As we have discussed many times in the past, there is a line of thinking in the surveying community that the surveyor cannot play judge and jury over the location of a boundary line--that only the judge can determine what the boundary line is and where it is located.

The problem with this line of thinking as once again demonstrated by our case-in-chief, Jackson v. Bownas,1 is that the general public is under the impression (and rightly so) that the land surveyor establishes boundary lines and also identifies boundary lines that have already been established. If these people were aware that this is the furthest thing from the minds of many surveyors performing boundary surveys, then they might not commission a survey of their property in the first place. They certainly would not rely on the results of the survey as establishing anything except, maybe, one possible location of a legal description.

Another problem with this line of thinking is that once the land surveyor blazes the lines, sets (or recovers) the monuments and produces a map (or report) of the results of the survey, property owners think that their boundaries have been established and/or recovered. In other words, the property owners have just had their day in court and an adjudication of the true boundary between them. In many instances, they act on the results of the survey to either their benefit or detriment. The surveyor, whether intending to or not, has just been judge and jury over the boundary line in question and the associated rights of the parties. In the vast majority of cases, there is little or no controversy, but those aren’t the cases we hear about. The ones we hear about are where controversy arises as a result of the survey, and the surveyor, wittingly or unwittingly, played judge and jury over the location of the boundary between the landowners.

Facts in the Case

As with all cases that reach the reporters (usually an appellate court opinion), the facts as established at the trial court level are the facts in the case. Once established by the trial court, the facts are the facts and then the court (and the appellate court on review) looks to see how to apply the law to those facts.

This is what makes reading court cases so instructive. We are given a set of facts and the court tells us the applicable law. The courts write these opinions and publish them in bound volumes to instruct and to educate both lawyers and other professionals, as well as the general public, on what the law is and how to apply it under a given set of circumstances. After somewhere in the neighborhood of 1,500 years of English common law and another 200 years of American common law, certain themes and general principles have emerged, especially in the realm of property and boundary law. That is what this column is about and we will continue to “traverse” this law until we have explored every corner of property and boundary law, and other related subjects.

In our case-in-chief, we have two neighbors (adjoining lot owners) living in two separate subdivisions in Blount County, Tenn. The two subdivisions were created out of what used to be two adjoining farms, the “Francis Farm” and the “McGill Farm”; the controversy surrounds the common line between them. Before the farms were developed into subdivisions, the common line between the two farms was marked by an old fence, although the fence was not called out in either of the respective deeds. At the time when the controversy arose between the two neighbors (Mrs. Jackson and Mr. Bownas), the fence (or parts of it) was still in existence and had been for the preceding 60 years.

In addition, locals were still around who had knowledge of the boundary line between the two old farms. The son of the prior owner of the McGill farm testified at trial that his family had owned the farm for 50 years and that he had personal knowledge that the fence had always been the boundary between the two farms. Another witness, who at various times held an ownership interest in both farms, testified concerning the fence and identified it as marking the boundary between the two farms. Mrs. Jackson’s late husband, Robert Jackson, was one of the developers who bought part of the Francis Farm to create the subdivision in which she still resides. Mrs. Jackson herself had firsthand knowledge of the location of the fence and that it had always stood as the boundary between the old Francis and McGill farms.

Surveys were conducted over the years as the property was developed and as lots were bought and sold. Many of these surveys were introduced into evidence at trial. An examination of these surveys revealed, to the court at least, that as time marched along the various calls and monuments marking the common boundary changed, with the exception of the fence. And the surveyed common boundary moved away from the fence, over time, until it finally ended up at Mrs. Jackson’s back door.

Bownas Orders a Survey

In 2002, Mr. Bownas hired E.H. Pitts to survey his lot, which was developed out of the old McGill Farm property. The Bownas lot adjoins the Jackson lot, which was developed out of the old Francis Farm property. The results of the Pitts survey placed the common boundary between the two lots, literally, at Mrs. Jackson’s back door. Subsequently, Mrs. Jackson found Mr. Bownas in her backyard, “trying to determine the property line.” She explained to Bownas at that time that the old fence was the boundary line between their respective properties. Not satisfied with her explanation, Bownas ran a string line along the surveyed boundary line and told Mrs. Jackson that he planned to erect a fence.

On hearing this, Mrs. Jackson hired an attorney who wrote to Bownas on April 12, 2002, “advising him that the property line was the old fence line and if he continued to trespass or build a fence on Mrs. Jackson’s property, she would ask the court to order removal of the fence and award money damages.”2

Armed with the 2002 Pitts survey, without further notice to Mrs. Jackson, Mr. Bownas erected a fence on July 1, 2002, across what heretofore had been Mrs. Jackson’s backyard. In the process, Mrs. Jackson’s wildflower garden and landscaping were damaged. While installing the new chain link fence, the crew hired by Mr. Bownas cut Mrs. Jackson’s telephone lines and electric lines. On the day that happened, Mrs. Jackson asked Mr. Bownas if he knew he had cut the telephone line, to which he replied “So I know it now.” Mr. Bownas placed a “Posted: Keep Out, No Trespassing” sign on the fence eight feet in front of Mrs. Jackson’s sunroom. The new fence was eleven (11) inches from the rear entrance to her home.3

Surveys Reveal Latent Ambiguity

As we have discussed on many occasions, and as recently as last month, the results of surveying activity often reveal latent ambiguities in the written documents of conveyance. This case is another example of the principles involved. When the written documents of conveyance (e.g., deeds along with survey plats), contain a latent ambiguity, the court has no choice but to dump the documents and look to extrinsic and parol evidence in order to determine intent.

Pitts missed this fact during the course of his survey and testified that the monuments along the disputed line had remained consistent over the years.

According to Mr. Pitts, while the calls for the boundary line in dispute may vary among the surveys and plats due to use of different bearings systems, the monumentation on the ground i.e., iron pins and concrete monuments, have remained constant. Therefore, according to Mr. Pitts, there is no real disagreement or inconsistency among them.4

Both the trial court and the appellate court on review disagreed. The trial court, among other findings of fact observed:

The Court further finds that many surveys of the various property (even by the same surveyor) are totally inconsistent with one another and that pursuant to applicable Tennessee law, it is the Court’s obligation and duty to look to the long established boundary line between these parties as being their true, correct and accurate property line.5

The appellate court reviewed the surveys that were admitted into evidence and, beginning in 1964 up to the 2002 survey by Pitts, noted inconsistency after inconsistency. In summation the appellate court added:

Clearly, the beginning monument designation has changed throughout the surveys including a post oak, black oak, and iron pins. The monumentation marking the end of the disputed line has also changed. Many of the surveys and plats are successively depicting smaller pieces of property so that is one reason new monuments are added to designate new end points. In addition, it is important to note that new monumentation also had to be added since existing monuments had been removed. Interestingly, the 2002 survey by Mr. Pitts shows a new pin marking the corner of the disputed line.6

This is when extrinsic evidence and testimony of locals as to the location of the true boundary between the coterminous landowners becomes crucial. The trial court made, among others, the following findings:

Based on the testimony of the parties, their witnesses and the entire record in this case, the Court is of the opinion and finds that by clear and convincing evidence, Plaintiff has established that the common boundary line in dispute as between these parties has been the fence separating the “Francis Farm” as the “Magill Farm”7 since at least 1937.

The Court further finds that the subsequent owners of both the “Magill Farm” and the “Francis Farm” recognized the farm fence as the boundary lines, as have their successors in title for many years.

The Court further finds that on September 11, 1964, the Plaintiff and her now deceased husband obtained title to and took possession of the land upon which her residence is now situated; that for almost forty (40) years Plaintiff has openly, notoriously and continuously owned, had exclusive possession of and controlled said property, until Defendants erected a new fence on July 1, 2002.8

Judge and Jury

As far as Mr. Bownas was concerned, Pitts was both judge and jury when he marked the boundary between Bownas and Jackson. I have no doubt that this was the furthest thought in Pitts’ mind when he conducted his survey of the boundary between Bownas and Jackson. Like so many other surveyors, Pitts didn’t perform a boundary survey; he staked a legal description on the ground and set his irons in, apparently, one of many possible locations. How did Bownas benefit from the survey he commissioned? For that matter, how did Mrs. Jackson benefit? The simple answer is nobody benefited.

The Bownases also challenge the basis and amount of the damage award of one hundred dollars ($100) for each day the fence was in Mrs. Jackson’s backyard. The fence was in Mrs. Jackson’s backyard 698 days for a total monetary judgment of $69,800. The basis for the monetary award according to the trial court is confiscation of property or trespass.

Mrs. Jackson was clear with Mr. Bownas from the beginning that her property stretched to the old fence line. By letter from her counsel, Mrs. Jackson let him know that she would seek monetary damages if he erected a fence on her property. Mr. Bownas built the fence in spite of the objections of Mrs. Jackson. While Mr. Bownas obtained a survey, he chose to rely on its accuracy to the clear detriment of Mrs. Jackson. Erecting the fence was not Mr. Bownas’s only option. He could have filed an action to establish the line.9

I want to be clear on this point: Surveyors possess no judicial authority to establish boundaries between coterminous landowners. Every boundary between coterminous landowners has already been established by law (the law of the situs state) and the location is simply a question of fact. The surveyor, however, possesses all the authority he or she needs to understand the law of boundaries and to apply it in everyday practice. This is why the cases are published to begin with: to instruct and educate. In addition, the surveyor is free to gather the evidence necessary to establish the fact of where the boundary is located. The surveyor in this case became de facto judge and jury over the boundary between Bownas and Jackson. Unfortunately for both of these parties, the correct law was not applied and critical evidence was overlooked that would have put the surveyor on the true boundary line, the result being unnecessary litigation and damages to the landowners.

We’ll occupy a new point and continue our traverse of the law next month.