This column is usually dedicated to examining a court case involving land surveyors and land surveying activity, reviewing the facts in the case, and extracting the legal concepts that are generally applicable to our practice. 

This column is usually dedicated to examining a court case involving land surveyors and land surveying activity, reviewing the facts in the case, and extracting the legal concepts that are generally applicable to our practice.


This time around, we are going to take a generally applicable legal concept, create our own set of facts, and see whether the law supports the concept.

Every time I have presented this fictitious case, no matter what state I am visiting, most surveyors initially support the legal concept, and I always find local state law that supports it, as well. But when I apply the thumbscrews to the math and measurements, even the most ardent supporter has second thoughts, and many eventually capitulate. 

The Legal Concept

The generally accepted and applicable legal concept that we are examining is that original monuments set by the original surveyor are infallible, absent fraud or gross blunder prior to reliance and bona fide rights setting in as recognized under state law. The rules of construction applied by the courts in the various jurisdictions recognize monuments as paramount to measurements and acreage as long as application of the rule does not produce absurd results. This is a presumption under American property law, but it is a rebuttable presumption. Even original monuments set by the original subdividing surveyor can be defeated under the right set of circumstances. Generally speaking, if the monuments set by the original surveyor are relied upon by subsequent entrymen, then they become infallible, not because of what the land surveyor did or did not do but because of what the entrymen did vis-à-vis acceptance and reliance. Once accepted and relied upon, time and equity confirm this acceptance. The law implies agreement to the lines thus established, and repose will maintain the status quo. 

The Facts of the Case

In 1970, Garfunkel purchased a wooded tract in an unrecorded subdivision surrounded by roads on all four sides. The four corners of the wooded tract had monuments in place, and the exterior boundaries are not in dispute. Garfunkel subdivided the tract into 10 smaller lots and caused a subdivision plat to be prepared and recorded on the public records. He hired surveyor Sam Smith to prepare the plat of survey and to set monuments at all of the corners. According to the recorded plat, Smith set 3 inch by 3 inch wooden “stobs” at every lot corner, with the exception of the four exterior corners of the original tract, which he ostensibly found in place. The plat was recorded in 1974. (See Figure 1.)

Over the years, the lots were sold, houses were built and improvements were made, with the exception of Lot 9, which remained unsold. In 2008, Johnson, an out-of-state purchaser, bought Lot 9 with the intent of eventually building a small cabin for retirement. By 2010, the economy was terrible, and Johnson was given an early retirement package from his company, which he accepted. He bought his log cabin kit, and the log cabin manufacturer hired a local contractor to build the cabin on Johnson’s property. The contractor told Johnson he needed to have the property surveyed, so Johnson found a local surveyor through an Internet search. Johnson called the local surveyor, Wilson, and had a phone conversation about surveying the property and, of course, how much it would cost. Johnson told Wilson he needed to know where the property lines were in order to get a building permit. Wilson, being somewhat familiar with the area, although he had never worked in Garfunkel Subdivision, gave Wilson a lump sum fee over the phone. Agreeing with the price, Johnson then verbally authorized Wilson to proceed.

Wilson went to the field and found Lot 9 to be a vacant, wooded lot. All of the other lots in the subdivision had single-family dwellings, and all of the lot lines were visibly well occupied with fencing and other such perimeter improvements. Wilson looked for the corners of Lot 9 at the obvious locations based on occupation but found no monuments. Going out to the block corners, Wilson found all four block corners occupied by 2-inch open-top pipes, as called for on the subdivision plat. Working from the two block corners on his side of the subdivision, Wilson proceeded to zero in on the corners of Lot 9. This is when he noticed huge problems with regard to the occupied boundaries. His tie to the nearest block corner was about 2.5 feet long, and the front lot dimension was more than 3 feet short. Continuing around the lot, things got continually worse.

Wilson made an executive decision to go around the rest of the block and try to find any monuments he could. Failing to find monuments, he would just locate the occupied boundary lines for further evaluation back in the office. Wilson ran a quick traverse around the block looking for monuments, finding none, and tying down all of the fence corners and other obvious corners of occupation. While tying in these corners, he noticed many of the apparent boundary lines had old painted blazes in the trees. Once he noticed these blazes, he re-examined all of the apparent boundary lines and observed they all had such blazes, even the apparent boundaries of Lot 9.

While making this inspection trip around the block, the resident of Lot 6 came out of his house to retrieve his mail. This local, an older gentleman, said hello to Wilson as he walked by. After this brief exchange, Wilson noticed the unusual name on the mailbox: Garfunkel.

Back in the office, the results of Wilson’s survey of the occupied boundaries was as found in Figure 2. The red lines indicate the occupied boundaries, and the black lines indicate the platted boundaries by dimensions. Where are the property lines for Lot 9, red or black?

The Property Lines for Lot 9

Figure 1

What, you say, not enough information? Probably not; however, with notoriously low budgets for such surveys and no formal contracts that allow for unforeseen circumstances such as these, I hesitate to put a percentage on how many surveyors would make a decision with only the facts as I have presented them. I hesitate because my experience with discussing this matter all across the country indicates that the readers of this magazine wouldn’t believe the number I have in my head. Let’s just say that a very large percentage of surveyors would set new monuments on black and call it a day. Wilson is already over budget with his unplanned foray around the block; all he has time for now is to set the corner monuments and let the chips fall where they may. But the question remains, did Wilson survey Johnson’s property?1

Let’s give Wilson some more time. Let’s say he had a contract that allowed for contingencies such as this, or let’s say Wilson just doesn’t have anything better to do because there aren’t any other projects waiting back at the office, so he decided to pull out all of the stops, budget be damned. The very first issue is that these occupied lines cannot be ignored. You must have a reason to accept or reject them. If they are the best available evidence of the location of the original monuments, then they can’t be rejected in favor of mere measurements. If they are simply fences of convenience and not intended as boundary lines, then sometimes a fence is just a fence and an encroachment is just an encroachment.

Back in the office looking at the results of the survey of the occupied lines, Wilson remembers the old man with the unusual last name and wonders if it could be the same Garfunkel who originally subdivided the lots. The next day, Wilson goes back to the subdivision and knocks on Garfunkel’s front door. After a brief introduction and the offer of a business card, Garfunkel acknowledges that he is the original developer. Garfunkel invites Wilson in and tells him all about the subdivision of the land.

Garfunkel was working on the cheap and hired the cheapest surveyor he could find--Sam Smith, who was already well past his prime--to lay out the lots and prepare a plat. Smith didn’t have helpers or equipment. Working with a boy-scout compass for line and pacing for distance, Smith had Garfunkel follow him around with a sack of 3 inch by 3 inch wooden “stobs.” Every time Smith stopped and pointed to a spot on the ground with the toe of his boot, Garfunkel would drive in a stob at a lot corner and douse it with paint. After all of the corners were set, Smith and Garfunkel chopped out each lot line and painted the blazes in the trees. Smith told Garfunkel the measurements weren’t as important as the monuments (stobs) and the blazed lines. Smith also told Garfunkel that every time he sold a lot, he was to walk each perspective lot owner down the lot’s lines and show them the blazes in the trees and the stobs at the corners.

Garfunkel told Wilson he did that with each lot purchaser over a 10-year period until all of the lots were sold, with the exception being Lot 9, which didn’t sell until 2008, to an out-of-state buyer. After all of the lots were staked and blazed, Garfunkel told Wilson, Smith finished the survey map, and Garfunkel recorded it. As the subsequent lot owners moved in and built houses, Garfunkel told Wilson they all built their perimeter improvements right down the lines that Garfunkel had shown them. The reason Wilson wasn’t able to find the stobs is because the vast majority of them were either buried or replaced with fence posts. Garfunkel told Wilson that when he put his fence posts in, he removed the stobs, dug the hole for his post and then dropped the stob down in the bottom of the hole in case he ever needed to “prove” his corner, but in the 36 years since the subdivision had been created nobody had ever questioned the boundaries. Based on this new evidence, where is the property line for Lot 9, red or black?

Does the Law Support the Concept?

Figure 2

Everywhere I have taken this example, I have looked for local state law to support the concept and have found it. The following is a sampling from several jurisdictions:

And whenever it can be proved that there was a line actually run by the surveyor, was marked and a corner made, the party claiming under the grant or deed, shall hold accordingly, notwithstanding a mistaken description of the land in the grant or deed.2

We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained.3

As demonstrated by the modern case law in Ohio, contrary to appellants’ contention, adjoining landowners do not need to specifically agree to a certain boundary line different than the line described in the deed before the doctrine of acquiescence applies. The doctrine is applicable when adjoining landowners mutually respect and treat a specific line as the boundary to their property for at least twenty-one years.4

A boundary line is established by mutual recognition and acquiescence if it is clearly defined on the ground--by a fence, for example--and the adjoining parties in interest have engaged in good faith conduct manifesting mutual recognition and acceptance of the line as the true boundary. The acquiescence must continue for 10 years. It is sufficient that the adjoining parties in interest have demonstrated, by their actions with regard to the asserted line, a genuine and mutual recognition and acquiescence in the given line as the mutually adopted boundary between their properties. This gives rise to an implied agreement fixing the common boundary.5

The primary objective in locating a survey is to “follow the footsteps of the surveyor”; by which is meant to trace on the ground the lines as he actually ran them in making the survey. … When the actual lines run by the surveyor can be found, they constitute the true boundary and cannot be made to yield to course and distance calls.6

The arguments made by surveyors for throwing out the red lines and holding the black lines are too numerous to detail. They range from zoning violations, to black represents true intent, to title companies will not insure, to “I can't torture the math and measurements like that.” None of these arguments changes the property lines in the scenario I have given. And since the red lines are the property lines, then the black lines do not exist; they only exist in our land surveyor imagination.

The legal concept is well supported in case law. The question remains, however, whether the land surveyor supports the legal concept.

 

References

1. In my next column, we will explore whether Wilson is supposed to survey property.

2. Riley v. Griffin, 16 Ga. 141, 143 (Ga.1854).

3. Theriault v. Murray, 588 A.2d 720, 721, 722 (Me.1991).

4. McGregor v. Hanson, 2000 Ohio App. KEXIS 2666, 11 (Ohio App.2000).

5. Davies v. Langshaw, 2006 Wash.App. LEXIS 2795, 12, 13 (Wash.App.2006).

6. TH Investments v. Kirby Inland Marine, 218 S.W.3d 173, 204 (Tex.App.2007).

 

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.