After over two decades of studying, writing and presenting on boundary dispute cases in the land surveying profession, one truth has become crystal clear: boundary law and retracement surveying are largely a matter of common sense.
There are certainly some bad court decisions out there — as there are bad surveying decisions. However, the good decisions always pass the common sense test. The case we will look at in this column, Weber v. Kroeger,1 is not only a good decision — it is a case of common sense.
This case involves two residential properties located in Nashville, Tennessee. The subdivision is Belmont Heights, which was developed in 1913. The lots in our case were originally platted as 100 feet wide by 150 feet deep, with Oakland Avenue running north-south on the east and a service alley running north-south on the west.
Weber v. Kroeger: How the Land Boundary Dispute Became A Dispute
Before houses were built, all of the lots in our block were further subdivided into 50-foot wide lots with 5-foot setbacks on each side, creating a northern and a southern half of each lot. The properties in our case are the northern and southern half of Lot 167, referred to as 2405 and 2407 Oakland Avenue, respectively (see above photo).
Nearly 100 years later, a carpenter came along, Robert Fry, and he bought 2407 (the southern property) in 2003 and began renovating the house. The next year he bought 2405 and began renovating it as he was living in 2407. He finished the renovation of 2405 and sold that property to Harold and Mary Kay Kroeger (the Kroegers) in 2005.
As part of the purchase agreement, the Kroegers held back a portion of the purchase price until Fry built a privacy fence between the two properties and installed gutters on the Kroeger’s house.
Fry, being accustomed to do-it-yourself projects, didn’t consider hiring a surveyor to determine the property line location. Neither did any of the other builders he knew who were working on other renovations in the neighborhood. They all knew the houses had been built to the setback lines, so Fry measured between his two houses, split the difference and built a privacy fence on the line thus obtained.2
When he did that, the fence ended up being located in approximately the same place as an old chain link fence he had removed, it lined up with the parking pad on the alley to the rear of 2407 and lined up with the sidewalk from the front door of 2407 out to Oakland Avenue. The 2010 aerial photography in Figure 1 above shows the privacy fence built by Fry (while it was still standing before the war began) and shows the corroborating features (i.e., parking pad and sidewalk).
Fry finished the renovations on 2407 and sold that property to Kenneth Weber and Shelley Munroe in 2006. Weber and Munroe moved in and began neighborly relations with the Kroegers. All was right in the world until … yeah, you guessed it … until the surveyor showed up. For 5 years, the neighbors lived a happy, peaceful coexistence until Weber decided that he wanted to put up a fence on the south side of his house, between 2407 and 2409. So, in 2011, Weber called a surveyor.
Common Outcomes When A Land Surveyor Is Called In A Dispute
As I have said on many, many occasions, there are only two possible results of surveying activity: when the surveyor is done, everybody is happy or nobody is happy. When nobody is happy, then there are a few other possible consequences: the affected parties can try to ignore the survey and get on with life; (This is hard to do especially if you think you have lost something or your neighbor has something that belongs to you. Besides, how can you ignore that stake out in your front yard — it’s mocking you!); the survey results cause concerns and those concerns motivate some type of action (shouting matches, fist fights, lawyers, guns, money, etc.). If those actions become a lawsuit, everybody goes to court and in most cases, for no good reason.
We are told almost nothing about this first survey except that it did not agree with the fence. The surveyed line ran at a diagonal to the fence. It was north of the fence in the front, crossed the fence going to the back and indicated Weber’s parking pad was 1.5 feet onto the Kroeger property.
Not discussed in the case, but obvious to me, both houses are now in violation of the building setbacks and need to be demolished immediately — or, at the least, saw-cut into compliance. Well, that didn’t happen — no — something even stupider.
Initially, Weber, an attorney, attempted to ignore the survey. “Our surveyor pinned the boundary with the Kroegers. At that point, obviously, I noticed where the pins were and noticed, well, gee, you know, this boundary over here with the Kroegers, if you compare it to the survey, it’s off. … I figured it didn’t matter because, in my view, that [fence] set the historic boundary3. So I never mentioned this to the Kroegers. I had no desire whatsoever. Shelley and I were satisfied with the historic boundary. So, to us, the only reason we did the survey was for the boundary on the other side. We didn’t care about any survey — what the survey said on the Kroeger side.”4
Kroeger, on the other hand, could not ignore the stake in his front yard — it was mocking him. That mocking, however, was mitigated by Kroeger’s secret hate-on for Weber’s parking pad. The thought of jackhammering Weber’s parking pad far outweighed the foot or so he was losing in the front.
Nevertheless, the status quo was maintained for another five years during which several discussions and disagreements about the boundary ensued. “According to Mr. Weber, the Defendants [the Kroegers] did not say anything about moving the boundary line until 2016, shortly before the Defendants began their construction project.”5
What Land Surveyors Can Learn from Weber v. Kroeger
In 2016, the Kroegers contracted to have some improvements made along the common boundary line (Improvements List: No.1. Jackhammer Parking Pad). The contractor advised the Kroegers to have a survey made of their property before proceeding with the improvements. The Kroegers’ surveyor basically agreed with the 2011 survey and the contractor started taking the fence down. “When Mr. Weber arrived home that night and noticed the fence’s partial removal, he went over to speak with the Defendants. The parties disagreed about whether the Defendants had the right to remove the privacy fence and whether the survey dictated the boundary between the properties.” A few days later, Weber filed the lawsuit.
Weber didn’t bother to hire another surveyor. He was apparently trusting that Fry’s testimony and common sense would prevail. Relative to Fry’s testimony, the trial court determined the following pertinent facts:
“The fence in between those properties was intended to benefit both and was built in a style to match the fence on the south side of 2407, in between it and 2409 Oakland Avenue. Mr. Fry did not have the property line surveyed for the privacy fence he built because ‘we were cooperating properties in terms of we were neighbors.’ His intention was for it to be on the property line and square with existing structures. Mr. Fry’s method for locating fences in the Belmont area was not to have a survey done, but rather to use the known lot size and setback, measure between the houses, and split that difference. Almost all of the lots in the area are 50 feet by 150 feet, with a setback of 5 feet from the line. Mr. Fry considered the line where the fence was built to be the boundary between 2405 and 2407. Mr. Fry may not have surveyed the properties when he erected the fence in 2005, but the Court concludes that the privacy fence and the other fixtures on which Mr. Fry aligned the privacy fence were intended by Mr. Fry to align with a historical boundary.”6
The Kroegers, on the other hand, had their surveyor testify. He apparently was not interested in finding the “historical boundary.” The trial court determined the following pertinent facts relative to the surveyor’s testimony:
“The Kroegers presented the testimony of a surveyor who opined that the disputed boundary is not consistent with the fence line. He testified that he referenced the relevant plat and deeds in performing his survey. He did not explain what about those documents provided any authority for his findings, and a review of those documents, as discussed above, is not helpful. The Court does not believe that [the surveyor] established, to any degree of certainty or clarity, why he arrived at his opinion.7 The only markers he referred to were old survey stakes of which he did not know the age or origin. He acknowledged not having any specific deed language and/or natural monuments to go by and did not give credence to any artificial monuments. The Court is puzzled about what he relied upon, and without more, does not accept his survey as authoritative regarding the property boundary.8
Kroeger’s surveyor basically found the 2011 pins set by another surveyor and held them without any consideration of other evidence.
Surveyor: “I just put more weight in the actual iron pins and stuff I recovered.” Court of Appeals: “[The surveyor] did not explain what he meant by this statement, however, and this was the only time he (or anyone else) referred to any ‘iron pins.’”9
The surveyor’s testimony confirms what we already know from experience: the likelihood of finding original monuments from a 1913 plat is remote. That means that the retracing surveyor must use the next best available evidence and that will not be measurements from the plat. Common sense question: What is most likely to disappear or move over time, artificial monuments set in the ground by surveyors or a house foundation?
1 Weber v. Kroeger, No. M2019-00406-COA-R3-CV, (Tenn.App.2019). As of this writing this case remains unpublished. We have discussed unpublished opinions on many occasions in this column and I will not repeat that discussion now. Suffice to say, there is much to be gained from studying them. All quotations herein were taken from the court opinion.
2 What boundary location doctrine is in play here? I will give a hint, there are at least three. One concerns the activities of a common grantor, another involves agreement between coterminous landowners and the last deals with original monuments.
3 Weber was interested in the “historic boundary” (i.e., the original property line).
4 Weber should have called the carpenter.
5 The erroneous pins set in 2011 are not the original monuments set by the original subdividing surveyor and no one went into reliance on them. Weber rejected them and he should have pulled them out of the ground (yeah right—the police are on their way). Although Kroeger seemed to want to accept the 2011 boundary, he never took any steps in that direction until he obtained his 2016 survey which ostensibly confirmed the 2011 survey.
6 Fry was interested in the “historical boundary.”
7 The surveyor could not explain the results of his survey and could give no theory of retracement that he followed. Fry, on the other hand, gave a detailed explanation as to his methodology and gave the reasoning behind his methods. In essence, he explained his common-sense retracement theory to the judge while the surveyor could not.
8 The surveyor had zero credibility with the court.
9 The 2011 pins were never accepted by the landowners through acquiescence and reliance, and therefore cannot be representative of the historic boundary, unlike the building foundations that have been there for 100 years as silent witnesses to the true and correct boundary location.