"The 2Point Way" - Does Course or Distance Control in Metes & Bounds Descriptions?
Updated: Aug 9, 2021
One of the more common conflicts to face a surveyor retracing ‘metes & bounds’ descriptions is the determination of the relative value of course (bearing), versus distance when the two elements conflict. Both are measurements, and generally are considered inferior to calls for original monuments or established adjoiner lines. Additional confusion may arise because—in many court decisions—‘course & distance’ are lumped together in a single category. However, in situations where no monuments are identified by the controlling documents, land use professionals may be left with no alternative other than reliance on measurements.
The erroneous decision to always honor course over distance (or vice versa) is applied as an almost talismanic solution by some; as a simple, absolute, or ‘cookie-cutter’ rule of construction. The reality is more nuanced. Surrounding circumstances of the original survey should be considered, including terrain, ground cover, and the equipment and techniques used by the original surveyor.
The ‘Reasonableness Rule’ can also affect the final outcome because control of either course or distance may yield a more realistic result, depending on circumstance. This rule may mandate a mixed application in some retracements, particularly those where various elements of a single description may have been drawn from more than one source.
In Preston’s Heirs v. Bowmar, 19 U.S. 580 (1821), the U.S. Supreme Court highlights the uneasy tension between the two elements in a land description: “It may be laid down as a universal rule, that course and distance yield to natural and ascertained objects. But where these are wanting, and the course and distance cannot be reconciled, there is no universal rule that obliges us to prefer the one or the other. Cases may exist in which the one or the other may be preferred upon a minute examination of all the circumstances.” This early decision—over a land dispute in Kentucky—sets the tone for numerous later decisions at the state level.
Arguments for a More Consistent Standard
Some court rulings include statements that favor one element over the other. In particular, courses are sometimes given preferential treatment due to scenarios associated with retracement. These include:
1. Greater experience attributed to the surveyor/instrument operator, as opposed to the entry-level chainmen who measured distances.
2. The relative ease (in some areas) of measuring a reasonably accurate bearing over a long distance between intervisible points—as between hilltops.
This weak presumption for course over distance, and its rationale, are described in the Illinois decision Colvin v. Kershey: 40 Ill. 418 (1866): “But the presumption would seem to be rather in favor of the course than of the distance, as chain-men are more liable to inaccuracy in measurement than the surveyor in the course.”
Arguments for Case-by-Case Analysis
However, the arguments noted above are considered insufficient to justify an invariable rule, as noted in the Virginia ruling Green v. Pennington: 54 S.E. 877 (1906): “While it may be, as argued, that chain carriers are more likely to make mistakes in measuring the distance than the surveyor is in ascertaining the course in surveying land, there is no arbitrary rule that distance must always yield to course where one or the other must be disregarded.
In Smith v. Chapman, 51 Va. 445, 10 Gratt. 445, it was said by Judge Lee, in delivering the opinion of the court, that to say that distance shall yield to course, or vice versa, where there is a conflict between the distance of one line and the true course of another, would be entirely arbitrary; and the true rule seems to be that the one or the other shall be preferred according to the manifest intent of the parties and the circumstances of the case.” Virginia courts continue to favor this more analytic approach.
Any discussion of the primacy of bearings or distances must be considered in light of the more general rules applied to the rules of construction. As noted by the South Carolina decision Connor v. Johnson: 37 S.E. 240 (1900):“For while it is true that a question of location is largely a question of evidence, and cannot, therefore, be reduced to any definite or fixed rule … yet there are certain general rules of location which, from a very early period in our judicial history … have been recognized by our Courts, down to the decision under the former appeal in this case … where these rules are thus stated: “In locating lands the following rules are resorted to, and, generally, in the order stated: 1st, natural boundaries; 2d, artificial marks; 3d, adjacent boundaries, and 4th, courses and distances.” But in every one of the cases recognizing these general rules, which we have consulted, the Courts have invariably also recognized the doctrine that these general rules are not inflexible, but may be modified by the circumstances of the case.” [Emphasis Added]
A similar ambiguity regarding relevant standards is found in Pennsylvania decisions. On the one hand, several rulings in that state note a weak preference for courses. However, the weight of the limiting language associated with the general rule highlights the limits of any presumption of course over distance. This tension is described in Baker v. Roslyn Swim Club: 213 A.2d 145 (1965): ““Where the calls for the location of boundaries to land are inconsistent, other things being equal, resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument), and thereafter to courses and distances.” However, the same paragraph continues with the following language: “Where, however, it is apparent that a mistake exists with respect to the calls, an inferior means of location may control a higher one. In the last analysis the call adopted as the controlling one should be that most consistent with the apparent intent of the grantor.”
“Generally, among the inferior calls, course will control distance if they are inconsistent, and course and distance will control quantity.”
Likewise, the same general rule and the same exceptions are cited in 11 C.J.S. Boundaries § 51, as follows: “The rule that artificial monuments control courses and distances in case of conflict is not an imperative and exclusive one,but is a rule of construction to ascertain, or to aid in determining, the intention of the parties; and it is not followed where strict adherence to the call for a monument would lead to a construction plainly inconsistent with such intention.”” [Emphasis Added]. In the prior quote, pay particular attention to the number of exceptions identified.
One of the most telling summaries of this issue comes from another recent Pennsylvania decision Pencil v. Buchhart: 551 A.2d 302 (1988): “Though some of the terms of description … are entitled usually to more probative value than others, yet, in the end, the true construction is ascertainable by the totality of their combined effect and not wholly and exclusively by any one term when it is irreconcilable with the other terms of description. To lay down the hard and fast rule that only monuments … are determinative elements of a description … is to make the rule contended for more important than the underlying intent of the contracting parties.”
The preceding quotations are typical of standards found in many state courts, yet land use professionals routinely dismiss the many caveats and limitations implied by this summary and treat the ‘general rules’ stated above as absolute mandates to be applied rigidly and blindly.
While a narrow focus on specific phrases in various decisions can leave the land use professional with the impression that bearings must be honored at the expense of distances, a more comprehensive study of the relevant law makes clear that the correct solution must be based on the circumstances of the case.