I have long argued that title is inextricably entwined with boundaries, but can't remember seeing it said so plainly before running into this fiasco of a case. Three "actual surveyors" defeated by the testimony of one surveyor and one title examiner neither of which did any surveying on site.
"...Defendants do make such assertion through a counterclaim against Plaintiffs. While Defendants insist this is not a case about title but, rather, about locating a boundary, that is semantical nonsense. The location of the boundary of Plaintiff's property and Defendants depends on the ability to demonstrate title.
This Court will not exalt form over substance. The gravamen of the testimony presented by eight witnesses over six days was the strength of each party's claim to the subject land in Amagansett. Therefore, [*23] the Court will examine the evidence set forth by both parties in support of their opposing claims to title, despite the fact that the Defendants have not technically asserted a counterclaim under..."
BISTRIAN LAND CORP. v. PLEASANTS, NY 2008
Here is part of the decision of a case that I was involved with, title was dependent on the location of a road. Neighbors claim was that the road turned 90 degrees and ran west then turn 90 degrees and turned north, my clients claim (and mine) was that the road continued northerly.
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"The dispute in this matter is based on differing interpretations of the location of one particular road variously referred to in the parties’ chains of title as “Old Brewster Road,” “Old Brewster – Harwich Road,” “the road leading from Harwich to Brewster between the ponds,” and “the road running from Brewster to Harwich” (For ease of reference, the court chooses the name “Old Brewster Harwich Road” when referring to the road that divides the parties’ properties.) There are deeds in both Allison’s and Marceline’s chains of title that mention Old Brewster Harwich Road as the easterly boundary of Allison’s property and the westerly boundary of Marceline’s property. Importantly, prior to trial, the parties agreed that Old Brewster Harwich Road, wherever located, divides their properties, but they disagree on the location of the road. The road’s location, therefore, is determinative of the parties’ conflicting claims of ownership."
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
LAND COURT DEPARTMENT
FREEMAN H. ALLISON [Note 1] v. PETER J. NYBERG, JAMES MARCELINE, GERALD D. COUGHLAN, SALLY A. COUGHLAN, and ANGELO LA MANTIA, BRUCE NIGHTINGALE, GEORGE W. DINSMORE, MATTHEW HART, LARRY BROPHY, WILLIAM STOLTZ, and ELAINE BELLEFEUILLE, as MEMBERS OF THE TOWN OF HARWICH PLANNING BOARD
20 LCR 241
MISC 05-309537
BARNSTABLE, ss.
April 27, 2012
Scheier, C.J.
My first reading of that post says they agreed on title and were litigating over boundary.
> I have long argued that title is inextricably entwined with boundaries ...
What I get out of reading the report of that case linked on the webpage of the expert title examiner, Lance R. Pomerantz, is that judges like a simple story, well told, that explains discrepancies in a couple of sentences at most. Note in particular how glowingly the Supreme Court characterized the testimony of the title examiner and the surveyor/engineer whose opinions were adopted in deciding the case.
http://www.landtitlelaw.com/images/BistrianvPleasantsDecision_copy.pdf
Unless I missed it, the most striking feature of that case is that the common source of parties's titles and the sequence and descriptions in the conveyances out of that common grantor appear not to have been discussed as relevant to the question of the boundary in dispute.
"...the common source of parties's titles and the sequence and descriptions in the conveyances out of that common grantor appear not to have been discussed as relevant to the question of the boundary in dispute."
Well, I didn't spend a lot of time reading the case, but what I got out of it was that the three "actual surveyors" testified that the above was irrelevant. The winning side appears to have recognized it was relevant. And the Judge seemed a bit baffled that the "actual surveyors" didn't seem to know what they were talking about. Although, it was the winning side that tried to make a distinction between title and boundary for some reason.
The point is it depends on how you look at it, and either way it doesn't matter in many (not all) situations.
> Well, I didn't spend a lot of time reading the case, but what I got out of it was that the three "actual surveyors" testified that the above was irrelevant. The winning side appears to have recognized it was relevant. And the Judge seemed a bit baffled that the "actual surveyors" didn't seem to know what they were talking about. Although, it was the winning side that tried to make a distinction between title and boundary for some reason.
Well, there definitely are some odd features to the case, including the fact that the court seemed to be very impressed by the areas of the supposedly adjacent parcels as found by different surveys.
Of the Plaintiff's surveyors's testimony:
Surveyor #1 testified that a ditch bank depicted upon one of the surveys in the dispute is a feature "sometimes used to mark divisions of property" and that the location of that evidence of old occupation was essentially consistent with a granite monument in line with the ditch bank.
Surveyor #2 testified that he did not use the ditch bank as the easterly property line between the two parcels because he claimed that it did not match up to the acreage for the parcels from the east.
Surveyor #3 testified that he did not consider the older deeds and even knowing of the discrepancies that they raise, he would not change his conclusion. He based his survey upon some relatively recent surveys from the late 1940's. He stated that a surveyor should look for (1) monuments in the field, (2) deed that have metes and bounds that mathematically close, (3) deeds with some distances and measurements, followed by deeds without linear distances but some numerical evidence such as acreage (4) deeds without any numerical figures such as those with only abutting owners (5) possession and (6) verbal evidence.
By contrast, unlike any of the Plaintiff's experts, the Defendant's expert title examiner reviewed the entire chain of title for the Defendant's parcel going back to the original recorded deeds. He was able to give what the court found to be a lucid explanation of the various discrepancies contained in the chain of title and to show by acreages that his explanation accounted for the entirety of the original tracts.
The Defendant's surveyor #2 testified by use of historical aerial photos from 1938 that the ditch bank could be seen to have been in place along the boundary in dispute as located by the Defendant's surveyor #1 and, similarly, that aerial photography from 1955 showed that the same line represented a change in use evidenced by vegetation clearing. He accounted by reasonable explanation for one significant discrepancy that had apparently been raised as an issue by explaining that one deed that called for 52 chains had clearly intended to call for 52 rods.
I agree. The Defendant's Attorney did a better job preparing his experts. The were both in agreement, had logical and easy to understand explanations of the discrepancies.
While Judges may be educated, they probably have only been involved in a few Boundary/Title Cases. If you explain your opinion like your talking to a group of surveyors you will probably get a deer in the headlights stare. If you explain your opinion clearly but non-technically you are much more likely to be understood.
They were all really hung up on the acreage. I keep thinking about the story of [msg]183480[/msg]"John's Little Acre" the whole time I was reading the case.
I venture to guess, the best RTK in the world would not have helped the three "actual surveyors". I didn't post it for that reason, but c'mon man; is Lucas correct?
> I venture to guess, the best RTK in the world would not have helped the three "actual surveyors". I didn't post it for that reason, but c'mon man; is Lucas correct?
What does Lucas have to do with that case? The Defendant's experts actually surveyed from the title and demonstrated that their survey fit old occupation (the ditch bank) that one of the Plaintiff's experts testified had been used to mark land boundaries and that fit a granite monument described in various old deeds.
Basically, I see the decision as completely anti-Lucas in the sense that the Defendants prevailed because they did the required depth of research and all three of their experts, including the expert title examiner gave the court a consistent and clear account.
In the Lucas model, why would a surveyor need to examine more than a couple of deeds, those most current in the chain of title?
The Judge distinguished the prevailing surveyor from the others. The Prevailing surveyor (and title examiner) merely reviewed the work of others, coupled with proper research and analysis, for the purposes of the court case. The "actual surveyors" referred to by the Judge were the ones that were paid to survey the properties, and they all got it wrong.
edit:
Ok, having read the case in detail I see the Judge upheld a 1988 survey, but only because others were able to explain it (and add evidence to it) for the surveyor who performed it.
Seems like a tough boundary and legitimate difference of opinion on this one.
Yeah, acreages are always part of the analysis and can be the tipping factor when the boundary is balanced on conflicting evidence. Dave Ingram posted one he was involved in a few years back that was kind of an extreme example.
Duane,
This case would make a good article for the Empire State Surveyor. There is a lot to learn from it, from research, use of occupation evidence, oral testimony, how to present your findings.
This is a common survey situation in the northeast, where you have no record or copy of the original survey done in 1844. I think the Court did the best it could putting the line definitely back to its pre 1938 location, and quite possibly the original location.
I really think you need to write an article about this case.
The more I look at it, the more it looks like it might take a textbook to discuss it:) Maybe a series of articles. The reason I came across it was I'm checking cases I use in a course that begins next week; have to shepardize and see if anything has changed. This case mentioned the case I use to show students how to determine what level of proof is needed in a boundary litigation (Trinkle v Cardisco). What's interesting in that regard is the defense team tried to argue that this was a title matter and so needed a higher level of proof than a boundary matter. In essence the defense wanted to claim the adverse possession level of proof (clear and convincing) was still needed, even after that claim was dismissed, and plaintiff couldn't meet it. Likewise plaintiff wanted a title theory to say the defense had to make a specific counterclaim for title, which they didn't do.
I agree it also shows the power of being able to communicate findings. Maybe I'll try an article and see if it will shape into something.
> Ok, having read the case in detail I see the Judge upheld a 1988 survey, but only because others were able to explain it (and add evidence to it) for the surveyor who performed it.
>
> Seems like a tough boundary and legitimate difference of opinion on this one.
Yes, the Defendants had two land surveyors testify: Barylski and Nelson.
Barylski testified as to a survey that he participated in in 1988. I gathered that Nelson's testimony simply corroborated by use of aerial photos certain recollections that Barylski had that weren't adequately documented in his field notes. That is, Nelson's exhibits demonstracted that the boundary as located by Barylski in 1988 did appear to follow the ditch bank as it appeared in the 1938 imagery and the change in cultivation or use showed in the 1955 imagery.
That last bit is a fascinating aspect of the case.