Traversing the Law
"The surveyor, having made an evaluation of the evidence, forms an opinion as to where he believes the lines would be located if fully adjudicated in a court of law. The typical modern day surveyor sees himself as an expert evaluator of evidence. He strives to arrive at the same opinion of boundary location regardless of whether he was hired by his client or his client's next door neighbor."1 If only this were true.
Unfortunately, many surveyors (and, from my own observations, possibly the majority of surveyors) do not believe their role to be "expert evaluator of evidence." Instead, they see themselves as "expert measurers," restricting their evaluation of evidence almost exclusively to measurement evidence. And as I have been discussing over the past several installments of this column, many surveyors see their only role as using their expertise in measurements to put deed descriptions on the ground, all other evidence to the contrary notwithstanding. This will generally be a losing position to take when or if the case goes to court. The case-in-chief I will discuss in this article, Dykes v. Arnold,2 is just the latest example of the land surveyor's misunderstanding of boundaries and the surveyor's role in the process--to form "an opinion as to where he believes the lines would be located if fully adjudicated in a court of law."
The basic facts of this case are strikingly similar to a fictitious situation I made up about five years ago for a series of "Pincushion" articles I wrote for various state society newsletters. That scenario was based on a record I found of a Mississippi county surveyor "stubbing in" the center of section in order to subdivide the section into quarters and quarter-quarters.3 See Figures 1 on page 54 and Figure 2 on page 56 for more details about this scenario. "Stubbing" refers to any number of ways of subdividing a section, short of running lines north-south and east-west through the respective quarter and quarter-quarter section corners, as called for in the 1973 BLM Manual of Instructions (the Manual) and federal law.
In our case-in-chief, this is exactly what our county surveyor, Derrick, did in 1899. Derrick ran the east-west line through the section and set the center of section at the midpoint. This is not the method called for in the Manual or in any version of it that I am aware of. When I did a boundary seminar in Missouri using my Mississippi scenario of stubbing in the center of section, many of the seminar participants called it an "illegal subdivision" in need of correction. This is exactly what the plaintiff in our case called Derrick's subdivision--illegal and in need of correction. Nevertheless, Derrick's subdivision stood, illegal as it may have been, for the next 100 years. Other parcels were further subdivided from it, first by aliquot parts descriptions (i.e. southeast quarter, southwest quarter, etc.) and then eventually by metes and bounds, beginning or commencing from the "center of Section 12." Families moved in, fences were erected, roads were built--all in reliance on Derrick's illegal center section corner.
The court record doesn't tell us what the original controversy was relative to the boundary between the plaintiff and the defendant. What we do know is that each side hired its own surveyor to determine the all-important center of section upon which all of the surrounding properties and property owners relied, and the two surveyors came up with--you guessed it--two different results. We also know that once a surveyor, through the results of the survey, shows a landowner that he owns more land than that landowner thought he owned (and, conversely, shows the adjoiner that he owns less than he thought), the next move is either guns or lawyers, or both. In our case, the parties chose lawyers.
Commenting on the surveys, the court said: The two surveyors took dramatically different approaches to the task. Defendant's surveyor, Nyhus, aware that the center had been surveyed and marked in 1899 by the Lincoln County Surveyor, attempted to locate the center as set by that survey. He believed that he succeeded and that the section's center, as set in 1899 by the county surveyor, Derrick, coincided with the accepted boundary lines in the area as reflected by the deeds, county road location, fence lines, and lines of occupation of the last 100 years. Plaintiffs' surveyor, Denison, made no effort to retrace that prior survey because he thought it was flawed in its methodology. He therefore set out to locate the center anew, using the legally prescribed methodology and modern survey techniques and disregarding any evidence of the boundaries as reflected in the deeds, fence lines, county road location and lines of occupation.4 In other words, to frame the situation in terms that I discussed at the beginning, Nyhus attempted to be an expert evaluator of the evidence and Denison applied exacting measurement to a deed description.
The Principles at Work
The principles at work here are the same principles that we have already been over. They are the same in Oregon as they are in Alabama and as they are in Pennsylvania. One principle is that intent is king, and intent must be found by searching the four corners of the deed of conveyance. When there is an ambiguity, such as when two surveyors come up with two different results from the same deed, the court is free to leave the instrument to look for intent. "Alternatively, the reference to "˜the center of section 12' may also be considered ambiguous, in which case we can consider parol and other evidence as to what the parties intended."5 This is exactly what the court did. They brought in all of the neighbors to testify as to where the true boundary lines were, to testify as to occupation, and who built the fences and what they stood for. This is the same kind of evidence that each of the surveyors could and should have considered.
Another principle at work here is that, for the repose of society, property boundaries long held and relied upon by the landowners will not be disturbed by later notions (in particular, the notions of land surveyors) as to where the boundaries ought to be. This is a basic and fundamental principle of boundaries. Boundaries are not always established by what a deed says; Boundaries are established in many different ways. Last year we discussed at least a half-dozen ways by which boundaries are established. The underlying principle, or "doctrine of the law," is repose.
As already described, federal law specifically dictates that the boundaries and markers placed on the ground by federal surveyors are binding, even if the surveyor did not follow the instructions in the Manual or otherwise performed the survey inaccurately. In effect, the settled rule for federal government surveys accords dignity to the boundaries and monuments physically set on the land, even when not done pursuant to the applicable survey law. The rule is one of repose. 6
The "¦ long established occupational lines are not to be disturbed by recent surveys and "¦ settled boundaries shall be allowed repose and shall not be disturbed. More importantly the Daley Court observed that if there is a lack of an agreement which would thus threaten an otherwise settled boundary then the court did not hesitate to "imply" agreement from the conduct of the parties, or from surrounding circumstances. The court concluded that the doctrine of repose has the same policy as that behind statutes of limitations. 7
Another principle at work is that federal law, generally, does not apply to private property rights. Once the GLO surveyors left the field, the further subdivision of the sections was left to the county surveyor in many cases, if such an office was created. If not, the task of the further subdivision of the sections was left to private practice surveyors. Federal law and the Manual have nothing to do with private property boundaries, even when those boundaries are ostensibly based on the federal model, by way of aliquot parts descriptions (i.e., quarter, quarter-quarter, etc.).
It is less apparent than plaintiffs assume it to be, however, that the instructions in the Manual are binding by their own terms on a local interior survey of lands that have passed by federal grant into private hands. The instructions expressly observe that, as a rule, the "sections are not subdivided in the field" by the federal government, although "certain subdivision-of-section lines" (e.g., interior quarter-section boundaries) are protracted on the plat. Instead, the "local surveyor is employed as an expert to identify lands which have passed into private ownership," a task that entails the "subdivision of the section into the fractional parts shown upon the approved plat." As the Manual observes, it is "a matter of expert or technical procedure to mark out the legal subdivisions called for in a patent," a process that includes "locating the legal center of the section in order to determine the boundaries of a quarter section." The Manual further observes that, in performing that survey work, "the local surveyor is performing a function contemplated by law."
But the Manual cautions that the federal government "assumes no control or direction over the acts of local and county surveyors in the matters of subdivision of sections and reestablishment of lost corners of original surveys where the lands have passed into private ownership[.]" The rules that control the acts of the federal government's own surveyors are, instead, to be considered "by all other surveyors as merely advisory and explanatory of the principles which should prevail in performing such duties." And, even as to disputes over uncertain or erroneous location of corners or boundaries originally established by the federal government, the federal government will exercise no jurisdiction; those matters, too, are to be settled by local authorities. Thus, in all respects, once the land is conveyed into private hands, the states, not the federal government, have jurisdiction over it. [Emphasis added.] 8
The final principle at work that we are going to discuss (although certainly not the only remaining principle to be taken from this case) is that equity prevails. The jury was dismissed in this case, because after the evidence was presented, the trial judge saw that equity was the only real issue, and equity is not a matter for a jury to decide. Based on 100 years of reliance, and for the repose of society, Derrick's center of section was held as the true center of section. To come to any other conclusion would be inequitable. "No evidence suggests that Derrick's survey was called into question for nearly 100 years. To the contrary, the record amply persuades us that the local reliance on Derrick's center has been extensive and long-standing. As Nyhus put it, "˜chaos' could ensue throughout this area of section 12 if Derrick's center were disregarded and the center of section 12 were located based on the correct methodology and modern survey techniques."9 The point here is crystal clear--this isn't rocket science. If the results of your survey are going to be "hair raising"10 or if "chaos" will ensue, you had better step back and reconsider your evidence, your methodology--or both.
Occupational rights (boundaries) that have ripened into legal rights (title) are the most superior boundary lines that we will encounter as land surveyors, and they are the least understood by the land surveyor. If equity prevails, after 21 years of good faith occupation,11 no other boundary line12 is superior. A boundary as identified in a deed of conveyance is only evidence of title, not proof of title. Similarly, a senior conveyance means nothing if occupation has trumped the conveyance. Time and time again, surveyors make boundary determinations based on inferior evidence, flawed methodology, and a basic misunderstanding of boundary law. Not every surveyor with a license should practice boundary surveying--it is a specialty that requires expert knowledge in property law and the rights associated with the ownership of property. To practice boundary surveying as an expert measurer, disregarding the other evidence of boundary lines is inviting litigation, not avoiding it.
To Be Continued
In my next column in the November issue, we'll discuss the illegal subdivision by Derrick. We'll also discuss the federal (and state) instructions for the subdivision of sections and the land surveyor's misinterpretation of those instructions.
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 in your jurisdiction.