In my last two articles (February and March), I touched on and explored to a certain extent, the issue of property rights and the land surveyor. This time I want to jump in with both feet. In the February issue, I stated that surveyors seem to fall into one of two camps: "boundary surveyors" or "property surveyors." Even though these two terms are often used interchangeably, there is a distinct difference between the two. Boundary surveyors tend to advocate that the surveyor's role is to put legal descriptions on the ground, regardless of property rights; property rights are to be determined by others. Property surveyors tend to advocate the determination of property rights, regardless of the description. In surveyor parlance we refer to the former as an "expert measurer" and the latter as a "fence line surveyor."

Both of these positions are at the extreme ranges of the argument and most surveyors, admittedly or not, hold views on both sides of the fence (no pun intended). It would truly be the most zealous boundary survey proponent who would survey a description of land with no regard whatsoever as to the accompanying property rights. To illustrate, let me give you a random description of land and ask you to go to the field to perform a survey. Imagine yourself trespassing in the middle of Farmer Brown's cornfield trying to survey the description that I have given you, or attempting to drive a rebar in Mrs. Smith's pool deck. Then imagine trying to explain to Farmer Brown or Mrs. Smith what it is you are doing. The zealot description surveyor would, ostensibly, have no problem with this situation. After all, the task is to survey boundaries from descriptions, property rights notwithstanding. Most of us, however, would be a little worried about such actions. Why? Because property rights are involved.

An extreme example could easily be made in the other direction, but I think that most of you will catch my drift. All land surveyors recognize property rights whether we want to admit it or not. The only question is to what extent do we or should we recognize them?

Real Property 101

Where do property rights come from? I've asked this question to quite a number of surveyors and I usually get the same response-a blank stare. The first step in understanding property rights is to understand where they come from. Property rights come from the state: the common law, statutory law and administrative law of the state in which the property is located. There is no federal constitutional "right" to own property. Your right to own property comes from the enactment and enforcement of state law. Therefore, the interpretation of property rights, what they are and who has them, will come from an interpretation of state law. Even though property rights are state specific, the principles involved are almost universally held by all 50 states. This means that what applies in Alabama will generally apply in your state as well, especially when it comes to the interpretation of deeds and the rights conveyed through a deed.

All of the states recognize that rights in real property can be understood as a bundle of rights, not just one right. As with a handful of sticks, you can bundle them together and own all of the sticks that comprise the whole bundle. You can also break that bundle up and sell one or more of the sticks to someone else, while retaining the balance of the bundle. This is the same situation with real property rights. An owner of real property who holds the entire bundle of rights is said to hold fee simple title. Most surveyors understand this and can recognize a deed that conveys fee simple. However, something less than fee simple (the whole bundle) can be owned and may have a substantial impact on the outcome of the survey.

The most common property rights that are sold (or otherwise conveyed) out of the bundle are mortgages, easements, covenants, life estates, profits, leases, servitudes and licenses. There are others, but these give you the general idea. Many of these rights that are conveyed out of the bundle are conveyed with strings attached. The most common form of "strings" are clauses that exclude or except something from the conveyance or that create a reversionary interest.

We all understand exclusions and exceptions, but what about reversions? A reversion is simply a future interest that the grantor retains when a certain condition applies. Most of us can agree that the vast majority of surveyors understand deeds of conveyance that convey a certain property "less and except" a portion thereof. Even our most zealot description surveyor would be hard pressed to draw his bold boundary line around the entire 40 acres when the deed clearly states, "less and except the east 20 acres." So what is the great leap of faith that must be taken when we see a reversionary clause?

Let's expand our example. The deed now reads that the entire 40 acres "less and except the east 100 feet for railroad purposes, for so long as the right of way is used for railroad purposes." You conduct your survey and observe that the rails and ballast material have been removed from the bed. Do you draw your bold line around the entire 40 acres, exclude the east 100 feet, or highlight the east 100 feet as an area of conflict on your map? Before you answer, let me ask another question: who's in a better position to interpret this deed-an attorney, a judge, a railroad right of way agent, the landowner who hired you, or the land surveyor in the field?

Interpreting Property Rights

If you are still of the opinion that it is not your job to interpret property rights, then you haven't been to court-yet. If you find yourself and your boundary survey on trial, the issue will not be how well you were able to put a legal description on the ground. The issue will be where the true property line is between two coterminous landowners. And if this will be the issue in court, why isn't it the issue in the field? Generally speaking, individual landowners do not hire surveyors to determine the perimeter of a legal description; they hire surveyors to survey their property. Of course, I haven't always understood that this was my role, but as with doctors, lawyers and engineers: land surveying is practiced, never perfected.

I have often heard that the determination of the true boundary between two coterminous landowners can only be decided by the judge. The implication being that the opinion of the judge can never be known. That it will be based on a capricious whim of unknowable origin and indeterminate outcome. Generally, this is far from the truth. The rules by which judges are guided in real property issues, especially issues related to title and property rights, are relatively straightforward and uncomplicated, and span across the 50 states.

This doesn't mean that property rights issues can't get complicated, because they can. And the risk I run with writing this article is oversimplification. I'm not advocating that the surveyor be the judge and jury over every property rights issue. Nevertheless, the vast majority of situations that I run into in my everyday practice are relatively straightforward and not complicated at all. It's the surveyor who has turned a blind eye to straightforward property rights issues who complicates these matters. And if we think judges are capricious in their ruling, how do surveyors look in the eyes of the court when two of us come up with two different interpretations of the same deed?

Both of these points were touched on in the case of Fallin v. Cornelius, 733 So.2d 409, (Ala.Civ.App. 1998):

We are here dealing with boundary lines that are established by the United States Government. Lines that are specific, sure and can be located with precision"¦ Lines that have been used since the beginning of this country to assure to one and all the certainty in the ownership of their farms and estates. But alas, the surveyors, both eminently qualified, both very experienced and both sure of their calls, their distances and their plats, are unable to agree on the location of the lines heretofore established by our government. Truly, nothing in this life is certain, save death and taxes. The surveyors' inability to agree does, however, result in a new appreciation for the predicament of the landowners. For after all, if those who are licensed and registered in the measurement of land, with all of their skill, training, instruments and equipment, cannot agree on boundary lines, what hope is there for those of us who are mere mortals and who rely on the Stanley tape measure for distance and the eyeball for direction. This judge has heard the testimony of the parties, and that of the surveyors. He has examined the maps, the plats and the photographs offered into evidence. He has, with the lawyers, viewed the disputed boundary area, now cleared by bulldozer, so that land, once overgrown and inaccessible, can now be fought over in the clear much as a demilitarized zone between warring countries. Were it not for rules of law which have been established by judges and lawmakers much wiser than this trial judge, that are steeped in a tradition of disputes by neighbors over land since the beginning of courts and the judicial system, this judge would fare no better in the resolution of the dispute than the parties, surveyors or lawyers. But in the evidence presented in Court and found from inspection of the premises are keys to the legal resolution of this dispute. Id. at 410, 411.

So what are these "keys" to the legal resolution of this boundary dispute? The keys used in Fallin, an Alabama case, are the same keys cited in Olson v. Jude, 73 P.3d 809, (Mont. 2003), a Montana case, and are the same keys cited in nearly every similar case across the country[1]:

Relying on previous decisions, courts have given surveyors guidance in the resolution of [interpretation] problems. Three basic elements that have been identified are: (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; and (3) Written intentions of the parties are paramount.

In Olson, the court is speaking directly to land surveyors on the subject of property rights. And three types of rights are discussed. Just three, not some long laundry list of unknowable, unrecognizable and incomprehensible rights. And it's clear that the judge believes that the surveyor should know these rights and apply them in everyday practice.

If Not the Surveyor, Then Who?

My entire career I have heard surveyors complain about the erosion of our profession, the lack of respect that we get from the other professions and the low pay commensurate with our status. Yet time and time again, surveyors have turned their backs on opportunities to expand the profession, or at the least, avoid further erosion. The determination of property boundaries is just another one of these issues. Many surveyors prefer to turn this issue over to others to decide. Who are these "others" and just what is it they are going to decide? I'll have to finish this discussion in another two installments. But before we part company I want to leave you with a parting thought: If not the surveyor, then who?

See "Traversing the Law" in the June and July issues for more on this discussion.