It is a familiar rule of construction that generally allows natural or artificial monuments to control measurements where the two come into conflict in a deed description. However, a critical caveat to this principle requires the surveyor to establish a link between the monument and the deed.

This is hardly a new topic of discussion. In an excellent article published in the 1990 ACSM Bulletin, David Knowles considers the dangers of indiscriminately holding as a property corner any and every marker found in the vicinity of the boundary line under consideration. Mr. Knowles notes:

“There seems to be a growing practice in the profession of indiscriminately yielding to uncalled-for monuments that happen to be in the general vicinity of the presumed corner location. In some cases, the deed calls for, either directly or indirectly, original monuments of a different type. In other cases the deed calls for no monuments whatsoever — the description is pure metes with only dimensions given. Yielding to an uncalled-for monument without predetermined justification may lead to embarrassment in court.”1

One source of confusion concerns the definition of the word “monument.” This term may have several meanings, depending on the circumstances of its application. While the word could denote a gravestone or a commemorative statue, the legal definition pertinent to boundary retracement differs. Several rulings from across the country note that monuments set by original parties to a conveyance are significant because they represent the true intent of the parties. Determining intent is the paramount responsibility of the courts and all other rules of construction ultimately exist for the sole purpose of clarifying the intent of the parties.

When considered in the light of relevant common law, it is clear that a 5/8 -inch rebar set by the original surveyor — who was instrumental in the creation of a boundary line — has great legal significance. However, a rebar of identical dimensions set by another surveyor after utility construction has destroyed the original falls into a completely different category. The first rebar is an original, identifiable monument with a proven link to the source description and generally controls course and distance. On the other hand, the replacement rebar is only legitimate if it has been set according to proper retracement principles. This is one reason that caps, tags or some means of identifying the source of markers set by surveyors are desirable.

The Vermont court provides an excellent summary of the principles discussed above: In the first place, the iron pipe claimed to have been set by the common grantor is not a monument in the true sense of the word, for it was not designated nor referred to in the description of the grant. The rule is applicable to clarify and effectuate the intention of the grantor as expressed in the deed. This is a startling concept, as we tend to use the word “monument” in an indiscriminate manner to describe any marker set by a surveyor — or by anyone else.

In this example, the court observed that the markers relied on by the defendant’s surveyor were not in any way identified by the relevant legal description. The Vermont court concluded: Without such authentication, they have no force to dispute courses and distances established in the instrument of conveyance.2

A recent Ohio ruling emphasizes that an “absurd result” drawn from the location of a given marker may cast doubt on the legitimacy of undocumented markers, or on monuments that may have been moved. In this instance, a set stone was considered as the possible location of a disputed property corner. However, both surveyors involved were concerned that the stone might have been purposefully moved from its original position. This doubt was bolstered by the fact that holding the stone would produce a result totally at odds with the remainder of the description.

Most surveyors would agree that a monument later moved by another party ceases to control boundaries in its new location. However, this Ohio decision also highlights another critical consideration of deed interpretation. In attempting to determine the ultimate intent of a deed, courts may disregard a referenced monument in those situations where adherence to the general rule would produce a result so ridiculous that it transcends the bounds of reason. Other similar cases have rejected markers in situations where other elements of the property description all indicate that a major mistake was made in the drafting of the land description.

The Ohio court notes: Here, the Buggs’ two surveyors testified that the stone is not a monument and they did not rely on it. Rather, they used course and distance to establish the line. They testified that to consider the stone a monument would produce an absurd result because it would create a property line in which Fancher would own a creek located outside of her fence line. Furthermore, there was some concern that the stone may have been dislocated from its original location. Thus, the surveyors concluded that the proper boundary line followed the fence line.3 Remember that the surveyor has a responsibility to present evidence that a given marker has been moved. The general presumption applied by most courts assumes that markers are in their original location unless proven otherwise. Minor variances between measurements and record dimensions will not necessarily be construed as proof that the original monument was moved.

The mere proximity of a physical feature does not automatically make it a controlling monument for a deed. One California decision considers a deed that is in the vicinity of a railroad easement, but fails to refer to the railroad in the description. Most courts agree that a call for a road with no other conflicting title issues or statements of contrary intent carries to the center of the road. However, this is clearly not the case where the deed fails to mention the road at all. When the appellants attempted to apply this general presumption, the court responded: Merely because a property abuts any railway easement does not, as appellants claim, give rise to a presumption that they own to the center of the easement. The monument doctrine presumes an intent to grant to the middle of the monument (road, railway easement or stream) because the conveyance designates the object as a monument or boundary.4

Other California rulings confirm that a railroad right-of-way properly identified as a boundary by the relevant deeds does fall under this general principle as described in then-current sections 831 and 1112 of the California Civil Code.

This decision was bolstered by the rather unrealistic nature of the claims by the appellant, who claimed title to the center of a tract of land dedicated for use as a depot.

A boundary dispute in the state of Washington includes another definition of “monument.” In this instance, the source description called for the “West right of way line” of an existing easement. However, the original grant of the easement failed to define any width or provide detailed location of the easement limit. This court concluded that the “West right of way line” could not be determined with certainty and was therefore subordinate to the bearings and distances found in the deed. While it is true that a reference to a monument in a legal description controls over courses and distances, the District’s labeling of the “West right of way line” as a monument 50 feet from the center of the canal is untenable. In Matthews v. Parker, 163 Wash. 10, 15, 299 P. 354 (1931), this court stated that a monument is “a point capable of being mathematically ascertained.” Since there is no deed from the original landowners conveying a right of way that would establish the true width of the right of way, we conclude that the “West right of way line” is not a point capable of being mathematically ascertained. It follows that the “West right of way line” is not a monument 50 feet from the center of the canal and that the courses and distances, which place the disputed strip within the boundaries of Mrs. Kesinger’s property, are controlling in this instance.5

The court of Maine summarizes the dangers of indiscriminately allowing uncalled-for monuments to control descriptions. The source description includes the following language: Beginning at the low water mark on the shore of Sheepscot Lake in Palermo and extending in a westerly direction to the high water mark, then, continuing westerly One Hundred (100) feet by land of Earle M. Hinkley to a stake and stone…6

The plaintiffs’ surveyor “Smith” was of the opinion that the water levels in 1977 were several feet higher than they were in 1942. Surveyor for the defendant “Jones” concluded that water levels were substantially the same over the 30-year period. Testimony by longtime residents was apparently inconclusive.

Jones also concluded that three iron pins pointed out by the client were intended as the original monuments, including one at the top of the lake bank located at the base of a hemlock tree. Jones apparently concluded that the deed was wrong and admitted that he did not base the beginning point of his survey on the high-water mark of the lake.

The iron pins held by Jones appear to have been placed in 1966, and the defendants admitted that they were not the original monuments. This opinion observes that: In finding that “the most important monument” was the pin located near the hemlock tree on top of the bank in the northern line of the Hinkley lot, the referee was clearly in error. Since neither the hemlock tree nor the pin is referred to, even indirectly, in the description of the Hinkleys’ lot, neither could serve as a “monument.” A physical object is not a monument for the purpose of locating a boundary unless the description makes reference to it for that purpose.  Furthermore, the referee could not correctly find that the hemlock tree or pin near it was at the high-water mark of the lake, for there was no competent evidence to support such a finding.6

When considering various monuments and markers discovered during the research process, the surveyor should always determine if a recognizable link can be made between the marker and the subject deed. A lack of such a link reduces the legal value of the marker. While this does not preclude the surveyor from honoring uncalled-for monuments in some circumstances, it requires additional research and analysis to adequately prove an undocumented mark.


Sources

  1. ACSM Bulletin “Law and Ethics” section: “Uncalled-For Monuments” by David R. Knowles.
  2. Haklits v. Oldenburg: 124 Vt. 199; 201 A.2d 690; 1964
  3. Bugg v. Fancher: 2007-Ohio-2019
  4. Millyard v. Faus: 268 Cal. App. 2d 76; 73 Cal. Rptr. 697; 1968
  5. Kesinger v. Logan: 113 Wn.2d 320; 779 P.2d 263; 1989
  6. Proctor v. Hinkley: 462 A.2d 465; 1983 Me.

Kris Kline is president of 2Point Inc., Alexander, N.C. Kline teaches several classes on boundary retracement but remains a student of the discipline. He can be reached at kkline@buncombe.main.nc.us. More information on Kline’s available continuing education courses can be found at www.2point.net. Kline’s first book, “Rooted in Stone: The Development of Adverse Possession in 20 Eastern States and the District of Columbia,” is available from the author.