Griffin's Survey Methods: Retracement

As noted in my first article on Griffin's rules (February 2008), Robert J. Griffin wrote in "Retracement and Apportionment as Surveying Methods for Re-establishing Property Corners" that, "retracement is a surveying method for resurrecting evidence of the location of a once established property corner. Its aim is to follow, as closely as possible, in the footsteps of the original surveyor and re-establish property corners in the exact position in which he originally placed them. The intention of the original grantor, as expressed and as inferred from the deed, is the paramount consideration in determining the location of property lines and corners."

When a deed (or other title document) is interpreted in the light of then-existing conditions and circumstances, the interpreter considers the original survey that marked the boundaries. The highest and best proof of intention lies, not in the words of expression, but in the work performed upon the ground itself. Lines actually run and corners actually established upon the ground prior to the conveyance are the most certain evidence of intention. He states, "It is by the work as executed upon the ground, not as projected before execution or represented on a plan afterward, that actual boundaries are determined."

Griffin emphasizes that the statement of the principle is simple, but its application is often difficult. How, for instance, does one know that a particular mark or monument found is the one established by the original survey? If no such monument is found existing, has its location been preserved? If not preserved, how may its location be ascertained within a reasonable degree of accuracy? He notes that these are evidentiary questions, and that the greatest difficulty lies in accumulating the evidence, weighing it carefully, and analyzing its import.

His guiding words are, "retracement is a process for gathering evidence. It seeks to accumulate evidence of intended location of property corners when they have become lost, obscured, confused or obliterated. The evidentiary sufficiency of a retracement depends upon the observance of accepted principles which govern the process." (I reviewed these principles in three previous articles.)

In his summary, Griffin carefully emphasizes that care should be exercised to retrace lines as they were originally run and not where subsequently and erroneously re-established by some intermediate owner or holder. The location of a boundary line must be determined as of the time of its creation.

Several courts have also emphasized that principle and elaborated further. For example, the Texas court, in Stanolind Oil & Gas Co. v. Wheeler (247 S.W.2d 187 [1952]), stated, "in determining the location of a boundary line, it is not where the surveyor intended to run the boundary or where he should have run it, but it is where the boundary line was actually run which controls." And in Wheeler v. Stanolind Oil & Gas Co., the court stated that "the monuments represent the surveyor's footsteps and are accepted as controlling the calls for course and distance."

In 1961, the Florida court noted in Froscher v. Fuchs (130 S.2d 300) that, "in locating a disputed boundary, surveyors must follow the original survey lines under which the property in question and neighboring properties are held, notwithstanding inaccuracies or mistakes in the original survey." In fact, it has been said numerous times that there is no error in an original survey, even though there may be differences in measurements between the original and the retracement. While there always is error in measurements, there is no error in original monuments. In addition to the monuments controlling the courses and distances, a maxim all surveyors are intimately
familiar with, title holders can see monumentation and act in accordance with it.

Regarding a case I discussed earlier (September 2007), the Michigan court in Diehl v. Zanger (39 Mich. 601 [1878]) analyzed a situation wherein a city engineer reconfigured an earlier subdivision, moving corners to make the mathematics fit and causing numerous encroachments under his procedure. Justice Thomas Cooley, in writing the decision, stated, "The litigation grows out of a new survey recently made by the city surveyor. This officer after searching for the original stakes and finding none, proceeded to take measurements according to the original plat, and to drive stakes of his own. According to this survey the practical location of the whole plat is wrong, and all the lines should be moved between four and five feet to the east. The surveyor testified with positiveness and apparently without the least hesitation that 'the fences and buildings on all the lots are not correctly located,' and there is of course an opportunity for 48 suits at law and probably many more than that."
 
"When an officer proposes thus dogmatically to unsettle the landmarks of a whole community, it becomes of the highest importance to know what has been the basis of his opinion. The record in this case failed to give any explanation, but the reasonable inference is that the surveyor has reached his conclusion by first satisfying himself what was the initial point of the original surveyor and then proceeding to survey out the plat anew with that as his starting point. Of course by this method if no mistake is made, there is no difficulty in ascertaining with positive certainty where, according to the original plat, the original street and lot lines ought to have been located; and apparently the surveyor has assumed that that was all he had to do."

Justice Cooley continued: "Nothing is better understood than that few of the early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if 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."

"But no law can sanction this course. The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate the lots, but how the original stakes located them."

Even as recently as 1989, the previously noted case of Rivers v. Lozeau [Fla. App. 5 Dist., 539 So.2d 1147] emphasized that, "in the absence of statute, a surveyor is not an official and has no authority to establish boundaries." When undertaking a retracement survey, "the second and each succeeding surveyor is a 'following' or 'tracing' surveyor and his/her sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he/she cannot establish a new corner or new line terminal point, nor correct errors of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he or she correctly locates it."

Since the location of land titles is based on the surveyor's ability to retrace the survey they derive from, it becomes a matter not to be taken lightly. The failure of retracement means the troubles have just begun, since when retracement fails, the method of apportionment is one obvious consideration. The errors inherent in the original survey, both cumulative and compensating, along with the errors in the present survey, again both cumulative and compensating, can pose serious problems for one trying to reconcile where corners have been established by the original survey. Insight into what the previous surveyor did and how it may have been done can be a tremendously challenging and time-consuming task. At best, the results will be at the mercy of the laws of probabilities and open to challenge from landowners, subsequent surveyors, and the courts.

Reference
Griffin, Robert J. "Retracement and Apportionment as Surveying Methods for Re-establishing Property Corners," Marquette Law Review, 43:484-510 (1960).


About the Author

  • Donald A. Wilson, LLS, PLS, RPF, Land Boundary Consultant
    Donald A. Wilson, LLS, PLS, RPF, Land Boundary Consultant
    Don Wilson is president of Land & Boundary Consultants, Inc.; and part owner of and the lead instructor in Surveyors Educational Seminars, a member of the Professional Surveyor/RedVector Dream Team providing online courses for continuing education; and a regular instructor in the University of New Hampshire Continuing Education System for 25 years. He is also co-author of several well known texts.

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