How do boundary lines become established? This is a critical question for the land surveyor who is interested in surveying property.
What I mean by surveying property is rendering a well-reasoned opinion on the limits of ownership, not simply staking out geometry from a deed or rendering a new mathematical breakdown of a section. These later activities often lead to unnecessary strife, chaos and even litigation, and demonstrate to those who matter (landowners, realtors, attorneys and the courts) that land surveyors don’t know what they are doing.
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable. For these and other reasons the rule has been established that when such owners, being uncertain of the true position of the boundary so described, agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.1
The establishment of boundaries is as old as recorded history, and it has almost nothing to do with land surveyors:
So Jacob took a stone and set it up as a pillar. He said to his relative, “Gather some stones.” So they took stones and piled them in a heap …. Laban said, “This heap is a witness between you and me today ….” Laban also said to Jacob, “Here is this heap, and here is this pillar I have set up between you and me. This heap is a witness, and this pillar is a witness, that I will not go past this heap to your side to harm you and you will not go past this heap and pillar to my side to harm me.” … So Jacob took an oath in the name of fear of his father Isaac.2
Landowners continue to establish their own boundaries today, without the aid of land surveyors:
George’s 18 acres were legally described as: “The West Thirty-Six (36) rods of the North Half of the Northwest Quarter (N 1/2 N.W. 1/4) of Section Thirteen (13), Township Twenty-Nine (29) North, Range Seven (7) East of the Sixth Principal Meridian, Dakota County, Nebraska.” George and Eugene decided not to hire a professional surveyor to mark the boundary. There was a barbed wire fence along the north and south borders of the properties, and George and Eugene mistakenly believed that the middle of the county road represented a section line marking the west boundary of George’s 18 acres. Thus, George and Eugene, with Elliotte’s assistance, took a 100-foot tape measure and some flags and measured 594 feet (36 rods) east from the middle of the county road. Elliotte testified that they crimped a penny over the barbed wire and tied red flags on the fence at the 594-foot line of both the north and the south ends of the properties.3
And when they do, prior to or contemporaneously with the conveyance, the boundaries are established as set in the field, notwithstanding a later mistaken description of the property. In other words, the boundaries thus established and the monuments set to mark those boundaries are infallible.
The true boundary lines of the tract conveyed are where they were actually run, and when such lines, or any of them, are actually marked by monuments placed by the surveyor or the parties at the time to indicate where they may be found, such monuments will afford the most satisfactory evidence of the place where the true lines were located. The original stakes or posts must control the call for courses and distances. When a deed describes by measurements, and at the same time by known and visible monuments, the latter will govern. The rule of applying description of boundaries is—First, to natural objects; second, to artificial marks; and, lastly, to courses and distances given. … A grantee has a right to the land as located by the grantor.4
We often couch the establishment of boundaries in terms of what the surveyor did. The familiar and oft-quoted saying is that you are either an original surveyor setting out the lines for the first time or you are a following surveyor finding where the lines have already been established on the ground. The courts have used these terms, other commentators have used these terms, I’ve used these terms, and, as a general proposition, these terms are true. However, when you drill down to the foundation and really see what’s going on, it’s almost irrelevant what the surveyor does; the relevant question is what do the landowners do as a result of the survey? Do they accept the monuments and go into reliance on those monuments as the true representation of their property limits?
Purchasers of town lots have a right to locate them according to the stakes which they find planted and recognized, and no subsequent survey can be allowed to unsettle their lines. The question afterwards is not whether the stakes were where they should have been in order to make them correspond with the lot lines as they should be if the platting were done with absolute accuracy, but it is whether they were planted by authority, and the lots were purchased and taken possession of in reliance upon them. If such was the case they must govern, notwithstanding any errors in locating them.5
This relatively straightforward process of monumenting the property first and then conveying the dirt surrounded by monuments, rendering the monuments infallible and any mistaken description always subordinate to the actual monuments on the ground, has been complicated by at least two phenomena that have taken place over the last half-century. The first is, due primarily to the influence of subdivision regulations, we typically don’t monument property before the conveyance anymore, although this does happen. The second is that a large segment of the land surveying profession has added a procedure requirement into the equation.
In the case of conveyances being made without the monuments in the ground, where people are buying a piece of paper as opposed to dirt surrounded by monuments, the establishment of these boundaries, to a great extent, is still dependent upon the actions and inactions of the landowners. In contradistinction to the monuments-first rubric where the monuments are instantly infallible, the paper-first scenario adds equitable considerations and an element of time. These are the weeds many surveyors do not want to get down into. It is much more expedient to stake out the math from the client’s deed or break down the section, even though that process has been done several times before. This is how pincushion corners are created—multiple monuments all ostensibly representing one corner under legal contemplation.
To truly find if and when the paper-first boundaries are established requires a thorough examination of the deed and possibly the deeds of adjoiners, reading the deed(s) in light of the surrounding circumstances, the consideration of ambiguities, an examination of collateral and extrinsic evidence, consideration of oral evidence, gathering and evaluating the best available evidence as any other reasonably prudent practitioner would, and rendering a well-reasoned opinion on the only question within the land surveyor’s purview: Where is the property located? The tools available to the land surveyor when rendering this opinion are the boundary establishment doctrines of acquiescence, practical location, oral agreement, estoppel and repose (maintaining the status quo).
I have been led to adopt in my own work the “Principle of Cumulative Evidence.” It seems that, either rightly or wrongly, it is incumbent on the surveyor to collect all the evidence in each case and to carry his work along the lines of the preponderance of probability. In nearly all cases, while some of the data are either ambiguous or even conflicting, there is usually a large preponderance of evidence which point more or less clearly to one solution of the problem, and my own experience, containing some few examples, leads me to believe that this generally indicated solution is probably the right one.6
The procedure requirement is especially nonsensical and even mind-boggling. There is little doubt that the procedure requirement was given birth by the Bureau of Land Management’s “Manual of Surveying Instructions” (the Manual). Under the procedure regimen, it seems that even correct results are to be thrown out if proper procedure was not followed and, conversely, if proper procedure was followed, even incorrect results are accepted. I can’t spend much time in this column providing the proof of the absurdity of this line of thinking. I have spent many of these columns devoted to the subject. Even proof-positive court cases and citations right out of the Manual that have debunked this mythological prerequisite to boundary establishment will not convince the inconvincible of its absurdity.
What I will say is that the procedure requirement is totally focused on the activities of the land surveyor and completely ignores the actions and inactions of the most important people involved in the process of establishing boundaries—the landowners. The other thing I will say is that neither federal law nor the Manual says that private practice land surveyors or landowners who took title under the Public Land Survey System must follow proper procedure, and if they don’t, their activities are subject to subsequent correction. This myth was created out of whole cloth by the land surveying profession, and it is not serving the profession or our clients very well.
Something land surveyors should keep in mind is that our services are not necessarily required or needed. We are not necessary to establish boundaries, we are not needed to retrace boundaries, and we are not required to resolve boundary disputes. These things can be accomplished with or without land surveyors. The only reason we are still around is because we are perceived as being helpful in these matters. When that perception is gone—when we are deemed to be the problem instead of the solution—then society will have no more use for our services. When it comes to the surveying of property, we need to be about the business of maintaining the status quo, not upsetting the applecart.
1 Young v. Blakeman, 95 P. 888 (Cal.1908).
2 Genesis 31: 45-53, NIV
3 Sila v. Saunders, 743 N.W.2d 641 (Neb.2008).
4 Fisher v. Bennehoff, 13 N.E. 150 (Ill.1887). Internal citations omitted.
5 Flynn c. Glenny, 17 N.W. 65 (Mich.1883). Opinion by Cooley
6 Mulford, A.C., Boundaries and Landmarks, 1912, D.Van Nostrand Co., New York, at 42-43.
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.