BOUNDARY DISPUTE RESOLUTION
BOUNDARY DISPUTE RESOLUTIONBy Jeffery N. LucasProfessional Land SurveyorAttorney at Law2002-2010 All Right ReservedComments of Suggestions: JNLucasPLS@bellsouth.net
BOUNDARY DISPUTE RESOLUTIONBy Jeffery N. LucasProfessional Land SurveyorAttorney at Law 2002‐2011 All Right ReservedSignup ForTHE LUCAS LETTERThe only legal newsletterspecifically for the LandSurveying and N and DISCLAIMERSI Am Not Your Attorney.This seminar is not intended to provide you withlegal advice. Seek legal advice from an attorneywho is familiar with your particular situation andthe facts in your particular case.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES1. LAND SURVEYORS ARE MORE LIKELY TO START ABOUNDARY DISPUTE AS TO RESOLVE ONE.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“This surveyor's mark was likely the spark that ignitedthis dispute. When the marker was placed near theCothams' fence, the Cothams challenged the findingsaying they had always owned at least to the ditch lineand perhaps past the ditch line to the north.”Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES2. PINCUSHIONS ARE THE PHYSICALMANIFESTATION OF OUR COLLECTIVE CONFUSIONOVER BOUNDARIES.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES In a perfect world, the surveyor would bean uninterested third party as he/shesurveys any particular boundary line.Owing as much of a duty to his/her clientas to the client’s neighbor.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In the performance of his professional duties, aregistrant shall make every reasonable effort toprotect the safety, health, property, and welfare ofthe public. If the registrant's professional judgment isoverruled under circumstances in which the safety,health, property, or welfare of the public isendangered, the registrant shall inform his employeror client of the possible consequences.”Maryland Code of Regulations. 9.13.01.02 (2010).
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In the general interest of the public, these standardsare promulgated to set forth the minimumacceptable level of performance to be exercised byall individuals practicing professional land surveyingand property line surveying in Maryland.”Maryland Code of Regulations. 9.13.06.01 (2010).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES3. THE ONLY BOUNDARY LINE THAT MATTERS IS THE“PROPERTY BOUNDARY” BETWEEN THECOTERMINUS LANDOWNERS.The “Ultimate Issue” in anyy boundaryy disputepcase is the “property” boundary between thedisputing parties. No other line really matters.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“The purpose of the surveys in this boundary dispute isto locate accurately the boundary between theplaintiff's and defendants' property. To do this, thesurvey must begin with an accurate description of whatland the parties own .”Andrews v. Barton, 2008 Fla.App. LEXIS 1836 (Fla.App. 2008)
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTESFederal Rules of EvidenceRule 704.“Opinion on Ultimate Issue. (a) Except as provided insubdivision (b), testimony in the form of an opinion orinference otherwise admissible is not objectionablebecause it embraces an ultimate issue to be decided bythe trier of fact.”JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTESMaryland Rules of EvidenceRule 5‐704 Opinion on ultimate issue.“Except as provided in section (b) of this Rule,por inferencetestimonyy in the form of an opinionotherwise admissible is not objectionable merelybecause it embraces an ultimate issue to be decided bythe trier of fact.”JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In all courts, evidence is the purview of the jury (or judge as‘trier of the facts’ if there is no jury); the law is always in thepurview of the court. A Georgia decision permitted thesurveyor to testify as to his opinion on the ultimate issue ofthe case without invading the province of the jury, so long asthe subject matter was an appropriate one for opinionevidence. This is quite unusual. North Carolina still retains themajority approach in that the expert land surveyor cannotgive an opinion as to where a true boundary line is located,for that decision is the ultimate fact in issue to be determinedby the jury from the evidence presented during the trial.”Robillard, Walter G., Lane J. Bouman and Hon. Robert Shelton, Clark on Surveying andBoundaries, Seventh Edition at 49.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Rule 704, provides that opinion testimony "is notobjectionable because it embraces an ultimate issue tobe decided by the trier of fact." This rule abrogates thedoctrine that opinion testimony should be excluded forthe reason that it goes to the ultimate issue whichshould be decided by the trier of fact.”Green Hi‐Win Farm, Inc. v. Neal, S.E.2d 614, 616, 617 (N.C.App. 1986).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES4. THERE ARE ONLY TWO QUESTIONSTO ANSWER TO RESOLVE ABOUNDARY DISPUTE: WHAT IS THE BOUNDARY? WHERE IS THE BOUNDARY?JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“The question of what is a boundary line is a matterof law, but the question of where a boundary line, ora corner, is actually located is a question of fact.”W ll i h v. Emery,WalleighE163 A.2dA 2d 665,665 668 (Pa.Super.Court.(P SC t 1960)
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“The Texas Supreme Court has explained that ‘as towhat are boundaries, is a question of law for thedetermination of the court; as to where theboundaries are upon the ground, is a question of factto be determined from the evidence.’”TH Investments v. Kirby Marine, 218 S.W.3d 173 (Tex.App. 2007).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES How do boundary doctrines such asacquiescence, practical location, boundaryby oral agreement, estoppel and reposepass muster under the Statute of Frauds?JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES What about adverse possession?
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES5. We Would do Well to Remember the DifferenceBetween Accuracy and Precision.A judge sitting on a bench can be 100%accurate on a boundary determination withoutever making one measurement, while a landsurveyor can very precisely measure the wrongproperty and be completely inaccurate on thesame issue.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES Just because a monument does not meetyour precision expectations does notnecessarily mean that it is notrepresentative of the corner locationlocation.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES6. IN THE VAST MAJORITY OF CASES, THE SURVEYORIS DEFACO JUDGE AND JURY OVER THE LOCATION OFTHE BOUNDARY LINE BETWEEN ADJOININGLANDOWNERS.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“I have been led to adopt in my own work the ‘Principle ofCumulative Evidence.’ It seems that, either rightly orwrongly, it is incumbent on the surveyor to collect all theevidence in each case and to carry his work along the linesof the preponderance of probability. In nearly all cases,while some of the data are either ambiguous or evenconflicting, there is usually a large preponderance ofevidence which point more or less clearly to one solution ofthe problem, and my own experience, containing some fewexamples, leads me to believe that this generally indicatedsolution is probably the right one.”Mulford, A.C., “Boundaries and Landmarks,” D.Van Nostrand Co., New York,1912, at Page 42 and 43.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“I have generally found that this line of reasoningappeals pretty strongly to all parties interested and thatthere is general willingness to abide by a decision soreached. The fact that you have been willing to collect alldata possible and hear all side of the case begetsconfidence, and the rest is largely a matter of commonsense.”Mulford, A.C., “Boundaries and Landmarks,” D.Van Nostrand Co., New York,1912, at Page 42 and 43.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“If, however, the evidence for and against re‐locating anold line in a certain place is pretty evenly divided, it ismy belief that a conference of all parties interestedshould be arranged with a view to establish a line byagreement, as a sure and safe way of preserving thepeace and fixing the boundary for years to come.”Mulford, A.C., “Boundaries and Landmarks,” D.Van Nostrand Co., New York,1912, at Page 42 and 43.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In an old settled country, the principal work of the surveyor isto retrace old boundary lines, find old corners, and relocatethem when lost. In performing this duty, he exercises, to acertain extent, judicial functions. He usually takes the place ofboth judge and jury, and acting as arbiter between adjoiningproprietors decides both the law and the facts in regard toproprietors,their boundary lines. He does this not because of any right orauthority he may possess, but because the interested partiesvoluntarily submit their differences to him as an expert in suchmatters, preferring to abide by his decisions rather than go tolaw about it.”Hodgman, F., M.S., C.E., “A Manual of Land Surveying,” The F. Hodgman Co.,Climax, Mich. 1913, at Page 289.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Every surveyor’s authority is derived from his ability, hisreputation, and the respect in which he is held. He hasno judicial authority. Neither client nor adjoiner is boundby his survey, although both may accept it. A surveyorfrequently helps settle boundary disputes by acting as amiddleman between adjoiners. When a Court orders asurvey, the Court decides where the line is to be.”Sipe, Henry F., “Compass Land Surveying,” Henry Sipe, Elkins, West Virginia,1965, at Page 37.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“The surveyor analyzes the evidence, and decides, on thebasis of laws of surveys and court decisions, what weightis to be given to each fact, and how this will guide theresurvey. These decisions are subject to revision as newevidence is discovered. Most disagreements betweensurveyors arise from failure to find all availableevidence.”Sipe, Henry F., “Compass Land Surveying,” Henry Sipe, Elkins, West Virginia,1965, at Page 115.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“The surveyor is supposed to make his survey in such amanner that a court will uphold his judgments andactions. This means he must place the Boundary Linebetween abutting owners in exactly the same placewhether he is paid by owner “A” or owner “B.” In thissense a surveyor is actually a court. A court whichdoesn’t know the law in its own field is an utter futility.”Tillotson, Ira M., “Legal Principles of Property Boundary Location on the Groundin the Public Land Survey States.” Ira Tillotson, Missoula, Montana, 1973, atPage 1.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES– Even Brown recanted from his earlierposition in his later years.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In my early writings, I generally advocated thatsurveyors should locate land boundaries in accordancewith a written deed; all conveyances based uponunwritten rights should be referred to attorneys forresolution. Within recent years, there have been cases,one in particular, wherein surveyors have been heldliable for failure to react to a change in ownershipcreated by prolonged possession .”Brown, Curtis M., “Land Surveyor’s Liability to Unwritten Rights,” 1979.Reprinted in “State Manual, Surveying Society of Georgia,” 2000.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Can a surveyor monument the lines of ownershipobtained by unwritten means? To my knowledgeabsolutely nothing in the law prevents him from doingso. Clearly from my conversations with attorneys, this isnot the unauthorized practice of law. If the surveyorchooses to claim that a possessory right has ripened intoa fee title, he is certainly privileged to do so. The realquestion is What should he do?” [Emphasis in original].Brown, Curtis M., “Land Surveyor’s Liability to Unwritten Rights,” 1979.Reprinted in “State Manual, Surveying Society of Georgia,” 2000.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES– What do the lawyers think we are doing?JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“The surveyor, having made an evaluation of theevidence, forms an opinion as to where he believes thelines would be located if fully adjudicated in a court oflaw. The typical modern day surveyor sees himself asan expert evaluator of evidence. He strives to arrive atthe same opinion of boundary location regardless ofwhether he was hired by his client or his client’s nextdoor neighbor. The surveyor’s opinion is founded onexperience and applicable legal precedents. Unlike theattorney, the surveyor does not see himself primarily asan advocate for his client. ”Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,” Reprintedin “Land Surveys, A Guide for Lawyers,” Real Property and Trust Law Section AmericanBar Association, 1986.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Merely locating the lines described in a deed on theground is not adequate for establishing the physicallimits of a property ownership. ”Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,”Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and Trust LawSection American Bar Association, 1986.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“A surveyor is guided by legal principles in hisevaluation of the evidence for a boundary line location.One such principle is the presumed priority ofconflicting title elements that determine boundary linelocation. The resolution of conflicts between writtenand unwritten rights is one of the most difficultproblems for both surveyors and lawyers. ”Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,”Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and Trust LawSection American Bar Association, 1986.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“If the surveyor’s evaluation of the evidence iseventually upheld in a court of law, it is because thesurveyor has arrived at a comprehensive and well‐reasoned answer rather than because he has arrived atthe theoretically correct answer. Again, there are no‘true’ answers waiting to be discovered; only well‐reasoned answers.”Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,”Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and Trust LawSection American Bar Association, 1986.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES– What are we supposed to be doing?JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Sec. 1. Purpose ‐ In order to meet such needs, clients,insurers, insureds, and lenders are entitled to rely onsurveyors to conduct surveys and prepare associatedplats or maps that are of a professional quality andappropriately uniform, complete, and accurate.”2011 “Minimum Standard Detail Requirements for ALTA/ACSM Land TitleSurveys”, sec.1.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Sec. 3. D. Boundary Resolution ‐ The boundary linesand corners of any property being surveyed as part ofan ALTA/ACSM Land Title Survey shall be establishedand/or retraced in accordance with appropriateboundary law principles governed by the set of factsand evidence found in the course of performing theresearch and survey.”2011 “Minimum Standard Detail Requirements for ALTA/ACSM Land TitleSurveys”, sec.3.D.
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Sec. 3. E. Measurement Standards ‐ A boundarycorner or line may have a small Relative PositionalPrecision because the survey measurements wereprecise, yet still be in the wrong position (i.e.inaccurate) if it was established or retraced using faultyor improper application of boundary law principles.”2011 “Minimum Standard Detail Requirements for ALTA/ACSM Land TitleSurveys”, sec.3., subpara.E.iv.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES7. YOU ARE EITHER AN ORIGINAL SURVEYORSETTING OUT LINES FOR THE VERY FIRST TIME ORYOU ARE A FOLLOWING (RETRACING) SURVEYORFINDING THE LINES THAT HAVE ALREADY BEENESTABLISHED.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In surveying a tract of land according to a former plator survey, the surveyor's only duty is to relocate, uponthe best evidence obtainable, the courses and lines atthe same place where originally located by the firstsurveyor on the ground.”Adams v. Hoover, 493 N.W.2d 280 (Mich.App.1992).
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In making the resurvey, he has the right to furnishproof of the location of the lost lines or monuments,not to dispute the correctness of or to control theoriginal survey. The original survey in all cases must,whenever possible, be retraced, since it cannot bedisregarded or needlessly altered after property rightshave been acquired in reliance upon it.”Adams v. Hoover, 493 N.W.2d 280 (Mich.App.1992).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“On a resurvey to establish lost boundaries, if theoriginal corners can be found, the places where theywere originally established are conclusive withoutregard to whether they were in fact correctly located,in this respect it has been stated that the rule is basedon the premise that the stability of boundary lines ismore important than minor inaccuracies or mistakes.”Adams v. Hoover, 493 N.W.2d 280 (Mich.App.1992).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Moreover, in relocating lost monuments thequestion is not how an entirely accurate survey wouldhave located the lots, but how the original surveystakes located them. The rationale behind thisproposition is primarily the public's need for finalityand uniformity of boundaries and land titles.”Adams v. Hoover, 493 N.W.2d 280 (Mich.App.1992).
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Bearings and course calls should not be used toestablish the location of a survey line if there is otherreliable evidence showing where it was actually runon the ground. Footsteps of original surveyor controlover calls for course and distance; where actual linesrun can be found, they constitute the true boundaryand cannot be made to yield to course and distancecalls.”TH Investments v. Kirby Marine, 218 S.W.3d 173 (Tex.App. 2007).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“In resurveying a tract of land according to a formerplat or survey, the surveyor’s only function or right isto relocate, upon the best evidence obtainable, thecorners and lines at the same places where originallylocated by the first surveyor on the ground. The objectof a resurvey is to furnish proof of the location of theoriginal survey’s lost lines or monuments, not todispute the correctness of it.”Gilbert v. Geiger, 747 N.W.2d 188 (Wisc.App.2007).JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Nothing is better understood than that few of ourearly plats will stand the test of a careful and accurate[precise] survey without disclosing errors. This is astrue of the government surveys as of any others, andif all the lines were now subject to correction on newsurveys, the confusion of lines and titles that wouldfollow would cause consternation in manycommunities.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by Cooley
JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Indeed the mischiefs that must follow wouldbe simply incalculable, and the visitation of thesurveyor might well be set down as a greatpublic calamitycalamity.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by CooleyJEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES9. BE AN EXPERT EVALUATOR OF EVIDENCE, NOTSIMPLY AN EXPERT MEASURER.“While land surveying is often associated withengineering, the two professions are distinct. Theevaluation of land surveying evidence is not a‘science’ in the sense that there is one procedure tofollow which will yield the ‘correct’ result.”Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,”Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and TrustLaw Section American Bar Association, 1986.JEFF’S 10 COMMANDMENTSON BOUNDARY DISPUTES“Surveyors occasionally disagree on the properlocation of a boundary line; not necessarily becauseone surveyor measures better th
ON BOUNDARY DISPUTES 1. LAND SURVEYORS ARE MORE LIKELY TO START A BOUNDARY DISPUTE AS TO RESOLVE ONE. JEFF’S 10 COMMANDMENTS ON BOUNDARY DISPUTES “This surveyor's mark was likely the spark that ignited this dispute. When the marker was placed near the Cothams' fence, the Cothamschallenged the finding
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