Unmistakable Marks: Perception of the Land
Editor’s Note: This column includes excerpts from POB columnist Kristopher Kline’s new book, “How to Fix a Boundary Line” (312 pages, hardcover). The text that appears in italics represents quotes from the particular case that Kline is referencing. It runs here as it appears in the book. This article includes introductions or excerpts from several of the major sections. The book format includes cites within the relevant text.
The early colonists of this country brought hither with them the various modes of conveying real estate, at that time in use in England. This is apparent from the language of numerous ancient statutes; some of which distinctly recognized feoffment at common law as a valid conveyance, while others have mentioned bargain and sale as a method resorted to for transferring property. American Law Register, January 1858.
The preceding quotation highlights a fundamental problem that plays an important part in many title disputes. Despite the development of our legal system over a period of several centuries, many landowners still tend to ignore the specifics of a deed in favor of what they see. This perception is more real and significant in the minds of most landowners than the abstract technicalities found in the deed.
While land use professionals are accustomed to considering titles based on the technicalities of written descriptions and surveys, typical property owners look at land in a different way. Even in present day, the layman’s perspective is similar to the concept embodied in the ancient concept of “livery of seisin” and tends to ignore specific details included as part of a deed or survey.
Among legal professionals, it is easy to presume that the enactment of the statute of frauds in 1677 and the subsequent development of the rules of construction eliminated the significance of livery of seisin. However, this ancient principle still influences many legal concepts related to title transfer, including adverse possession, part performance and estoppel.
The statute of frauds was enacted concurrently with the colonization of the eastern seaboard colonies. As a result, a smorgasbord of title transfer mechanisms may be observed in early records from colonial-era British colonies.
Identification by the Senses
Land use professionals generally are familiar with the phrase “retrace the footsteps of the original surveyor.” There is good reason for the enduring nature of this guiding principle; actual monuments and marks placed by the original surveyor usually are considered the most reliable evidence of actual intent. Underlying this important concept is another that has received little attention.
In Martin v. Green: 117 Me. 138; 102 A. 977 (1918), the Maine court includes the original Latin phrasing and a translation: “Presentia corporis tollit errorem nominis.” Identification by the senses overrides description. The specific language from this ruling only appears in a handful of other decisions, but this principle can affect the application of rules of construction, adverse possession and practical location. This principle appears to be a holdover from the ancient concept of “livery of seisin.”
Land use professionals seldom consider that their own detailed understanding of surveying principles and property rights stands in stark contrast to the layman’s perspective generally held by their clients. The technical approach applied by professionals is predicated on a detailed understanding of many subjects including rules of retracement, measurement, and an understanding of unwritten rights. These technicalities often are lost on the actual parties to the transaction. The grantor and grantee see a tract of land and a piece of paper.
The ultimate challenge before the courts when interpreting a discrepancy in any document is to establish what meeting of minds occurred between the contracting individuals. Given the parties’ lack of technical knowledge in most situations, the perceptions of the grantor and grantee may play a major role in determining intent.
Part Performance of Oral Contracts
Legal scholars have demonstrated that the concept of part performance is as old as the statute of frauds itself. Yale Law Journal, Vol. 29, No. 4 (Feb., 1920) observes that receiving or taking possession of land with the apparent acquiescence of the previous owner can circumvent the requirement for a writing mandated by the statute of frauds. Several law review articles cite an early part performance decision from the English court. Butcher v. Stapely: 1 Vern. 363, 23 Eng. Rep. R. 524 (1685) was recorded within 10 years of the original enactment of the statute of frauds.
In its original form, part performance resembles “livery of seisin,” the process by which a grantor and grantee transferred land prior to the enactment of the original statute of frauds in England. An article in Virginia Law Review, Vol. 35, No. 4 (May, 1949) describes the process as follows: The so-called English theory requires acts of part performance to be so referable to the oral agreements as to give rise to an inference of some contract relating to the land, the notion being that the acts supply the evidence of the contract. Note that this definition makes no reference to any requirement for fraud or deception. However, many American courts have expanded on the original English version.
An article in University of Pennsylvania Law Review and American Law Register, Vol. 78, No. 1(Nov., 1929) notes the confusion that can arise when considering the origins of the concept of part performance. Depending on specific circumstances, either of two different justifications could be applied. Possession of the land subsequent to a parol agreement might be considered an extension of the concept of livery of seisin. These cases were based primarily on possession of the land itself. The second group of rulings focused primarily on fraudulent behavior by one of the disputing parties. In this article, Roy Moreland applies the monikers “possession case” and “fraud case” to differentiate the two.
These dueling theories can make it difficult to study modern decisions, particularly when it becomes apparent that the judges are unaware of the distinction between the two. In many current decisions, the justification for the concept of part performance has been blended into a combination of estoppel and evidentiary policies. This aspect of the law is admirably described in The Statute of Frauds in the Light of the Functions and Dysfunctions of Form: Joseph M. Perillo: Fordham Law Review Vol. 43, Issue 1 (1974).
Acquiescence: State Variations
Many of the examples that follow can be divided loosely into two categories. One group of states requires initial doubt or dispute over the location of the record boundary line. This group will be labeled “Type A.”
The more robust variation of acquiescence often requires land use for the period of time mandated by the statute of limitations for real property. It can be applied even where the original location of the record boundary is evident. This variant will be designated “Type B.”
The division of states into these two groups is based on the current applications of the doctrine rather than on early formative rulings. Early rulings in some jurisdictions may express different standards and are included to demonstrate the development of the doctrine.
Several states defy easy categorization or apply several definitions, depending on circumstances. The discussion of Alaska common law that follows provides an excellent example of the confusion that is all too common in the courts when dealing with this principle.
Due to its relatively recent entry into the union, Alaska has a more limited common law history than most states. Acquiescence doctrine is definitely a work in progress in this jurisdiction. The first major attempt at applying acquiescence in this state did not occur until 2014. It is not clear if this case will set precedent because there does not appear to be another analogous case in Alaska.
Lee v. Konrad: Supreme Court Nos. S-14503/14524 (2014) draws on numerous sources in an attempt to codify the requirements for acquiescence. Based on the sources cited and the final decision of the court, it appears that Judge Fabe attempted to create a unified definition by studying acquiescence doctrine nationwide. The ultimate result is a loose amalgamation of principles from many jurisdictions.
This is a case of first impression for Alaska. This court relies heavily on Michigan rulings drafted by Justice Thomas Cooley: Boundary by acquiescence is an equitable gap-filling doctrine that may be available where estoppel and adverse possession are unavailable. While the exact requirements of the doctrine vary from state to state, Justice Thomas Cooley of the Michigan Supreme Court aptly summarized the doctrine as follows: “The long practical acquiescence of the parties concerned, in supposed boundary lines, should be regarded as such an agreement upon them as to be conclusive even if originally located erroneously.” This rule of repose, then, is similar to adverse possession.
From the many sources consulted, the court synthesizes the following framework for acquiescence: Accordingly, we hold that a boundary line is established by acquiescence where adjoining landowners (1) whose property is separated by some reasonably marked boundary line (2) mutually recognize and accept that boundary line (3) for seven years or more. The seven-year standard is drawn from the existing statute of limitations under color of title. In addition, a physical delimiter must identify the acquiesced line.
This court overrides a lower court ruling and states: We conclude that because Lee and Konrad’s predecessors agreed to the boundary established by the 1992 survey, and marked that boundary with fence posts in 1999, the boundary between the lots was established by acquiescence.
This court states (erroneously, in the opinion of the author) that there is little difference between the various state formulations for acquiescence doctrine. The court concludes that the survey of the line and acquiescence for 16 years was sufficient to fix the line.
As is also true with the study of acquiescence, practical location defies the convention of a single standardized national definition. Instead, the various courts provide a plethora of individualized and sometimes conflicting descriptions. An excellent illustration of the confusion surrounding this doctrine is found in Michigan court records, where three different sets of principles are identified using the same term.
At its most basic level, practical location serves to bridge the gaps between record documents, a layman’s perception of property rights and the actual physical limits of title. The basic idea behind the doctrine is related closely to the concept of “identification by the senses.” This concept could be characterized as a remnant from a much earlier method of property conveyance. For centuries in England, the grantor and grantee would transfer title by means of a formal ceremony on the land, rather than by the more modern method of conveyance by writing.
In an extensive study published in Michigan Law Review: Vol. 56, No. 4 (Feb., 1958), Olin Browder Jr. admirably summarizes the difficulty of any study of this group of boundary retracement principles: Vagueness of theory has led in turn to vagueness and disagreement on the facts which will merit judicial recognition. The result has been the growth of a gnarled and hoary knot upon this branch of the law of property. One who seeks to work his way into the core is tempted simply to lay bare a cross-section of the mass for the exercise of students of legal method.
Any significant research regarding practical location of property boundaries quickly reveals two lessons. First, the various courts rarely agree (even within a single state) on the details of the intricate relationship between practical location, acquiescence and estoppel. Second, some state courts provide little guidance on the various principles that relate to or support the concept.
Defining Practical Location
It is well-established that determining the intent of the parties to a conveyance is the paramount responsibility of the court. Where there is a genuine dispute over the location of a boundary, courts may consider surrounding circumstances to determine the intent of the parties.
Courts have developed at least three distinct rationales allowing them to consider practical location as evidence of the original intent. All share the common characteristic of aiding the court in determining the original intent embodied by a conveyance.
Definition 1: Most courts will consider the possibility that physical delimiters such as fences or hedgerows may constitute the best available evidence of the actual location of the original controlling survey monuments. This principle will be applied on a case-by-case basis and considers the practical location as evidence rather than as a title doctrine. In other words, the fence could be proof of the original location of corner markers that are no longer in evidence.
Definition 2: A significant number of state courts clearly equate practical location with the concept of parol agreement. States that apply this definition require doubt or dispute over the location of the boundary line. In these cases, the conflict between description and lines of possession provides a legitimate basis for the introduction of extrinsic evidence. As described in Section One, parol agreement proves the uncertain boundary in part by statements made by the landowners, and practical location permits the inclusion of evidence of physical acts on the ground to determine the intent of the parties.
Definition 3: In some jurisdictions, this principle serves as a powerful extension of the rules of construction commonly applied by the courts to resolve discrepancies in land descriptions. Practical location can be applied to strengthen the link between the marked lines agreed to by the parties in situations where a deed seems to describe the subject tract in a different location. In general, the limits of the survey are defined by the original footsteps of the surveyor who laid out the tract in question. More specifically, the monuments set or located by that surveyor generally control boundaries where conflicts exist between monuments on the ground and the original measurements recorded.
Las Siete Partidas: Early History
One of the earliest compilations of principles relating to prescriptive rights is found in Las Siete Partidas, authored by King Alfonso X of Castile in 1265. This code was divided into seven parts (hence the name), and purportedly took seven years to complete. Subject matter encompasses social, religious and economic instruction, including proper behavior for noblemen and knights. It has been described as the most notable code of its age.
Among the sources attributed to the development of Las Siete Partidas are Roman codes from the reign of the Emperor Justinian, authorities from Italian universities, as well as Moorish and Visigothic laws. Las Siete Partidas: Helen L. Clagett; The Quarterly Journal of the Library of Congress, Vol. 22, No. 4 (OCTOBER 1965), pp. 341-346
This legal code proved remarkably durable and became the basis of segments of common law in the United States, particularly in Louisiana. It is also quite significant in regions that had been under Spanish rule, including New Mexico, Texas, California and portions of several adjoining states.
This is one of several jurisdictions where Las Siete Partidas still has a major effect on those portions of the law affecting property rights. The unique cultural heritage of this state includes unusual variations of adverse possession doctrine.
In 1819, the Louisiana Legislature authorized the production of a book to include relevant portions of Latin American law considered significant in that jurisdiction. The resulting publication, The Laws of Las Siete Partidas, Which are Still in Force in the State of Louisiana: Lislet & Carleton (1820), apparently was too long to print as a single book. The end result of this effort was a two-volume set, the first of which totaled more than 600 pages.
Comparison of laws compiled in these volumes with current civil code reveals several close parallels. For example, Partida Third, Title XXIX Law 21 emphasizes that a claim where good faith is not demonstrated extends the prescriptive period to 30 years: That any thing, whatever be its nature, may be acquired by a prescription of thirty years, whether held in good or bad faith.
Current law embodied in Article 3486 of the Louisiana Civil Code echoes the preceding quotation. It describes the 30-year statute of limitations for real property as follows: Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.
Other parallels are found in Louisiana rulings that refer to the current 30-year standard as “acquisitive prescription.” Likewise, repeated references are made to “peaceable possession” on the part of the claimant. These phrases are not common in adverse possession common law of most states. However, Partida Third makes repeated reference to lands or objects that may be “acquired by prescription” and “peaceable possession.”
This state is one of a handful that requires color of title, obtained in good faith, to perfect a claim by adverse possession. Enacted while New Mexico was still a territory, this requirement has endured to the present day. While this departure from the English common law standard would seem to be an anomaly, it becomes much more comprehensible when viewed in the context of the Spanish legal system that prevailed in that area for many years.
Because color of title is an integral part of the doctrine of adverse possession in New Mexico, common law in the state spends considerable time on the topic. Armijo v. Trujillo: 4 N.M. 57; 13 P. 92 (1887) was drafted 20 years before New Mexico became a state, but includes this discourse: Color is not every pretense or claim of title, but consists in a writing or conveyance of some kind purporting to convey the land under which the claim of title is asserted. What constitutes color of title is a question of law for the court, and not of fact for the jury, except under proper instructions from the court. Color of title, strictly speaking, cannot rest in parol. There must be a document of some sort. These basic requirements were affirmed as recently as 2003 in Duran v. Rodriguez: 133 N.M. 553 (2003).
Doctrine of the Presumed Grant
More recently, the Supreme Court promoted the lost grant theory as a public policy doctrine in U.S.A. v. Fullard-Leo: 331 U.S. 256 (1947). The dispute was over Palmyra Island, a small Pacific atoll near Hawaii. This group of islets was annexed by the Kingdom of Hawaii in 1862. The U.S. government argued that title passed to the U.S. via the Joint Resolution of Congress of July 7, 1898. This group of about 50 islets was considered of little value and was only occupied intermittently until 1939, when the U.S. government authorized the construction of a naval aviation facility on the islands.
The problem with this plan was a pre-existing claim based in part on petitions made to King Kamehameha IV of Hawaii in 1862. Based on written council records, it appears that the king directed the two petitioners to take possession of the islands in his name.
Two lower courts found in favor of Fullard-Leo. Their conclusions were summarized by Justice Reed: This can only mean that in the trial court’s opinion, the Kingdom of Hawaii acquired sovereignty over Palmyra and Bent and Wilkinson obtained the private ownership of the islets. This holding was affirmed on appeal. The justices ultimately upheld the lower court decisions because no other explanation adequately explained the observed facts of the case.
This court concludes that the lost grant theory is an appropriate mechanism in this circumstance: The presumption of a lost grant to land has received recognition as an appropriate means to quiet long possession. It recognizes that lapse of time may cure the neglect or failure to secure the proper muniments of title, even though the lost grant may not have been in fact executed. In appropriate circumstances, a grant also may be presumed against the U.S. government.
U.S.A. v. Fullard-Leo describes two different applications of the doctrine. A grant may be presumed where evidence clearly indicates the possibility that it did in fact exist. This court also recognizes that the presumption may be invoked based purely on long and undisputed possession where the legitimate possibility of a grant exists.
Common Scheme Doctrine
The common scheme doctrine represents yet another possible mechanism for skirting the limits of the statute of frauds. While written covenants and maps often supply the necessary indications of an overall intent, this doctrine may recognize the existence of restrictions or enforce equitable servitudes on individual tracts where no written record is found in the language of the deed under consideration. From a practical perspective, the property rights are implied in fact, based on an overall pattern of behavior.
The common scheme doctrine – also referred to as common plan or general scheme – may be applied to impose the apparent intent of a developer on an individual tract of land in a subdivision. For this principle to operate, it must be clearly demonstrated that an overall development concept was envisioned by the parent tract’s original owner. This understanding also should have been made clear to the original purchasers of lots in the development. The concept is most commonly applied to infer the existence of restrictions of subdivision lots where the drafter of a deed may have inadvertently neglected to include reference to a restrictive covenant or to some other document that was intended to affect the rights of owners within the subdivision.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.