These blog articles are not to be construed as legal advice, and readers should not rely upon this information as a substitute for direct consultation with your attorney. For further information about the issues discussed below, or questions about the positions stated herein, call Jim Wright at (907) 277-6175. Your comments, suggestions and inquiries are welcome.
When a landowner has doubts about the precise location of his or her boundary, it’s time to call a surveyor. This is a retracement survey. The retracement surveyor does not establish the boundary line. His or her role is to locate the line created by the original surveyor – the one who mapped out the subdivision. The retracement surveyor’s role is to provide his or her professional opinion of where the original line on the ground was. And to do that, the retracement surveyor must follow the footsteps of the original surveyor.
In boundary disputes we often find that two or more retracement surveyors don’t agree on the location of the original boundary. That is rarely due to error in measurement. It is usually due to disagreement about where to measure from. It is important that the retracement surveyor anchor the survey work to reliable monuments – those that reflect the original survey. There are rules to help that occur. Before reviewing some of those rules, it will help to understand a bit about the process of surveying.
The process of surveying is typically a progression of measurements from primary monuments to secondary monuments or markers.[1] The Bureau of Land Management, or BLM, surveys Alaska’s lands into sections, half-sections, and quarter-sections, marking the corners of those sections with monuments capped in brass, labeled and well-anchored in the ground.[2] These lands, mapped in a grid,are later conveyed by federal patent into state or private ownership.[3]
A subdivision plat is surveyed by reference to these primary BLM monuments, and must be consistent with them.[4] The corners of the subdivision plat, in turn, are primary monuments relative to individual lot corners, which are surveyed by reference to the boundaries of the larger plat. The subdivision corners, being primary monuments relative to lot corners, are similar to BLM section corners – that is, they are capped in brass or aluminum, labeled, and anchored in a case or well (steel tube), so that they are fixed, and less likely to move than are secondary markers, such as lot corners of rebar set in dirt.
Individual lot corners are dependent on the more primary subdivision plat corners and boundaries. In the 1970s, lot corner markers were not individually labeled. They were marked by rebar, pounded into bare earth. Later, surveyors adopted the convention of capping their rebar with their registration number, so that an inquiring person can seek out the data that led to their placement.
Rebar used in surveying is sometimes moved or disrupted by utility companies, landscapers, contractors, and/or individual property owners. These same persons or companies may place their own rebar, which is not part of the original survey and may confuse later retracement surveyors. Thus, in order to identify true lot corners, it is important to corroborate found locations of rebar by measurement from more firmly fixed primary monuments relied on, or set by, the original surveyor.
With this context in mind, here are a few rules that should guide the retracement surveyor’s work, and our reliance on it:
1) An original subdivision survey is required to be consistent with government (here BLM) monuments.[5] Therefore, a retracement surveyor should reconcile its survey with nearby BLM monuments, as the original surveyor did.
2) Once a subdivision plat is made and recorded, reference in a deed to the plat incorporates the plat.[6] Therefore, a retracement surveyor should reconcile its survey with the subdivision plat boundary. This will generally provide a mathematically correct line.
3) The original surveyor measured from the government monuments, making and recording the plat of the subdivision. But what is recorded on the plat, or map, may or may not coincide with the marks on the ground, as the original surveyor may have made an error. A proper retracement survey must follow the footsteps of the original surveyor of the subdivision,[7] in order to define the line on the ground.
4) If the retracement surveyor finds error in the measurements of the original surveyor, the error should be identified and isolated, so that it is not extended to other lots.[8]
5) A retracement survey which locates lines in accordance with a recorded plat will generally prevail over a survey not shown to be in accordance with the recorded plat.[9]An exception to this rule exists when error is identified on the ground, or where boundaries are altered by historical usage.
6) When an original survey corner monument is lost (“obliterated”), so that there is doubt about where a boundary line exists, the history of usage between adjoining landowners (adjoining the disputed line) is strong evidence, often said to be the best evidence, of where the original monument was. Thus, for example:
When questions arise as to the true location of a boundary line, a practical location thereof by the persons interested becomes of the highest importance. It is a well-settled rule of law, resting upon public policy, that a practical location of boundaries which has been acquiesced in for a long period of years will not be disturbed. It is binding on the parties thereto and their privies in estate. This doctrine has been adopted as a rule of repose with a view of quieting titles and preventing litigation.[10]
7) An older retracement survey is arguably given weight and a qualified preference, based on the presumption that original survey monuments, directly governing or from which to more accurately measure, were more likely to have been found closer in time to the original survey.[11]
8) When the adjoining landowners have agreed to a boundary line for a long period of time, and/or acquiesced in it, and relied on it, the agreed and/or acquiesced in boundary line governs, regardless of the mathematically correct boundary line.
The retracement surveyor will generally provide measurements to determine the mathematically correct line. If the steps of the original surveyor do not appear to follow the line he or she mapped out in the subdivision plat, or if the line now appears different based on the understanding and use of adjoining landowners, then it is time to look into the history of usage. The history of usage may establish a different boundary than that shown on the recorded subdivision plat, a topic I will address in a future article.
The role of the lawyer then involves not only working with the surveyors, but also gathering evidence of historical usage, which may include the field books[12] of prior surveyors, aerial photographs over time, and interviews of prior owners of the lots in question and of the neighbors. Digging deeper, the lawyer may gather evidence of utility work in the area, or roadwork, that might have disrupted original markers but also might have involved pertinent survey work to set the boundaries of utility easements or roadways before such work began, or “as-builts” showing the practical location of such easements and rights of way after such work is complete.
We have substantial experience working with surveyors and gathering such evidence in order to help resolve boundary disputes on an informed basis. For further discussion, please contact JAMES B. WRIGHT & ASSOCIATES, P.C., 500 L Street, Suite 101, Anchorage, Alaska 99501. Telephone: (907) 277-6175; E-mail: [email protected]; Facsimile: (907) 277-6181.
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[1]Seegen’ly, 9 Powell On Real Property § 68.13, p. 68-62.
[2] This work has gone on for many years, and continues to this day. This primary federal government survey, called a “cadastral survey,” establishes a seamless grid that divides our state into one milesquares before land can generally be sold. This grid can then be subdivided by reference to these squares. Note that in more remote regions of rugged country, the work is often done in two mile squares instead.
[3]See gen’ly, Robilland, Wilson and Brown, Brown’s Boundary Control & Legal Principles (6th ed. 2009), § 10.6 Federal Patents, p. 270 (hereafter “Brown’s”).
[4]See, e.g., Cragin v. Powell, 128 U.S. 691 (1888) (government survey controls over subsequent private surveys, which must be consistent with the government survey); see gen’ly, Brown’s, § 10.11, pp. 272-273, and 9 Powell On Real Property § 68.13, p. 68-62.
[5]See Cragin v. Powell, 128 U.S. 691 (1888); and seeBrown’s, §§ 10.10 (p. 272), 10.11 (p. 272-73).
[6]Cragin v. Powell, 128 U.S. 691 (1888); AS 09.25.040(6); see also, Brown’s, §§ 11.9 Terms Of The Deed, and 11.10 Call For A Plat, pp. 322-23. The legal description in a deed typically defines the land in reference to the subdivision plat, or map.
[7]See Brown’s, §§ 2.6, 2.8, 10.4, quoting Rivers v. Lozeau, 539 So.2d 1147, 1151 (Fla.App. 1989) (tracing the footsteps), 10.9.
[8]Brown’s, § 11.27 Error Or Mistake In A Description (p. 340), § 12.26 Effect Of Mathematical Error (p. 385) (“an error should be placed where the error occurs, if it can be so ascertained”).
[9]See, e.g., 11 C.J.S. Boundaries §61, p. 634, and §124.
[10]Montana Mining Co. v. St. Louis Min. & Mill. Co. of Montana, 183 F. 51, 65 (9th Cir. 1910) (citations omitted). Alaska adopted this view in Lee v. Konrad, 337 P.2d 510 (Alaska 2014).
[11]See, e.g., Wright v. Jeffreys, 435 So.2d 46, 47 (Ala. 1983); Ford v. Bradford, 103 So. 549, 552 (Ala. 1925). Note that Alaska has not expressly adopted this preference, although in practice an older retracement survey will generally be evidence of the original survey, and the older retracement survey may be rebutted by any evidence of error on the part of the old retracement surveyor.
[12] Each surveyor will typically make entries of his measurements and mapping in a “field book” that records his efforts and results.
