We were recently asked to provide advice to a Trustee of a farm property where a common boundary with another farm was being redefined. The boundary as it was to be defined was quite different to a diagram attached to the original certificate of title, placing it inside the farm of the trustee and following an old existing fence line.
The boundary shown on the diagram with the certificate of title ran across a steep gully. Physically however, the boundary was currently being defined as a fence line, which ran around the edge of the gully. We think that 30 years ago, a verbal agreement between the then landowners agreed that an easier option was to run it around the edge – a fence of convenience, rather than the boundary line across the gully. The diagram attached to the original certificate of title showed a straight line with a dimension attached, no bearing or angles were recorded to show what the direction of the line was. Nonetheless the diagram being the only record of this boundary showed a straight line. The new survey showed the boundary following the long-standing fence line, which followed the top of a very challenging steep gully. The neighbour’s surveyor felt that this was the best evidence for defining a boundary in these circumstances.
The boundary as the new survey was to define it would mean the Trustee’s landowner would lose around four acres of land from their property, if they had agreed to this being the common boundary between the two properties. This discussion brings up a very important principle in surveying known as the hierarchy of evidence when defining legal boundaries according to land law. The courts in New Zealand have through precedents set a relative importance of pegs, plans and occupations. The order generally is:
1. Natural Boundaries
2. Monumented lines (original marks pegs etc)
3. Old occupations, long undisputed
4. Abuttals (what the neighbour is entitled to)
5. Mathematical evidence of position along with deeds, grants and titles
To apply this to the above situation would place the highest importance on pegs or original marks that may be found at either end of the boundary in question if indeed it was pegged at all. The original document that created the boundary was a Crown Grant, which was used as a way of defining the new boundary without the expense of surveying it in the field, so in this case there may be no original marks to find. Continuing down the list takes us to old occupations, long and undisputed.
The new boundary was partly along the alignment of some old posts whose age was consistent with the original Crown Grant. Some of the new boundary followed a fence line that was about 30 years old. It could be argued that this portion of the fence line was not of an age that should be included in the assessment of the definition for this boundary. In considering long standing occupation, one of the guiding principles is that there is no great difference in measurement. In other words, if there are any areas or distances recorded in relation to the boundary the long standing occupation should not deviate from this to a significant extent. In a rural scene this could be a few metres for the boundary location.
As this particular situation had a steep gully that could only be effectively fenced at the top of it then the location of the fence was probably a fence of convenience being the practical location to place it. The interesting question here is, does the newer fence have any less relevance as a position for the boundary because it was a fence of convenience and possibly relatively distant from the straight line boundary shown on the title diagram? When the fence was placed, was the intention for it to be a boundary fence or just a fence placed in the most convenient position possible?
In this case the surveyor has done the correct thing by contacting the adjoining owner and requesting their agreement. Another alternative in deciding the location of this boundary could have been to have retained a straight line boundary but make this straight line boundary a line of best fit based upon the location of the very old posts in the area, possibly discarding the more recent posts of 30 years although if these posts were replacements of posts of the older age then they too could be included in the analysis. It is also a reminder for any landowner that professional advice needs to be sought where consent to agree to the resurvey of a very old boundary is being requested by an adjoining owner.