"The 2Point Way" - Common Grantor Doctrine can Supersede the Deed Description
The concept of the “Common Grantor Doctrine” is well established in most jurisdictions, though its identification by that name is confined to a few state courts, including Washington, Oklahoma and Nebraska.
One rationale used to justify the Common Grantor Doctrine is based on an extended application of rules of construction—on the concept that lines marked on the ground represent the most reliable measure of the intent of the parties. This line of reasoning is described in the North Carolina decision Millikin v. Sessoms: 92 S.E. 359 (1917), a case cited by several other states to justify the rule. The North Carolina court emphasizes that the line so marked on the ground supersedes measurements in the deed.
Another justification for the doctrine is related to Acquiescence. Several early rulings supporting application of the Common Grantor Doctrine rely on the early New York decision Herse v. Mazza 91 N. Y. Supp. 778 (1904), a benchmark decision for Acquiescence. This decision did involve two tracts derived from a common grantor, with a disputed strip 18 inches wide occupied by a brick building.
The two rationales described above differ in one important respect: Intent of the Parties ties the boundary location to the original (though poorly-described) agreement between grantor and grantee. Acquiescence as the basis of the Common Grantor Doctrine marginalizes original intent and highlights the significance of actions subsequent to the original sale. This distinction is important in determining how—or if—the surveyor can apply the doctrine as a manifestation of original intent. (For additional information on the relationship between Acquiescence and the Common Grantor Doctrine, see “How to Fix a Boundary Line”; Kline; 2016; 2Point, Inc.)
The predominant attitude towards the Common Grantor Doctrine defines it as a principle of boundary retracement. Title to the disputed strip is not transferred by application of the doctrine—rather, the fence, wall or other delimiter marking the line represents the intent of the original parties and thus defines the limits of ownership.
Washington Case Study
In the Washington decision Winans v. Ross, 35 Wash. App. 238 (1983), the court describes the significance of a line marked on the ground by grantors of a portion of the source tract, and identifies parameters for the application of the Common Grantor Doctrine: “A grantor who owns land on both sides of a line he has established as the common boundary is bound by that line. … The line will also be binding on grantees if the land was sold and purchased with reference to the line, and there was a meeting of the minds as to the identical tract of land to be transferred by the sale.
The common grantor doctrine involves two questions: (1) was there an agreed boundary established between the common grantor and the original grantee, and (2) if so, would a visual examination of the property indicate to subsequent purchasers that the deed line was no longer functioning as the true boundary?”
Sketch map included with Winans v. Ross, 35 Wash. App. 238 (1983)
This dispute is somewhat unusual because the ‘east’ and ‘west’ lots had existed previously as separate parcels, but both were purchased by Corlett circa 1958. The Corletts assumed that an existing fence was the boundary between the two deed descriptions, but never bothered to find out since they had purchased on both sides of the line.
Shortly after buying the land, the Corletts built a house and driveway on what they assumed was the east lot, but the driveway was near the fence and was actually located on the land described in the deeds as the west lot. The west lot then was sold out and eventually became property of Ross, while the east lot was conveyed to Winans.The trial court concluded that the fence was the limit of ownership between Ross and Winans, even though the recorded deeds clearly described the boundary over 60 feet east of the fence. The lower court ruling was upheld on appeal even though the two purchasers never discussed the boundary or made any express agreement to the fence: “A formal, or specific, or separate contract as to the boundary line between the parties is not necessary. …An agreement or meeting of the minds between the common grantor and original grantee may be shown by the parties' manifestations of ownership after the sale.”
Annotations included with the Washington Statute of Frauds (ARCW 64.04.010) also recognize the strength of the doctrine: “The common grantor doctrine has been recognized in Washington since at least 1910 without the Washington legislature indicating disapproval, and the Washington Supreme Court will not overturn precedent without either a clear showing that the established rule is incorrect and harmful or that the legal underpinnings of the precedent have been eroded.”
Several other state courts have underscored the significance of the doctrine. Under Wisconsin law, the doctrine can supersede lot lines shown on Subdivision plats where parcels are sold by lot number. Thiel v. Damrau: 66 N.W.2d 747 (1954). Lines relied on by grantor and grantee may be ephemeral—in this instance, wooden stakes of dubious origin with strings stretched between them were used to position a house. Yet those stakes were sufficient to control over a retracement based on measurements.
Not every fence or wall will trigger the application of the Common Grantor Doctrine, but its existence requires surveyors and other land use professionals to be aware that the combination of factors described above may necessitate a departure from more conventional rules of construction.