The What and Where of Boundaries in a GIS AIC and IACT Greenfield, Indiana August 1, 2012

1. The What and Where of Boundaries in a GIS AIC and IACT Greenfield, Indiana August 1, 2012 Presented by Gary R. Kent, L.S The Schneider Corporation

2. Discussion Topics Land Tenure in the United States Land Boundaries & Land Title Establishing Boundaries 4.  GIS and Boundaries

3. The Colonial System “Mr. Boyle, a professional genealogist, traced the ownership to the subject premises through the ancestors of Samuel Littlefield's grandmother and Augustus Littlefield's great-grandmother, Elizabeth Storer Littlefield, beginning with a deed in 1645 from the proprietors John Wheelwright, Henry Boade, and Edward Rishworth to Ezekial Knights. Ezekial Knights, Jr., with the consent of his father Ezekial Knights, conveyed property to Samuel Storer in 1674 as follows:

4. The Colonial System A Certen Tract or Prcell of sault Marsh, or Meddow Land, lijing & being between that part of the Webbhannet River Called the fishing Hoole, & the sea Wall, being a Certen Gurnet or Nose of Land compassed about with water, It lijing vpon the sayd River, on the Southermost side there of, abutting vpon the sea Wall contayneing the quantity of about seauen or 8 Acers bee It more or less, with a Certen skirt of vpland or sea Wall, wch lyeth Adioyneing thervnto, where wee vsed to set our hay . . .

5. The U.S. Public Land Survey System

6. The U.S. Public Land Survey System

7. The U.S. Public Land Survey System

8. The U.S. Public Land Survey System

9. Overriding Boundary Law Principles • Boundary Surveying is: • Part Art • Part Science • Mostly… • Application of the Law

10. Matters of Survey vs. Matters of Title Surveying - the “Where” of a Boundary

11. Matters of Survey vs. Matters of Title Title/Law – the “What” of a Boundary

12. Matters of Survey vs. Matters of Title Title = “Ownership” What does the surveyed boundary represent with respect to “ownership?”

13. Land Tenure in the United States • The U.S. land tenure system does not provide for a guarantee of ownership • Having a deed to a property is not a guarantee that one owns the property • Title Insurance (and title registration, where available) is how we provide for continuity, confidence and permanence in title in the United States

14. Title Insurance • Insures against loss incurred due to the condition of the title being other than as insured • Identifies title problems • Minimizes the risk that a problem will occur

15. Title Insurance • Two types of protection: • Duty to defend • Duty to indemnify for loss • Two policies – Lender and owner

16. Boundaries in the United States • Except as related to the platting of a subdivision, a Surveyor can only provide a non-binding professional opinion as to the location of a boundary • Only the courts can definitively determine a boundary or property line

17. Boundaries in the United States • Where there are conflicts in the record or on the ground, the courts have, over hundreds of years, established a hierarchy for the evaluating evidence and establishing boundary

18. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

19. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

20. Unwritten Rights • Unwritten rights control property lines, but are outside the written record • Unwritten rights that ripen into a fee interest extinguish all prior title rights • Unwritten rights can only detected by survey

21. Types of Unwritten Rights • Oral (Parol) Agreement • Adverse Possession • Practical Location • Acquiescence • Estoppel

22. Adverse Possession~ Indiana ~ In Fraley v. Minger (Indiana Supreme Court, 2005), the Court said, “We hold that the doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration, as follows:

23. Adverse Possession~ Indiana ~ (1) Control -- The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land

24. Adverse Possession~ Indiana ~ (2) Intent -- The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner

25. Adverse Possession~ Indiana ~ (3) Notice -- The claimant's actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant's intent and exclusive control

26. Adverse Possession~ Indiana ~ (4) Duration -- the claimant must satisfy each of these elements continuously for the required period of time (10 years)

27. Adverse Possession~ Indiana ~ [Indiana] statute prohibit[s] obtaining title by adverse possession "unless such adverse possessor or claimant shall have paid and discharged all taxes and special assessments of every nature falling due on such land or real estate during the period he claims to have possessed the same adversely.

28. Adverse Possession~ Indiana ~ We hold that [the claimant has substantially complied with] the requirement of the adverse possession tax statute in boundary disputes where the adverse claimant has a reasonable and good faith belief that that the claimant is paying the taxes during the period of adverse possession.

29. Unwritten Rights • Only a court has the legal authority to declare who has ownership

30. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

31. Senior Rights • The boundaries established by a junior deed that are in conflict with a senior deed will yield to the senior deed • Nothing less than unwritten rights, not even intentions of the parties can overcome senior rights - the seller cannot sell what she does not own!

32. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

33. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

34. Written Intentions of the Parties • The courts have determined that the clearest expression of the written intentions of the parties is the survey markers set in the field on the survey that was the basis for the description in the deed • Thus, surveyors recognize the critical nature of “Following in the footsteps of the original surveyor”

35. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

36. Monuments Monuments called for in the deed or set on the original survey override the bearings and distances in the deed

37. The Order of Importance of Conflicting Title Elements • Unwritten Rights • Senior Rights • Written intentions of parties • Call for a survey • Call for monuments • Natural, Artificial, Record (adjoiners) • Direction and Distance • Direction or Distance • Area Coordinates

38. Distance and Direction Mathematics (bearings and distances) do not express intent if there are other controlling calls

39. Locating Lot Lines • Lot lines which were created by survey (as is the case with most older subdivisions and all newer ones) are controlled by the monuments set on that survey • Again, bearings and distances yield to monuments on the ground

40. Parcels/Boundary lines in a GIS Establishing “accurate” property lines in a GIS is impossible due to the fact that boundaries are a function of the law, but even if it were possible, it would be prohibitively expensive. WHY?

41. Parcels/Boundary lines in a GIS There is no inherent connection between latitude and longitude and boundary (not to mention “property”) lines on the ground

42. Parcels/Boundary lines in a GIS • With some notable exceptions, the state of section and quarter section corner perpetuation in Indiana is poor • Efforts are being made, but resources are modest and proper corner perpetuation is expensive

43. Section Corners Out of the +/-100,000 original corners in Indiana, how many are existent (i.e. properly perpetuated and referenced)? 15-20%? How many of those have state plane coordinates associated with their locations? 30% (5% of the total)?

44. Tiffin’s Instructions - Monumentation Original public land survey corners were to be a wood post not less than 3 inches in diameter and not less than 3 feet tall. (Use of stones for original public land survey corners was not prescribed by the GLO until the 1855 instructions, although County Surveyors used them prior to that.)

45. Corner Perpetuation – Written Evidence Copies of original field notes and plat County Surveyor corner records Old Legal Surveys Recorded surveys Deeds/plats for subject and adjoiners Private surveyors’ records Aerial photographs USGS Quadrangle maps

46. Corner Perpetuation – Field Evidence Nearby section, quarter section and quarter-quarter section corners Found, called-for monuments Fence lines and corners; tree lines Other evidence of possession Testimony from knowledgeable land owners Other found survey markers (unknown origin) Road centerlines Dig at all possible locations

47. Other Considerations What about using a monument that does not agree with the specified or “legal” location? Does it have a known history? Was it intended to have been set in the “correct” location? Is its location within acceptable tolerance of the “correct” location given the practice at the time it was set?

48. Parcels/Boundary lines in a GIS All potential title issues affecting a property would have to be resolved

49. Parcels/Boundary lines in a GIS Would require statute and/or changes in common law

50. Accurate Parcels/Boundaries in a GIS Is there hope? Will it ever happen? Yes… “But” We should work towards it There is much that can be done Corner perpetuation Assistance from Surveyors to help make rational decisions on boundaries