THE COMPLEXITIES OF
Boundary retracement is not just a matter of measuring the angles and distances of the subject deed. In fact, completely unambiguous retracements are a rare occurrence.
Clients often equate the difficulty—and therefore price—of a survey to acreage, the distance the surveyor must travel, the steepness of the terrain, and the ease with which the field crew can travel along the perimeter of the subject tract. While these are legitimate factors to consider, the quality of the descriptions and the legitimacy of adjoining deed descriptions often are more critical factors to the surveyor.
Tax maps and GIS data available on the internet are regulatory tools established to determine the amount of property tax paid by each property owner. These resources may serve as a starting point for research, but they are not actual boundary surveys and can be wildly inaccurate, particularly in remote areas. Compiled by unlicensed office personnel, the maps often represent a “best guess” as to the parcels’ probable location. Railroad Valuation Maps are another research resource that are often confused with controlling documents.
Surveying a tract involves much more than merely laying the dimensions of the subject deed description on the ground; standards in many states require the surveyor to determine the presence or absence of overlaps or gaps with adjoining property owners along the boundaries of the subject tract. In addition, common law standards set by the court system require the surveyor to obtain background information that may be relevant to the project at hand.
While the survey project will begin with examination of the subject deed, this document is only as good as the prior survey work and research that lie behind the current description. Seemingly unambiguous descriptions may overlap adjoining deeds, and the source of the overlap may be recent or of ancient origins. Even modern descriptions sometimes do not close mathematically, making a solution based on the subject deed alone problematic. It is not uncommon to find overlaps resulting from deeds written a century or more ago!
When adjoining descriptions appear to create overlaps, the surveyor will apply established rules of construction to help reconcile the descriptions. Established by the court system, these guidelines exist to aid the reader of the documents to determine the probable intent of the parties. Where the descriptions cannot be reconciled, the surveyor should attempt to determine the source of the overlap and also establish past and present land use within the overlap area. This information will aid the clients’ attorney in determining an appropriate course of action if an attempt to resolve the conflict is made.
Parcels bounded by streams, rivers, lakes or ocean shorelines create additional complications for land use professionals. Retracing a water boundary is heavily dependent on state and federal common law principles, and additional regulatory complications are common when riparian or littoral landowners attempt to construct docks or boathouses that extend into or over the water.
Properties adjoining public highways – ancient or modern – also create challenges for the surveyor. A deed calling for an adjoining road refers to the road at the time the description was originally written, notwithstanding any subsequent improvements or changes made to the road by state or local government representatives. On secondary roads, it is common (but not universal) for ownership to extend to the center of the road. In this circumstance, the subject tract is burdened by a public right that generally includes both the driving surface and additional area sufficient to maintain the road.
No survey is any better than the research and analysis that goes into it. The signed survey map represents the surveyors’ opinion as to the location of the boundary lines. Insufficient research—in the courthouse or in the field—may result in substandard work, leaving unresolved issues that remain undetected until actions by the neighbor bring the problem to light. Nothing proves this point better than those cases where landowners were successfully sued for trespass even though they never passed beyond the limits described in their deed.
"It is a settled rule that where there is no express agreement with respect to the location of a way granted but not located, the practical location and user of a reasonable way by the grantor or owner of the servient estate, sufficiently locates the way, which will be deemed to be that which was intended by the grant."
- Isenberg v. Woitchek: 144 Colo. 394; 356 P.2d 904; 1960