The Best Survey vs. the Quickest Survey: One Surveyor Who "Did it Right" Prevailed Over Three Others
Despite its designation in court records, Roll v. Bacon: 160 Ohio Misc. 2d 23; 938 N.E.2d 85 (2010) is not a dispute over breakfast choices. This Ohio ruling represents an excellent learning opportunity for surveyors considering the appropriate amount of research for a boundary survey.
This decision considers the status of a 14-foot strip of land in the town of Bethel, Ohio. This strip was designated as a 'right of way' but the ownership of the underlying fee was in dispute. A total of four land surveyors had been retained to perform surveying services relating to the dispute, and all four were accepted as experts by both parties. Two of the four surveyors also testified for this proceeding.
One crucial document in this decision was the original 1860 conveyance from Samuel Sims to W.H. Brown. This deed – the “Sims Deed” – includes the following statement: “[r]eserving the right of way along Smith's line to the Williamsburg road.” In this ruling, Judge Haddad recognizes that: “All deeds in the plaintiffs' chain of title, except the plaintiffs' deed, contain an acknowledgement that all of the plaintiffs' predecessors in interest owned their land subject to a right of way. The plaintiffs' deed did not contain such an acknowledgement, but the court finds that this omission of the right of way reservation is of no legal consequence…” This statement acknowledges that the right of way is appurtenant to the plaintiffs’ present description even though the current description makes no mention of the right of way.
For many years, both parties apparently used the strip for access to their respective tracts and both shared maintenance duties of the road, including snow and weed removal. The dispute over the ownership of the strip is a relatively recent occurrence, apparently spurred by construction of a water line and later installation of a sewer line within the 14-foot strip.
One of the more surprising facts in this case is that all four surveyors apparently agreed on the location of the western line of the parent tract to within a few inches. Bearings shown on the various surveys matched to within 10 seconds of arc, and the distance as measured by two of the surveyors were within inches. The court also notes that the surveys presented indicated a fence line along the line as surveyed. Clearly, this was not a case where flawed measurements by one or more of the surveyors contributed to the problem. Nor was conflicting boundary monumentation the central problem.
Ultimately, the dispute concerned property rights rather than a disagreement over the location of the lines. Three of the four surveyors indicated that the defendant (Bacon) owned the 14-foot strip. The fourth surveyor had shown the strip as belonging to the plaintiff (Roll).
Each chain of title introduced ambiguities that ultimately contributed to the confusion faced by the surveyors and by the court. The analysis of the plaintiffs’ chain of title reveals the ease with which the original intent of the parties may become obscured over time. From 1860 to 1950, the phrasing associated with the disputed strip changed no fewer than four times:
a. Original (1860) – "Reserving the right of way along Smith's line to the Williamsburg road."
b. September 1903 – "except a reserve of a right of way along Smith's line."
c. September 1941 – "except the reserve right-of-way leading to lands of Lydia Leeds, formerly Beck."
d. August 1946 – "subject to rights heretofore granted for a private right of way within the tract and along the easterly boundary thereof."
Judge Haddad concluded that the original intent of the parties had been lost in the defendants’ chain as well, and that the intent as expressed in the original documents that created the property interests should control. He also noted that three of the surveyors had come to a mistaken conclusion regarding ownership of the 14-foot strip because of apparent reliance upon subsequent conveyances of the relevant properties.
The relevant language in the defendants’ claim originated in conveyances recorded from 1860 through 1869. The court made a careful analysis of the language contained in each document and considered the physical relationship between the tracts. A major consideration in this process was the meaning of the term “Right of Way” as used in this particular situation. Unfortunately, this term has been used both as an alternate phrase for “easement” and as a description for a strip of land held in fee simple. The ambiguity in this situation required that the court consider relevant language in the descriptions in order to determine the intent of the parties. Most courts approach the term “right of way” with considerable trepidation because it is so often used in an ambiguous manner.
In this instance, the judges concluded that the language contained in the early deeds created an easement. However, changes in the wording of later documents in the defendants’ chain of title included this phrase: "Third Tract: The following tract or strip of land for a right of way out to the Williamsburg and Bethel Pike." The phrase found in a 1987 description clearly at odds with source descriptions and appears to transfer fee simple absolute to the disputed strip. Judge Haddad notes that the surveyors would have had to review deeds back at least as far as 1906 in order to reach the correct conclusion.
Effect of the Marketable Title Act
The effect of the Marketable Title Act (R.C. 5301.47) was also considered. The Ohio variant of the act extends protections to claimants who can demonstrate an: “unbroken chain of title of record to any interest in land for forty years...” This court emphasized that while 40 years was the benchmark for determining the “root of title” defined in the act, the circumstances of this dispute mandated additional research. The judge notes that the level of confusion in the conveyance of the 14-foot strip is sufficient to require the title attorney to perform additional research before the 40-year standard mandated by the Marketable Title Act. He concludes that the attorney: “…had to go beyond the 40-year root of title to determine the intent of the grantor that created the third tract of land in an effort to determine whether the deeds containing the "right-of-way" language were accurate or whether the deeds conveying a fee simple interest were accurate.” Although this statement is aimed at the attorney conducting the title search, it should also be considered a cautionary statement for the surveyor.
Several points come across clearly here. The Marketable Title Act does not create an unbreakable barrier that the surveyor never need cross. In many states, the local variation of the act includes long lists of exceptions of property interests that may not be extinguished after the passage of the time period mandated by the statute. In this instance, the chains of title for both parties were sufficiently clear to provide constructive notice to professionals involved in the case of the existence of some right associated with the 14-foot strip.
Courts consider the determination of the intent of the parties to be of paramount importance. When dealing with the creation of any interest in real property, it is the original intent of the original parties that controls – not the intent that is later imagined by subsequent landowners to have been in the minds of the original parties to the transaction.
This decision illustrates that the surveyor should learn the rules by which the courts determine property rights and then attempt to re-create that thought process on each boundary survey conducted. Even a survey performed in accordance with board requirements and local industry standards will not prevail if the surveyor failed to recover evidence considered significant by the court. This is equally true in situations where documents were interpreted in a manner contrary to established court procedures.
Finally, the courts will not necessarily side with the party who lines up the largest number of professionals on their team. In this instance, three surveyors came up with the same answer, and only one had performed sufficient research and analysis to determine the correct solution. In this instance, the vote was three to one, with the lone holdout the eventual winner.