Boundary Retracement—Sequence of Events is Critical for Surveyors and Attorneys.
“No human transactions are unaffected by time…” Rhode Island v. Massachusetts: 45 U.S. 591 (1846)
Proper analysis of property title disputes should include consideration of all relevant actions of the parties in light of the appropriate legal principles. Natural and artificial physical alterations of the land itself also may affect property titles and must be placed in their proper perspective.
However, merely knowing what events occurred will not always provide sufficient information to correctly solve the problem – the specific sequence of events must be determined as well. For most retracements, actions of property owners and occurrence of natural events can be placed into at least four general categories.
1. Initial definition of the title and creation of associated boundary lines: Depending on the specific situation, this phase may include early negotiations, the making and delivery of a deed, actions surrounding the initial transaction, and actions by the original parties immediately subsequent to the transaction. The physical characteristics of the land at the time of the execution of the controlling document should also be considered.
2. Subsequent acts by the original parties long after the original transaction: At this point on the timeline, memories have faded and original monuments may be obscured or destroyed.
3. Actions on the land by successors in title or third parties: These acts may reflect an attempt to maintain, perpetuate or (possibly) violate the rights created by previous parties.
4. Natural or manmade alterations to the land: In addition to the actions of the parties occupying the land, natural changes to the land (sudden or gradual) may affect property titles and limits of ownership. Examples include: accretion, erosion and/or avulsion along watercourses and shorelines; rockslides or other major events that impede existing land use; shifting of sand dunes in coastal areas; construction of roads, bulkheads, buildings and other infrastructure. Relevant artificial structures may be located some distance away from the subject parcels.
Actions Surrounding the Original Conveyance
The “Common Grantor Doctrine” is an interesting principle often associated with the first category listed above. Many (but not all) state courts agree that, where grantor and grantee divide a tract of land and perpetuate the proposed line with physical monuments preparatory to the sale, the line marked may supersede the description in the deed because the lines marked represent the clear intent of the parties.
The Nebraska decision Huffman v. Peterson: 272 Neb. 62; 718 N.W.2d 522 (2006) states the principle: “The common grantor rule provides that where conveyances from a common grantor to adjoining landowners describe the premises conveyed by lot numbers, but adjoining owners purchase with reference to a boundary line then marked on the ground, the boundary line, as marked on the ground by the common grantor, is binding upon such adjoining land-owners and all persons claiming under them irrespective of the length of time which has elapsed thereafter. … This equitable rule is designed to ascertain the intention of the parties with respect to the location of premises described by lot number in a conveyance which is executed by a grantor who conveys only part of an area of land owned by him.”
In this example, the monuments upheld by the court were a Cottonwood tree and a metal “T-post.” At the time of the division, no survey was performed by a licensed professional and the significance of the purported monuments was hotly contested in court. However, Huffman testified that he walked the land with the grantor and they agreed that those markers would define the boundary location.
Note that similar examples can be found in Arizona, Idaho, Michigan, New York, North Carolina, Washington and Wisconsin.
Later Actions by Landowners
While acts performed long after the original conveyance may not serve to define the original intent of the parties, they may be sufficient to prove a parol agreement where the original monuments have been lost and significant ambiguities exist. A parol agreement generally cannot supersede an existing record boundary line unless a bona fide dispute exists regarding the location of the boundary line. However, extrinsic evidence can be used to clarify a boundary location in situations where the original monuments have been lost.
It is important to differentiate between actions that purport to prove the original intent of the parties and those that may prove a later agreement affecting the location of a disputed line. There are also several ways that the original titles could be altered by operation of law.
Salazar v. Terry: Colo. 911 P.2d 1086 (1996) is an interesting Colorado decision that considers actions by subsequent property owners in the context of the specific timeframe of events on the land over many years. In this instance, two adjoining government parcels were separated by an ancient fence that was clearly at variance with the original government line. The fence was never called for in any legal description for either parcel, but was described as a substantial fence originally built in 1888.
Judge Mullarkay includes an unsurprising outcome from the lower court: “Pursuant to section 38-44-109, 16A C.R.S. (1982), the trial court concluded that this acquiescence established the fence as the legal boundary.” This would have been the end of the story if both parcels had not been merged for fifteen days in 1977. The Appeals court concludes that the lower court failed to consider the effect of the doctrine of merger on an appurtenant fence after both tracts come under single ownership.
While the fence in question was clearly sufficient to prove acquiescence under the statute cited above, its significance was eliminated by common ownership of both parcels. After the tracts were re-divided by descriptions calling for government monuments and lines, a new acquiescence could be initiated, but would have to run for the 20-year requirement found in Section 38-44-109.
Actions Contrary to Record Boundary Lines
Adverse possession claims generally follow a specific timeline by virtue of the duration mandated in the appropriate local state statute of limitations for real property. Several rulings point out unsuccessful attempts to apply various elements of adverse possession law at inappropriate points in the progression of the claim.
It is a common mistake to attempt to “convert” adverse use to permissive use several years after the initial entry by granting verbal permission to the adverse claimant. Courts in several states have emphasized that the primary goal of the record owner at this point in time should be the ouster of the offending party.
Even less effective are attempts by the record owner to extract permission from the adverse claimant after the statutory time requirement has been fulfilled. These attempts generally fail because the title vested in the adverse claimant before the permission was even considered. As with land titles based on other legitimate conveyances, vested title obtained by adverse possession cannot be lost by parol statements. In other words, permission has no effect after title has passed to the adverse claimant.
The relevant concepts are described in the recent Mississippi decision Conliff v. Hudson: 60 So. 3d 203 (2011). Hudson possessed the disputed land for over 20 years – a span well beyond that required by the 10-year Mississippi statute of limitations. When discord finally arose, Hudson signed a lease agreement for the disputed strip. Conliff claimed that the lease was conclusive proof of permissive use and that any adverse claim failed.
The court thought otherwise, and explained the appropriate principles to the unfortunate Conliff: “It is well-settled Mississippi law that once the elements of adverse possession have been satisfied, a full and complete title is vested in the adverse possessor. … land acquired by adverse possession cannot be lost by mere abandonment. Once title has been acquired by adverse possession, “it is not relinquished merely by the new owner's indicating a belief in the former owner's title.””
The Mississippi court clearly indicates that the permissive/adverse character of the initial entry is critical, but once the claimant is established as an adverse user, the record owner needs to do more than grant permission: “Once adverse possession has begun, the record title owner cannot stop the running of the period merely by granting permission.”
Washed by the Tides of Time
When considering riparian boundaries along meandering rivers and streams, the shifting of the watercourse by processes of accretion, erosion and avulsion must be tracked with careful attention to the precise sequence of changes.
The U.S. Supreme court ruling Nebraska v. Iowa 143 U.S. 359; (1892) provides a summary of the relevant principles: “It is settled law, that when grants of land border on running water, and the banks are changed by that gradual process known as accretion, the riparian owner's boundary line still remains the stream, although, during the years, by this accretion, the actual area of his possessions may vary. … It is equally well settled, that where a stream, which is a boundary, from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion.”
While these principles are fundamental and generally known to land use professionals, real problems arise when the record suggests that accretion occurred for many years followed by an avulsion. In such a scenario, the original measurements along the old river bed may not reflect the present limits of ownership. Determining the date at which the avulsion precluded subsequent changes to the original river boundary will be an exercise in research. The results of these conflicting forces can be seen in the torturous mapping of state boundaries along the Mississippi, Ohio, Lower Wabash and Red Rivers.
It is critical to remember that shoreline changes that do not occur until many years after the original survey cannot be considered “surrounding circumstances” to prove the intent of the original parties. Subsequent accretion or erosion can certainly affect the extent of ownership, but it is a mistake to assume that the original surveyor could (or should) accurately anticipate the shape of a future shoreline.
Appropriate information sources to provide the documentation necessary to develop a timeline for a subject parcel will vary depending on jurisdiction, location and specific circumstances. Photographs, record documents, insurance maps and historical resources should provide the means to determine the sequence of events. Without a complete chronology, land use professionals are reduced to guesswork.