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The Importance Of Historical Use In Boundary Disputes

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.


The general rule governing a retracement survey is to follow the footsteps of the original surveyor.  The original surveyor is the one who created the boundary, and who drew up the subdivision plat illustrating those boundaries.  Once the land is subdivided, it is sold, and the buyers have relied on the lines drawn in the recorded subdivision plat, and recited in their deed.  The buyers have also presumably relied on boundary markers or similar conditions on the ground.  What if they don’t match?

Sometimes the original surveyor made an error, in which case the lines marked on the ground by survey stakes don’t actually match the lines shown on the recorded survey plat.  If landowners bought in reliance on the mistake, the law will tend to enforce the reasonable expectations of the landowners, even if their perceived boundary or boundaries are not mathematically correct.

And sometimes the landowners have themselves altered their understanding of the boundaries by mistake, by taking, and/or by long-term usage.  The policy of the law favors settled expectations among adjoining landowners.  So if adjacent landowners have agreed to a boundary different from the subdivision plat, the law may respect that boundary by agreement.[1]

If adjacent landowners have no express agreement, but jointly treat a line as their boundary for a long time, although different than that recorded on the subdivision plat, then the law may respect that boundary by acquiescence.[2]

And if a landowner has taken all or part of a neighbor’s land for a long period of time, in circumstances where the neighbor should have taken steps to protect his rights but failed to do so, then the law may respect this hostile taking – another form of historical usage – although this approach, called adverse possession, is disfavored in the law.

There are other legal doctrines that establish boundaries by historical usage, but the main point is that a retracement survey, even one that properly follows the footsteps of the original surveyor, is not the last word on which boundary will be recognized at law.  The law will also consider the history of usage, which reflects the settled expectations of the landowners.

Historical usage is evidence to establish lost lot corners, as is a prior survey, closer in time to the original survey, where it was relied on by the parties.[3]

Many cases support the policy of affirming adjoining owners’ settled expectations.  The seminal rule is generally attributed to the opinion by Justice Cooley of the Michigan Supreme Court in Diehl v. Zanger.[4] In a dispute involving many lots (rather than the line between just two), a retracement surveyor ignored the history of adjoining landowners, announcing that various lot lines were not as the owners had long thought they were, so that fences and buildings were incorrectly located.  The court’s opinion said:

[I]f all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.

The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by [the original surveyor], …; … the best evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known.

Diehl and its progeny are called “the Cooley Doctrine” of “practical location.”[5]  The message is clear: 1) Follow the footsteps of the original surveyor; and 2) Do not upset settled expectations among adjoining owners, typically the best evidence of the original survey, by creating a new line that they did not rely on.

Justice Cooley’s emphasis on historical usage and reliance underpins boundary by agreement, by acquiescence, and/or by estoppel.  Estoppel is used as a label for a landowner’s reliance interest, which tends to overlap the other doctrines.[6]  In what follows, I’ll explain some differences between legal doctrines based on historical usage: boundary by agreement, boundary by acquiescence, and adverse possession.

BOUNDARY BY AGREEMENT

Boundary by agreement calls for an express agreement to resolve doubt about a boundary by treating an agreed line as the true boundary.  This is a type of contract.  An express agreement may be oral or in writing.  But, if no writing exists to show the agreement, the Statute of Frauds may apply, or other problems of proof, rendering it unenforceable.[7] Unlike boundary by acquiescence or adverse possession, an enforceable agreement is immediately effective unless its terms provide otherwise.[8]  If the agreement is not in writing, it may be implied by usage and the passage of time without objection, which would tend to prove an implied agreement. Consideration for the agreement is usually resolution of doubt and forbearance of a legal claim to resolve it.[9]

BOUNDARY BY ACQUIESCENCE

Boundary by acquiescence is an implied or tacit agreement.  The leading case in Alaska addressing boundary by acquiescence is Lee v. Konrad. Mr. Lee was my client and I presented the case to the court, which had this to say in its decision:[10]

Boundary by acquiescence is an equitable gap-filling doctrine that may be available where estoppel and adverse possession are unavailable.  While the exact requirements of the doctrine vary from state to state, Justice Thomas Cooley of the Michigan Supreme Court aptly summarized the doctrine as follows: “The long practical acquiescence of the parties concerned, in supposed boundary lines, should be regarded as such an agreement upon them as to be conclusive even if originally located erroneously.”  Boundary by acquiescence is “a rule of repose, with a view to the quieting of titles,” which rests upon the “sound public policy … of preventing strife and litigation concerning boundaries.”[11]

After discussing decisions from other states, the Alaska Supreme Court adopted the following rule:

We agree with the New Hampshire Supreme Court that “boundary by acquiescence is grounded ‘upon principles of public policy that preclude a party from setting up or insisting upon a boundary line in opposition to one which has been steadily adhered to.  Given that rationale for the doctrine, it makes little sense to rigidly limit the way in which agreement to a boundary line can manifest.  To that end, we do not attempt to define the minimum extent to which a line must be established by physical markers.  But we observe that it is difficult to conceive how parties could prove agreement to a boundary line without some physical markers indicating the line’s location.  Accordingly, we hold that a boundary line is established by acquiescence where adjoining landowners (1) whose property is separated by some reasonably marked boundary line (2) mutually recognize and accept that boundary line (3) for seven years or more.[12]

The seven year element was borrowed from the statute governing adverse possession under color and claim of title, but the court distinguished these doctrines, as follows:

Boundary by acquiescence arises from some of the same policy considerations as adverse possession, but rather than creating a means whereby a party can acquire title to land without the owner’s consent, it allows parties to establish the location of a boundary by consent, but without written agreement.  … Adverse possession requires “uninterrupted adverse notorious possession of real property under color of claim for seven years or more.”  AS 09.45.052(a).  By contrast, boundary by acquiescence does not require possession to be adverse; it requires the opposite: mutual acquiescence to possession.[13]

As of this writing, the Alaska Supreme Court has not ruled that boundary by acquiescence must be shown by the higher standard of “clear and convincing” evidence, as opposed to the usual “more probable than not” standard.[14]

ADVERSE POSSESSION

Inherent in the concept of adverse possession is the notion of conflict, of a taking by “squatter’s rights.”  Such a taking can only be justified if the landowner has fair and adequate notice of the possessor’s trespass, and fails to take steps to protect his or her rights.  As such, it is in the nature of a statute of repose, the time ticking away against the interest of the original landowner.  In effect, the law places a burden on the record landowner to protect against encroachments, or surrender to them.

Adverse possession, as a taking of another’s property rights, is disfavored in the law.  Accordingly, it must be shown by “clear and convincing” evidence.[15]  The governing statute, adopted in 2003, provides:

§09.45.052. Adverse possession.

(a) The uninterrupted adverse notorious possession of real property under color and claim of title for seven years or more, or the uninterrupted adverse notorious possession of real property for 10 years or more because of a good faith but mistaken belief that the real property lies within the boundaries of adjacent real property owned by the adverse claimant, is conclusively presumed to give title to the property except as against the state or the United States. ….

It appears that the purpose of the 2003 amendment was to eliminate adverse possession by a mere trespasser – one who “squats” without “color or claim of title,” or a good faith but mistaken belief that he or she has title.  So, for example, one who uses or occupies land subject to a dispute about where the boundary lies might have a claim of title or a good faith belief that he or she has title.  Or, one who holds a deed to land also granted to another might be said to have color of title.  On the other hand, one who sets up camp on the property of another without a legal basis other than the passage of time will typically be found to have no color of title and no good faith belief in his or her basis that such title exists.  He or she is a mere trespasser.

Note that the mere trespasser had greater rights under the former, pre-2003, statute.  We sometimes see cases in which an occupant was on the property for a sufficient time, prior to 2003, to obtain vested rights in that property.  Each case involves different facts that may trigger different legal considerations, but the foregoing provides a very general summary to illustrate that historical use may supersede the surveyor’s measurements.

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.

___________________

[1]9 Powell On Real Property §68:03[3] (“the policy of most courts is to encourage boundary agreements.”).

[2] The Alaska Supreme Court adopted the doctrine of boundary by acquiescence in Lee v. Konrad, 337 P.3d 510 (Alaska 2014).

[3]See, e.g., Van Dusen v. Lomonaco, 24 Misc.2d 878, 881, 204 N.Y.S.2d 778, 782 (1950) (traditional evidence is admissible to prove boundaries, including evidence of common understanding and the conduct of the parties); and Wright v. Jeffreys, 435 So.2d 46, 47 (Alabama 1983): “[There is a] qualified general rule of preference for older surveys.” … “Particularly, where coterminous owners have acquiesced in the older survey, treating it as accurate, it becomes the true line”; see also Ford v. Bradford, 103 So. 549, 552 (Ala 1925): “An ancient survey at the instance of the parties interested, when accepted and treated by the parties as correct, is presumed to be correct.  [It is] of increasing importance as time effaces the evidence of the original … survey ….”

[4] Diehl v. Zanger, 39 Mich. 601 (1878).

[5]A few examples of the Cooley rationale include: Dykes v. Arnold, 129 P.3d 257 (Or.App. 2006) (original error is ensconced if the parties relied on it); Adams v. Hoover, 493 N.W.2d 280, 283 (Mich.App. 1993) (historical reliance is central to the resolution of boundary disputes, relying on Diehl); Wacker v. Price, 216 P.2d 707, 710 (Ariz. 1950) (same); Westgate v. Ohlmacher, 96 N.E. 518 (Ill. 1911) (in cases of doubt, historical reliance should govern); Wilson v. Sidle, 17 Ohio Dec. 393 (Ohio Com.Pl. 1906) (“A boundary line long recognized and acquiesced in is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared”).  In Flynn v. Glenney, 17 N.W. 65, 66 (Mich. 1883), Justice Cooley wrote that where there was evidence of historical reliance, the settled expectations of adjoining landowners should not be disturbed, and that past reliance was the best evidence of the boundary location, as a matter of public policy.

[6] Alaska recognizes various forms of estoppel (promissory, equitable and quasi-estoppel).  See, e.g., Jarvis v. Ensminger, 134 P.3d 353, 363-364 (Alaska 2006) (promissory estoppel); Jamison v. Consolidated Utilities, Inc., 576 P.2d 97, 102-03 (Alaska 1978) (quasi- and equitable estoppel).

[7] Alaska’s Statute of Frauds is A.S. 09.25.010.  See, e.g., subsection (a)(6), providing that an agreement for any interest in real property, or to charge or encumber real property, must be in writing.  However, if sufficient evidence of an oral agreement exists, and of reliance on it, then estoppels might render the agreed line enforceable as between the parties to the agreement.  As shown below, after seven years, boundary by acquiescence might also apply.

[8] Note, however, that such an agreement may also require a replat process, which is governed not by the court, but by a local regulatory agency.  This may also be necessary to amend the record to show boundary by acquiescence and adverse possession.  Another option, if a replat is not required, is to do a record of survey in order to put the public on notice of the boundary.

[9] See, e.g., 9 R. Powell On Real Property § 68.03.

[10] For present purposes I have omitted a great many footnotes from the decision.

[11]Lee v. Konrad, 337 P.3d 510, 518-519 (Alaska 2014).

[12] Lee v. Konrad, at 520.

[13]Lee v. Konrad, at 520 fn. 34 (Alaska 2014) (citations omitted).

[14] See Collins v. Hall, 453 P.3d 178, 191 fn. 37 (Alaska 2019).

[15] Collins v. Hall, at 191 fn. 37.

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