Brown’s Boundary Control & Legal Aspects:

Introduction to Boundary Control

In understanding boundary control it is critical to establish what does and does not result in the establishment of the boundary lines upon a parcel of land. Indeed, what may seem apparent to a landowner of neighboring parcels of land may, in fact, not constitute the establishment of a property boundary line.
"An actual possession of part of the premises in controversy, and [an] exercise of exclusive dominion by a party, will establish a boundary line as against his adversary, unless such possession is shown to have been based upon some other right; and when established, such possession will prevail as against one who, knowingly or otherwise, has allowed it to stand as the boundary . "
However, "where fences are built by a party, and that no adverse title is attempted to be set up by the adjoining owner, and such fences have existed for a period of [ten or more] years, and the public, as well as the parties, have recognized the possession, a prescriptive right has been established, and title will accrue. On the other hand, if the fence was erected under an implied license, and a claim of right has never been asserted and claimed, a license can always be terminated by a notice to that effect, and in such case no title will accrue."
Therefore, where neighbors and disputed land owners may be fenced onto their properties and the fence line is recognized and agreed to by all parties, the line will be established as the boundary line between the properties even though the fence does not mark the "true" property line.

The History and Development of Boundary Control

A notable aspect of Brown’s is that it is a living document. As new rules and principles are created, or old ones modified, Mr. Brown is quick to update his book and disseminate the information to his readers. Certainly, this is the life blood of any publication, and demonstrates the depth of Mr. Brown’s connection to his trade. In the case of "Brown’s" it was first published in 1953, and he has steadily increased his compilation of rules and theories espoused by grantors, surveyors, and engineers through the years. Although his proposed book on the subject was rejected by several publishers in the early days, he persevered and sought the guidance of professionals who had experience with similar publications. It was through these efforts that a "visionary" was born and the Bible of surveying revealed itself. Mr. Brown invented the process of giving surveys. He coined and defined the terms that we now take for granted (continuous, adjacent, conterminous, and littoral and riparian rights). He states that if a course or monument is not directly adjacent to the boundary, it will not be used as the primary means of identifying a boundary line. This is the concept that has led to the development of riparian rights and water law, which has in turn found itself in the courtroom to be examined by juries and bench. Water law and its genesis in Brown’s Boundary Control form the source of virtually all disputes relating to littoral and riparian rights. Treating and developing these theories has led to the passage of the most controversial and steadfast of all water laws. Decisions regarding littoral and riparian rights have set the boundaries, literally, for water law and policy that run throughout North America. Brown’s Boundary Control has transcended its humble scholarly origins to be the principal authority for boundary law in the United States. Its pages are filled with case citations and references to statutes throughout the country. In fact, practically every state that has been admitted to the Union has signed on to the tenants and principles first put forth by V. A. Brown.

Basic Legal Principles Governing Boundary Control

The core of Brown’s Boundary Control is the formal acceptance of the boundaries as defined on the plat, despite ambiguities existing in the field, as long as the plat is based on adequate surveys and calculations. Harris and Heller v. Dunn, 118 Ariz. 89, 574 P.2d 1284, 1287 (1978). The court chooses to disregard the discrepancies between deeds and surveys. Harris, 118 Ariz. 89, 574 P.2d 1284, 1288 (1978). The rule will not preclude a showing of boundary line location by oral testimony or extrinsic evidence. If a boundary cannot be determined by these means, the existing line will be treated as ambiguous. Such ambiguity will be construed to the benefit of the land with the less amount of land unless there is a strong reason to do otherwise. Brown v. State, 118 Ariz. 579, 578 P.2d 619, 623 (App. 1978). Thus, extrinsic evidence such as witness testimony, occupancy, and courses of dealing will be disregarded. Harris, 118 Ariz. 89, 574 P.2d 1284, 1288 (1978). Further, any discrepancies within the field will also be disregarded. Brown, 118 Ariz. 579, 578 P.2d 619, 621 (App. 1978). The relationship and conduct of the parties is irrelevant when applying the mandatory principle. Winter, 211 Or. App. 433, 56 P.3d 985, 989. Even if the parties entered into a contract which allocates the addition of property to one of the parties, the court is not bound to that allocation. Harris, 118 Ariz. 89, 574 P.2d 1284, 1289 (1978). Thus, the contract is not binding as to the actual possessions of the parties. Harris, 118 Ariz. 89, 574 P.2d 1284, 1289 (1978).

Technical Aspects of Boundary Control

The technical aspect of the survey process is only one segment of the surveyor’s contribution to providing a quality certified boundary control document. The survey may have begun with a request for a survey, but either the client or the designer has given us more, the need for a recorded boundary, a written property description to support the proposed improvements. This is where Brown’s principles run afoul of 21st Century technology and needs. The world now uses Global Positioning System (GPS) technology to provide a horizontal display on a computer screen. The systems use satellites orbiting above our heads, carefully designed measurement systems, and satellites that are in geo-stationary orbit. These satellites provide a consistent tool for consistently repeating the same measurements used throughout the parcel. Most importantly, the system’s accuracy is tied to and defined by the International Terrestrial Reference Frame (ITRF). For purposes of this discussion, the ITRF ties all things physical to a fixed point within the Earth. The ITRF is a global fixed point from which to measure the precise location of satellites and other points of measurement. The European Space Agency began recording locations of points on Earth through satellites and the process of using those satellites to identify the location of stationary points on Earth. This system has developed for over the last 50 years providing landmark locations and it is now very well established. It has become, due to its world-wide use whist providing a means to precisely repeat a 20 year old survey. It is not subject to the concerns of the weight-of-the-evidence as Brown’s manual surveys, and allows us to share the data and make it available to the world-wide community. It is the ITRF that provides the common language by which to provide a uniform basis, or common coordinate system, for each parcel.
Brown’s principles assume a local reference, such as a single corner, a point of departure, an adjoining boundary, an offset point, and local coordinates that vary in a very small area. From that perceived local coordinate system, each of the points are referenced and it is through the positioning of the entire local coordinate system that the surveyor relies upon the Brown’s principles and procedures. The GPS system provides the means to provide a common coordinate system which must then based on some point and its relationship to the entire system. All things are concentric and every point identified gives a location in a rectangular system (elevation, distance east/west of the center line, and distance north/south of the center line). What if we could define our system in the 3-D environment, in a manner to use the ITRF as a basis for our survey records? This is exactly what the state of Alaska did in 1986.
With a common basis for all parcels, we can establish a system in which properties can be identified in a very precise way. A system that can be determined with a small (very small) error. One example of this system is the HPGN, High Precision Geodetic Network which was established by the state of Alaska in 1986. This began as a project to survey the desk of Alaska to the ITRF. The project was extended to Washington and California in 2006 and completed. The key to the HPGN framework is that it has been back-Adjusted with satellite measurements which places the Alaska coordinate system to the ITRF. This requires that all properties be modified, if surveyed prior to the back-adjustment, to make them apply to the new code of law (date of adoption) which has been adopted by the Surveyor General of Alaska. The State Engineer now has the authority to adopt a new framework. The method to adopt this new framework is repeat the existing corners which previously had been surveyed by the HPGN. A surveyor then ties that to a GNSS point in order to have the new location and he then creates a record for each of the tabulated locations.
What we are able to do is to adopt this new framework system to this state; however, it does provide us with the opportunity to have a uniform basis for property description. This, in turn, provides you with a reasonable expectation that the property you may acquire has a specific coordinate reference, preferably as close to your center as possible. This is the exciting potential that Brown’s principles provides.

Cases and Legal Precedents Affecting Boundary Control

Notable cases that have illustrated the application and vindication of Brown’s Boundary Control drawing principles in the forum of legal precedent are Mullins v. Bhogan and Anderson v. Devereux. In Mullins, mere discrepancies in scale, sheet size and colors chosen by opposing experts formed the basis for a boundary dispute in which both sides provided convincing testimony from their preferred expert. Citing the text, the court wrote that "ample evidence in the record demonstrates that Mullins’ [chosen expert] used the accepted techniques for measuring and laying out a subdivision in performing his work. The fact that Mullins’ [expert] had selected a smaller scale does not prove that his map was incorrect." On the contrary, there was "no evidence that [the] proposed [expert] used any techniques found in the standard text, used a smaller scale or larger sheet size, or otherwise deviated in any respect from the techniques noted above." It was held that the chosen expert’s readout of his total area was "fundamental error because it contravenes the two dimensional quality of any land [boundary survey]." As such, the land dispute was resolved in favor of Mullins and certainly sets a precedent that the courts may rely on Brown’s text in clarifying conflicting expert work. In the Anderson case, two owners of adjoining lots, Devereux and Aden, claimed recently subdivided property after a dispute over boundaries. Anderson (successor to Devereux) laid claim to land to the east of Aden; conversely, Aden maintained title to land to the west in accordance with prior subdivision mapping . A licensed surveyor was called and using Brown’s Principles of Boundary Control and Andrew’s Surveying Procedure as his principle guide, determined Aden’s title. However, the trial court found that our application of the expert’s opinion would result in a partial taking of Aden’s land. The trial court ordered that the defendants remove a fence, replace a barn on the property, and restore it to its natural condition. The defendants appealed, urging the courts to disallow the Brown principles due to the fact that they were unpublished and lay outside the body of admissible evidence. The Supreme Court noted that while this text was published 25 years ago, it long predated the practice of surveying as a science. The court held that expert relied on sources of authority for his conclusion that were published, had been used for many years, and had been accepted by many other members of the profession; therefore, the surveyor’s opinion met the minimum requirements of the Texas Rules of Evidence Rule 702, therefore, judgment was affirmed. The aforementioned cases, coupled with a few examples from the ALTA/ACSM standards, demonstrate that Brown’s Principles of Boundary Control is oftentimes used as a reference in civil litigation. A mere glance into a handful of legal proceedings further illustrates how seamless Brown’s principles are integrated into best practices of the world’s most accomplished boundary surveyors.

Issues and Criticism

As with most legal boundaries, limitations exist. Common issues arise with the interpretation of ambiguous descriptions in Brown’s Boundary Control and Legal Principles. Dated standards may not align specifically with new surveying technology and techniques. The case law is frequently inflexible, as it must be applied to a diverse range of situations. In many cases the courts must look at a boundary established by an earlier court several generations ago. Pits, hillocks, ditches and swamps may have been well understood in the past, but not everyone understands them in today’s world. Environmental exuberance may obscure the original intent of the parties. Wetlands, easements, historic reservations, prescriptive rights or reservations, where they exist, can involve a long, complex litigation. With many contemporary boundaries the original intent of the parties is unsafe ground for a working boundary. The parties may lay claim to the land in question, or it may be claimed by the government as swamp or wetland. Trees, hedges, fences, roads and ditch patterns may not be the same as when the boundary was formed. New technology such as GPS may present problems if it is not applied carefully.

The Future of Boundary Control in the Legal System

The future of boundary control in law will likely witness an increased integration of advanced technologies and analytical methods that can augment traditional methodologies as well as facilitate a move towards more comprehensive solutions. The use of 3D modeling or geospatial data in combination with Brown’s methods may evolve sufficiently to develop new insights into the extent of encroachments or other boundary related issues. For example, with the advent of data collection methods such as UAVs (also known as drones), the combustible nature of a land dispute may become less frequent.
If technology influences the boundary control landscape of the future, so too might advances to the legislation that governs boundaries. Legislative changes may also significantly impact boundary control, as the judiciary considers boundary control and its application in other contexts . An issue of particular interest is the legislative framework that governs easement grants (with particular insight deriving from the recent Ontario Court of Appeal case in McKeown v Boulton). The resolution of this sort of question has, and will continue to have, a significant impact on the extent of a registered owner’s property rights. Baker confirms, however, that such a legislative evolution would be a bold departure from the principles and practices of boundary control. Boundary control, and its jurisprudence, will continue to raise interesting considerations. There may be an evolution in the extent to which the principles espoused by Brown are modified, albeit only slightly, to further reflect the realities of ownership and encroachment. In addition, amidst the ongoing development of land cadastral lines across Canada, this area of law will continue to contribute to the manner in which land is used and surveyed in Ontario, and our understanding of how farmland and urban settings converge and diverge.