CHAPTER 1

HISTORY AND CONCEPT OF BOUNDARIES

1.1 INTRODUCTION

The history and location of boundaries are steeped in the history of the world from the time before records were kept to today. These boundaries are a result of actions of individuals and nations and law. Boundaries can be related to the areas of history, politics, surveying, and law. Both boundaries of an international nature and those between individuals have caused problems that have been fought, are still being fought, and will continue to be fought in the future over their locations between nations, states, and individual parcels of land within “Happy Acres” subdivisions. In recent years, both local and international judicial tribunals have had to apply old, proven doctrines and have created new legal doctrines to resolve boundary issues. One cannot pick up a newspaper or a magazine without reading about some individual or nation with a boundary issue that is new or that has been festering for many years.

Wars have been fought both on an international scale and in local neighborhoods, and people have been killed over boundary disputes of an inconsequential nature involving pieces of land that have ranged from hundreds of miles to a fraction of a foot or meter. Boundaries are personal in nature, and people have been and will continue to be protective about the misidentification or misalignment of a known or perceived boundary infringement. The surveyor may become the common factor in a boundary problem, as a result of, for example, preparing an erroneous map showing the boundary between two or more nations or the erroneous depiction of a single line between two landowners.

Even after modern boundary issues have been, seemingly, resolved, members of both the legal profession and the surveying profession may question the results, asking incredulously, “How could the court do that?” Both the trial attorney and the testifying survey expert could not believe the Court disregarded the case law on the subject.

In the primeval forest, particularly in the plant kingdom, there are no known boundaries between living things. Although some horticulturists dispute this, we accept the fact that plants do not create boundaries to separate themselves. Animals—especially humans—do create boundaries. We like to think that only humans create and appreciate boundaries, but it has been observed in nature that most mammals, some reptiles, and a few fish create, identify, mark, and defend boundaries.

In this book, we discuss the creation, identification, description, and recovery of boundaries among people. We do not include the recovery and interpretation of the evidence of once-created boundaries; rather, we examine how boundaries are created, how they are described, and the technical legal and ethical ramifications of such boundaries that separate rights, both real and perceived, in real property.

Some boundaries are created in a random manner, whereas others are created according to preconceived plans, identified by any manner of a written description(s), and then litigated according to common law, case law, or statute law.1 Although it is not our intent in this book to dwell on the creation of boundaries by the lower forms of animal life, their actions in creating boundaries should be examined, because certain principles are similar. Many of these boundaries humans create remain for generations and, when they are retraced by modern methods and with a modern approach, may cause technical and legal problems for today’s surveyors and courts.

Field examinations and studies by naturalists have revealed that most animals really don’t create boundaries per se. However, it is recognized that they usually create terminal points (corners) and then identify the boundaries between these points,2 although lower forms of animals may create boundaries that are not necessarily of a permanent nature.

Humans usually create boundaries in several ways. For the sake of simplicity, these may be placed in the following categories:

The following principles are introduced in this chapter and discussed in detail in later chapters:

1.2 SIGNIFICANCE OF BOUNDARIES

The description of property by surveys and landmarks and by reference to boundaries is very ancient. Basically, property interests are separated by boundaries. From precolonial times in the United States, many wars, both local and regional, have been fought and people have been killed as a result of disputed boundaries. This problem was probably inherited from the European continent when the United States adopted English common law as the basis of its common law.

In Great Britain and in Europe, territorial boundaries have, for the most part, generally been stable because the lines were etched in antiquity. Once parish boundaries were established in England—many during Roman times—they formed invisible webs or lines around families and bound them into communities, and ultimately separated communities from one another. This historical background was passed on to the United States, and these distinctions exist today as a result of this influence.

Stories abound in both the United States and Great Britain in which boundaries have affected people’s lives. Individuals and groups go to extremes over boundaries, for a boundary can have political ramifications in areas such as citizenship and jurisdiction in legal matters. A tale from colonial times tells of the decision of surveyors who were engaged to run the boundary line between Kentucky and Tennessee to place a jog in the line when a landowner placed a jug of rum near his property and told the surveyors that it was theirs if they found it to be in Kentucky. They did. Naturally, the line has a jog in it. One of the authors of this book, Walt Robillard, remembers that when he was a young boy growing up near the Canadian border, his grandfather would take him to a tavern that straddled the U.S.–Canadian border. On the U.S. side of the bar, the serving of drinks stopped at midnight and was “never on Sunday”; however, on the Canadian side, the drinking continued. At the stroke of midnight and on Sundays, all drinks were served on the Canadian side. The bar patrons would move physically from the United States into Canada.

In 1870, the Reverend Francis Kilvert, an Anglican priest in Wales, related how one of his parishioners occupied a house that straddled the border in Wales on the edge of Brilly Parish. It was suggested that it would be more desirable for this parishioner to give birth to her child in his parish. The line between the parishes was indicated by a notch on the chimney....