In 1953 in rural Indiana, the county sent Ma Kettle a letter.



“Ma,” the letter said, “we’re coming out to your property, and we’re gonna put a road between your property and your neighbor’s property, Widow Smith.” They sent Widow Smith a similar letter. Before construction began, the county posted a notice that they were building a road “dividing the lands of a Ma Kettle and Widow Smith.” Using an existing right-of-way of an old abandoned railroad that already separated the properties, bulldozers and graders were soon moving dirt and grading the base for a road. Ma Kettle and Widow Smith looked on in wonder as the city moved to the country. In a matter of months, what was once an old abandoned railroad was miraculously transformed into a two-lane county “blacktop.”

The years passed. Ma raised her children and lived her version of the American dream. Widow Smith eventually passed away, and in 2004, her heirs decided to sell the old homestead. City Slicker purchased the property in order to leave the city and “get a little more elbowroom.” City Slicker hired a surveyor to survey his property lines and, as the courts often say, “trouble soon began.” The survey revealed that part of Widow Smith’s homestead was actually on the other side of the county road in Ma Kettle’s front yard. Ignoring the obvious ambiguities and the reality of the situation, the surveyor drove his irons in the ground and drew the proverbial “battle line” in the sand, essentially saying “let the chips fall where they may.” Shortly thereafter, Ma and City Slicker “got into a fight.” City Slicker erected a fence on his newly discovered boundary line--what had once been Ma’s front yard for more than 40 years--cutting Ma off from the county road, which she had been using for access to her property ever since it was built.

Unfortunately, this same scenario plays itself out, to a greater or lesser extent, thousands of times over. We only read about the few that actually make it to trial and then come up on appeal. This is a case about deed interpretation, boundary establishment and boundary-dispute resolution. These are subjects in which the land surveyor should be well versed. We put ourselves out as professionals who are experts on boundaries and deed interpretation. In addition, as professionals who deal with people’s property, we should know how to resolve their problems related to the only two questions that must be asked and answered in order to render an opinion on boundaries: What is the boundary (the legal question), and where is it located (the factual question)?

The What and Where

The inquiry must start with the client’s deed. The four corners of the document must be diligently searched in order to find intent. Intent is king when it comes to the interpretation of deeds, but when a latent ambiguity is revealed by extrinsic evidence, intent no longer resides in the written words but in the circumstances surrounding the conveyance and the subsequent acts of the parties. We must also keep in mind that “the mere existence of a recorded deed does not, in and of itself, give us conclusive evidence of a properties boundaries.”[1] As other courts have put it: “The issue here is not of a disputed boundary, it is what the deed means. It is an application of the deed to the land, and not of the land to the deed.”[2] (emphasis added)

What the boundary is--the legal question--rarely changes. It’s still the “north line of Lot 9,” the “south line of the southeast 1/4” or whatever other calls the deed requires to be run. The problem, in many instances, is that what the boundary is doesn’t meet our precision expectations when we compare it to the calls in the deed. The deed calls for 100.00 feet, but we found the monument at 99.85 feet. Therefore, because the monument does not meet our expectations of precision, it can’t really be the corner, and we have to drive a new iron in the ground. After all, don’t our “accuracy standards” specify that we must be relatively accurate to within 0.07 feet plus 50 parts per million? We confuse accuracy with precision and vice versa. If we are on the correct monument that represents the true corner, then, relatively speaking, we are 100-percent accurate regardless of precision. One can conduct a survey of property that is 100-percent accurate and describe it in a legal description without ever making a single measurement. Accuracy has everything to do with boundaries; precision is irrelevant except in our surveying minds, where we have confused these two concepts.

Where the boundary is located on the face of the Earth--the fact question--blows our surveying minds. We can’t get over the fact that the fence has become the boundary because it doesn’t meet our precision expectations. Similarly, the monument that we found at the center 1/4 corner can’t really be the true center 1/4 corner because it’s not on a straight line between the opposing 1/4 section corners. Even if we do accept it as the corner marking the “properties” between the surrounding property owners, we must show the “true” theoretical corner 72.560053 feet north and 15.627689 feet west because the monument doesn’t meet our precision expectations and, therefore, cannot truly be the corner. If, however, the found monument is the center 1/4 corner, then it is 100-percent accurate no matter what our precise measurements are telling us.

Back to Ma Kettle

The reality of the situation is that the county road became the boundary between Ma Kettle and City Slicker, and it happened way before City Slicker or his surveyor arrived on the scene. In Indiana, as in many other states, the boundary settlement doctrine of acquiescence is alive and well. Quite simply, it rewrites the respective deeds by way of an implied agreement. As with an express oral agreement used to settle an uncertain boundary line, the doctrine of acquiescence implies that such an agreement has been made based on the obvious acceptance of the boundary by the parties’ actions (or inactions) and enough time passing for the doctrine to ripen.

In the Indiana case of Huntington v. Riggs,[3] the Indiana Court of Appeals addressed the doctrine for the first time since 1982. Before that, the last time the Indiana Supreme Court had addressed it in any meaningful way, defining the principles of acquiescence for Indiana, was in the 1906 case of Adams v. Betz.[4]

As a general rule, it is affirmed by the authorities that where owners of adjoining premises establish by agreement a boundary or dividing line between their lands, take and hold possession of their respective tracts, and improve the same in accordance with such division, each party, in the absence of fraud, will thereafter be estopped from asserting that the line so agreed upon and established is not the true boundary line, although the period of time which has elapsed since such line was established and possession taken is less than the statutory period of limitation. The general rule recognized by the authorities is that a boundary line located under such circumstances, in the absence of fraud, becomes binding on the owners establishing it, not on the principle that the title to the lands can be passed by parol, but for the reason that such owners have agreed permanently upon the limits of their respective premises and have acted in respect to such line, and have been controlled thereby, and therefore will not thereafter be permitted to repudiate their acts. … A valid agreement between owners of land locating a boundary line between them is binding upon each and all persons claiming under or through them, or either of them.[5]

Seeing a need to spiff up the rule and dust it off for the 21st century, the Indiana Court of Appeals clarified:

The line agreement need not be express and may be inferred from the parties’ actions, but there must be evidence of some agreement as to the boundary line. Use and improvement of the land up to the alleged boundary line may be sufficient to satisfy the requirement of an agreement if the adjoining landowner acquiesces. Ownership of the land in this manner vests in the parties even though the property has not been held for the statutory period required under a theory of adverse possession.[6]

The agreement between the parties is implied by their actions and is binding on all subsequent purchasers. Also notice that it has an element of estoppel and that the time period for acquiescence to ripen “is less than the statutory period of limitations.” In Indiana, that time period would be less than 10 years. At the very latest, the county road became the boundary between Ma Kettle and Widow Smith by 1963--and probably way before that because the railroad had separated their respective properties for years prior. Certainly by 2004, when City Slicker had his property surveyed, the true boundary line between Ma Kettle and Widow Smith had been “established” under the law for more than 40 years. The surveyor’s measurements may have been very precise when he drove the irons in Ma Kettle’s front yard, but the survey was totally inaccurate. It identified the wrong boundary line in that the “where” question was completely missed.

Getting it Right

Even if the surveyor in this case had performed an accurate survey and “gotten it right,” that doesn’t end the problem. The next expert measuring surveyor coming along claiming to be a professional who understands property law and deed interpretation (who, in reality, doesn’t have a clue) will jump over that boundary line and drive a fresh set of stakes in Ma Kettle’s front yard sending not only the parties to court but also the surveyor who got it right in the first instance. Nevertheless, being exonerated in court is much better than going to court and proving to the world that you are simply a technician pretending to be a professional. Trained technicians can be taught to make precise measurements. Accuracy requires advanced skills and professional judgment.

Solving people’s problems--not just revealing them--is a hallmark of a true profession. Could any of us imagine the medical profession being able to diagnose medical problems but not being able to help with the healing process? How about the legal profession only being able to tell you the law that you broke but being unable to defend you in court? Why, then, is it acceptable that the surveying “profession” can only find ancient controversies and then must “let the chips fall where they may”? It’s little wonder we can’t attract anything approaching the numbers seen in other professions. Why would the best and brightest want to settle for a career as Sergeant Friday when they can be so much more?

This is not meant as a slight on our best and brightest. It’s meant as a kick in the pants for those who have driven this profession into the ground--and continue to do so--by proving to the world that surveyors are simply technicians incapable of dealing with anything other than measurements.


References

1. Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470, 20 (Tenn.App.2007).

2. Smart v. Huckins, 134 A. 520, 522 (N.H.1926).

3. Huntington v. Riggs, 862 N.E.2d 1263 (Ind.App.2007).

4. Adams v. Betz, 78 N.E. 649 (Ind.1906).

5. Huntington v. Riggs, at 1267, quoting Adams v. Betz, at 652.

6. Id. at 1268.



Author’s note: The story of Ma Kettle is not intended to represent the actual facts of the case that inspired this illustrative column, Huntington v. Riggs, 862 N.E.2d 1263 (Ind.App.2007).

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Neither the author nor POB intend 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.

This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.