Deeds

The types of deeds most used in land transactions are the general warranty deed, special

warranty deed, bargain and sale deed, quitclaim deed and trust deed.

General Warranty Deed- A deed in which the grantor warrants the title against defects

arising any time, either before or after the grantor became connected with the land.

Special Warranty Deed- A deed in which the grantor warrants the title against defects

arising after he acquired the land but not against defects arising before that time.

Quitclaim Deed- A form of conveyance whereby whatever interest the grantor possesses in

the property described in the deed is conveyed to the grantee without warranty of title.

Trust Deed- It is an instrument which conveys legal title to property to a trustee and states

his authority and the conditions binding upon him in dealing with the property held in trust.

Frequently trust deeds are used to secure lenders against loss. In this respect they are

similar to mortgages.

Parts of a Deed

Introductory statements and recitals – Usually contains the parcel identification, address to

send tax notices to, source of title and the preparer’s name.

Parties to the transaction – Names of the grantor and grantee.

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Granting Clause – the portion of the deed that contains the words of conveyance and the

interest and rights conveyed. It is the most superior clause in the deed and usually contains

the term “grant, bargain, sell and convey”.

Consideration – Compensation having value that is given for something acquired or

promised.

Description of the Property – The sufficiency of a legal description is determined by the

ability of a surveyor to lay it out on the ground.

Habendum Clause – A clause in the deed that specifies the extent of the interest (as life or

fee) to be conveyed. It can explain, qualify lessen of enlarge, but it cannot totally contradict

or be repugnant to the granting clause. This clause is usually identified by the phrase “to

have and to hold”.

Covenants – all conveyances (except quitclaims) contain some type of covenant. The

covenant usually states that the grantor has good title and the right to sell the described

property.

Types of Legal Descriptions:

Metes and Bounds: Describing the boundaries of a tracts of land by giving the bearing and

length of each successive line. Much of the land in the eastern “colonial” states has been

surveyed and described by this method. This method is also used in the surveys of the public

lands to define the boundaries of irregular tracts, such as claims, grants and reservations, which

are nonconformable to the rectangular system of subdivision.

An example of a Metes and Bounds description for the attached survey is as follows:

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“Commencing at a concrete monument marking the northwest corner of the McConnell tract as

described in deed book 1647 page 810 in the Register’s Office of Bradley County (ROBC), said

monument also located in the southerly line of Bowman Avenue (30’ right-of-way); thence along

the line of Bowman Avenue S61°40’00”E, 50.00 feet to a nail and the Point of Beginning

Thence from the point of beginning and long the southerly line of Bowman Avenue S61°40’00”E,

52.50 feet to an iron rod marking the northwest corner of the Mayfield tract as recorded in deed

book 1015 page 790 in the ROBC;

Thence along the westerly line of the Mayfield tract S26°15’00”W, 158.32 feet to an iron rod at

the southwest corner of Mayfield and the north line of an unopened alley;

Thence S27°53’22”W, 7.80 feet to a point in the center of an unopened alley; said point also

being in the line of a wooden fence;

Thence along the fence line and the center of the unopened alley N62°06’38”W, 47.99 feet to a

point in the center of said alley;

Thence N27°53’22”E, 7.25 feet to a concrete monument marking the southeast corner of the

aforementioned McConnell tract;

Thence along the east line of the McConnell tract N24°38’23”E, 159.47 feet to the Point of

Beginning. The north basis for the herein described land is astronomic as determined by field

survey dated 12/05/2011 by Barry Savage Tennessee PLS 1618”

Points to Remember:

1. The description contains much more than just the measurements, it also contains

calls for adjoining parcels (title identity) and boundary markers.

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2. When a surveyor interprets a metes and bounds description they should use the

measurement data as directive only and as locative as a last resort.

3. A proper metes and bounds description should always contain a statement explaining

the bearing basis (north basis)

Bounds: A type of description that calls for an adjoiner of adjoining parcel (record monument)

on each side of the parcel described. It is a referral description.

An example of a bounds description:

“Bounded on the north side by the Tellico River, bounded on the east by the west line of

Highway 101; bounded on the south by Lot 15 of Magnolia Lea Subdivision as recorded in plat

book 12 page 133 in the Register’s Office of Polk County Tennessee (ROPC) and on the west

by lands of Orr as described in deed book 34 page 445, (ROPC).”

Points to Remember:

1. This kind of description can be expensive to survey because it often requires the

surveyor to survey an adjoining tract.

2. This type of description is best used to describe a senior not junior tract. Juniors

Should refer to seniors not seniors to juniors.

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BOUNDS:

A type of description that calls for an adjoiner of adjoining parcel (record monument) on each side of the parcel described. It is a referral description

ORR34/445

TELLICO RIVER

LOT 15MAGNOLIA LEA

HW

Y. 1

01

SUBJECT TRACT

Aliquot Parts: Describing land by section, quarter section and quarter-quarter section.

The Land Ordinance of 1785 provided for the sale of all lands of the United States in the

western territories. Land was to be divided into sections one mile square. The sections were

further divided into quarter sections. Land was then sold by referring to the portion of the section

being sold. This form of description is concise, unambiguous, and there is no duplication

elsewhere because each description depends on a unique principal meridian.

Here is an example of an Aliquot description:

“Being in Township 3 South Range 7 West of the Huntsville Principal Meridian and being the

northeast quarter of the northwest quarter of the northwest quarter of section 27.”

Points to Remember:

1. This type of description is dependent on a correct breakdown of the section.

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2. Complicated descriptions are best analyzed by reading them backwards.

ALIQUOT PARTS:

Describing land by section, quarter section and quarter-quarter section.

NE ¼

SE ¼SW ¼

NW ¼

Lot and Block Descriptions: These types of descriptions are based on a drawing or plat and

reference to that plat usually recorded in the public record.

Here is an example of a Lot and Block description:

Being Lot 7 of Block "D" as shown on the plat of Brown Acres recorded in plat book 17 page 33

in the Registers Office of Polk County

1. This type of description includes all the evidence that is on the face of the plat.

2. Trying to describe land both by lot and block and metes and bounds can and often

does cause conflicts and confusion.

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LOT AND BLOCK DESCRIPTIONS:

These types of descriptions are based on a drawing or plat and reference to that plat usually recorded in the public record.

BROWN ROAD

1 2 3 4 5 6 7

891011121314

7

"Of" Descriptions: Land described as part of another larger parcel of land.

Here are some examples of "Of" descriptions:

"The westerly 50 feet of lot 2", The south 3 acres of lot 7", "The east half of lot 10"

Point to Remember:

1. These descriptions are often used when no survey is done and no monuments are set

and can lead to confusion.

2. Disputes often arise when the meaning of the portion described is being determined.

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"OF" DESCRIPTIONS:

Land described as part of another larger parcel of land.

LOT 2

50’

LOT 7

3 ACRES

Strip descriptions: Describing land, usually a road or utility line, by describing the center line of

the strip of land.

Here are some examples:

"A right of way for a road easement over and across a strip of land lying 30 feet on each side of

the following described center line:"

Points to remember:

1. The line is often stationed from the beginning point called 0+00.

2. Care should be taken when the strip ends on a diagonal. When this happens the

verbiage for the side lines should be included to eliminate gores and overlaps.

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STRIP DESCRIPTIONS:

Describing land, usually a road or utility line, by describing the center line of the strip of land.

30’

30’

DESCRIBED LINE

 

 

Writing legal descriptions When writing a legal description the scrivener needs to have some basic competencies in order

to preform their job.

1. A working knowledge of the mathematics of surveying

2. A good understanding of the legal meaning of the words and phrases used in a

description

3. Understand how courts and surveyors deal with conflicts in descriptions

4. Understand the limitations of measurements and the difference in accuracy and

precision

5. Understand local history and customs and prior survey methods.

When preparing a legal description the scrivener needs to be clear, concise and complete. Here

is a portion of a description that could benefit from these simply rules. Some problem spots

have been underlined.

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“ thence leaving the said road right-of-way line and the said property line and with the

said southwest right-of-way line of the location N70°25'59"W, 166.64 feet to a point

diametrically opposite an angle point in the centerline of the location at survey station

93+86.11; thence with the south right-of-way line of the location N79°07'14"W, 38.11

feet to a point on the property line between William Cothran and Frances Diane Henry

Shurley Carr; thence leaving the said south right-of-way line of the location and with the

said property line N38°13'00"E, 48.78 feet to a point, the said point being 6.67 feet right

of the centerline of the location at survey station 93+66.60; thence continuing with the

said property line N42°24'00"W, 94.78 feet, crossing the centerline of the location at

survey station 93+57.7 (11.16 feet), to a point on the north right-of-way line of the

location;”

The use of the term “said” is fine but is a little overused and tedious here. The description here

is of a transmission line easement and using the term “location” as a description of the entire

right-of-way obtained and adds verbiage that really doesn’t mean anything. What exactly does

the word “diametrically” mean here? How do two points located diametrically from one another

relate? Look at the call for the common property line between Cothran, Henry and Carr. Adding

title identity (calls for adjoiners) is always a good thing but the deed that describes that line need

to be included. This gives a future surveyor the advantage of know exactly what line and at what

time the scrivener was referring to. What does the parenthetical distance of 11.16 feet mean? It

can be assumed but that’s not how a good description should be constructed.

The test of the sufficiency of a description has been well recognized by many courts.

"[t]he test is whether a surveyor with the deed before him and with or without the aid of extrinsic

evidence can locate the land and establish the boundaries." Wallace v. McPherson, 187 Tenn.

333, 340, 214 S.W.2d 50 (1947)

In 26A C.J.S. Deeds § 51 (2011) we find the following:

“Generally, any description in a conveyance of the property is sufficient if it identifies the

property, or if it affords the means of identification, as by extrinsic evidence.

Courts are reluctant to declare instruments void for an uncertain description and will look

to attendant facts to make them certain. The sufficiency of a description in a deed is not

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to be measured by any inflexible rule or sets of rules. While it has been held that the

function of a description of the property in conveyances is to identify the land covered by

the conveyance, it has also been stated that the office of a description is not to identify

the land, but to afford a means of identification.

Generally, therefore, any description is sufficient by which the identity of the premises

can be established, or which furnishes the means of identification, of the property

covered by the deed or which it was intended to convey thereby with reasonable

certainty, and without the exercise of arbitrary discretion. A conveyance is also good, if

the description can be made certain within the terms of the instrument. A description

from which a surveyor can locate the land and by means of which the surveyor is able to

establish its boundaries, or by which a party familiar with the locality is enabled to

identify the premises intended to be conveyed with reasonable certainty, is sufficient. A

deed will not be held void for uncertainty of description if by any reasonable construction

it can be made available. A court will declare a deed void for uncertainty of description

only where, after resorting to oral proof or after relying upon other extrinsic or external

proof or evidence, that which was intended by the instrument remains a mere matter of

conjecture, or where the description cannot be made applicable to but one definite tract.

The description of property need not be determined by reference to the deed alone.

Extrinsic facts pointed out in the description may be resorted to in order to ascertain the

land conveyed, and the property may be identified by extrinsic evidence. Although such

extrinsic evidence must be sufficient to establish the identity of the land sought to be

conveyed, it must not add to, enlarge, or in any way change the description contained in

the conveyance, and the writing itself must furnish the hinge or hook on which to hang

the aid thus afforded, without resorting to any secret or undisclosed intention of the

parties thereto.

If part of the description is proved inconsistent on being applied to the premises, it does

not vitiate the deed if a sufficient part of the description remains for purposes of

identification or where the grantor's intent is apparent. However, if the deed contains

inconsistent descriptions either of which is sufficient to identify different parcels of

property, and there is nothing to show the grantor's intention, the deed is void for

uncertainty. Where all the particulars in a description are essential, the description in the

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deed must agree with every particular, or nothing will pass, but where they are not all

essential, and it does not so agree, if it is sufficient to identify the estate granted, the

deed is good.” (See also ABN AMRO Mortgage Group, Inc. v. Southern Security Federal

Credit Union 372 S.W. 3d 121 2011).

The scrivener needs to keep in mind that the document needs to be constructed by the “four

corners rule” and that extrinsic evidence is only allowed to clear up latent ambiguities. Evidence

outside the deed can only be applied to clear up problems and can not supply the description.

The Kentucky courts have said:

“Where the language employed in a deed is uncertain in its meaning, it is proper to

consider the nature of the instrument, the situation of the parties executing it, and the

objects which they had in view. Davis v. Hardin, 80 Ky. 672; Tanner v. Ellis, Ky., 127

S.W. 995. Furthermore, the subsequent acts of the parties, showing the construction

they have put upon the agreement, may be looked to, and are entitled to great weight in

determining what the parties intended. Jacoby v. Nichols, 23 Ky.Law Rep. 205, 62 S.W.

734; District of Columbia v. Gallaher, 124 U.S. 505, 8 S.Ct. 585, 31 L.Ed. 526; Wilson v.

Marsee, 166 Ky. 487, 179 S.W. 410. However, in the instant case we can find no

ambiguity in the deed. The words "that that one-fifth of the mineral" clearly refer to the

coal. As stated in Volume 3 of the American Law of Property, page 384:

"Where the language of a deed is plain and unambiguous, evidence of surrounding

circumstances, although proper in an action to set aside a deed, will not be considered

for the purpose of construction. But as a means of solving ambiguities, the courts will

consider all the attendant circumstances as to situation of parties, relationship, object of

conveyance, person who drew the deed, and all surrounding situations which may throw

light on the meaning which the parties attach to ambiguous or inconsistent portions of

the instrument." Sword et al v. Sword et al 252 S.W.2d 869 (1952)

In the case of Hoheimer v. Hoheimer 30 S.W. 3d 176 (2000) the Kentucky courts further said:

“Extrinsic Evidence

The trial judge was clearly erroneous in admitting extrinsic evidence to vary the terms of

a series of unambiguous deeds of conveyance. An examination of the deeds in question

does not indicate any intent other than to convey a fee simple interest. There is nothing

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in any of the deeds that could be considered ambiguous. Extrinsic evidence cannot be

admitted to vary the terms of a written instrument in the absence of an ambiguous deed.

Sword v. Sword, Ky., 252 S.W.2d 869 (1952). Thus, it was improper for the trial judge to

consider any evidence to vary the clear language of the deeds.

There is no language in the deeds indicating the reservation of a life estate. Clearly,

there is nothing in any of the deeds to suggest any intention other than the conveyance

of a fee simple interest. The intention of parties to a written instrument must be gathered

from the four corners of that instrument. Cf. Riley v. Riley, Ky., 266 S.W.2d 109 (1954).

The interpretation by the trial judge of the intention of the parents/grantors is not

supported by any competent evidence.”

So how best can a description be fashioned that is clear, concise and complete? The first step

is to understand that courts and experienced surveyors will look to measurements as a last

resort when defining boundaries. As a general rule courts will look first to senior rights then

monuments and lastly to measurements. The monuments the court will look at, in descending

orders are natural monuments, artificial monuments and then record monuments (adjoiners).

Calling for adjoiners can eliminate gaps in property and provide for a way to reconcile

inconsistences in measurements.

When writing a description it is best to first describe the property without measurements then

insert measurements only after the qualitative portion is complete.

Public Easements

Public easements for utilities and roads are usually easements in gross and are created by

express grant. Due to the fact most public easements are for roads, sewers, transmission and

utility lines the vast majority of these description are strip descriptions. These descriptions are

often prepared by local agencies and design firms that may or may not have land surveyors on

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staff. This can often lead to some descriptions that are difficult to lay out in the field.

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These two drainage easements are meant to be side by side and are bounded on the north by a

major road and on the south by an alley way. The descriptions only show the bearings and

distances and the common line between the two don’t match either of these. In order to know

the two descriptions tie and that the common line exists will take extra research and work on the

part of the surveyor tasked with establishing this in the field. Compare that to the following

easement drawing and description.

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Tract A

Commencing at a concrete monument at the southeast corner of the McConnell tract as

described in deed book 1647 page 810, thence along the McConnell tract N62⁰00’47”W, 48.16

feet to the southwest corner of the McConnell tract and the point of beginning.

Thence leaving the point of beginning and normal to the center line of an unopened alley,

S27⁰53’22”W, 7.33 feet to a point; thence along the center of the unopened alley N62⁰06’38”W,

52.50 feet to a point in the east line of land conveyed to Smithers (now Chastain) in deed book

106 page 333; thence N23⁰59’41”E, 7.44 feet to the southwest corner of the Finnell tract as

described in deed book 361 page 406; thence along the line of Finnell S62⁰00’47”E, 53.00 feet

to the point of beginning and containing 389.16 square feet, more or less.

Tract B

Beginning at a concrete monument at the southeast corner of the McConnell tract as described

in deed book 1647 page 810; thence normal to the center line of an unopened alley,

S27⁰53’22”W, 7.25 feet to an iron rod; thence along the center of the unopened alley

N62⁰06’38”W, 48.16 feet to a point; thence N27⁰53’22”E, 7.33 feet to the southwest corner of

the McConnell tract as described in deed book 1647 page 810; thence along the line of

McConnell S62⁰00’47”E, 48.16 feet to the point of beginning and containing 351.15 square feet,

more or less.

Tract C

Commencing at an iron rod at the northwest corner of the Murray tract as described in deed

book 1654 page 64, thence along the north line of Murray S62⁰23’24”E, 50.23 feet to the

northeast corner of the Murray tract and the point of beginning.

Thence leaving the point of beginning and normal to the center line of an unopened alley,

N27⁰53’22”E, 7.99 feet to a point; thence along the center of the unopened alley S62⁰06’38”E,

45.85 feet to an iron rod; thence continuing along the center of the aforementioned alley

S62⁰06’38”E, 4.76 feet to a point; thence S28⁰47’10”W, 7.75 feet to a point in the north line of

the Maize tract as described in deed book 390 page 758; thence along the line of Maize

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N62⁰23’24”W, 50.49 feet to the point of beginning and containing 397.93 square feet, more or

less.

Tract D

Beginning at an iron rod at the northwest corner of the Murray tract as described in deed book

1654 page 64; thence normal to the center line of an unopened alley, N27⁰53’22”E, 8.24 feet to

a point; thence along the center of the unopened alley S62⁰06’38”E, 50.24 feet to a point;

thence S27⁰53’22”W, 7.99 feet to the northeast corner of the Murray tract; thence along the line

of Murray N62⁰23’24”W, 50.23 feet to the point of beginning and containing 407.78 square feet,

more or less.

Tract E

Beginning at an iron rod at the northwest corner of the Murray tract as described in deed book

1654 page 64; thence along the Hall tract as described in deed book 376 page 343

N51⁰50’45”W, 4.13 feet to an iron rod; thence along the east of land conveyed to Smithers (now

Chastain) in deed book 106 page 333, N23⁰59’41”E, 7.52 feet to the center line of an unopened

alley; thence along the center of the unopened alley S62⁰06’38”E, 4.57 feet to a point; thence

S27⁰53’22”W, 8.24 feet to the point of beginning and containing 33.90 square feet, more or less.

The basis of bearing for the tracts described herein is the record bearings as recorded in deed

book 92 page 66.

This set of easements have ties to monuments and establishing the title identity of the described

easements.

When a public entity has to obtain easements it is often for a large project that stretches across

several tracts and the focus is generally on the design and construction of the facilities itself.

Because of this obtaining easements and descriptions are often viewed as another engineering

function and are treated that way. This can lead to a unique set of problems that may not

become apparent until years after the project is complete. This can be avoided by proper

research, reconnaissance and field ties.

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In 1912 A.C. Mulford put measurements in perspective in his book “Boundaries and

Landmarks”:

“…when it comes to a question of the stability of property and the peace of the community, it is far more important to have a somewhat faulty measurement of the

spot where the line truly exists than it is to have an extremely accurate measurement of the place where the line does not exist at all.”

DO

Be Clear – Using legal words in a description is an excellent practice but make sure the

description doesn’t sound like the IRS tax code. The description should flow, be concise and

easy to follow.

Check Maps – Review the maps that are used prior to starting the description. If something that

is needed is missing call the surveyor. Often the needed data is a quantity that a surveyor can

easily derive from the map provided.

Know the legal meaning of words – At the very least any words that may have a questionable

meaning should be checked with a dictionary such as Black’s. It is also wise to understand

some basic geometry. Here is an example of words that are often used that are thought to be

synonymous but may not be:

Adjacent vs adjoining - Lying near or close to; contiguous. The difference between

adjacent and adjoining seems to be that the former implies that the two objects are not

widely separated, though they may not actually touch, while adjoining imports that they

are so joined or united to each other that no third object intervenes. People v. Keechler,

194 111. 235. 62 N. E. 525; Ilanifen v. Armitage (C. C.) 117 Fed. &45; McDonald v.

Wilson. 59 Ind. 54; Wormley v. Wright County, 108 Iowa, 232, 78 N. W. 824; Hennessy

v. Douglas County, 90 Wis. 129, 74 N. W. 9S3; Yard v. Ocean Beach Ass’n, 49 N. J. Eq.

300, 24 Atl. 729; Henderson v. Long, 11 Fed. Cas. 10S4; Yuba County v. Kate Hayes

Min. Co., 141 Cal. 3G0, 74 Pac. 1049; United States v. St. Anthony It. Co.. 192 U. S.

524, 24 Sup. Ct. 333, 48 L. Ed. 54S. But see Miller v. Cabell, 81 Ky. 184; In re Sadler,

142 Pa. 511, 21 Atl. 978.

Know what controls – The ultimate goal of a description is to express the intent of the grantor

and to a lesser extent the grantee. Measurements are just one form of evidence that can

express this and often not the best. When a conflict arises measurements are most often used

as a last resort to determine intent. This will be covered further later on.

Note the bearing basis – There are several ways to define north. The method used should

always be noted in a description to make it complete and useful for future surveyors.

Include deed references for adjoiners – This allows for future boundary research to be done

quickly and ties the description to a specific time period. Surveys are done in four dimensions-

X,Y,Z, and time.

Tie to monuments of record – Tying a description to a “point” or an object not of record will only

lead to future disputes.

Include title identity – This goes hand in hand with including deed references. Calls for adjoiners

are calls to record monuments.

Write the qualitative portion first – This is perhaps the most important. The property should be

described first without measurements. Only after the property is described as a unique parcel in

qualitative terms should measurements be added. Experienced scriveners know this and can do

this all in one step.

Proof the description – Always have someone read the description to make sure the correct

intent has been communicated.

Check tangency of curves – A tangent curve can be described using only two elements. A non-

tangent curve requires at least three curve elements. Including a chord bearing and distance is

good practice it the scrivener is unsure of the tangency of curves.

Don’t

Mix figures and lot numbers – Be careful how numbers are grouped. Bearings, distances and lot

numbers can be confusing if they are listed in a confusing or inconsistent manner.

Use excess words- As in any good writing less is more. Proof read the description and cut out

unnecessary words.

Use multiple incompatible ties – If more than one tie to external monuments is used make sure

they do not conflict.

Use reference to quasi-public records – If a reference to a document is used it should be

available in the public record.

Create conflicting conditions- This is an extension of using multiple incompatible ties. A good

example is don’t describe a tract by reference to a lot number on a recorded plat then provide a

metes and bounds description also.

Rewrite a functioning description – Every time a tract is surveyed the measurements will differ

somewhat. This is not a valid reason to rewrite the description. Measurement exist in a deed to

aid in finding the evidence on the ground. If the physical evidence doesn’t change don’t rewrite

the description except in the case of a gross discrepancy between the found and written

evidence. A new description can also be prepared to correct an error in the record or to clear up

ambiguities in poorly written or vague documents.

Use the word “either” in a strip description- When describing a strip around a center line it is

correct to say “A strip of land lying 25’ each side of the herein described center line”. Another

good way is to describe the line as located “symmetrically” about the center line. Another

common mistake is to describe a line as “parallel to” another line, it is “parallel with” not “to”.

Use the word “due”- Due north is often used but what is “due north”? Is it magnetic, astronomic,

grid? The term as various meanings.

Use “front” or “rear” – This is relative to the observer’s point of view. Descriptions should be

written with the thought in mind someone fifty years from now will be reading it and terms that

depend on the viewpoint of the observer should be avoided.

When writing a description it is best to first describe the property without measurements then

insert measurements only after the qualitative portion is complete.

 

 

Parol evidence is often overlooked and even misapplied. It cannot change the intent of a deed, just clarify ambiguities. This type of evidence is often missed as we will see in the case of U.S. V. Citko. Parol evidence is applied to the description but cannot supply the description. When reading a description intent is king.

 

The land being surveyed exists on the ground, the description is just evidence. It points to items and evidence the surveyor must dig for to make a proper retracement.

 

 

 

Justice Cooley gave this lecture at a meetng of engineers and surveyors in Michigan about twenty years after the GLO had finished their work in the area. Notice he points out that formal education alone doesn’t make someone a surveyor. Education may teach someone “how” to measure but not “what” to measure. Just knowing how to measure doesn’t make someone a surveyor, especially in today’s high tech world. Only experience can teach an aspiring surveyor what to measure. Note also he actually seems to scold the gathering of surveyors for not knowing what their true responsibilities are in relation to retracements and evidence.

 

 

In 1912 A.C. Mulford wrote “Boundaries and Landmarks, A Practical Manual”. This classic text is so important it has been used at many firms as a primer for young surveyors, including my own business. Here he points out what many surveyors fail to grasp, measuring the wrong line

with great precision is of no use whatsoever. Once again knowing how to measure but not what to measure is the root cause of most faulty surveys. Surveying the wrong lot to a precision of say 1’:500,000’ may be impressive measuring but says little for ones ability to gather and analyze evidence.

 

 

Plato was no surveyor but this is excellent advice. A true professional understands the subletities of their profession. A true practitioner of any profession understands the relationships between the quantative and qualitiative aspects of their vocation and how it relates to the rest of society. This is one difference between a professional and a technician.

 

Henry David Thoreau worked as a surveyor for a significant portion of his life. He was better known for his surveying than his writings during his lifetime. He understood what Plato taught, that simply placing measurements on the ground was not the true calling of a surveyor. A

surveyor is at his or her core an analyst. He points out why society needs us and needs us to do our job. Owners want what gives them the most land, we as surveyors understand what the law requires.

 

 

Boundaries exist outside measurements. Measurements in a deed are there primarily to aid in the search for evidence on the ground. Measurements are primarily directive in nature and only become locative as a last resort. A good friend once said “If I have to resort to the measurments in a deed to replace a boundary I feel as if I have failed as a surveyor”.

 

We are to be experts in measurement. This means knowing what measurements are and what their limitations are when applied to the boundary being retraced. Please don’t think I believe in sloppy measurement technique, I don’t. Nothing is more aggravating that sloppy work or a surveyor that can’t function in the field without a laptop or data collector. Keep in mind also that

we survey in four dimensions, the fourth being time. This is a theme that we will study later. To be a surveyor is to be an analyst of both quantative and qualitative data. To be just an “expert measurer” is to just be be a partial surveyor.

 

Notice numbers one through three. This is where the professional surveyor must apply his knowledge. Remember what Plato said, good decisions are based on knowledge not numbers.

 

The first three are evidence driven. It would appear the new ALTA standards are saying a surveyor’s knowledge of evidence and its evaluation are 75% of the battle when retracing boundaries.

 

Here on the final slide concerning the ALTA standards look at the statement that I have made bold, this is exactly what Mulford said over one hundred years ago. This is what Cooley, Plato and Thoreau also eluded to.

 

Here is a statement from a recent article in P.O.B.. Measurements are just one type of evidence and as we will see the courts consider them the least reliable

 

Here are some comments the public made after a recent highly publisized allged survey error. Notice the “fence builder” is seen as an expert measurer by the public. With today’s technology soon anyone can be an expert measurer. If that’s all we can offer the public we will soon be out of business. Do you think the writer would consider the surveyors primitive if they showed up with a knotted rope and Boy Scout compass? Notice the second writer asks about why a surveyor would look for landmarks like trees. Yet another reason the public needs our skills.

 

The second writer thinks a surveyor needs no evidence whatsoever. Perhaps the profession has fostered this attitude. This is why society needs us to be surveyors and not just measurers. We should be much more than just measurers, we should be experts at evidence analysis.

 

 

 

 

885 F.Supp. 727 (1995)

NEWFOUND MANAGEMENT CORPORATION, GENERAL PARTNER OF NEWFOUND LIMITED PARTNERSHIP, Plaintiff,

v. Irvin A. SEWER, Cedric Lewis, Lucinda Anthony, Earle Sewer, Violet

Sewer, Jasmine Sewer, Lorel Sewer, Judith Callwood, Leon Callwood, Lorne Callwood, and Persons Unknown Who Have Attempted to

Obstruct Construction Work on Plaintiff's Land, Defendants.

Civ. No. 91-315.

District Court, Virgin Islands, Division of St. Thomas and St. John.

March 27, 1995.

I. GENERAL SURVEYING PRACTICES

A. Background Research

The court will first set forth basic principles of surveying based on its review of relevant treatises and case law as well as the expert testimony offered at trial by the parties.[21] A surveyor should strive first to locate and examine all historical records, deeds, prior surveys, maps and drawings in preparation for conducting an original survey. See, generally, CURTIS BROWN ET AL., BOUNDARY CONTROL AND LEGAL PRINCIPLES 371-74 (3rd ed. 1986) [hereinafter "BOUNDARY CONTROL"]; WALTER G. ROBILLARD & LANE J. BOUMAN, CLARK ON SURVEYING AND BOUNDARIES § 4 (5th ed. 1987) (hereinafter CLARK ON SURVEYING) If the surveyor is not performing an original survey then the surveyor must also carefully review the original survey, as well as subsequent surveys or drawings.[22] The purpose of thoroughly researching the history of a parcel of land is to ensure that the surveyor will be able to incorporate the most complete and accurate data into his or her survey. If a surveyor does not complete such research, the surveyor might perform the survey without having the benefit of essential information. For instance, the surveyor might not adequately search for crucial monuments or might misinterpret other field or documentary evidence. BROWN, BOUNDARY CONTROL at 371. In addition, if a surveyor knows that his or her survey will be used in a particular manner, a surveyor should review relevant documents and field surveys of adjacent parcels of land to ensure that his or her particular survey will be reliable and consistent with other existing surveys, so as to discourage litigation. Id. at 374.

B. Field Surveys

After a surveyor has completed a comprehensive review of all available records, deeds and prior surveys, the surveyor begins the field survey. Once in the field, the surveyor has a duty to make a diligent search for all monuments referenced directly or indirectly in the deed or property description that either occur naturally or were put in place by prior surveyors or other persons. Id. at 371. 748*748 Monuments have special significance because monuments indicate the location of property at issue on the ground. The search for monuments must continue until the monuments are located or until there is an explanation for their absence. Id. at 372. If necessary, the surveyor should consult former surveyors, landowners, residents, or other knowledgeable parties to determine monument sites or obtain other information tending to show where a piece of property should be located. Id. Testimony of neighbors and informed residents concerning boundaries is an important source of information for resurveys. As stated in one treatise, "[a] diligent, thorough, and complete search for all evidence is the fundamental essence of land surveying." BROWN, BOUNDARY CONTROL at 372. Through these investigative efforts, the surveyor attempts to reach his or her goal: the "location of land boundaries in accordance with the best available evidence" even though the best evidence may be "mere hearsay or reputation." Id. at 372-3; see Part II(B) infra on determining the order of importance of conflicting descriptive elements in a conveyance.

C. The Centrality of the Original Survey

Since the physical position of monuments referenced in a conveyance reflect the original boundaries of a particular parcel, a subsequent surveyor must attempt to conform his or her survey as closely as possible to the prior surveyor's work. Hence treatises and courts frequently recite an admonishing maxim, namely that a surveyor must follow in the footsteps of the original surveyor. See Rudolph Galiber's Testimony (Tr. 1B, p. 35.), Marvin Berning's Testimony (Tr. 2, p. 112-114). The purpose and result of this principle is to give effect to the intentions of the parties at the time of the survey as well as ensuring the continuity of boundaries over time. Accordingly, "[t]he general rule governing the determination of boundary lines by resurvey is that the intent of the new survey should be to ascertain where the original surveyors placed the boundaries," not to determine new modern boundaries. (boundary dispute involving 135-year-old survey resolved by the court's attention to totality of the evidence including evidence of the parties' intentions).

II. DETERMINING THE INTENT OF PARTIES TO A CONVEYANCE

While a surveyor must aspire to walk in the exact steps of an original surveyor, sometimes a surveyor may be unable to find monuments placed by the original surveyor because the monuments may have been obliterated or lost. When a surveyor is unable to follow the precise "footsteps" of his or her predecessor, then a surveyor must attempt to track the original surveyor's work using whatever recoverable evidence that exists. See, generally, ROBILLARD, CLARK ON SURVEYING § 14 (section on tracking a survey); 11 C.J.S. § 61. Ultimately, a surveyor may only be able to "say with a great degree of certainty, `this is where the surveyor walked.'" See, BROWN, BOUNDARY CONTROL at 294.

A. Original Survey Lines or Lines of Possession?

When a surveyor has difficulty retracing the original surveyor's steps, either because field evidence is missing or conflicting, certain principles guide his or her evaluation of existing field evidence. First, because original lines control other information contained in the conveyance, a surveyor should determine whether or not a line of possession, such as a fence, marks the location of the original survey line. See ROBILLARD, CLARK ON SURVEYING § 16.17. For instance, if the possession line is marked by an old boundary fence erected at approximately the same time as the original surveyor ran the lines, the fence may memorialize the survey line itself. BROWN, BOUNDARY CONTROL at 372. A surveyor's determination that a line of possession corresponds with an original survey line should be made according to the best evidence available which may include testimony of residents and the evaluation of the age of fencing or other natural monuments. Id. In addition, where surveyors disagree on the location of property lines and where a true 749*749 survey line may be uncertain, monuments, such as fences which mark a possession line and which were established soon after the original survey, will control. Id. at 89 and 93.

In the context of a surveyor's inability to locate original monuments or the original survey lines, lines of possession may become significant precisely because they give effect to the conveyer's intentions. This is particularly true when a conveyance contains a written statement describing these intentions. Accordingly, where a deed contains such a recitation of the parties' intentions, a surveyor should compare all of the conflicting descriptive elements, such as lines of possession, monuments, and acreage, and give the most weight to the element or elements which best effectuates the intentions of the parties to the deed. See BROWN, BOUNDARY CONTROL at 82.

List at list three things that stood out as important to the court that are new ideas for you:

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

 

 

 

 

 

 

 

 

 

Evaluating Boundary Evidence

Locating Boundaries: Surveyors are at their very core analysts. Locating a boundary on the

ground is a function of several things including document research, historic research, gathering

field evidence, and careful analysis. When surveyors find themselves in an embarrassing

position in court it is often because they haven’t performed up to the courts expectations. Here

is a portion of a case where the court outlines what it expects from a surveyor. Please read this

portion of the case and make note of the courts expectations:

 

 

 

Read the whole deed and understand it works as a unit. The words between the bearings and distances are most important. Remember the deed is to be read and understood within the confines of time.

 

Rules of construction only come into play in the event of an ambiguity. If the intent is clear within the four corners of the document no construction is necessary. Surveyor would do well to understand Ockham’s Razor-All things being equal the simplest answer is probably correct. (my paraphrase).

 

Surveyor’s need to work hard to make a deed function within itself before applying rules of construction.

 

This is the most important word in a deed. “North 32 degrees East, 112.47 feet TO a 12” hackberry” is the call you are dealing with. The only thing that matters is everything after the word “TO”. The rest of the call is just an aid to find the evidence of the true boundary. Here is an uncomfrontable truth, if the hackberry is gone ask the residents (parol evidence) before just laying out the distance.

 

Record Evidence

Document research is one of the most important steps in any survey. It is at this point

that every surveyor begins “following in the footsteps” of his or her predecessor. When the

research process begins the surveyor should keep in mind the ultimate goal is to replace

boundary corners back in their original location, even if this is in conflict with the measurements.

Surveyors fall into two broad categories when it comes to retracement. The first are the

surveyors that simply reproduce measurements on the current deed. The second category of

surveyor takes into account all the qualitative evidence related to the survey. These include

items such as possession, occupation, original intent, etc. The first type of surveyor can literally

wreak havoc on a community. The second type of surveyor realizes his or her responsibility and

acts accordingly, and it all begins with research.

One of the most overlooked principals when doing document research is the fact

surveyors should go back to the documents that created the parcel. This only makes sense. If

the ultimate goal is to recreate the footsteps of the original surveyor, then one must fully

understand the conditions of the original survey. The first step in this process is to obtain a copy

of the documents that created the parcel along with the adjoiners data. The following is an

outline of the document research process. This includes all documents and plans called for or

discovered that have some bearing on the survey at hand.

1. Obtain cadastral mapping for the area

2. Obtain deed references back to the deed that created the subject tract.

3. Obtain adjoiners deed references back to the creation of the adjoining tract.

4. Obtain deeds and place all of them in chronological order.

5. Plot two deed mosaics, one of the current deeds (including adjoiners) and one of the

deeds as they existed when the tract was created.

6. Place pertinent deed data in a database or spreadsheet.

The simplest way to get organized and begin researching is with a cadastral (tax) map.

This map will show the parcels with roads, above ground utilities, etc. As a general rule most

deeds have a reference to the tax parcel identifier on them. The tax map is also a good place to

record deed references. Simply list the references in a column, on the subject tract, starting with

the current deed and going back to the creating deed.

It is very important to obtain the deed that created the parcel being surveyed. Many

surveyors neglect to do this. This is perhaps the most important step. Once it is determined

when the parcel was created then it’s a good idea to obtain all adjoining deeds for the same

time period. Once again all of this is done with one simple goal in mind-to follow in the footsteps

of the original surveyor. It cannot be expressed strongly enough, a surveyor doesn’t simply

recreate measurements, he or she must recreate history. It is the retracing surveyors’ job to

recreate exactly what the original surveyor did, even the mistakes.

Surveying is often viewed as a three dimensional process but it’s actually four

dimensional. Not only is a surveyor concerned with length, area and volume, but the

retracement surveyor must be concerned with time. It is for this reason that all document

research should be placed in chronological order. Many times problems can quickly be solved

simply by examining dates. Anyone who has been through a deposition realizes how important

dates are to attorneys, they should be equally important to surveyors.

After obtaining the required deed work a deed mosaic should be made. A deed mosaic is simply an

exact plot of the deeds, discrepancies and all. Bearings and distances should be labeled as well as

monuments called for. Adjoiners names, deed references and passing calls should also be listed. If the

surveyors has a way to generate approximate latitudes and longitudes for the corners this is also

helpful. This can be a real time saver when do field reconnaissance on large tracts.

MONUMENTS

There is a simple principle in surveying, he who finds the most pins, wins. The value of a

found, undisturbed, called-for monument can’t be overstated. Found original monuments are

without error, regardless of measurement evidence. That’s not to say there may not be

unwritten rights that must be dealt with. A surveyor should always be sensitive of occupation

and senior right issues. The majority of monuments found are uncalled for or replacement

markers. Quite often original monuments or their accessories exist they are just missed.

Even is a monument is missing it can still be controlling if it's original location can be

determined.

Scriveners are often lax when it comes to describing corner markers. Too often every

corner called for is an “iron pin” with no further description. Is the corner a pipe or rebar? What

diameter is it? Is it capped? What is its proximity to record information? There is a bad habit

among some deed writers to call for an iron pin at every corner, even if one was never set. Even

worse is the policy of calling every corner a “point”. This can often be an indicator that a survey

was never done.

Corners fall into three categories, existent, obliterated and lost. An existent corner is one whose

position can be identified either by finding the original marker or by its’ accessories. An obliterated

corner has no remaining trace of any monumentation or its accessories but the location can be

recovered. The location can be reestablished using parol evidence, acceptable record evidence, by a

replacement monument shown to be in the original location or by improvements put in place at a known

relation to the original marker. A lost corner is one whose position cannot be determined by the original

monuments or its accessories.

This is important. These are the two questions a court wants answered. The “what” only changes by deed (except in the case of adverse possession). The “where” can be determined by a surveyor or through a boundary establishment principle like acquiescence, agreement or estoppel. More on this later.

Plastic newspaper bags and bird droppings have both been evidence I have used to resolve boundary disputes. Evidence of boundaries lie in much more than numbers. The surveyor should know much more than just how to measure.

 

Evidence is not proof, it leads to proof. Evidence is useless until it is analysised and put into context, a surveyors job.

 

Remember what you, as a surveyor, do today will have to be retraced by someone 100 years from now. Leave the evidence you would want to see.

 

 

 

 

 

U.S. V. CITKO CORNER IN DISPUTE PILE OF ROCKS OR REPLACE BY MEASUREMENTS

SECTION 25, TOWNSHIP 37 NORTH, RANGE 15 EAST, FOREST COUNTY WISCONSIN

 

 

517 F.Supp. 233 (1981)

UNITED STATES of America, Plaintiff, v.

John and Florence CITKO, Defendants.

No. 77-C-292.

United States District Court, E. D. Wisconsin.

June 10, 1981.

234*234 Barbara B. Berman, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff.

Charles H. Barr, Menomonee Falls, Wis., for defendants.

235*235 MEMORANDUM AND ORDER

WARREN, District Judge.

In this civil action, plaintiff United States of America ("Government") seeks quiet title to several acres of land located in Forest County, Wisconsin. The Government is the owner of numerous parcels of land in Forest County. Defendants John and Florence D. Citko ("Citkos") own land adjacent to one of the Government's parcels of land. The dispute

between the parties is over the location of the quarter corner which marks the boundary between their adjoining parcels of land. A four-day court trial was commenced on January 19, 1981. This memorandum and order constitutes the Court's findings of fact and conclusions of law.

I. Background

The locations of the land owned by the parties is not in dispute. The Government is the owner in fee and is entitled to full possession of the following parcel of land:

The Southeast Quarter of the Southwest Quarter (SE ¼) of Section 24, Township 37 North, Range 15 East, in the County of Forest, State of Wisconsin, containing 40 acres, more or less, acquired by deed dated March 15, 1935, from Goodman Lumber Co., as U.S. Tract 740-B, recorded in the Office of the Register of Deeds for Forest County, Wisconsin, on March 27, 1935, in Volume 59 of Deeds, page 649.

The Southeast Quarter (SE ¼) of Section 24, Township 37 North, Range 15 East, in the County of Forest, State of Wisconsin, containing 160 acres, more or less, acquired by deed dated November 8, 1935, from Curtis-Jones-Sell Land Co., as U.S. Tract 15-C, recorded in the office of the Register of Deeds for Forest County, Wisconsin on November 16, 1935, in Volume 62 of Deeds, page 337.

The East Half of the Northwest Quarter (E ½ NW ¼) of Section 25, Township 37 North, Range 15 East, in the County of Forest, State of Wisconsin, containing 80 acres, more or less, acquired by deed dated December 2, 1936, from D. C. Hess, as U.S. Tract 870, recorded in the Office of the Register of Deeds for Forest County, Wisconsin, on December 2, 1936, in Volume 64 of Deeds, page 53.

The Citkos are joint owners in fee and are entitled to full possession of the following parcel of land:

The Southwest Quarter of the Northeast Quarter (SW ¼ NE ¼) of Section 25, Township 37 North, Range 15 East, in the County of Forest, State of Wisconsin.

The Northwest Quarter of the Northeast Quarter (NW ¼ NE ¼) of Section 25, Township 37 North, Range 15 East, in the County of Forest, State of Wisconsin.

The Citkos acquired their land on August 15, 1959 from Helen and George Kline.

The dispute here concerns the boundary between the western edge of the Government's land and the eastern edge of the Citkos' land. Specifically, the dispute is over the correct location of the quarter corner on the north line of Section 25, Township 37 North, Range 15 East, Forest County, Wisconsin.

In their joint final pretrial report, the parties set out the issue to be decided by the Court:

Whether the evidence of the original location of the quarter corner on the north line of Section 25, Township 37 North, Range 15 East, Forest County, Wisconsin, is insufficient to determine the location of said original quarter corner, thereby justifying restoring and

reestablishing the position of said quarter-corner by means of proportionate measurement between section corners as located from original evidence. (Joint final pretrial report, p. 2)

The Government contends that the location of the original quarter corner is lost. The Citkos maintain that the original quarter corner is not lost. They argue that witnesses' statements, the location of a rock mound, the location of a fence, and several pieces of documentary evidence can be used to establish its location.

II. Applicable Law

The guiding legal principles for locating and establishing quarter corners are not in 236*236 dispute. Title 43 U.S.C. § 752 provides, in relevant part:

The boundaries and contents of the several sections, half-sections, and quarter-sections of the public lands shall be ascertained in conformity with the following principles:

First. All the corners marked in the surveys, returned by the surveyor-general, shall be established as the proper corners of sections, or subdivisions of sections, which they were intended to designate;

. . .

Second. The boundary-lines, actually run and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary-lines of the sections, or subdivisions, for which they were intended, and the length of such lines, as returned, shall be held and considered as the true length thereof. * * *

Other than this statute, federal law sets forth no rules which help resolve this dispute. Where there is no controlling federal legislation or rule of law, questions involving ownership of land are determined under state law, even where the government is a party. United States v. Doyle, 468 F.2d 633, 636 (10th Cir. 1972), citing Mason v. United States, 260 U.S. 545, 558, 43 S.Ct. 200, 203, 67 L.Ed. 396 (1923). Therefore, the Court must turn to Wisconsin law.

Wisconsin law provides that resurveys of public lands must follow the rules established by the federal government. Section 59.62, Wis.Stats. (1979). The federal rules to be followed are contained in the Manual of Instructions for the Survey of the Public Lands of the United States (1973) ("Manual"). See Wisc. Atty. Gen. opinion, August 29, 1977. See also Doyle, 468 F.2d at 636-637 n. 4. The Manual has been supplemented by a pamphlet entitled, Restoration of Lost or Obliterated Corners and Subdivision of Sections (1974 edition) ("Restoration"). Both the Manual and Restoration were published by the United States Department of the Interior, Bureau of Land Management.

The original government rectangular surveys referred to in 43 U.S.C. § 752, platted public lands into townships, each comprised of 36 sections. Section corners, and quarter-section corners between section corners, were located and monumented. These original corners of townships, sections, and quarter-sections must stand as the true corners whether in the place shown by the field notes from the original survey or not. Restoration, supra, at 6.

The original survey as it was actually run on the ground controls. United States v. State Investment Co., 264 U.S. 206, 212, 44 S.Ct. 289, 290, 68 L.Ed. 639 (1924), cited in Doyle, 468 F.2d at 636. It does not matter that the boundary was incorrect as originally established. That the inaccuracy of an original survey will set awry the shapes of sections and subdivisions does not affect the conclusiveness of the survey. Doyle, Id. at 636.

A corner is either existent, obliterated or lost. The different classifications are defined in the Restoration as follows:

An existent corner is one whose position can be identified by verifying the evidence of the monument, or its accessories, by reference to the description that is contained in the field notes, or where the point can be located by an acceptable supplemental survey record, some physical evidence, or testimony. Restoration, at 9.

An obliterated corner is one at whose point there are no remaining traces of the monument, or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt, by the acts and testimony of the interested landowners, competent surveyors, or other qualified local authorities, or witnesses, or by some acceptable record evidence. Id. at 9.

A position based upon collateral evidence should be duly supported, generally through proper relation to known corners, and agreement with the field notes regarding distances to natural objects, stream crossings, line trees, and off-line tree blazes, etc., or unquestionable testimony. Id. at 9-10.

237*237 A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent corners. Id. at 10.

For a corner to be lost it "must be so completely lost that [it] cannot be replaced by reference to any existing data or other sources of information." Doyle, 468 F.2d at 637, citing Mason v. Braught, 33 S.D. 559, 146 N.W. 687, 689-690 (1914). The decision that a corner is lost should not be made until every means has been exercised that might aid in identifying its true original position. Restoration, supra, at 10. Even though the physical evidence of a corner may have entirely disappeared, a corner cannot be regarded as lost if its position can be recovered through the testimony of one or more witnesses who have a dependable knowledge of the original location. Manual, supra, Sec. 5-5. See also Clark, supra, § 281.

There is no clearly defined rule for the acceptance or non-acceptance of the testimony of individuals. It may be based upon unaided memory over a long period or upon definite notes and private marks. The witness may have come by his knowledge casually, or he may have had a specific reason for remembering. Corroborative evidence becomes necessary in direct proportion to the uncertainty of the statements advanced. Manual, supra, § 5-11.

III. Review of the Evidence

At trial, the Government presented three live witnesses and one deposition witness. The Citkos presented three live witnesses and three deposition witnesses. The Court received twenty-two exhibits by stipulation. Before making its findings of fact, the Court will review the testimony of the witnesses and the most relevant exhibits.

A. The Government's Case.

The Government's primary witness at trial was Gene Resvick, the United States Forest Service land surveyor who determined the claimed quarter corner was not the original quarter corner. Mr. Resvick gave a detailed explanation of the steps he took in searching for the original quarter corner. He stated he began his search by consulting the original field notes for the location of the disputed quarter-corner. Using those field notes, he and two assistants set out to find the two tamarack trees which the notes indicated marked the corner. They were unable, however, to locate the tamarack trees or any other signs of a corner at the location described by the original field notes.

In searching for the original quarter corner, Mr. Resvick and his assistants traveled to the site of the claimed quarter corner. There, Mr. Resvick found a rock pile and fence post just east of an old tramway. The rock pile, according to Mr. Resvick, was five to six feet long, three to four feet wide and 20 inches high. Despite having previously observed rock cairns, Mr. Resvick did not consider this rock pile to be a cairn.

Although the original field notes did not indicate that the original quarter corner was in the area of the claimed quarter corner, Mr. Resvick and his assistants spent over forty hours in that area searching for the tamarack trees which marked the original corner. During that search, Mr. Resvick found no evidence supporting the Citkos' claim. He found no discoloration of soil or depressions in that area. Nor did he find any stump evidence or other evidence of tamarack root patterns.

The lack of any physical evidence supporting the Citkos' claim was instrumental in Mr. Resvick's ultimate decision. Another instrumental factor was the location of a north-south fence on the sixteenth section line between the Citkos' property and their neighbor to the east. That line, which was set by a private surveyor in 1941, is midway between the northeast section corner and the spot where Mr. Resvick set the new quarter corner by single proportionate measurement.

238*238 Mr. Resvick's rejection of the Citko corner was based to a great extent on the lack of physical evidence at the claimed quarter corner and the location of the fence along the sixteenth section line. However, he also relied on maps, plats and other documentary evidence. The Government placed many of the documents into evidence at trial. Two of those documents merit discussion.

Exhibit BB consisted of a packet of notes taken by Civilian Conservation Corps workers in 1934 while they were locating section corners and quarter section corners. Each slip in the packet described a worker's summary of his search for a particular section corner or quarter section corner. The slips were designed so as to allow the person searching for the corner to state what the corner consisted of, its condition, its dimensions above ground, and the markings and location of bearing trees. The slips also asked whether the searcher believed

the corner to be a genuine Land Office Corner. On the back of each slip, the searcher was to describe the location and distance to the corner from a metal location poster placed to mark his work.

L. M. Gibson, the junior forester who filled out the slip for the quarter corner in question, did not state the condition, dimension or type of marker used to mark the corner. Yet, according to his slip, he located a genuine Land Office quarter corner which checked with the southeast corner of section 24. Mr. Gibson placed his metal location poster on a lone spruce tree on the west side of an old railroad grade. He did not state how far the metal location poster was from the corner, although he did state that distance on every other slip he filled out. Because Mr. Gibson did not identify a section corner marker or the distance from the corner to his metal location poster, Mr. Resvick concluded Mr. Gibson did not actually locate the original corner.

Another piece of evidence Mr. Resvick relied upon in making his decision was exhibit M, a plat of traverse used in the construction of highway 2159, the highway which lies 75 feet west of the claimed quarter corner. The map, which apparently was made in 1935, describes the area surrounding highway 2159. It shows a unverified quarter corner just east of the highway. It also states distances from the northern section corners "to tie." (According to the witnesses at trial, the phrase "to tie" could denote the distance to a tree, a rock, a road, another corner or some other identifiable object.) The distance listed on the traverse from the northeast corner to tie was 2837 feet. The distance listed from the northwest corner to tie was 2510 feet. Because the plat showed the quarter corner to be unverified, Mr. Resvick understood "to tie" to mean the distances between the section corners and highway 2159, and not the distances from the section corners to the claimed quarter corner or some other marker.

During his testimony, Mr. Resvick mentioned three considerations upon which he based his decision. First, Mr. Resvick believed the original quarter corner had been placed on the line between the section corners rather than 44 feet north of that line at the claimed quarter corner, because the distance between the located section corners was only 6.8 feet more than the distance listed in the original field notes. Second, Mr. Resvick concluded that the parties who drew up the map were unable to locate the corner because the road survey (exhibit M) indicated the section corners had been verified but the quarter corner had not. Third, Mr. Resvick concluded the claimed quarter corner was not used to determine the sixteenth corner because the fence running south from the sixteenth section corner was not midway between the claimed quarter corner and the northeast section corner.

The Government's second witness was Thomas Arnott, a surveyor hired by the Citkos in 1971 to help them convince the Government that the claimed quarter corner was the original quarter corner. Mr. Arnott's service for the Citkos was short-lived apparently either because he did not agree with their position or because he was not paid. Mr. Arnott testified he searched the area around the claimed quarter corner 239*239 and found no evidence of tamarack stumps or evidence that tamarack trees ever grew there. He also testified he attempted to locate the original quarter corner by using exhibit I, a 1935 right-of-way deed involving a strip of land along highway 2159. The right-of-way deed describes the measurements used to reach the quarter corner in question from U.S. Highway 8. Mr. Arnott followed the measurements and directions and, instead of arriving at the claimed quarter,

reached a point 160 feet east of the claimed quarter corner — a point exactly 100 feet north of the quarter corner set by Mr. Resvick. Having failed to find physical evidence to support the Citkos' position, and having failed to reach the claimed quarter corner by following the measurements on exhibit I, Mr. Arnott concluded there was insufficient evidence to establish the claimed quarter corner as the original quarter corner.

The Government's final witness was Victor Hedman, the Regional Land Surveyor for the United States Forest Service. Because Mr. Hedman was not involved in Mr. Resvick's field work, he could not testify as to Mr. Resvick's surveying techniques or conclusions regarding the claimed quarter corner. Consequently, his testimony is of no value in helping the Court determine whether the claimed quarter corner is the true corner.

The Government also submitted into evidence the deposition of Webster Intermill, the district ranger who supervised Mr. Gibson and the other civilian conservation corps workers who compiled the slips which constitute Exhibit BB. Mr. Intermill also supervised the construction of Highway 2159. The Court has reviewed his testimony and has found nothing in it to refute or support either party's position.

B. The Citkos' Case.

As their first witness, the Citkos presented Arthur Kadubek, a neighbor of the Citkos who has lived in that area of Wisconsin his entire life. Mr. Kadubek testified he first saw the rock pile at the claimed quarter corner in the early 1960's. In addition, he said there is a fence which runs easterly from highway 2159 past the claimed quarter corner to the sixteenth section corner. Finally, he testified there is an understanding in the community that fences are used as boundary lines and corners are set by stone.

John Citko was the next witness. He testified that he purchased his land in 1959. He said that the first time he saw the rock mound at the claimed quarter corner was when Mr. Resvick took him there to search for the quarter corner. In addition, he stated that the rocks which form the rock pile at the claimed quarter corner do not resemble the other rocks on his farm.

During his testimony, Mr. Citko also discussed the timing of his disclosure to Resvick of his witnesses. He said that during their first trip to the rock mound he did not tell Mr. Resvick he had witnesses and Mr. Resvick did not ask him if he had any witnesses. Mr. Citko said he first learned John Nuskiewicz would speak as a witness for him in 1968. He learned Frank Kowalkowski would be willing to speak as a witness prior to 1974. Although Mr. Citko knew both these men could speak as witnesses for him prior to 1974, he did not relate their names to Mr. Resvick until after he commenced this action in 1977.

The Citkos' final live witness was Norman Harrison, a land surveyor who also searched the area of the claimed quarter corner for evidence supporting the Citkos' position. Mr. Harrison testified he did some digging at the site of the claimed quarter corner and found some soil discoloration which could have resulted from disintegration of a wood post. It was his opinion that the rock pile had not been dumped at the claimed quarter corner site but had been constructed there. He also stated the rock mound did not resemble a second rock dump which was located one hundred feet south of the claimed corner. Based on his search

and the statements of defendants' witnesses, he concluded the claimed quarter corner is the original quarter corner.

On cross-examination, Mr. Harrison admitted he had never looked for root systems 240*240 at the locations where the bearing trees allegedly had stood. He also stated he never measured the distance between the fence and the section corners. Finally, he stated that his opinion that the claimed corner site was the true corner was based largely on the living witnesses' testimony. He said his opinion would be affected if their statements were found to be questionable.

The Citkos also introduced the deposition testimony of three individuals into evidence. Their first deposition witness was Joseph Cichonski, the owner of the farm to the east of their farm. He testified that, to the best of his recollection, the fence that runs over the claimed corner to Highway 2159 was constructed in 1937. He also said that the fence along the border between his property and the defendants' property was built in 1941 or 1942 after a local surveyor had determined the location of the sixteenth corner. The fence replaced a fence erected in 1931 or 1932. According to Mr. Cichonski, the 1931 fence was located approximately thirty feet to the west of the 1941 fence. Mr. Cichonski also testified that the United States Forest Service set a sixteenth corner at a location south of the sixteenth quarter corner set by a private surveyor.

John A. Nuszkiewicz, the Citkos' second deposition witness, owns a farm one-half mile from the Citko farm. He testified he has been on the land in dispute many times since 1930. He said he first saw a post at the claimed quarter corner while walking down the tote road in 1930 and assumed it was a corner post. Although he thought it was a corner post, Mr. Nuskiewicz could not testify that the post was located at the exact site of the claimed quarter corner.

The Citkos' final witness, Frank Kowalkowski, gave deposition testimony twice. His first deposition took place on November 8, 1979; his second deposition took place on July 11, 1980.

In his first deposition, Mr. Kowalkowski, who is also a neighbor of the Citkos, testified he first saw two posts at the site of the claimed quarter corner in the 1930's. In addition, he said he saw rocks piled in a ring at the claimed quarter corner in 1931 or 1932.

In his second deposition, Mr. Kowalkowski went into great detail describing the events which kept his memories of the claimed quarter corner fresh in his mind. He discussed in vivid detail a deer hunting incident which occurred in November of 1927. Mr. Kowalkowski was thirteen years old at the time and was hunting with his older brother. His brother shot the deer and wounded it. The brothers did not bag the deer that day but returned the next day to get it. When they found the dead deer the next day, they put a rope around it and began to drag it south toward what is now the Citko farm. When they reached the tote road which lies just to the west of the claimed quarter corner the brothers rested. Mr. Kowalkowski testified that while resting he saw two corner posts about twelve feet away from him. He said that there was one tamarack tree north of the posts and a second tamarack tree south of the posts. He walked up to the trees and saw markings on them

twelve to sixteen inches long. Both trees were dead. Mr. Kowalkowski also said one of the cedar posts was marked "24" on one side and "25" on the other.

In addition to recalling the quarter corner from the deer hunting incident, Mr. Kowalkowski stated he could recall the claimed quarter corner because he saw the post numerous times while walking along the tote road in 1927 and 1928. The last time Mr. Kowalkowski recalled seeing the post was in 1938 when he was planting trees for the United States Forest Service.

IV. The Court's Findings

After carefully and thoroughly reviewing the testimony of all witnesses and after studying the exhibits in evidence, the Court finds that the claimed quarter corner is the quarter corner established in the original survey in 1865. Therefore, the Government's complaint will be dismissed.

The Court can find no fault with the physical search performed by Mr. Resvick. It was remarkably thorough and professional 241*241 in every aspect. Based on Mr. Resvick's physical search, the Court finds that the original quarter corner is no longer existent.

Neither the surveyor's nor the Court's inquiry ends, however, with the determination that the corner is no longer existent. It is still necessary to determine whether the corner is lost or merely obliterated. To make this determination, it is necessary to ascertain whether the location of the corner has been perpetuated by the acts and testimony of interested landowners, competent surveyors, or other qualified local authorities, or witnesses, or by some acceptable record evidence. Restoration at 9.

Relying upon the lack of physical evidence supporting the Citkos' position and certain documenting evidence, Mr. Resvick concluded the original corner was lost rather than merely obliterated. The Court will discuss the evidence Mr. Resvick relied upon and give its reasons for rejecting the conclusions he drew from that evidence.

The first factor relied upon by Mr. Resvick was the distance between the section corners. Because the distance between those corners (5326.5 feet) was less than 7 feet more than the distance stated in the original field notes (880.6 chains equals 5319.6 feet), Mr. Resvick believed that the original quarter corner was set somewhere along the line between the corners. The problem with his conclusion is that the distance between the northwest corner and the claimed quarter corner, when added to the distance between the northeast corner and the claimed quarter corner, is 5327 feet — only 8 inches more than the distance between the corners when measured along a straight line. Given the poor quality of surveying equipment in 1865, it is reasonable to conclude that the measurements from the section corner were to the claimed quarter corner.

The second factor relied upon by Mr. Resvick was the road survey. Because the road survey did not show that the quarter corner had been verified, Mr. Resvick assumed that the distances listed on the map "to tie" were distances from the section corner to Highway 2159. As the Citkos brought out at trial, however, the distances "to tie" were very close to

the distances from the established section corners to the claimed quarter corner. (Northwest to tie — 2510 feet, northwest to claimed corner — 2508.5 feet. Northeast to tie — 2837 feet; northeast to claimed corner — 2818.5 feet.) Thus, rather than refuting the Citkos' argument, the road map offers support to the Citkos' argument that the claimed quarter corner is the true quarter corner.

The third factor Mr. Resvick relied upon was the location of the north-south fence between the Citko property and the Cichonski property. The location of that fence is exactly midway between the northeast section corner and the quarter corner as established by Mr. Resvick. It was Mr. Resvick's position that the fence would not have been exactly midway between the two points had the claimed quarter corner been the true quarter corner. There are two problems with that reasoning. First, up until 1941, the fence was, in fact, further west. Second, the surveyor who set the location of the fence worked only from the eastern side of the section and did not utilize the quarter corner in controversy to set that line. Thus, the location of the fence cannot be used to defeat Citkos' arguments.

Finally, Mr. Resvick relied upon the notes prepared by Mr. Gibson. Although it is clear from Mr. Gibson's notes that he only approximated the quarter corner location, it is also clear that the marker he used to set the quarter corner was west of an old railroad grade. Because the claimed quarter corner is east of the tramway, it cannot be said that Mr. Gibson was searching for the corner in the area of the claimed quarter corner.

Having rejected the evidence supporting Mr. Resvick's finding, the Court is left with only Mr. Arnott's trigonometric survey. Although that survey is supportive of the Government's position, in light of the evidence presented by the Citkos, it cannot by itself lead the Court to accept the Government's argument that the corner is lost.

242*242 Because the evidence relied upon by the Government does not support its conclusion that the original corner is lost, the Court finds that the Government has failed to carry its burden of showing by a preponderance of the evidence that it could not establish the location of the original quarter corner by reference to any existing data or other sources of information. Moreover, on the basis of the evidence put forth by the Citkos, the Court finds that the claimed quarter corner is, in fact, the original quarter corner.

The Citkos based their argument, in large part, on deposition evidence. To an extent, this was unfair to the Government and, in particular, to Mr. Resvick because the Citkos did not disclose the identity of these witnesses until after they commenced this action — long after Mr. Resvick determined the corner was lost. However, Mr. Resvick's ignorance of the existence of Citkos' witnesses was partially due to his failure to ask the Citkos if they knew of any witnesses. As a professional surveyor, it was incumbent upon him to make a diligent effort to find witnesses before determining there were none, especially when dealing with people who probably did not know they could use witnesses to bolster their position.

Although the deposition testimony of Joseph Cichonski and John Nuszkiewicz and the first deposition of Frank Kowalkowski did little to bolster the Citkos' claim, the testimony of Frank Kowalkowski in his second deposition was very persuasive. His memory was much clearer than during his first deposition. Although this may, in part, have been due to reviewing his testimony with the Citkos' counsel prior to the deposition, the Court is convinced he was

truthful. It is not hard to imagine a young thirteen year old boy having vivid memories of one of his first successful hunting expeditions. Nor is it difficult to believe that a young boy would be familiar with the well-worn path he took to work.

In addition, Mr. Kowalkowski's testimonial evidence is corroborated by other evidence. The distances from the section corners "to tie" on Exhibit M support his assertion that there was a post at the site of the claimed quarter. The rock pile, while not particularly significant in and of itself, takes on more significance because the rocks were placed there by hand and were of a type unlike other rocks in the area. Obviously, the rocks were placed there for a special purpose. It is reasonable to infer that the special purpose was to mark a corner.

Another factor supporting the Citkos' position is the location of the fence. That the fence runs over the claimed corner and has been in that location since the 1930's lends support to the Citkos' claim that the fence was a boundary fence.

Finally, another factor which has little significance by itself but becomes more significant when considered with the other evidence is the use of tamarack trees as bearing trees. Although tamarack trees are occasionally found in high areas, they are usually located in low lying areas. Thus, it is reasonable to infer that the original corner was located at the site of the claimed quarter corner because it is a low lying area.

Based on Mr. Kowalkowski's testimony and the evidence that supports that testimony, the Court finds that the claimed quarter corner is the original quarter corner.

V. Conclusion

The decision reached in this case was reached after great consideration. As stated earlier, the Court believes that Mr. Resvick did an impeccable job in his physical search. He failed, however, to seek out live witnesses before determining the corner was lost. Had he consulted the witnesses and reexamined the survey testimony and other evidence in light of that testimony, the cohesive theory put forth by the Citkos may have become apparent to him.

Based on the foregoing, plaintiff's complaint is dismissed.

 

 

 

 

 

 

 

Measurements

Courts view surveyors as experts in measurement. A surveyor should know not only the

capabilities but also the limitations of measurements. Measurements are used primarily for

relative comparison. They are also used to aid surveyors in the search for monuments. It should

always be kept in mind that a retracement surveyor doesn’t establish boundaries with

measurements; instead the surveyor locates the boundary then measures it.

Nothing said here is meant as a justification for substandard measurements. There is no

excuse for poor measurement technique. On the other hand today’s measurement technologies

have blinded many surveyors to their true function.

In the May 1, 2006 issue of Time Magazine an article on what scares doctors the most

about healthcare pointed out what a preoccupation with technology can lead to. One thing that

concerned many doctors was a preoccupation with technology. Many physicians felt as if the

profession was too quick to order an expensive, high-tech test instead of simply spending more

time talking to the patient to determine the true nature of the complaint. The same could be said

of the survey profession at times.

During a recent state convention a meeting was held to discuss the survey regulations of

the host state. One surveyor stood up and asked if the state could create a special certification

for surveyors who do only GPS surveys. GPS, like any other new measurement technology is

just a tool. The finest GPS unit created can never determine a boundary. In the aforementioned

Time Magazine article it was pointed out that “it is easier to gather gigabytes of information than

to acquire the judgment to apply it wisely.”

Now that absolute coordinates can be quickly and precisely established many feel as

if this will solve all the ills of the profession. Nothing could be further from the truth. The fifth

edition of “Evidence and Procedures for Boundary Location” contains the following principle:

An original corner, once created, cannot be replaced or redefined by coordinates

created by modern survey measurements using more precise modern methods.

DYKES V. ARNOLD

LOT 1401

CENTER OF SECTION BY DEFENDANT’S SURVEYOR

CENTER OF SECTION BASED ON PLANTIFF’S SURVEYOR

“As we discuss in greater detail later, the parties each commissioned a licensed surveyor to locate the center of section 12 and, based on that location, to identify the southern boundary of lot 1401. The two surveyors took dramatically different approaches to the task. Defendant's surveyor, Nyhus, aware that the center had been surveyed and marked ("monumented") in 1899 by the Lincoln County Surveyor, attempted to locate the center as set by that survey. He believed that he succeeded and that the section's center, as set in 1899 by the county surveyor, Derrick, coincided with the accepted boundary lines in the area as reflected by the deeds, county road location, fence lines, and lines of occupation of the last 100 years. Plaintiffs' surveyor, Denison, made no effort to retrace that prior survey because he thought

it was flawed in its methodology. He therefore set out to locate the center anew, using the legally prescribed methodology and modern survey techniques and disregarding any evidence of the boundaries as reflected in the deeds, fence lines, county road location, and lines of occupation.”

New measurement technology is a tool to aid surveyors in making the same decisions that have

been made for centuries.

When modern measurements are compared to original measurements, the analysis

should be in term of the original measurements. A deed that describes a tract of land in rods

and links should be analyzed in rods and links not in feet and tenths of feet. This is a foreign

concept to many modern surveyors.

There is another measurement technique that often causes argument among surveyors.

When retracing a survey originally created with a compass and chain many surveyors believe a

compass and chain should be used to replace missing corners. Then a modern instrument is

used to document the retracement. This methodology is controversial to say the least.

Another problem with measurements as evidence today is the pseudo-state plane

system many surveyors insist on using. These fall into two categories:

1. State plane positions created without using the proper elevation and scale

factors.

2. State plane positions that are modified using some type of datum adjustment

factor to raise all coordinate values to surface level.

Often surveyors begin a survey using valid state plane positions but fail to use a scale

and elevation factor to place field measurements on the grid. This is done most the time to avoid

the perceived tedium of dealing with a grid factor. The final result of this type of survey isn’t a

state plane coordinate and the positions shouldn’t be presented as such.

The second problem is the use of a datum adjustment factor. This is a factor that is

created in order to place grid positions on the ground for an entire project. This too leads to

coordinates that appear to be state plane but aren’t. Both of these methods of dealing with state

plane coordinates should be avoided. The state plane coordinate system should be used as

designed.

"We consistently have held that what boundaries a deed refers to is a question of law, while the

location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the

deed reveal a latent ambiguity, then we determine the intent from contemporaneous

circumstances and from standard rules of construction. A basic rule is that boundaries are

controlled, in descending priority, by monuments, courses, distances, and quantity, unless this

priority produces absurd results. The physical disappearance of a monument does not end its

use in defining a boundary if its former location can be ascertained" Theriault v. Murray,

1991,588 A.2d 720 (1991)

When a surveyor undertakes a boundary surveyor there are only two questions to answer. What

is the boundary, which is a question of law and where is it at, which is a question of fact.

Surveyors often get themselves in trouble answering these two questions. When the “what”

doesn’t match the “where” of vice versa the first inclination is to change one to match the other.

It isn’t the job of a surveyor to establish new lines where none existed when doing a boundary

retracement. The surveyor doesn’t use measurements to establish a boundary; rather his or her

job is to find the boundary then measure it.

The intent of the grantor and to a somewhat lesser extent the grantee is of paramount concern.

If the intent is found within the four corners of the deed then nothing else is required to establish

the property. If however a latent ambiguity is found when trying to apply the deed to the ground,

then extrinsic evidence can be used to help determine intent. Extrinsic evidence can’t be used

to supply the description or change intent but is only applied to the ambiguity to make clear that

which is uncertain. Extrinsic evidence is admissible to show where the land is that fills the

description given in a deed, but it cannot supply material parts of the deed; it is permissible to

apply, but not to supply, description. When ascertaining the intent of the grantor a surveyor

should determine what they meant by what they said, not what try to determine what they meant

to say.

When conflicts in a deed arise it becomes necessary to use the elements in the description that

are most certain and least likely to be in error to determine the intent of the parties. To that end

most jurisdictions use as a general guideline the following list of conflicting elements with the

most certain or reliable being at the top:

A. Right of possession

B. Senior Rights

C. Written intentions of the parties

1. Natural Monuments

2. Artificial Monuments

3. Record Monuments

4. Bearings and Distances

5. Bearing or Distance

6. Area

A valid right of possession will trump everything else. The most commonly discussed of these in

surveying is adverse possession. Surveyors can’t determine if a valid adverse possession claim

has taken place but he or she should be familiar with the basic concept. The discussion of

adverse possession is beyond the scope of this text.

Senior rights take place within the context of a sequential conveyance. From a practical

standpoint a sequential conveyance occurs outside the context of a subdivision. In a subdivision

several lots are created at the same time. A sequential conveyance occurs when lots are

created over time. As an example say Reed owns 5.5 acres and he sales off 2 acres to Smith in

1950 then 2 more acres to Jones in 1952 and finally 1.5 acres to Harris in 1957. Smith was first

out of the parent tract and is senior to both Jones and Harris. Jones is junior to Smith but senior

to Harris and Harris is junior to all. Determining senior rights is a function of proper research.

This is why simply pulling the current deeds rarely gives a surveyor all the information he or she

will require to do a proper survey.

SENIOR RIGHTS

ORIGINAL OWNER1947

ACREATED 1950

BCREATED 1952

CCREATED 1955

100’120’ 150’

365’ BASED ON A FIELD SURVEY

Senior rights are based upon the idea a grantor can’t sell the same tract of land to two different

individuals at the same time. As a general rule in the case of overlaps the disputed land will go

to the senior owner. In the case of small gaps the area in question will usually go to the junior

tract. This, of course, is dependent on how the deeds are written.

The most certain evidence is a natural monument, such as a call for a creek or the top of a bluff.

This type of monument is the least likely to change over time and be disturbed. The second

most certain is an artificial monument placed by the parties or a surveyor at the time of the

conveyance. The next would be a record monument, which is a call for an adjoiner’s line. Then

the surveyor would look and the measurements on the lines, trying to make both the bearings

and distances work then if necessary either bearings or distances. Finally, the least reliable form

of information to use is area. This list isn’t set in stone and has as its ultimate goal the

determination of the intent of the parties. If the ultimate intent lies in the area then this could

outweigh an artificial monument. It is also interesting to note that this list starts at the top with

the least amount of mathematical manipulations and ends at the bottom with the item that

requires the most manipulation.

 

Easements An easement is an interest in land created by either agreement or grant that confers a right

upon owners to some benefit or lawful use over the estate of another; it is distinct from fee

ownership.

Easements fall into two categories, appurtenant easements and easements in gross. An

appurtenant easement is one that benefits the dominant estate and attaches itself to the parcel

of land. A driveway easement for ingress and egress across tract “A” to benefit tract “B” would

be an appurtenant easement. tract “B” would be the dominant estate and tract “A” the servient

estate. The easement goes with tract “B” when it is sold. An easement in gross attaches to a

person or entity. An easement for a power line across a tract is an easement in gross. A right to

fish or hunt would be an easement in gross. It serves no particular estate. Easements can also

be either positive or negative. A positive or affirmative easement permits the possessor of the

easement to some physical act on the lands of another party. A negative easement allows the

dominant estate to prevent the servient estate from doing something. An example would be an

easement for light or air.

APPURTENANT EASEMENT

DOMINANT ESTATE

SERVIENT ESTATE

INGRESS/EGRESS EASEMENT TO DOMINANT ESTATE

EASEMENT IN GROSS

Easements are usually limited to the use that is described in the document that creates them. It

is for this reason easements need to carefully thought out and described at the time of creation.

Many lawsuits have resulted from confusion over what right the easement actually created.

Land owned in fee simple can be lost by various means but easements are virtually forever.

Easements can be created several ways. The most common are an express conveyance,

implied easements, estoppel, easement by necessity and by prescription.

Express Conveyance - an easement created by a deed or will. Easement deeds create an

easement without deeding any land in fee. Easements can also be created in a deed by

exception or reservation. A reservation creates a right for the grantor in the land described as

granted. An exception withdraws a part of that which is being granted.

Implied Easement - when an owner conveys a portion of a tract of land he or she also conveys,

by implication, all easements that are apparent or obvious that is necessary for the use of the

land. This type of easement is often claimed in the case of a land locked parcel. If a parcel is

created from the parent that is land locked an implied easement may be created to resolve the

access issue.

Easement by estoppel - estoppel is a bar raised by the law which precludes a person from

asserting something contrary to his or her previous actions or statements. This may happen if

owner “A” leads owner “B” to believe he has access to a tract by easement then “B” builds

improvements on his landlocked parcel. If “A” tries to prevent “B” from accessing the parcel after

the improvements “A” may be estopped from doing so because “B” took actions to improve the

property he may have not done otherwise.

Easement by necessity - A court may decide an easement is necessary for the enjoyment and

reasonable use of a tract. The courts will look for a common grantor and if an alternative means

of access is available. Usually only availability is considered, not cost or convenience. The

easement will only exist for the period it is necessary.

Easement by prescription - an easement by prescription has pretty much the same

requirements as those necessary to claim land by adverse possession. First the use must be

open and notorious. This simply means the use isn’t hidden from the true owner or the public.

Secondly the use must be adverse or hostile which means the claim of the person using the

easement is adverse to the claim of the true owner. The use must be continuous and in some

jurisdictions that can be seasonal. In other areas seasonal use does not constitute continuous

use. Continuous use can be tacked to a previous owner. The use must also be for a statutory

period. This period is usually the same as for adverse possession. The element often different

from adverse possession claims when compared to prescriptive easement clams is exclusive

use although some states (Tennessee) include this.

Easements can be terminated by an agreed upon release by all the parties involved. They can

also be terminated by merger. When a dominant estate acquires a servient estate the easement

benefiting the dominant estate is extinguished. Basically a person can never have an easement

across themselves. If the estates are one again split the easements aren’t revived. Destruction

of the land due to erosion can terminate an easement. When an easement is overburdened by a

use inconsistent with the original use an easement can be terminated. An easement can be

terminated by abandonment. This means more than just nonuse. The entity having the

easement right must act in a way so as to indicate the easement will never be used again.

IN THE COURT OF APPEALS OF TENNESSEEAT NASHVILLE

August 8, 2008 Session

ERVIN D. SMITH, ET AL. v. PAUL EVANS, ET AL.

Appeal from the Chancery Court for Montgomery CountyNo. MC-CH-CV-MG-07-1 Laurence M. McMillan, Jr., Judge

No. M2007-02855-COA-R3-CV - Filed August 27, 2008

Owners of property brought suit to terminate an ingress/egress easement across their land,contending that the necessity for the easement no longer existed. Following a trial, the ChanceryCourt ruled against the owners, finding that since the easement was reserved in a recorded plat, itwas not an easement by necessity; consequently, the easement was not destroyed upon the sale ofthe dominant estate. On appeal, the owners maintain that the easement was destroyed at the end ofthe necessity. Finding the easement to be express, we affirm the decision of the Chancery Court.Finding the appeal not to be frivolous, no attorney’s fees are awarded.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., andANDY D. BENNETT, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellants, Ervin D. Smith and Donna Smith.

Joe Weyant, Clarksville, Tennessee, for the Appellees, Paul Evans and Danielle Evans.

OPINION

Prior to 1992, the Donald C. Cook Construction Co., Inc. owned a large plot of land locatedin Montgomery County. In December 1992, Donald Cook, as president of the company, receivedapproval of a plat which divided up part of the property into tracts varying from 1.5 to 2.19 acres,all fronting on the east and west sides of Sawmill Road; the lots were made available for sale. Mr.Cook retained ownership of a 14.2 acre tract of land immediately behind the lots which fronted onthe west side of Sawmill Road (the “Cook Property”). To ensure access to the Cook Property, he

Without reserving the easement, the 14.2 acre parcel would have been landlocked from public access roads1

by the tracts created in the plat to the east and by pre-existing tracts of land to the west (none of which were owned by

Mr. Cook). The parties agree that, at the time the plat was created, the easement was necessary to ensure access between

the Cook Property and Sawmill Road.

-2-

reserved a 20 foot ingress/egress easement over lot 5 of the subdivision; this easement was includedin the recorded plat and allows access to Sawmill Road.1

In May 1994, Ervin and Donna Smith (“the Smiths”) purchased lot 5. At the time of thepurchase, they were aware of the easement even though it was not mentioned in their deed. Inaddition, their deed expressly provided that the conveyance was subject to the “terms, matters andconditions” as shown on the recorded subdivision plat. Paul and Danielle Evans (“the Evanses”)owned property which adjoined the western side of the Cook Property and which fronted on ChesterHarris Road; their homeplace was located on this property. The Cook Property lay between theSmiths’ property and the Evanses’ property. In October 2000 the Evanses purchased the CookProperty; as a result of their purchase, access from the Cook Property to Chester Harris Road wasnow available across the Evanses’ homeplace lot.

In February 2007, the Smiths filed suit in Chancery Court for Montgomery County seekingto terminate the easement over their property, asserting it was an easement by necessity which wasextinguished when the Evanses purchased the Cook Property. The Evanses contended that theeasement was express in the plat and thus was not terminated by the end of the necessity. Followinga trial, the Chancery Court found that the easement continued to exist. This appeal followed.

STANDARD OF REVIEW

Both parties agree as to the facts of this case; consequently, the appeal concerns a questionof law. The standard of review on appeal of a question of law is “de novo without a presumptionof correctness afforded to the lower court’s conclusions of law.” Blair v. Brownson, 197 S.W.3d681, 683 (Tenn. 2006); Perrin v. Gaylord Entm’t Co., 120 S.W.3d 823, 826 (Tenn. 2003).

ANALYSIS

I. The Nature of the Easement

An easement is “an interest in property that confers on its holder a legally enforceable rightto use another’s property for a specific purpose.” Hall v. Pippin, 984 S.W.2d 617, 620 (Tenn. Ct.App. 1998); see also Fowler v. Wilbanks, 48 S.W.3d 738, 740 (Tenn. Ct. App. 2000); Pevear v.Hunt, 924 S.W.2d 114, 115 (Tenn. Ct. App. 1996). Such an interest in land can be created in anumber of ways; the methods applicable to the present case are (1) by express grant, (2) byimplication, and (3) by reservation. Pevear, 924 S.W.2d, at 115.

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An express easement is a grant of an interest in land which must comply with therequirements of the statute of frauds at Tenn. Code Ann. § 29-2-101. Cellco P’ship v. ShelbyCounty, 172 S.W.3d 574, 593 (Tenn. Ct. App. 2005); Mitchell v. Chance, 149 S.W.3d 40, 47 (Tenn.Ct. App. 2004); Nunnelly v. Southern Iron Co., 29 S.W. 361, 365-66 (Tenn. 1895). “To create aneasement by express grant, there must be a writing containing plain and direct language evincing thegrantor’s intent to create a right in the nature of an easement rather than a license.” 25 Am. Jur. 2dEasements and Licenses § 15 (2008); Adcock v. Witcher, 1995 WL 675852 at *2 (Tenn. Ct. App.Nov. 15, 1995). “The scope of such an easement is set forth in express terms, either in the grantingdocuments or as matter of incorporation and legal construction of terms of relevant documents...”25 Am. Jur. 2d Easements and Licenses § 15. An easement reserved in a recorded plat is sufficientto constitute an express easement. Moore v. Queener, 464 S.W.2d 296, 302 (Tenn. Ct. App. 1970);see also Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. Ct. App. 1987); Smith v. Black, 547 S.W.2d 947(Tenn. Ct. App. 1976).

An easement by implication is an easement that will “arise upon severance of a single pieceof land into separately owned parts as an inference of an intention of the parties to the conveyance.”Cellco P’ship, 172 S.W.3d at 588-89 (citing Barrett v. Hill, 1999 WL 802642 *2 (Tenn. Ct. App.Oct 7, 1999)); see also LaRue v. Greene County Bank, 166 S.W.2d 1044, 1048 (Tenn. 1942). “Acommon law way of necessity is a type of easement by implication and ‘rests on the implication thatthe parties intended and agreed to provide for such a way.’” Cellco P’ship, 172 S.W.3d at 591(citing Gowan v. Crawford, 599 So.2d 619, 621 (Ala. 1992)) (emphasis added). The impliedeasement arises “where it is of such necessity that we may presume it was within the contemplationof the parties to the conveyance.” Fowler, 48 S.W.3d at 740; The Pointe, LLC v. Lake Mgmt Ass’n,Inc., 50 S.W.3d 471, 478 (Tenn. Ct. App. 2000). To create an easement by necessity, a party mustshow that:

(1) the titles to the two tracts in question must have been held by one person; (2) theunity of title must have been severed by a conveyance of one of the tracts; (3) theeasement must be necessary in order for the owner of the dominant tenement to usehis land with the necessity existing both at the time of the severance of title and thetime of exercise of the easement.

Cellco P’Ship, 172 S.W.3d at 592 (citing Powell v. Miller, 785 S.W.2d 37, 39 (Ark. 1990)).

An easement by reservation is “in behalf of the grantor [of] a new right issuing out of thething granted, and an easement appurtenant to the grantor’s remaining land may be created byreservation.” 25 Am. Jur. 2d. Easements and Licenses § 16 (2008). Even though an easement byreservation is a separate type of easement, it can still be sub-categorized as being either express orimplied. Id.; LaRue, 166 S.W.2d at 1048-49; Johnson v. Headrick, 237 S.W.2d 567, 569-70 (Tenn.Ct. App. 1949). An implied easement by reservation is created over one parcel of subdivided land“where, during the unity of title, an apparently permanent and obvious servitude is imposed on onepart of an estate in favor of another part, which servitude, at the time of the severance, is in use andis reasonably necessary for the fair enjoyment of the other part of the estate...” Johnson, 237 S.W.2d

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at 569-70 (citing 17 Am. Jur. Easements pp. 945, 946). Thus, an implied easement by reservationrequires no writing; just a servitude which is apparent in light of the existing circumstances. LaRue,166 S.W.2d at 1049. An express easement by reservation “arises when a property owner conveyspart of his or her property to another, but includes language in the conveyance reserving the rightto use some part of the transferred land as a right-of-way.” 25 Am. Jur. 2d. Easements and Licenses§ 16 (2008) (emphasis added). Any reservation of an easement “is equivalent, for the purpose ofcreation of the easement, to an express grant of the easement by the grantee of the lands.” Id.

When an easement can be either express or implied, a court should find the easement to beexpress. “Easements by implications...are exceptions to the general rule that easements must becreated by either an express grant or by prescription.” Cellco P’ship, supra at 589 (citing Barrett,1999 WL 802642 at *2); see also Cole v. Dych, 535 S.W.2d 315, 318 (Tenn. 1976). The court inCellco P’ship held that, where a deed did not expressly grant an easement, the Court must resort toalternative theories to determine “whether an easement was nevertheless created.” Id. at 588. Thealternative theories referred to were easements by implication. Id. Thus, a court should consider aneasement by implication only if it has determined that there is no express easement.

The Smiths argue that the substance of the easement should win out over its form and, as itwas born of necessity, the fact that it was reserved in a recorded plat does not make it an expresseasement. While they are correct that the intent of the parties is relevant in determining whether aneasement by implication arose, see Cellco P’ship, 172 S.W.3d at 588-89, an express easement willbe found if its creation is in the proper form; the intent behind the creation is not a determiningfactor. See Moore v. Queener, supra.

The Chancellor found that Mr. Cook’s intent in creating the easement was to connect thelandlocked 14.2 acre tract to Sawmill Road and that the easement over lot 5 was reserved byrecording it in the original plat. Because Mr. Cook, as grantor, retained an interest over the land thathe granted (lot 5), an easement arose by reservation. Furthermore, Mr. Cook expressly reserved theeasement when he included it in the subdivision drawing and language of the recorded plat. All therequirements of an express easement were met.

II. The Termination of the Easement

We must next determine whether the easement was destroyed when the Evanses bought theCook Property or in any other fashion. There are a number of ways to end an express easement;however, there is no evidence that any action was taken to terminate the easement in this case.

The Smiths contend that an express easement created out of a necessity should terminate atthe elimination of such necessity, i.e., when the Evanses bought the Cook Property, thereby endingthe necessity for access to Sawmill Road. This is contrary to the law of Tennessee. In Smith v.Adkinson, 622 S.W.2d 545 (Tenn. Ct. App. 1981), the plaintiffs sought to enforce their rights to usea road between their property and property of the defendants. The defendants claimed that, at most,plaintiffs had an easement of necessity; they sought to have the easement extinguished because

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plaintiffs had acquired other property giving them access to the same road at issue. On appeal, thiscourt cited with approval “the rule that the easement ceases with the necessity has no applicationto...an express easement.” Id. at 547 (citing 28 C.J.S. Easements § 54 (1941)). This is the samesituation as in the present case.

An easement by express grant can be extinguished:

by an act of the dominant owner, either by release or abandonment, by act of theservient owner by prescription or conveyance to a bona fide purchaser without notice,by the conduct of both parties, such as by merger or estoppel, or by eminent domain,mortgage, foreclosure, or tax sale.

25 Am. Jur. 2d Easements and Licenses § 95. An easement “created by reference to a filed map canbe extinguished only by the united action of all lot owners for whose benefit the easement iscreated...” 28A C.J.S. Easements § 140 (2008). No such measures were taken in this case; indeed,the deed conveying the Cook Property to the Evanses includes the following language: “Included inthe herein conveyance is a 20 foot easement for purpose of ingress and egress over the southern mostportion of Lot 5...from the easterly boundary of the herein described tract to the westerly margin ofthe right-of-way of Sawmill Road, so-called.” The easement was not terminated when the Evansesbought the Cook Property.

III. Attorneys Fees For The Appeal

The Evanses ask this Court to award attorney’s fees based upon what they contend to be afrivolous appeal. We do not find the appeal to be frivolous and, consequently, deny the request.

The remedy for a frivolous appeal is provided in Tenn. Code Ann. § 27-1-122, which states:

[w]hen it appears to any reviewing court that the appeal from any court of record wasfrivolous or taken solely for delay, the court may, either upon motion of a party or ofits own motion, award just damages against the appellant, which may include butneed not be limited to, costs, interest on judgement and expenses incurred by theappellee as a result of the appeal.

This statute “must be interpreted and applied strictly so as not to discourage legitimate appeals...”Davis v. Gulf Ins. Group, 546 S.W.2d 583 at 586 (Tenn. 1997). The Smiths are not asking for anyfundamental changes to existing law; rather, they seek a different interpretation or application of thelaw of easements. Simply because this Court agrees with the lower court’s decision does not makethe appeal frivolous.

CONCLUSION

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For the reasons set forth above, the decision of the Chancery Court finding of an expresseasement is AFFIRMED. Costs are assessed against the Smiths, for which execution may issue ifnecessary.

___________________________________ RICHARD H. DINKINS, JUDGE

Riparian and Littoral Boundaries

Before beginning this discussion please be aware that riparian and water boundaries are a

complicated issue and the following is meant to be a brief introduction. Only surveyors that are

qualified by experience and education should undertake this type of work.

Riparian rights are rights an owner has to water or the land under the water for property that is

adjacent to rivers and streams. Littoral rights are water rights for land adjacent to a sea or lake.

These terms are used interchangeably. First let’s go over some basic definitions that are often

used when discussing water rights.

Accretion - Land forming by imperceptible degrees upon the bank or shore of a body of water.

Increase by external addition.

Reliction - Land increase by the permanent withdrawal of water.

Avulsion - A sudden and obvious separation of land by a violent action of water. An example

would be would a steam changes channels.

Thread of stream - A line midway between the banks of a stream

Thalweg - The deepest part of a channel or stream.

Typically if the boundary between two properties is a non-navigable steam the boundary line

runs along the thread or center of the main current. If the water body is navigable the boundary

usually goes to ordinary or mean low water in most states. The determination of what is

navigable is key. The Supreme Court has said..

“ The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances

and at all times.”

311 U.S. 377 (1940) UNITED STATES v. APPALACHIAN ELECTRIC POWER CO

Navigability is usually based on if the steam can be used for commerce. If it is capable of

transporting goods in the regular course of trade it is considered navigable. This is often a

distinction that is argued in court.

The question often arises as to who owns land when the boundary of the water body changes.

The general rule is if the change occurs gradually then the boundary line changes as well. If the

change in the water body is abrupt then the boundary remains where it is. When these changes

occur and land must be apportioned to adjoining owners there are general rules but each state

has particular laws pertaining to this.