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September 1965
David W. Lambden (with Wilsey, Ham & Blair of San Mateo, Calif.) sent me a book entitled Summary of the Law Relating to Surveying in New Zealand (published by the New Zealand Institute of Surveyors, Wellington). The similarity of the New Zealand Laws to those of the United States is obvious.
Within the United States it is a wellestablished fact that old possession can stand as a monument to the original lines as marked and surveyed by the original surveyor. Fences built soon after section lines were run might stand as proof as to where the original lines were run, especially after the destruction of the original monuments.
In the case of the Equitable Building and Investment Co. v. Ross (5 N.Z.L.R., S.C. 229) this principle was at issue and, as quoted from the above book: "It is admitted that the new surveys proceed on no certain basis. Surveying was roughly done in the early days, and has left, it seems, but few monuments, and those of the rudest. In such circumstances, there can really be no better identification of the land to which a grant relates than long and unchallenged occupation by the grantee, and those who claim through him, of an allotment which in position, dimensions and area corresponds in general, though it be somewhat roughly, with the description in the grant. Neither words of a deed, or the lines and figures of a plan, can absolutely speak for themselves. They must, in some way or other, be applied to the ground. Where there are no natural boundaries, and the original survey-marks are gone, and there is no great difference in measurement, a long occupation originally authorized by the proper public authority, and acquiesced in throughout the period by the surrounding owners, is evidence of a convincing nature that the land so occupied is that which the deed conveys."
Within the United States, the general rule is that the person in possession is presumed to be the owner; he can only be ousted by peaceful means or by due process of law. A claimant cannot use force (even though he may have a better title). Quotations from the above book summarize the usual United States and New Zealand law as follows: "Where possession exists the law attaches certain rights to it, such as the right of possession, or the right not to be disturbed except by due process of law. The law presumes that everyone who is in possession is lawfully in possession, and throws upon the man who disputed his right to be in possession the burden of proving a better title. The advantage of this is very great. Possession is thus nine points of the law."
Also, "If his [an owner’s] right to possession is infringed, he can re-enter into possession, provided he does so peaceably, or he can bring an action to recover possession against anyone withholding it from him against his will."
In another part of the book it is said, "It is the rule of the Common Law that possession is prima facie [true on its face; true until proved otherwise] proof of title."
In New Zealand, as in the United States, proportional measurement is a rule of last resort.
Author Michael Pallamary has compiled the writings and lectures of the late Curtis M. Brown. These works are published in The Curt Brown Chronicles.
A 66Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE