"What are boundaries is a matter of law; but where they are is a matter of fact. ( Bolton v. Lann, 16 Tex. 96.)" -WHITE v. CLAUS SPRECKELS, 75 Cal. 610 (1888)
Assume the client owns Lot 100 of Peaceful Acres.
Where the boundaries are is wherever the boundaries of Lot 100 are located.
What is the what?
I understand a boundary is the place where one parties real property rights ends and another parties begins.
> What is the what?
According to some, the what is the fence located 5' from the lot line but has been recognized as the rightful boundary between neighboring lot 99 and 100.
> What is the what?
Lot 100 of Peaceful Acres, according to the official plat thereof.
(Is this a trick question?)
Well, for example, if the fence met all the requirements of the Aquiescence Doctrine in your state (usually uncertainty, a definite boundary acted upon as the boundary and a long period of time) then the where is the fence and the what is Acquiesence.
True, but the fence couldn't be the where before being the what. Could it?
That's what I thought but then it occurred to me that the Plat is part of the where.
> That's what I thought but then it occurred to me that the Plat is part of the where.
It can be part of both.
Although I don't think it's good public policy, there have been some court decisions that redefine the what after determining the where, e.g. the fence is determined to be the boundary and the lot line is declared to follow the fence, even though that puts the lot line in conflict with other evidence of equal or greater value than the fence with regard to the overall subdivision scheme.
> "What are boundaries is a matter of law; but where they are is a matter of fact. ( Bolton v. Lann, 16 Tex. 96.)" -WHITE v. CLAUS SPRECKELS, 75 Cal. 610 (1888)
>
> Assume the client owns Lot 100 of Peaceful Acres.
>
> Where the boundaries are is wherever the boundaries of Lot 100 are located.
>
> What is the what?
As I understand the aphorism, the "what" is the collection of legal principles by which the location of a boundary would be adjudged from a specific set of facts.
Here's a statement from "A Digest of the Laws of Texas" published in 1875 on the subject:
"What are boundaries is matter of law; where they are, is matter of fact. And it is a matter of law, which juries cannot control, but which must control them, that where the lines of a survey have been run, and can be found, they constitute the true boundaries, which must not be departed from, or made to yield to course and distance, nor any less certain and definite matter of description or identity."
citing George v. Thomas, 16 Tex. 74 and Bolton v. Lann, 16 Tex 112.
It is probably best understood in the context of surveying practice of an early day when the "correction" of poorly surveyed boundaries was often pursued by land surveyors attempting to run boundaries by strict adherence to course and distance instead of thorough inquiry into the original survey.
> That's what I thought but then it occurred to me that the Plat is part of the where.
The plat is the record document whereby the "what", lot 100, was created. The plat also contains evidence of the "where" the boundaries are located, however, other evidence (usually controlling) is found on the ground. That is where the factual analysis is to be made by the surveyor. The facts are gathered, analyzed, and evaluated under the boundary location laws, this tells you "where" the boundaries of the "what" is.
From Jeff Lucas' current article in POB quoting Krause v. Nolte, 75 N.E. 362 (Ill.1905):
The object of the suit, therefore, is to ascertain the true boundary line between the contiguous estates, and not to try the question of title on either side of the boundary. All that a survey does is to establish the line, and it does not determine the title to the real estate. The object [of a survey] is not to try the question of title on either side of the line, but to mark the place of the old line, where the ancient monuments are gone. [Similarly a] court of equity will not try title to land in a suit to establish boundaries.
> Assume the client owns Lot 100 of Peaceful Acres.
>
> Where the boundaries are is wherever the boundaries of Lot 100 are located.
>
> What is the what?
The "what" would be the elements of the description by which Lot 100 has been conveyed that would fix its true boundaries. For example, if Lot 100 has been conveyed by reference to a plat, the "what" are the principles by which the conflicting elements presented upon the plat would be reconciled: which would be considered most certain and controlling, and which would yield.
If a trial court made such a decision I wouldn't worry about it too much.
The fact that an Appellate Court affirmed is pretty much a foregone conclusion in a fact case. The Appellate Courts only check to see that there is substantial evidence to support a finding of fact. Even if there is also substantial evidence to support an alternate conclusion they will not choose that alternate conclusion, they will affirm. Findings of fact such as boundary location is the province of the Trial Court. Most Appellate opinions are not published.
Maybe JB or Evan will chime in and eloquently explain what we are clumsily trying to say.
Here's a few citations of law that may help.
"The construction of a deed and its legal effect as to boundaries is a question of law ... and the location of the boundary line is a question of fact." PACHECO v. MARTINEZ, 636 P.2d 308 (1981)
"We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact." THERIAULT v. MURRAY, 588 A.2d 720 (1991)
"as to what are boundaries, is a question of law for the determination of the court; as to where the boundaries are upon the ground, is a question of fact to be determined from the evidence." TH INVESTMENTS, INC. v. KIRBY INLAND MARINE, 218 S.W.3d 173 (2007)
"It is a rule of law that what is the boundary line between two parcels of property is a question of law, and where the boundary line is located is a question of fact." CALDER v. HILLSBORO LAND COMPANY, 122 So.2d 445 (1960)
It would appear that the "what" is what constitutes the boundary, such as a river (MHWM, MLWM, Thread, etc,), a highway (row, centerline), a ridge, a black oak, aunt Mable's pig pen, or the boundaries as called for on a plat/survey. Whereas as the "where" question is a question of fact, derived from evidence, of where the boundary is located on the ground.
> "The construction of a deed and its legal effect as to boundaries is a question of law ... and the location of the boundary line is a question of fact." PACHECO v. MARTINEZ, 636 P.2d 308 (1981)
You're probably overthinking this one. The aphorism was first stated before 1875. This was before seminars and trade magazines for surveyors. In that early age something as elementary as the order of conflicting elements in a description was not necessarily widely understood by surveyors with the result that surveys were made of previously surveyed tracts with the object not of following the footsteps of the original surveyor or of determining the most certain of conflicting elements, but by slavishly running out the exact calls for course and distance as if that was all that a surveyor could possibly do.
Yes, obviously the priority of calls is very important. It is a rule of law to be applied when interpreting conflicting evidence of the boundary.
From the Theriault case above cited:
"We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained." (internal cites omitted)
> Yes, obviously the priority of calls is very important. It is a rule of law to be applied when interpreting conflicting evidence of the boundary.
The obvious point is that the aphorism originated in an age when surveyors generally were much less familiar with the principles of the law than is common today. In that context, the entire reason for the distinction between the "what" and the "where" is to distinguish legal determinations from the running out of courses and distances without regard to other superior evidence.
For example, a landmark Texas case, Stafford v. King, decided in 1867 dealt with the question of the proper location of a tract of land that was erroneously tied in its metes and bounds to some distant corner of another tract which if considered to control the location of the land described a shape and location that missed every line that the original surveyor had actually run on the ground and called for in the record of his work. At the time, the Texas Supreme Court felt obliged to formally state the usual order of priority of conflicting calls and the entire concept of following the footsteps of the original surveyor.
Nowadays, of course, unless a surveyor has been to too many seminars, he or she will almost certainly understand the legal principles of boundary retracement that weren't well known by surveyors in the 1870's.
Yes, I think you're correct. In the old cases (stafford v. king being a good example) the surveyor testimony tended toward telling the court what a boundary was. The court had to reply with the "what" and "where" explanation to clarify the surveyor's duties. One would hope not to see that kind of language from a court in recent decisions, as it should be unnecessary. With the licensing processes in place today, it's hard to picture a surveyor trying to tell the court what a boundary should be.
I had a situation a couple years back where it seemed I might see this in action, but in the end the offending surveyor refused to testify to the thoughts published on their map.
It's always seemed like a goofy concept to me, the what and the where. The what being the separation of two title's ownership and the where being the location.
The where being dependent upon the facts doesn't take it out of the realm of the law. The law is everywhere here. The law must be applied to the facts. The where is determined by boundary law. It's not as simple as following the footsteps of the original surveyor or of determining the most certain of conflicting elements, at least not in my state. The law is much more comprehensive than this. There are other elements to the where, or facts, needing application of the law, like repose, agreement and landowner actions over time, facts so to speak, that the law when applied determine the where of a boundary. The where being dependent upon the facts doesn't relieve a surveyor from knowing and applying all of the law to determine where a boundary is. The conflicting elements of the technical math is the bottom of the barrel, the most simple facts. If you are only looking at these facts you probably don't have but a clue as to where, the law applied to the facts, determine a boundary is, at least not in my state, may be different elsewhere.
> "What are boundaries is a matter of law; but where they are is a matter of fact. ( Bolton v. Lann, 16 Tex. 96.)" -WHITE v. CLAUS SPRECKELS, 75 Cal. 610 (1888)
>
> Assume the client owns Lot 100 of Peaceful Acres.
>
> Where the boundaries are is wherever the boundaries of Lot 100 are located.
>
> What is the what?
That's a silly question that requires a helluva lot more information. You must have been into the Beefeater cause you're baiting for a fight. 🙂
>
> That's a silly question that requires a helluva lot more information. You must have been into the Beefeater cause you're baiting for a fight. 🙂
we're going to have to nickname him "Fightin' Dave" Karoly 😛