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.
Professional opinions, based on what we find on the ground, for sure. There is a huge difference in explaining that this is my opinion of where the line is, as opposed to deciding where the line is. Nobody seems to understand the facts that I am driving home. People get hung up on their interpretation of being quasi judicial professionals can only present a case, based on professional opinions, when even a member of the Bar can only present the case expressed to them. They can only present the evidence that you provide them and hope to prevail based on your testimony.
There is a concept that is constantly overlooked. When we are "finders of facts", in most situations, our "facts" are what we have found, recorded and illustrated based on our interpretation of the evidence. The Courts may have a completely different interpretation of the way that the "facts" are applied and how they view prior decisions. There is a fine line between expressing opinions and crossing the line into practicing law when moving lines.
I thought this post would open up some good discussions, and some of it has been good. However, there appears to be some thought that a title line is what is described in a deed legal description or on a survey plat exactly as shown or described. And that any possession line which doesn’t fit mathematically with that is not on the title line. This is where Surveyors gat get themselves in trouble. We all want to make what we find on the ground confirm to our research documents. We struggle if there are discrepancies even though we know that ground evidence will almost always hold up in court over paper evidence. We are not talking about possession rights here, which is quite a different situation. We are not moving lines. The title line and the possession line are in the same location. The courts never ask where the line is “supposed to be”. They only want to know “where is the line?”.
The problem can be very specific to how a description was created. We had a case where an entire quarter section had been owned by the Smithers family for over one hundred years. About 10 years ago the southeast quarter of that quarter section was deeded by a very old parent to an old son. The north half and the southwest quarter of that quarter section was deeded to an old daughter. All on paper, no survey or other attempt at measuring it out. Then we get called last year to mark this out per the deeds. The mathematical solution did not conform to the possession by a great deal. Off by nearly 100 feet at one point. The client and her brother wanted to build new fences wherever the normal solution would place their boundaries. We went with the math solution, not the occupation solution and made both siblings happy. The apparent gain and loss balanced out remarkably well. The fact that at some point in time, maybe 100 years ago, the Smithers ancestor hand fenced an area that was not suited for crop production and used for cattle pasture did not automatically qualify that portion as being the southeast quarter of that quarter section. However, until the land was about to be passed down one more generation, no one had paid any attention to what the deeds said but simply kept farming the tillable ground and pasturing the fenced area. The fencing zigged and zagged and had large trees near the fence or grown around the fence. Following the math solution saved more in fence reconstruction work than the cost of the survey.
Here is an interesting quote from a court case:
Supreme Court of Alabama - 367 So. 2d 944; 1979 Ala.
"Our cases are clear that no agreement or act (e.g., adverse possession) of adjacent landowners can relocate the section lines, or interior subdivision lines established by government survey, for they are certain in legal contemplation." Sims v. Sims, 273 Ala. 103, 134 So.2d 757 (1961); Upton v. Read, 256 Ala. 593, 56 So.2d 644 (1952); Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409 (1942). "Recognition by adjoining owners of a false [government [**4] survey] line as the boundary between them is without effect, unless the party claiming beyond the true line also holds hostile possession up to the false line until the bar of the statute is complete." Oliver v. Oliver. 187 Ala. 340. 343. 65 So. 373. 375 (1914). In the latter instance, the government survey is not changed. Instead, the boundary line between the landowners is changed so that the government survey line is no longer the location of the boundary. Godsey v. Anglin. 261 Ala. 19. 73 So.2d 92 (1954); Alford v. Rodgers. supra. Here it was undisputed that the Guyses' survey correctly located the government survey lines. The trial court's final decree would have the effect of relocating the government lines on the basis of an erroneous agreement among the prior landowners, and that it cannot do."
Seems to indicate that this court entertains the "title line vs property line" scenario in PLSS.
IMO it gets into what controls the "title" line. In the above case it is the gov survey which controls location of the patent (title document). These are the "senior" "title" lines in the PLSS and are typically simultaneous. Of course there are other aspects in PLSS that require application of Senior/Junior including Indian Boundaries, prior land grants, prior surveys, Standard lines vs closing lines, and others. In a M&B state the controlling aspect can get quickly muddied due to the extensive application of Senior/Junior in title and surveys. A thorough title search back to the controlling "grant" can be very extensive and typically can go back to king grants prior to the US being the US. The boundary needs to be "brought forward" by evaluating and applying Senior/Junior to the chain (survey and title) arriving at the current boundary through proper application of Senior/Junior. Senior/Junior is vital to understand in both.
A quote from a supreme court case in 1888 concerning Senior/Junior surveys:
US Supreme Court - Clement v. Packer, 125 U.S. 309
"A junior survey cannot control or enlarge the dimensions of a senior survey. When the location of a survey is or can be ascertained and determined by its own marks upon the ground, its own calls and courses and distances, it cannot be changed or controlled or enlarged or diminished by the marks or lines of an adjoining junior survey, but when, from the disappearance of these original landmarks, caused by time and other agencies, from the senior survey, the location of a particular line, or the identity of a corner, is left in uncertainty or becomes the subject of controversy, then the original and well-established marks found upon a later survey made by the same surveyor about the same time, and adjoining the one in dispute, are regarded as legitimate evidence, not to contest or control, but to elucidate, throw light upon, and thus aid the jury in discovering the exact location of the older survey."
A more current state court case example reinforcing the principle in Clement v. Packer:
2005 Court of Appeals of Texas, Sixth District, decision Dixon v. Dewhurst, 169 S.W. 3d 515
“The ultimate function of these rules is to determine the true and correct location of the land. Although a junior survey cannot be used to create an ambiguity in of change the location of a senior survey, if the original boundaries in a senior survey have disappeared, recitals in a junior survey may be used to determine its location. The purpose of the rule is to make a junior survey conform to the boundaries of an adjoining senior survey and thus avoid a vacancy or conflict. If, because of a lapse of time since the making of a senior survey, the original senior survey bounds have disappeared, recitals in the junior survey are the best evidence of the location of those senior boundaries.”
As surveyors we are tasked with a delicate dance of interpreting the "title" documents and being able to reconcile it with the evidence on the ground (surveys and/or occupation). Controlling aspects are the title documents (courts have repeatedly gone with the 4 corners rule in deed interpretation- in short: if no ambiguity then interpretation cannot go beyond the 4 corners of the title document, intent must be derived from the words within the deed) and original surveys if they exist. Many intervening surveys and transactions also need evaluated and determined if they apply to the current boundary location. Many times it can end up that occupation is the best available evidence of the original survey and/or title line. Unwritten rights can/do happen, but do not necessarily affect the location of the "title line." What the surveyor ultimately determines as the current boundary is a professional opinion and to be 100% honest the land owners can ignore the survey and establish their ownership anywhere they and neighbors determine. If they are in disagreement then the courts get involved determining title, which in turn involves the surveyors for determination of the location of the court determined title line.
In most circumstances the government "holds" the title line (depends on if the property ever left gov ownership or not). Therefore in typical PLSS situations we survey the federal boundaries based on a proper dependent resurvey of the original survey (controls the location of the title document). In the resurvey we will (should) consider collateral evidence (intervening surveys and occupation) to determine if it is the best available evidence of the original survey and therefore should be utilized as control in the resurvey. In M&B states, due to the lack of a framework of original surveys to control title lines, we determine the boundary based on thorough research and application of Senior/Junior to the chain as described above.
I personally have surveyed in both PLSS and M&B states. They both have their nuances, but generally speaking I believe the fundamentals are the same.
Monte,
I would urge caution equating the lines of the PLSS with the term 'title line'. The Court is saying two owners cannot change the (interdependent) lines of the PLSS. Title is never mentioned. The fact the title may cite the PLSS lines is an irrelevant coincidence. What is said is the boundary does move when the fact pattern is met (and not before). This is exactly what I've been saying all along. The fact the Court repeats that the PLSS lines do not move with the boundary reinforces the idea they are addressing the PLSS, not title.
The Clement case is another place where a careful read is required. The subject being addressed is junior surveys interfering with senior. Nowhere does the court address operations of law or boundary establishment doctrines.
We also need to consider what is being done for who. Boundary establishment doctrines rarely impact federal interest land. They can come into play with acquired lands if a fact pattern is met while the property is in private hands. This adds timing elements to the normal fact pattern requirements.
