Ancient Boundary Issues

By | August 15, 2019

If a property boundary dispute is older than 25 years old, in the legal field, we call it an ancient boundary dispute. These disputes are very common!

ancient, adj. Evidence. (14c) Having existed for a long time without interruptions, usu. at least 20 to 30 years <ancient deed> <ancient map>. • Ancient items are usu. presumed to be authentic even if proof of authenticity cannot be made. Fed. R. Evid. 901(b)(8).

Black’s Law Dictionary, Ninth Edition, p. 100

The Origins of Modern Boundary Issues

At GeoVelo, I am regularly approached by potential clients who have an ancient property boundary dispute or question rooted deeply in the past. I’ve had cases where the issues predated Missouri statehood. (I provide geospatial legal and visualization services, primarily in and around Missouri.)

The red areas are Spanish and French land grants in Missouri.

Many contemporary boundary disputes have their roots in the days when deeds and easements were handwritten and boundaries were measured with chains and a magnetic compass. Some property records in Missouri were written as early as the 1680s.

The Missouri frontier in 1818, shortly after the New Madrid earthquake liquefied a portion of Southeast Missouri in 1811.

The legal description of a parcel or easement today may have errors, gaps, and overlaps dating back 200 years or more. A tree trunk referenced in an original metes and bounds deed may have rotted away before Missouri became a state.

If you live in this township in Cooper County, Missouri, your legal description may harken back to an old Spanish land claim.

Some Example Ancient Property Boundary Issues

Private Road: One client asked if their neighbor had the right to cross their land because the original owner of the neighbor’s land in 1912 was a party to a private road that traveled across the client’s land.

Ancient Easement: Another client asked if their neighbor could use a private farm road that was originally a recorded easement provided to the owners of another parcel in the 1840s. The crux of the matter was that, while the neighbor had access to a public road via a thin strip of his land that fronted onto the public road, he was just too cheap to cut a road through his own timber.

Public Road: The county commission quit performing maintenance on a public road that crossed the middle of another client’s half-section of fertile tillable ground. While everyone at the county thought the road was vacated as early as 1936, no paperwork confirming the road vacation has ever been located. The client wanted to know if the public still had the right to traverse his land.

You get the point, right? There are literally a hundred or more ways a property boundary dispute can crop up decades later.

It Pays to Avoid Litigation!

Litigating property disputes can be exhausting and costly for your clients, especially if the dispute has been ongoing for generations. Often, litigation is also unnecessary.


READ THE NEXT TWO PARAGRAPHS CAREFULLY:

(1) Often, property boundary issues are composed more of issues of fact than they are issues of law. That means you are not likely to win a legal battle over an ancient property boundary issue if the facts are not on your side. If you haven’t had someone perform a thorough investigation and if you still decide to sue, are you hoping the other party to the case will be equally unprepared? That is not a winning strategy. Investigate and understand your ancient boundary issue before you file suit, if at all possible.

(2) With most ancient boundary disputes, litigation is unnecessary. In a perfect world, the two parties to the dispute would submit the issue to an investigatory body, and it would apply the law to the facts—after they were uncovered. Even if you turn out to be the losing party, it would cost you far less than if you went to war in a court of law. In a legal battle, you have the cost of personal stress, lost opportunities, an attorney, filing fees, witness fees, and the attorney’s staff in addition to the cost of a survey and title reports. So please spend the time and money to investigate the facts BEFORE you decide to sue your neighbor.


GeoVelo’s Ancient Boundary Dispute Problem-Solving Starter Kit

(1) Go talk to your neighbor. See if you can work out the issue. Sometimes a little humility and a willingness to compromise can save you both tens of thousands of dollars and decades of giving each other nasty looks.

  • There are few words that are as beautiful to an attorney as when a financially sound client with a property boundary dispute says, “It’s the principal of the matter, damnit!”* Cha Ching!

(2) Look for physical clues before you pay someone else to look. See if you can find your lot’s survey corner pins. They are lengths of rebar with colorful plastic caps driven into the ground near where a corner should be located. Don’t trespass when you are looking for evidence.

A typical rebar survey corner pin with a plastic cap identifying the firm that placed it. Many modern caps show the surveyor’s state license number.

(3) Take lots of digital photos from numerous angles. Your attorney will thank you.

  • If you have the option, turn on the geolocation feature in your camera as you take photos.
  • Bring the photos with you on a thumb drive when you go to meet your attorney or surveyor.

(4) Look for paperwork clues before you pay someone else to look. Get it out of the attic and look in your great grandparent’s chest or file box. See if you can locate any documents relating to the property in dispute.

  • Scan or photograph those documents and put them on that thumb drive.

(5) Look for old family photographs that might offer clues.

  • Again, scan them and put them on your thumb drive.

(6) Go to the courthouse and request a copy of all the documents on file for both your property and that of your neighbor’s property.

  • If you are in a platted subdivision, you only need to go back to one ownership before the subdivision was platted in most cases.
  • If you are not in a subdivision, ask for all the documents all the way back to the General Land Office (the GLO is the precursor to the U.S. Bureau of Land Management). Be prepared to pay for these copies and possibly the staff time necessary to gather them.
  • Some county registrar’s offices no longer provide these services and may send you to a title company or allow you to use a computer terminal in their office to perform your own search.
  • The Missouri Land Title Association has a membership list you can review.
  • Be cognizant that old courthouses and their property records seemed to burn down somewhat regularly in the olden times. The documents you need may not exist, even though they once did. But a clever surveyor, lawyer, mapper, or title agent can rebuild a lot of the past using documents that returned to the courthouse after the fire because they were part of subsequent deed transfers and other documents that were held in private hands.
  • In addition to old deeds, look for surveys and other amended or corrected documents that may have been filed.
  • Have I mentioned that you should be putting everything on a thumb drive yet?

(7) Consult with a surveyor before you decide to hire an attorney. Their time is worth money. So be prepared to pay them to review the evidence you have gathered.

  • I suggest you require a document review before you authorize a survey. However, your surveyor may discover facts on the ground that will require a survey. Sometimes these facts might also require that you hire an attorney.
  • Often, your surveyor can explain how the situation likely developed and then point out alternative actions you might be able to take instead of filing a lawsuit.
  • I’ve known neighbors who split the cost of a surveyor’s time and agreed ahead of time to abide by the boundary the surveyor would establish and mark.
  • The Missouri Society of Professional Surveyors has a list of every licensed surveyor in Missouri.
  • Remember: Every situation is different, and boundary law is not always intuitive.

(8) Ask around and Google this stuff. Talk to the clerk of the court, several surveyors, and/or several different attorneys. Ask your realtor, ask your friend with rental property, and read online reviews. Your goal is to discover who in your community is really good at solving property boundary disputes. The information is out there if you look!

  • You’ll often find that there are informal teams of certain attorneys and surveyors who tend to work on cases together. This is because they respect the other professional and have developed a high level of trust and developed an efficient working relationship with each other. So, if you really like an attorney and she recommends a particular surveyor, ask her why she’s recommending that person. Ask her how many cases they have worked together. Trust your instincts.
  • There is also somewhat of a divide between attorneys who work on agricultural boundary issues and those who work within the city limits. If your issue is located in a rural area or it involves fences around range or cropland, seek the advice of an attorney specializing in “Ag law.”
  • The Missouri Bar Association has a list you can review to find an attorney in your area who practices boundary dispute law.
  • Please notice that I didn’t suggest that you ask which attorney has the oddest video commercial.

(9) Listen carefully to the professionals you consult. Then select the best course of action for you.

  • Trust your instincts about the people you have consulted.
  • However, whatever you do, please DO NOT trust your instincts about the law. As a wise man once told me, “It doesn’t have to be right, fair, or even moral to be the law.”
  • Boundary law is essentially 2000 or more years of ancient writs, unimpeded by progress, which were developed to allow the English nobility to sleep well at night.

* This is just a joke. Just a joke. I know several very smart attorneys who are great human beings who specialize in boundary disputes, and they always counsel their clients to try to work it out without going to court. They are problem-solvers in the best possible way.

Conclusion

Both surveyors and attorneys are professionals who are paid for their time, and they cannot ethically promise you an outcome or a result. All they can do is advise you and work diligently on your behalf.

Well, there you have it. Email me if you have any questions. Also, let me know if you have any suggestions.

Updated: 20190815_10:56


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About the Author

You can view Chris Dunn’s third person singular CV here. Basically, he’s a geographer with a law degree, a bar card, and a kick-ass GIS workstation. Email me at Chris.Dunn@GeoVelo.com