> What is a [real property] boundary?
> How are real property boundaries created?
>
I thought I had already answered this guestion but I admit the answer might have been a little cryptic.
> How, indeed! but a better understanding of the human psyche would be had from asking ...Why?
Real estate boundaries are created by deeds (recorded, unrecorded, written, unwritten, actions, inactions, etc.) but for a better understanding of the real estate boundary you need to guestion why the boundary was created not just how.
> How are real property boundaries created?
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. ............
So God created mankind in his own image, in the image of God he created them; male and female he created them.
God blessed them and said to them, “Be fruitful and increase in number; fill the earth and subdue it."
Things got crowded and people took possession of property by force or by agreement between parties (often with conditions) in exchange for payment of one sort or another, using some form of durable document to act as a witness to the agreement.
13 “In their presence I gave Baruch these instructions: 14 ‘This is what the LORD Almighty, the God of Israel, says: Take these documents, both the sealed and unsealed copies of the deed of purchase, and put them in a clay jar so they will last a long time. 15 For this is what the LORD Almighty, the God of Israel, says: Houses, fields and vineyards will again be bought in this land.’
16 “After I had given the deed of purchase to Baruch son of Neriah, I prayed to the LORD:
17 “Ah, Sovereign LORD, you have made the heavens and the earth by your great power and outstretched arm. Nothing is too hard for you. 18 You show love to thousands but bring the punishment for the parents’ sins into the laps of their children after them. Great and mighty God, whose name is the LORD Almighty, 19 great are your purposes and mighty are your deeds. Your eyes are open to the ways of all mankind; you reward each person according to their conduct and as their deeds deserve. 20 You performed signs and wonders in Egypt and have continued them to this day, in Israel and among all mankind, and have gained the renown that is still yours. 21 You brought your people Israel out of Egypt with signs and wonders, by a mighty hand and an outstretched arm and with great terror. 22 You gave them this land you had sworn to give their ancestors, a land flowing with milk and honey. 23 They came in and took possession of it, but they did not obey you or follow your law; they did not do what you commanded them to do. So you brought all this disaster on them.
24 “See how the siege ramps are built up to take the city. Because of the sword, famine and plague, the city will be given into the hands of the Babylonians who are attacking it. What you said has happened, as you now see. 25 And though the city will be given into the hands of the Babylonians, you, Sovereign LORD, say to me, ‘Buy the field with silver and have the transaction witnessed.’”
26 Then the word of the LORD came to Jeremiah: 27 “I am the LORD, the God of all mankind. Is anything too hard for me? 28 Therefore this is what the LORD says: I am about to give this city into the hands of the Babylonians and to Nebuchadnezzar king of Babylon, who will capture it. 29 The Babylonians who are attacking this city will come in and set it on fire; they will burn it down, along with the houses where the people aroused my anger by burning incense on the roofs to Baal and by pouring out drink offerings to other gods.
30 “The people of Israel and Judah have done nothing but evil in my sight from their youth; indeed, the people of Israel have done nothing but arouse my anger with what their hands have made, declares the LORD. 31 From the day it was built until now, this city has so aroused my anger and wrath that I must remove it from my sight. 32 The people of Israel and Judah have provoked me by all the evil they have done—they, their kings and officials, their priests and prophets, the people of Judah and those living in Jerusalem. 33 They turned their backs to me and not their faces; though I taught them again and again, they would not listen or respond to discipline. 34 They set up their vile images in the house that bears my Name and defiled it. 35 They built high places for Baal in the Valley of Ben Hinnom to sacrifice their sons and daughters to Molek, though I never commanded—nor did it enter my mind—that they should do such a detestable thing and so make Judah sin.
36 “You are saying about this city, ‘By the sword, famine and plague it will be given into the hands of the king of Babylon’; but this is what the LORD, the God of Israel, says: 37 I will surely gather them from all the lands where I banish them in my furious anger and great wrath; I will bring them back to this place and let them live in safety. 38 They will be my people, and I will be their God. 39 I will give them singleness of heart and action, so that they will always fear me and that all will then go well for them and for their children after them. 40 I will make an everlasting covenant with them: I will never stop doing good to them, and I will inspire them to fear me, so that they will never turn away from me. 41 I will rejoice in doing them good and will assuredly plant them in this land with all my heart and soul.
42 “This is what the LORD says: As I have brought all this great calamity on this people, so I will give them all the prosperity I have promised them. 43 Once more fields will be bought in this land of which you say, ‘It is a desolate waste, without people or animals, for it has been given into the hands of the Babylonians.’ 44 Fields will be bought for silver, and deeds will be signed, sealed and witnessed in the territory of Benjamin, in the villages around Jerusalem, in the towns of Judah and in the towns of the hill country, of the western foothills and of the Negev, because I will restore their fortunes,[c] declares the LORD.”
So property boundaries are endorsed by God and maintained by men, wether by force, or agreement via a transaction.
How are real property boundaries created?
From Black's:
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.
Note that in the above quote from Black's, there is no mention of 'deed' or 'soveriegn grant'.
The phrase: 'Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.', should tell you that unchallenged occupation and control of a parcel of land defined by physical evidence ACCEPTABLE TO THE AFFECTED OWNER(S), is sufficient to fix the boundaries of a parcel of land.
Such monumentation need only be visible and such evidence need not be of any special or pre-determined type; it is sufficient that the owner(s) recognize it. Such physical evidence is proof that an agreement IS IN PLACE and the surveyor, who has no ownership interest in the land, has no authority to challenge that agreement.
Check Cooley's 'Judicial Functions of Surveyors' for his instructions regarding interviewing the affected owners.
Richard Schaut
by agreement written or implied
Richard
Again, Cooley, while loquacious, is not the end all be all for dealing with anything. His attempt was to enlighten those about unwritten rights. He is not the final word on it.
Seminars just may prevent the cock ups that are providing U
I find most seminar speakers don't know much more than the paying audience, they just don't know it with more gusto and enthusiasm.
Robert
That wasn't the case at the water boundary course. In fact, I've never seen the look of abject horror come across a group of folks faces when the issue of perennial streams came up. In fact, Mr. McMillan and I had a conversation on the old RPLS.com about it where he acted like he wasn't aware of the state ownership of those streams.
That was an eye opener for sure.
Robert
I needed some CEU's in a hurry one year and ended up going to one on How to Run a Successful Survey Buisness, the kicker is the guy giving the lecture had been in business about two years.
Another time I went to one given by FEMA just after they started wanting Lat/Longs on the EC, I asked what do you want them to reference, center of lot, center of house, midpoint of road in front of house, he said didn't know that no one had ever asked that question before.
Then one year I went to one where a couple of LSLS's were explaining how they how done this very difficult survey and they had to shift the closing side by over 200 feet because they decided they had a call to a natural monument (which I didn't think was that natural) and because the closing bearing they found did not match the original surveyors called bearing. I asked what equipment they used and they said combination of gps and total station, I didn't want to embarrass or make a big deal out of it but the original surveyor ran the survey with a chain and compass and closed at a creek. I felt they should have at least ran the closing line with a compass to see if maybe some ferrous material in the creek bed at the closing point was effecting the compass. To make matters worse they held his survey on the other three sides but then decided he couldn't read a compass or chain a line on the fourth. Anyway I was not impressed.
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.
YOS
DGG
When's my prize ETA JB ?
Glenn
> Psych's what I got my degree in, too.
Neato Frito!
Glenn
Yeah, whoopee. One thing I learned from getting a university degree is that it doesn't generally qualify you for any paying job. Mostly a ticket to grad school. This affects my stance on degree requirements for surveyors.
How's this:
Boundaries ARE NOT created by retracement surveyors with calculators and least squares programs.
In fact I don't believe a surveyor can create a boundary unless he is the landowner also.
Deeds may set them up but deeds don't complete the boundary creation process.
Mr Day, et al,
First I know Mr. Stahl is trying to stir up some discussion and I believe him that he has a gift in teaching. I also think that most every (non-joke) answer is correct at some level, althought I am sure JB is looking for something more specific. I don't know how "some people" can't understand the questions as originally worded. It is a much different question when asked on a surveyor's board than if it were asked in a philosophy class or in a psych 101 class. Go to a surveyor and ask "what constitutes a boundary" you won't get some esoteric answer. No. You will simply say the boundaries are exactly where Wendell and Angel say they are. (okay, that was a joke, if you didn't realize).
But to my real response to Mr. Day.
> Boundaries ARE NOT created by retracement surveyors with calculators and least squares programs.
>
> In fact I don't believe a surveyor can create a boundary unless he is the landowner also.
>
> Deeds may set them up but deeds don't complete the boundary creation process.
While you are much smarter than I am, and I am certain most other surveyors would agree with you, I would like to offer the following: In my opinion we, surveyors, often misconstrue our "power" or duty if you will. The fact is that more often than not the retracing surveyor's property corners will be accepted as gospel. "My corners are right here.....I had it surveyed last week." Yes we often see disputes, but really I think that many times someone gets their property staked and they build a fence and it is the property line for the next three generations of owners. The only thing that often "breaks the chain" is if/when another surveyor stakes it differently.
My point is that, 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. In my opinion, that is a certain fact of life that the surveyor needs to begin to understand and respect. Once you/I/we go out and set a permanent monument to the property line to represent it in perpetuity.....and sign and stamp to the plat; it generally carries the status and respect of the public at large. In fact, if it is disputed; it often goes to a court of law to reverse or uphold that land surveyor's opinion.
In my opinion our own responsibility is taken much too lightly and the actual consequences are much higher than the average land surveyor actually considers.
Just my 0.04....
Tom
I am curious to see Mr. Stahl's answers to his own questions. And I don't have a better one than those offered above.
Robert
> In fact, Mr. McMillan and I had a conversation on the old RPLS.com about it where he acted like he wasn't aware of the state ownership of those streams.
I think you're forgetting that our discussion was about the effect of the Small Bill in relinquishing the State's title to the beds of those and any other streams crossed by survey lines.
Seminars just may prevent the cock ups that are providing U
> I find most seminar speakers don't know much more than the paying audience, they just don't know it with more gusto and enthusiasm.
Yes, that's true enough. The seminar presenters generally are able to froth up a relatively small amount of material to expand it and fill time. I still recall one that was billed as "Adverse Possession in Texas" delivered by a fellow who spent three hours talking about adverse possession in the State of Maine, finally mentioning as an aside as his bit was drawing to a close that much of what he'd said with great authority might not actually apply in Texas. He'd never read the Texas statutes or cases and he hoped his audience would familiarize themselves with them. True story.
Then there was the guy who delivered a wonderful talk about how to get rich surveying by following a few tips that he shared with his audience. I happened to sit next to him on the plane ride back to Austin and in the course of chatting with him learned that he did very little surveying anymore because there ... wasn't any money in it. True story.
Robert
> > In fact, Mr. McMillan and I had a conversation on the old RPLS.com about it where he acted like he wasn't aware of the state ownership of those streams.
>
> I think you're forgetting that our discussion was about the effect of the Small Bill in relinquishing the State's title to the beds of those and any other streams crossed by survey lines.
The small bill didn't relinquish any rights to those streams unless the titled grant is deficient and the landowner can make up some of his acreage undivided from those streams. If the grant is in excess then the state owns perennial streams in titled grants.
The small bill also validated grants that were crossed by streams over 30 feet wide. Two different things.
The state owns perinnial streams in titled grants if the grant has it's call or is over it's called acreage. If you think otherwise, well you'd be wrong.
Now my beef with the state is that they claim all streams in the grant without checking whether it's in excess or not. The burden of proof is on them, but Ben Thompson told me in Brady that is was right, but they would drag their feet.
Robert
> The small bill didn't relinquish any rights to those streams unless the titled grant is deficient and the landowner can make up some of his acreage undivided from those streams. If the grant is in excess then the state owns perennial streams in titled grants.
Except the State has to first prove that there is excess in the grant. Without that proof the presumption is that the title to the beds has left the State since the quantity recited in the title or patent isn't excessive.
> The small bill also validated grants that were crossed by streams over 30 feet wide. Two different things.
Not really. Under Civil Law, the titles to the beds of both navigable streams and perennial streams were retained by the sovereign.
Kris
I don't like the question and answer format of writing/speaking either.
You know where you answer your own questions. Am I having ham for lunch? Yes, but I'm also having cheese and mayonnaise. Do I think hogs should be treated humanely? Yes, but this one was grown for my lunch so I'm eating it.
Tom,
I certainly can see your point. The true sad state of affairs is that there are all these land parcels so recklessly created (aliquot parts, proportion, kitchen table deeds, title companies and even lawyers and surveyors) that they don't have established boundaries. It's not really the fault of surveyors but just a society with so much cheap dirt (up till now) that really doing the job to create the boundaries (establish them on the ground) hasn't been given the proper effort.
So I agree that doing a survey may be a good step in laying something out for the landowners to accept and thus establish their boundary. I would hesitate to call this retracement surveying though because the surveyor in this situation has nothing to retrace or instead of following what landowners have done to establish their boundaries is mathematically attempting to create new ones. This attempting to be the original surveyor when the title has already been in the record for years is something surveyors are not authorized to do by statute but can do if they get the authorization from the affected landowners (and get the proper paperwork into the record).
So that is where I'd like to see the land surveying industry go is working on solving the problems with the proper authorization from the landowners to create proper boundaries without disturbing what has already been established. I think this requires a different approach than the opinion survey that has been the standard for decades now.
The way I see it if things don't change land surveyors will be forced out of causing problems instead of resolving them and rightly so. I believe that things really need to change for the land survey industry to step up and be the solution to these issues. Guys like John Stahl are showing us the way even as many kick and fuss about the good old days past. Adapt and survive the alternative isn't very inviting.
We can't make it how it was supposed to be. Reality exists for those that can see it. The courts don't have problems seeing the light and showing the way. Surveyors should follow the common sense of the law, not attempt to create their own utopian view of reality. Boundaries are created by humans not some strict mathematical formula.
I'm not an expert, just someone who asks a lot of questions that thinks out of the box. I've been fortunate to have an association with some world class surveyors.
Robert
Duh Kent. The only time a perennial stream would ever come into play is in a titled grant and that was under civil law.
As to your presumption, it's flat wrong. Don't believe me? It's cool. Let's ask all of the oil companies the state has forced to get leases from in east Texas in titled grants without first proving the grant was in excess. Oh, if you want to argue with them, that's fine, but you're not getting the permit to drill. As I mentioned above, I brought this issue up to Ben at Brady and he flatfoot me the states stance on it and they purposely will not carry the burden of proof. I was shocked to say the least.
On this one Kent, I'm right.
Also, and you probably run into this some too, but what do you do with the old roads in the titled grants that were there at the time of the livery of seisen? We've only got a few we have to contend with, namely the el camino real. Funny thing is, there are a lot of roads that purport to be the el camino real. The field notes for the durst 9 league grant actuall meandered it for miles and the lacy league gives passing calls on it that are spot on "one" of the roads in the area. 🙂
