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.4710.4810.4910.5010.5110.5210.53Restoration of Lost Township and Section CornersWhere the Line Was Not Established in One DirectionRestoration of Lost Corners Where the Intersecting LinesHave Been Established in Only Two DirectionsRestoration of Quarter-Section Corners in Regular SectionsRestoration of Quarter-Section Corners WhereOnly Part of a Section Was Surveyed OriginallyRestoration of a Closing Section Corneron a Standard ParallelRestoration of a Lost North Quarter Cornerin a Closing SectionRestoration of Lost Nonriparian Meander CornersRestoration of Riparian Meander LinesRestoration of Nonriparian Meander LinesRestoration of Irregular ExteriorsLost Corner Restoration MethodsResurvey Instructions Issued in 1879 and 1883Half-Mile Posts in Florida and Alabama312313314314315315316317Subdivision of Sections317General CommentsSubdivision by ProtractionEstablishing the North Quarter Corner of ClosingSections on a Standard Parallel and Other QuarterCorners Not Originally SetEstablishment of Centerlines and Center Quarter CornersEstablishment of Quarter-Quarter Section Linesand CornersFractional Sections CenterlineSenior Right of LinesGross Errors and Erroneously Omitted AreasRelocating Corners from Other Townshipsor from Interior CornersProcedures for Conducting RetracementsInterpretation of Aliquot DescriptionsAccording to the Government Measure317318Differences Between State and Federal Interpretations10.54 Applying State Laws10.55 Topography10.56 Boundaries by Area10.57 Establishing Corners10.58 Sections Created under State Jurisdiction10.59 Presumptions and Realities for GLO Surveys10.60 ConclusionsCHAPTER 11 LOCATING SEQUENTIAL CONVEYANCES11.111.211.3xiIntroductionDefinition of Sequential ConveyancesSimultaneous 327329329329330330331332333335337337340341

11.4311.4411.4511.46PossessionSequential PatentsImportance of KnowledgeJunior and Senior Rights between Private PartiesDeeds Must Be in Writing and Deemed to Be WholeDirection of the SurveyTerms of the DeedCall for a PlatInformative and Controlling Terms342342342343344345345346346Order of Importance of Conflicting Title Elements347General CommentsSenior RightsCall for an AdjoinerWritten Intentions of the Parties to the DeedAids to Interpret the Intent of a DeedControl of Unwritten Title LinesLines Marked and SurveyedCorner DefinitionsControl of MonumentsControl between Conflicting MonumentsExplanation of the PrinciplesImportance of the Word “To”Dignity of Record MonumentsControl Point of a MonumentUncalled-For MonumentsError or Mistake in a DescriptionControl of Bearing and DistanceControl of Either Bearing or DistanceDistribution of Errors in Several Boundary LinesCardinal DirectionsUnrestricted General TermsDirection of SurveyArea or SurfacePoint of BeginningConstrued Most Strongly against GrantorErrors and Ambiguous TermsCoordinatesDirect Line MeasurementTreatment of CurvesFirst Stated ConditionsWritten and Character NumbersUnit ImpliedFeet and InchesGeneral and Particular 376376376377Basis of Bearings37811.47 Deflection Method versus Compass Bearings11.48 Summary, Interpretation of the Principles, and Conclusion378381

CONTENTSCHAPTER 12 LOCATING SIMULTANEOUSLY CREATEDBOUNDARIES12.112.2386389Subdivision Boundaries and Corners390Conflicting Elements in Descriptions12.7 General Comments12.8 Original Method of Creating Lots12.9 Intention of the Parties12.10 Finality of Original Lines12.11 Control of Original Monuments withinSubdivision Boundaries12.12 Title Monuments12.13 Control of Monuments Over Plats12.14 Certainty of Monument Identification12.15 Record Description of Monuments12.16 Principles for Presumed Control Between ConflictingMonuments within Subdivisions12.17 Explaining Principles12.18 Introduction to ionDefining Subdivisions12.3 Aliquot Part Subdivision12.4 Controlling Boundaries12.5 Subdivision Macro Boundary Wrongly Monumented12.6 Subdivision Boundaries Incorrectly 94395396398398398399399400404Establishment of Streets405General CommentsEstablishment of Streets by Natural MonumentsEstablishment of Streets and Alleys by Artificial Monumentsand Lines Actually Run at the Time of Making the PlatEstablishment of Streets by ImprovementsEstablishment of Streets by the Line of a Nearby StreetEstablishment of Streets by PlatEstablishment of Streets Where Width Is Not GivenEstablishment of Streets by City Engineers’ Monuments405405Establishment of Lots within Subdivisions412Effect of Mathematical ErrorExcess or DeficiencyProration: A Rule of Last ResortExcess or Deficiency Confined to a BlockExcess or Deficiency Distribution within BlocksSingle Proportionate MeasureSingle Proportionate Measure on CurvesDistribution of Excess and Deficiency Beyond a MonumentEstablishment of Lots Where the End Lot MeasurementIs Not GivenRemnant 0419419

ment of Lots Where No Lot measurement Is GivenEstablishment of Lots with Area Only GivenNew York Rule For Establishment of LotsSummary of Proration RulesEstablishment of Lots Adjoining Subdivision BoundariesEstablishment of Lots Adjoining a Subdivision CorrectlyEstablishedEstablishment of Lots Overlapping the True SubdivisionBoundariesEstablishment of Lots Not Touching the True Boundaryof the SubdivisionProration of Excess and Deficiency in Blocks Closing onSubdivision BoundariesLocating Lots from Boundary LinesObliterated and Lost edings in Partition433General CommentsEstablishment of Lines Determined byProceedings in PartitionEstablishment of Boundaries of Allottees of WillsDeed DivisionsComments433CHAPTER 13 LOCATING COMBINATION DESCRIPTIONS �Of” Descriptions43813.2“Of,” “In,” and “At” Descriptions within Subdivisionsand Adjoining Streets“Of” Descriptions within Metes and Bounds Descriptionsand Adjoining StreetsDirection of MeasurementProportional “Of” ConveyanceException by One-Half by AreaIndeterminate Proportional ConveyancesAngular Direction of the Dividing Line in “Of” DescriptionsAcreage “Of” 449450Overlaps and Gaps454Calls from Two Directions454Establishment of Property Described by Both Metesand Bounds and Subdivision Descriptions454Double DescriptionsNew York Double DescriptionsNatural Phenomena and BoundariesRecognition of Past Events454455455460

CONTENTSCHAPTER 14 ROLE OF THE nFunction of the SurveyorOpinions of Fact and Applications of LawEstablishment of BoundariesEstablishment in Louisiana462464464466467Private Surveys467Responsibility and Authority of the SurveyorBasis of a Boundary SurveyHow Much Research?OwnershipEncroachmentsSearching for MonumentsPossession Marking Original Survey LinesEvidenceSetting 1472472473473474475CHAPTER 15 THE ETHICS AND MORAL RESPONSIBILITIES OFBOUNDARY CREATION AND OF RETRACEMENTS15.1 Introduction15.2 The Philosophy of Boundaries15.3 Applying the Principles to Creating and RetracingBoundaries15.4 Final CommentsGLOSSARY OF TERMSINDEX478478479480486489515

PREFACE TO THE SEVENTH EDITIONIt is amazing how technology in the surveying profession has advanced in the last 50years, as it has in other professions. The medical profession has extended the average human life span, and now we see many octogenarians, some even in our ownfamilies. In contrast, the law, with the exception of a few areas such as human rightsand minority rights, has remained fairly constant. In the field of real property andboundaries, easements, rights of view, and especially air rights, contemporary lawsstill are tied to ancient laws and doctrines. As surveyors struggle to come into themodern world, we now have ready and easy access to modern technology for retracing and re-describing ancient boundaries and rights, some of which were originallycreated decades ago by unknown surveyors who left few records. With this comes aconflict between technology and law, creating for modern courts and surveyors thedilemma of selecting the best course of action.Since this text is used by students as a source for their knowledge of the legalaspects of boundaries as well as by the courts to support their legal decisions concerning boundaries, we hope this new addition will provide the modern guidelinesfor making correct decisions based on sound evidence and proven historic principlesrather than bad decisions based on speculation, guesswork, and poor retracementpractices.Donald A. Wilson, B.S., M.S.,Land Boundary ConsultantPresident, Land & BoundaryConsultants, Inc.Newfields, NHOctober 2013Walter G. (Walt) Robillard, B.S., M.A.,L.L.M., J.D., PLS, RLS, FSMSAttorney At Law, RLS, FSMSAtlanta, GAOctober 2013xvii

ACKNOWLEDGMENTSAppreciation is given to Walt’s grandson Charles A. “Tony” Nettleman III, for hiscontribution to Chapter 9, Riparian and Littoral Boundaries, authored by George Cole.xix

BROWN’S BOUNDARY CONTROLAND LEGAL PRINCIPLES

CHAPTER 1HISTORY AND CONCEPT OFBOUNDARIES1.1INTRODUCTIONThe history and location of boundaries are steeped in the history of the world fromthe time before records were kept to today. These boundaries are a result of actionsof individuals and nations and law. Boundaries can be related to the areas of history,politics, surveying, and law. Both boundaries of an international nature and thosebetween individuals have caused problems that have been fought, are still beingfought, and will continue to be fought in the future over their locations betweennations, states, and individual parcels of land within “Happy Acres” subdivisions.In recent years, both local and international judicial tribunals have had to applyold, proven doctrines and have created new legal doctrines to resolve boundaryissues. One cannot pick up a newspaper or a magazine without reading about someindividual or nation with a boundary issue that is new or that has been festering formany years.Wars have been fought both on an international scale and in local neighborhoods,and people have been killed over boundary disputes of an inconsequential natureinvolving pieces of land that have ranged from hundreds of miles to a fraction ofa foot or meter. Boundaries are personal in nature, and people have been and willcontinue to be protective about the misidentification or misalignment of a known orperceived boundary infringement. The surveyor may become the common factor ina boundary problem, as a result of, for example, preparing an erroneous map showing the boundary between two or more nations or the erroneous depiction of a singleline between two landowners.Even after modern boundary issues have been, seemingly, resolved, membersof both the legal profession and the surveying profession may question the results,1

2HISTORY AND CONCEPT OF BOUNDARIESasking incredulously, “How could the court do that?” Both the trial attorney and thetestifying survey expert could not believe the Court disregarded the case law onthe subject.In the primeval forest, particularly in the plant kingdom, there are no knownboundaries between living things. Although some horticulturists dispute this, weaccept the fact that plants do not create boundaries to separate themselves. Animals—especially humans—do create boundaries. We like to think that only humans createand appreciate boundaries, but it has been observed in nature that most mammals,some reptiles, and a few fish create, identify, mark, and defend boundaries.In this book, we discuss the creation, identification, description, and recoveryof boundaries among people. We do not include the recovery and interpretation ofthe evidence of once-created boundaries; rather, we examine how boundaries arecreated, how they are described, and the technical legal and ethical ramifications ofsuch boundaries that separate rights, both real and perceived, in real property.Some boundaries are created in a random manner, whereas others are created according to preconceived plans, identified by any manner of a writtendescription(s), and then litigated according to common law, case law, or statutelaw.1 Although it is not our intent in this book to dwell on the creation of boundaries by the lower forms of animal life, their actions in creating boundaries should beexamined, because certain principles are similar. Many of these boundaries humanscreate remain for generations and, when they are retraced by modern methods andwith a modern approach, may cause technical and legal problems for today’s surveyors and courts.Field examinations and studies by naturalists have revealed that most animalsreally don’t create boundaries per se. However, it is recognized that they usually create terminal points (corners) and then identify the boundaries between these points,2although lower forms of animals may create boundaries that are not necessarily ofa permanent nature.Humans usually create boundaries in several ways. For the sake of simplicity,these may be placed in the following categories:1. By action. Physical acts create a line and points on the ground. This is followed by placing actual monuments at the corner points and identifying thesepoints (corners) and line objects. The lines and objects are then described andmay be identified on plats or in field notes. This evidence created and left “onthe ground” becomes the proof of the original work and lines and becomes thelegal controlling factor in conducting retracements.2. By writings. The written word becomes the method of creation when a persondescribes corners and/or lines in a deed and then conveys to these describedlines, prior to the completion of a survey. The problem is created whenwhat the surveyor places on the ground is and then fails to create a solidpaper trail.3. By law. Ancient common and modern statutes are relied on to create, modify,and relocate many modern boundaries.

1.2 SIGNIFICANCE OF BOUNDARIES3The following principles are introduced in this chapter and discussed in detail inlater chapters:principle 1. Boundaries enjoy a long history in both mythology and JudaicChristian history.principle 2. A surveyor creates land boundaries. These created lines, which areseparate and distinct from property lines, are determined by legalprinciples and law.principle 3. A described closed boundary identifies a claim of right to anyproperty interest for which any person can make a claim of possession through a claim of title. These boundaries may be eithermacro or micro in nature.principle 4. A person or landowner can legally convey only the quality andquantity of interest in land to which he or she has title.principle 5. In most instances, there are no federal laws describing real property rights.principle 6. Although there are no federal laws of real property, property rightsare identified by the state laws and are protected under the U.S.Constitution.principle 7. Real property rights are determined according to the laws in effectin the particular locale where the land is located. English commonlaw is the predominant law, and it is described as the lex loci.principle 8. Once boundary lines are created, the contiguous lines may, bylaw or by the actions of landowners who have vested rights, bechanged or altered.principle 9. Law does not provide for two original descriptions of the sameparcel.principle 10. Multiple boundary descriptions may exist for the same parcel, butonly one is controlling.principle 11. There can be only one original boundary survey and description;all subsequent ones are retracements.principle 12. A resurvey can be conducted only by the entity who conductedthe original survey. The law provides for resurveys of parcels, butonly on a limited basis and under certain restrictions, the main onebeing that the bona fide property rights granted under the previoussurvey are not jeopardized.1.2 SIGNIFICANCE OF BOUNDARIESThe description of property by surveys and landmarks and by reference to boundaries is very ancient. Basically, property interests are separated by boundaries. Fromprecolonial times in the United States, many wars, both local and regional, have been

4HISTORY AND CONCEPT OF BOUNDARIESfought and people have been killed as a result of disputed boundaries. This problemwas probably inherited from the European continent when the United States adoptedEnglish common law as the basis of its common law.In Great Britain and in Europe, territorial boundaries have, for the most

CHAPTER 2 HOW BOUNDARIES ARE CREATED 35 2.1 Introduction 35 2.2 Definitions 36 2.3 Classification of Boundaries 39 2.4 Methods of Boundary Creation 40 2.5 Who May Create Boundaries? 43 2.6 Sanctity of the Original Survey 47 2.7 Original Lines Remain Fixed 47 2.8 Distinctions between the Original Boundary Survey, the