Boundaries from 

Research to Resolution February 7, 2020 

Kentucky Association of Professional Surveyors 

 

Barry Savage PLS 

 

 

 

 

 

“Every line is the perfect length, if you don’t measure it” 

Marty Rubin 

Deeds

The types of deeds most used in land transactions are the general warranty deed, special

warranty deed, bargain and sale deed, quitclaim deed and trust deed.

General Warranty Deed- A deed in which the grantor warrants the title against defects

arising any time, either before or after the grantor became connected with the land.

Special Warranty Deed- A deed in which the grantor warrants the title against defects

arising after he acquired the land but not against defects arising before that time.

Quitclaim Deed- A form of conveyance whereby whatever interest the grantor possesses in

the property described in the deed is conveyed to the grantee without warranty of title.

Trust Deed- It is an instrument which conveys legal title to property to a trustee and states

his authority and the conditions binding upon him in dealing with the property held in trust.

Frequently trust deeds are used to secure lenders against loss. In this respect they are

similar to mortgages.

Parts of a Deed

Introductory statements and recitals – Usually contains the parcel identification, address to

send tax notices to, source of title and the preparer’s name.

Parties to the transaction – Names of the grantor and grantee.

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Granting Clause – the portion of the deed that contains the words of conveyance and the

interest and rights conveyed. It is the most superior clause in the deed and usually contains

the term “grant, bargain, sell and convey”.

Consideration – Compensation having value that is given for something acquired or

promised.

Description of the Property – The sufficiency of a legal description is determined by the

ability of a surveyor to lay it out on the ground.

Habendum Clause – A clause in the deed that specifies the extent of the interest (as life or

fee) to be conveyed. It can explain, qualify lessen of enlarge, but it cannot totally contradict

or be repugnant to the granting clause. This clause is usually identified by the phrase “to

have and to hold”.

Covenants – all conveyances (except quitclaims) contain some type of covenant. The

covenant usually states that the grantor has good title and the right to sell the described

property.

Types of Legal Descriptions:

Metes and Bounds: Describing the boundaries of a tracts of land by giving the bearing and

length of each successive line. Much of the land in the eastern “colonial” states has been

surveyed and described by this method. This method is also used in the surveys of the public

lands to define the boundaries of irregular tracts, such as claims, grants and reservations, which

are nonconformable to the rectangular system of subdivision.

An example of a Metes and Bounds description for the attached survey is as follows:

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“Commencing at a concrete monument marking the northwest corner of the McConnell tract as

described in deed book 1647 page 810 in the Register’s Office of Bradley County (ROBC), said

monument also located in the southerly line of Bowman Avenue (30’ right-of-way); thence along

the line of Bowman Avenue S61°40’00”E, 50.00 feet to a nail and the Point of Beginning

Thence from the point of beginning and long the southerly line of Bowman Avenue S61°40’00”E,

52.50 feet to an iron rod marking the northwest corner of the Mayfield tract as recorded in deed

book 1015 page 790 in the ROBC;

Thence along the westerly line of the Mayfield tract S26°15’00”W, 158.32 feet to an iron rod at

the southwest corner of Mayfield and the north line of an unopened alley;

Thence S27°53’22”W, 7.80 feet to a point in the center of an unopened alley; said point also

being in the line of a wooden fence;

Thence along the fence line and the center of the unopened alley N62°06’38”W, 47.99 feet to a

point in the center of said alley;

Thence N27°53’22”E, 7.25 feet to a concrete monument marking the southeast corner of the

aforementioned McConnell tract;

Thence along the east line of the McConnell tract N24°38’23”E, 159.47 feet to the Point of

Beginning. The north basis for the herein described land is astronomic as determined by field

survey dated 12/05/2011 by Barry Savage Tennessee PLS 1618”

Points to Remember:

1. The description contains much more than just the measurements, it also contains

calls for adjoining parcels (title identity) and boundary markers.

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2. When a surveyor interprets a metes and bounds description they should use the

measurement data as directive only and as locative as a last resort.

3. A proper metes and bounds description should always contain a statement explaining

the bearing basis (north basis)

Bounds: A type of description that calls for an adjoiner of adjoining parcel (record monument)

on each side of the parcel described. It is a referral description.

An example of a bounds description:

“Bounded on the north side by the Tellico River, bounded on the east by the west line of

Highway 101; bounded on the south by Lot 15 of Magnolia Lea Subdivision as recorded in plat

book 12 page 133 in the Register’s Office of Polk County Tennessee (ROPC) and on the west

by lands of Orr as described in deed book 34 page 445, (ROPC).”

Points to Remember:

1. This kind of description can be expensive to survey because it often requires the

surveyor to survey an adjoining tract.

2. This type of description is best used to describe a senior not junior tract. Juniors

Should refer to seniors not seniors to juniors.

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BOUNDS:

A type of description that calls for an adjoiner of adjoining parcel (record monument) on each side of the parcel described. It is a referral description

ORR34/445

TELLICO RIVER

LOT 15MAGNOLIA LEA

HW

Y. 1

01

SUBJECT TRACT

Aliquot Parts: Describing land by section, quarter section and quarter-quarter section.

The Land Ordinance of 1785 provided for the sale of all lands of the United States in the

western territories. Land was to be divided into sections one mile square. The sections were

further divided into quarter sections. Land was then sold by referring to the portion of the section

being sold. This form of description is concise, unambiguous, and there is no duplication

elsewhere because each description depends on a unique principal meridian.

Here is an example of an Aliquot description:

“Being in Township 3 South Range 7 West of the Huntsville Principal Meridian and being the

northeast quarter of the northwest quarter of the northwest quarter of section 27.”

Points to Remember:

1. This type of description is dependent on a correct breakdown of the section.

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2. Complicated descriptions are best analyzed by reading them backwards.

ALIQUOT PARTS:

Describing land by section, quarter section and quarter-quarter section.

NE ¼

SE ¼SW ¼

NW ¼

Lot and Block Descriptions: These types of descriptions are based on a drawing or plat and

reference to that plat usually recorded in the public record.

Here is an example of a Lot and Block description:

Being Lot 7 of Block "D" as shown on the plat of Brown Acres recorded in plat book 17 page 33

in the Registers Office of Polk County

1. This type of description includes all the evidence that is on the face of the plat.

2. Trying to describe land both by lot and block and metes and bounds can and often

does cause conflicts and confusion.

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LOT AND BLOCK DESCRIPTIONS:

These types of descriptions are based on a drawing or plat and reference to that plat usually recorded in the public record.

BROWN ROAD

1 2 3 4 5 6 7

891011121314

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"Of" Descriptions: Land described as part of another larger parcel of land.

Here are some examples of "Of" descriptions:

"The westerly 50 feet of lot 2", The south 3 acres of lot 7", "The east half of lot 10"

Point to Remember:

1. These descriptions are often used when no survey is done and no monuments are set

and can lead to confusion.

2. Disputes often arise when the meaning of the portion described is being determined.

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"OF" DESCRIPTIONS:

Land described as part of another larger parcel of land.

LOT 2

50’

LOT 7

3 ACRES

Strip descriptions: Describing land, usually a road or utility line, by describing the center line of

the strip of land.

Here are some examples:

"A right of way for a road easement over and across a strip of land lying 30 feet on each side of

the following described center line:"

Points to remember:

1. The line is often stationed from the beginning point called 0+00.

2. Care should be taken when the strip ends on a diagonal. When this happens the

verbiage for the side lines should be included to eliminate gores and overlaps.

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STRIP DESCRIPTIONS:

Describing land, usually a road or utility line, by describing the center line of the strip of land.

30’

30’

DESCRIBED LINE

 

 

Writing legal descriptions When writing a legal description the scrivener needs to have some basic competencies in order

to preform their job.

1. A working knowledge of the mathematics of surveying

2. A good understanding of the legal meaning of the words and phrases used in a

description

3. Understand how courts and surveyors deal with conflicts in descriptions

4. Understand the limitations of measurements and the difference in accuracy and

precision

5. Understand local history and customs and prior survey methods.

When preparing a legal description the scrivener needs to be clear, concise and complete. Here

is a portion of a description that could benefit from these simply rules. Some problem spots

have been underlined.

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“ thence leaving the said road right-of-way line and the said property line and with the

said southwest right-of-way line of the location N70°25'59"W, 166.64 feet to a point

diametrically opposite an angle point in the centerline of the location at survey station

93+86.11; thence with the south right-of-way line of the location N79°07'14"W, 38.11

feet to a point on the property line between William Cothran and Frances Diane Henry

Shurley Carr; thence leaving the said south right-of-way line of the location and with the

said property line N38°13'00"E, 48.78 feet to a point, the said point being 6.67 feet right

of the centerline of the location at survey station 93+66.60; thence continuing with the

said property line N42°24'00"W, 94.78 feet, crossing the centerline of the location at

survey station 93+57.7 (11.16 feet), to a point on the north right-of-way line of the

location;”

The use of the term “said” is fine but is a little overused and tedious here. The description here

is of a transmission line easement and using the term “location” as a description of the entire

right-of-way obtained and adds verbiage that really doesn’t mean anything. What exactly does

the word “diametrically” mean here? How do two points located diametrically from one another

relate? Look at the call for the common property line between Cothran, Henry and Carr. Adding

title identity (calls for adjoiners) is always a good thing but the deed that describes that line need

to be included. This gives a future surveyor the advantage of know exactly what line and at what

time the scrivener was referring to. What does the parenthetical distance of 11.16 feet mean? It

can be assumed but that’s not how a good description should be constructed.

The test of the sufficiency of a description has been well recognized by many courts.

"[t]he test is whether a surveyor with the deed before him and with or without the aid of extrinsic

evidence can locate the land and establish the boundaries." Wallace v. McPherson, 187 Tenn.

333, 340, 214 S.W.2d 50 (1947)

In 26A C.J.S. Deeds § 51 (2011) we find the following:

“Generally, any description in a conveyance of the property is sufficient if it identifies the

property, or if it affords the means of identification, as by extrinsic evidence.

Courts are reluctant to declare instruments void for an uncertain description and will look

to attendant facts to make them certain. The sufficiency of a description in a deed is not

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to be measured by any inflexible rule or sets of rules. While it has been held that the

function of a description of the property in conveyances is to identify the land covered by

the conveyance, it has also been stated that the office of a description is not to identify

the land, but to afford a means of identification.

Generally, therefore, any description is sufficient by which the identity of the premises

can be established, or which furnishes the means of identification, of the property

covered by the deed or which it was intended to convey thereby with reasonable

certainty, and without the exercise of arbitrary discretion. A conveyance is also good, if

the description can be made certain within the terms of the instrument. A description

from which a surveyor can locate the land and by means of which the surveyor is able to

establish its boundaries, or by which a party familiar with the locality is enabled to

identify the premises intended to be conveyed with reasonable certainty, is sufficient. A

deed will not be held void for uncertainty of description if by any reasonable construction

it can be made available. A court will declare a deed void for uncertainty of description

only where, after resorting to oral proof or after relying upon other extrinsic or external

proof or evidence, that which was intended by the instrument remains a mere matter of

conjecture, or where the description cannot be made applicable to but one definite tract.

The description of property need not be determined by reference to the deed alone.

Extrinsic facts pointed out in the description may be resorted to in order to ascertain the

land conveyed, and the property may be identified by extrinsic evidence. Although such

extrinsic evidence must be sufficient to establish the identity of the land sought to be

conveyed, it must not add to, enlarge, or in any way change the description contained in

the conveyance, and the writing itself must furnish the hinge or hook on which to hang

the aid thus afforded, without resorting to any secret or undisclosed intention of the

parties thereto.

If part of the description is proved inconsistent on being applied to the premises, it does

not vitiate the deed if a sufficient part of the description remains for purposes of

identification or where the grantor's intent is apparent. However, if the deed contains

inconsistent descriptions either of which is sufficient to identify different parcels of

property, and there is nothing to show the grantor's intention, the deed is void for

uncertainty. Where all the particulars in a description are essential, the description in the

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deed must agree with every particular, or nothing will pass, but where they are not all

essential, and it does not so agree, if it is sufficient to identify the estate granted, the

deed is good.” (See also ABN AMRO Mortgage Group, Inc. v. Southern Security Federal

Credit Union 372 S.W. 3d 121 2011).

The scrivener needs to keep in mind that the document needs to be constructed by the “four

corners rule” and that extrinsic evidence is only allowed to clear up latent ambiguities. Evidence

outside the deed can only be applied to clear up problems and can not supply the description.

The Kentucky courts have said:

“Where the language employed in a deed is uncertain in its meaning, it is proper to

consider the nature of the instrument, the situation of the parties executing it, and the

objects which they had in view. Davis v. Hardin, 80 Ky. 672; Tanner v. Ellis, Ky., 127

S.W. 995. Furthermore, the subsequent acts of the parties, showing the construction

they have put upon the agreement, may be looked to, and are entitled to great weight in

determining what the parties intended. Jacoby v. Nichols, 23 Ky.Law Rep. 205, 62 S.W.

734; District of Columbia v. Gallaher, 124 U.S. 505, 8 S.Ct. 585, 31 L.Ed. 526; Wilson v.

Marsee, 166 Ky. 487, 179 S.W. 410. However, in the instant case we can find no

ambiguity in the deed. The words "that that one-fifth of the mineral" clearly refer to the

coal. As stated in Volume 3 of the American Law of Property, page 384:

"Where the language of a deed is plain and unambiguous, evidence of surrounding

circumstances, although proper in an action to set aside a deed, will not be considered

for the purpose of construction. But as a means of solving ambiguities, the courts will

consider all the attendant circumstances as to situation of parties, relationship, object of

conveyance, person who drew the deed, and all surrounding situations which may throw

light on the meaning which the parties attach to ambiguous or inconsistent portions of

the instrument." Sword et al v. Sword et al 252 S.W.2d 869 (1952)

In the case of Hoheimer v. Hoheimer 30 S.W. 3d 176 (2000) the Kentucky courts further said:

“Extrinsic Evidence

The trial judge was clearly erroneous in admitting extrinsic evidence to vary the terms of

a series of unambiguous deeds of conveyance. An examination of the deeds in question

does not indicate any intent other than to convey a fee simple interest. There is nothing

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in any of the deeds that could be considered ambiguous. Extrinsic evidence cannot be

admitted to vary the terms of a written instrument in the absence of an ambiguous deed.

Sword v. Sword, Ky., 252 S.W.2d 869 (1952). Thus, it was improper for the trial judge to

consider any evidence to vary the clear language of the deeds.

There is no language in the deeds indicating the reservation of a life estate. Clearly,

there is nothing in any of the deeds to suggest any intention other than the conveyance

of a fee simple interest. The intention of parties to a written instrument must be gathered

from the four corners of that instrument. Cf. Riley v. Riley, Ky., 266 S.W.2d 109 (1954).

The interpretation by the trial judge of the intention of the parents/grantors is not

supported by any competent evidence.”

So how best can a description be fashioned that is clear, concise and complete? The first step

is to understand that courts and experienced surveyors will look to measurements as a last

resort when defining boundaries. As a general rule courts will look first to senior rights then

monuments and lastly to measurements. The monuments the court will look at, in descending

orders are natural monuments, artificial monuments and then record monuments (adjoiners).

Calling for adjoiners can eliminate gaps in property and provide for a way to reconcile

inconsistences in measurements.

When writing a description it is best to first describe the property without measurements then

insert measurements only after the qualitative portion is complete.

Public Easements

Public easements for utilities and roads are usually easements in gross and are created by

express grant. Due to the fact most public easements are for roads, sewers, transmission and

utility lines the vast majority of these description are strip descriptions. These descriptions are

often prepared by local agencies and design firms that may or may not have land surveyors on

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In 1912 A.C. Mulford put measurements in perspective in his book “Boundaries and

Landmarks”:

“…when it comes to a question of the stability of property and the peace of the community, it is far more important to have a somewhat faulty measurement of the

spot where the line truly exists than it is to have an extremely accurate measurement of the place where the line does not exist at all.”

DO

Be Clear – Using legal words in a description is an excellent practice but make sure the

description doesn’t sound like the IRS tax code. The description should flow, be concise and

easy to follow.

Check Maps – Review the maps that are used prior to starting the description. If something that

is needed is missing call the surveyor. Often the needed data is a quantity that a surveyor can

easily derive from the map provided.

Know the legal meaning of words – At the very least any words that may have a questionable

meaning should be checked with a dictionary such as Black’s. It is also wise to understand

some basic geometry. Here is an example of words that are often used that are thought to be

synonymous but may not be:

Adjacent vs adjoining - Lying near or close to; contiguous. The difference between

adjacent and adjoining seems to be that the former implies that the two objects are not

widely separated, though they may not actually touch, while adjoining imports that they

are so joined or united to each other that no third object intervenes. People v. Keechler,

194 111. 235. 62 N. E. 525; Ilanifen v. Armitage (C. C.) 117 Fed. &45; McDonald v.

Wilson. 59 Ind. 54; Wormley v. Wright County, 108 Iowa, 232, 78 N. W. 824; Hennessy

v. Douglas County, 90 Wis. 129, 74 N. W. 9S3; Yard v. Ocean Beach Ass’n, 49 N. J. Eq.

300, 24 Atl. 729; Henderson v. Long, 11 Fed. Cas. 10S4; Yuba County v. Kate Hayes

Min. Co., 141 Cal. 3G0, 74 Pac. 1049; United States v. St. Anthony It. Co.. 192 U. S.

524, 24 Sup. Ct. 333, 48 L. Ed. 54S. But see Miller v. Cabell, 81 Ky. 184; In re Sadler,

142 Pa. 511, 21 Atl. 978.

Know what controls – The ultimate goal of a description is to express the intent of the grantor

and to a lesser extent the grantee. Measurements are just one form of evidence that can

express this and often not the best. When a conflict arises measurements are most often used

as a last resort to determine intent. This will be covered further later on.

Note the bearing basis – There are several ways to define north. The method used should

always be noted in a description to make it complete and useful for future surveyors.

Include deed references for adjoiners – This allows for future boundary research to be done

quickly and ties the description to a specific time period. Surveys are done in four dimensions-

X,Y,Z, and time.

Tie to monuments of record – Tying a description to a “point” or an object not of record will only

lead to future disputes.

Include title identity – This goes hand in hand with including deed references. Calls for adjoiners

are calls to record monuments.

Write the qualitative portion first – This is perhaps the most important. The property should be

described first without measurements. Only after the property is described as a unique parcel in

qualitative terms should measurements be added. Experienced scriveners know this and can do

this all in one step.

Proof the description – Always have someone read the description to make sure the correct

intent has been communicated.

Check tangency of curves – A tangent curve can be described using only two elements. A non-

tangent curve requires at least three curve elements. Including a chord bearing and distance is

good practice it the scrivener is unsure of the tangency of curves.

Don’t

Mix figures and lot numbers – Be careful how numbers are grouped. Bearings, distances and lot

numbers can be confusing if they are listed in a confusing or inconsistent manner.

Use excess words- As in any good writing less is more. Proof read the description and cut out

unnecessary words.

Use multiple incompatible ties – If more than one tie to external monuments is used make sure

they do not conflict.

Use reference to quasi-public records – If a reference to a document is used it should be

available in the public record.

Create conflicting conditions- This is an extension of using multiple incompatible ties. A good

example is don’t describe a tract by reference to a lot number on a recorded plat then provide a

metes and bounds description also.

Rewrite a functioning description – Every time a tract is surveyed the measurements will differ

somewhat. This is not a valid reason to rewrite the description. Measurement exist in a deed to

aid in finding the evidence on the ground. If the physical evidence doesn’t change don’t rewrite

the description except in the case of a gross discrepancy between the found and written

evidence. A new description can also be prepared to correct an error in the record or to clear up

ambiguities in poorly written or vague documents.

Use the word “either” in a strip description- When describing a strip around a center line it is

correct to say “A strip of land lying 25’ each side of the herein described center line”. Another

good way is to describe the line as located “symmetrically” about the center line. Another

common mistake is to describe a line as “parallel to” another line, it is “parallel with” not “to”.

Use the word “due”- Due north is often used but what is “due north”? Is it magnetic, astronomic,

grid? The term as various meanings.

Use “front” or “rear” – This is relative to the observer’s point of view. Descriptions should be

written with the thought in mind someone fifty years from now will be reading it and terms that

depend on the viewpoint of the observer should be avoided.

When writing a description it is best to first describe the property without measurements then

insert measurements only after the qualitative portion is complete.

 

 

Parol evidence is often overlooked and even misapplied. It cannot change the intent of a deed, just clarify ambiguities. This type of evidence is often missed as we will see in the case of U.S. V. Citko. Parol evidence is applied to the description but cannot supply the description. When reading a description intent is king.

 

The land being surveyed exists on the ground, the description is just evidence. It points to items and evidence the surveyor must dig for to make a proper retracement.

 

 

 

Justice Cooley gave this lecture at a meetng of engineers and surveyors in Michigan about twenty years after the GLO had finished their work in the area. Notice he points out that formal education alone doesn’t make someone a surveyor. Education may teach someone “how” to measure but not “what” to measure. Just knowing how to measure doesn’t make someone a surveyor, especially in today’s high tech world. Only experience can teach an aspiring surveyor what to measure. Note also he actually seems to scold the gathering of surveyors for not knowing what their true responsibilities are in relation to retracements and evidence.

 

 

In 1912 A.C. Mulford wrote “Boundaries and Landmarks, A Practical Manual”. This classic text is so important it has been used at many firms as a primer for young surveyors, including my own business. Here he points out what many surveyors fail to grasp, measuring the wrong line

with great precision is of no use whatsoever. Once again knowing how to measure but not what to measure is the root cause of most faulty surveys. Surveying the wrong lot to a precision of say 1’:500,000’ may be impressive measuring but says little for ones ability to gather and analyze evidence.

 

 

Plato was no surveyor but this is excellent advice. A true professional understands the subletities of their profession. A true practitioner of any profession understands the relationships between the quantative and qualitiative aspects of their vocation and how it relates to the rest of society. This is one difference between a professional and a technician.

 

Henry David Thoreau worked as a surveyor for a significant portion of his life. He was better known for his surveying than his writings during his lifetime. He understood what Plato taught, that simply placing measurements on the ground was not the true calling of a surveyor. A

surveyor is at his or her core an analyst. He points out why society needs us and needs us to do our job. Owners want what gives them the most land, we as surveyors understand what the law requires.

 

 

Boundaries exist outside measurements. Measurements in a deed are there primarily to aid in the search for evidence on the ground. Measurements are primarily directive in nature and only become locative as a last resort. A good friend once said “If I have to resort to the measurments in a deed to replace a boundary I feel as if I have failed as a surveyor”.

 

We are to be experts in measurement. This means knowing what measurements are and what their limitations are when applied to the boundary being retraced. Please don’t think I believe in sloppy measurement technique, I don’t. Nothing is more aggravating that sloppy work or a surveyor that can’t function in the field without a laptop or data collector. Keep in mind also that

we survey in four dimensions, the fourth being time. This is a theme that we will study later. To be a surveyor is to be an analyst of both quantative and qualitative data. To be just an “expert measurer” is to just be be a partial surveyor.

 

Notice numbers one through three. This is where the professional surveyor must apply his knowledge. Remember what Plato said, good decisions are based on knowledge not numbers.

 

The first three are evidence driven. It would appear the new ALTA standards are saying a surveyor’s knowledge of evidence and its evaluation are 75% of the battle when retracing boundaries.

 

Here on the final slide concerning the ALTA standards look at the statement that I have made bold, this is exactly what Mulford said over one hundred years ago. This is what Cooley, Plato and Thoreau also eluded to.

 

Here is a statement from a recent article in P.O.B.. Measurements are just one type of evidence and as we will see the courts consider them the least reliable

 

Here are some comments the public made after a recent highly publisized allged survey error. Notice the “fence builder” is seen as an expert measurer by the public. With today’s technology soon anyone can be an expert measurer. If that’s all we can offer the public we will soon be out of business. Do you think the writer would consider the surveyors primitive if they showed up with a knotted rope and Boy Scout compass? Notice the second writer asks about why a surveyor would look for landmarks like trees. Yet another reason the public needs our skills.

 

The second writer thinks a surveyor needs no evidence whatsoever. Perhaps the profession has fostered this attitude. This is why society needs us to be surveyors and not just measurers. We should be much more than just measurers, we should be experts at evidence analysis.

 

 

 

 

885 F.Supp. 727 (1995)

NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff,

v. Irvin A. SEWER, Cedric Lewis, Lucinda Anthony, Earle Sewer, Violet

Sewer, Jasmine Sewer, Lorel Sewer, Judith Callwood, Leon Callwood, Lorne Callwood, and Persons Unknown Who Have Attempted to

Obstruct Construction Work on Plaintiff's Land, Defendants.

Civ. No. 91-315.

District Court, Virgin Islands, Division of St. Thomas and St. John.

March 27, 1995.

I. GENERAL SURVEYING PRACTICES

A. Background Research

The court will first set forth basic principles of surveying based on its review of relevant treatises and case law as well as the expert testimony offered at trial by the parties.[21] A surveyor should strive first to locate and examine all historical records, deeds, prior surveys, maps and drawings in preparation for conducting an original survey. See, generally, CURTIS BROWN ET AL., BOUNDARY CONTROL AND LEGAL PRINCIPLES 371-74 (3rd ed. 1986) [hereinafter "BOUNDARY CONTROL"]; WALTER G. ROBILLARD & LANE J. BOUMAN, CLARK ON SURVEYING AND BOUNDARIES § 4 (5th ed. 1987) (hereinafter CLARK ON SURVEYING) If the surveyor is not performing an original survey then the surveyor must also carefully review the original survey, as well as subsequent surveys or drawings.[22] The purpose of thoroughly researching the history of a parcel of land is to ensure that the surveyor will be able to incorporate the most complete and accurate data into his or her survey. If a surveyor does not complete such research, the surveyor might perform the survey without having the benefit of essential information. For instance, the surveyor might not adequately search for crucial monuments or might misinterpret other field or documentary evidence. BROWN, BOUNDARY CONTROL at 371. In addition, if a surveyor knows that his or her survey will be used in a particular manner, a surveyor should review relevant documents and field surveys of adjacent parcels of land to ensure that his or her particular survey will be reliable and consistent with other existing surveys, so as to discourage litigation. Id. at 374.

B. Field Surveys

After a surveyor has completed a comprehensive review of all available records, deeds and prior surveys, the surveyor begins the field survey. Once in the field, the surveyor has a duty to make a diligent search for all monuments referenced directly or indirectly in the deed or property description that either occur naturally or were put in place by prior surveyors or other persons. Id. at 371. 748*748 Monuments have special significance because monuments indicate the location of property at issue on the ground. The search for monuments must continue until the monuments are located or until there is an explanation for their absence. Id. at 372. If necessary, the surveyor should consult former surveyors, landowners, residents, or other knowledgeable parties to determine monument sites or obtain other information tending to show where a piece of property should be located. Id. Testimony of neighbors and informed residents concerning boundaries is an important source of information for resurveys. As stated in one treatise, "[a] diligent, thorough, and complete search for all evidence is the fundamental essence of land surveying." BROWN, BOUNDARY CONTROL at 372. Through these investigative efforts, the surveyor attempts to reach his or her goal: the "location of land boundaries in accordance with the best available evidence" even though the best evidence may be "mere hearsay or reputation." Id. at 372-3; see Part II(B) infra on determining the order of importance of conflicting descriptive elements in a conveyance.

C. The Centrality of the Original Survey

Since the physical position of monuments referenced in a conveyance reflect the original boundaries of a particular parcel, a subsequent surveyor must attempt to conform his or her survey as closely as possible to the prior surveyor's work. Hence treatises and courts frequently recite an admonishing maxim, namely that a surveyor must follow in the footsteps of the original surveyor. See Rudolph Galiber's Testimony (Tr. 1B, p. 35.), Marvin Berning's Testimony (Tr. 2, p. 112-114). The purpose and result of this principle is to give effect to the intentions of the parties at the time of the survey as well as ensuring the continuity of boundaries over time. Accordingly, "[t]he general rule governing the determination of boundary lines by resurvey is that the intent of the new survey should be to ascertain where the original surveyors placed the boundaries," not to determine new modern boundaries. (boundary dispute involving 135-year-old survey resolved by the court's attention to totality of the evidence including evidence of the parties' intentions).

II. DETERMINING THE INTENT OF PARTIES TO A CONVEYANCE

While a surveyor must aspire to walk in the exact steps of an original surveyor, sometimes a surveyor may be unable to find monuments placed by the original surveyor because the monuments may have been obliterated or lost. When a surveyor is unable to follow the precise "footsteps" of his or her predecessor, then a surveyor must attempt to track the original surveyor's work using whatever recoverable evidence that exists. See, generally, ROBILLARD, CLARK ON SURVEYING § 14 (section on tracking a survey); 11 C.J.S. § 61. Ultimately, a surveyor may only be able to "say with a great degree of certainty, `this is where the surveyor walked.'" See, BROWN, BOUNDARY CONTROL at 294.

A. Original Survey Lines or Lines of Possession?

When a surveyor has difficulty retracing the original surveyor's steps, either because field evidence is missing or conflicting, certain principles guide his or her evaluation of existing field evidence. First, because original lines control other information contained in the conveyance, a surveyor should determine whether or not a line of possession, such as a fence, marks the location of the original survey line. See ROBILLARD, CLARK ON SURVEYING § 16.17. For instance, if the possession line is marked by an old boundary fence erected at approximately the same time as the original surveyor ran the lines, the fence may memorialize the survey line itself. BROWN, BOUNDARY CONTROL at 372. A surveyor's determination that a line of possession corresponds with an original survey line should be made according to the best evidence available which may include testimony of residents and the evaluation of the age of fencing or other natural monuments. Id. In addition, where surveyors disagree on the location of property lines and where a true 749*749 survey line may be uncertain, monuments, such as fences which mark a possession line and which were established soon after the original survey, will control. Id. at 89 and 93.

In the context of a surveyor's inability to locate original monuments or the original survey lines, lines of possession may become significant precisely because they give effect to the conveyer's intentions. This is particularly true when a conveyance contains a written statement describing these intentions. Accordingly, where a deed contains such a recitation of the parties' intentions, a surveyor should compare all of the conflicting descriptive elements, such as lines of possession, monuments, and acreage, and give the most weight to the element or elements which best effectuates the intentions of the parties to the deed. See BROWN, BOUNDARY CONTROL at 82.

List at list three things that stood out as important to the court that are new ideas for you:

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

 

 

 

 

 

 

 

 

 

Evaluating Boundary Evidence

Locating Boundaries: Surveyors are at their very core analysts. Locating a boundary on the

ground is a function of several things including document research, historic research, gathering

field evidence, and careful analysis. When surveyors find themselves in an embarrassing

position in court it is often because they haven’t performed up to the courts expectations. Here

is a portion of a case where the court outlines what it expects from a surveyor. Please read this

portion of the case and make note of the courts expectations:

 

 

 

Read the whole deed and understand it works as a unit. The words between the bearings and distances are most important. Remember the deed is to be read and understood within the confines of time.

 

Rules of construction only come into play in the event of an ambiguity. If the intent is clear within the four corners of the document no construction is necessary. Surveyor would do well to understand Ockham’s Razor-All things being equal the simplest answer is probably correct. (my paraphrase).

 

Surveyor’s need to work hard to make a deed function within itself before applying rules of construction.

 

This is the most important word in a deed. “North 32 degrees East, 112.47 feet TO a 12” hackberry” is the call you are dealing with. The only thing that matters is everything after the word “TO”. The rest of the call is just an aid to find the evidence of the true boundary. Here is an uncomfrontable truth, if the hackberry is gone ask the residents (parol evidence) before just laying out the distance.

 

Record Evidence

Document research is one of the most important steps in any survey. It is at this point

that every surveyor begins “following in the footsteps” of his or her predecessor. When the

research process begins the surveyor should keep in mind the ultimate goal is to replace

boundary corners back in their original location, even if this is in conflict with the measurements.

Surveyors fall into two broad categories when it comes to retracement. The first are the

surveyors that simply reproduce measurements on the current deed. The second category of

surveyor takes into account all the qualitative evidence related to the survey. These include

items such as possession, occupation, original intent, etc. The first type of surveyor can literally

wreak havoc on a community. The second type of surveyor realizes his or her responsibility and

acts accordingly, and it all begins with research.

One of the most overlooked principals when doing document research is the fact

surveyors should go back to the documents that created the parcel. This only makes sense. If

the ultimate goal is to recreate the footsteps of the original surveyor, then one must fully

understand the conditions of the original survey. The first step in this process is to obtain a copy

of the documents that created the parcel along with the adjoiners data. The following is an

outline of the document research process. This includes all documents and plans called for or

discovered that have some bearing on the survey at hand.

1. Obtain cadastral mapping for the area

2. Obtain deed references back to the deed that created the subject tract.

3. Obtain adjoiners deed references back to the creation of the adjoining tract.

4. Obtain deeds and place all of them in chronological order.

5. Plot two deed mosaics, one of the current deeds (including adjoiners) and one of the

deeds as they existed when the tract was created.

6. Place pertinent deed data in a database or spreadsheet.

The simplest way to get organized and begin researching is with a cadastral (tax) map.

This map will show the parcels with roads, above ground utilities, etc. As a general rule most

deeds have a reference to the tax parcel identifier on them. The tax map is also a good place to

record deed references. Simply list the references in a column, on the subject tract, starting with

the current deed and going back to the creating deed.

It is very important to obtain the deed that created the parcel being surveyed. Many

surveyors neglect to do this. This is perhaps the most important step. Once it is determined

when the parcel was created then it’s a good idea to obtain all adjoining deeds for the same

time period. Once again all of this is done with one simple goal in mind-to follow in the footsteps

of the original surveyor. It cannot be expressed strongly enough, a surveyor doesn’t simply

recreate measurements, he or she must recreate history. It is the retracing surveyors’ job to

recreate exactly what the original surveyor did, even the mistakes.

Surveying is often viewed as a three dimensional process but it’s actually four

dimensional. Not only is a surveyor concerned with length, area and volume, but the

retracement surveyor must be concerned with time. It is for this reason that all document

research should be placed in chronological order. Many times problems can quickly be solved

simply by examining dates. Anyone who has been through a deposition realizes how important

dates are to attorneys, they should be equally important to surveyors.

After obtaining the required deed work a deed mosaic should be made. A deed mosaic is simply an

exact plot of the deeds, discrepancies and all. Bearings and distances should be labeled as well as

monuments called for. Adjoiners names, deed references and passing calls should also be listed. If the

surveyors has a way to generate approximate latitudes and longitudes for the corners this is also

helpful. This can be a real time saver when do field reconnaissance on large tracts.

MONUMENTS

There is a simple principle in surveying, he who finds the most pins, wins. The value of a

found, undisturbed, called-for monument can’t be overstated. Found original monuments are

without error, regardless of measurement evidence. That’s not to say there may not be

unwritten rights that must be dealt with. A surveyor should always be sensitive of occupation

and senior right issues. The majority of monuments found are uncalled for or replacement

markers. Quite often original monuments or their accessories exist they are just missed.

Even is a monument is missing it can still be controlling if it's original location can be

determined.

Scriveners are often lax when it comes to describing corner markers. Too often every

corner called for is an “iron pin” with no further description. Is the corner a pipe or rebar? What

diameter is it? Is it capped? What is its proximity to record information? There is a bad habit

among some deed writers to call for an iron pin at every corner, even if one was never set. Even

worse is the policy of calling every corner a “point”. This can often be an indicator that a survey

was never done.

Corners fall into three categories, existent, obliterated and lost. An existent corner is one whose

position can be identified either by finding the original marker or by its’ accessories. An obliterated

corner has no remaining trace of any monumentation or its accessories but the location can be

recovered. The location can be reestablished using parol evidence, acceptable record evidence, by a

replacement monument shown to be in the original location or by improvements put in place at a known

relation to the original marker. A lost corner is one whose position cannot be determined by the original

monuments or its accessories.

This is important. These are the two questions a court wants answered. The “what” only changes by deed (except in the case of adverse possession). The “where” can be determined by a surveyor or through a boundary establishment principle like acquiescence, agreement or estoppel. More on this later.

Plastic newspaper bags and bird droppings have both been evidence I have used to resolve boundary disputes. Evidence of boundaries lie in much more than numbers. The surveyor should know much more than just how to measure.

 

Evidence is not proof, it leads to proof. Evidence is useless until it is analysised and put into context, a surveyors job.

 

Remember what you, as a surveyor, do today will have to be retraced by someone 100 years from now. Leave the evidence you would want to see.

 

 

 

 

 

Measurements

Courts view surveyors as experts in measurement. A surveyor should know not only the

capabilities but also the limitations of measurements. Measurements are used primarily for

relative comparison. They are also used to aid surveyors in the search for monuments. It should

always be kept in mind that a retracement surveyor doesn’t establish boundaries with

measurements; instead the surveyor locates the boundary then measures it.

Nothing said here is meant as a justification for substandard measurements. There is no

excuse for poor measurement technique. On the other hand today’s measurement technologies

have blinded many surveyors to their true function.

In the May 1, 2006 issue of Time Magazine an article on what scares doctors the most

about healthcare pointed out what a preoccupation with technology can lead to. One thing that

concerned many doctors was a preoccupation with technology. Many physicians felt as if the

profession was too quick to order an expensive, high-tech test instead of simply spending more

time talking to the patient to determine the true nature of the complaint. The same could be said

of the survey profession at times.

During a recent state convention a meeting was held to discuss the survey regulations of

the host state. One surveyor stood up and asked if the state could create a special certification

for surveyors who do only GPS surveys. GPS, like any other new measurement technology is

just a tool. The finest GPS unit created can never determine a boundary. In the aforementioned

Time Magazine article it was pointed out that “it is easier to gather gigabytes of information than

to acquire the judgment to apply it wisely.”

it was flawed in its methodology. He therefore set out to locate the center anew, using the legally prescribed methodology and modern survey techniques and disregarding any evidence of the boundaries as reflected in the deeds, fence lines, county road location, and lines of occupation.”

New measurement technology is a tool to aid surveyors in making the same decisions that have

been made for centuries.

When modern measurements are compared to original measurements, the analysis

should be in term of the original measurements. A deed that describes a tract of land in rods

and links should be analyzed in rods and links not in feet and tenths of feet. This is a foreign

concept to many modern surveyors.

There is another measurement technique that often causes argument among surveyors.

When retracing a survey originally created with a compass and chain many surveyors believe a

compass and chain should be used to replace missing corners. Then a modern instrument is

used to document the retracement. This methodology is controversial to say the least.

Another problem with measurements as evidence today is the pseudo-state plane

system many surveyors insist on using. These fall into two categories:

1. State plane positions created without using the proper elevation and scale

factors.

2. State plane positions that are modified using some type of datum adjustment

factor to raise all coordinate values to surface level.

Often surveyors begin a survey using valid state plane positions but fail to use a scale

and elevation factor to place field measurements on the grid. This is done most the time to avoid

the perceived tedium of dealing with a grid factor. The final result of this type of survey isn’t a

state plane coordinate and the positions shouldn’t be presented as such.

The second problem is the use of a datum adjustment factor. This is a factor that is

created in order to place grid positions on the ground for an entire project. This too leads to

coordinates that appear to be state plane but aren’t. Both of these methods of dealing with state

plane coordinates should be avoided. The state plane coordinate system should be used as

designed.

"We consistently have held that what boundaries a deed refers to is a question of law, while the

location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the

deed reveal a latent ambiguity, then we determine the intent from contemporaneous

circumstances and from standard rules of construction. A basic rule is that boundaries are

controlled, in descending priority, by monuments, courses, distances, and quantity, unless this

priority produces absurd results. The physical disappearance of a monument does not end its

use in defining a boundary if its former location can be ascertained" Theriault v. Murray,

1991,588 A.2d 720 (1991)

When a surveyor undertakes a boundary surveyor there are only two questions to answer. What

is the boundary, which is a question of law and where is it at, which is a question of fact.

Surveyors often get themselves in trouble answering these two questions. When the “what”

doesn’t match the “where” of vice versa the first inclination is to change one to match the other.

It isn’t the job of a surveyor to establish new lines where none existed when doing a boundary

retracement. The surveyor doesn’t use measurements to establish a boundary; rather his or her

job is to find the boundary then measure it.

The intent of the grantor and to a somewhat lesser extent the grantee is of paramount concern.

If the intent is found within the four corners of the deed then nothing else is required to establish

the property. If however a latent ambiguity is found when trying to apply the deed to the ground,

then extrinsic evidence can be used to help determine intent. Extrinsic evidence can’t be used

to supply the description or change intent but is only applied to the ambiguity to make clear that

which is uncertain. Extrinsic evidence is admissible to show where the land is that fills the

description given in a deed, but it cannot supply material parts of the deed; it is permissible to

apply, but not to supply, description. When ascertaining the intent of the grantor a surveyor

should determine what they meant by what they said, not what try to determine what they meant

to say.

When conflicts in a deed arise it becomes necessary to use the elements in the description that

are most certain and least likely to be in error to determine the intent of the parties. To that end

most jurisdictions use as a general guideline the following list of conflicting elements with the

most certain or reliable being at the top:

A. Right of possession

B. Senior Rights

C. Written intentions of the parties

1. Natural Monuments

2. Artificial Monuments

3. Record Monuments

4. Bearings and Distances

5. Bearing or Distance

6. Area

A valid right of possession will trump everything else. The most commonly discussed of these in

surveying is adverse possession. Surveyors can’t determine if a valid adverse possession claim

has taken place but he or she should be familiar with the basic concept. The discussion of

adverse possession is beyond the scope of this text.

Senior rights take place within the context of a sequential conveyance. From a practical

standpoint a sequential conveyance occurs outside the context of a subdivision. In a subdivision

several lots are created at the same time. A sequential conveyance occurs when lots are

created over time. As an example say Reed owns 5.5 acres and he sales off 2 acres to Smith in

1950 then 2 more acres to Jones in 1952 and finally 1.5 acres to Harris in 1957. Smith was first

out of the parent tract and is senior to both Jones and Harris. Jones is junior to Smith but senior

to Harris and Harris is junior to all. Determining senior rights is a function of proper research.

This is why simply pulling the current deeds rarely gives a surveyor all the information he or she

will require to do a proper survey.

SENIOR RIGHTS

ORIGINAL OWNER1947

ACREATED 1950

BCREATED 1952

CCREATED 1955

100’120’ 150’

365’ BASED ON A FIELD SURVEY

Senior rights are based upon the idea a grantor can’t sell the same tract of land to two different

individuals at the same time. As a general rule in the case of overlaps the disputed land will go

to the senior owner. In the case of small gaps the area in question will usually go to the junior

tract. This, of course, is dependent on how the deeds are written.

The most certain evidence is a natural monument, such as a call for a creek or the top of a bluff.

This type of monument is the least likely to change over time and be disturbed. The second

most certain is an artificial monument placed by the parties or a surveyor at the time of the

conveyance. The next would be a record monument, which is a call for an adjoiner’s line. Then

the surveyor would look and the measurements on the lines, trying to make both the bearings

and distances work then if necessary either bearings or distances. Finally, the least reliable form

of information to use is area. This list isn’t set in stone and has as its ultimate goal the

determination of the intent of the parties. If the ultimate intent lies in the area then this could

outweigh an artificial monument. It is also interesting to note that this list starts at the top with

the least amount of mathematical manipulations and ends at the bottom with the item that

requires the most manipulation.

 

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THE JUDICIAL FUNCTION OF SURVEYORSBY THOMAS M. COOLEY

CHIEF JUSTICE, SUPREME COURT OF MICHIGAN, 1864-1885

“When a man has had a training in one of the exact sciences, where every problem within

its purview is supposed to be susceptible of accurate solution, he is likely to be not a little

impatient when he is told that, under some circumstances, he must recognize inaccuracies, and

govern his action by facts which lead him away from the results which theoretically he ought to

reach. Observation warrants us in saying that this remark may frequently be made of surveyors.”

THE JUDICIAL FUNCTION OF SURVEYORSBY THOMAS M. COOLEY

CHIEF JUSTICE, SUPREME COURT OF MICHIGAN, 1864-1885

“When the witness trees are gone, so that there is no longer record evidence of the

monuments, it is remarkable how many there are who mistake altogether the duty that now devolves upon the surveyor. It is by no means

uncommon that we find men, whose theoretical education is thought to make them experts, who think that when the monuments are gone the only thing to be done is to place new monuments where the old ones should have been, and would have been if placed

correctly. This is a serious mistake. The problem is now the same that it was before: to ascertain by the best lights of which the

case admits, where the original lines were.”

“Whenever I have to replace a corner using only measurements, I have failed as a surveyor”

Bart Crattie PLS

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THE JUDICIAL FUNCTION OF SURVEYORSBY THOMAS M. COOLEY

CHIEF JUSTICE, SUPREME COURT OF MICHIGAN, 1864-1885

.

“Unfortunately, it is known that surveyors sometimes, in supposed obedience to the State statute,

disregard all evidences of occupation and claim of title and plunge whole neighborhoods into

quarrels and litigation by assuming to "establish" corners at points with which the previous

occupation cannot harmonize”

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a

real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a

superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who

does this. Who can be more nearly a fiend than he who habitually overhauls

the register in search of defects in titles, whereon to stir up strife,and put money in his pocket? A moral tone ought to be infused into the

profession which should drive such men out of it.”

ABRAHAM LINCOLN

“…when it comes to a question of the stability of property and the peace of the community, it is far

more important to have a somewhat faulty measurement of the spot where the line truly exists

than it is to have an extremely accurate measurement of the place where the line does not

exist at all.”

BOUNDARIES AND LANDMARKSBY A.C. MULFORD

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PIN CUSHION CORNER

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“A good decision is based on knowledge and not on numbers.”

PLATO

It is not the function of a surveyor to replace boundaries using measurement information from the deed, rather it is a

surveyors’ responsibility to find the boundary then measure it.

A surveyor is a analyst specializing in both measurement and applied history

“esse quam videri”

The farther backward you can look, the farther forward you are likely to see.

Winston Churchill

01/23/2020

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“When retracing a boundary a surveyor

isn’t putting measurements on the

ground, they are putting history on the

ground.”

TITLE SEARCH VS. DEED SEARCH

The title search is performed to determine what the parcel is, who owns

it and what encumbers it; while the deed search is performed to find out

where the parcel is, what its boundaries are, and how large it is.

Wilson, Interpreting Land Records

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TITLE SEARCH

Usually subject to the following….

Items outside the period of search

Items not on the public record

Items that would be disclosed by an

accurate survey

ITEMS OUTSIDE THE PERIOD OF SEARCH

Quite often older records have a more complete description of the property. Many modern scriveners leave out qualitative calls.

Easements and other rights are often dropped from descriptions or created in the interim.

ITEMS NOT OF RECORD

In many states there is no provision that allows for recording all private surveys.

The usually practice for older surveys was to do the field work, comps and drawing in the field and give the information to the land owner.

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PUBLIC RECORDS OTHER THAN THE COURTHOUSE

State, County and Town lines

Highway Plans

Burial Plots

Federal Records

PUBLIC RECORDS OTHER THAN THE COURTHOUSE

In boundary dispute, copy of profile of street sewer showing boundary line and fence, dated 10/1892 and produced by city engineer’s office, held competent.

Hews v. Troiani, 179 N.E. 622, 278 Mass. 224 (1932)

PUBLIC RECORDS OTHER THAN THE COURTHOUSE

Genealogical Information and Internet Research

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ITEMS DISCLOSED BY AN ACCURATE SURVEY

A search of title documents cannot possible disclose everything an accurate and complete boundary survey can show. This is one reason for the standard exception in title policies.

RESEARCH

Surveyors work in four dimensions not three. This is obvious when research is done and done correctly. Always analyze deeds within the framework of time.

BOUNDARY RESOLUTION (ALTA)

The boundary lines and corners of any property being surveyed as part of an ALTA/ACSM Land Title Survey shall 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 survey.

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MEASUREMENT STANDARDS (ALTA)

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, and (4) Relative Positional Precision.

MEASUREMENT STANDARDS (ALTA)

Of these four sources of uncertainty, only Relative Positional Precision is controllable, although due to the inherent errors in any measurement, it cannot be eliminated. The magnitude of the first three uncertainties can be projected based on evidence; Relative Positional Precision is estimated using statistical means

MEASUREMENT STANDARDS (ALTA)

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. Relative Positional Precision is a measure of how precisely the surveyor is able to monument and report those positions; it is not a substitute for the application of proper boundary law principles. A boundary corner or line may have a small Relative Positional Precision because the survey measurements were precise, yet still be in the wrong position (i.e. inaccurate) if it was established or retraced using faulty or improper application of boundary law principles.

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MEASUREMENTS

“An accurate survey of property is any survey that identifies the true corners and the true boundaries of the property being surveyed. This can be done with or without measurements. This could be accomplished with a Boy Scout compass and a knotted rope. Boundaries and the resolution of the factual question (where is the boundary located) are not dependent on measurements. Measurements are merely evidence, and in many cases, not even the best available evidence.“

Jeff Lucas, March 2011 P.O.B.

PRECISE MISTAKES

PUBLIC VIEWS FOLLOWING A SURVEYORS MISTAKE

“I live on a 1.5 acre lot outside of Tampa. 7 years ago my property was resurveyed to put up a perimeter fence. The fence builder used a GPS to locate property lines. How primitive were these screw ups? This is not new technology!”

“Not sure how subdivisions are platted in Florida, but one would suspect that a platted lot would have survey coordinates such as section, township & range before any lot could legal and sold. If that is the case, why would a surveyor be looking for land mark such as an oak tree. It would seem that triangulation of the subdivisions markers would do the trick, if not, use the section, township and range and calculate by using a GPS to locate the all property markers. Something doesn't add up here, besides the surveyors calculations.”

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PUBLIC VIEWS FOLLOWING A SURVEYORS MISTAKE

“How is this possible with the technology we have available today. Have they never heard of GPS. Gadzooks, these surveyors quite obviously not paying attention. And, no, I am not a surveyor nor am I intimately familiar with GPS technology, but still, it just seems that this shouldn't have happened.”

“Seems strange that in this day and age of GPS and computer math they screwed up this bad. I always thought that a Surveyor did not need a land mark. He is the one that makes the mark wether it's on the side of a mountain or behind a sand dune.”

“This could have been avoided with a simple GPS unit. Latitudes and longitudes don't change. This is definitely the fault of the surveyor.”

PUBLIC VIEWS FOLLOWING A SURVEYORS MISTAKE

“With the current state-of-the-art surveying systems this should never have happened. If the lot owners are not willing to simply trade lots then sue the hell out of the surveyors!”

“In this day and age when there are individual GPS's along with mapping software on every electronic device, and these all work on latitude and longitude, you're supposed to believe this was an acceptable error.”

“Seems there's enough blame to go around and around. First didn't the home owner notice the from the beginning the wrong lot had been surveyed and that should have been a red flag. Second most surveyors use GPS surveying technology, more accurate and less open to error, they can literally identify an ants butt.”

SURVEY METHOD

NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff,

v.Irvin A. SEWER, Cedric Lewis, Lucinda Anthony, Earle Sewer,

Violet Sewer, Jasmine Sewer, Lorel Sewer, Judith Callwood, Leon Callwood, Lorne Callwood, and Persons Unknown Who Have Attempted to Obstruct Construction Work on Plaintiff's Land,

Defendants.

Review the section included in your notes from the case below and note the survey methods the court expected the surveyor to follow. Discussion to follow

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SURVEY STANDARDS

“A surveyor should strive first to locate and examine all historical records, deeds, prior surveys, maps and drawings in preparation for conducting an original survey.”

“If the surveyor is not performing an original survey then the surveyor must also carefully review the original survey, as well as subsequent surveys or drawings. The purpose of thoroughly researching the history of a parcel of land is to ensure that the surveyor will be able to incorporate the most complete and accurate data into his or her survey.”

SURVEY STANDARDS

“In addition, if a surveyor knows that his or her survey will be used in a particular manner, a surveyor should review relevant documents and field surveys of adjacent parcels of land to ensure that his or her particular survey will be reliable and consistent with other existing surveys, so as to discourage litigation. “

“After a surveyor has completed a comprehensive review of all available records, deeds and prior surveys, the surveyor begins the field survey.”

SURVEY STANDARDS

“Monuments have special significance because monuments indicate the location of property at issue on the ground. The search for monuments must continue until the monuments are located or until there is an explanation for their absence.”

“If necessary, the surveyor should consult former surveyors, landowners, residents, or other knowledgeable parties to determine monument sites or obtain other information tending to show where a piece of property should be located.”

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SURVEY STANDARDS

“Testimony of neighbors and informed residents concerning boundaries is an important source of information for resurveys.”

“Through these investigative efforts, the surveyor attempts to reach his or her goal: the "location of land boundaries in accordance with the best available evidence" even though the best evidence may be "mere hearsay or reputation."“

SURVEY STANDARDS

“Since the physical position of monuments referenced in a conveyance reflect the original boundaries of a particular parcel, a subsequent surveyor must attempt to conform his or her survey as closely as possible to the prior surveyor's work. Hence treatises and courts frequently recite an admonishing maxim, namely that a surveyor must follow in the footsteps of the original surveyor.”

Question; Is “prior” and “original” the same thing?

SURVEY STANDARDS

“The purpose and result of this principle is to give effect to the intentions of the parties at the time of the survey as well as ensuring the continuity of boundaries over time. Accordingly, "[t]he general rule governing the determination of boundary lines by resurvey is that the intent of the new survey should be to ascertain where the original surveyors placed the boundaries," not to determine new modern boundaries.”

“Ultimately, a surveyor may only be able to "say with a great degree of certainty, `this is where the surveyor walked.'"

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SURVEY STANDARDS

“A surveyor's determination that a line of possession corresponds with an original survey line should be made according to the best evidence available which may include testimony of residents and the evaluation of the age of fencing or other natural monuments.”

SURVEY STANDARDS

“In the context of a surveyor's inability to locate original monuments or the original survey lines, lines of possession may become significant precisely because they give effect to the conveyer's intentions. This is particularly true when a conveyance contains a written statement describing these intentions. Accordingly, where a deed contains such a recitation of the parties' intentions, a surveyor should compare all of the conflicting descriptive elements, such as lines of possession, monuments, and acreage, and give the most weight to the element or elements which best effectuates the intentions of the parties to the deed.”

SURVEY STANDARDS

“Even though monuments usually control other inferior descriptive elements, occasionally, upon examination of all of the different elements, a surveyor may conclude he or she should follow the inferior elements called for in a conveyance rather than a particular monument. Surveyors should be sensitive to the weight of the evidence when all the relevant elements are considered. For instance, a surveyor may locate property according to the distances and area described in a deed rather than relying on a monument because the distances and area taken together seem to better reflect the original intentions of the parties to the conveyance. Better surveying practice requires a surveyor to evaluate initially all of the available evidence, even if ambiguous, regardless of its character. Then the surveyor should draw his or her conclusions based on the most persuasive information, rather than blindly relying on an abstract ordering scale to evaluate evidence on his or her behalf.”

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DESCRIPTIONS

“The test of adequacy of a description is whether a surveyor, from the description, could locate the property. Wallace v. McPherson, 187 Tenn. 333, 214 S.W.2d 50 (1947) Moreover, parol evidence is admissible to show the location of the land which fills the description in the deed. Ragsdale v. McFall, 145 Tenn. 684, 237 S.W. 66 (1921)

Parol evidence may be admitted to clarify the description but it cannot be used to supply material parts of the deed. It is permissible to apply, but not to supply, description.

DESCRIPTIONS “It is not the office of a description in a deed of conveyance to identify the land intended to be conveyed, but to furnish the means of identification”

Collins V. Dressler (1892) 133 Ind. 290, 46 N.E. 526, Ault v. Clark (1916) 112 N.E. 843

“The descriptive clause in a deed provides the means for identification of the land, but is not intended to identify the land.”

Clark v. CSX Transportation, Inc. (2000) 737 N.E. 2nd 752

DESCRIPTION (FROM “WRITING LEGAL DESCRIPTIONS”, GURDON WATTLES”)MOSTLY

• DO BE CLEAR

• DO CHECK MAPS BEFORE USING THEM

• DO CHECK THE LEGAL MEANING OF WORDS

• DO KNOW WHAT CONTROLS

• DO NOTE BEARING BASIS

• DO INCLUDE DEED REFERENCES

• DO TIE TO A MONUMENT OF RECORD

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DESCRIPTION (FROM “WRITING LEGAL DESCRIPTIONS”, GURDON WATTLES”)MOSTLY

• DO INCLUDE TITLE IDENTITY

• DO WRITE QUALITATIVE PORTION FIRST

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DESCRIPTION (FROM “WRITING LEGAL DESCRIPTIONS”, GURDON WATTLES”)MOSTLY

• DO INCLUDE TITLE IDENTITY

• DO WRITE QUALITATIVE PORTION FIRST

• DO HAVE SOMEONE PROOF THE DESCRIPTION

• DO CHECK TANGENCY OF CURVES

DESCRIPTION (FROM “WRITING LEGAL DESCRIPTIONS”, GURDON WATTLES”)MOSTLY

• DON’T MIX DISTANCE FIGURES AND LOT NUMBERS

• DON’T USE EXCESS WORDS

• DON’T USE MULTIPLE INCOMPATIBLE TIES

• DON’T USE REFERENCES TO QUASI-PUBLIC INFORMATION

• DON’T CREATE CONFLICTING CONDITIONS

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DESCRIPTION (FROM “WRITING LEGAL DESCRIPTIONS”, GURDON WATTLES”)MOSTLY

• DON’T REWRITE A FUNCTIONING RECORD DESCRIPTION

• DON’T USE THE WORD “EITHER” IN A STRIP DESCRIPTION

• DON’T USE THE WORD “DUE”

• DON’T USE “FRONT” AND “REAR”

FOUR CORNERS RULE

Four Corners Rule - to interpret the meaning and understanding of the provisions contained in a document by considering the overall meaning and intention of that document. In such an interpretation of document, the external factors will not influence the meaning. But the meaning of a sentence or clause is influenced by the document as a whole.

RULES OF CONSTRUCTION

Descriptions are not to identify land but to furnish the means of identification. City of North Mankato v. Carlstrom 2 N.W. 2d 130, 212 Minn. 32 1942

Rules of Construction should not be used in construing a deed if intention of the parties to the deed, especially the grantor, can be ascertained from the document itself. Alabama Medicaid Agency v. Wade 494 So. 2d 654

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RULES OF CONSTRUCTION

A deed must be read as a whole and every part thereof given effect if possible in order to arrive at the true meaning of the parties, and until such rule has been exhausted resort should not be had to arbitrary rules of construction. Burchfield v. Hodges 197 S.W. 2d 815, 29 Tenn. App. 488 (1946)

RULES OF CONSTRUCTION

TO!

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METES AND BOUNDS:

“By metes in strictness may be understood the exact length of each line, and the exact quantity of land in square feet, rods or acres.

….Metes result from bounds; and where the latter are definitely fixed, there can be no question about the former.”

Buck v. Hardy, 6 Me. 162 (1829)

Boundary surveys require answering two questions

Questions of law – What is the boundary

Questions of fact – Where is the boundary

EVIDENCE

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The actual property corner is a fact

The information used to identify and recoverthe corner is evidence

Just about anything can be evidence

Evidence

Ky. 1935. In action between adjoininglot owners involving boundary dispute,evidence that wagon could not pass betweenfence erected by defendants andplaintiff’s house held competent to contradicttestimony that fence was erected atsame place as old fence erected by plaintiff’spredecessor, where there was evidencethat wagon could pass between oldfence and plaintiff’s house.Oliver v. Muncy, 89 S.W.2d 617, 262Ky. 164.

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EVIDENCE

“preponderance of the evidence”

“clear and convincing”

“beyond a reasonable doubt”

Preponderance of the evidence is asmuch about qualityas quantity.

"more probable than

not.“

Miller v. Minister of Pensions[1947] 2 All ER 372

EVIDENCE

“Clear and convincing” evidenceis required in adverse possession claims

The fact must be “highly probable”

EVIDENCE

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“Beyond a reasonable doubt” isreserved for criminalcases

EVIDENCE

Extrinsic Evidence-Evidence not contained in the writings.

Patent Ambiguity-Ambiguity appearing on the face of a conveyance

Latent Ambiguity- Ambiguity not apparent until the instrument is applied to matters outside the instrument

We held in the case of Sells et al. v. Hurley, 301 Ky. 199, 191 S.W.2d 212, that for the purpose of determining the location of lost monuments, the court may consider the testimony of persons who saw them when they were discernible, and may admit proof of acquiescence of the parties and the general reputation and tradition as to where the lost monuments had been located.

PAROL EVIDENCE

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Ky. 1951. In determining the locationof lost monuments, the testimony ofpersons who saw them when they werediscernible and proof of acquiescence ofthe parties and the general reputation andtradition as to where the lost monumentswere located may be considered.Wagers v. Wagers, 238 S.W.2d 125.

Generally, in determining boundaries, natural and permanent monuments are the most satisfactory evidence and control all other means of description, and artificial marks, courses, distances and area follow in the order named, area being the weakest of all means of description. Metropolitan Life Insurance Co. v. Hoskins et al., 273 Ky. 563, 117 S.W.2d 180.

PRIORITY OF CALLS

PRIORITY OF CALLS

The object in all boundary questions is to find, as nearly as may be, certain evidences of what particular land was meant to be included for conveyance. The natural presumption is that the conveyance is made after and with reference to an actual view of the premises by the parties to the instrument. The reason why a monument or adjacent line is ordinarily given preference over courses and distances is that the parties so presumed to have examined the property have, in viewing the premises, taken note of the monument or line. At 334-5, 186 S.W. 121.

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PRIORITY OF DEED ELEMENTS

1.Rights of Possession2.Senior Rights3. Intentions of Parties

A. Natural MonumentsB. Artificial MonumentsC. Record Monuments (In some jurisdictions)D. Bearing and DistancesE. Bearing or DistancesF. Area

PRIORITY OF DEED ELEMENTS

These priority of calls isn’t set in stone. The ultimate goal is to determine the intent of the parties.

The object is to determine what the parties meant by what they said, not what they meant to say.

The list is constructed so that which is least likely to be in error is at the top.

SENIOR RIGHTS

ORIGINAL OWNER1947

ACREATED 1950

BCREATED 1952

CCREATED 1955

100’120’ 150’

365’ BASED ON A FIELD SURVEY

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SENIOR RIGHTSFENCE

LOT TO BE SURVEYED

SURVEYORS A, B, AND CEACH HAVE A

DIFFERENT OPINION ON HOW TO SURVEY

THE LOT SHOWN.

SENIOR RIGHTSFENCE

LOT TO BE SURVEYED

SURVEYOR “A” LAYS OUT THE LOT AS

SHOWN AND PROVIDES THE CLIENT

WITH A DRAWING SHOWING THE FENCE

SENIOR RIGHTSFENCE

LOT TO BE SURVEYED

SURVEYOR “B” DOES THE RESEARCH AND DETERMINES THAT THE FENCE IS THE BOUNDARY OF THE ADJOINING LOT AND

THE ADJOINING LOT IS SENIOR. SURVEYOR

“B” GIVES THE CLIENT A DRAWING SHOWING

THE FENCE AND STAKES THE LOT AS

SHOWN.

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SENIOR RIGHTSFENCE

LOT TO BE SURVEYED

SURVEYOR “C” DOES THE RESEARCH AND DETERMINES THAT THE FENCE IS THE BOUNDARY OF THE ADJOINING LOT AND

THE ADJOINING LOT IS SENIOR. SURVEYOR

“C” GIVES THE CLIENT A DRAWING SHOWING

THE FENCE AND STAKES THE LOT AS

SHOWN.

SENIOR RIGHTSFENCE

LOT TO BE SURVEYED

DEED LINE WHAT IF?

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SENIOR RIGHTSParent tract becomes junior to parcels created and there has to be more than one conveyance from a common grantor

Note: In a simultaneous conveyance (subdivision) where there are no senior rights, surveyors are taught to prorate. this is a method of last resort and is often abused. the first course of action is to find the source of the error and put it there. I never prorate over a foot.

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SENIOR RIGHTS

Calls for adjoiners aren’t always calls for senior rights so be careful and do the

research

Remember we survey in four dimensions, time is important

SENIOR RIGHTS

When preparing a description only senior adjoiners should be called for (in an ideal

world) .The survey should match the senior adjoiners calls. Surveying from senior to junior can be of great help

SENIOR RIGHTS

Overlaps usually belong to the senior owner and really aren’t overlaps

Gaps, depending on how the deed is written, can go the junior owner

Watch for occupancy

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RACE STATEGRANTOR CONVEYS TO “A” THEN CONVEYS THE SAME TO “B”.GRANTEE WHO RECORDS FIRST IS GIVEN PRIORITY OVER THE UNRECORDED CONVEYEES.

NOTICE STATEGRANTOR CONVEYS TO “A” THEN SELLS TO “B” WHILE “A’s” DEED IS YET UNRECORDED. IF “B” TAKES WITHOUT NOTICE THEN THEY ARE HELD TO BE THE OWNER.

RACE NOTICE STATECOMBINATION OF THE TWO. “B” WOULD HAVE TO TAKE WITHOUT NOTICE AND RECORD FIRST.

SENIOR RIGHTS

INTENT

The primary and fundamental principle to which all others relate and must yield is that the intentions of the parties gathered from the whole instrument, taken in connection with the surrounding circumstances must control.

Cates v. Reynolds 228 SW 695 143

INTENT

A call that would defeat the parties intentions is rejected regardless of its comparative dignity.

Miller v. Southland Life Insurance Ins. CO. 68 SW ,2nd 558

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INTENT

Intentions of the parties must be determined from the writings, not parol evidence. extrinsic

evidence can only make clear, not change intent.

EXAMPLE-DISNEY SURVEY

INTENT

Intent is not like trying to interpret a bob dylan song. We decide what was meant by what was said. We don’t try to determine what they meant to say.

AID TO INTERPRET INTENT

1. One who grants a thing is presumed to grant whatever is essential for its use.

2. Between rights otherwise equal the earliest is preferred.

3. Particular expressions qualify those that are general.

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AID TO INTERPRET INTENT4. An interpretation that gives effect is preferred to one that makes void.

5. Words and terms are presumed to have been used in their primary and general meaning.

6. When a deed contains conflict the element that is least likely to be affected by mistake is used.

AID TO INTERPRET INTENT

7. Natural objects and boundaries speak as to the date of the deeds execution or date of survey.

EXAMPLE: CONTOURS

NATURAL MONUMENTS

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NATURAL MONUMENTS

Counts vs. Measures

ARTIFICIAL MONUMENTS

RECORD MONUMENTS

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BEARINGS AND DISTANCES

AREA

FIELD MEASURMENTS

REDUCTION OF FIELD DATA

AREA CALCULATIONS