Traversing the Law: Can the Original Surveyor Blunder?
Now that the seminar season is beginning to wane, I have had some time to reflect on some of the conversations that I have had with surveyors from all across the country. One of the recurring themes I want to address is blunders made by the original surveyor.
As a general proposition, to be an original surveyor, you have to be setting out new lines for the very first time for a common grantor. In most instances, the surveyor is subdividing land either in a simultaneous or sequential fashion. In the simultaneous scenario, the surveyor is usually preparing a subdivision plat to be recorded in accordance with state law in order to create new tracts of land that will be described by lot and block number with reference to the recorded plat. In the sequential scenario, the surveyor is often creating lots by metes and bounds description, and--depending on the circumstances and/or state law--a map or plat may or may not be recorded in the public records.
The fundamental principles of land surveying are not in serious dispute, although we prove by our pincushion corners1 that we often ignore them. You are either an original surveyor setting out the property lines for the very first time, or you are a retracing surveyor whose only function is to follow in the footsteps of the original surveyor, not correct them. The cases reciting these fundamental precepts are legion, and it should be totally unnecessary for me to cite them. And for the moment, we are going to ignore the chasm in the land surveying profession over who’s the original surveyor--the first one to draw the lines on a map or the first one to put the lines on the ground--because for the remainder of this present article, that surveyor will be one-in-the-same.
So the question is: absent fraud or some intentional misrepresentation, can this original surveyor blunder?
The so-called “surveying method” was described best by the Florida Court of Appeals in the 1983 case of Tyson v. Edwards,2 and is essentially the same “method” practiced by the GLO surveyors of old.
The surveying method is to establish boundaries by running lines and fixing monuments on the ground while making field notes of such acts. From the field notes, plats of survey or “maps” are later drawn to depict that which was done on the ground. In establishing the original boundary on the ground the original surveyor is conclusively presumed to have been correct and if later surveyors find there is error in the locations, measurements or otherwise, such error is the error of the last surveyor. Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan. Id
The “surveying method” is to put the monuments in the ground and then prepare the paper map. In this way, the monuments will always supersede and be superior to the paper document. Today, however, this process is often reversed. Basic field work is done, a preliminary plat is prepared, it goes through an approval process, a final plat is prepared, and in some cases, monuments aren’t set until sometime after the plat is recorded. In other situations, lots may even be sold before any monuments are set. This brings up some interesting questions. Under the “surveying method,” the presumption under the law is that all of the parties to the transaction walked the boundaries, observed the monuments in the ground and bought the “dirt” that they encompass.
Prima facie, a fixed visible monument can never be rejected as false or mistaken in favor of mere course and distance as the starting point, when there is nothing else in the terms of the grant to control and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificial monuments rests upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties.3
Now that the surveying method has been reversed, is the purchaser buying the paper depiction of the lot in question or the dirt encompassed by the after-erected monuments? Gurdon H. Wattles addressed the issue in his book, “Writing Legal Descriptions”:4
In the eyes of the law, chronology plays an important role. If monuments can be proven to have been set immediately prior to or coincident with the creation of the description, they are held to be emblematic of, and the physical control of, the written words, and more especially if cited. In contrast, if the timetable shows a material spread between the creation of the deed in words and the subsequent setting of the points on the ground, the monuments cannot be claimed as superior to calls. Id
I agree with his assessment that chronology plays a role, but I will add that the passage of time is a factor as well. And with all due respect, I do not think his last sentence is as dispositive on the issue as Wattles makes it sound. In some jurisdictions after-erected monuments are conclusive on the question of location,5 and all jurisdictions recognize limitations periods beyond which all blunders and the accidents of life are overwritten for the peace and tranquility of society, and to maintain the status quo. This is especially true when it comes to the location of property boundaries.
The law seems quite clear and the courts in the vast majority of jurisdictions seem to agree,6 monuments set before or contemporaneous with a conveyance out of a common grantor are conclusive as to the location of the property boundaries even when they are wildly in conflict with the written descriptions of the property, and time is not a factor. The monuments are instantaneously sacrosanct at the time of the conveyance, therefore the original surveyor is infallible--incapable of blunder--absent fraud or intentional misrepresentation and the following surveyor’s only duty is to find where the corners were originally set, not correct them.
This [the above described principle] does not rest upon any presumption of fact that the parties have agreed upon a different boundary than the deed boundary, but upon the conclusive presumption that they found and correctly located the deed boundary, and that they subsequently took title on either side under their deeds which described their lands to that boundary, and that such boundary line, open, notorious and plainly marked upon the ground, is the boundary referred to in their respective deeds. Clearly it was the intention of both parties taking their title from Chamberlain [the developer] to take to the boundary which he fixed and marked; that was the line referred to in their contracts for their conveyances, and the one which all parties understood to be the boundary between the lots. And it is a principle of most common application in the determination of boundaries, as well as in the construction of contracts, that the intention and understanding of the parties at the time of the contract or conveyance must govern when ascertained. 7
However, we believe the legal principle, which is determinative of the controversy, to be that where adjoining owners take conveyances from a common grantor which describe the premises conveyed by lot numbers, but such grantees have purchased with reference to a boundary line then marked on the ground, such location of the boundary line so established by the common grantor is binding upon the original grantees and all persons claiming under them, irrespective of the length of time which has elapsed thereafter. 8
Man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and by running lines (‘metes and bounds’), and the paper ‘survey’ or plat of survey is intended only as a map of what is on the ground.9
When the surveying method is reversed and purchasers are buying a piece of paper, as opposed to the premises they presumably viewed, there is a time factor that must be added to the discussion. It’s important to keep in mind that every landowner is under an equitable dictate10 to not sleep on their rights, and they must “defend the castle” or risk losing some or all of it. When the original surveyor’s blunder is fresh and all of the owners in the block are equally situated (e.g., little or no improvements along boundary lines), but before reliance and implied agreements such as acquiescence and practical location start to kick in, there is a window of opportunity within which the original surveyor’s blunders can and should be corrected. This is based on the simple reality that after-erected monuments generally do not control location (unless, of course, your state courts have said they do; see footnote 5), and that the boundary establishment doctrines all have an element of time necessary for them to take over control of the boundary location question.
So, yes--an original surveyor setting out original boundary lines for the very first time can blunder, and that blunder can and should be corrected if found in time. These are fact-laden questions that require the gathering and evaluating of the best available evidence in any given situation and the rendering of a well-reasoned opinion of survey. Keep this simple thought in mind: once the status quo becomes the status quo, the courts will be loath to change it. The surveyor will need a compelling reason to so do. Much more compelling than “my computer made me do it.”
- “Pincushion corner” is a reference to multiple monuments being set when only one corner exists in legal contemplation.
- Tyson v. Edwards, 433 So.2d 549, 552 (Fla.App.1983).
- Myrick v. Peet, 180 P. 574, 576 (Mont. 1919).
- Wattles, Gurdon H., Writing Legal Descriptions, 1979, Wattles Publications, Tustin, California, Sec. 8.8.
- See for instance DD&L v. Burgess, 753 P.2d 561 (Wash.App.1988).
- In all of my research into this subject in the various and sundry jurisdictions where I have looked, which does not include every jurisdiction in the United States, I have never failed to find support for these principles.
- Herse v. Mazza, 100 A.D. 59, 62 (N.Y.S. 1904).
- Thiel v. Damrau, 66 N.W.2d 747, 750 (Wisc.1954).
- McGhee v. Young, 606 So.2d 1215, 1217 (Fla.App.1992).
- One of the maxims of equity is that “those who sleep on their rights lose them.” This is the equitable foundation for our adverse possession statutes and all of the court-made boundary establishment doctrines, i.e., acquiescence, practical location, parol agreement and repose.
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.