Boundary Disputes and Land Surveys

Maryland’s highest court issued a decision last week in Webb v. Nowak, a case about boundary disputes.  The case arose because the Nowak’s cut down and sold timber on a parcel of land that the Webb’s believed they owned – this led to accusations of trespass and claims of adverse possession.  Both parties obtained surveys to determine where the boundary line was supposed to be.  The original 1928 deed set the mutual property line at an “existing fence” and then ran from the fence “340 feet more or less” to a road.  The Nowak’s surveyor concluded that there were remnants of a fence and other evidence of its location when he surveyed almost 80 years later in 2007.  His testimony included pictures of a fence post, the borings of a tree that had grown around a fence post and a description of a swale that he concluded indicated the edge of a formerly tilled field.  He therefore concluded that the 340 foot measurement was a mistake, and the distance should only be about 200 feet.  The Webb’s surveyor relied on a point 340 feet from the road, but did not note any evidence of a fence at that location.

For a starting point, the Court of Appeals concluded that there was a question of fact concerning the correct location of the boundary.  A “determination of which of two surveys reflected the true boundaries of disputed land as intended by the original surveyor is a question of fact.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The determination of the boundary line in this case … must involve comparing the Wolf deed to conditions in the field—e.g., the location and condition of the Existing Fence, the location of the Private road and County road, the location of other monuments, the topography of the land, and even the location of surveyors’ pins.”

Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).  The Court went on to conclude that the 340 foot measurement was a mistake, because the fence was a monument and “monuments control over courses and distances where they continue to exist, or their locations can be determined with reasonable certainty.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The takeaway for a current landowner?  First, if there is a dispute about the correct boundary in a deed, the testimony of a surveyor will be of paramount importance.  This brings me to land surveys — In Maryland, land surveyors are licensed by the State and the state regulates what must be included in certain types of surveys.

What most people receive when they buy a house — a location drawing — is the lowest form of survey and it cannot be given to someone unless they acknowledge in writing that “A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.” COMAR  The purpose of a location drawing is only to “provide some assurances that improvements are located on the property.  This assurance is for the use of a lend or an insurer only.”  Id.  So a homeowner that purchases a property is not supposed to rely on the location drawing for assurances that the boundaries are correct.

An accurate and reliable survey that is likely to be accepted in Court needs to be at least a Boundary Survey.  A boundary survey will establish and mark the “physical position and extent of the boundaries of the property” and requires that monuments (surveyors stakes) be set and a plat produced.  COMAR  Conducting the survey is what will place the surveyor in a position to testify as an expert to the location of the lines.  And in the case of Webb v. Nowak, it is what put the surveyor in a position to testify that a line described in a deed as 340 feet was really only 200 feet – and that testimony made all the difference.

For more on types of surveys, see Types of Land Surveys

J. Dirk Schwenk graduated from the University of Maryland School of Law in 1997, cum laude, and practices in real estate, waterfront land riparian rights and marine issues in Annapolis, Maryland.