Columns / Kline: Unmistakable Marks

How Practical is 'Practical Location'

March 1, 2014
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Practical location is one member of a nebulous pantheon of principles (also including acquiescence, agreement, adverse possession and estoppel) by which the courts attempt to fix disputed boundaries on the ground. The original dispute might have been caused by overlapping (or nonexistent) surveys and deeds, or by the inevitable loss of original monumentation over time. One theory holds that practical location may be considered a holdover from a much earlier method of property conveyance, where a potential grantor and grantee would consummate the sale of a parcel by acts on the land itself, rather than by the more modern method of conveyance by writing.

Any significant research regarding practical location of property boundaries quickly reveals two lessons. The various courts rarely agree on the details of the intricate relationship between practical location, acquiescence and estoppel (sometimes even within individual states). In addition, some states apparently have little significant common law on the various principles that relate to or support practical location. The last was brought home to me when a student posed a question regarding the effect of acquiescence and practical location on the problem boundary line under discussion. As it turns out, North Carolina (my home state) has the dubious privilege of having less case law on boundary location by acquiescence than practically any state in the union.

The doctrine of practical location may be considered to be based on several different legal theories, depending upon the circumstance of the case and the jurisdiction in which the case is tried. In fact, it is difficult (though possible) to find significant case law where practical location by itself is considered sufficient justification to fix the location of a boundary. More often, other doctrines are discussed as well in order to justify practical location. American Jurisprudence provides an interesting, if somewhat confusing, summary of the possibilities. “When doubt exists as to a dividing line between adjacent owners, the contemporaneous and subsequent acts of the parties in establishing or recognizing a line as intended by the deed are admissible and of probative force, and acts of adjoining landowners showing the practical construction placed by them upon conveyances affecting their properties are often of great weight. This principle is characterized as the doctrine of practical location.  A boundary clearly and convincingly established by practical location may prevail over contrary results of a survey…it has also been said that when a disputed or uncertain boundary line is fixed by practical location it is binding, not by way of transfer of title, but by way of estoppel. The erection of a fence may be evidence of the true location of the boundary line which it was intended to make, and acquiescence in it for a reasonable length of time may become binding on the adjacent landowners, although no adverse possession for the statutory period is proved.”1 Notice that in two paragraphs, this summary manages to introduce elements of boundary by parol agreement, estoppel and acquiescence!

Several general situations appear routinely in opinions where practical location might control the location of a boundary line. Perhaps the original surveyor of a state grant marked boundary lines concurrently with the execution of the grant, but the marked lines are clearly at variance with the description in the grant. Alternatively, the parties may be in doubt as to the true location of the boundary line, and might have come to an agreement as to the location of the line in question, (possessing, acquiescing and/or agreeing to the presumed line for some period of time, possibly that period required for a claim by prescriptive right). Two adjoining parties may mark on the ground what they presume to be the actual monuments or bounds called for in their respective deed descriptions some time after the deeds are executed. Or perhaps all evidence of original corner monumentation has disappeared, and ancient fences or other lines of possession are presumed to constitute the best available evidence of the original boundary line. Each of these possible scenarios will be considered separately.

 

A variation of the first situation is found in early Virginia case law. In this instance, the property was conveyed by a description so vague as to possibly render it void in many jurisdictions. No survey was made at the time of the conveyance, and the description in the contract for sale described the parcel as “40 acres of land,” which was to be taken from a 400-acre parent parcel. However, it was admitted that the parties to the original conveyance went on the land at the time of sale, and that there was mutual agreement at that time to proposed lines and corners. The contract for sale was made in 1891, but the deed was not written until 1898, when the tract had been occupied for seven years. The subsequent conveyances are somewhat convoluted, but the suit was not filed until 1907, when a subsequent survey determined the “40-acre tract” contained only 31 acres based on observed monumentation and lines of possession. “The evidence shows that at the time of the sale by William Merrill to Letcher Washington, in February, 1891, the parties went upon the land, and, in the presence of witnesses, designated the lines and corners of the land intended to be bought and sold, and that both expressed themselves as satisfied with the lines and corners then indicated, and with the body of land embraced within those limits; that during Washington’s ownership of the land fences were built upon the lines thus indicated by the parties, and have been ever since maintained upon those lines and regarded  as showing the true boundary of the land sold by Merrill to Washington.  The parties, by this practical location, assented to by both, fixed their lines, which were left indefinite in the written contract…”2

North Carolina common law casts a different light on this issue, as discussed in a case somewhat similar to that described above. The 1819 index case of Cherry v. Slade’s Administrator3 creates a strong presumption for practical location of boundaries where lines marked at the time of the original conveyance for the purpose of defining the location of the grant in question are clearly at odds with those lines described in the grant. However, subsequent opinions over the years in that state have limited and refined the broad principles spelled out in the index case. 

 In the following example, the original surveyor marked a grant line at the time of the original entry, but in a location at apparent odds with the patent. Commenting on the effect of Cherry v. Slade’s Administrator, the justices wrote: “This rule presupposes that the patent or deed is made in pursuance of the survey, and that the line was marked and the corner that was made in making the survey was adopted and acted upon in making the patent or deed, and therefore permits such line and corner to control the patent or deed, although they are not called for and do not make a part of it….” It may also be added at this place that the rule was adopted, against the strong but ineffectual protest of the judges long since expressed, for the sole purpose of executing the intention of the parties to the grant, and not to defeat it, and it was under the stress of some “hard case,” where a sense of justice prevailed over the long established and safe rule forbidding a written instrument to be contradicted or varied by parol evidence, that the rule was brought into being.”4 It is noteworthy that the opinion cited above was drafted during the time when the judges were somewhat dubious of the legitimacy of Cherry v. Slade. Later North Carolina opinions reinforce the importance of the original index ruling.

 

In any application of Practical Location that approaches the realm of parol conveyance of land, the owners may well run afoul of the statute of frauds. Opinions in a vast majority of states require that there be some level of uncertainty as to the location of the boundary before a simple agreement (whether by parol or by informal written agreement) will be recognized by the court. (See POB, June 2011 “All Statutes of Frauds are Not Created Equal”)

The Utah case below reiterates a viewpoint often discussed among surveyors as a result of a widely read essay by Justice Thomas Cooley “The Judicial Functions of Surveyors.” “When original landmarks are no longer discoverable, the question is where they were located; and upon that question the best possible evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known. As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are”…

“When questions arise as to the true location of a boundary line, the practical location thereof by the persons interested becomes of the highest importance. It is a well-settled rule of law, resting upon public policy, that a practical location of boundaries which has been acquiesced in for a long period of years will not be disturbed. This doctrine has been adopted as a rule of repose with a view of quieting titles and preventing litigation. In all cases where the boundary is open, and visibly marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located, and will not permit the parties nor their grantees to depart from such line.”5

Examples of case law are common where the courts seem to apply an “umbrella policy” approach by attempting to fix boundaries on the ground by incorporating elements of every possible related principle, all blended together in order to reach a decision. Common stipulations for practical location may require that acquiescence or agreement be proven for the statutory period for adverse possession in that state, or that some physical barrier be visible along the intended line. Other jurisdictions require some tangible proof of acquiescence or agreement. The following example combines elements of acquiescence and adverse possession. “The court has frequently held that a practical location for a boundary line between properties may be established if the evidence supports a finding that there is a boundary line between such properties, mutually acquiesced in by the owners thereof for a sufficient length of time to bar entry under the statute of limitations.”6

 

In a few states, (including Georgia and Iowa) specific statutes exist which may come in to play. Georgia code 85-1602 allows for the possibility of fixing the location of a disputed boundary line based on seven years of proven acquiescence.

Practical location by acquiescence is particularly complex. A real dichotomy exists between states with common law or statutes recognizing acquiescence as a doctrine of repose, as opposed to those that do not. In addition, although the connotations of acquiescence imply inaction or passivity, it is generally held that some initial action on the part of one or both parties must have occurred (such as the marking of a line, construction of a fence, etc.) to which the parties involved may then acquiesce. The courts will also consider the various combinations of circumstances (acquiescence by one or both parties, the time period involved, existence or absence of a physical barrier, and/or parol or written agreements) that exist in a particular situation.

The principle of practical location may also be raised when considering those cases where an easement of indeterminate location has been granted, yielding yet another approach to a solution for the widespread problem of “floating easements.” It is not uncommon for rulings of this type to take on aspects of estoppel. A grantor may be barred from denying the consequences of his apparent permission to the grantee for whatever location and purpose the easement is contemplated, as exemplified by this recent N.C. court of appeals opinion. “Where the grant of an easement of way does not definitely locate it, it has been consistently held that a reasonable and convenient way for all parties is thereby implied, in view of all the circumstances. It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantee, acquiesced in by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant.”7 This example appears to be an attempt to equate the doctrine of practical location with those principles allowing the introduction of extrinsic evidence to clarify the location of an ambiguous description.

A much older Virginia case takes this concept further by stating: “When a grant of an easement is general and indefinite and does not define or limit the place in which a pipe is to be laid, nor specify what water is to be conducted, the surrounding circumstances, such as the existence of the spring, a channel over the land, the execution of a deed, the topography of the country, and the acts of the parties both prior and subsequent to the grant, may be considered for the purpose of learning the intention of the parties and thus defining and limiting the easement granted. After the grantee has once laid his pipe and thus selected the place where it will exercise its easement thus granted in general terms, what was before indefinite and general becomes fixed and certain, and the casement cannot be exercised in any other place…. Where a right of way or other easement is granted by deed without fixed and definite limits, the practical location and use of such way or easement by the grantee under his deed, acquiesced in by the grantor, at the time of the grant, and for a long time subsequent thereto, operate as an assignment of the right and are deemed to be that which was intended to be conveyed by the deed, and are the same in legal effect as if it had been fully described by the terms of the grant.”8 The Virginia decision becomes more interesting when we consider that the agreement specifically described the location of the proposed water tank as being on the north side of the roadway, but the tank as constructed was on the south side in an apparent direct contradiction of the wording of the agreement.

 

How will a surveyor deal with issues relating to practical location? A summary by Olin Browder Jr. seems appropriate: This theory may rather reflect a realization of the basic problem of practical location: the bridging of the gap between a description and a boundary on the ground, and a revulsion against the notion of a boundary which shifts with every new survey.9 While a few principles related to this concept can be said to apply in all states, this summary makes clear that surveyors would do well to develop an understanding of these issues in any state where they practice.

 

List of Sources

1.         12 Am Jur 2d Boundaries § 81

2.         Smith v. Mullen: 113 Va. 671; 75 S.E. 130; 1912

3.         Cherry v. Slade’s, Administrator 7 N.C. 82; 1819

4.         W. M. Ritter Lumber Co. v. Montvale Lumber Co.: 169 N.C. 80; 85 S.E. 438; 1915

5.         Moyer v. Langton: 37 Utah 9; 106 P. 508; 1910

6.         Aldrich v. Wilson: 265 Minn. 150; 120 N.W.2d 849; 1963

7.         Edwards v. Hill: 703 S.E.2d 452; 2010

8.         Diffendal v. Midland R.R. Co.: 86 Va. 459; 10 S.E. 536 (1890)

 9.         Michigan Law Review, Vol. 56, No. 4 (Feb., 1958) Olin L. Browder, Jr. 

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