Boundary

Inference

A deduction of fact that may logically and reasonably be drawn from another fact or group of facts

Estoppel

A legal bar raised by the law which precludes a person, because of his or her conduct, from a certain right that he or she might otherwise have

servitude

A limited real right over another person's property that entitles the holder to certain powers of use and enjoyment

Retracement

A new survey for a parcel that identifies the existing conditions of the boundary lines at the time of the recent conveyance but written in terms of the original description; such a survey should identify the condition of the original corner monuments and should also redefine the definition of the courses in more modern terms

license

A personal, revocable, and usually unassignable permission or authority to do acts on the land of another without possession of an interest in the land

monument

A physical manifestation set at or near a corner; since a corner itself is legally insufficient this is implemented to represent a corner.

Real servitude or predial servitude

A right established in favor of the dominant tenement over the servient tenement; established for the benefit of the land and not the individual; an easement is an example; may be positive or negative

Presumptions of law

A statement, sometimes of fact, sometimes of law, sometimes mixed, that can be considered as being true without further proof; though it is not evidence it may substitute for a lack thereof

Fee Tail

A true freehold estate limited by the grantor to the heirs of the grantee's body or to a special case of people, whereas if the conditions are breached (there are no heirs), the estate reverts to the grantor or his heirs at law or the sovereign

Affirmative or positive easement

A type of easement that permits the possessor of the easement to do some physical act on, under, or over the lands of another party

Life Estate

A type of freehold estate, because it can be conveyed to a third-party, yet its duration is measured by the life of some person

Easement

A type of interest that one person has in the land of another; a nonpossessory right that permits the holder the right to only use that within the boundaries described

Quitclaim Deed

A written conveyance of title in which the grantor warrants the title against all defects during a certain time period, usually from the time after he acquired title and not the period prior to acquiring title

General Warranty Deed

A written conveyance of title in which the grantor warrants the title against all defects from the beginning of time until the end of time

Grant Deed

A written conveyance of title that conveys the fee title of the land described and owned by the grantor (after rights)

Trust Deed

A written instrument which conveys legal title to property to a trustee and states his authority and the conditions binding upon him in dealing with the property held in trust; frequently used to insure loans on real property (acts as a mortgage)

Covenant

An agreement between persons or parties that restricts the use of a freehold property

lien

An attempt to collect unpaid accounts due; if owner refuses to pay

Estate at will

An estate that may be terminated at any time as described by law or contract

Fee

An inherited or heritable estate; a piece of land held in ownership; absolute and legal possession of real estate

Sealed instrument

An instrument in writing to which the party to be bound has affixed not only his name, but also his seal, or a scroll; a seal written beside the signature creates this

Since there are only federal laws as to boundaries, it is under these laws that the boundaries were created, so it is under these laws that disputes must be tried, but there are no federal laws as to property rights or interests. Once land has passed from federal ownership to private parties within a state, the jurisdiction over boundary disputes passes to the state courts, and state law is applicable.

Are there federal laws to property rights or interests once a federally owned parcel is sold to private parties?

If the description is a result of the survey, original lines are created in the survey or is an original survey. If the description is a words only document, there is no original surveyor, only a first surveyor who locates the lines described from the words.

Because boundaries created by words have no calls for monumented corners, who is considered the original Surveyor in the result of a survey, and in a words only document?

1. GLO parcels are created by federal laws, state parcels are created under state laws, and metes and bounds surveys are created by actual survey. 2. GLO parcels are surveyed before disposal, state parcels may or may not have been surveyed before disposal, and metes and bounds Surveys may be created by words alone. 3. GLO parcels have set rules for creation and retracement, state parcels have no set rules for retracement, and metes and bounds retracement usually is determined by case law. 4. GLO parcels have field notes and plats, the state parcels may have copied federal rules or may have been different, and metes and bounds surveys may or may not have notes and plats.

Between federally created parcels (GLO), state created parcels, and metes and bounds Surveys: 1. How were they created? 2. Have they been surveyed before disposal? 3. Do they have set rules for creation and retracement? 4. Do they include notes and plats?

No, they should not practice law or give legal advice. The surveyor should never review sources of law and attempt to provide a client with what could be construed as a legal opinion.

Can a surveyor practice law or give legal advice to a client?

Perimeter Descriptions

Descriptions that are most site by researchers and surveyors, since details of lines and corners increase the comfort level of evidence collection; generally include directions and lengths for the lines and monument calls for the corners

Bounds descriptions

Descriptions that name adjoiners or monuments but do not have a direction of travel and often have no measurements; generally eliminate gaps and overlaps, since abutting descriptions calling for one another ensure one common line between them

No, but it identifies the limits of any rights created or identified

Do boundaries create rights in land?

No, any type of bearing, such as magnetic bearings, true bearings derived from Polaris, a reference to a geodetic triangulation station, or a previous bearing from a previous survey, is acceptable. However, the basis of the bearing should be indicated and should not be left to speculation or assumption.

Does it matter which type of bearing is included in the description?

No, courts can adjudicate and dictate a boundary; two or more contiguous landowners can create mutual boundaries; a single landowner by personal actions; surveyors by their actions

Does one have to be a surveyor to create a boundary?

Public Law 120

Federal act that provides for reconveying to landowners adjacent to lands under secretary of agriculture that are deficient in title because of mistakes, misunderstanding, or inadvertence

Small Tracts Act

Federal act that provides for relief of persons who built improvements on National Forest System Land because of errors

Color of Title Act

Federal act that provides for the sale of public domain lands by the secretary of Interior; public land under claim for over 20 years, possession must be prior to January 1, 1901, taxes must be paid, and the parcel may be no more than 160 acres

Individuals under certain situations can establish their own boundaries through common law, however, many states have identified specific requirements necessary to meet these historical methods.

How are boundaries created by common law?

A deed describing "the South 1/4" or "the north 10 acres" creates boundaries, as does a metes and bounds description having courses and corners.

How can a boundary be created by words?

A corner has no physical dimensions, and it only has a legal dimension, in that an original corner found legally identifies the point of the survey, regardless of whether it is monumented. This applies only if a conflict exists in a description; otherwise, it can control even if it is not called for, but this is predicated on other applications of law.

How can a corner control if it does not have to be monumented?

Statue law defined how respective parcels would be surveyed, the type of instruments used, and the qualifications of the surveyors. They set the dignity of the original surveys for state lands. Examples are the PLSS, GLO

How can boundaries be created by statute law? And what are some examples?

Real property can be given as a gift, sold for a minimal payment of money, sold by government patent (quitclaim deed).

How can transfer of real property be voluntary?

The survey crew must get the permission from the property owner, and without permission, the crew are trespassers and assume liabilities above that of a licensee

How does a survey crew require a license to pass over a persons property?

An easement by necessity exists when the courts hold that an easement of one parcel over another is strictly necessary for the enjoyment of the other parcel. The court examines the availability (not cost or convenience) of whether an alternative means of ingress or egress exists. And if they do, they have the easement.

How does an easement by necessity work?

A government patent, once issued, needs a written instrument to convey. Unless indicated otherwise, the patent offers fee simple conveyance. After title transfer, it is recorded in public repository, thus providing evidence of title to the property.

How is a government patent used for transfer of real property?

The corners must be created by the survey and must be called for in a legal document relating to the specific parcel.

How must corners be controlling over other descriptive elements found in descriptions?

Once the boundaries are created, the landowner can modify the boundaries in any manner desired as long as no property rights have been conveyed to third parties. But once a single lot or interest is conveyed according to these micro boundaries, all micro boundaries within that macro boundary become legally fixed and cannot be altered or modified without approval of all persons who have vested property rights. Basically, the conveyance of a single lot in reference to a plat or subdivision line "seals" the location of all lines and corners referenced and identified on the plat.

If the US Constitution guarantees that one is able to use land without government control or intervention, how come no alterations or modifications are permitted in any manner by either the landowner or any surveyor once property rights have been granted according to the boundaries created?

No, the courts do not look for perfection, but they do look for the ability of a subsequent survey or or person to be able to locate the boundaries of the parcels at a later date.

In a metes And bounds description, does the property need to be described perfectly for the courts?

By action (Random manner), by writings (according to preconceived plans), or by law (identified by common law, caselaw, statute law)

In what three ways can humans create boundaries?

Statutory Law

Laws created by acts of legislative branches of government; legislative branches exist at national, state and local levels

Case Law

Laws that provide court decisions applying the law to a specific set of facts and circumstances

Combination metes and bounds Descriptions

Of all the descriptions, what are the easiest to write but the most difficult to ascertain to conduct title research and to finally survey?

personal servitude

Servitude Established for the benefit of the individual and not the land

Torrens Title System

System where the owner of the title is registered; the state must guarantee right of ownership; law declares no acquired rights by prescriptive means; certifies title but does not illuminate boundary disputes

Common Law

That group of rules and standards of action originating from customs and usage as determined in actual cases; derives its authority from judgments and decrees of courts affirming those customs and usage

Chain of Title

The compilation of all title owners; evidence of title is recorded, not ownership; One must show continuous title record to first conveyance describing parcel.

Estate

The degree, quality, extent, and nature of the interest that a person has in real property

Bounds description

The description that is written and then interpreted as if the person were standing in or placed in the center of the parcel of land and then looks outward to the boundaries of the parcel that is being described

If a warranty deed was used, the grantee can litigate for the remaining half interest or its value. If a quitclaim deed was used, the grantee still got the half interest.

The grantor cannot grant any interest more than which they own at the time of the conveyance. What is the only exception to this rule?

Negative Easement

The holder of the dominant estate can prevent the servient estate holder from some use of property; may include easements for light, air, or scenic value

Jurisdiction

The right and power of a court to adjudicate concerning the subject matter in a given case; embraces every kind of judicial action; has been described as the authority of courts to take cognizance of and decide cases; may be exercised over subject matter and over persons

Judicial Notice

The rule that a court will accept certain things as common knowledge without proof

By conquest or by war and the ultimate peace treaty; by patent from the US government, a form of grant equivalent to a quitclaim deed; by state patent or grant; by deed or private grant; by descent from a deceased party; by will from a deceased person; by involuntary alienation (bankruptcy or foreclosure); by adverse possession; by eminent domain; by escheat; by dedication; at law (courts granting title to accreted lands, etc.); by parol granting under certain strict requirements; by creation, a person creates the land or personal objects; by custom; by prior appropriation; by historical discovery and ultimate possession

There are 17 sources of title. Name as many as you can.

strip description

Type of description that is very basic in its creation, where a single line is usually described and then the limits of the parcel are described relative to the line described; usually describes parcels that are narrow and long, customarily being used in creating roads and utility easements; subject to possible future problems and is often lacking in the area of monumentation

land title

Usually a written document or legal instrument by which one can claim ownership to a separate and distinct identifiable parcel of land or property

Urban servitudes

Usually negative servitudes concerned with residential, commercial, or industrial property; includes drainage, support, party walls, light and air, sewer, and views

Rural servitude

Usually positive servitudes concerned primarily with the land; includes grazing, rights-of-way, and water rights

Agreement, estoppel, acquiescence, adverse possession

What are four ways that a property line can be modified through actions of the landowners?

1. The right to dispose of property, not inconsistent with the law. 2. The right to have land free from interference. 3. The right to support of property, both subjacent and laterally. 4. The right to use waters that flow through or on property. 5. The right to any waters that flow through or touch property. 6. The right to all space above and below surface boundary lines. 7. The right to possess the property. 8. The right to convey or gift the property to second parties. 9. The right to use legal methods to protect these rights.

What are some examples of common law rights?

"Water runs downhill", "Survey field notes from governmental agencies" and laws of other states are all examples of judicial notice knowledge.

What are some examples of judicial notice?

Constitutional law, statute law, common law, case law, and administrative law

What are the five broad categories of law concerning real property?

1. Adverse use without permission (using for personal gain) 2. Open and notorious use 3. Continuous use 4. Use for a specific purpose 5. Used for a statutory period (law dictates how much time is involved)

What are the five ways an easement of prescription exist?

Metes and Bounds boundaries

What are the oldest form of boundaries identified by landowners, surveyed by surveyors, and litigated by lawyers in the courts?

US district courts- includes at least one in each state and US territory, conducts trials, collects evidence, and issues written opinions US courts of appeal - non-trial courts, 12 sitting in total, that hear appeals from the US District Court's and issues written opinions US Supreme Court - hears appeals from the US courts of appeals, issues written opinions, decisions are final, has exclusive jurisdiction over boundary disputes between states

What are the three types of US courts?

To create and describe the original boundaries to a degree of satisfaction, and to conduct a retracement to discover and re-describe the boundary evidence left by the original surveyor

What are the two principal responsibilities of a boundary surveyor?

Anything placed at corners by landowners, surveyors, engineers and others; such as iron pipes or rods, stakes, trees, concrete monuments, nails, etc.

What can be considered an artificial monument?

Rivers, mountains, roads, trees, etc.

What can be used as a natural monument?

They are owners of the land

What does it mean when someone possesses a fee simple or fee simple absolute estate?

If one person causes another to believe that they have an easement and in reliance to that conduct they erect improvements on a landlocked parcel, they have an easement by estoppel. Because the first person led the second person to do something they would otherwise not have done, the first person is denied the right to tell the truth.

What is an example of an easement created by estoppel?

A landlocked parcel that needs an entrance from a public roadway; may have servitude to reach property

What is an example of an implied easement?

Boundary lines between parcels are created in several ways, yet until written documents or legal principles attach, property lines are nonexistent. In theory, a boundary line remains fixed forever where it was located initially, but a property line may change by means of legal principles, including estoppel, agreement, adverse possession, or riparian rights.

What is the difference between a boundary line and a property line?

A conclusive presumption would be something like a four-year-old cannot commit a felony. A rebuttable presumption would be innocent until proven guilty.

What is the difference between a conclusive presumption and a rebuttable presumption?

A dominant estate is an estate that benefits from an easement whereas a servient estate is the land to which the easement is attached

What is the difference between a dominant estate and a servient estate?

A macro boundary is at the level of an international boundary whereas a micro boundary is one that is smaller and parochial in nature.

What is the difference between a macro boundary and a micro boundary?

A point of commencement may or may not be on the parcel that is being described and proceeding by a single course or courses to the point of beginning. The point of beginning is a point on the parcel that is being described, wherein, in a (usually) clockwise direction, the courses are described until returning to the point of beginning.

What is the difference between a point of commencement and a point of beginning in a description?

An appurtenant easement benefits the dominant estate or its holder and attaches to the land; an example is gaining access to a road for a landlocked parcel. An easement in gross attaches to a person, not the land; these are usually for the period of time the individual has the easement, such as a railroad right of way or a right to fish or hunt on a parcel of land

What is the difference between an appurtenant easement and an easement in gross?

Public lands include anything owned by the federal government or body, including military bases, national forests, and numerous federal agencies. Private lands or anything but those public lands, including lands owned by private citizens, state and local governments, corporations, and lands owned by foreign governments.

What is the difference between public and private lands?

Real property is fixed, immovable, and permanent, whereas personal property is consumable, can be destroyed, or is movable at will..

What is the difference between real property and personal property?

The ownership of a land parcel carries with it responsibilities and liabilities, whereas rights will give a person, whether or not a landowner, certain legal rights that can be addressed in the courts.

What is the difference between rights and ownership in land?

Easements are most commonly referenced in a deed or will. The three types are expressed conveyance, expressed reservations, and expressed exceptions.

What is the most common way easements are created? What are the three types?

A description by reference is one that refers to a map or a plat. So, that map or plat must be included with the written land description.

What is the only way a description by reference can be legally valid?

Corners are created and identified, monuments are established, notes are made of the survey, a plat is prepared, lines are marked on the ground, and actions resulting in descriptions are last

What is the process of how a boundary is created?

Boundaries can affect human lives, especially between neighbors, cause big debates, even sometimes war, and identifies citizenship and jurisdiction in legal matters

What is the significance of boundaries?

Land Act of 1785

What was the first federal law of real property enacted?

Only when the originally created evidence becomes so questionable that a retracing surveyor is unable to find it or when a transfer of the property is contemplated.

When is a resurvey required?

It is the surveyor's responsibility to name the owners along a boundary line, whereas the identification of parties who have or may have a property interest is a legal question and should be addressed by a lawyer. However, the surveyor may have intimate knowledge of who is in possession or in whom title is listed.

When naming all parties to an action, what are the responsibilities of the surveyor and the lawyer?

Natural monuments usually will control legally over artificial monuments because their identification is more certain and they are less likely to be disturbed

When there is a conflict between or question about a natural monument and an artificial monument, which controls legally?

The calls for the adjoiners become the monuments, and therefore, they are described first. The parcel being surveyed is identified only after the elements of the boundaries are ascertained and located. The parcel being surveyed gets all that is left after the elements are located.

Which are described first in a bounds description, The parcel being surveyed or the calls for the adjoiners?

Abstractors for 40 years or more, title companies will issue chain of title insurance to cover omissions, and attorneys but they may only need to go back about 35 years or so

Which type of third parties will research title?

US Supreme Court

Who has exclusive jurisdiction over boundary disputes between states?

Court reports

Written records of the testimony and proceedings of cases tried in superior court or other competent court which are kept but not published; written for and in the language of the attorney, not that of the surveyor; findings of cases appealed to a higher court are published in book form and available in law libraries

lien

a right to keep possession of property belonging to another person until a debt owed by that person is discharged.

Administrative Law

the body of law that regulates the operation and procedures of government agencies, such as state registration boards

Escrow

the depositing of money, legal documents, and instructions with a third party to be held until the conditions of a contract are fulfilled