Traversing The Law: The Surveyor's Duty in Boundary Law
In my previous column, in the August issue, we went into a detailed discussion on how to know that you have rendered a well-reasoned opinion on the location of the property lines that are the subject of your survey — a litmus test, if you will.
As you may recall, one of the key elements of the test is the application of the appropriate boundary law principles. Unfortunately, space did not allow for even a modest discussion of these principles. As I said then, we would recap those principles in a future column. This is that future column.
Surveyor's Duties and Responsibilities
The boundary location doctrines are the appropriate boundary land principles when it comes to surveying property. The only question open to the surveyor in the boundary context is the factual question of location. Questions of title — the legal questions — are beyond the purview of the surveyor and are best left up to the legal profession and title companies to handle. We surveyors have plenty enough to deal with.
The 2011 ALTA/ACSM Land Title Surveys (the ALTA Standards), at least in my estimation, are responsible for shedding some light on the surveyor’s responsibility for the application of the appropriate boundary law principles when rendering an opinion on the location of property lines. This has always been the surveyor’s duty, at least under the law that regulates the surveying profession and under the law as it is applied in boundary dispute cases. However, many surveyors and, in fact, the entire profession have chosen to ignore this responsibility for far too long. I do see signs, however, that some are waking up.
My review of the proposed 2016 revisions to the ALTA Standards indicates that this responsibility remains in place. This is good, because whether it is written in a standard or not, it is and always will be the responsibility of the surveyor. Better that it is written. My experience with surveyors is that many practice surveying as a belief system, and if you want to change a certain belief you have to show them in crystal clear language where it is written. Even then, many still refuse to accept it if it goes against their preconceived notions.
Not every jurisdiction has fully articulated all of the boundary location doctrines. And a few jurisdictions have confused some of them to the point where they are nonsensical and almost useless. The Wisconsin Supreme Court, in the case of Northrop v. Opperman1, recognized its own jurisprudential confusion over the doctrine of acquiescence:
Wisconsin has a long line of cases settling boundary disputes. The case law demonstrates that the resolution of boundary disputes depends on fact-specific analyses. The court has stated that “as is usual, boundary disputes are generally between friends who become enemies and the facts are detailed and somewhat confusing, all of which give rise to the conflicting principles of law.” These conflicting principles of law are not unique to Wisconsin law. … [The boundary location doctrines] tend to overlap and are not used in a consistent fashion in the case law. … The case law relating to the doctrine of acquiescence is not consistently stated or applied. The concept of acquiescence in the evidentiary sense is often used in cases resolving conflicts between a landmark and a survey. Id.
But with this in mind, taken as a whole across all jurisdictions, the doctrines are relatively straightforward and somewhat universal, although there are some wrinkles and nuances. Some apply instantaneously at the time of the conveyance, some apply when there is confusion or dispute over the location question, a few have dual purposes as when acquiescence can either be a location doctrine or an evidentiary tool, and still others act as a bar to claims that might otherwise be made. They are all designed to protect vested property rights, to settle the location question, to thwart litigation and to serve equity; and are tailor-made for use by the surveying profession in carrying out its duties and responsibilities as the stewards of the nation’s property boundaries.
Various Boundary Location Doctrines
Let’s run down the boundary location doctrines and discuss when and how they apply. Again, keeping in mind that this is a general assessment and your particular jurisdiction may have articulated only a few of these doctrines, or may have inserted their own twist to the application. As I tell surveyors at the beginning of any presentation that I do, it is absolutely incumbent upon professional surveyors to know the law that governs their practices. Ignoranti juris non excusat — ignorance of the law — is no excuse for the average citizen walking down the street; how much more so for the professional surveyor who professes to be an expert on boundaries? “Ignorance of the law excuses no man; not that all men know the law, but because ‘tis an excuse every man will plead, and no man can tell how to refute him.”2
There are some who profess that once all of the statutory elements of adverse possession are in place, title automatically passes and the adversely possessed lines become the property boundary lines. Without doing a treatise on adverse possession, let’s just say that it is both a title and a location doctrine. Therefore, it is not available to the land surveyor unless we want to wander into the practice of the law. My preference would be to stay with the factual questions. The remaining principles we will consider below are all fact-based location doctrines, not title doctrines.
Common Grantor Doctrine/Doctrine of Monuments
In my mind, these two doctrines are almost indistinguishable. Perhaps the lone distinguishing characteristic is that the doctrine of monuments will survive the passing of the common grantor. They both say that, when the monuments are in the ground at the time of the conveyance, the monuments will control location regardless of what the deed seems to indicate. This doctrine was codified in the Act of 1805 with reference to the PLSS and the monuments set in the original surveys. It has also been referred to as the “survey method”3; the land is pre-surveyed and subsequent title documents that conflict must conform to what was done on the ground.
Original Surveyor/Following Surveyor
These are the two fundamental principles of surveying that rest on the foundation of the Common Grantor Doctrine and the Doctrine of Monuments; therefore, they are in play. An original surveyor is one who sets out monuments for the very first time for a common grantor. Once set, these monuments settle the location question. A following surveyor’s only duty is to find where the original surveyor set those monuments in the first instances, not to correct them. An original survey is a measurement task, whereas a retracement survey is an evidentiary exercise.
Like adverse possession, acquiescence also has a dual function. It is a location doctrine as well as an evidentiary tool. Acquiescence is an implied agreement that operates in the case of a confused or disputed boundary. When there is more than one possible location or the location is disputed, the line acquiescenced into settles the dispute. Acquiescence usually requires the passage of time at least equal to the statutory time period for adverse possession, but not always. Acquiescence into an occupied line may also be the best available evidence of the true boundary when the original monuments come up missing. Cooley spoke to this aspect of acquiescence:
It is often the case that, where one or more corners are found to be extinct, all parties concerned have acquiesced in lines which were traced by the guidance of some other corner or landmark, which may or may not have been trustworthy; but to bring these lines into discredit, when the people concerned do not question them, not only breeds trouble in the neighborhood, but it must often subject the surveyor himself to annoyance and perhaps discredit, since in a legal controversy the law as well as common sense must declare that a supposed boundary line long acquiesced in is better evidence of where the real line should be than any survey made after the original monuments have disappeared.4
An oral agreement to a disputed, confused or simply unknown location of a property line can settle the location question. The agreement, like any other agreement, is instantaneous when consummated. The majority approach to boundary by oral agreement is that the true line must be in dispute, confused or uncertain, if not then it is seen as an attempt to convey property by parol and this does not pass muster under the statute of frauds. However, there are a few states that allow oral agreement even when the true line can be found. The problem with the oral agreement, or course, is that after the passage of time or the original parties, questions arise as to what was agreed upon. However, when enough time passes, then the agreement can be implied through acquiescence.
The doctrine of boundary by practical location is closely akin to acquiescence and often implicates the common grantor doctrine and the doctrine of monuments. In many cases, the term “practical location” is used as an adjective to describe the condition of property boundaries as opposed to a boundary establishment doctrine in its own right. It has been used in situations where it is presumed that lots were originally set out with monuments, but those monuments having subsequently disappeared the best alternative is to accept the practical location of the lots as they sit, as opposed to any attempt to precisely layout the lots according to the plat. In still other cases, the monuments may be in existence but the modern-day surveyor has discovered that the entire neighborhood is in the wrong place and needs to move. The lots will not be moved, because they are in their “practical location.”
As space dwindles for this present column, we will it wrap up. Estoppel plays a role in all of the location doctrines. Estoppel says if you really had a claim to a location different than what currently exists — the status quo — then you should have made it way before now. And Repose simply says the status quo will prevail, because it is the equitable thing to do for the peace and tranquility of society. It is often referred to as a public policy issue. It is also seen as an ultimate statute of limitations, although in the boundary context it is generally a court-made rule and not a statute. So, there are your appropriate boundary law principles. Go back to my previous column and utilize them in your litmus test of your boundary results and render a well-reasoned professional opinion on the only question open to you — the location of the limits of ownership.
- Northrop v. Opperman, 2001 WI 5, 26, 29, 38 (Wisc.2011).
- John Selden (1584-1654) from Table Talk Law, as quoted in Bartlett’s Familiar Quotations, 10th ed. 1919 (John Bartlett (1820-1905)), as quoted in Wyoming Refining Company v. The United States, 58 Fed, CI. 409 (U.S.Fed.CI.2003).
- See, for example, Tyson v. Edwards, 433 So.2d 549 (Fla.App.1983).
- Justice Thomas M. Cooley, The Judicial Functions of Surveyors, first presented to the Michigan Association of Surveyors and Civil Engineers in 1881. Later reprinted with minor modifications in 1883.
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.