I'd like to address a few concerns regarding unwritten rights that arose in response to my three-part series "Property Rights and the Land Surveyor" that ran in May, June and July. First and foremost, let me note that adverse possession is not the only means by which property can and will be transferred by unwritten means. As a matter of fact, it may be the hardest way for unwritten transfers to take place because of the statutory requirements that must be fulfilled. Adverse possession is a statutory right and/or remedy that must be argued in court; it has prescribed qualifications that must be met in order to take effect, and a specific time period in which the codified rights and remedies will ripen. These are issues that a surveyor will not normally be able to determine in the field or through courthouse research. Therefore, adverse possession is not an unwritten transfer that is recognizable during the course of a survey, even though evidence that such a transfer has taken place may abound. Nevertheless, in the comments I receive there seems to be a preoccupation with adverse possession.
Preoccupation with Adverse Possession
I think it is extremely important for professional land surveyors, especially land surveyors who perform boundary surveying services, to understand their state law as it relates to adverse possession. But adverse possession is not the only way in which title to land will transfer by unwritten means. I can only conclude from this preoccupation that in the minds of many surveyors this is the primary way in which unwritten transfers take place. Therefore, I’ll spend the next few installments of this column exploring the many other ways these transfers take place, ways that are considered easily recognizable under the law and should therefore create little difficulty for the practicing land surveyor.
As we study each of these alternative ways of transferring property by unwritten means, I will travel around the country (in a virtual sense) and pull case law examples from the various and sundry states.* Property law is state specific, but my study of it has indicated that the principles are generally universal. And that is why case law is instructive, not because of the details of any given case, but because of the general principles that are applied.
Boundary by Agreement
First, we will explore the way that land is transferred by unwritten means through the "doctrine of boundary by agreement." In many legal circles, boundary by agreement is considered a doctrine of the law, and is sometimes referred to as the "doctrine of agreed boundaries" or the "doctrine of practical location." This is not to be confused with a "boundary line agreement." A boundary line agreement is a formal document executed by two coterminous landowners to settle a disputed boundary line location. A boundary by agreement is never a formalized document. It is an oral or implied agreement as to the location of a boundary line between two coterminous landowners. Many times boundary by agreement is argued in court as an alternative claim to adverse possession. If all of the elements of adverse possession cannot be proven, as an alternative, boundary by agreement is argued. It can and has been raised by the court sua sponte, that is, "of its own accord," as a means of rendering equity, when equity would not otherwise be served.
The first element of a boundary by agreement (or practical location) is that it is an unwritten transfer of property. This puts the agreement up against the statute of frauds. We’ll turn to Delaware law for the treatment of this element:
Of course, oral agreements for conveyance of land are normally unenforceable under the statute of frauds. An oral agreement may nevertheless be honored in cases presenting various exceptions to the statute of frauds. [In the present case]…the boundary line is enforceable under three exceptions to the statute of frauds: 1) the doctrine of practical location, 2) the doctrine of acquiescence, and 3) the doctrine of partial performance.1
But are these oral agreements binding on successors of title? In other words, it’s fine and dandy that Jones and Brown orally agreed that the fence line will be the boundary between their respective properties. But then Brown conveys property to Wilson and Wilson settles into the status quo. Years after the closing, Wilson decides that he wants to finish the fence around his property, so he commissions a survey. The surveyor tells him that the true boundary line between his property and Jones’ is three feet on the other side of the fence. Wilson makes some inquiries and finds out about the oral agreement between Jones and Brown. Wilson brings suit to re-establish his claim of ownership based on his deed and the fact that he was not a party to the agreement. Sticking with this Delaware case, we see that Wilson is out of luck.
American common law authorities suggest that property interests resolved through agreements are binding on successors-in-title. For example, it is well-settled that disputed boundary lines, when resolved through application of practical location and acquiescence, run with the land. These doctrines are based on “the sound public policy to avoid litigation over boundary lines.”2
As I have stated before, when the land surveyor ignores doctrines of the law that are established to avoid litigation, more often than not these actions rather encourage litigation and fly in the face of sound public policy.
Uncertainty as to Location
The second element of boundary by agreement is that the true location of the boundary must be uncertain. This is not to say that the true location cannot be found. A layout of the deed description may reveal the true location of the written title line, but this does not defeat the element of uncertainty. All that is necessary with regard to uncertainty is that the coterminous landowners were uncertain about the location of the true boundary when the agreement was reached. For a treatment of this element we’ll turn to Idaho case law in Johnson v. Newport.
It is undisputed that the parties were ignorant of the true boundary until the survey in 1995. The Newports contend that boundary by agreement does not apply because there was no dispute over the location of the boundary. We disagree. There is no requirement that there be a dispute over the boundary. Rather, there must be either uncertainty or a dispute as to the location of the true boundary.3
Johnson v. Newport goes on to say:
The doctrine of boundary by agreement has long been established in Idaho’s case law. To have a boundary by agreement, the location of the true boundary line must be uncertain or disputed and there must be a subsequent agreement fixing the boundary. The agreement need not be express, but may be implied by the surrounding circumstances and conduct of the parties. The existence of such an agreement between adjoining landowners may appear where their property rights have been defined by the erection of a fence, followed by treatment of the fence by the adjoining owners as the boundary. Further, the long existence and recognition of a fence as a boundary, in the absence of any evidence as to the manner or circumstances of its original location, strongly suggests that the fence was located as a boundary by agreement. Also, the payment of taxes on the property by the party asserting ownership of the disputed parcel is not required when determining a claim based on the doctrine of boundary by agreement. Thus, the doctrine of boundary by agreement requires (1) an uncertain or disputed boundary and (2) an express or implied agreement subsequently fixing the boundary.4
As Johnson v. Newport suggests, boundary by agreement is not adverse possession. It doesn’t come close to the requirements of adverse possession. Under Idaho law, there are only two elements that must be fulfilled: (1) an uncertain or ambiguous boundary, and (2) a subsequent express or implied agreement to fix the boundary (monuments and fences recognized by the affected landowners as the true boundaries).
Now, this was the heart and soul of my earlier discussion on private property rights and the land surveyor. These are easily cognizable (within the jurisdiction of a court) legal principles, and the evidence that will sustain them is the evidence that must be gathered and analyzed during the course of performing a boundary survey. Failure to do so, in my humble opinion, is negligence.
But what’s good for Idaho may not be good the entire country. Therefore, there are three more elements of the boundary by agreement that we need to consider.
Agreement and Acquiescence
The third and fourth elements of boundary by agreement are very closely related. The third element is that there must be agreement as to the location of the boundary. The fourth element is that there must be a mutual acquiescence to the agreed upon line. Agreement and acquiescence take on the usual forms, such as a fence erected on the common boundary, monuments placed by a surveyor that both parties agree and acquiesce to, or natural boundaries such as a river, creek, stream, or even a ridge line that the parties both recognize. The agreement can be express or it can be implied. Coterminous landowners setting in to a common fence line is a very good example of an implied agreement with the requisite mutual acquiescence.
The fifth and final element of a boundary by agreement is that sufficient time must pass for the unwritten rights to ripen into possessory rights. This time requirement is usually based on some statute of limitations but not always. Often it is the same as the time limit for adverse possession to ripen, but it can be shorter. It can also be longer. It could be tied to the time period for prescription. In some states this could be 15 or 20 years. These are limitations that can easily be discovered by the practicing land surveyor and applied in everyday practice.
Florida law speaks to this element and basically says that equity will prevail:
The essential elements of boundary by agreement are (1) an uncertainty or dispute as to the true boundary; (2) an agreement, either oral or implied, between the adjacent landowners that a certain line will be treated by them as the true line; and (3) subsequent occupation by the parties in accordance with that agreement for a period of time sufficient to show a settled recognition of the line as a permanent boundary.5
In Arkansas, these possessory rights will ripen before seven years:
In the case of a boundary by agreement, the landowners have made a parol agreement as to the location of the boundary. For a valid oral boundary-line agreement to exist, four factors must be present: (1) there must be an uncertainty or dispute about the boundary line; (2) the agreement must be between the adjoining landowners; (3) the line fixed by the agreement must be definite and certain; and (4) there must be possession following the agreement. The agreement is binding even if the parties entering into possession pursuant to it do not occupy the land for the full statutory period of seven years.6
And in Oklahoma, they will ripen before 15 years:
[T]he Court said that (1) a parol agreement, (2) long acquiesced in, (3) to settle a boundary between adjoining landowners, (4) which was the honest attempt to fix a true boundary and (5) according to which they have marked the line and (6) agreed upon it by building a fence thereon and (7) have actually occupied it, will be held good even though the prescriptive time period [15 years] has not run.7
Adverse possession is a right and remedy that may be asserted by a plaintiff or claimed by a defendant to accomplish the unwritten transfer of property rights, but it is of little use to the practicing land surveyor. The problem with adverse possession for the land surveyor is that it must be asserted on all of its elements in a court having equity jurisdiction before it will ripen into legal title. Too much attention has been paid to adverse possession by the land surveyor. It has no redeeming qualities when it comes to the aid that it will render in our boundary decisions. Boundaries by agreement, in contrast, can be very beneficial in the ultimate determination of the true boundary line between two coterminous landowners. And, in the final analysis, what other line really matters?
*Note: Internal case citations have been omitted in all quotations.
Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar of your jurisdiction.