Traversing The Law: When Estoppel Has The Right-of-Way
One common myth I’m often asked about is the idea that the state must always get its full width of right-of-way when surveying a lot or tract of land adjoining a public road, which, of course, is a common occurrence. This is ostensibly so because the state cannot lose land through adverse possession. But as my old law school torts professor was so oft to say: “It all depends.”
As with sovereign immunity, whereby the state is immune to prosecution, for various and sundry reasons the state can allow itself to be prosecuted and it can also allow itself to lose land through adverse possession.
The hornbook rule1 is that adverse possession statutes do not run against land owned by state governments. Yet, in practice, the land of many states is subject to loss by adverse possession. Few states have statutes that simply and explicitly protect all state land from adverse possession.2
Nevertheless, as a general proposition, the hornbook rule is correct. However, adverse possession is not the correct argument. Estoppel is the applicable principle when it comes to the amount (width) of the state’s right-of-way or even as to the question of the location of that right-of-way, when these issues come up in the retracement surveying context. And in this context, whether dealing with boundary lines in common with private owners or in common with the state (such as a right-of-way), the fundamental principles of surveying are always in play. You are either an original surveyor setting out new lines for the very first time, or you are a retracing surveyor finding where the lines have already been established on the ground.
As an original surveyor, you could be setting out the boundaries of a new right-of-way dedicated as a part of a new subdivision or possibly setting out new right-of-way lines based on a new condemnation for initial right-of-way or a roadway widening project. As a retracing surveyor, your only job is to locate where these original lines were laid out by the original surveyor. Why? Because once the lines are laid out (monumented) and adjoining landowners glom onto those monuments, build improvements to them and generally go into reliance on them, property rights attach to those lines as set out.
So, what happens if the actual monuments as set by the original subdividing surveyor are 49.75 feet apart, instead of 50.00 feet? What happens if the 70-foot right-of-way was laid out as a 50-foot right-of-way? What happens if the right-of-way is laid out six feet south of where it was supposed to be laid out? What happens when the original monuments along the right-of-way do not create straight lines relative to the centerline? These could be slight variations from a few tenths of a foot to actual feet. Or what happens when the original monuments set by the original surveyor come up missing, and all you are seemingly left with are the measurements from the plat? The answer: Where’s your focus?
Are You Focused on Retracement, or Something Else?
Let’s consider the case of City of Mt. Carmel v. McClintock.3 The original town plat of Mt. Carmel, at least that portion relative to the lots in question, was recorded in 1822. However, as many ancient plats are prone to be, the dimensioning of the lots and rights-of-way was somewhat sparse. A re-plat executed by the owners of the lots in the subdivision — an attempt to clarify some of these ambiguities — was filed in 1829.
Undisputed evidence introduced at trial indicated that, at the time of the controversy precipitating the subject lawsuit, these owners had been in happy, peaceful possession and occupation of the lines as originally laid out for 30 to 40 years. At some point in time, the exact date not being known, the city came in and monumented the right-of-way lines with city sidewalks, right up to the fences and other indicia of occupation along these lines.
In 1891, the city caused a “corrected survey and plat of the original town of Mt. Carmel, made for and at its instance by a surveyor. … This resurvey, so far as appears, was wholly ex parte, and there is no pretense that it was a part of any judicial proceedings to establish a disputed boundary.”4 The surveyor’s report back to the city council made it clear that the surveyor had found that the original layout of the town plat had been committed utilizing a “badly adjusted chain … leaving a considerable surplus in each block.”5
Stop! Where’s your focus? Is it on what the original surveyor did or did not do, or on what the landowners did as a result of the original survey? Enter Cooley: “The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them.”6
And as it goes, the surveyor in our case also missed the point. He apparently resubdivided the entire town plat pushing the folks in this litigation six feet out into the right-of-way. Now what does the City of Mt. Carmel want? City officials want their rightful right-of-way. That is to say, the city claims that their ownership limits are to the lines identified by their surveyor. After all, this is what surveyors do — they point out the limits of ownership. And even if the landowners are occupying part of the city’s property, the city cannot lose land through adverse possession.
But is adverse possession the issue? Are the people even on the city’s property?
Where the boundaries fixed in original surveys are lost, the intentions and understanding of parties will be inferred from long acquiescence in the location of line fences, and their occupancy on each side for a great length of time. The rule is a familiar one that owners may settle a disputed boundary by agreement, and that such settlement, followed by possession, binds them, not as passing title, but as an estoppel determining the location of an existing estate.7 [Emphasis added.]
This applies to the city as well as any other landowner, especially in a case like this where the city came in and monumented the right-of-way lines with their sidewalks. “The adoption of a boundary line may be implied from acts and declarations and acquiescence therein. … Where parties agree upon a division line, either expressly or by long acquiescence, such line will not be disturbed.”8 And, echoing Cooley, the court added: “The question is where the line was actually run and established, and if its location can be ascertained by any competent evidence, it is not important whether such location was the result of an error or not. After the lots have been sold and held these many years according to the original survey, it is too late to insist upon any correction of the survey, however erroneous it may have been.”9
But We're Supposed to Have 70 Feet of Right-of-Way!
In the case of Corey v. City of Fort Dodge10, Morrison & Duncombe’s Addition to the City of Fort Dodge was a subdivision of an 80-acre aliquot part sectionalized tract, 2,659 feet north to south according to the plat recorded in 1856. The subdivision created relatively square blocks with streets running north and south, and avenues running east and west. The avenues were all platted at 70 feet in width.
However, as determined at trial, the subdivision only had 2,632.5 actual feet on the ground, north to south — it’s 26.5 feet short. And, of course, the subdivision was laid out as lots were sold from the north to the south, and from the south to the north, giving each lot, block and right-of-way its platted measure, until they got to Second Avenue near the center of the subdivision. At Second Avenue, all of the deficiency in the subdivision was pushed into the right-of-way, leaving the actual width approximately 50 feet wide.
As was the case in City of Mt. Carmel, people bought lots, made improvements according to the original layout, and were living in happy peaceful co-existence until the surveyor arrived on the scene. In this case, however, Second Avenue had remained undeveloped until about the year 1879, when the “Hess” survey was conducted for the city in order to accommodate development of Second Avenue. This is when the city discovered, according to the “Hess” survey, that they only had approximately 50 feet of actual right-of-way, as opposed to the 70 feet they were supposed to own.
So, what does the city want? They want their full 70 feet, after all you can’t adversely possess against the state. Basically going over the same ground as covered in Mt. Carmel, the Fort Dodge court concluded:
It is not necessary here to decide whether, in the strict application of that doctrine, adverse possession of a public street by an individual may ever ripen into a title. It is at least well settled that the public right to the use and occupancy of a street may be lost by estoppel. … Without attempting to restate the facts, it is sufficient to say we think they call for the application of the principle thus stated, and that, if the City of Ft. Dodge ever had any right to claim as a public street any part of the premises now occupied by plaintiff, that right must be considered as abandoned, and the city estopped to not assert such claim.11 [Emphasis added.]
So, what is the surveyor to do when faced with a right-of-way that does not have its full width? The same thing that should be done on all boundary surveying projects. Render a well-reasoned opinion on the only question open to the surveyor — the location question.
- The phrase “hornbook law” [or “hornbook rule”] is a colloquial designation of the rudiments or general principles of law. Black’s.
- Latovick, Paula R., “Adverse Possession Against the State: The Hornbooks Have it Wrong,” 29 U.Mich.J.L.Reform, 1996.
- City of Mt. Carmel v. McClintock, 40 N.E. 829 (Ill.1895). This is an older case but has received no negative treatment since it was decided. In other words, it’s still good law.
- Id. at 830.
- Id. at 831.
- Diehl v. Zanger, 39 Mich. 601, 605 (Mich.1878). Opinion by Cooley.
- Mt. Carmel at 830.
- Id. at 31.
- Corey v. City of Fort Dodge, 92 N.W. 704 (Iowa 1902). Also an older case that has received no negative treatment. Space will not allow the author to fully explain why he is using these older cases instead of newer cases on the same subject. Let’s just say that there are very few newer cases, possibly because there are very few people who have the where-with-all to fight the state over a few feet of real estate.
- Id. at 706.
Jeff Lucas is in private practice in Birmingham, Ala. He is president of Lucas & Co. LLC and publisher of “The Lucas Letter,” a legal newsletter for the surveying and engineering community. He can be contacted through www.LucasAndCompany.com. For a more in-depth study of the legal principles that affect our everyday practice, subscribe to “The Lucas Letter” at www.LucasAndCompany.com.
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 Point of Beginning Store http://www.pobonline.com/products.