Another Problem: Making Up Rules as We Go Along

All rules have to originate somewhere, at some time, and for some reason. Usually they come about because some problem has occurred. Some rules are local, some are regional, and some are universal. Some are ill-founded and do not stay long, while others are widely accepted and stand the test of time. A few of these have been around seemingly forever. But that is not quite true; our first legal rules were formulated relatively recently, although some others were adapted and adopted from existing rules of other countries. Since the beginning, however, we have been making additional rules as we went along and as the need arose.

Interestingly, much of the law as we know it today has been made as we went along. Legislatures enact statutes, some of which stand, some of which become amended, and some of which are repealed. It is the interpretation of the statutes by way of judicial decision that results in the development of case law. Case law contains the principles we use as rules for guidance in decision-making. These arise through one of three possible ways. A court may compare the facts of a case with one setting precedent in the matter, and rely on the precedent for the rule. Or, a court may circumvent the precedent case since the present case is somewhat different in fact pattern. Third, a court may not find a precedent, or any guidance, and therefore must decide solely on its own. Thus, perhaps, a new rule is born, although it may only be germane to that particular set of circumstances.

So, we have judge-found law and judge-made law. Whichever, the common law from where we derive our rules and principles, comes, immediately at least, from courts; statutes come from legislatures. Our society has recently come full circle with this: Judge Samuel Alito recited exactly that in during his confirmation hearings, stating "a Supreme Court Justice cannot make law. He must adjudicate that which is in the constitution. All law making is the responsibility of the Congress of the United States."

Early in our history some reliance was placed on English decisions and rules of law. As time passed, our courts began making their own rules with increasing frequency. While this is fine where the authority exists, the problem arises when surveyors, or others, try to make their own rules to fit the facts of a particular case. In one instance, a surveyor retracing a description consisting of a corner, a right angle, and a distance rejected the corner and the right angle, favoring the distance. He stated that when the rule that boundaries must be established in descending order of control by monuments, courses, distances and quantity was followed it brought about what he felt was an unacceptable variance from the stated distances in the deed. Because of this reasoning, he gave priority to the distance called for, rejecting the other calls. With this, the court stated that "the surveyor was proceeding on the assumption that the terms of the deed were incorrect and he in fact was reforming the deed." Gross error or not, the deed says what it says. And the rule is what it is.

A similar instance was found in an earlier case whereby a city surveyor attempted to stake a lot in a 48-lot subdivision, finding that improvements and monumentation did not agree with the deed calls. This situation not only applied to the lot he was staking, but was widespread. He attempted to "correct the plat" by placing new monumentation at the stated distances thereby bringing the monumentation in harmony with the deed calls and plat recitations. This, however, resulted in almost total disagreement with existing improvements. The court later stated, "nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. 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."

The court went on to say in this case, "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 these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance—a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. The surveyor should have directed his attention to the ascertainment of the actual location of the original landmarks set by the original surveyor and if those were discovered they must govern. If they are no longer discoverable, the question is where they were located."

While making rules as we go along may be satisfactory where necessary to those who have the authority to do so, it is equally unacceptable for others to "pick and choose" for the sake of convenience or for reasons founded on no more than a whim. The rules for titles, surveys and boundaries have withstood scrutiny and the test of time, and were well-founded when originated. The challenge comes in knowing what they all are and when a particular one should be applied to the question at hand. Thorough knowledge and understanding makes this task manageable.

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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