Rights of Title versus Rights of PossessionI have been following with interest the ongoing series on possession rights versus deed rights in POB magazine. It seems that thinking on this subject is sometimes cyclical.
First, I am sorry to hear the oft-repeated complaint of incompetent boundary surveyors and low prices. In our area I find most of the surveyors to be competent, and in most cases find monuments from recorded surveys in positions consistent with both the map of survey and the deeds of record. I do not ask what other surveyors charge for their work, but have not found myself in a competitive race to the bottom on prices.
The surveyor ignores the instructions in a clear deed at considerable peril. Be aware that a boundary can change through quiet title, certainly. Show possession in conflict with deed boundaries, absolutely. When deed descriptions disagree, understand what document is senior, but recognize (in an overlap) that both owners have color of title, and coupled with long standing possession, a junior deed can carry considerable weight. Discuss this with your client and in a survey narrative. But mark the fence line and ignore the deed?
I am aware of one case in my area where the surveyor in 1948 monumented a long-standing fence as the boundary (ignoring the then never-established interior 1/16th line from which the deed began). In 1981, another surveyor marked the deed boundary, in the adjoiner's driveway, ignoring the possession line. Despite continued active possession to the fence (which could be shown to span 50 or more years), the courts held for the deed boundary. I am not going to say this case was well-argued or that the court made a good decision, but the deed was upheld on appeal. A surveyor has no authority to decide that the fence trumps the deed.
Some states have passed or are considering legislation that would make adverse possession or other quiet title more difficult to prove, especially in the absence of color of title. Courts can look at the same evidence and come to different conclusions. Naked trespass can become title, but to make the assumption that a fence at odds with the deeds represents the true property line is, at the very least, risky.
We as surveyors get to try to second guess the courts of both today and tomorrow. In balancing the rights of record title with the rights of possession, there is precedent for a wide range of judicial opinion and quiet title cases can go either way. We as surveyors need to be mindful of possession and to show possession lines where appropriate, but our professional training and area of recognized expertise is in understanding the record and determining where the deeds put the line on the ground.
Jonathan Spero, RLS
From the Ground UpMarch 2006
I found the juxtaposition of articles in the March 2006 issue of POB to be interesting and ironic. One article titled "How to be Safe" starting on page 28 discusses a new safety training video being prepared by NSPS. Another article "How much safety training is enough?" [Safety Sense] starts on page 50 and talks about OSHA's expectations for safety training. Sandwiched in between these articles is one by Mark Meade [From the Ground Up] explaining surveying support for mapping projects. Amazingly, the photograph accompanying this article shows a GPS surveyor in the breakdown lane of an interstate highway with no safety vest and no safety cones! I hope there is a vehicle covered with flashing lights strategically parked to protect the surveyors. Safety should be a primary concern for everybody.
David W. Humphrey, PLS
Editor's Note: You're right on with your observation, I'll admit. That picture on page 48 is not safe practice and should have been noted as such, if used at all.
The problem in finding graphics for POB that promote safety is a tough one that we struggle with in each and every issue. Not enough surveyors are safe it seems, and their project pictures represent as much. Our hope in publishing more safety-focused articles is to change this. You can help us to help you by remaining safe in the field and in the office, and encouraging others to do so.
Send your letters to the editor at firstname.lastname@example.org.