Real-Life Decision Making
You run a small survey company in a rural area. One day, you get a call from an angry woman who identifies herself as Sue Douglas, a beef farmer. She says that she has just spent several thousand dollars to put a fence along her property to separate her land from her neighbor, John Higgins.
"That Higgins is just trying to ruin me," she says. "I was a young girl when I promised my father on his deathbed that I'd farm the J.D. farm same as him, same as his father before him, same as his father before him.
"Now that Higgins is trying to take my land. Claims his deed says my fence is on his property. Well, that's a half-quarter section he's talking about. If you listen to him, he gets 90 acres and my half-quarter is only 70 acres. Those half-quarters are supposed to be equal."
Douglas is right that in your area, the government sold 80-acre plots of land called half-quarters in the mid-1800s. However, these plots were not surveyed at precisely 80 acres either because of inaccurate surveying or because it was more practical to follow meandering lines such as those along streams. Land was bought based on the surveys, not based on exactly 80 acres per half-quarter.
It turns out that the northeast and northwest corners of both properties are not in dispute. The southwest corner of the Douglas property and the southeast corner of the Higgins property are also known. Knowing this, Douglas had put her fence at the mid-point and run it due south, to give herself a perfect 80-acre section on that part of her farm.
The deed that Higgins has describes the monument dividing the southwest corner of his land from the southeast corner of hers:
"The monument to mark the southwest corner of section seven [Higgins' property] is placed 55 chains due west of the southeast monument. A wood post is tied to a 15-inch white oak tree and the monument is collared with rocks.
"Fourteen links due east of this white oak is a young 10-inch black oak. Ten links due west there are two pine trees growing nearly together. This monument can also be identified as being 20 chains south of a small eight-link wide stream, running southwest."
When you do a little more research, you find that a re-survey was done in 1915. This survey supports the original survey, although the twin pines were found to be only stumps at that time. It also calls the stream a seasonal creek and places it 21 chains north of the monument.
Higgins' deed is legitimate, and Douglas does not have a contradictory one. You can't help but hope that the monument marking the disputed corner is indeed lost or "extinct."
If it is lost, common law suggests that the way to determine a property line is by occupation. This would favor Douglas. Although the land has not been occupied exactly where she put her fence, it does seem that the Douglas family has used more of the land than the Higgins deed should have allowed them.
Some people think that if the monument is not easily found, the surveyor should simply place a new monument where one should have been. However, this could cause chaos: imagine if someone asked everyone in a town to move their fences three feet to the east.
However, when you go to the land, you find something a little less than 55 chains to the west of Higgins' southeast monument. It is a rotted stump with some stones that seem to be placed around it. A huge black oak tree grows 16 links to the east of this stump. There is no stream north of it, but a depression in the ground at 22 chains suggests a waterway was once there.
There are no pine trees in the area, but there is a dip in the ground at 10 links to the west, which means there may once have been a tree or trees there. You are almost sure that this is the monument referred to in the Higgins deed.
Although the numbers are not exact, your experience has told you that when comparing to deeds written 150 years ago, you must allow for a certain amount of difference. Instruments for surveying were not as precise.
Moreover, things change in a century and a half. Trees grow and die. Streams dry up. Besides the rotted stump, your most compelling piece of evidence is the stately black oak.
It is time for you to write up your report. What do you do?