In the last installment, we saw from the case of Olson v. Jude that the courts expect surveyors to understand three basic principles...



In the last installment (May 2005), we saw from the case of Olson v. Jude, 73 P.3d 809, (Mont. 2003), that the courts expect surveyors to understand three basic principles when it comes to the interpretation of deeds:
  1. An occupancy right that has ripened into a legal right extinguishes or becomes superior to all written title to occupied land.
  2. As between private parties in a land dispute, a senior right is superior to a junior right.
  3. Written intentions of the parties are paramount.

And we asked the question: If not the surveyor, then who? Who is in a better position than the surveyor to make these interpretations?

In order to answer these questions we will have to look at each principle individually, and then consider the effects they all have on each other-because they do not exist in a vacuum, they interact with each other. It's impossible to determine senior rights without considering the written intentions. Similarly, the best manifestation of the intentions of the parties may be occupancy rights. And certainly, occupancy rights can make senior rights a moot point.

Occupancy Rights

Each and every state has some form of occupancy rights laws. These laws are either written by the legislature (statutory), determined by the courts (common law), or existent in both forms. These laws generally consist of adverse possession, prescription, acquiescence, estoppel, agreement and other equitable considerations. In February I wrote an article on the Marketable Record Title Act (MRTA). Although not specifically written to settle occupancy rights, the net effect of this type of act is that all claims against one's title are barred after 30 years. This includes claims as to mistake in location, a common claim brought up as a result of boundary surveying activity.

Finding out what the laws are in your specific state and how they are applied is not that difficult. In my home state of Alabama, we have a statutory 10-year adverse possession law. After 10 years of occupation, with color of title, occupancy rights extinguish written rights. After 20 years we have a common-law doctrine of adverse possession by prescription. Twenty years of possession, with or without color of title, becomes an absolute bar to any other claim. As stated in Olson, "An occupancy right that has ripened into a legal right extinguishes or becomes superior to all written title to occupied land."

Notwithstanding plaintiff's arguments, we conclude that the trial court properly directed a verdict for the defendants because plaintiff's claim is barred, as a matter of law, by the 20-year rule of repose or prescription. The principle of prescription is a "strict rule of law in this State" based on a strict application of the 20-year period. In Boshell v. Keith, this Court explained, at length, the 20-year rule of repose, and applied it: "Since McArthur v. Carrie's Administrator, this State has followed a rule of repose, or rule of prescription, of 20 years. This principle of repose or prescription is similar to a statute of limitations, but not dependent upon one, and broader in scope. It is a doctrine that operates in addition to laches. Unlike laches, however, the only element of the rule of repose is time. It is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence obscured. It operates as an absolute bar to claims that are unasserted for 20 years. [Emphasis provided]. The rationale for this absolute bar to such actions was set forth in Snodgrass v. Snodgrass, as follows: "As a matter of public policy and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into"¦ It is necessary for the peace and security of society that there should be an end of litigation, and it is inequitable to allow those who have slept upon their rights for a period of 20 years [to come forward with a claim"¦ after 20 years] the memory of transactions has faded and parties and witnesses passed away"¦[emphasis provided]. The consensus of opinion in the present day is that such presumption is conclusive, and the period of 20 years, without some distinct act in recognition of the trust, a complete bar; and, as said in an early case, "the presumption rests not only on the want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which it has been said have often more of cruelty than of justice in them [emphasis provided], that it conduces to peace of society and the happiness of families, and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible.""¦ The only circumstance that will stay the running of the 20-year period of repose is a recognition of the existence of the claimant's right by the party defending against the claim. [Emphasis provided]. McDurmont v. Crenshaw, 489 So.2d 550 (Ala. 1986).

Your state has similar laws that apply and can be known and understood by the land surveyor. Taking the law in Alabama that has been clearly laid out in McDurmont, let's look at a simplified boundary survey problem.

Your client gives you a copy of her deed. The property is described by metes and bounds. It commences at a section corner a half-mile away and follows the section line for one course. Then it leaves the section line with bearings and distances (no bounds and no calls for monuments) for three more courses, until it reaches the point of beginning. From the point of beginning it follows four bearing and distance courses around the boundary, back to the point of beginning. With your expert measurer hat on, you trace the description from the section corner, use the section line for a basis of bearing, and follow the next three courses by applying the bearings and distances recited. When you get to your point of beginning you miss it by 3.125678 feet. As you progress around the boundary you find that each corner gets progressively worse by 0.478902 feet. You take your expert measurer hat off for a moment to wipe your brow and you notice that the monuments you found agree with the occupation, and the occupation of your client and all of the adjoiners is at least 50 years old, as are the deeds in your hands. Knowing nothing else but these facts, what do you do?

The unfortunate reality is that I just know somebody out there is saying, "Set new irons." The reason I know this is because I see it in my everyday practice. Set new irons, throw the entire neighborhood into turmoil, be the catalyst for litigation, claim ignorance of the law, and tell everyone that it's not your job to determine property rights. But the legal fact is that occupancy rights that have ripened into legal rights extinguish written property rights. Here's another idea: hold the found monuments and write a new legal description if you must to satisfy the expert measurer in you, but don't joust at windmills. If you think you're avoiding litigation by not identifying vested property rights, in many cases you're wrong. In the preceding example you're more likely to start a lawsuit than avoid it.

Senior Rights

The problem with senior rights is that you have to go back to a common grantor in order to determine who is senior and who is junior. Just because one deed is older than another deed does not resolve who is senior and who is junior.

There is only one survey in the record. There is no conflicting survey. There is an overlapping in the descriptions in the deeds in that the descriptions in the deeds of both parties include the disputed strip of land. We do not understand, however, that either party has proved ownership of the record title because neither traces title from the United States or other sovereign. We do not think the evidence will support a finding that respondents proved anywhere a conveyance from a grantor in possession. It is held in Dunn v. Stratton, supra, that the elder of two deeds from a common grantor will prevail, but in the instant case the two chains of conveyances do not emanate from a common grantor. We have not been cited to nor do we know of any case which holds that a claim of title is superior to another merely because the first claim rests on a deed at the end of a chain of conveyances which commences with a deed from a private person, bearing an earlier date than the deed from a different private person with which the second chain of conveyances commences. Appellants' argument based on the fact that the first deed in their chain is dated 1900 while the first deed in appellees' chain is dated 1916 is without merit. Appellants have not shown a superior title to the disputed strip by their chain of conveyances commencing in 1900 as aforesaid. Rollan v. Posey, 271 Ala. 640, 643, 644 (Ala. 1961).

As in Rollan, finding the common grantor may be impossible or next to impossible. The other problem with searching the public records to resolve senior/junior rights is that it puts the surveyor in the role of title abstractor. While some surveyors may be very skilled at this, others are not. Abstracting the public records is a specialty, requiring expert knowledge and skill of all of the public records, not just the grantor-grantee index. Unless you have this knowledge, most state survey standards tell land surveyors not to practice outside their areas of expertise. Abstracting title, without the special skills necessary to do a competent job, would be practicing outside your area of expertise and could open you up to liability. If you're having trouble recognizing bona fide occupancy rights in the field, in the words of Nancy Reagan, "Just say "˜no'" to abstracting title.

The experts in this field are the professional title abstractors and the title insurance companies who insure title based on their (or their agents') search of the public records. If we follow their lead we see that title companies only go back 30 years in their search. Some may go a little further, but certainly not more than 50 years. It's highly probable that a common grantor will not be found in a 50-year search, and even more probable that he will not be found in a 30-year search. If a 30-year search will not find a common grantor, how is it that senior/junior rights get resolved? The short answer is that the title companies read Olson v. Jude and all of the other cases along that vein. They know that occupancy rights that have ripened into legal rights are superior to senior rights and written title. And that after 30 years, every state in the union has occupancy rights laws that will bar stale claims. At least the title insurance companies are willing to bet on it.

Stale Claims

So, just who is it that will defy the law and the odds, and bring these stale claims to everyone's attention for litigation? We know that the answer, of course, is the land surveyor. Coterminous landowners who have lived in peaceful existence for 20 years rarely bring these issues up of their own accord. It's not until a surveyor comes along and tells one or the other landowner that there is a mistake in the boundary line that the landowners get up in arms over the two-foot strip of land that has now been put into conflict. It's not hard to imagine the impression this leaves with the landowners, the attorneys, the judges and the general public with regard to surveyors and our seeming inability to agree on property boundaries. The situation only seems to get worse as we become more expert with our measurements. In the next installment (July 2005), we'll look at intent in the writings and try to answer our ultimate question: If not the surveyor, then who?