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Do the 'Rules' change for 'Modern' Surveys?

One of the most common—and erroneous—arguments contributing to the proliferation of purported corner markers representing a single corner is the idea that modern subdivision regulations and field procedures somehow supersede the more traditional legal principles relating to boundary retracement. Many have argued that the recent trend towards subdivisions that are designed first, then staked at a later date favors dimensions and acreage calculations over monuments. Others assert that the surveyor’s intent to create lots of specific size controls over the customary rules of construction favoring monuments over measurements.

What is a Modern Survey?

It is easy to forget that legal commentators have considered themselves to live in ‘modern’ times for centuries. The early Maryland decision Martindale’s Lessee v. Troop: 3 H. & McH. 244: (1793) describes a ‘very modern author’ and also refers to ‘modern times.’

In like manner, Justice Cooley discusses the deleterious effects of an erroneous ‘modern survey’ in Diehl v. Zanger: 39 Mich. 601 (1878).

Rules of Construction, Past & Current

These arguments have little merit when considered within the context of relevant case law. One of the most telling points against the abandonment of the rules of construction is their continued and consistent application in modern decisions. Courts seldom concern themselves with the specifics of the drafting process; nor do they argue over the type of software or field equipment used. Subdivision regulations have been considered and deemed subordinate to established rules of construction, and the specific field procedures used by surveyors are seldom an issue unless they are clearly substandard or otherwise flawed according to prevailing standards.

Cordova v. Town of Atrisco: 201 P.2d 996 (1949) is a New Mexico ruling that includes a good general list of priorities, and also highlights the basic premise behind the rules of construction: “Generally, in determining boundaries, natural and permanent monuments are the most satisfactory evidence and control all other means of description, in the absence of which the following calls are resorted to, and generally in the order stated: First, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance, course controlling distance, or distance course, according to circumstances. Area is the weakest of all means of description.

…The ground of the rule is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. The reason assigned for this rule is that monuments are considered more reliable evidence than courses and distances. A description by course and distance is regarded as the most uncertain kind of description, because mistakes are liable to occur in the making of the survey, in entering the minutes of it, and in copying the same from the field-book.” Nothing in this rationale hints at variations based on local ordinances or survey methods. Regardless of the technology used to lay out the subdivision, measurements are still presumed to be less certain and more prone to error than marks on the ground.

Four Corners Rule for Deeds and Plats

The “four corners rule” is one of several principles established by the courts to facilitate the interpretation of deeds and other documents. This principle also supports the application of traditional rules of construction to modern subdivisions just as they are used for older surveys.

The Ohio decision Cydrus v. Horton: Case No. 98CA2406 (1998) emphasizes the significance of the four corners rule: “The intent of the parties to a deed control its interpretation. … When a deed is worded in clear and precise terms and its meaning is evident upon its face, there is no need to go beyond the four corners of the deed.” It is important to apply the proper definition to the phrase “parties to a deed.” In this context, the parties referred to are the grantor and grantee. These are the entities bound by the contract and the meeting of minds between them is the central issue. The intent of the surveyor is not controlling; nor is the intent of local regulatory authorities.

While the four corners rule is applied commonly to deeds, wills, and contracts, it is equally applicable to recorded and unrecorded plats. This principle requires land-use professionals to consider all language and information included in any written document under consideration.

Most modern survey plats will indicate that markers have been set by the surveyor to denote property corners; that same map will also include measurements and areas for the various parcels created. In this circumstance, the same rules of construction apply to the plat as would be applied to a deed. The Illinois court clearly illustrates this principle in Sikes v. Moline Consumers: 293 Ill. 112; 127 N.E. 342 (1920): “In construing that plat the same rules of construction must be applied as if we were construing a deed, and what the plat proves is a question of law for the court … The meaning of every word, figure and line must be considered in determining the meaning of that plat.” It is erroneous to assume that established rules of construction do not apply to survey plats.

Where a surveyor states on the face of a plat that markers of specific type have been set to denote streets, roads or alleys, this assertion becomes a significant part of the plat and any deed that references the plat. Murrells Inlet v. Ward: 378 S.C. 225; 662 S.E.2d 452 (2008) observes that: “Where land is subdivided, platted into lots, and sold by reference to the plats, the buyers acquire a special property right in the roads shown on the plat.”

Subdivision Restrictions vs. Rules of Construction

A recent Vermont decision considers the effect of subdivision ordinances on accepted retracement principles. Wheeler v. Hoffman: No. 40-2-07 Oecv; Vermont Super (2009) points out the fallacy of depending on local regulations while ignoring the rules of construction.

Wheeler and Hoffman owned adjoining parcels that were formerly part of a larger common tract until its’ division in 1975. At the time this common boundary was created, a local ordinance recognized an exception to the subdivision standards where the resulting tracts exceeded a 10-acre minimum.

While the 1975 description clearly identified the point of beginning, it also included ambiguities that were at the center of the dispute. The deed included a description but there was no evidence that it had been surveyed at the time of the original conveyance. Both surveyors agreed that a purely mathematical analysis of the bearings and distances included in the description failed to produce a closed perimeter. To further complicate matters, iron pipes of unknown origin were found purporting to represent the property corners, but there was no definitive link between the original conveyance and the pipes.

The surveyor for Wheeler held one of these iron pipes, resulting in a line length of 551.8 feet, creating an apparent conflict with the 400-foot call included in the deed. The surveyor justified his decision in part by citing the 10.095-acre result as a close match for the 10.1 acres as described in the deed. He also indicated that the apparent attempt by the grantor to avoid the subdivision ordinance restrictions for smaller parcels clearly indicated an intent for area to control.

The Vermont court concluded otherwise. Judge Teachout observes: “The deed language and contemporaneous property transfer tax return show that Catherine Crouse intended to create a parcel that was large enough (10+ acres) to be exempt from state subdivision regulations. Such a general intent does not, however, establish boundaries of a parcel that can be surveyed or laid out on the ground. The relevant intent is her intent with respect to location of specifically described boundaries. The long-standing principle that specific descriptions prevail over general descriptions applies in determining the grantor's intent with respect to parcel boundaries. Pine Haven North Shore Ass’n v. Nesti,138 Vt. 381, 416 A.2d 147 (1980). Her general intent to create a parcel with a certain acreage cannot operate to enlarge a parcel whose boundaries and size can be determined from the property description. Statements of acreage are given the least weight in determining the intent of the grantor.”

Despite the recent vintage of this decision and the possible conflicts with local regulatory authority, the judge cites relevant rules of construction as they have been recognized by the Vermont court for many years. It is the intent relevant to boundary creation that controls, not the intent to avoid regulatory restrictions. While the discrepancy may have been due to an initial mistake by the parties who drafted the deed, the court ultimately upheld the survey performed for Hoffman, which applied established rules of construction to resolve the ambiguities in the description.

Measurements as a Source of Instability

Land-use professionals should consider the impossible decision that they face when attempting to separate those existing monuments requiring “correction” from those that are “good enough.” Should each surveyor who arrives in an existing subdivision retrace the entire subdivision? If not, what relevant legal principle allows the selective use of some original monuments at the expense of others? If surveyors only locate monuments within a small portion of the subdivision, how will they know that they have not created additional problems with their “adjustments?” The problem is not solved by kicking a discrepancy down the road to the neighboring parcels of land.

The stability of property boundaries and titles is of paramount concern to the courts. This is one of the guiding principles supporting consistent application of the rules of construction to modern subdivisions that is found in courts nationwide.

Justice Thomas Cooley points out the fallacy of unreasonable reliance on measurements to the detriment of original monuments. In Britton v. Ferry: 14 Mich. 53 (1866), he observes: “The corner he looks upon as a fixed point, and it is only where no stake has been set, or corner designated, that he resorts to measurement to ascertain where the line will come. A post set which was to govern nothing, but to be itself controlled by course, distance and quantity, would not only be useless, but in the majority of cases would tend to deceive and invite litigation…If every fractional section were subject to correction by subsequent surveys, the purchase of the northwest fraction would commonly be a mere lottery…”

The recent Texas decision Severance v. Patterson: 370 S.W.3d 705 (2012) reinforces Cooley’s opinion, and emphasizes the importance of maintaining stable and certain boundaries: “…we must also recognize ages-old private property rights that are protected by law. ‘…Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.’” This argument applies equally to private and public land.

Over-reliance on measurements will result in more extraneous markers that will continue to sprout in the vicinity of property corners, increasing the chances for litigation, dispute and discord. Following this path of reasoning leads to the inevitable conclusion that irrelevant monuments will continue to proliferate, despite our stated desire to avoid this very outcome.

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