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This reference on land boundary law, measurements, evaluation of evidence, and boundary traditions and customs covers the legal elements of determining boundary location and the federal and state laws that govern these principles. This fourth edition contains new material on the distinction between GLO creation by statute law and metes and bounds created by common law, examines Riparian boundary questions, and defines new surveying terminology. Includes b&w photos and diagrams, and a glossary. Annotation c. Book News, Inc., Portland, OR (booknews.com)
By Walter G. Robillard Donald A. Wilson Curtis M. Brown
John Wiley & Sons
HOW BOUNDARIES ARE CREATED
To understand the legal fiction of boundaries, the surveyor must be able to make a distinction between the various elements of corners, monuments, boundary lines, and property lines. All of these are different and should be addressed differently by the surveyor who creates them and by the surveyor who must ultimately retrace and redescribe them and then probably will have to defend their location in court. Unfortunately, these principles are sometimes misunderstood by students, practicing boundary surveyors, attorneys, and even the courts.
Neither the student nor the surveyor should confuse the distinction between the creation of boundaries and that of changing boundaries already created and of identifying the location of a boundary that was to be retraced. The changing of boundary lines already created will be discussed later in this book, even though the principles are legal in nature.
The following principles are discussed in this chapter:
PRINCIPLE 1. A landowner may divide a parcel of land in any manner not inconsistent with the law.
PRINCIPLE 2. Once a boundary or boundaries are created, no alterations or modifications are permitted in any manner by either the landowner or any surveyor once property rights have been granted or distributed according to theboundaries created.
PRINCIPLE 3. The original surveyor creates boundaries. It is the retracing surveyor who ascertains or identifies boundaries from the original evidence.
PRINCIPLE 4. Once created and approved, the original boundaries created are legally without error and are the exact dimensions as indicated by the creating surveyor.
PRINCIPLE 5. No surveyor or court has the authority to alter or modify a boundary line once it is created. It can be interpreted only from the evidence of where that boundary is located.
PRINCIPLE 6. A retracing surveyor relates previously created and approved evidence to a current survey, being mindful that the current survey is always subject to collateral attack by other surveyors.
There are several books in print that give academic and/or legal definitions of words that are important to the practicing surveyor. These are the definitions that should be used if one were to testify in court. But in many instances they fail to meet the everyday practitioner's requirements of definitions that are understood. In an effort to introduce a degree of practicality, the definitions given here are those that the practicing surveyor, student, and landowner can appreciate without legal or academic confusion.
Any list of definitions can be short or extensive. The definitions presented here are only those basic ones that are needed to furnish a foundation for future study. Corners, lines, monuments, property lines, and boundary lines may have several definitions. The following are those that the authors use to make distinctions.
A line in surveying and dividing grounds means, prima facie, a mathematical line [invisible] without breadth; yet this theoretic idea of a line may be explained by the facts referred to and connected with the division, to mean a wall, a ditch, a crooked fence, or a hedge, that is, a line having breadth.
Usually a corner is at the end of a boundary line or at a change in direction of a boundary line. Applying that philosophy, we see why an endpoint is also called the terminal point of a line, named after Terminus, a Greek and Roman deity. A corner may also be placed along a line where a third party may tie in or reference a senior line. To define a line there must be two corners, or termini, one at each end of the line. The corners, to be controlling over other descriptive and elements required in descriptions, must be created by the survey and should be called for in a legal document relating to the specific parcel.
Corners can be located or placed on the exterior boundaries of the parent parcel as well as inside the parcel itself. Usually, an interior corner will not control an exterior corner. To be controlling and legal, a corner does not have to be monumented. A corner has no physical dimensions of length, width, or depth. It has only a legal dimension, in that an original corner found legally identifies the point of the survey, regardless of whether or not it is monumented. This applies only if a conflict exists in a description; otherwise, it can control even if it is not called for, but this is predicated on other applications of law.
A monument is a physical manifestation set at or near a corner. To be legal and controlling, a corner does not have to be monumented; it just has to be identified and called for in the survey or document. Yet the law has set certain requirements for corners. As we will see, a call for a distance, more or less without the call for a corner or monument, is legally insufficient. Yet we can have monuments placed either on the corner point or near the corner. Surveyors and landowners have problems when a monument is not placed at the corner point but near the point where the corner is located. One of the critical requirements for a monument is that the monument recovered in a retracement or resurvey not differ appreciably from the monument set at the time of the original survey when the corner was established and a monument was set to identify that specific point.
Monuments may be classified as falling into two areas or categories: natural and artificial. Courts usually make a legal distinction between the two and hold that when there is a conflict or question between a natural monument and an artificial monument, the natural monument will control legally.
Courts have held that streams, rivers, mountains, roads, trees, and the like may constitute natural monuments. Yet if this natural monument is supposed to identify a point that represents a corner, the legal point, how then can a stream that is 20 feet wide and 600 feet long be considered a monument? This distinction cannot be explained. The reader will find that this is but one of many possible conflicts that will be encountered in retracement work by the professional surveyor. Research of early U.S. case law reveals that many of the cases called these points natural boundaries and artificial boundaries.
Artificial monuments are those monuments that usually are placed at corner points by landowners, surveyors, engineers, and others. They may be called by various terms on maps, in descriptions, and in field books. One may find them referred to as iron pins or pipes (IPs); stakes; at times, trees; concrete monuments (CMs); nails; or whatever the surveyor decided to use. Courts have made the distinction that natural monuments control over artificial monuments, because they are more certain of identification and less likely to be disturbed. This is discussed in Section 5.10.
The surveyor must make the distinction between a boundary line and a property line. Boundary lines between parcels are created in several ways, yet until written documents or legal principles attach, property lines are nonexistent. In theory, a boundary line remains fixed forever where it was located initially, but a property line may change by legal principles, including estoppel, agreement, adverse possession, or riparian rights.
When a surveyor establishes a survey line in the field to create a boundary, corners are usually identified. Lines are then marked and monuments set at the corners. By principle, each line must have two corners to be fixed in place, one on each end. Although when placed the monument becomes visible to the surveyor and landowners, the monuments that are set identify the position of the corner. The connecting line remains invisible between the corners. Yet if the creating surveyor blazed trees, or placed posts or stakes along that line, these physical objects become the identification of that once invisible line. Thus the objects marked at the time of the survey become the location and identification of the boundary line created. The recovery of any of the evidence of this survey at a later date becomes the recovery of the original line, and the lines run in the field to create the original boundary controls.
Once a boundary line is created in the field or on paper, common law and statute law permit it to be modified, changed, and altered. When a line is thus changed, altered, or modified, according to law, it becomes a property line. Because surveyors can create boundary lines and because a property line is a result of law, only the courts can certify or "sanctify" property lines or boundaries. Surveyors in the United States have not been given the authority to determine legal property lines. Usually, when two surveyors disagree on the survey location of a line, the parties resort to the legal system to make the final determination. This is usually referred to as "the battle of the surveyors."
Once a boundary line is created and identified, it maintains its legality and position even if the corners on its extremities become lost. This may be difficult to understand, but the law recognizes a boundary line as being a legal entity, and once it is created, as long as evidence of that line exists, the line is controlling.
On the other hand, although a true boundary is controlling, surveyors, in retracing these true boundaries, may consider it necessary and prudent to evaluate property boundaries. In many instances, the true boundary and the property boundary may be one and the same; that is, they are superimposed on each other. The fence line or hedge line between the two adjacent parcels is superimposed on the deed line that was surveyed on the ground. Yet common law and statute law of most states permit people to modify these deed boundaries through legal doctrines, some of which are centuries old. Although they may be referred to by different terms in different states, for the sake of identification we will call them agreement, estoppel, acquiescence, and adverse possession. These doctrines require a landowner to complete some act in order to perfect the change of the boundary. Changing a boundary through a riparian change must be through, or a result of, an act of nature.
2.3 CLASSIFICATION OF BOUNDARIES
When a surveyor or an attorney looks at a boundary or boundaries, he or she usually does not consider the magnitude of that boundary. One may be asked either to create or to retrace either a boundary of an entire parcel, a boundary of a portion of a larger parcel, or the entire boundary of a single small, minute parcel. The boundary may be composed of natural elements, artificial elements, words only, or a combination of the three.
As discussed in Chapter 1, all boundaries may be considered as either macro boundaries or micro boundaries. The distinction is not necessarily the manner in which the boundary was created, but what rights or interests were being separated and identified.
Since macro boundaries usually separate major interests, boundaries between nations, boundaries between political subdivisions of a nation, and major private or governmental and subdivisions may be placed in that category, Micro boundaries include smaller subdivisions within macro boundaries. Using this distinction, a boundary may be a macro as well as a micro boundary.
A township and range within a state may be a micro boundary within the state, but in relation to the respective sections identified within its boundaries, the township is a macro boundary for the respective sections (see Section 3.2).
The law of retracements may apply differently to township lines (macro) boundaries than it does to section lines (micro boundaries.) Then if a subdivision of homes (micro boundaries) is placed within the boundaries of the section (macro boundaries), entirely new rules of retracement apply. When there are conflicts between boundaries, the problem must be approached in an orderly and systematic manner, using logic, analysis, and experience to arrive at a possible and suitable solution.
Having classified boundaries as macro or micro, they may be classified further as to the authority for their creation into two broad categories as follows:
a. Created by federal statutes
b. Created by state statutes
c. Created by private entities
2. Metes and bounds
These categories are discussed in detail in later chapters. It will suffice at this time to recognize that the various methods of creation will give the practicing surveyor the understanding that the methods and laws by which boundaries are created affect the methods of retracement.
2.4 METHODS OF BOUNDARY CREATION
In looking at the fact that a boundary is an invisible legal division line between two interests or estates in land, one must look at both common law and statute law to determine how courts and legislative bodies have determined the various methods by which boundaries can be created. In applying the methods of boundary location, the surveyor can identify three methods by which the surveyor, the court, or a landowner can create a boundary. It should be remembered that one does not have to be a surveyor to create a boundary. Courts can adjudicate and dictate a boundary, two or more contiguous landowners can create mutual boundaries, a single landowner can create a boundary by personal actions, and surveyors can create boundaries by their actions.
For study purposes, boundaries can be determined or created as follows:
1. By action. This is the actual creation of a boundary on the ground by survey, by individuals, or by actions. Corners are created and identified, monuments established, notes made of the survey or actions; possibly, a plat will be prepared and lines marked on the ground. These actions are then incorporated into the resulting descriptions.
2. By words. Exterior and interior boundaries of tracts may be created by words. A deed describing "the south 1/4" or "the north 10 acres" creates boundaries, as does a metes and bounds description having courses (bearings and distances) and corners. A major problem is that a "south 1/4" description has no calls for monumented corners. If the description is a result of a survey, original lines are created and the surveyor is an original surveyor. If it is a result of a words-only description, there is no original surveyor, only a first surveyor who locates the lines described from the words, and as such, this survey is always subject to future collateral attack.
3. By law
a. Statute law.]
Excerpted from Brown's Boundary Control and Legal Principles by Walter G. Robillard Donald A. Wilson Curtis M. Brown Excerpted by permission.
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