Identifying and Resolving Boundary Disputes During Land Development … a legal primer for surveyors Robert L. Beebe, Esq. The Law Office of Robert L. Beebe, LLC Clifton Park, New York ~ Paul M. Malecki, Esq. PaulMaleckiLaw Albany, New York
Surveyors and Surveys in Law The Practice of Surveying- “The practice of the profession of land surveying consists of practicing that branch of the engineering profession and applied mathematics which includes the measuring and plotting of the dimensions and areas of any portion of the earth, including all naturally placed and man- or machine-made structures and objects thereon, the lengths and directions of boundary lines, the contour of the surface, and the application of rules and regulations in accordance with local requirements incidental to subdivisions for the correct determination, description, conveying, and recording thereof or for the establishment or reestablishment thereof.” (N.Y. Education Law § 7203) The Art of Surveying- “The art comes in when a surveyor must solve a puzzle using pieces that do not exactly fit together. In these cases the solution is based upon the research and interpretation of the surveyor, and following established procedures for resolving discrepancies.” (Wikipedia)
Understanding Basic Principles Of Boundary Law The law of boundaries is effectively based on two legal concepts: 1) the English “Statute of Frauds” (1677), codified in New York by Article 5 of the General Obligations Law, which requires that any conveyance of an interest in real property be in writing, and 2) the colonial “recording acts,” codified in New York by Article 9 of the Rea Property Law.
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In medieval England, the source of many of our laws relating to property, land was transferred by a ceremony known as “livery of seisin.” On the land, in the presence of the feudal lord, or others of authority, the grantor would recite the land being transferred, and to whom the land was being granted, with a clod of earth handed from grantor to grantee to signify the “deed,” accompanied by a promise of fealty, service or goods as consideration. When the transfer was not on the land, or in those rare instances when the transfer was by written grant, the grant was “livery by law.” The Statute of Frauds While livery of seisin was suitable for transfers of land from one local resident to another, particularly when the land was agricultural in nature, the system was unsuited to transactions based on money as the sole means of consideration, particularly when the purchaser did not intend to occupy the land. The sale of confiscated church lands for cash by Henry the VIII was a “landmark” event in this change. One outcome of the shift away from livery transactions guaranteed by the fealty of the participants was to encourage various frauds and double-dealing. To combat this problem, Parliament passed the Statute of Frauds in 1677: Charles II, 1677: An Act for prevention of Frauds and Perjuryes. [I] Reasons for passing this Act. Parol Leases and Interests of Freehold, &c. to have the Force of Estates at Will only. For prevention of many fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury Bee it enacted by the Kings most excellent Majestie by and with the advice and consent of the Lords Spirituall and Temporall and the Commons in this present Parlyament assembled and by the authoritie of the same That from and after the fower and twentyeth day of June which shall be in the yeare of our Lord one thousand six hundred seaventy and seaven All Leases Estates Interests of Freehold or Termes of yeares or any uncertaine Interest of in to or out of any Messuages Mannours Lands Tenements or Hereditaments made or created by Livery and Seisin onely or by Parole and not putt in Writeing and signed by the parties soe makeing or creating the same or their Agents thereunto lawfully authorized by Writeing, shall have the force and effect of Leases or Estates at Will onely and shall not either in Law or Equity be deemed or taken to have any other or greater force or effect, Any consideration for makeing any such Parole Leases or Estates or any former Law or Usage to the contrary notwithstanding.
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…II. Except Leases not exceeding Three Years, &c. ….III. No Leases or Estates of Freehold or Copyhold, &c. to be granted or surrendered but by Writing signed. And moreover That noe Leases Estates or Interests either of Freehold or Terms of yeares or any uncertaine Interest not being Copyhold or Customary Interest of in to or out of any Messuages Mannours Lands Tenements or Hereditaments shall at any time after the said fower and twentyeth day of June be assigned, granted or surrendred unlesse it be by Deed or Note in Writeing signed by the party soe assigning granting or surrendring the same or their Agents thereunto lawfully authorized by writeing or by act and operation of Law.
Real Property Interests Conveyed in Writing: Deeds and the Chain of Title In English law, land owners needed to prove their ownership of a particular piece of land back to the earliest grant of land by the Crown to its first owner. The documents and testaments relating to transactions with the land were collectively known as the "title deeds" or the "chain of title". These grants could have occurred hundreds of years prior and could have been intervened by dozens of changes in the land's ownership. Even an exhaustive search of documents comprising the chain of title would not give the purchaser complete security, due to the possibility of undetected outstanding interests, particularly oral promises, promises in livery transactions, or interests never made public. The solution in colonial America, later adopted in England, were “recording acts,” laws requiring interests in real property to be recorded by a governmental agency and made available for public inspection. The effect of recording pursuant to, such an act, is to give the recorded instrument "priority" over all instruments that are either unrecorded or not recorded until some later time. (See, Sir William Blackstone, Commentaries on the Laws of England, edited by William Carey, 1915). New York’s recording act is encompassed by Article 9 of the Real Property law
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Maps and Surveys as Descriptors of Land The Domesday Book compiled for William the Conqueror in 1086, was the first comprehensive system of describing parcels of land by narrative surveys. In 1085 he "had deep speech with his counsellors and sent men all over England to each shire to find out what or how much each landholder had in land and livestock, and what it was worth." One of the main purposes of the William’s project was to determine who held what, and what taxes had previously been liable under Edward the Confessor; use of such surveys over the next several centuries was primarily for purposes of valuation and taxation. The notion of transferring such narrative information to a flat map (cadastre) was made possible by advances in cartography, mathematics and measurement instruments during the late 15th and early 16th centuries. The desire to use these advances to map landholdings arose from the creation of new estates following Henry the VIII’s dissolution of the monasteries and the increasing practice of purchasing land rather obtaining land through livery of seisin. Precise mapping of a private landowner’s parcels was facilitated by Sir Richard Benese’s publication of “…the maner of measurynge of all maner of lande…” c.1537, describing a method of measurment based on geometric shapes. This book may be regarded as the foundation of modern map-based surveying. (Donald Kimball Smith, The Cartographic Imagination in Early Modern England, Ashgate).
Development of a cadastre-based system as a public record of land titles and boundaries is generally credited to Napoleon. (Wikipedia) Maps and Surveys Surveys Referenced in Deeds and Recorded The purpose of recording a survey is to give notice to the world of the precise location, boundaries and rights of access conveyed, as they relate to a parcel in a real property transaction. Real Property Law §333-a requires that a duplicate of any map referred to in a deed be filed before the deed can be recorded in the county clerk's or recorder's office. RPL §333-b allows recording of maps that are not subdivision plats. RPL §334 requires recording of subdivision plats. RPL §381 requires the filing of a map of any parcel sought to be registered (the process of verifying ownership without constructing an abstract of title).
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Where a conveyance of a property has already been recorded, the submission of a survey along with another copy of the conveyance would be a reformed deed. The filing of such reformed deed would include the original deed, the survey, and a cover (grantee to grantee) indicating that the deed was being reformed by virtue of addition of the survey.
Retracing the Chain of Title: Compile an Abstract An abstract of title is a compilation, in orderly arrangement, of the documents and facts of record, from the offices of the county or court clerks, affecting the title to a specific parcel of land. It is not the complete evidence of the title, nor proof of boundaries, but a synopsis of the documents which show title. (See, Crisafulli v. State, 198 Misc. 941(N.Y.Ct.Cl. 1950). Thus, an early task facing a developer of land is to use an existing abstract, or to commission a new one, to establish and retrace the deed chain, the written record of transactions that have created and describe the parcel or parcels that are proposed for development, starting with the location and description of boundaries, following through with estates (rights) granted along the chain. (See, Lynch v. Sanders, 8 A.D. 613 (3d Dept. 1896)).
A deed is traditionally considered to have two parts: the “premises” and the “habendum clause.” “That part of the deed called the ‘premises' contains inter alia the names of the contracting parties, the granting or operative words, a designation of the quantity of the estate transferred as by the use of the word ‘heirs', a description of the property and quite commonly a designation of encumbrances and exceptions; and that portion of the deed extends from the beginning to the words ‘To have and to hold’, known as the habendum clause. In ancient conveyancing, the office of the habendum was to determine the interest granted or to lessen, enlarge, explain or qualify the premises, but in modern conveyancing it has ceased to perform that function.” (Bannin v. Peck, 266 A.D. 209 (1st Dept, 1943). The traditional rule is that when the habendum clause conflicts with the premises, the premises is superior. (Ibid.). For a definitive location of boundaries, one looks to maps and surveys noted in the abstract. Depending on the existence or non-existence of such evidence, the surveyor’s task on behalf of a developer will be to retrace or extend earlier work, or to create a new survey using language from the deed chain. (Crisafulli, Ibid.)
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Evaluating Boundary Evidence -
Legal Descriptions in Deeds or Maps
… “bounded by” In many portions of United States, including rural areas of New York, land was described by the landmarks and parcels that it met and was bounded by (the original “metes and bounds”). Land so described in current deeds may only be accurately surveyed by tracing the prior adjoining grants, finding mention of monuments and/or distances, and then running lines based on the best available information. It is not an exercise for an impatient person. …courses and distances Confusingly called “metes and bounds” by many current texts and courts, courses (compass degrees, angles, etc.) and distances (feet, meters, etc.) are the contemporary standards for land survey measurement. …Chains, Links, Rods & Poles Land in America, from colonial times through well into the 19th century, was measured by “Gunter’s Chain,” the surveyor's measuring tool invented c.1620, by Edmund Gunter, a professor at Gresham College, London. Gunter described a precisely made iron chain 22 yards in length consisting of 100 links, containing a brass marker every 10 links. Because Gunter's iron chain had 100 links, it could be used decimally to state measurements. For a surveyor, it was useful in laying out plots based on doubling the chain and redoubling it, or halving or sectioning it as needed. Land described by these older measures must be converted in contemporary survey maps (best practice is to include the original and converted distance alongside on the map).
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Chains, Links, Rods & Poles… Converting Gunter’s Chain to contemporary measurements. Chain = 66 feet Chain = 100 links = 66 feet Chain = 4 rods = 66 feet Link = 7.92 inches Rod = 1 Perch = 1 Pole = 16.5 feet Statute Mile = 80 chains = 5,280 feet Acre = 208.71 x 208.71 feet = 43,560 square feet = 4,840 square yards Acre = 10 square chains = 160 square rods
- Follow the Steps of the Original Surveyor, if Any …The original survey is presumed to be correct …Planar coordinates Land survey systems based on coordinates defined by specialized mapping schemes, in conjunction with computer-aided mapping and location devices such as GPS (ground positioning satellites) are increasingly being utilized in engineering and planning projects. However, the validity of such systems in determining land titles has not been tested to any meaningful way in the courts. Monuments: Superiority of Calls In order to have some semblance of relationships in the value of various parts of control in descriptions, there has been established an order of superiority of calls (sometimes called elements, commonly known as “rules of construction." Although the various state codes express them in different ways, the following is a general summary: 1. Monuments: natural, artificial or legal; Those that are natural, are such as rivers, lakes, oceans, etc. or artificial, such as stakes, iron pipes. cement posts, etc., or legal, referring to matters of record or some combination of these kinds of monuments which are recited. The recital of these in descriptions adds to the supremacy of them over other conditions.
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2. Monuments: physical or record; not recited but disclosed by reference to maps and/or other documents of record. 3.
The recital of a boundary of record, such as reference to a map or a deed.
4. Recited distance and/or bearing ties to record corners or lines not on boundary of instant property. 5.
Distances on boundary, without ties to any of the foregoing.
6. Bearings on boundary or angles between lines, without ties to any of the foregoing. 7. Areas stated as a corollary or an addendum to the description. When an area is made specific such as "the north 50 feet" or “the north 10 acres," the status is converted to a dimensional control and rates the same as no. 5 above. In Jackson v. Sprague, 13 Fed. 253 Cas. 7148, the court held that where both the quantity of land and a metes and bounds description is given, the latter will control. Addendum details on these calls will follow in correlative areas. Robillard, Walter G., Evidence and Procedures for Boundary Location 4th ed., Wiley
Rights (“Estates�) Conveyed In addition to locating and describing the property, the abstract should alert a developer to rights and restrictions that have been conveyed by grantors in the chain of deeds. There is a preference for taking title to land in fee absolute, as sole owner without restrictions. Restrictions that could hamper development are easements, partial estates, rights of re-entry, covenants, and reverters. For example, railroads constructed in the 19th century, obtained easements, conditioned by potential reversion rights, for roadbeds. That is, a railroad typically obtained rights to exclusive use of the land, for railroad purposes, through voluntary agreements with landowners. However, the agreement usually included a proviso that the land would revert to the original owners (or successors) if use as a railroad were abandoned. The reversion might be automatic on abandonment (possibility of a reverter), or might give the successors a lesser right of reentry that must be exercised through legal action (right of reentry). The language of the agreement (aka grant, or deed), as interpreted by the courts, will control.
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The common law in New York is that a possibility of a reverter, retained in the grant of an easement, operates automatically to extinguish the easement when the reverting event occurs. In the case of railroads, right of way easements are generally extinguished when rails are pulled up. The act of pulling up rails would also be the trigger event for a legal claim based on a right of reentry. However, a portion of the Federal “Rails to Trails Act,” 16 USC §1247(d), provides that where the Federal Surface Transportation issues an Order allowing an interim use of a roadbed for public trail use, such Order and use “shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.” Where the STB’s §1247(d) interim trail use Order precedes any trackage removal, Federal law pre-empts any reversion claims as long as the Order remains in force. Another problem relating to rights conveyed is the right to land under water (riparian rights). An owner with land bordering navigable water (that affected by tides) owns no further than the high-water mark (Ex parte JENNINGS, 6 Cow. 518 (1826), deciding claims for land taken for the Erie Canal), although the owner has the right – if not prohibited by statute – to erect a dock along the property line (Fairchild v. Union Ferry Company, 21 Misc. 513 (N.Y.Sup.,Oct 04, 1923); affrm’d by 212 A.D. 823 (2d Dept, 1925); affrm’d without comment by 240 N.Y. 666 (1925)). On the other hand,
an owner with land bordering non- navigable water owns to the center of the stream or lake. (Ex parte JENNINGS). Where language indicating any restriction is discovered in the chain of title, an attorney with experience in such matters should immediately be consulted for an opinion letter stating the likelihood of interference, if any, of such restriction on a developer’s plans for the parcel.
Resolving Boundary Disputes A boundary dispute may arise in many ways, from active and conflicting claims of adjacent owners, to inconsistencies discovered in retracing the chain of deeds and prior surveys. Actions to prosecute or defend property boundaries, including pro-active actions to settle inconsistencies, are encompassed within proceedings pursuant to Article 15 of the Real Property Actions and Proceedings Law. A recorded survey would be part of the evidentiary chain introduced by a party in the proceeding. The advantage of a recorded survey, as opposed to a survey not recorded, would depend on the facts and circumstances at issue in the proceeding. Surveys are primary evidence of property boundaries, subject to examination at trial in the same manner as any other document produced by an expert. (Inter County Farmers Co Operative Ass'n v. Lekowitz, 47 N.Y.S.2d 865 (3d Dep't 1944).
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In New York, “Frye” is the standard for admissibility of evidence and testimony of an expert. (Frye vs. United States, 293 F. 1013 (D.C. Cir. 1923)). More conservative than the “Daubert” standard applicable in Federal courts, Frye requires that evidence or opinion must be in keeping with procedures, principles
or techniques "generally accepted" by a meaningful segment of the associated professional community. Thus novel interpretations of deed language or survey evidence by an expert are likely to fail. The original survey, as noted above, is the prime evidence of boundary lines, even though that survey may be an “ancient document” more than 30 years old, with the original surveyor not available for examination at trial (See, Fairchild v. Union Ferry Company, op cit.).
As detailed in 1896 by the Third
Department in Lynch v. Sanders v. Eldridge: The controversy in each case is over a garnet mine. In the first case, if the mine is situate upon lot 59, Totten & Crossfield's purchase, township 14, Pond's survey, made in 1802, then the right to work the mine is in the plaintiffs under a license from the state. If, however, the mine is not upon lot 59, then it is upon lot 62, owned by the defendant, and holding title as the lot is described by said Pond's survey. These lots adjoin each other, and the problem is to locate the boundary between them according to Pond's survey. In the second case, if the mine is upon the east half of lot 57, in the same township, according to Pond's survey, then the plaintiff has the right to work it. If not upon the east half of 57, it is on the west half of the lot, and the defendant has the right to work it, unless, for reasons hereafter to be considered, the plaintiff has the right to the garnet on the west half of the lot. The determination of the westerly boundary of 57 will aid in fixing the boundary between the easterly and westerly halves of the lot, and the westerly boundary of 57, prolonged northerly, will give the boundary between lots 59 and 62. The two cases were tried together, and may now be considered together. The exterior lines of the Fourteenth township of Totten & Crossfield's patent were originally surveyed and indicated by marked trees in 1772 by Israel Thompson, and he platted upon a map the interior lots, 144 in all, some of which he surveyed. In 1802, John Ireland, having acquired title to the north half and the southeast quarter of the township, caused his three-quarters of the township to be surveyed by Benjamin Pond and subdivided into lots. The northerly central part of the township is rocky and mountainous, and Pond did not locate the lot lines of this portion upon the ground, but drew them on his map. The map then made by Pond and the field notes of his survey constitute the “Pond's survey,” referred to in the titles of the respective parties. This survey the plaintiffs produced in evidence. This is the controlling survey in these cases. All other surveys, unless based upon Pond's survey, or shown to correspond with it, are irrelevant.
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The control of surveys is not absolute, however. Where surveys conflict, or appear to contradict past behavior of owners, courts will often look to the intent of the grantors: in reconciling conflicting recorded map and subsequent survey, presenting a gore of undetermined ownership, court looked to the intent of the original developer/ grantor (Wates v. Crandall, 144 N.Y.S.2d 211 (Sp. Ct, Queens, June 21, 1955). In reconciling conflicting descriptions of enclosing courses & distances with the adjoining owners’ long-established acceptance of a split in the originally enclosed properties, the court noted: The rule for the construction of deeds, established to effectuate the intention of the parties, authorized the rejection of false particulars in the description of the granted premises, and subordinates the less material facts to the more certain and material ones where there is inconsistency. Thus, monuments generally control courses and distances, because grants are supposed to be made with reference to an actual view of the premises by the parties‌ [Here] It cannot be doubted that the parties to [another action regarding the same property], on reading the description in the complaint, would locate the land by reference to the [smaller portion of the long-separated] property, rather than by the courses and distances, which could only be located by a survey, the monuments mentioned having been lost or destroyed. (Masten v. Olcott, 101 N.Y. 152 (1886).
Where a conveyance is by lots and reference to a map, the map controls rather than the dimensions in the deed. (Mazzucco v. Eastman, 36 Misc. 2d 648 (Sup 1960), judgment aff'd without opinion, 17 A.D.2d 889 (3d Dep't 1962)).
Tax maps and similar administrative products not recorded pursuant to law are of no value in proving boundaries. (See, Crisafulli v. State, 198 Misc. 941 (N.Y.Ct.Cl. 1950)).
Oral statements by prior or current owners regarding boundaries are only acceptable as evidence where the true boundary cannot be determined from the relevant deeds or surveys. (Vosburgh v. Teator, 32 N.Y. 561 (1865); Adams v. Warner, 209 A.D. 394 (3d Dep't 1924); Miner v. City of New York, 37 N.Y. Super. Ct. 171 (1874)).
Boundary Disputes Frequently Present Novel Questions: County of Chenango v. County of Broome, 180 A.D.2d 319 (3d Dept, 1992): natural boundaries Town of Roxbury: the missing mountaintop The People v. Hillman, 246 N.Y. 467 (1927): who has jurisdiction when highways are granted to another government?
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Resolving the Most Common Boundary Disputes: the Law of Adverse Possession Adverse possession is a method of acquiring legal title to land through occupancy that is actual, open, notorious, exclusive, and continuous for a period of at least 10 year, under claim of right, and in opposition to the rights of the true owner. It is an extension of the notion of squatters’ rights, a belief that someone who turns unused and unproductive land into productive land ought to have rights to that land. The legal theory underlying the vesting of title by adverse possession is that title to land must be certain. Since the owner has, by his or her own fault and neglect, failed to protect the land against the hostile actions of the adverse possessor, an adverse possessor who has treated the land as his or her own for a significant period of time is recognized as its owner. Legislatures have adopted the common law of adverse possession, and Courts have enforced the law, because when adverse possession is carefully and fully proven, it is a means of settling disputed titles. (Walling v. Przybylo, 7 N.Y.3d 228 (2006). Chapter 269 of the Laws of 2008 created fundamental changes in the manner in which persons could claim rights to segments of neighboring property by adverse possession. While the Legislature claimed to be remedying perceived inequities in recent court cases (see Governor’s message and text), attorneys who concentrate on such law claim that while simplifying some aspects of the law (cutting a neighbor’s lawn does not give rise to a claim of adverse possession), the new “claim of right” provision (RPAPL §501(3)) -- substituting a state-of-mind test for an objective standard – will create havoc in many situations where a paper trail of clear title may not exist. This is particularly problematic in places such as the City of New York, where conflicting or inadequate surveys have resulted in gores and overlaps. As they say, the jury is still out on this new law.
____________________________________________ References for Further Reading Robillard, Walter G., Evidence and Procedures for Boundary Location 4th ed., Wiley Linklater, Andro Measuring America: how the United States was shaped by the greatest land sale in history, Plume/Penguin
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