Answers to Q # 1 & Q # 2…
I thought that I was asking a couple of pretty harmless questions, but it sure stirred up a lot of unintended speculation, fear and loathing.
>What is a [real property] boundary?
Sounds simple enough. Shouldn’t be a big deal to define.
- Rob E. said, “The Limits”
- Jared M. said, “That Line between contiguous pieces of property.”
- Frank S. said, “a place/point/line/whatever that separates the interests of the parties involved”
- Holy Cow really waxed eloquent, “In real property matters, a boundary is where the portion of the bundle of rights held by a specific party begins and ends. … [msg=68881]Link[/msg]
These definitions focus on the concept that a boundary is the “separation between two contiguous properties.” I had, for years, thought of a boundary in a “conceptual” sense, defined by it’s mathematical properties of location and orientation. I thought of a boundary as an invisible, dimensionless, theoretical concept defining the limit of an estate, whether it was a fee title ownership, an easement right, or a regulatory interest.
But, then, there are other parts of the definition of a boundary which also made sense.
- Paul P. said, “Fences, row of trees, mow lines, plow furrows anything that qualifies as a limit line.”
- Paul PA said, “In Colonial States we have Bounds and Boundaries.”
- Richard S. said, “Within the context of real property ownership; any physical evidence recognized and accepted by the affected land owners that marks the limits of their occupation and control.”
- Azcliltx pls said, “The limits of the parcel as described within the deed, which actually conveys the real property ownership in fee. The physical limits may or may not have been conveyed.”
- and, Dave K. said, “A natural or artificial separation that delineates the confines of real property.” He augmented his first description as, “A boundary is the physical implementation of the words of the Deed description.”
This group of definitions focus more on the physical properties of a boundary. This definition didn’t really conflict with my understanding of the “invisible” boundary, other than determining precisely where an invisible, meandering point-to-point connecting line would fall.
Linebender posted the “legal” definition:
>Natural or artificial separations or divisions between adjoining properties that show their limits.
>A boundary is every separation, natural or artificial (man-made), which marks the confines or line of division of two contiguous estatesAt first glance (which is all that I ever gave it), the legal definition contains both concepts: 1) A separation of two contiguous estates, and 2) natural or artificial properties. The part that I skipped over was the part “which marks the confines or line of division.”
According to this definition, every boundary is physically “marked” by either “natural” or “artificial” monuments. The legal definition has no reference to a theoretical, invisible, concept of an invisible line. The boundary “marks” the confines or line of division. If that is truly the case, then every boundary we survey should be “marked.” Every boundary should have “physical” properties. We should be able to see it and touch it. We should be able to “discover it.”
But, wait a minute, right? We’ve all “seen” boundaries that weren’t “marked.” What about protracted boundaries? They’ve never been run out on the ground. They’re not “marked.” Why aren’t they marked? Because the owners chose not to mark them. The feds made a conscious decision to not mark the center of the section. Developers commonly chose to mark only the block corners, not each individual lot. Grantors and grantees chose not to have a line marked prior to the conveyance and chose to describe the “boundary” by dimensions or acreage. They’ve chosen to “create” the boundary without “marking” its location on the ground. Does this mean that the boundary will never have any “physical” properties?
So, if boundaries are “physical” objects, then how can “boundaries” be created that have no “physical” properties? That leads me to Question #2:
>How are real property boundaries created?
I’ve asked this question to rooms full of surveyors across half of the country. As simple as this question seems, I’ve seen a clear pattern of extreme diversity without much focus.
- Loyal and CV concurred, “Generally by the actions (and sometimes INaction) of two or more parties.”
- Brian A. said, “By the actions and intentions of the landowner(s).”
- Carl Z said, “By the consent of the owners, or, a court, in a judicial sense, on sale or execution of or by eminent domain or exercise of the police power, can establish a new boundary without the consent of either or both of the adjoining landowners.”
- Joe Surveyor said, “When determining boundary line in deed, if the description in deed is clear and unambiguous, it must me given in effect; in such case, inquiry is not intent of parties but intent that is expressed in the deed.”
- Paul P. said, “Through rows of red tape, held hoops and lots of money.” (coming from a CA surveyor, I can sympathize! ;o))
- Kris M. said, “Obviously, boundaries are created in multiple ways. Original lines ran from the owners. New division lines created thereafter. Adjustments made to the lines in a myriad of ways.”
- Richard S. gave his oft repeated response, “Alienation. In real property law, the transfer of the property and possession of lands… and, Restraint on Alienation. A provision in an instrument of conveyance which prohibits…”
- Foggyidea said, “Real property boundaries are created by occupation and agreement.”
- Jud said, “… they are created by having an initial right to occupy land then by use of that land, and the successful defense of that lands bounds.”
- Gordon S. put a divine spin on it, “And God said, “Let the water under the sky be gathered to one place, and let dry ground appear.” And it was so. God called the dry ground “land,” and the gathered waters he called “seas.” And God saw that it was good. …”
The above grouping focuses on the actions and intentions of the landowners, while the grouping below focuses more with the surveyor’s involvement.
- Paul PA said, “The artificial boundaries that surveyors concern themselves with are fleeting. We are demigods in that we can create an imaginary line.”
- RADU said, “… parcels for transfer … are identified by physical placement of identifying markers on the land or by written description from a point of beginning, with or with out field surveying.”
- Perry W. said, “subdivision plan, but I’m guessing you wanna go deeper than that.
- Linebender said, “by agreement written or implied”
- Derik G said, “By an interpretation of the intent of the extent of the description within the registered document taking into consideration of the common and statute law.”
- LRDay said, “Boundaries ARE NOT created by retracement surveyors with calculators and least squares programs.”
- Adamsurveyor gave a very thoughtful response and engaged in a good dialog with LRDay, “… although we technically don’t “create” boundaries and it is often the property owners acceptance of our corners that really “creates” them, in reality we do. …” [msg=69332]Link[/msg]
- A Harris said, “A real property boundary is created when monuments are accepted that limits ones ownership.”
The short answer to the question, “How are real property boundaries created,” is fundamentally, quite simple. If a boundary is, by definition, the separation between two contiguous estates, then a boundary is created when an estate is separated or divided. The only way for an estate to be divided is for the owner to convey a portion of their property to another owner (in the case of an easement boundary, the owner conveys a right of use to another). The act of dividing an estate creates the boundary.
There’s one shortcoming, however, in this explanation. If a conveyance creates the boundary, what does that have to do with the physical properties? The only way for a boundary to be fully defined is for it to take a two-step process: 1) a conveyance that creates the boundary, and 2) an action by the landowners to physically establish its location.
As surveyors, we want to focus on the second part. We want to be the ones to lay out the boundary on the ground, monument it, an describe it. But, we want it to happen prior to step number one. That’s undoubtedly the best way for it to happen. We all know that “original monuments” control! When step two happens after step one, that’s when we surveyors get all corked around. We have no defined rules to guide us. We fall back on our measurements because we find comfort in their certainty. We want to test every physical object we find against the measurements to determine if they are “acceptable” or not. There is no law that supports this thinking.
The courts don’t seem to share our problem. They’ve got a well defined set of rules that will tell a surveyor in every instance whether the boundary has been physically established on the ground or not. There is an entire body of law that tells us how to determine what physical objects control the boundary location. The rules even tell us what to do when no physical objects are found to control. It all comes down to surveyors whose duty is to gather the physical evidence, the record evidence and the oral testimony necessary to determine which rule of law will apply and where the boundary line is located.
- Dave K. expressed his impatience, “If you want to write a dissertation, then do so and we can at least rip into it.”
Well, I guess I just did.
JBS
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