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.
give my client some options to resolve any discrepancies
Absolutely agree with this. Surveyors can add value by not completing a survey by setting monuments anywhere other than on a resolved property line. Where surveyors seem to disagree is when a resolution is needed. The disagreement is often found when the math in a deed doesn't agree with evidence of a legally established property line that has been present for as long as memory serves. If it is there is no conflict because it is your opinion the field evidence indicates the presence of the original line in a legal sense finish the survey. If you believe it does not a resolution is the best option before the survey can be completed. Again, there are no rigid set of rules that control this. A surveyor has the risk of being sued or ending up in court regardless. My experience is more surveyors end up in court for one reason or another when they depict a line in opposition to evidence existing nearby. Risk can be greatly reduced when the final survey and the coterminous owners are willing to accept the outcome.
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?
If you perform an ALTA, then you certify that you have.
Excerpts from the 2021 minimum standard detail are shown below (bold font added by me).
D. Boundary - The boundary lines and corners of any property or interest in real property being
surveyed (hereafter, the “surveyed property” or “property to be surveyed”) as part of an ALTA/
NSPS Land Title Survey must be established and/or retraced in accordance with appropriate
boundary law principles governed by the set of facts and evidence found in the course of
performing the research and fieldwork.
<i class="">ii. Any boundary lines and corners established or retraced may have uncertainties in location
resulting from (1) the availability, condition, history and integrity of reference or controlling
monuments, (2) ambiguities in the record descriptions or plats of the surveyed property or its
adjoiners, (3) occupation or possession lines as they may differ from the written title lines, or
(4) Relative Positional Precision.
iii. The first three of these sources of uncertainty must be weighed as part of the evidence in the
determination of where, in the surveyor’s opinion, the boundary lines and corners of the
surveyed property should be located (see Section 3.D. above).
I'm of the opinion that ALTA surveys are often a pale shadow of more comprehensive retracements. For a number of reasons, but mostly because they are certified to a particular entity or possibly a few entities. This often creates situations where the survey is hidden from public inspection, since it's not of record.
A good example of this is a Record of Survey I did last year. I was given an ALTA survey showing a number of issues around a 49 Acre tract. The owner wanted to sell it and had a buyer, but the ALTA survey was preventing the Title company from issuing coverage.
They wanted me to do an ALTA using the record deed and I refused. I told them I would do a boundary survey, file a Record of Survey, write a fresh Metes and Bounds description tied to the ROS and then my client could sell using it. That worked, I eliminated the big overlap shown on the ALTA, showed why it wasn't really an overlap, cleaned up other lines, set monuments and we got the parcel sold with title insurance, no ALTA survey involved except the (secret) plat no one but a few people ever saw (which was a very good thing).
ALTAs aren't intended to fix all of the problems on a parcel though so I don't think it's reasonable to compare the two.
Exactly, ALTA surveys are designed to transfer liability from title companies to surveyors.
But, it's not reasonable to compare two different types of land surveys?
Of course it's reasonable to compare them, why wouldn't it be?
ALTA surveys are designed to transfer liability from title companies to surveyors.
I can't argue with that.
Maybe I'm missing something but with that transfer of liability, I attempt to make sure I've done a comprehensive boundary survey. I've never felt restricted from doing a boundary survey because I'm doing an ALTA survey. It must be a regional thing. The New Mexico board issued an advisory opinion saying that an ALTA survey is a boundary survey and if it's a boundary survey that is required to be recorded, then you need to record the ALTA survey also.
Exactly, ALTA surveys are designed to transfer liability from title companies to surveyors.
But, it’s not reasonable to compare two different types of land surveys?
Of course it’s reasonable to compare them, why wouldn’t it be?
It looked like you were criticizing ALTAs because they're not a ROS. It's like saying this hammer sucks because it's not a pliers. Sure they're both tools, but the argument still doesn't make sense.
My problem with them is that they are certified to an entity, they are designed to transfer liability from the title industry to a surveyor, and they often aren't filed for the public to see. Because they are a transfer of liability document, surveyors tend to be overly cautious with them. They tend to be full of possibilities and not solutions.
They aren't prevalent here, I normally will refuse to do them unless it's an existing survey we already did such as a subdivision. Ours are always commercial properties.
When they are filed as a ROS it mostly defeats the certificate. After all a Plat is filed "to the public" and that becomes the certified entity.
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?
I do not have the authority to "decide where lines are" but I do have the authority to offer a professional, expert opinion as to the location of a property line. Ideally, we would discuss, explain, and show where we believe the property line to be. The laws around here do not automatically change property lines due to ownership changes, and I think that causes no small amount of confusion here. Remember, we do not create facts in our retracements, we find them and form conclusions which are in fact expert opinions.
Ask this question in the context of a situation where there is no adverse possession possible. It is rare that we have enough facts to make an expert opinion regarding acquiescence, agreement, or adverse possession. This has not happened to me in over 20 years of surveying boundaries.
Yes, the property line does not always match the math, and I think that is what holds up a lot of surveyors with inflexible or untrained minds. If you cannot come up with an explanation in your narrative as to why the math does not hold, then you will always follow the straight math, monument locations be damned.
To get back to the idea of "facts" we should also consider that any retracement survey we perform is merely an opinion. An expert opinion, to be sure, but just an opinion none-the-less. If we perform a subdivision of land, then our controlling monuments (or paper maps if that is all we created) are not simply opinions. Instead those monuments are a fact that provides evidence of the location of the property line. (The outer boundary is still just an (expert's) opinion.)
I’m of the opinion that ALTA surveys are often a pale shadow of more comprehensive retracements. For a number of reasons, but mostly because they are certified to a particular entity or possibly a few entities. This often creates situations where the survey is hidden from public inspection, since it’s not of record.
I believe that there should be a repository in each state where surveyors are required to send a pdf of any ALTA that they create and sign. Give it a 180 day deadline from certification so that deals can be done without public knowledge, but make the survey public. Maybe redact the parties, but somehow, someway, make the surveys part of the cadaster.