Black’s1 defines “title” in the real property sense as the “formal right of ownership of property. Title is the means whereby the owner of lands has the just possession of his property; the union of all the elements which constitute ownership.” This definition implicates both the written evidence of title, i.e. a deed, and the physical evidence of title, i.e. occupation.
Just to be sure we are all on the same page: a written document such as a deed, that purports to convey title to the property described therein, is merely evidence of title; it’s not proof of title. The document may convey nothing at all or may not describe the property that was actually conveyed.
We also acknowledge that the mere existence of a recorded deed does not, in and of itself, give us conclusive evidence of a properties’ [sic] boundaries.2
By the same token, the courts have also recognized that occupation is evidence of title--maybe even the best available evidence of not only title to the property, but where it is actually located on the ground.
However, it is well settled that the actual occupation of property is equivalent to the recording of the instrument under which the occupant is claiming an interest. Where property is occupied by someone other than the record owner, a prospective purchaser is charged with constructive notice of all facts which a reasonable inquiry would have disclosed.3
Based on these facts, the circuit court properly focused its analysis on what constitutes the best evidence available to establish the boundary line. The best evidence of the boundary line in the present case is, as the circuit court found, the long occupation of the properties by the parties to the present case, their neighbors and their predecessors in title. According to the record, for more than a century the center line of Henn Road has been honored as the boundary between the properties by not only the parties in this suit (and their predecessors in interest), but also generally throughout the surrounding area and by the government.4
However, from a practical standpoint, when it comes to the breakdown between the legal question (what is the property?) and the factual question (where is the property located?), title to the property is generally considered by attorneys, title companies and many land surveyors to be what is described in the deed. The fact of location has no similar consensus opinion, and, as we have discussed on so many occasions in this column, is one of the most litigated questions facing the land surveyor. And this is the focus of this column: the conflict between what the deed describes and the occupied boundaries. But unlike so many other columns in the past, we are going to look at a new twist in an old argument.
For many attorneys and title companies, there is no conflict between these two competing ideas. If the evidence on the ground, i.e. occupation and existing monumentation, does not comport to the written description of location as contained in the deed, then what’s on the ground needs to be modified to comply. Whether modified or not, exceptions to title will be written into any policies issued and the landowner will be on their own when the boundary dispute goes to court. The title company will defend the title as written--with due consideration of the caveats included in the exceptions--but not insure location.
Too many land surveyors are also onboard with this way of thinking--that title equals location and when in conflict, location conforms to title. I wrote a book5 on the subject and feel it is unnecessary to justify that statement here. The proof of this statement is easily found on the ground and in the maps surveyors issue to their clients and put on the public records.
This way of thinking is not the way the courts generally view the situation. When the deed is in conflict with the reality on the ground, it is the deed that yields to the fact of location.
While the deed to Pilcher furnished the means for locating the boundaries, their actual location was an independent inquiry.6
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 … The boundary is doubtful only because the meaning of the language of the deed is doubtful, and the problem is not how or where to establish bounds answering the calls of the deed but to say what the calls of the deed are.7
We reiterate: ‘It is a familiar rule that it is not the office of a description to identify lands, but simply to furnish the means of identification.’8
The courts in all jurisdictions have described the resolution of any boundary dispute as a two-part question of law and fact.
In construing a description in a deed the court should consider the circumstances of the transaction between the parties and then read and interpret the words used in the deed in light of these circumstances. What are the boundaries is a question of law, and where the boundaries are is a question of fact.9
The purpose of a processioning proceeding is to establish the true location of disputed boundary lines. In such a proceeding, what constitutes the true boundary line is a matter of law and where it is located is a matter of fact. While the question of what constitutes the true boundary between two parcels of land is a question of law for the court, where the boundary is located on the ground is a question of fact.10
“What” the property is, as the immediately preceding quote tells us, “is a question of law for the courts.” It is the role of attorneys to argue this question in court or even possibly advance the notion that what the boundary is has changed, as in adverse possession. This question, or even arguing this question, is beyond the purview of the land surveyor. This doesn’t mean the land surveyor ignores this question. Just like a stop sign, the legal question is what does it mean? The factual question is did you stop? Every citizen is charged with knowing the law. It’s up to the legal profession to actually define it or argue that it means something else.
The factual question of location is completely different. This is the land surveyor’s question, and it is completely within the line and scope of the land surveyor’s duties and responsibilities to give an opinion on the location question. This is the only reason land surveyors hold an exclusive license to survey property. Not to argue the legal question of title, but to opine on the factual location question.
A land surveyor can have a wrong opinion on location; that alone does not constitute negligence. On the other hand, if a surveyor argues title or even that title has changed, this is outside the practice of the land surveyor and entering into the practice of law. This is beyond negligence. I have often been accused of advocating that land surveyors need to be more like attorneys, when just the opposite is true. I argue that land surveyors should be land surveyors and leave the legal arguments to the legal profession. I argue that the retracing land surveyor’s only duty is to find where the property boundaries have already been established on the ground (the fact of location), not to argue that location must necessarily change to conform to the title documents. They are two separate questions. This is the same thing the courts say the land surveyor is supposed to be doing. (See all of the footnotes below.)
When a land surveyor goes to the field and finds two monuments within a subdivision that gives the surveyor a geometric connection to the lot to be surveyed and then from these two monuments, proceeds to lay out the geometry of the lot inconsistent with the established boundaries on the ground, the surveyor is not surveying property; the surveyor is giving a legal opinion on title. When a surveyor finds four locally accepted quarter-section corners and ties them in with GPS and then proceeds to break down the section for the umpteenth time driving in new irons in disagreement with the established boundaries on the ground, this is no longer surveying. The surveyor is advocating a position that title equals location. At least half of this question is the practice of law, not surveying.
Unfortunately, as I have demonstrated in this column on many occasions, this activity is fully supported by our various misguided surveying standards that focus on measurement technicalities to the exclusion of what constitutes good practice relative to the only question open to the land surveyor--location. The fundamental rules of surveying property are relatively simple and straightforward. You are either an original surveyor setting out new property lines for the very first time, or you are a following surveyor whose only duty is to find where the lines have already been established on the ground.11 There is nothing in between.12 There are no title questions to argue or advocate.13 The multiple monuments we leave in our wake evidence our confusion over these basic fundamental principles.14
If land surveying as practiced, in contradistinction to how it should be practiced, is not fundamentally different than what can be accomplished in a GIS, why do land surveyors need an exclusive right to survey property? The answer is they don’t. The land surveying profession better wake up. The sheer weight of events is moving forward without it.
- Black’s Law Dictionary, Sixth Edition.
- Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470, 20 (Tenn.App.2007).
- Dana Point v. Keystone, 491 N.E.2d 63, 67 (Ill.App.1986).
- Northrop v. Opperman, 2011 WI 5, 52 (Wisc.2011).
- Lucas, Jeffery N., The Pincushion Effect, The Multiple Monument Dilemma in American Land Surveying, 2011, Lucas & Company, LLC, Birmingham, Alabama.
- Middlebrooks v. Sanders, 61 So. 898, 899 (Ala.1913).
- Smart v. Huckins, 134 A. 520, 522, 523 (N.H. 1926).
- Harlan Bakeries v. Muncy, 835 N.E.2d 1018, 1031 (Ind.App.2005); citing Criss v. Johnson, 348 N.E.2d 63, 66 (Ind.1976).
- DD&L v. Burgess, 753 P.2d 561, 564 (Wash.App.1988). Citing Rusha v. Little, 309 A.2d 867, 869 (Me.1973) and Texas Co. v. Andrade, 52 S.W.2d 1063 (Tex.App.1932).
- In Re: Boundary Dispute Between Lots 97 and 98 of the C.M. Bost Estate, et al, 681 S.E.2d 553, 558 (N.C.App.2009).
- The various surveying standards rarely, if ever, articulate these duties in the straightforward way the courts do.
- These same standards never make this clear.
- As written and practiced, the surveying standards tend to force these arguments.
- There are surveyors who argue that these are not the fundamental principles of surveying, especially in cases where proper procedure was not followed. Consider my August 2012 column.
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.
Don't miss Jeffery Lucas’ latest book, “The Pincushion Effect.” The book can be purchased through the AEC Store at www.aecstore.com/pincushioneffect.