Dealing with retracement surveys, there are two principles that apply.
The first is that the record description is not controlling and the second is that the owners have the right to establish their own common boundary without the need for a survey and without regard to the record description when all evidence of the original boundary is lost. There is clear legal reference material that supports this.
With regard to the record description; Corpus Jurist, Corpus Jurist Secundus, American Jurist, and American Jurist 2nd all have the same caution as John Wigmore has in his compendium on Evidence:
From Wigmore;’s compendium on “Evidence”, 2nd. Edition, Vol. 5 Section 2476:
“It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted. …”
With regard to the owner's establishing their own common boundary you will find statutes of repose in most states that recognizes a physical boundary in place and unchallenged for a set period of time is the legal boundary. Texas's section 16 of their Civil Procedures and Remedies Act, California's ss 321-325 and the recently passed Iowa 'Boundary by Acquiesence' law among others comes to mind along with the following quote from Backman & Thomas's "A Practical Guide to Disputes Between Adjoining Landowners - Easements", Chap 8:
8.01 Introduction and Chapter Overview
Setting boundaries between adjoining properties is a commonly recurring problem. Care should be taken in the first instance to use an accurate description in all transactions involving real property. The first section of the chapter explores judicial doctrines of construction utilized in choosing between alternative possibilities of meaning of ambiguously stated property descriptions.
The record description of a property boundary is merely the first element in establishing the actual boundary line between properties. In order to establish the actual location of the boundary, property owners are regularly assisted by professional surveyors who scientifically determine the location on the ground.
Property surveys are the surest means of establishing an accurate boundary. Because they involve an additional expense in the conveyance of properties, however, many property owners disregard this measure of safety. As a consequence, a number of doctrines have been established in order to give recognition to boundaries which have been set by the acts of one or both of the adjoining property owners.1 In addition to adverse possession, considered in Chapter 7 supra, boundary disputes may also be settled through the application of three other judicial doctrines—boundary by agreement,2 boundary by acquiescence3 and boundary by estoppel.4 Under these three doctrines, adjoining owners may create a boundary that differs from the record description if that boundary has been established and recognized for a substantial period of time. All of these doctrines are intended to achieve similar policy objectives, i.e., to promote efficient use of property, to reduce litigation, to establish a status of repose, to remove stale claims, and to avoid the necessity of producing evidence as to events from the distant past.5
The surveyor's responsibility is to enter onto the land, recover the positions of established physical evidence and compare the found information with the record. If there is a material difference, the description is inaccurate and the surveyor must so inform his/her client. If the client is the land owner, the surveyor can provide the documentation used to correct the record with the owner providing the authority to place the correction in the record; the surveyor's job is not finished until the correction is actually recorded. Note that I refer to 'established' evidence which means that the surveyor must follow Cooley's instructions from his "Judicial Functions of Surveyors' and applicable state law:
... It is often the case when 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 long acquiesced in is better evidence of where the real line should be than any survey made after the original monuments have disappeared. ... (See Lucas's article on "Slander of Title" in POB where an appelate court judge stated that a survey that staked out the deed description when it conflicted with established physical evidence in California was a 'bogus survey'.)
If not the surveyor, who?
See also Black's Law Dictionary definition of Alienation:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
What does the phrase, 'Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.' mean to you?
Richard Schaut
That may all be true, but I say all the evidence is not lost and I can retrace it. You say no way the line is now 100 feet in some other direction. My client wants the full 100 feet. Why should my client be screwed out of 100 feet just because you are wrong?
Hence, recourse is always had to the court system.
Eventually every Deed has to hit the dirt. We don't like it when that happens in the form of a fence but if so then so be it.
It is true that a survey is an opinion. So is a supreme court determination. The survey, the supreme court decision and everything in between are supposed to be legal determinations. Most surveys are sufficient enough for the owners to accept. IMO it is a mistake to legislate private property line determinations upon owners that are not asking for it. The legal means that now exist to stabilize boundaries for those who wish to do so are sufficient. The need to resurvey the world is overrated. Even if there was a snapshot taken in time of where existing boundaries are and where they will always be stuff happens. When stuff happens a legal determination decides where the boundary exists and no sub-millimeter GIS is going to control that legal determination now or ever.
The issue of joining adjoiners into a boundary establishment has been discussed. It becomes an issue for sure. Say a landowner wants to develop and the ambiguous boundary problem exists. The city/county wants the boundary resolved before they will allow the development to go forward. One or more adjoiners are against the development (imagine that) and won't cooperate in any way. So how do you get them to the table to resolve the problem, from their attitude doing nothing stops the development. How do you balance the needs of all parties?
The US is far behind more advanced places on land ownership. We don't have a guaranteed title system. All the deeds and title documents are evidence of title not title. If we were to go to title registration the title and even the location would become guaranteed by the state. You would have a title document similar to the title to your car. The state would enforce your ownership, the name on the title document is the owner, no need for insurance and an abstract going back hundreds of years.
The process of title registration, which would occur over time, would require that every parcel be surveyed and the problem of ambiguous boundaries resolved (by due process).
If you think the Tea Party is fired up about mandatory health insurance, wait till they hear about mandatory surveys and title registration!
I have not yet figured out what the Tea Party is (nor do I care) but mandatory surveys and title registration is a farce. It would be just another WPA project wasting time and resources.
Nothing is broken, there is nothing to fix.
Use the multitude of tools at hand, inform your clients, and then just go about your business.
Mr Frymire
Your client lost ownership rights when he did not protest the location of the established boundary within the statute's specified time limit or he never had title because the description was inaccurate when he bought the property.
Go back and study Black's definition of Alienation and Restraint on Alienation, In the US, it is a right of the land owner to abandon a claim of ownership to all or any part of his property and the determinant is the physical evidence, not a faulty record description.
Remember, this is not Canada, Australia, England or any European country.
Also check Blacks definition of fee simple, especially the part about 'unconditional right of disposition' and then ask yourself where you get the authority to specify a condition that must be met before a land owner can exercise an unconditional right.
If a physical boundary was in place when a present owner bought the property, that new owner was not party to the agreement or acquiesence that applied when the physical boundary was established, therefore neither you nor that owner have the authority to abrogate such an agreement or acquiesence. When this condition exists, the new owner is the victim of land fraud and, if a survey was performed as part of the sale, the surveyor who did not inform the buyer that a correction to the record description was necessary, has facilitated such a fraud.
If the record was inaccurate at the beginning, no claim of ownership ever existed for the land inaccurately described.
The true function of the surveyor in the US is to detect and provide a means to correct errors in our land records system.
Because our landowners have the unconditional right of disposition, land registry programs must accommodate the ability to exercise that right so the registry DOES NOT CONTAIN 'accurate' descriptions and it must be able to provide a correction process that the surveyor is able to use to protect the occupiers title.
Richard Schaut
Richard Schaut
I am a bit off topic here, but I wish to note how far off topic you sometimes are.
You continue to cite Black's as an authority for your positions.
While I do like to hear what you have to say in my mind it is often hollow. I think you need to dig a bit deeper and come up with something that actually applies to the subjects at hand.
There is no universal truth in our varied areas of practice (area as in location).
Black's is a good resource but it is just a simple dictionary like the multitude of others... an opinion of the author but it is not an actual authority to be extrapolated from.
I hope you too had a great Thanksgiving.
Thanks, Peter
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Black's Law Dictionary, From Wikipedia
..."has been cited as a secondary legal authority".... "The latest editions, including abridged and pocket versions, are useful starting points for the layman or student when faced with an unfamiliar legal word."
Secondary authority, From Wikipedia
"In law, a secondary authority is an authority purporting to explain the meaning or applicability of the actual verbatim texts..."
Right to transfer your land title
Unconditional right of disposition derives from the individual landownership rights in the US. Although it opens the door for adverse possession I don't think that is the primary reason for it. Before there was individual ownership rights the King or sovereign owned all the land. They would grant land rights to others but the right to sell the land to others wasn't included. The land always came back to the King because the right to sell wasn't part of the grant. When the US was formed from the revolution they instituted individual land ownership and that had to include the unconditional right of disposition so the land could be transferred to the next individual owner.
Title registration would pretty much shut down the ambigious boundary problem because of the surveys done, adjudication and records of the boundary locations which would be hard to become unknown afterwards. Landowners unconditional right of disposition would still remain in place as always, they could sell there property to a new owner.
