, he’s talking about the fences, but why is he talking about the animals? Well, he didn’t do his research, so he didn’t know what I was talking about. So, his client was very happy to tell me the cowboys next door helped her, were friendly, and did they ever dispute the location of the fence? No, they didn’t. Everybody just used it. Their animals stayed out of my yard, my animals stayed out of their yard and on it went, and she was really quite smart about animal husbandry. I learned a lot.
And then I immediately went back to the office and, and said to my clients, well, you know, that fence was built as a barrier to animals. So it’s not a boundary, it never was a boundary, it can’t be construed as a boundary. And here’s the 14 cases that say that it’s not a boundary because it was a barrier. And then we went into mediation. And the mediation was done by an old-time attorney up here, who’s since passed away. He had done over 4000 mediations and was an old land use guy. In mediation, he went to opposing counsel and said, look, you know, Art really looked at this research in Idaho. You’re gonna lose so you better settle. So they did. And my client got the fence. The requirements of the mediation were that the fence go back to where it was on the deeds, that is to say, the fence is supposed to follow the section line. That was the dividing line between the 50 acres and the neighbor. And it wasn’t supposed to wander off to the west like it did, so that it would take, you know, two or three or four acres of my client’s land away.
So, the fact is that when neighbors are in a dispute, and the attorneys get involved, the attorneys need to be very cognizant of the fact that they are going to leave and the people they’re left will still be neighbors. So you really want to bring peace to the neighborhood. And you want to figure out a way so that we can resolve disputes without making a bad neighborhood out of it, without messing up the social balance, and it’s just not functional, we have to make peace somehow. So we gave him a year, you know, this was late fall 2016, we gave him until September, 2017 to move the fence. They did it, they moved the fence. When they moved the fence, the berm that was holding back their agricultural pond, extended onto my client’s property. And my client gave him an easement for the berm of the pond for as long as they needed the pond in that one location. And we structured it in a way that really solved everything. But the case was very, very interesting, because there is law to resolve the dispute, but you have to look it up. And then you have to be able to explain it to people. If you can’t explain a lot of people in say, like 10th grade English or something around then how are We The People supposed to run the Republic? I gotta tell you, I have no idea.
Twas a very interesting case. It was very typical for a boundary dispute. Man, it’s worse than a divorce or something. And everybody wants to talk about the rocking chair on the porch, and the barking dog on the weekends. And oh, there’s tires piled over here. And they put rocks on my side of the line. And you know that the side issues are legion, and you just have to disregard them and tell your clients to disregard them. Put those off to the side, let’s concentrate on what’s at issue here, the actual fence the boundary itself, let’s just stick there. And then you have a chance at bringing peace to a neighborhood. And that’s what I really enjoy doing. That’s a lot of the fun about land law. I mean, I frankly have never done any other kind of law because this is really where the fun is at. I mean, some people say, oh, real estate, that’s really difficult. You know, it’s not. But you have to do the research. And you have to pay attention to your client. You have to have your feelers out for what’s going on on the ground because it’s where it’s on the ground where things get healed, where rifts are closed, and where neighbors can actually think about becoming neighbors again. That’s what we do.
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