I've read posts and comments on other sites on this topic where licensed surveyors feel that they have the authority to depart from title lines and hold occupation lines as ownership lines, based on case law that they have studied or researched.
I have a few questions of those that think that have the legal authority, regardless of time of encroachment, to adjust a title line to match an occupation line:
1) Where does it say, anywhere, that we have the legal authority to apply case law and/doctrines to decide where lines are when it comes to possession lines versus title lines?
2) What are the supporting statutes in your state that allow you to make legal decisions when it comes to conflict between title and occupation lines?
3) Some will argue that our profession is quasi judicial, for those of that opinion, do you know what quasi judicial actually means? For the benefit of those who insist that we have legal powers under this title, here is the definition:
Quasi-judicial means having a partly judicial character or essentially judicial in character but not within the judicial power or function.
Nobody has ever explained the authority that we have to adjust recorded title lines to accommodate possession lines without a boundary line agreement being drafted and filed.
Thanks for your post. It should open up some good discussions. Before I could respond further can you give us your definition of “title lines”.
Simply answering your questions implies agreement with your underlying premise. Our statutes grant us the authority to make boundary determinations. Idaho Code 54-1202(9) lists the various lines that make up a boundary survey. The absence of 'title lines' from that list isn't because we can't determine them, it is because they are part of the evidence, not a separate entity untouchable by surveyors. The premise of your questions would be like asking a doctor to cite the authority for treating bacterial infections after surgery. It's not in the law, but they better do it. All that said, I'll walk through your questions.
1. The law grants us the authority to survey property boundaries. It does not describe the classes and types of evidence to consider. It is presumed the licensee understands these responsibilities.
2. This is the same question worded differently. 54-1227 grants me the authority to survey. This includes a duty to examine ALL evidence, rank it properly, and properly document what it means. As I've said, if the fact pattern reveals an established boundary I'm not making a legal decision, I'm explaining what has already happened.
3. There are literally dozens of definitions of 'quasi-judicial'. I am aware of several that include being fully clothed with judicial powers for specific acts. We can cherry-pick back and forth with no good outcome, or we can look to the context of the quote. It is also advisable to discuss this with an experienced administrative law attorney as that is where the term is most often used.
Your boundary line agreement comment raises important points. Where the fact pattern is unclear, and the lines cannot be recovered the agreement or a contested case are your only options. This is a separate situation. Explaining to owners that establishment has clearly occurred is a different conversation than 'I cannot tell you where the line is with certainty'. The fact the two problems often share a solution is irrelevant.
I have heard the title versus property versus possession speech from a lot of surveyors over the years. In over 45 years I have yet to see evidence of its existence. I often see conflicts between the record and actual location of boundaries, but never separate boundaries.
Nowhere did you mention the legal authority to modify title lines to conform with occupation lines. Certainly, you will have your own opinions and document your findings but we are not of the ultimate authority to modify lines granted by record documents defining what has been paid for and conveyed.
There is something to be said about protecting public safety. When you modify title lines based on your own findings and opinions drawn from them, you are clouding title and thus the marketability of the property, ultimately affecting one party or the other adversely.
Take some time to review Knud Hermanson's postings on the University of Maine web site where he discusses the responsibility of a Surveyor and how the idea of determining possession lines to be ownership lines crosses into the realm of making legal determinations that are outside the scope of our authority.
Title lines are those lines described in recorded title transfer documents pertaining to real land. Occupation lines are those that consist of usage and/or possession lines.
...paging Justice Cooley
If a client does not wish to pursue a boundary line agreement with a neighbor, their lack of enthusiasm does not change my opinion of where the boundary is. I generally hold what I find and note discrepancies with title when relevant.
I explained (repeatedly) that I do not change title lines. The actions (or inactions) of the owners do that. Ownership is established when the fact pattern is met. Ignoring that explanation to repeat your invalid question is disingenuous and unproductive.
Which line are you holding, title or possession, and why?
You did not communicate clearly that you hold title lines versus occupation. My point is, and has always been, that we are not empowered to decide on ownership based on possession lines and my understanding of our exchanges tell me that you would monument ownership lines and cloud title. I could be wrong in my interpretation of your writings.
Actually I did not communicate that at all. I do not simply read a deed, locate a fence, and flip a coin. I recover the boundary location where the evidence reveals it to be. I have the authority and duty to do nothing less. Again, unproductive...
Not unproductive at all. You said that we are qualified to determine boundary lines, based on occupation. I am not going to argue the point, you can read through your own comments in the thread.
What I have said is we recover boundaries where they exist based on evidence. Occupation is PART of that evidence.
It is apparent you will not engage on this subject. It doesn't matter if it's because you're not capable or not willing. The result is the same. Unproductive.
"...lines described in recorded title transfer documents pertaining to real land." tell you where to look for the boundaries.The boundaries are found on the ground and often are different than what is described in the title transfer documents. Yet there is no difference in what was transferred. The same parcel was transferred by the documents as what the boundaries on the ground encompass
in VA.... excerpts from the Code...
18VAC10-20-370
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B. Research procedure. The professional shall search the land records for the proper description of the land to be surveyed and obtain the description of adjoining land as it pertains to the common boundaries. The professional shall have the additional responsibility to utilize such other available data pertinent to the survey being performed from any other known sources. Evidence found from all known sources, including evidence found in the field, shall be carefully compared in order to aid in the establishment of the correct boundaries of the land being surveyed. The professional shall clearly identify on the plats, maps, and reports inconsistencies found in the research of common boundaries between the land being surveyed and the adjoining land. It is not the intent of this regulation to require the professional to research the question of title or encumbrances on the land involved.
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d. Inconsistencies found in the research of common boundaries between the land being surveyed and the adjoining land. The inconsistencies shall be clearly noted by the professional.
