I thought that I was asking a couple of pretty harmless questions, but it sure stirred up a lot of unintended speculation, fear and loathing.
>What is a [real property] boundary?
Sounds simple enough. Shouldn't be a big deal to define.
- Rob E. said, "The Limits"
- Jared M. said, "That Line between contiguous pieces of property."
- Frank S. said, "a place/point/line/whatever that separates the interests of the parties involved"
- Holy Cow really waxed eloquent, "In real property matters, a boundary is where the portion of the bundle of rights held by a specific party begins and ends. ... [msg=68881]Link[/msg]
These definitions focus on the concept that a boundary is the "separation between two contiguous properties." I had, for years, thought of a boundary in a "conceptual" sense, defined by it's mathematical properties of location and orientation. I thought of a boundary as an invisible, dimensionless, theoretical concept defining the limit of an estate, whether it was a fee title ownership, an easement right, or a regulatory interest.
But, then, there are other parts of the definition of a boundary which also made sense.
- Paul P. said, "Fences, row of trees, mow lines, plow furrows anything that qualifies as a limit line."
- Paul PA said, "In Colonial States we have Bounds and Boundaries."
- Richard S. said, "Within the context of real property ownership; any physical evidence recognized and accepted by the affected land owners that marks the limits of their occupation and control."
- Azcliltx pls said, "The limits of the parcel as described within the deed, which actually conveys the real property ownership in fee. The physical limits may or may not have been conveyed."
- and, Dave K. said, "A natural or artificial separation that delineates the confines of real property." He augmented his first description as, "A boundary is the physical implementation of the words of the Deed description."
This group of definitions focus more on the physical properties of a boundary. This definition didn't really conflict with my understanding of the "invisible" boundary, other than determining precisely where an invisible, meandering point-to-point connecting line would fall.
Linebender posted the "legal" definition:
>Natural or artificial separations or divisions between adjoining properties that show their limits.
>A boundary is every separation, natural or artificial (man-made), which marks the confines or line of division of two contiguous estates
At first glance (which is all that I ever gave it), the legal definition contains both concepts: 1) A separation of two contiguous estates, and 2) natural or artificial properties. The part that I skipped over was the part "which marks the confines or line of division."
According to this definition, every boundary is physically "marked" by either "natural" or "artificial" monuments. The legal definition has no reference to a theoretical, invisible, concept of an invisible line. The boundary "marks" the confines or line of division. If that is truly the case, then every boundary we survey should be "marked." Every boundary should have "physical" properties. We should be able to see it and touch it. We should be able to "discover it."
But, wait a minute, right? We've all "seen" boundaries that weren't "marked." What about protracted boundaries? They've never been run out on the ground. They're not "marked." Why aren't they marked? Because the owners chose not to mark them. The feds made a conscious decision to not mark the center of the section. Developers commonly chose to mark only the block corners, not each individual lot. Grantors and grantees chose not to have a line marked prior to the conveyance and chose to describe the "boundary" by dimensions or acreage. They've chosen to "create" the boundary without "marking" its location on the ground. Does this mean that the boundary will never have any "physical" properties?
So, if boundaries are "physical" objects, then how can "boundaries" be created that have no "physical" properties? That leads me to Question #2:
>How are real property boundaries created?
I've asked this question to rooms full of surveyors across half of the country. As simple as this question seems, I've seen a clear pattern of extreme diversity without much focus.
- Loyal and CV concurred, "Generally by the actions (and sometimes INaction) of two or more parties."
- Brian A. said, "By the actions and intentions of the landowner(s)."
- Carl Z said, "By the consent of the owners, or, a court, in a judicial sense, on sale or execution of or by eminent domain or exercise of the police power, can establish a new boundary without the consent of either or both of the adjoining landowners."
- Joe Surveyor said, "When determining boundary line in deed, if the description in deed is clear and unambiguous, it must me given in effect; in such case, inquiry is not intent of parties but intent that is expressed in the deed."
- Paul P. said, "Through rows of red tape, held hoops and lots of money." (coming from a CA surveyor, I can sympathize! ;o))
- Kris M. said, "Obviously, boundaries are created in multiple ways. Original lines ran from the owners. New division lines created thereafter. Adjustments made to the lines in a myriad of ways."
- Richard S. gave his oft repeated response, "Alienation. In real property law, the transfer of the property and possession of lands... and, Restraint on Alienation. A provision in an instrument of conveyance which prohibits..."
- Foggyidea said, "Real property boundaries are created by occupation and agreement."
- Jud said, "... they are created by having an initial right to occupy land then by use of that land, and the successful defense of that lands bounds."
- Gordon S. put a divine spin on it, "And God said, “Let the water under the sky be gathered to one place, and let dry ground appear.” And it was so. God called the dry ground “land,” and the gathered waters he called “seas.” And God saw that it was good. ..."
The above grouping focuses on the actions and intentions of the landowners, while the grouping below focuses more with the surveyor's involvement.
- Paul PA said, "The artificial boundaries that surveyors concern themselves with are fleeting. We are demigods in that we can create an imaginary line."
- RADU said, "... parcels for transfer ... are identified by physical placement of identifying markers on the land or by written description from a point of beginning, with or with out field surveying."
- Perry W. said, "subdivision plan, but I'm guessing you wanna go deeper than that.
- Linebender said, "by agreement written or implied"
- Derik G said, "By an interpretation of the intent of the extent of the description within the registered document taking into consideration of the common and statute law."
- LRDay said, "Boundaries ARE NOT created by retracement surveyors with calculators and least squares programs."
- Adamsurveyor gave a very thoughtful response and engaged in a good dialog with LRDay, "... although we technically don't "create" boundaries and it is often the property owners acceptance of our corners that really "creates" them, in reality we do. ..." [msg=69332]Link[/msg]
- A Harris said, "A real property boundary is created when monuments are accepted that limits ones ownership."
The short answer to the question, "How are real property boundaries created," is fundamentally, quite simple. If a boundary is, by definition, the separation between two contiguous estates, then a boundary is created when an estate is separated or divided. The only way for an estate to be divided is for the owner to convey a portion of their property to another owner (in the case of an easement boundary, the owner conveys a right of use to another). The act of dividing an estate creates the boundary.
There's one shortcoming, however, in this explanation. If a conveyance creates the boundary, what does that have to do with the physical properties? The only way for a boundary to be fully defined is for it to take a two-step process: 1) a conveyance that creates the boundary, and 2) an action by the landowners to physically establish its location.
As surveyors, we want to focus on the second part. We want to be the ones to lay out the boundary on the ground, monument it, an describe it. But, we want it to happen prior to step number one. That's undoubtedly the best way for it to happen. We all know that "original monuments" control! When step two happens after step one, that's when we surveyors get all corked around. We have no defined rules to guide us. We fall back on our measurements because we find comfort in their certainty. We want to test every physical object we find against the measurements to determine if they are "acceptable" or not. There is no law that supports this thinking.
The courts don't seem to share our problem. They've got a well defined set of rules that will tell a surveyor in every instance whether the boundary has been physically established on the ground or not. There is an entire body of law that tells us how to determine what physical objects control the boundary location. The rules even tell us what to do when no physical objects are found to control. It all comes down to surveyors whose duty is to gather the physical evidence, the record evidence and the oral testimony necessary to determine which rule of law will apply and where the boundary line is located.
- Dave K. expressed his impatience, "If you want to write a dissertation, then do so and we can at least rip into it."
Well, I guess I just did.
JBS
Mr. Stahl,
I have appreciated your questions and feel they are GREAT benefit. If for nothing else, it apparently separates those who want to think from those who don't or can't.
You have me a little confused about the concept of a boundary has to be "marked." There are many properties or easements over properties that HAVE boundaries, but we don't have any way of MARKING those boundaries, other than by description. I have written and field verified avigation easements, but I have never MARKED one on the ground. Mining claims certainly have boundaries, but many have never been MARKED other than their description and the depiction of that description on a survey plat. Solar easements were a common beast to be included in plats when I worked in Southern California, but I have never MARKED one. Yet, certainly, there WERE boundaries, or limits.
Maybe you didn't say what I think you did.
Please, UN - CONFUSE me!!
thanx,
geezer:-|
Too early in the day for me to respond effectively. However, I appreciate you offering up your thoughts on the matter. This is the very basis of why our profession exists, yet it is do difficult to explain. A bit like asking, "Why are you married?"
What I hear JB saying is that Judges get it right and Attorneys and Surveyors don't. What naturally follows is to require the same qualifications in order for Surveyors to get it right. That would amount to Bachelor degree surveying or law, Juris Doctor, several years experience, then election of the most accomplished by the public in order to assure the correct boundary determinations are being made.
I don't see it happening. Although I might be tired and rich if it did:)
But seriously, no matter how simple one wants to try to make it sound, land boundary determination can be one of the most complicated matters in all of societies professional demands. It really is akin to rocket science in many instances. This is proven by the repeated instances of so many not seeming to get it right (as defined by the highest court the issue makes it to). And since "right" is defined in such a manner, sometimes "right" is actually wrong in the final, controlling decision on the issue.
An old Attorney once told me he had never been wrong where the law is concerned, but there had been days when a Judge disagreed with him:)
So the answer to the questions are that a real property boundary (and real property itself) is an artificial construct developed to help people live peaceably together. It is an idea that can be described on paper and on the earth. It is created and maintained by force and law, and done away with in the same manner.
jb
If the unmarked boundary is a 1/16 section line and the farmers go out
and build a fence ten feet away, what is the boundary?
jb
10 feet away from what? why?
A bit like asking, "Why are you married?"
Now that one's easy: You're married because the wife told you were getting married.;-)
> You have me a little confused about the concept of a boundary has to be "marked." There are many properties or easements over properties that HAVE boundaries, but we don't have any way of MARKING those boundaries, other than by description. I have written and field verified avigation easements, but I have never MARKED one on the ground. Mining claims certainly have boundaries, but many have never been MARKED other than their description and the depiction of that description on a survey plat. Solar easements were a common beast to be included in plats when I worked in Southern California, but I have never MARKED one. Yet, certainly, there WERE boundaries, or limits.
>
> Maybe you didn't say what I think you did.
>
> Please, UN - CONFUSE me!!
Geezer... I hear you loud and clear. There are many types of boundaries which get created by a document without getting marked on the ground, until they are needed. When they're needed, the surveyor's task is to be the first one to determine the position of the line. You've given some excellent examples such as your avigation easement. Can't hardly paint the sky and goal posts of that size would be pretty impractical, yet, you've "field verified" them. How did you do that? You found survey control (monuments) which fixed the orientation and elevation of the easement that were called for in the written description. If they weren't called for physically, you had to come up with the "best available evidence" to locate them. You likely mapped improvements (monuments) and structures (monuments) which fall near to or within the easement. The monuments which "marked" the boundary of the easement happen to not be on the line, but are in the proximity and are available to determine the lines location. In fact, if there were no monuments available, what could be used to define the easement limits. Would it be void for being un-determinable?
What about unmarked mining claims? Around here, most are extremely well marked, but lease sites may not be. That's why they hire surveyors to mark them out on the ground. Once they're marked, the utilities can begin their operations in reliance upon the marks. Without the marks, they don't know where to start. Basically, any boundary has to have physical marks that lie on the boundary directly or marks that are offset from the line which witness the boundary. But, when it comes to a "need to know" stage, the boundaries themselves must be determined to know if development is proposed or if the restriction is to be enforced. Then the boundary location is determined and offsets measured to imposing structures (monuments). The real trick is making certain that the same determination is made with each successive visit. It must be repeatable. So, the real burden in writing such an easement needs to focus on the monuments used to control the easement and the physical structures (monuments) that are in close proximity to the boundary.
They're all still marked in one way, shape or form. Once they both steps of the creation are completed, the boundary is physically defined.
JBS
> What I hear JB saying is that Judges get it right and Attorneys and Surveyors don't.
I wouldn't put it quite like that, Duane, but you're close. The Judges are equally infallible. In fact, I would rank them by their skills, ability, knowledge, and expertise of locating boundaries in the order of the highest to the lowest as: 1) surveyors (it's their every-day job), 2) attorneys (because you spend 8 months explaining the issues to them, and 3) judges, because you have 3 or 4 hours with them on the stand to teach them how a surveyor would apply the court's rules to determine the boundaries.
Surveyors are the only ones who possess the expertise necessary to determine boundary locations. That's why we're licensed and attorneys and judges aren't. The only stipulation they have on us is that we must follow their rules. We must follow the LAW. So, what I'm really saying is that the LAW gets it right every time. The judges, attorneys, and surveyors are the ones who fail to get it right. We fail because of a lack of evidence, lack of analysis of the evidence, and or our lack of understanding of the LAW. Of those three, I believe our lack of understanding of the LAW causes the most improper boundary determinations.
JBS
jb
> If the unmarked boundary is a 1/16 section line and the farmers go out
> and build a fence ten feet away, what is the boundary?
Good question. Technically, the boundary is still the limit between the adjoining estates, the remaining question is, "Has it been "marked?"
You'd have to gather the necessary evidence to figure it out. You've got a theoretical survey line that's never been before determined using the method and technique that you've run to get you temporary search position. And you have a fence. Two pieces of evidence which conflict. Now the job is to find out the details of each before jumping to some random conclusion. There's no law that says protracted 16th lines control over fences and there's no law that says fences control over protracted 16th lines. You don't have enough evidence to know which legal principle to apply. You haven't determined a boundary yet.
JBS
Reality and Equity
>As surveyors, we want to focus on the second part. We want to be the ones to lay out the boundary on the ground, monument it, an describe it. But, we want it to happen prior to step number one. That's undoubtedly the best way for it to happen. We all know that "original monuments" control!
Got to love the quotes around the term "original monuments", as if this is some sort of mythical thing or dubious proposition.
>When step two happens after step one, that's when we surveyors get all corked around. We have no defined rules to guide us.
You've got to love the implied over-simplification of boundary determination, as if it is merely a cookbook proceedure
>We fall back on our measurements because we find comfort in their certainty.
Actually, that overlooks the entire nature of the problem, i.e. that the parties to a conveyance chose to describe a boundary in a particular way and that the evidence that they truly intended something else cannot often be proven, particularly when neither is around, all that is left is an inexpensive fence of unknown origin, and neither landowner has been coached to testify about it as the "rules" require.
>We want to test every physical object we find against the measurements to determine if they are "acceptable" or not. There is no law that supports this thinking.
That's a highly novel idea! The entire concept of boundary retracement involves following the footsteps of the original surveyor and making judgments about what is evidence of those footsteps and what is not. Part of the record of that survey are the survey measurements reportedly run along boundaries. It is usually not warranted (in Texas) to conclude that a tract that was cut out for conveyance wasn't surveyed at the time.
If one follows the rule that Texas courts have adopted, i.e. that many fences are presumed to be merely casual fences, the only way of showing that not to be the case is by showing a sufficient similarity to the conveyance of record that it is reasonable to conclude that the position of the fence perpetuates a line that had been run and marked upon the ground.
>The courts don't seem to share our problem. They've got a well defined set of rules that will tell a surveyor in every instance whether the boundary has been physically established on the ground or not.
That's a pretty theory, but one that doesn't take into account the evolution of the land ownership system and the gradual movement of the law as it evolves as well.
>There is an entire body of law that tells us how to determine what physical objects control the boundary location.
In Texas, it's more like just a few landmark cases.
>The rules even tell us what to do when no physical objects are found to control.
The whole rule-based argument completely overlooks the role of equity in the way that boundary disputes are often resolved, and specifically the equities that may be shown and argued in court. While it is true that equity consists of a number of broad principles, to call them rules leaving little scope for alternate decisions would be a significant misunderstanding.
>It all comes down to surveyors ...
Until it goes to court.
JBS:
I like dissertations myself, and I think this was an excellent one. The distinction between created and established boundaries is especially useful (I think I first saw you draw it, perhaps less formally, in the storied Knerr v Mauldin thread(s)). Thanks very much.
Reality and Equity
You should take your "Everything Should be done like Perfect Texas" BS on the road and present it at surveyors conferences countrywide. We all could use Utopia as our new reality. You could pay me to attend one of your BS sessions, I hang around for about 5 minutes then get up and make a lot of noise as I left the room. I'd probably be the last guy to leave.
Your well on your way to ruining this board like you did POB. If Wendell wants this to last he better take notice.
Here I'll say it for you, Kent LOL.
Reality and Equity
> Your well on your way to ruining this board like you did POB. If Wendell wants this to last he better take notice.
So, does it bother you that some surveyors have different opinions than you do? Should there be a special category where no dissent is posted? LOL.
Reality and Equity
Texas law? Perhaps:
TH INVESTMENTS, INC. v. KIRBY INLAND MARINE
218 S.W.3d 173 (2007)
"Thus, although the original surveyor's marks and calls are generally controlling, when the surveyor's marks have disappeared over time, the lines and corners of the survey may be established using any evidence tending to show their location that is "the best evidence of which the case is susceptible." See, e.g., City of Carrollton v. Duncan,742 S.W.2d 70, 72, 76-77 (Tex.App.-Fort Worth 1987, no writ); Angelina County Lumber Co. v. McKnight,265 S.W.2d 246, 249-50 (Tex. Civ.App.-Waco 1954, writ ref'd n.r.e.); Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288, 300 (Tex.Civ.App.-Beaumont
1928, writ dism'd w.o.j.). Courts generally consider the "best evidence" to be "that evidence which is the more specific and definite as against that which is merely general and indefinite or descriptive." Taylor, 2 S.W.2d at 300."
Reality and Equity
You've made a career out of trying to stomp down opinions that vary from yours. Trying to stop or interrupt any discussion that varies from your utopian view. You get nasty and go out of your way to dis opposing views. It's all about winning for you, not promoting any discussion for the benefit of land surveying. You try to dominate and there are lots of folks that won't enter the room for fear of the Kent wrath.
Maybe you up the ratings for the board for the Springer like entertainment value (let's see who Kent is killing today). But what if the intended audience is looking for some serious give and take discussion about land surveying? What if someone trying to learn asks a question and truly wants to learn. Should they be put down for being ignorant or rewarded with a proper answer even if the question is very basic.
It might be interesting actually debating some serious stuff with you but that's pretty much impossible as you'll never give a straight answer to a serious question that you either don't know the answer to or probably just disagree with the truth of it (silence).
You really should put your show on the road (put up or shut up) other than just shooting from the gallery. It takes a lot of time, passion and effort from those that give of themselves to promote land surveying and present at conferences. I don't really believe it's all the lucrative so the motivation is something other than financial rewards. I don't do it and I respect those that do even if I don't always agree with the presentations.
LRDay
Kent is often wrong, yet seldom in doubt.
Reality and Equity
> Texas law? Perhaps:
Probably the most cited landmark Texas boundary case is the 1867 Texas Supreme Court case of Stafford v. King
> TH INVESTMENTS, INC. v. KIRBY INLAND MARINE
> 218 S.W.3d 173 (2007)
>
> "Thus, although the original surveyor's marks and calls are generally controlling, when the surveyor's marks have disappeared over time, the lines and corners of the survey may be established using any evidence tending to show their location that is "the best evidence of which the case is susceptible."
Yes, the case you mention is in line with Texas decisions seeking to find the locations in which the original surveyor marked the corners, and rightly so.
Reality and Equity
> You've made a career out of trying to stomp down opinions that vary from yours.
Well, that's an interesting way to describe correcting erroneous views that get enthusiastically and endlessly recycled. (See above post by Keith, On the Central Coast of California, Thursday, May 05, 2011, 11:57 for an excellent example of this.) The quotes around "original monuments" is hardly accidental in the OP of this thread.
Kent
If you understand where Kent is coming from, his statements are more easily understood.
He ONLYuses original monuments and never any subsequent monuments that may put a bend in his senior line between original monuments.
Keep that in the back of your mind when you read his arguments.
Remember his bending a pin over to be on his line?
Keith