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Identification by the Senses - Boundary Disputes

Surveyors routinely follow "rules of construction" - essentially, a list of priorities developed by the courts to determine the intent of the parties where deeds or other documents are ambiguous. The most common manifestation of these priorities is the rule that monuments generally control over measurements. The rules of construction are not rigid and are built upon a more fundamental rule that places intent of the parties above any other consideration. As the parties referred to are the grantor and grantee, the rules favor visible and permanent monuments over measurements.

Two separate rationales support this rule: (1) Monuments are visible and easily understood by untrained laypersons, and (2) Measurements are more susceptible to error and misinterpretation than are physical permanent objects. As stated by the Massachusetts Court in Harrison v. Dolan:172 Mass. 395; 52 N.E. 513 1899) "...corporis tollit errorem nominis, identification by the senses overrides description, as in many other cases in the law."

Concepts associated with the intent of the parties do not require that the monument be set by a surveyor. Markers set by grantor and grantee to delineate the bounds of a conveyance control in the same manner as those set by a licensed surveyor for the same purpose.

In limited circumstances, original marks set by non-licensed individuals may supersede deed descriptions by the principle of the "Common Grantor Doctrine". (Updated June 9, 2019)



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