Sunday, December 27, 2020

Boundaries and Surveys – What Are the Rules?


Boundary issues are rather common in rural settings.  Often boundary disputes arise because a survey doesn’t match an existing fence line.  In that situation, what controls?  How is the actual legal property boundary determined?  There are numerous legal rules and doctrines that can come into play and a later, accurate survey may not actually determine the outcome.  Over 25 years ago, I participated in a the writing of a book involving Kansas agricultural law with the late James Wadley of Washburn Law School and Sam Brownback who would later become a member of the U.S. Congress and then the U.S. Senate followed by being elected to two terms as the Governor of Kansas.  Today’s article involves some of the concepts we discussed in that book.

Boundaries involving rural properties – it’s the topic of today’s post.

Old Fences

Landowners generally consider existing fences to be the partition (boundary) between adjacent properties.  But the law may view things differently.  The actual boundary is an imaginary line that can be found by examining the deeds to the adjacent properties.  An existing fence line is merely evidence of where the boundary line between the properties is located.  It is immaterial whether the fence is a permanent fence or not.

However, there may be situations where the fence line has become part of the property description over time as the land changed hands.  This is particularly true in the eastern third of the United States where a metes and bounds property description is used that describes the perimeter of the land.  In other parts of the country where the Government Survey System is utilized, an existing fence line may be treated by the adjoining landowners as the physical boundary between adjacent tracts.  In either of these situations, the fence line may be considered to be the legal property boundary. 

In most situations a parcel of land will be identified described by mapping out survey lines.  This can result in an existing fence not being on the precise surveyed boundary.  The fence may have been constructed off of the true legal boundary as a matter of convenience.  For example, if the true boundary crosses a stream or goes through thick brush, maintenance of the fence is made simpler if there is no stream crossing or brush to clear.  This does not present any issues when the fence is not intended to be the boundary line.  But, when a fence is an old fence that has been in its present location for quite some time and the adjacent owners treat the fence line as the boundary line irrespective of whether it actually is the true legal boundary, problems can arise.  In that situation, the issue is whether the fence line can be substituted for the actual legal boundary and, if so, how it can become the true boundary. 

Adverse Possession

The mere passage of time, by itself, does not cause a fence line to be substituted for the actual property boundary.  But, the manner in which the adjacent owners have used the property over time may cause the fence line to become fixed as the boundary with the legal effect of changing the boundary as described in the deed to the property.  Under the legal doctrine of adverse possession title can be acquired to property that one doesn’t actually own via the usage of the property for a prescribed amount of time (e.g., 15 years in Kansas).  The party attempting to acquire title via adverse possession must know that the property that they are using does not belong to them.  In other words, the party asserting the doctrine knows that the existing fence line is not on the property boundary and uses the additional property between the true boundary and the fence line as their own, adverse to the true owner. 

If the true boundary is not known, courts typically examine the intent of the party holding property beyond the true line (i.e., the party benefitting from the misplaced fence).  If the property is occupied by mere mistake and with no intent to claim land that does not belong to the person, the occupation of the property will not be considered to be adverse.  Alternatively, if the occupant takes possession of the property believing the land to be his or her own up to the mistaken line and claiming title to it, the possession will be considered adverse if the true owner knows of the possession and assertion of ownership and does nothing to prevent it for the statutory timeframe.

A boundary that changes via adverse possession is formalized by a “quiet title” action in court.

Settling Disputes

Most efforts to resolve fence problems on the basis of adverse possession fail because both parties believe the existing fence is the boundary and, therefore, neither party intends to claim any more than they are legally entitled to.  Thus, their occupation is usually not considered to be adverse, and the boundary dispute will have to be settled via other means.

Written agreement.  One way in which the parties may settle the boundary dispute is by executing a written agreement followed by the issuing of corrective deeds.  With this approach, the property descriptions of the adjoining tracts can be changed to reflect the fence line.  This may require the execution of one or more deeds from one party to the other to transfer the area being adjusted.

Memorandum of uncertain boundary.  Another manner in which a boundary dispute may be resolved is by the parties executing a memorandum of understanding designating the existing fence line as the boundary.  The memorandum can be recorded in the land records.  Once recorded it will bind the present and subsequent owners of the property and their successors.  But, for the memorandum to be enforceable, the boundary must be uncertain or in dispute.  The memorandum, known as a “parol agreement” is not subject to state statutes that govern conveyances of land.  Even so, the memorandum should accurately describe the land at issue, and the parties should sign it.  The adjacent landowners, as parties to the agreement, should then treat the agreed-upon line as the boundary between the tracts. 

Note: If prior owners had agreed to a boundary but didn’t reduce it to writing or record it on the land records, the boundary may be relocated in accordance with the prior agreement if it can be proved. 

Doctrine of practical location.  Also knows as “boundary by acquiescence,” the “doctrine of practical location” applies when the adjoining landowners don’t know where the true legal boundary between their tracts is and one party occupies to the fence line.  In Kansas, if the other party acquiesces in that occupation for 15 years, the result is that the existing fence will become the true boundary.  The parties could also reach an agreement that the existing fence line is the true boundary.  However, if the parties know that the fence is not on the true boundary but do know where the true boundary is, neither parol agreements nor boundary by acquiescence will be applicable.

Equitable exchange.  Some courts will grant an “equitable exchange.”  With an equitable exchange, one party is ordered to trade property on one side of the line for property that is on the other side.  For a court to grant such a remedy, it must be shown that the true location of the boundary will present an unusual hardship or some other circumstance that would cause a court to take action. 

Conflicting Surveys

If a boundary remains in dispute because of conflicting surveys, any boundaries and markers set by the first survey control in a conflict with a subsequent survey.  This is true even if there were errors in the original survey.  When a subsequent survey is done, the issue is where the original survey located the boundary lines.  In other words, the goal of a subsequent survey is to locate the lost boundary line.  The objective is not to dispute the location of the boundary.  This rule applies to both government and private surveys.  The reason for the rule is to protect the property rights of parties who have purchased, occupied and enjoyed the land in reliance on the original survey.  But, if the reason for the rule doesn’t exist and no one has taken action based on the incorrect survey, there is no need to apply the rule.  In that instance, if the original survey is inaccurate, it may be corrected with an accurate, new survey.

Note:  Unfortunately, the rule is often overlooked by subsequent surveyors who mistakenly believe that the line should be located in accordance with the most accurate survey possible. 

When a boundary dispute involves a disagreement between surveys, it is necessary to consider how the use of the land has been affected by the original survey’s location of the boundary.  If the fence was erected along the old but erroneous survey line, and the parties have actively farmed to the fence line, the fence should not be moved.  If the fence does not follow either the original survey or the later survey, the true boundary line may need to be designated.  Whether the fence will need to be moved as a result will depend on the application of the other principles and doctrines discussed above. 

Recent Case

A recent case from Iowa illustrates some of the principles that commonly arise in a boundary disputed involving agricultural land.  In Black v. Jorgensen, No. 19-1576, 2020 Iowa App. LEXIS 1161 (Iowa Ct. App. Dec. 16, 2020), the plaintiff sought to quiet title related to a disputed area where her land adjoined the defendant’s property. The disputed property consisted of 6.44 acres between the boundary of record east to the fence that had been maintained by the parties’ predecessors. The boundary of record was a government survey line that ran through a drainage ditch that was densely wooded and vegetated. The parties’ predecessors had built a fence fifty years prior on the east side of the ditch to keep cattle from going into the ditch.  The defendant built a new fence that ran partially along the government survey line, curved around the eastern embankment of the ditch, and ended on the south end of the survey line. Two acres of land fell between where the old fence allegedly ran and the defendant’s new fence. The other four and a half acres were between the new fence line and the government survey line in the ditch.

The plaintiff claimed ownership of the land between the survey line and the old fence built by the parties’ predecessors. The plaintiff argued she had obtained title to the disputed land by boundary by acquiescence, practical location, and adverse possession.

The trial court held that the plaintiff did not prove a boundary by acquiescence, practical location, or adverse possession. On appeal, the plaintiff argued the trial court erred in failing to quiet title in her favor. The appellate court held that the plaintiff failed to establish a boundary by acquiescence. The appellate court noted that neither the plaintiff  or the defendant, nor the parties’ predecessors had ever discussed that the old fence was the boundary line, and the predecessors considered the government survey line to be the boundary line. On the issue of boundary by practical location, the appellate court held that the plaintiff had failed to establish the boundary was disputed, indefinite, or uncertain. The appellate court noted that county plat maps and the legal descriptions of the land all indicated a straight-line border between the properties through the drainage ditch.

On the issue of adverse possession, the appellate court held that the plaintiff failed to establish that she had exercised hostile, open, exclusive, and continuous possession of the disputed area for at least ten years (the Iowa statutory timeframe). The appellate court noted that the parties rarely used the disputed area, and that it was mainly used for hunting by both parties. Therefore, the appellate court affirmed the trial court’s rejection of the plaintiff’s boundary claims and confirmed that the defendant owned the disputed area.


Boundary disputes are not uncommon when farm and ranch land is involved.  Numerous principles can come into play when determining the true boundary.  In rural settings, usage of adjoining properties may more commonly determine the boundary between properties than does a survey.  That last point can come as a surprise to many, including surveyors.

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