It has been convenient for some surveyors to claim that their only obligation in boundary retracement was to retrace the deed calls on the ground. In fact, this has widespread support among surveyors where lots in recorded subdivisions are concerned. Retracing the deed on the ground implies considering only the calls on the face of the document to determine the limits of the grant.
Could this be what property owners want when they request property to be staked? Not likely. In the rare instance where a client insists on placing the deed calls on the ground, it is probably a preface to making some sort of claim that might otherwise be considered on shaky foundations. Generally, property owners are interested in knowing the extent of their dominion; therefore, absent any unwritten transfer such as adverse possession or prescription, the surveyor’s duty is to render an opinion as to the limits of that dominion. To be sure, the deed is evidence of the boundary, but since there are other influences on the outline, often including references to other documents in the deed itself, other factors are entitled to be considered in the boundary analysis.
Most of the real estate community—attorneys and some surveyors included—believe that the description of the land in the deed is conclusive evidence as to the limits of the grant. But this cannot be true. If it were, the concept of senior and junior rights would be inoperative. Let’s explore that for a moment. If surveyors were bound only to consider the calls in the current deed, and if there happened to have been a conveyance of part of the property since the execution of the current deed, the surveyor could properly ignore the out-conveyance. Clearly this is inappropriate.
Expressing Title Opinions
Some of the reasoning by surveyors who espouse this idea is based on their (understandable) reluctance to offer opinions on title. For example, considering the out-conveyance above and allowing for it in the current retracement effort might seem to some surveyors as equivalent to expressing an opinion about whether the out-conveyance was actually a valid conveyance—executed by the proper parties, acknowledged and delivered, etc. However, the same concerns would apply to the original deed. Those same surveyors would probably have no hesitation in assuming the validity of that deed.
Once part of a tract is conveyed to others, it leaves the dominion of the grantor and his successors-in-title. Therefore, the division lines thus created must be considered inviolate. The rightful owners of land beyond that division line cannot legally be deprived of any land without their permission (or without a court order in a proceeding in which he or she is a party). It follows then, that despite the imprecision of the former surveys, the boundaries of the land as conveyed are presumed correct unless they conflict with the bounds of still-earlier grants.
Title Must Be Traceable
The title to property, if valid, must be traceable back to the original proprietor, as must be the limits of that title. Once evaluated, the logic is irresistible. Subsequent grants depend upon and are bound by earlier grants. Similar concepts apply to the retracement of individual lines. As a result, the preceding written record as a whole defines the limits of the grant, not simply the limits as described in the grant itself. Theoretically, this requires an understanding of how and when each line of the boundary was created. Where the deed is creating new lines, the deed is controlling with respect to those lines. It will continue to be controlling no matter how many subsequent deeds also attempt to describe the same lines. Similarly, the lines described in a deed which that deed did not create, but were merely recalled from earlier deeds, are governed by the original instrument creating the lines in question. Each line is controlled by the original grant creating it. If six sides bound a parcel, six deeds may control the retracement.
What is the standard of care with respect to the discovery of the controlling grants? Most surveyors appear to examine the current deed to the property and the current deeds to all adjoining properties. If any of the deeds contain ambiguities, further research to shed light on the ambiguities might be conducted. As far as I can determine, most surveyors stop at this point (although I have recently encountered some stunning examples to the contrary). When subdivision plats are involved, surveyors (as a rule) accept the integrity of the plat without investigating its conformance with senior title calls. This is apparently true even when the plat appears to conflict with the adjoining deeds.
Any amount of research less than identifying all controlling grants is a risk to the surveyor. (It may be an acceptable risk, but it is a risk. It is possible that the latest deeds correctly describe all the lines of the boundary and that a complete research project to identify all controlling grants would not change a retracement based solely upon the current deeds. Until that research is conducted, however, the retracement surveyor assumes a risk.)
The reason for the reliance on the current deed at its face value probably has less to do with law than with economics. Researching many lines back to their origins is expensive. We should be aware, however, that should a counter-location of a boundary line be discovered because of more through research, the client will be justifiably perturbed. Clients presume that surveyors conduct the necessary research to retrace the boundary; having paid the surveyor to do just that, clients tend to be less than understanding when it is later found that the surveyor stopped short of the goal.
Examining Only the Current Deed
I have learned recently that at least one state (and possibly more than one) promulgated regulations requiring surveyors only to examine the current deed during the analysis. This is most unfortunate. While the surveyors in that state might consider such a liberal regulation a windfall, the rule implies that the surveyors drafting it considered prior deeds to be irrelevant. This is illogical and would be akin to title policies based solely upon the last-recorded deed. The concept of land ownership is based upon a valid conveyance from a bona fide owner. Therefore, if title companies deem it necessary to ensure valid ownership through an unbroken chain of title, is there any difference in surveyors substantiating the extent of that ownership? I think not.
The influence of prior grants on today s boundary lines is central to the notion of ownership and reinforces the public s expectations concerning the sanctity of property rights. At times, that influence makes life complicated for surveyors. In the end, however, our system of private land ownership depends upon it.
Copyright © 1996 By Joel M. Leininger, LS