One of the things that has often fascinated me about the law as I continue to read and write about it is the concept of a statute of limitations. That after a certain amount of time something that was once a wrong, while it may not ever become a right, will eventually be forgiven and we can move on and not worry about it anymore. Limitations on negligence is a good example. To clarify, I am talking in the civil context and not the criminal.

I have often told surveyors that property law, especially boundary law, has built-in limitations periods. These are not statutorily enacted limitations, but court-made limitations. The most common in the boundary context are the so-called location doctrines; the common grantor doctrine, the doctrine of monuments, boundary by oral agreement, boundary by acquiescence, boundary by practical location, estoppel and the all-encompassing rule of repose. Most rules of repose are in the 20 to 30 year range.

Since McArthur v. Carrie's Admr., 32 Ala. 75 (1858), this State has followed a rule of repose, or rule of prescription, of 20 years. This principle of repose or prescription is similar to a statute of limitations, but not dependent upon one, and broader in scope. It is a doctrine that operates in addition to laches. Unlike laches, however, the only element of the rule of repose is time. It is not affected by the circumstances of the situation, by personal disabilities, or by whether prejudice has resulted or evidence obscured. It operates as an absolute bar to claims that are unasserted for 20 years.[1]

Adverse possession is also a boundary establishment doctrine, but it is more than that. It will also settle the title question along with the location question. More than this, however, since it is always statutorily enacted it also serves as a statute of limitations.

Falling right on the heels of these doctrines are the fundamental principles of land surveying. You are either an original surveyor laying out original lines for the first time or you are a following surveyor whose only function is to retrace where these lines were originally laid out, not to correct them. As we all know, there is a lot more that goes into that discussion and I’m not going there with this column because I have other ground to cover.

The point to be made is that unlike a statute of limitations where a wrong may never become a right, in the boundary context a mistake in location will eventually be the correct location in due course because of the fundamental principles of land surveying and the built-in court-made limitations—if surveyors would allow this to happen.

But many surveyors simply can’t or won’t allow this to happen and this is the point of this column and has been the point of several of my most recent columns—how can we work towards a practice model that maintains the status quo as opposed to constantly upsetting the applecart?

Good Public Policy

The reason we have statutes of limitation is that they fulfill valuable public policy needs. Life is too short, after a certain amount of time we need to be able to move on. Adverse possession says, in essence, if you aren’t going to take care of your property we will give to somebody who is already doing that job. This goes back to the ancient idea that we do not want to see property go unused, especially if someone else is willing to use it and make it productive for society as a whole.    

As a matter of public policy and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into.[2]

I recently covered a statute of limitations case, guised as an easement case, for my monthly newsletter. It is a case I have covered in this column in the past, H&F Land, Inc. v. Panama City-Bay County Airport and Industrial District,[3] but this time around I had a totally different take-away given my somewhat recent interest in exploring ideas that could fundamentally change the way land surveying is practiced—hopefully for the better—and keep traditional land surveying relevant well into the 21st century.

The Marketable Record Title Act

The reason I first covered the case was because it dealt with the Marketable Record Title Act (MRTA) as it has been enacted in Florida. My most recent reason for revisiting the case was MRTA’s impact on a common law way of necessity—an implied easement servicing a landlocked piece of property. As the Florida Supreme Court noted, MRTA is both a recording statute and a statute of limitations on old stale claims. The court gave us a basic explanation of MRTA:

In landmark legislation fundamentally revamping Florida property law, the Florida Legislature adopted MRTA in 1963 for the purpose of simplifying and facilitating land title transactions. MRTA was designed to simplify conveyances of real property, stabilize titles, and give certainty to land ownership. MRTA is based on the Model Marketable Title Act, which was proposed in 1960 with multiple objectives: (1) to limit title searches to recently recorded instruments only; (2) to clear old defects of record; (3) to establish perimeters within which marketability can be determined; (4) to reduce the number of quiet title actions; and (5) to reduce the costs of abstracts and closings.[4]

Do you see what I see? The title attorneys and title companies got together and decided that they wanted a model law that would simplify the task of searching and insuring title. A process that would eliminate old problems, ensure marketability, reduce litigation and associated liability, and reduce costs. Another thing that it does is it levels the playing field so that all of the title companies and title attorneys are working from the same basic parameters. It also establishes a correct answer. Couldn’t the land surveying profession—the guys and gals in charge of the location question—use something akin to MRTA?

MRTA sets up something called the “root of title,” which refers to the last title transaction creating the estate in question and which was recorded at least thirty years ago. Once there is a root of title it extinguishes all earlier claims in the record to the same property. In essence, this is now the superior conveyance.The public policy issue here are clear. Society hates ancient controversies and MRTA extinguishes them after 30 years.

Here’s The Rub

I am almost loath to say what I’m about to say next because I know I am going to get the flaming-arrow e-mails, I can already hear the cries of heresy, the wailing and gnashing of teeth, and the inevitable lynch mobs gathering at the next conference I attend. This actually happened once. The only reason I was spared is that my wife was there and they took pity on her because they did not want her to see me dangling by the neck from a second-story balcony. But I digress.

Folks … after thirty years the location question should be a settled matter. I don’t care if you find an original monument set by George Washington. If it doesn’t match the status quo as has been established for the last thirty years, pull it up, take it home and put it on the mantel. Everybody else wants to move on save the land surveying profession. Life is too short and our standing in society is too precarious for us to continue to be the source of ancient controversies when it comes to boundaries. We need to be problem solvers not trouble makers.    

One of the built-in rubs that we have within the land surveying profession, which is actually part of the land surveyor’s DNA, is our never-ending search for ancient controversies. We are taught at the very beginning of our career that we must find the original monuments set by the original surveyor, no matter how long that takes or how long these monuments have come up missing. Even if the rest of the world has moved on, it seems the surveyor’s duty is to remain focused on the past.

Another problem that we have, that is fairly wide-spread, is surveyors of the past did not do this work diligently. They didn’t exhaust all measures to find missing original monuments. Shortcuts were taken, evidence ignored, math applied and new corners set. These new corners get accepted by the local landowners, improvements get built to them, new subdivisions hang off of them, reliance sets in, and then some county surveyor decides to dig up the intersection and finds the original sandstone monument six feet down and 8.25 feet away from the spike that was in the middle of the intersection and used by everyone for the last 60 years. To what end? 

There Needs to be an End

We could use a model code similar to MRTA, except with a focus on settling the location question as MRTA settles the title question. Notwithstanding many of the obvious problems with accomplishing such a task (lawyers, guns and money, to name a few), the Model Marketable Title Act was first promulgated in 1960. Last time I wrote about this I did an internet search to try and find out how many states had adopted the model act. At that time I read an article that said about 22 out of 50 states had adopted some form of the act. It only took 50 years to get that many jurisdictions onboard. I don’ think we have that kind of time on our hands, at least I know I don’t.

That does not mean that we could not use a MRTA type code as a model for what should be acceptable practice. A survey on the record that goes unchallenged for over thirty years should become the “root of location” and settle the question of location, extinguishing all previous surveys and boundary evidence to the contrary. Once it has reached this status, it should also settle all future location questions.

I certainly can’t predict the future, but one thing I am fairly confident of is that our current practice model, which is let the chips fall where they may, will eventually bring an end to traditional surveying as we currently know it (that part of surveying that requires licensure). If that’s all we have to offer there will be faster and easier ways to do it and the land surveyor’s services will no longer be needed—after all—there will be an app for that.    



Footnotes

[1] McDurmont v. Crenshaw, 489 So.2d 550, 552 (Ala.1986).

[2] Id. at 552.

[3] Panama City-Bay County Airport and Industrial District, 736 So.2d 1167 (Fla.1999).

 [4] Id. at 1171.