Decided Guidance: Practical Repose

There’s little doubt these boundary lines were fixed in years 1878, 1879 & 1880 as stamped on fascia of these Victorian bastions. The stable behavior over the last century and a half of ownership is the active evidence of the original survey marks. Photo courtesy of Joel D. Foose

This month we are grazing on several cases united by the theme of practical location. We have a few caveats right up front. First and foremost, cherry picking case citations is a dangerous game for a surveyor. There is more to every case than just a drive by quote. It helps to understand the whole body of evidence before we go hanging our drawers out on the laundry line. Secondly the actual decisions in these cases may contradict the valuable points made by the examining justices. Courts frequently detail the concepts that support or refute an argument. Respectively good practical suggestions become apparent regardless of the decision. We also can gain a better understanding of standards by looking at these discussions. As I see it, a boundary decision as a unique blend of evidence, actions and standards with the latter theoretically being the most consistent. So if you’re looking for a golden goose egg to set your iron just remember that the duck billed platypus is also oviparous.

As retracement surveyors we are the students of Practical Location. We see this phenomenon routinely. Let’s eliminate a few concepts that may not support a practical location. For starters laziness, tightwaddery, and impatience are not necessarily the basis for a practical location. If a legal description is capable of being retraced it should be regardless of an owner’s ignorance or no pun intended desire to cut corners. The Courts have repeatedly expressed that owners are bound to the original grant. The term “acquiescence” should not be tossed around like a nerfball either. It is a matter of law and means a whole lot more to the lawyer folk than it does the rope stretchers. We’ve seen various cases where acquiescence was supported without both parties knowing it. We’ve seen at least one case where it had been stipulated then usurped by a subsequent adverse possession claim. It’s worth saying that the terms “practical location” and “acquiescence” are not always synonymous. There’s a foundation that realizes a property transfer under the doctrine of acquiescence. It requires the law to sort out the details. Conversely what we routinely see are the ground marks that folks have accepted as being consistent with the original grants. Loose conformance with precise numbers is normal and repose toward those existing marks is a doctrine in itself. So, where does this doctrine of repose come from and why do we practice it in retracement surveying?

Based on the cost and effort of installing miles of rock fence posts it’s reasonable to consider that the Kansas pioneers set these with extra care and attention to the survey marks. Photo used with permission of Jerry Penry

We’re going to start with Chief Justice Cooley in Michigan circa the 1870s. He was compelled to write The Quasi-judicial Functions of the Land Surveyor. We all know it and abide by it, for the most part, but how did Chief Justice Cooley get there? We’re going to peek at Diehl v. Zanger 39 Mich. 601 (Michigan Supreme Court) decided October 31, 1878 and work or way back and forth. We see Cooley make some familiar statements in Diehl but draw our attention to Stewart v. Carleton 31 Mich. 270 (Michigan Supreme Court) which was decided shortly prior in January 1875. An interesting highlight from Stewart is “The law recognizes (surveyors) as useful assistants in doing the mechanical work of measurement and calculation, and it also allows such credit to their judgment as belongs to any experience which may give it value in cases where better means of information do not exist. But the determination of facts belongs exclu­sively to courts and juries.” Diehl bridges the gap between the PLSS and the Colonial land systems with references to the precedent New York cases of Baldwin v. Brown 16 N.Y. 359 (N.Y. 1857) and Reed v. Farr, 35 N.Y. 113 (NY 1866). The Reed Court wrote “Baldwin v. Brown (16 N.Y., 359) is not unlike this case, and quite decisive of it. It was there held that practical location and long acquiescence in a boundary line are conclusive, not upon the notion that they are evidence of a parol agreement establishing the line, but because they are themselves proof that the location is correct, of so controlling a nature as to preclude evidence to the contrary.” In Baldwin Justice Selden touched on some familiar concepts. “…It is undoubtedly a general rule that, where the lands conveyed are described by courses and distances, and also by reference to natural objects or fixed and permanent monuments, if there is a discrepancy between the two, the former description must yield to the latter. The reason is, that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. This, however, is by no means an inflexible rule…It is obvious, too, that the reason for relying upon monuments, in preference to courses and distances, applies with much greater force to such as are natural and permanent than to those which are artificial, especially where the latter were erected as the result of a survey by courses and distances.” Both of these cases refer back to Jackson v. Dysling (2 Caines id., 198) and Baldwin specifically references Adams v. Rockwell (16 Wend., 285). Adams begins with “There was no evidence in this case of a deliberate settlement of the erroneous line by express agreement, founded upon a bona fide attempt to ascertain the true boundaries by actual survey according to the courses and distances of the older deed: both parties having derived their title from the same source.” We see two things here. One, if it can be surveyed, it should be surveyed. Two, there’s a call for the common grantor which is typical for courts to establish in boundary disputes. A principle is stated by the Chancellor in this case. “…and as the true line had been actually run and marked upon the land long previous to that time, there is no principle of law or justice which can take from Adams the land which actually belongs to him under his deed, and gave it to those who never owned it, and lost nothing by his mistake as to the true line.” I might be telling tales out of school, but it sounds like the Chancellor is saying the Court shouldn’t alter the integrity of an original grant and survey just to settle a dispute of location. I see a parallel logic limiting our role to retracing the best evidence of the original grant. It seems fitting that some conveyancing would accompany this scenario.

Beginning in 1879 the owners of lots 34-37 have unassumingly perpetuated boundary evidence through the preservation of those conjoined structures. The street view photo above reveals the owners’ interpretation and mutual partitioning of this original plat.

Okay, going back to Michigan and Cooley we return to Diehl v. Zanger and find a reference to Smith v. Hamilton 20 Mich. 433 Michigan Supreme Court (May 1870). This is an estoppel case that catapults us back to New York and Terry v. Chandler, 16 N.Y. 354, 346-54 (N.Y. 1857). Terry speaks for itself “…The validity and legal force of parol agreements and submissions to settle disputed boundary lines was long resisted upon the ground that, in effect, they passed the title to real property without the solemnities required by the statute. The courts however held, upon very substantial reasons, that such agreements and submissions did not affect the title. If they were confined to the sole object of ascertaining the true line of separation, they gave effect to the title which the parties to such agreements really had and left the statute of frauds in full force. Neither their purpose nor their effect was to pass real property from one person to another, but simply to ascertain the line to which their respective lands extended. The boundary of A. was also that of B., which was often undefined, obscure and uncertain; and when the agreement proposed and resulted in nothing more than to establish and mark where that boundary was, the provisions of the statute of frauds were not invaded. It was never thought that the judgments of the courts in actions of ejectment, where the subject was a question of boundary, divested the title of one person, and vested it in another; and yet the parol agreement, the submission, and the award under it, effect the same identical object and perform the same office as the judgment of a competent court. Both ascertain, by the means at their command, where the true line is, and establish it for all future time. In Jackson v. Dysling (2 Caines, 198), Mr. Justice Spencer says: “ An agreement by parol to a settlement of a boundary line appears to be effectual, and not liable to any objection on the score of the statute of frauds and perjuries;”… “. Once again, we see a foundation in Jackson v. Dysling. Coincidentally in the April and July 2019 installments of Decided Guidance we reviewed the 1937 Illinois case of Kandlik v. Hudek. Guess what case shows up in the special concurrence from Justice Stone? Spoiler alert, it’s Jackson v. Dysling. “The rule recognized in this State since the very early case of Crowell v. Maughs, 2 Gil. 419, is there stated as follows: “It is a familiar doctrine of law, that title to real estate cannot be transferred by parol. * * * It is settled, however, that proprietors of adjoining tracts of land may, by a parol agreement, settle a disputed boundary line between them. Such an adjustment of the boundary, if followed by corresponding possession, may be binding on the parties, not because it passes title, but because it determines the location where the estate of each is supposed to exist. — Jackson v. Dysling, 2 Caines, 198; Kip v. Norton, 12 Wend. 127.”

We’re seeing that many roads point back to Jackson v. Dysling. This is a good crossroad to stop and ponder from. I’ll leave you in New York with Stevens v. Webb 576 decided in 1886. We’ll need to do some homework to fully understand the context of these citations. Give it a google and see what you come up with.

“The doctrine underlying the term “practical location” has been discussed in a great number of cases…It was first announced in November, 1803, in the case of Jackson v. Bowen (1 Caines 358), by Judge Thompson…A year later (November, 1804), in the case of Jackson v. Dysling (2 Caines, 198), Judge Spencer made an application of the doctrine, introducing the new idea of a parol agreement. He Said:”… An agreement by parol to the settlement of a line appears to me effectual, and not liable to any objection on the Score of the Statute of Frauds and Perjuries…”. In February 1809, the Supreme Court, in the case of Jackson v. Ogden (4 Johns 140), indicated the conditions under which the doctrine might be applicable, showing that it was not confined to cases of doubtful or disputed boundary. Says Judge SPENCER: “…In November, 1810, Chancellor (then Judge) KENT recognized the doctrine, applying it in a case of doubtful and disputed boundary, but the only doubt arising from a contradiction between a map and a survey, both of which were referred to in the patent and deeds, the source of title; and it is the learned Chancellor who then introduces the phrase, “practical location”…Judge KENT says: “And when the question of location was thus rendered ambiguous and uncertain by the contradictions between the map and the survey (and both were referred to in the patent and early deeds), a PRACTICAL LOCATION and construction given by the parties, and acquiesced in through a series of transfers and for a great number of years, until the lands had become cultivated and had grown into value, cannot but operate with great if not with decisive force.”

About the Author

Jason Foose, PS

Jason Foose originally hails from the Connecticut Western Reserve Township 3, range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian. He is also the Managing Editor of the magazine.