THE BLOG
07/11/2016 12:47 pm ET Updated Jul 12, 2017

Fundamentals of Land Surveys and Boundary Disputes

Land surveying and boundary disputes date from the earliest European settlers in what is now the U.S. This comment provides a brief and incomplete educational overview of the legal aspects of this process. Always consult an experienced attorney and surveying and engineering professionals in specific situations.

The Public Land Survey System reflects U.S. history with the original Atlantic seaboard colonies and Texas excluded and a patchwork of other states grouped together starting with the federal Northwest Ordinance in 1787. Revolutionary War and subsequent war veterans frequently received land script (certificates exchangeable for public land) for their services and a brisk business of buying and selling (with associated legal disputes) developed.

Many earliest land surveys followed a metes-and-bounds system adapted from England. It used natural landmarks and distances with simple compass headings of north, south, east, and west. Of course natural makers disappeared (for example, "a large Hickory tree") and various difficulties caused the development of the more precise Public Land Survey System.

The Public Land Survey System in shorthand fashion created numbered rectangular grids of one square mile each (a "section" of 640 acres) from a Base Line (a parallel of latitude) and Principal Meridian (a north-south line). 36 sections (six miles square) equal a Township further located with additional descriptors omitted here in the interest of brevity. A mile is 5,280 feet and an acre is 43,560 square feet. In some states there are references to other units such as varas, labors, leagues, rods, poles, perchs, chains, and links. Ground markers (monumentation) provided the precise locations of points and lines. The Pacific Railroad Act of 1862 granted railroads public lands in exchange for construction. In the entire land survey system there were instances of fraud or sloppy surveying that created numerous legal issues and boundary disputes.

A third surveying system in use today involves recorded plats and subdivisions. The Lot and Block System describes individual lots within blocks that additionally reference a recorded plat by volume number and page in the place of its official recording.

Modern surveys begin with one or more of these three systems. Working from the earliest available descriptions is a mixture of art and science. The engineering mechanics of surveying begin with an established point of commencement and the description of a line by "course" or compass "bearing" and distance (a "call") that runs from this point to the closest corner of the parcel being surveyed (creating a "point of beginning").

A 360 degree circle is broken into 60 minutes in a degree and 60 seconds in a minute. For example, the course (direction) of a call might read "North 20 degrees 20 minutes and 20 seconds West" abbreviated "N 20 20'20" W." An arc does not swing more than 90 degrees in any direction. A contemporary method represents this information as a decimal equivalent based upon 60. Hence, the above example would read "N 20.33889 W" since 1 minute is 1/60 degree and 1 second equals 1/3600 degree. Thus, the decimal degrees equivalent is calculated by this formula: degrees plus m/60 plus s/3600. Of course, the decimal equivalent could be longer in the interest of greater precision.

There are several ways North might be described: True North (geographic north pole), Magnetic North (magnetic north pole), Assumed North (a direction established by previous tracts or ground markers), and Grid North (parallel to a public grid line).

Monuments might be referenced that are Natural, Artificial, or Recorded. A land survey should close back to the point of beginning. Boundaries might be described by Deed Line (recorded deed description) or Occupation Line (where fences, etc. create boundaries). Errors may be Accidental (simple mismeasurements), Systematic (improperly calibrated instruments), and Closure (field measurements leave a gap).

Sometimes there are accidental gaps between boundary lines called Strips (rectangles) or Gores (triangles). There are legends of a surveyor finding such a strip ("vacancy") in the middle of a valuable oil field and obtaining a land grant title to the strip from the state government since adverse possession (title by occupancy) cannot be exercised against government.

A surveyor's Field Notes describe her or his findings and there may be a reference to Tolerances (allowable imperfections). In construction projects surveys may reference elevations or grades as well as drainage, utilities, and easements. In many situations an employed surveyor may be provided detailed Survey Instructions. Do not utilize standardized instructions without a careful review.

Generally speaking there are the following types of surveys:

Land Title Surveys focus on insuring title to a parcel and reference all encumbrances such as easements or improvements. Sometimes there is a separate Mortgage Loan Survey that inspects the parcel for uses and obvious superior encumbrances. A Standard Land Survey is only concerned with boundary lines. A Route Survey describes a center line and related widths and distances. A Location Survey (called a "lay-out") establishes the position on the ground of proposed construction. A Construction Survey controls positions, elevations, dimensions, and configurations of work in progress. A Topographic Survey considers elevations and the big-picture to design drainage systems and flood control, for example. This may sometimes be accomplished by sophisticated aerial photography techniques. A Horizontal Control Survey creates a master coordinate system to which other surveys refer. A Vertical Control Survey creates a master system of elevation control points referenced to an imaginary surface such as sea level. It might be needed in lake and dam construction. An Investigative Survey considers the main features of an area or, in contrast, examines the stress characteristics, subsidence, etc. of a particular structure.

When boundary and location conflicts exist, the general rule is that senior deeds in time control over junior deeds ("senior property rights"). When evaluating a metes and bounds description the "priority of calls" or "rules of dignity of calls" moves in the following priority hierarchy from most to least important: natural objects, artificial objects, course, distance, and quantity or acreage. The intention of the parties, if known or available, is important. Artificial markers today may consist of temporary wooden stakes or more permanent iron rods or pipes and concrete.

Sometimes sketched plats have "on-the-ground" problems. Note that an official appearing diagram of a deed description is at best a working sketch and should not be called a survey. Beware of legal descriptions that have precise north-south, east-west courses as ground directions are almost without exception not that precise. Homemade "kitchen table" descriptions create legal problems and in a series of building lots the impact of mistakes is multiplied as one moves down the row. Simultaneously obtaining a number of out-of-court correction deeds is difficult if one landowner believes a new deed is an attempt to defraud her or him. Mortgage lenders will insist that legal description problems be corrected. All too often a judicial proceeding is required.

There are very sophisticated and expensive computer programs to assist in engineering design and drafting. All of these are not without limitations and typically lack legal standing. The traditional rule for a legally sufficient description is a writing that furnishes within itself or by reference to some other existing writing the means or data by which the particular land may be identified with "reasonable certainty." In practice, deeds are valid even if the description of the parcel has flaws. A noteworthy consideration is that natural boundaries, such as water, move over time through such events as accretion of soil or subsidence.

When the Occupation Line varies from the Deed Line, there may be a transfer of title by adverse possession. Adverse Possession transfers ownership of non-public land by open occupancy and continuous use under a claim of ownership for a statutorily specified period of years. The time is determined by state law and may be as short as three years or as long as thirty years. This is frequently the case when old fences are involved. If one wants adverse possession not to occur, some evidence of permissive use by the occupant that acknowledges another superior title is required. Rental and lease agreements acknowledge superior ownership. A simple signed permission document may also typically be adequate. However, do not have an attorney write a demand letter to the occupier without being prepared to sue. Making an unrecognized and unenforced demand merely reinforces the adverse nature of the possession. Depending on the state, court action requires that one file a title lawsuit or perhaps a declaratory judgment action to determine the boundary.

An out-of-court boundary determination may be possible. Develop, with assistance from an experienced attorney, a document that may be recorded in the public real estate records. Beware of informal or implied agreements as they may not be legally enforceable. At the risk of having a "cast of thousands" involved in what one hopes is a simple procedure, consider all of the following potential parties. Involve all owners of the adjoining tracts and have lienholders and mortgage holders consent and ratify the agreement. Mineral owners may also need to be involved as parties although it may be possible to reference the surface only in the agreement. Are there easement holders, lessees or tenants, and government regulatory authorities (especially if the land is platted) that must be considered? What is the impact of private subdivision or deed restrictions? Of course, the document should incorporate a description provided by a licensed professional land surveyor. Taking the shortcut of simply saying that a fence is the boundary ignores the fact that the fence may be gone or relocated at a future date. Having created the document, record it in the official public land records and notify the real estate tax assessor's office of the change. One may also need to notify a title insurance company or amend title insurance coverage.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney and other appropriate professionals in specific real estate situations.