Most surveyors, at least over the last few decades, were taught and have practiced boundary surveying consistent with Curtis Brown’s principle “The surveyor locates land title lines and shows the relationship of possession and title lines; he does not declare who has ownership of land or who has right of possession. Such matters are referred to attorneys.”1
Notwithstanding the fact that surveyors generally do not “declare” anything—they offer professional opinions—this remains the mantra of most surveyors yet today. They deal in written title, not ownership. Yet most surveyors are likely unaware that later in life Curtis Brown changed his opinion on surveyors giving opinions on ownership.
In his paper “Land Surveyor’s Liability to Unwritten Rights” published in Volume XXXIX No. 2 of the ACSM Surveying and Mapping Journal in June 1979, Brown posed the question, “Can a surveyor monument the lines of ownership obtained by unwritten means?” He answered that in the affirmative with “To my knowledge, absolutely nothing in the law prevents him from doing so.” The paper goes into the subject in great detail and Brown lays out some guidelines for addressing ownership that he used in his own practice.
More important than what Brown wrote, yet informing and supporting his opinion in this regard, are the many court decisions over the years that surveyors would be well to consider.
A considerable element of many of these cases is essentially that the surveyor did a good job on the survey, but the surveyed lines are simply not in the right place. In processing these cases, the surveyor should understand that from the court’s standpoint “the right place” means what the person owned, not what his or her written title was. No one goes to court to get a decision on what their deed says; they go to court for a decision on what they own.
As Brown mentioned in his paper “From my experience with clients, very few know the difference between [the written deed and ownership]; most want to know what they own.”
It is this writer’s opinion that most surveyors would agree with this statement: Upon completion of a survey, most clients believe the surveyor has told them what they own.
Likewise, most surveyors will likely agree that, in fact, they did not survey ownership. This would seem to be a recipe for disaster: the client thinks we have done something that we know we did not do. But do we discuss this with them? Given the nature of most surveyors, probably not.
What have the courts said regarding the issue?
It is well established that whenever adjoining landowners tacitly accept a fence line or other monument as the visible evidence of their dividing line for a long period of time and thus apparently consent to that line, the line becomes the boundary by acquiescence. The property owners and their grantees are then precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one, although it may not be on the survey line. Summers v. Dietsch, 849 SW 2d 3—Ark: Court of Appeals, 2nd Div. 1993
If the surveyed line is not on the court-determined “true line” what purpose is the surveyor serving?
Boundaries may be established by acquiescence where the parties have recognized a certain boundary as being the true one and have occupied their respective lots accordingly for twenty years or more. O’Hearne v. McClammer, 163 N.H. 430, 435, 42 A.3d 834 (2012). “The bound thus acquiesced in will prevail even over the description in the deeds” and “[a] boundary established by acquiescence is conclusive upon successors in title.” Town of Dunbarton v. Guiney, 236 A. 3d 860—NH: Supreme Court 2020
So, the acquiesced boundary prevails over the written deed. And what purpose is the surveyor serving by surveying a boundary that has been overridden by acquiescence?
An acquiesced boundary often will not lie on the surveyor’s true location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. An acquiesced line “becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location.” “Thus, if the distance call in the deed is ‘500 feet,’ it may henceforth be treated as if it read ‘517 feet’ or ‘483 feet,’ and every future deed of the land which copies or incorporates the original description will also be so read.” Roger A. Cunningham et al., The Law of Property § 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958). Salazar v. Terry, 911 P. 2d 1086—Colo: Supreme Court 1996.
Again, the surveyor’s location is not the defining boundary. If we are “surveying the deed” as we have seemingly been taught, should we not be accounting for the fact that acquiescence effectively rewrites the legal description?
From the earlier cited Arkansas case…
Boundaries are frequently found to exist at locations other than those shown by an accurate survey of the premises in question… Summers v. Dietsch, 849 SW 2d 3—Ark: Court of Appeals, 2nd Div. 1993
The court seems to be saying, “Nice survey, but you’re in the wrong place.”
[T]here is support for the land surveyor to take an affirmative and responsible position with respect to identifying and making recommendations concerning boundary lines established by unwritten means. Establishment of Boundaries by Unwritten Methods and the Land Surveyor, Dr. John D. McEntyre, LS and Darrell Dean, Indiana Society of Professional Land Surveyors, ca. 1976
There are many other cases and sources saying essentially the same thing about surveying and ownership. But caution is warranted. This concept does not include giving opinions or surveying ownership that may have been changed by unwritten means like adverse possession that do not involve mutual acquiescence. In his paper, Brown said “the surveyor is probably foolish” to give opinions in those situations.
Just as importantly, if surveyors are going to offer defensible opinions, they must be knowledgable about how and when boundaries are changed by the practical location doctrines, which include, at a minimum, practical location, acquiescence, and parol agreements. Do you know the elements required for those doctrines in your state?
1 Boundary Control and Legal Principles, Second Edition, Curtis M. Brown, Wiley, 1969, p. 111