There is a line of thinking within and without the surveying community that goes something like this: The surveyor’s only role is to deal with the facts as contained in the client’s deed; all other issues with regard to boundaries can only be determined by a court of competent jurisdiction.

The obvious problem with this line of thinking is that, if this is truly the case, society does not need land surveyors. We need more lawyers and judges, or possibly land boundary commissions that are judicially sanctioned so that every landowner can get his/her day in court. This line of thinking leaves no other choice. If society can’t rely on the results of a boundary survey, what good is it to have land surveyors?

Boundary determinations boil down to two questions: a question of law and a question of fact. “The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.”1 “Our Supreme Court announced in Farley v. Deslonde, ‘As to what are boundaries, is a question of law for the determination of the Court; as to where the boundaries are upon the ground, is a question of fact to be determined by the jury from the evidence.’”2 “In resolving a boundary line dispute, the trier of fact must evaluate all of the evidence and assess the credibility of the witnesses.”3

The problem with many surveys (and I can only assume that it is the vast majority of surveys because I have no statistics to back this up, only anecdotal evidence through conversations with other surveyors and what I read in professional publications and case law) is that these two questions do not get answered. The secondary problem is that all of the relevant evidence is not evaluated when making a boundary determination. The result of these two problems is that landowners (either your client or adjoiners) are often misled into believing they own something that they don’t. No matter how much we want to disclaim responsibility for the results of the survey, i.e., “I only staked your deed,” once monuments are placed and lines drawn, landowners properly think that their lines of ownership have been established. But as we know, this may or may not be true.

Ownership vs. Boundaries

I have been accused of advocating that part of the surveyor’s responsibility is the determination of ownership or title to property. This is not a correct statement of what I advocate or believe. Who owns the property or what they have title to are almost, but not completely, irrelevant to the survey problem. They are relevant to the extent that you do not want to be put in the position of perpetuating a crime or advancing some illegal or otherwise inappropriate activity. I would not want to be working on property for someone other than the owner or some agent of the owner, or other entity with legal rights to the property. But as to exactly who owns what, that is a question strictly for the judge to determine. This is a separate question from what the boundary is and where it is located.

There is an estate (or property), it has certain dimensions, its boundaries have been determined by law (usually state law), the location of those boundaries is a matter of fact, and someone owns the estate on each and every side of every boundary line thus existing. The fact that there is an estate and that there are certain rights associated with that estate are very relevant to the survey. What the boundaries are and where they are located are the principal questions to be answered by the survey. Who owns the estate is significant, but not a primary concern to the survey. There could be 15 heirs claiming an interest in the estate. Who owns what and to what extent is not a survey matter. The fact that there are 15 potential plaintiffs, not including all adjoiners who are potential plaintiffs, along with any number of other third party potential plaintiffs out there who you don’t even know, is significant but not a determining factor in the outcome of the survey. Unless, of course (as we discussed last month), you have become an advocate for your client. Then you have changed the dynamics of the situation.

As we have discussed on several occasions, boundary lines are formed in various and sundry ways controlled by state specific property law. As stated in the quotes from the previously cited cases, the question of what is a boundary line is a matter of law. There is no general treatment of this across all jurisdictions. Knowing your state specific law on how boundaries are formed, treated and recognized is absolutely an indispensable requisite for performing boundary surveys. The devil is in the details when it comes to this aspect of property law. Many states, for instance, recognize boundary by acquiescence. However, the application and the requirements of this boundary doctrine vary widely.

Ambiguity is the "Key"

One aspect of property law seems to have universal application.4 That is when there is an ambiguity in the written instrument of conveyance, the courts quickly dump the writing and move on to extrinsic evidence, parol evidence and then, as a last resort, rules of construction in order to find the intent of the grantor and, to a lesser extent, the grantee.

It has been said by numerous commentators on numerous occasions that there will always be a conflict between the written document and what the surveyor finds on the ground. This is true. There is no perfect deed with the perfect description that will fit perfectly with your field results. By and large, it is the surveyor’s responsibility to “work out” these minor discrepancies and allow everyone to move on with life. But this is where land surveyors get into these circular arguments: “How close is close enough?” I’ll answer that question by saying that I have never heard a court ask that question.5 I’ll further answer that question by saying that, if it never becomes a controversy it never goes to court, and the court never has an opportunity to ask that question in the first place.

In the majority of cases that go to court over the property line dispute where two surveyors are involved, one surveyor says the boundary is “here,” the other says it’s “there.” This is our classic latent ambiguity. The deed itself contains no ambiguities6 but as a result of surveying activity, the ambiguities that lay dormant or “latent” are exposed for the world to see. “Here the court found that there is no official or original plat or survey by which the boundary line can be located, and the evidence shows that the different surveyors do not agree on the location of the boundary line. This clearly creates sufficient uncertainty on which to base a finding of a boundary line by acquiescence.”7 And the universal application is that the court dumps the written instrument because it no longer contains the true intent of the grantor. Put another way, true intent cannot be ascertained from the written document because of the ambiguities.

It is a fundamental precept of property law that courts should construe instruments so as to give effect to the intent of the parties. Yet, any court undertaking the dissection of such an instrument in order to ascertain the intent of the parties is faced with a task which, by its very nature, is plagued with the difficulties and uncertainties that necessarily accompany any probe into mental processes. Fortunately, however, the burden placed on the courts in scrutinizing deeds is facilitated by a body of judicially and legislatively created guidelines for the construction of deeds conveying property. Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument. The court should be careful to try to give meaning to every clause and provision of the instrument. Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created. Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument.8

As was the situation in the Jensen v. Bartlett case cited above, the conflicting surveys forced the court to abandon the written instrument, apply Utah law to identify what the boundary was (an acquiesced boundary line), and then apply the facts in the case as to the location of the boundary. The fact as to the location of the boundary was the fence line between the two estates. This became the determining factor as to the location of the true boundary between the two coterminous landowners. Many states that apply the doctrine of acquiescence require that the location of the boundary, as might be ascertained from the deed, be uncertain; in other words, ambiguity is a requisite element. Other states require only that the two coterminous landowners be uncertain as to the location of the boundary, whether or not it can be located with certainty from the deed. Obviously these are two vastly different scenarios. However, if they are within the understanding of a judge and jury, they are certainly within the understanding of the land surveyor.

Rules of Construction

As a last resort, when extrinsic and parol evidence have been exhausted (or there is a total lack thereof), the courts will turn to rules of construction to determine intent. Again, here is where state specific property law comes into play. In some states these are judicially made rules that have come out of the courts over the years when dealing with deed interpretation. In other states, legislation has been enacted defining the rules of construction.

When, as here, a deed is patently ambiguous, the court must first attempt to determine the intent of the parties from the language of the deed itself, taken as a whole, and from the surrounding circumstances. However, this record is devoid of any extrinsic evidence which might shed light on the parties’ intent, and the language of the deed itself is so contradictory, and the inferences for either construction equally strong, that we cannot reasonably discern from it what legal effect its maker contemplated. Reference to established rules of construction is appropriate in such a situation.9

Turning to Oregon statutes, Title 10, Chapter 93, we find the following:

93.310. Rules for construing description of real property.

The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it:
(1) Where there are certain definite and ascertained particulars in the description, the addition of others, which are indefinite, unknown or false, does not frustrate the conveyance, but it is to be construed by such particulars, if they constitute a sufficient description to ascertain its application.

(2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles or surfaces, the boundaries or monuments are paramount.

(3) Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.

(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title.

(5) When tidewater is the boundary, the rights of the grantor to low watermark are included in the conveyance, and also the right of this state between high and low watermark.

(6) When the description refers to a map, and that reference is inconsistent with other particulars, it controls them, if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.

When the “construction is doubtful” (ambiguous) and there are “no other sufficient circumstances” (extrinsic and parol evidence is insufficient or totally lacking), the courts will turn to the rules of construction for the intent of the conveyance. In that circumstance, the rules of construction become a 1 through 6 “cookbook” on how to determine what the boundary is and where it is located. Whom the property was conveyed to is somewhat irrelevant. However, the question of what the boundary is and where the boundary is located can be answered by the land surveyor and will be answered by the court if the court is forced to make that decision. That question will never be asked of the court if the land surveyor has already successfully completed that task and the affected landowners are living happily thereafter.

Surveyors Are Not Judicial Officers

Surveyors, generally speaking, are not judicial officers. It is true that the surveyor’s opinion as to what the boundaries are and where they are located can be overruled by a court of competent jurisdiction. In order to do that, however, there has to be a case brought into court. In order for there to be a court case, there first has to be a controversy. In most cases involving surveyors, in order for there to be a controversy, there first has to be an ambiguity in the written documents of conveyance that is uncovered by survey results. Using the rules laid down by the courts and the state legislature, surveyors, in the first instance, can answer the question of law as to what the boundary is, and can answer the question of fact as to where the boundary is. Being absolutely correct in answering both of these questions is no guarantee that you will not end up in court. But if I do find myself in court defending my survey, I would rather have the correct conclusion based on a well-reasoned opinion than to have simply hidden behind my client’s deed to ultimately find out that it wasn’t worth the paper it was written on.

What other reason is there for society to have land surveyors?