In the November issue we looked at the doctrine of "boundary by agreement," sometimes referred to as the doctrine of "agreed boundaries" or the doctrine of "practical location." This time we will consider a closely related doctrine, the doctrine of "boundary by acquiescence," and discuss the implications that these doctrines have on practicing boundary surveyors.

Boundary by Acquiescence

One of the best explanations of the doctrine of boundary by acquiescence is in the Arkansas case cited in the last article, Lammey v. Eckel: "By contrast, a boundary by acquiescence arises not by a parol agreement but from the actions of the parties. It is more in the nature of an implied agreement presumed to exist by the long acquiescence of adjoining landowners who apparently consent to a dividing line between their properties. The concept is based upon the landowners' tacit acceptance of a fence line or other monument as the visible evidence of their dividing line. The acquiescence need not occur over a specific length of time, although it must be for "˜many years' or a "˜long period of time.' [The] acquiescence must exist for a period of seven years [but] most boundary by acquiescence cases involve time periods of at least twenty years."1 In other words, the basic difference between boundary by agreement and boundary by acquiescence is that it is not necessary for the parties to agree to a line as their common boundary (either verbally or by formal agreement); their acquiescence to a well-defined boundary constitutes the agreed boundary. Their actions, in essence, speak louder than words. This is a boundary line that will trump a senior deed or the written intentions of the parties as found in a deed of conveyance.

This is the king of all boundary lines and the boundary line most often disturbed by land surveyors, thereby pitting neighbor against neighbor and plummeting the parties into civil litigation and lifelong hatred. And this is the least understood boundary line, especially by land surveyors, the ones licensed by the state to make boundary line determinations. The coterminous landowners understand this boundary line very well, at least until a land surveyor comes along and tells them that the line is in some other location.

A Virtual Tour of the Country

Like last time, let's take a little tour around the country and look at the law on the issue of boundary by acquiescence.

Stopping in Arizona first, we will see that although boundary by acquiescence has been acknowledged by the Arizona courts, the elements had not been clearly defined until Mealey v. Arndt. In this case we see the Arizona court reach out to other state jurisdictions in order to apply the elements they needed to resolve their case. "Although Arizona has acknowledged the doctrine of boundary by acquiescence, it has not clearly defined the elements. We therefore look to other jurisdictions. Generally, to establish the doctrine of boundary by acquiescence, the party asserting the doctrine must prove (1) occupation or possession of property up to a clearly defined line, (2) mutual acquiescence by the adjoining landowners in that line as the dividing line between their properties, and (3) continued acquiescence for a long period of time. In Arizona, the required period of time for acquiescence is ten years, the same as that for adverse possession."2

The Arizona court did some of our work for us. Its elements of boundary by acquiescence are a recitation of the general elements found in case law from other jurisdictions, making them representative of many states, not just Arizona. Additionally, we learn from reading this case that the acquiesced line must be clearly defined, not an obscure or hidden line or a line defined by boundary markers no one knew anything about. This just makes perfect sense. In order for there to be an implied boundary, the inference must be that both parties were well aware of and acquiesced to the line. An obscure or hidden line will not meet this standard.

Next we'll visit Maine. In Anchorage Realty Trust v. Donovan (not yet published in the reporters), the Maine Supreme Court set out the elements of boundary by acquiescence. "In order to establish a boundary by acquiescence, a party must prove: (1) possession up to a visible line marked clearly by monuments, fences or the like; (2) actual or constructive notice to the adjoining landowner of the possession; (3) conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake may be fairly inferred; [and] (4) acquiescence for a long period of years such that the policy behind the doctrine of acquiescence is well served by recognizing the boundary"¦. Contrary to the contention of the Donovans, a boundary by acquiescence may be proven even where the deed description is clear and the legal boundary is known. Moreover, the distinguishing feature of acquiescence is that proof of an agreement to locate and fix a boundary on a certain line is not required, as the Donovans assert."3

In Pennsylvania, only two elements are required to establish a boundary by acquiescence: "The establishment of a boundary line by acquiescence for the statutory period of twenty-one years has long been recognized in Pennsylvania. Two elements are prerequisites: 1) each party must have claimed and occupied the land on his side of the line as his own; and 2) such occupation must have continued for the statutory period of twenty-one years. As recognized by the Superior Court and the common pleas court, the doctrine functions as a rule of repose to quiet title and discourage vexatious litigation."4

As I have stated before, the details in these cases are always different, but the basic principles are the same. Long held occupation is superior to written transfers. Why? For the repose of society. The courts do not see litigation as a good thing, especially when it involves boundary disputes between neighbors. This kind of litigation has a destructive effect on the fabric of society in that it pits neighbor against neighbor and involves a valuable resource that, in many instances, is the only treasure owned by the litigants. "As President Judge Coffroth aptly observed"¦ a prospective purchaser will see the fence or similar marking; given its obvious presence as apparent boundary, he is therefore put on notice to inquire about its origin, history and function. After 21 years, the chips will be allowed to fall where they may, for reasons of equity and peace."5

Moving on to Illinois, we find the case of Beitner v. Marzahl.6 This case is instructive for two reasons. First, it gives us a look at Illinois' treatment of boundary by acquiescence, but secondly, the case is based on an overlap in descriptions. An overlap in descriptions is a senior/junior rights issue, right? Not quite. As we have seen before, senior/junior rights are a moot point when occupancy rights are involved.

Remember the three principles of law that will be applied by the courts in boundary determinations: (1) an occupancy right that has ripened into a legal right extinguishes or becomes superior to all written title to occupied land, (2) 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. Beitner clearly demonstrates that occupancy rights will trump all other considerations, i.e. senior/ junior rights and written intentions, in the determination of the true boundary line between coterminous property owners.

In Beitner, the issue was an overlap in legal descriptions creating our classic boundary dispute. Given every opportunity to examine the priority of deeds to make a determination of the true boundary line between the coterminous landowners, the court refused to do so. "In the alternative, defendants assert that they should be awarded the entire overlap strip. Their theory is that the Redmanns, from whom defendants received their deed, preceded the Ruemelins, from whom plaintiffs received their deed, in title and, therefore, defendants' claim to the disputed property has priority."7

The court, however, refused to go there. Instead, the court ruled that: "Where a boundary between two tracts is unascertained or in dispute, the line may be established, first by parol agreement and possession; second, by an agreement implied from unequivocal acts and declarations of the parties and acquiescence for a considerable period of time; and third, in the absence of any agreement, by undisturbed possession for more than twenty years. When an unascertained or disputed boundary is actually established under either or all of these alternative methods, it will be binding on the parties and their privies in estate and may be enforced or protected in an appropriate action in equity."8

Property Rights and the Land Surveyor

The subject of occupied boundaries should be of grave concern to every practicing land surveyor. It is simply the trump card in any hand dealing with the determination of the true boundary between coterminous property owners. From a cognitive standpoint, most surveyors understand the written intentions as taken from a deed of conveyance. Even senior and junior rights give surveyors little trouble, and barely raise an eyebrow when commentators suggest that surveyors are to apply these rights in boundary determinations. This is because surveyors easily recognize that a senior conveyance is superior to a junior conveyance, and in essence, the junior conveyance never took place vis a vis the senior conveyance. Why then is the issue of occupancy rights so difficult to understand, even at the cognitive level, let alone at the level of application? If occupancy rights trump all other rights, and render otherwise valid boundary determinations impotent, why are so many surveyors willing to ignore this legal principle and leave themselves open to liability for incorrect boundary locations?

Surveying Specialization

I have to conclude from my own personal observations that there are licensed surveyors who should not be practicing boundary survey work. Just because a surveyor has a license to do so does not mean that he or she should necessarily perform boundary surveying services. There is ample evidence in the field and in the courtroom to back up this conclusion. Just the sheer number of pincushion corners would be sufficient to prove my point. I understand that there are valid reasons for setting another monument when one exists already. I've done it myself. But this is usually an exceptional case and not the norm. In addition, I read case after case where incorrect boundary determinations have been the catalyst for litigation costing the surveyor's client tens of thousands of dollars just to find out that, although technically correct, the survey was wrong on the critical issue-the true location of the boundary line.

There are plenty of other avenues of practice where the surveyors who initiate this unnecessary litigation and who foster the proliferation of pincushions would be more than competent, e.g. construction layout, topographic surveys, quantity surveys, etc. Boundary surveying requires specialized knowledge and skill that many surveyors do not have and/or refuse to acquire. When a boundary dispute goes to court, the issue will not be how well a legal description was put on the ground. The issue will be where the true boundary line lies between two coterminous property owners.

A proper application of the principles that will be applied by the courts will generally render the same conclusion as the courts-the correct location of the boundary line. Ah, but these things can only be determined by the courts. It's not the surveyor's job to apply all of the legal principles that will control boundary determinations. Therein lies the problem. If this is the mindset of any particular surveyor, he or she should quit doing boundary survey work right away. A surveyor may possess great technical skills but lack the artistic aptitude to see the whole picture and to bring the canvas to life.

For the Repose of Society

The courts established these principles for the express purpose of eliminating unnecessary litigation as a public policy matter. "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"¦"9

"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.'"10

Boundary Surveying: An Art and a Science

Surveying has often been described as an art and a science. This is nowhere more appropriate a description than in the boundary surveying arena. In terms that we understand, the pure scientists would best describe the expert measurer, and the pure artist would be likened to the fence line surveyor. Successful boundary surveying requires possession of the skills and talents of both the scientist and the artist.

My own observations that now span a 29-year career have taught me that these two sides of the boundary surveyor exist as a sort of Jekyll and Hyde split personality. The more you feed one, the stronger it gets. After achieving licensure, I spent 15 years as Dr. Jekyll honing my technical skills and ignoring the artistry that boundary surveying requires. I've spent the last five years trying to see the bigger picture.

As was my own case, I think many surveyors have focused too much attention to paper and theory, and lost touch with the physical and reality. It's one thing to make a paper determination that a certain corner falls 30 feet inside of Farmer Brown's cornfield. It's another reality altogether to take rebar and hammer in hand, cross long-held occupation, ignore existing monuments, mow down a row of corn stalks, and drive a new iron 30 feet inside Farmer Brown's field. And then to stand up and explain to Farmer Brown how your double proportioned corner calculation is the true corner, all other evidence to the contrary notwithstanding. After all, you're just doing your job according to the manual. If he doesn't like the results he can find his remedy in court. Where else are boundary determinations to be made?