We do not learn from experience we learn from reflecting on experience. John Dewey

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Brown & Clark As Applied to Kentucky Boundaries

(Part 2)

Presented by:

Jonathan Lee Payne, PLS

Welcome Welcome Welcome Welcome

We do not learn from experience…we learn from reflecting on experience.

– John Dewey

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Purpose of Seminar

Definition of experience noun

1a : direct observation of or participation in events as a basis of knowledge

b : the fact or state of having been affected by or gained knowledge through direct observation or participation

2a : practical knowledge, skill, or practice derived from direct observation of or participation in events or in a particular activity

b : the length of such participation

3 : something personally encountered, undergone, or lived through

verb

2 : to learn by experience (see experience entry 1)

Merriam-Webster online dictionary retrieved 11/10/2020 from https://www.merriam- webster.com/dictionary/experience

Main Texts Used for This Presentation

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Additional Source Materials

Argument Against Brown Text

This Photoby Unknown Author is licensed under CC BY-SA

This Photoby Unknown Author is licensed under CC BY

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Thoughts on these terms:

“fence line surveyor”

“deed staker”

Is There Always One Solution to Rule Them All?

This Photoby Unknown Author is licensed under CC BY-SA-NC

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How the rest of the seminar is laid out.

Waters and Water Courses

Kentucky Case Law Where during a long period of time, the thread of a stream constituting a boundary changes, the boundary changes with it.

Ball Creek Coal Co. v Napier, 202 S.W.2d 728, 305 Ky. 308

Deed calling for meanders of branch includes land up to center of branch.

City of Hazard v Eversole, 35 S.W.2d 313, 237 Ky. 242

Brown Principle 11. The

general rule is that land gradually built up by accretion or exposed by reliction belongs to the riparian owner.

Principle 12. The

general rule is that land gradually eroded away or permanently

inundated by water belongs to the owner of the bed.

Clark

A call to the bank of a nonnavigable stream carries to the center of the bed unless it is clear that only the edge was intended to be the boundary line.

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Ball Creek Coal Co. v Napier

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City of Hazard v Eversole

Construction of Language of Description

Kentucky Case Law Calls of deed, describing land conveyed as lying on left fork of named stream, required that description be located upon the ground as commencing at a point on the NW fork of north branch of stream and embracing only a tract surrounding that fork, notwithstanding slight discrepancy in deed, and not at a point on branch continuing on to the west from point at which larger north branch joined stream.

Gardner v. Howard, 342 S.W.2d 541.

Brown Principle 4. Words and their meanings and distances recited in a description are to be interpreted as o the date of the description, not as of the time of the retracement.

The terms of a writing are presumed to have been used in their primary and general acceptation, but a local, technical, or

otherwise peculiar signification may be shown to be the intent…

Clark Words recited in a description must be given a reasonable construction in light of the meanings of such words at the time of the writing or execution of the conveyance.

Although testimony cannot be used to change the meaning of a word in a conveyance, it can be used to explain meanings in

questionable words…

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Gardner v Howard

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Gardner v Howard

Public Ways

Kentucky Case Law In absence of language showing contrary intention, where a lot is conveyed by number with reference to a plat which shows the lot as abutting a street or highway, grantee presumptively takes fee to center of street or highway.

Delph v. Daly, 444 S.W.2d 738

Under English common law, grantee of land bounding on highway or street owned fee to center thereof.

Goodloe v City of Richmond, 63 S.W.2d 785, 250 Ky. 608

Brown

Principle 9. A metes and bounds description with a road as a boundary must be written to positively exclude the road; otherwise, in those cases where the grantor owns the bed of the road, it will be presumed that the conveyance intended to convey title to the center of the road, subject only to the public easement.

Clark

…the rule is extended so that the grantee of a lot in a recorded plat takes title to the center of the street, subject to a public

easement. This will apply even if the land is

described by lot number or metes and bounds survey…

If the grantor conveys lots in a subdivision according to a plat or plan which expressly bounds them on the exterior lines of the street, the grantee will acquire no portion of the fee of the street.

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Delph v Daly

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Delph v Daly

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Delph v Daly

Goodloe v City of Richmond

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Beginning Point on or Call for Side of Highway

Kentucky Case Law Even though call in a deed is to or along a street or highway, there is a presumption that boundary

extends to center of street or highway on which it abuts, subject only to a public

easement.

Matthews v. Hudson, 213 S.W.2d 424, 308 Ky. 39

Madson

Most old deeds that call for a road as one of the boundary lines intend for the center of the roadway to be the boundary, as opposed to the true center of the right of way. This is especially true if the road right-of-way was an easement.

Some old deeds call for a certain side of a given roadway, while others call for one side or the other of the right-of-way. In either case, whether the side of the road or the right-of-way has been called for, it is obvious that the centerline is not the deed line.

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Matthews v Hudson

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Matthews v Hudson

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Description W/ Reference to Map and Quantity Intended to be Conveyed

Kentucky Case Law

Where federal highway was clearly established, well defined physical object at time of recording of plat of addition showing that all lots at southern boundary of addition bordered on highway and extended 167½ feet to alley parallel to highway, and deed gave no metes and bounds but referred to the plat, starting point in locating alley and determining depth of vendees’ lots, which were between highway and alley, was north line of highway and not north line of paved portion, which was located 6½ feet south of north line of highway and which vendor claimed was southern boundary of the lots.

Pemberton v Osborne, 333 S.W.2d 940

Brown

Principle 5. Where a property description calls for a plat or map and the parties acted with reference to the map, the plat or map becomes a part of the description as much as if it were recited expressly in the deed itself.

A call for an adjoiner may include any call for a map or plat not mentioned in the deed…

Pemberton v Osborne

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Pemberton v Osborne

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Pemberton v Osborne

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Private Ways

Kentucky Case Law Where deed referred to east side of

passway so as to include all of passway within bounds of property conveyed, the grantee, not common grantor’s subsequent grantee of adjoining property was owner of passway.

Marcum v. Cantrell, 409 S.W.2d 159

Robillard, Wilson & Brown

Many concepts similar to what we have already discussed occur within this case. The judge writes in his opinion that there is a latent ambiguity in the description. So let’s look at what Robillard says about ambiguities:

“Once an agreement or deed is reduced to writing, testimony cannot be used to overcome clear, unambiguous, written words. But if the words are not clear and need explanation, extrinsic evidence, that is, evidence other than the writing itself, may be sought to explain the words.”

Marcum v Cantrell

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Marcum v Cantrell

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Marcum v Cantrell

Priority of Grants and Deeds

Kentucky Case Law Where adjoining

landowners claimed title through common antecedents, the landowner having older, prior recorded paper title, embracing

disputed boundary land would be entitled to possession of such land.

Thurman v Doss, 229 S.W.2d 317, 312 Ky.

603

Brown

Principle 2. As between private parties, a junior grant, in conflict with a senior grant, yields to the senior grant.

Where two parties are given title to the same parcel of land, and where possession is not a consideration, the party with senior rights has the right of

possession according to common law.

Madson The entire concept of junior and senior rights arises out of the

concept that one cannot sell what one does not own.

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Thurman v Doss

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Priority of Surveys

Kentucky Case Law In suit involving ownership of coal and mineral rights under a tract of land, where plaintiff to establish its title, located the calls of the oldest patent available, and then worked westwardly up the stream by locating the corners in the next oldest survey, such method of locating the younger survey in accordance with the lines of the older was proper.

Blackburn v. Pond Creek Coal & Land Co., 287 S.W.2d 610

Brown

Principle 6. A call for an adjoiner is not always a correct criterion for determining senior rights. A title search back to the original formation of the

conveyance is necessary for a correct solution.

Robillard, Wilson, Brown Principle 4. The title to a junior parcel can be no better than the quality of the title of the parent parcel from which the junior parcel was created.

Others may have valid claims against the title of a property. This title may appear in the form of senior fee titles, easements or lesser estates, or other encumbrances.

Blackburn v Pond Creek Coal Co.

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Blackburn v Pond Creek Coal Co.

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Blackburn v Pond Creek Coal Co.

Presumptions and Burden of Proof

Kentucky Case Law The law presumes that a boundary line running from one point to another is a straight line, and this presumption can be overcome only by satisfactory evidence to the contrary.

Gover v. Queen, 189 S.W.2d 672, 300 Ky.

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Brown

A line in a description is assumed to be the shortest horizontal distance between the points called for unless the contrary is indicated by the writings.

A bearing quoted for a line defines it as a straight line. If a line is defined by monuments, without bearing or distance, the words “in a straight line” or “in a direct line” are sometimes added to emphasize the presumed fact that the line is straight. An ambiguity may exist if a bearing is recited, the term straight line inserted, and then explained further “along a natural feature” such as “thence N 10° W, 210 feet, in a straight line along an existing fence.” If one element varies from the others, the relative dignity of the elements must be considered.

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Gover v Queen

Presumptions and Burden of Proof (Case 2)

The actual marking of a boundary line on the ground, such as an

established fence, overcomes

presumption that a straight line is intended.

Siler v. Cannon, 130 S.W>2d 742, 279 Ky.

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Siler v Cannon

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Siler v Cannon

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Siler v Cannon

Admissibility of Evidence

Apparent purpose of statute providing that no survey or resurvey of real estate made by any person, except the county surveyor or his deputy, shall be considered as legal evidence in any court, unless such survey is made by mutual consent of the parties, is to make clear that only official surveys or copies thereof may be admitted in evidence merely upon

authentication as to a public record, presumptively regular and accurate, and unofficial surveys unless made by order of court, require preliminary proof of accuracy by surveyor or engineer who made proffered documents. KRS 73.120.

Gannon v Pearl, 311 S.W.2d 184

Clark

The Federal Rules of Evidence are binding in the federal courts and not necessarily in state courts. In general, a map made by a private surveyor is not evidence unless the maker of the map is present to testify as to its making or unless it comes under one of the exceptions to the hearsay rule.

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Reputation or Tradition

Kentucky Case Law Where an ancient boundary was disputed, reputation evidence was admissible to show location of

boundary,

Hail v. Haynes, 227 S.W.2d 918, 312 Ky. 357

Brown Parol evidence may be resorted to for the purpose of applying the description contained in writing to a definite piece of property and to ascertain its location on the ground, but never for the purpose of supplying deficiencies in a

description otherwise so incomplete as not to definitely describe any land.

Clark

Suggested guidance from The Manual of Surveying Instructions For The Survey of the Public Lands:

(1) The witness (or record evidence) should be duly qualified: The knowledge or information should be firsthand, not hearsay;

(2) The testimony (or record statement) should be such as can stand an appropriate test of its bona fide character.

(3) The testimony (or the record) must be sufficiently accurate, within a reasonable limit, for what is required in normal surveying practice.

Hail v Haynes

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Hail v Haynes

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Hail v Haynes

Testimony of Surveyors and Their Assistants

In action to fix boundary, there is no error in considering testimony of unofficial surveyor who had not made survey by mutual consent of parties, where there was preliminary proof of accuracy of survey. KRS 73.11, 73.120

Gannon v Pearl, 311 S.W.2d 184

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Agreement, Acquiescence, and Practical Location by Parties

Kentucky Case Law Acquiescence by interested parties and contemporaneous construction of deeds by those having actual knowledge of proper boundaries are always relevant and convincing factors in the case where passage of time has obscured many of usual sources of evidence.

Elk Horn Coal Corp. v Anderson Coal Co., 223 F.Supp. 746

Brown Principle 8. Title lines established by estoppel, agreement, prescription, or other unwritten means are local in character and cannot be used to establish lines of the written deed.

Any property line determined by unwritten means can only be considered local in time and character, An agreement with a neighbor to fix a disputed unknown line cannot be used as a basis to establish lines of a previously written deed.

Clark

Acquiescence has been recognized by the courts as a practical means of establishing boundaries without a written document.

…,acquiescence is a legal presumption that is rebuttable.

Most courts will take a strict, narrow view in determining whether a boundary by

acquiescence has been established.

Elk Horn Coal Corp. v Anderson Coal Co.

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Elk Horn Coal Corp. v Anderson Coal Co.

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Moran v Choate

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Location of Monuments or Marks

Kentucky Case Law In determining the location of lost monuments, the testimony of persons who saw them when they were discernable and proof of

acquiescence of the parties and the general reputation and tradition as to where the lost monuments were located may be considered.

Wagers v Wagers, 238 S.W.2d 125

Brown By reputation, certain markers are commonly accepted by surveyors and others as being correct, even though they cannot positively be proved to be correct.

As time progresses and records of replacement of original property monuments are lost, surveyors become more and more dependent on the acceptance of monuments whose history is lost in antiquity.

Clark

See Next Slide for Long Quote

Clark

“The entire premise of the existence of an original or an obliterated corner can depend on the ‘testimony of knowledgeable people’ concerning the corners, lines, or boundaries.

Because of the ancient boundary exception, which courts recognize in determining corners which have been obliterated, it is clear that the surveyor may receive testimony from individuals who may have had personal knowledge of where an original boundary was located. Testimony that fences were built on original lines and terminated at original corners is evidence that the surveyor may use. He may discover that these fences have been

maintained on the exact lines as originally run. The surveyor is obligated to consider this evidence and it must be considered in the location of an obliterated corners. Where the testimony is clear and positive, and there are no circumstances that may cast doubt on it, it may be the best remaining evidence of the original corners. In determining the original government lines and corners, it is proper to consider the testimony of those individuals who saw the corners when they were visible. It is competent to prove the location of a corner or a line of a public survey by reputation. If the government corner is lost, it may be

reestablished by the parol evidence of old residents who once knew of its location. However, this testimony should be jealously guarded by the courts. In the acceptance of this testimony the surveyor should strive to make certain that the witness is testifying to facts personally remembered, that he is disinterested, and he is testifying concerning a specific location.”

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Wagers v Wagers

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Wagers v Wagers

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Wagers v Wagers

Weight and Sufficiency of Evidence (Courses and Distances)

In boundary dispute surveyor’s substitution of

“N” for “S” in closing call, which resulted in survey closing properly, was reasonable and did not render his survey unacceptable or his

testimony incredible where correctness of location of beginning point by surveyor was borne out by specific monuments and the calls immediately preceding the closing call seemed to be definitely located.

Carroll v. Kentucky & West Virginia Gas Co., 403 S.W.2d 273

Madson A blunder in a legal description is generally a rather obvious error, such as substituting “South” for

“North” or “east” for “West”.

Each case must be

considered separately and on its own merits. Once the error is firmly established, the rule is clear: it should be placed where it is found. The fact that one call has to be thrown out of a plat or legal description in no way destroys the rest of the instrument.

Clark

When it is discovered that a recitation in a deed is in error, it may be corrected if the description can be made valid.

…a call “running East, 250.24 feet” to a point can be shown as

“running West, 250.24 feet,” if that call would close the description.

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Carroll v Kentucky & West Virginia Gas Co.

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Carroll v Kentucky & West Virginia Gas Co.

Weight and Sufficiency of Evidence

(Location of Corners, Lines, and Monuments)

Kentucky Case Law Evidence that set stone referred to in defendant’s deed was located outside of sidewalk adjacent to defendant’s lot and that stairway of building which once stood on lot was located in present location of sidewalk sustained finding for adjoining lot owner that defendant’s lot commenced on outer end of four-foot sidewalk and entitled adjoining land owner to disputed four feet of land between lots.

Parker v. Robinson, 216 S.W.2d 899, 309 Ky.

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Brown Principle 14. In absence of natural monuments or evidence of lines actually run by the original surveyor, improvements, such as curbs and paving, which were installed in accordance with the original survey monuments, are presumed controlling.

Madson Changes in the

roadway location have no effect on the boundary location.

The location of the structure at the time the deed was written determines the boundary line.

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Parker v Robinson

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Parker v Robinson

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Weight and Sufficiency of Evidence

(Waters and Water Courses and Highways as Boundaries)

Kentucky Case Law Evidence established that references to creek, in various deeds of remote grantors as dividing line between plaintiff’s land and defendant’s land, were intended to refer to channel of stream as it was prior to change, and that plaintiff owned tract located between present and old channel.

Sanders v. Rose, 176 S.W.2d 119, 296 Ky. 25

Madson

Often it is necessary to determine whether or not a creek has changed its course. Was this change gradual or did it occur suddenly, such as the result of a heavy rainstorm. The different legal treatment for gradual movement of the stream (erosion, which changes the boundaries) as opposed to a sudden change of the waterway (avulsion, in which original boundaries remain where they were) demands that the surveyor make this

determination. Further, it is critical to know whether the stream was in its present location at the time the deed was drafted and thereby used as a natural monument in its present location.

Sanders v Rose

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Sanders v Rose

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Sanders v Rose

Burchett v Howell  Newman v Sharp

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Newman v Sharp

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Newman v Sharp

Weight and Sufficiency of Evidence

(Agreement or Recognition as to Location of Boundary)

Kentucky Case Law Evidence was not sufficient to show that an agreed boundary was established depriving landowner of disputed tract of land.

McCowan v Isaacs, 151 S.W.2d 1044, 287 Ky. 149

Brown

Principle 8. Title lines established by estoppel, agreement,

prescription, or other unwritten means are local in character and cannot be used to establish lines of the written deed.

Possession. Any unwritten right or possession that ripens into a fee right extinguishes prior title rights. …Normally, a surveyor does not decide who has unwritten possession rights; he or she merely notes the evidence of enchroachments and evidence of other surveys. The final decision is a legal one.

Clark

There are two viewpoints as to the extent of the validity of parol agreements to boundary lines. The more liberal view is parties can contract to the line in the same way they could contract on other matters.

The more conservative view takes the position that because of the Statute of Frauds, which requires that all instruments purporting to transfer a property interest be in writing, the parties must actually act on the agreement in such a manner so as to create estoppel on each party to deny its existence.

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McCowan v Isaacs

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Wrapping up the Case Summaries

Using Google Scholar to Access Case Law

https://youtu.be/xewQZMG4VQ4

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Using Case Law Access Project to Look up Cases

https://youtu.be/wDDp-Mv0yTk

Links to Referenced Court Cases

https://drive.google.com/drive/folders/1L1x5tZ_rd4WQhGNoxw4d0BYVRDfa_7h7?usp=sharing 99

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