"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."
I suspect that holding the deed math has clouded more titles than a proper of evaluation of all the evidence. It'd be better for the public and the profession if we started making more concrete decisions instead of passing the buck. Why argue that a PLS shouldn't solve boundary problems? Wouldn't it be better if we applied our knowledge and solved problems then forced the BAR to explain why a PLS shouldn't form an educated opinion as to where both title and boundary harmonize?
It makes me wonder if maybe our biggest problem as a profession is a lack of confidence in our abilities. Maybe the fact that so many of us come from blue collar parents makes it easy to doubt how much we have to offer the public beyond the use of our hands. Engineers, architects, and attorneys don't seem as cowed into staying within their wheelhouse. Since we already get pulled into lawsuits, why not err on the side of increasing our ability to apply reasoned judgement?
...why not err on the side of increasing our ability to apply reasoned judgement?
One of the bigger reasons I'm reluctant to do that is because I'm not out there babysitting every monument 24/7/365. If I knew 20 or 30 years ago someone didn't yank a monument out and move it a foot or two up or down a fence line, or hacksaw an old fence post instead of digging it out so now it looks like a monument then I might be more comfortable doing what you suggest, but I think there are simply too many unknowns that even experience can't overcome.
An even more boring explanation is I think I know how people are. They buy what they can see (fence lines) probably assuming the fences and the deed lines coincide, and they build new fences without having a survey done because it costs too much... and round and round it goes.
I suspect the entire reason people started making maps and deeds in the first place was to reign in this sort of chaos.
Perhaps two different situations would be helpful here:
Situation 1: you find all the original undisturbed corner monuments and they agree closely with each other and with the surrounding parcels. There is an old fence line that is off the line. In that case the fence line could become the boundary line by acquiescence (more likely) or by adverse possession (less likely). The surveyor cannot make that call by himself. It has to go through whatever legal process is required by your state.
Situation 2: you find no monumentation but there is an old fence line or fence lines in the immediate area but they do not fit the distances and bearings on a plat or metes and bounds description. In that case the surveyor absolutely has the authority to call the fence line the best evidence of the original line. Keep in mind that a plat or description is someone’s attempt to represent a survey on the ground. If there is a discrepancy between the plat or description and evidence on the ground, the ground evidence will almost always hold. And try not to disturb the neighborhood.
Situation three, rarely are there no physical roadway centerlines on which to establish a POB from based on researched deeds. If you dig deep enough, the answer will always be there to establish lines of title versus clouding the title by holding possession lines as your resolution. Doing so amounts to deciding ownership versus title and ownership is a matter of law, we can't decide on that, neither can an attorney, all we can do is present out case based on the evidence at hand and layout the preponderance of evidence.
We cannot base our opinions on adverse possession, prescriptive easements of recognition and acquaintance, those are all matters of law, and we are not the Judge who may, or may not, agree with the facts that we present.
The value of the real estate being surveyed can influence the level of care in the survey. We know this because most states have codified laws allowing for less stringent field practices for rural lands. This doesn’t mean we’re off the hook for thoroughly investigating the records and site, but it does mean that our system of laws recognizes that we can’t have a one-size-fits-all approach to development. Given that, it would be absurd to ignore lines of possession when reestablishing an lost corner.
Maybe I’ve taken it for granted that most surveyors have had to reestablish a boundary from a bounds only description. It’s a great way to learn to find the boundary, then measure it, as opposed to beginning a survey with a preconceived notion of what the parcel ought to look like. Especially when the latter is based solely on deed math and often coupled with the gross assumption that the math is greater evidence of intent then the physical evidence and the actions of humans. Remember that nearly every boundary we survey was created on the ground by humans prior to being written in a deed. That fact alone should cause one to pause when claiming the deed math is clearer intent than tangible evidence.
If a person is surveying primarily in urban centers, then maybe they’re unaware that in days of old, the description in a deed was more of an afterthought, as the folks living off the land wouldn’t comprehend that a fellow didn’t know where his boundary corners were. I’ve stood near the center of a 350 acre mountain tract and had a farmer point to all twelve of his corners, none of which were visable. His deed didn’t close by 200 feet and was measured with slope distance in poles because a chain was too long. If working in rural areas, with land that might be valued around $2000 an acre, suggesting finding the POB and retracing the world instead of holding the fence is approaching on a dereliction of duty. To be fair, a rural surveyor probably shouldn’t start driving pipes in the ground at the end of a fence on Long Island either. We have to be flexible and I find the title line theory the least flexible and the least useful in solving my client’s problems.
Recently, I did a retracement for some property along very established occupation lines. The deeds on either side of the existing occupation were called to the same lines. It was about 17 miles of line, I didn't follow any of the occupation evidence, except were it crossed over the deed calls.
To piggy back on what thebionicman mentioned earlier, I've had an attorney elucidate the point that a judge merely recognizes when an adverse claim ripens. For purposes of liabilities, liens, trespass etc., a PLS must consider the possibility that an adverse claimant already owns the property he's been asked to survey and he might be trespassing or causing damages to it. I'm sure if a PLS told a judge something akin to, "Your honor, I'm a surveyor and not a judge, I can't opine as to the location of the boundary but I do know that the title line was on the other side of the six foot fence as measured from the road. Yes your honor, it's true the fence was well maintained and had no-trespassing signs and was assumed by all concerned parties to be the boundary, but I found no record of it having been adjudicated."
Title line theory is hogwash. Man up and solve problems instead of pushing them to the courts. Use your knowledge to develop an educated guess as to where a judge would place the line, explain the uncertainty to your client and allow them to make the decision as to the need to formalize it through the courts or just roll with it.
I have another interesting one this week. A 5 Ac parcel that needs surveyed, per deed the east line is a 1/16th line, the north line is a 1/16th line, the westerly line is a creek. A subdivision was surveyed along the west line and crossed easterly past the creek into the parcel. Then another survey was done following the geometry of that plat.
I'm not following the subdivision boundary, I'm following the creek, on the north and east I'm not on the math breakdown of the section, I'm following monuments that run about 10 west of a breakdown for the east line and along the north line about 7 feet north.
So, each line has its own issue. I'm not going to show competing lines on my plat with offsets and such, my survey will show where the boundaries are.
This probably seems simple to most here, but it's one small example of "fixing" lines without anything else but a proper survey.
Do the lot owners in the subdivision occupy past the creek?
No, but that would be more interesting.
The creek is the boundary for both, the subsequent surveys after the subdivision muddled the location by holding the subdivision line.
By the end of my survey the owner along the right side of the creek will increase their area by .5 acres, which is a bunch for 7.5 acres.
The subdivision was done in 2000. The stream hasn't moved, it's in a granite rocky area and isn't subject to much movement, there is POD near the property's downstream corner that's been in the same location for 140 years.
One amusing factoid is that the subdivision created two 17 acre lots with acreages displayed to the thousand of an acre.
If a surveyor told me he could collect all the evidence relating to the boundary of my property but he was unable to express a professional opinion as to the actual boundary lines of my property by applying the appropriate legal principals, I simply would refuse to hire him. I'm not interested in his ability to measure or his ability to draft those measurements. Those may well be very good technical skills and perhaps there are people who want to pay for those skills, but I'm looking for a professional who has the ability to evaluate evidence and make a professional decision as to my actual boundary lines. I could collect the evidence myself and take it to court to have a judge evaluate it. Has anyone ever had a client who wanted to only see the relationship of his "title lines" to the conditions on the ground?
Has anyone ever had a client who wanted to only see the relationship of his “title lines” to the conditions on the ground?
Yep, every single one of them.
If all they cared about was what was being occupied then they certainly didn't need me out there.
The term title line causes more confusion than it's worth. It has led many a surveyor to stop short of marking the property line. Everything I've read and heard re title is that title is a bundle of rights. One of those rights is possessing, occupying, call it what you will. Any survey that marks the extents of title rights somewhere other than where it is does so at the risk of harming title. It is a false premise to think that protecting title demands marking the four corners of the deed where there are conditions indicating possessor rights are or could be in another location. The opposite is true. Even the BLM manual says when the surveyor encounters existing property lines that are assumed to be correct it is their responsibility to evaluate conditions and determine a location. It also states no rigid rules can be written to control such a condition. I believe this is what troubles surveyors most. It requires professional quasi-judicial judgement. Our supreme court has stated time after time that it is the law where two adjoining property owners abide at peace in a line definitely
marked in some manner, it then becomes the true
boundary although a survey may show otherwise, and neither party
intended to claim more than called for by their respective deeds. In other words, it is a possessor right included in title. The surveyor had nothing to do with this before they arrived and can do nothing to change it. Justice Cooley said that introducing another location by the visitation of the surveyor as a public calamity.
Well said Norm, so many times a surveyor can clean up issues with descriptions and boundaries by completing a comprehensive survey. It's my opinion after all these years that one of my main, if not the main task, is to keep my client out of court.
It is a false premise to think that protecting title demands marking the four corners of the deed where there are conditions indicating possessor rights are or could be in another location. The opposite is true.
The surveyors in my neck of the woods seem to do a pretty good job of showing both occupation and record (deed) data on their surveys, but maybe elsewhere in the country you've got guys running around staking out deeds only or accepting every fence line they come across.
I think I would much rather do the former and then give my client some options to resolve any discrepancies than to exercise some vague form of quasi-judicial power and hope I don't get sued because of it.
