The Forgotten History of Metes and Bounds.

• Author: Brady, Maureen E.

ARTICLE CONTENTS INTRODUCTION 875 I. PROPERTY INSTITUTIONS IN THE METES AND BOUNDS AGE 884 A. The Case Study 885 B. Recording 889 C. Surveying and Boundary Making 902 1. Perambulation 902 2. The Division System 908 D. Litigating 911 II. THE EVOLUTION OF METES AND BOUNDS 921 A. Signs of Strain 922 B. Legislative Responses 925 C. Administrative and Other Changes 930 III. RETHINKING METES AND BOUNDS 935 A. Toward New Categories of Metes and Bounds 936 B. Reappraising the Costs and Benefits of Metes and Bounds 939 C. The Social Function of Customized Property 944 CONCLUSION 951 INTRODUCTION

In Worcester, Massachusetts, a rock has lain in the ground for nearly two hundred years with the words of a deed etched into it. (1) Though the transaction is atypical--the grantor proposed to transfer his hilltop parcel to an unusual grantee, God--the idiosyncratic (and now inscrutable) description of the property is not. The boundaries were marked by a "chestnut tree in the wall" where the wall is now gone, "a stake and stones" lost to time, and the names of neighbors long since forgotten. (2) This is a paradigmatic example of a "metes and bounds" description: records of boundaries that describe a parcel according to monuments (trees, rocks, stakes, or other markers) along its outskirts or by reference to neighbors' lands and other nearby features. (3) Because it uses local markers, metes and bounds can be used to describe or lay out lots shaped like a rectangle, a many-sided polygon, or anything in between that is produced by the commands in the description. (4) This method of demarcating boundaries was used in wide swaths of America--not only in the thirteen original colonies and other early states, (5) but also in isolated sections of states as far west as California. (6) The recording institutions of the nation are filled with references to piles of stone, all manner of trees, long-lost structures, and dried-up streams. (7)

Metes and bounds descriptions have generally been met with derision from surveyors, lawyers, and scholars. (8) While it is quaint to mark boundaries with stones, that sort of practice is inconsistent with one of the dominant theories of property's form and function: property institutions and much of property doctrine can be understood as instruments for lowering information costs to parties trying to ascertain the scope and extent of property entitlements through communications about them, whether those communications are the legal forms in which interests are held or other signals of claims. (9) One can envision different communications about property interests along a spectrum from customized to standardized, depending on how easy it is to ascertain the scope or existence of an entitlement from the communication. (10) Customized communications are tailored to individual preferences, permitting infinite numbers of variations, but rendering information about entitlements and obligations legible to a smaller audience with the background knowledge necessary to interpret more idiosyncratic messages. (11) In contrast, standardization ensures communications "conform[] to a[]... general pattern"; these communications contain less intensive information and may not precisely satisfy individual preferences, but standardization reduces processing costs and enables communication to a larger, more heterogeneous, and dispersed audience. (12) Because they are customized to specific transactions and features of the land, metes and bounds descriptions are quintessentially customized, high-information-cost ways of describing property. And property theory predicts that the high information costs entailed by customization will lead to inefficiencies in property markets. (13)

Some new empirical work has lent support to this criticism of metes and bounds, showing that these descriptions may in certain circumstances cause long-term harm to markets for land. In a series of recent articles, a team of economists led by Gary Libecap and Dean Lueck have demonstrated the relative benefits of the "rectangular system"--the grid laid out in the western states as a result of the Northwest Ordinance--over the street and lot layouts produced by parcels demarcated by metes and bounds. (14) Because the rectangular system standardized information about parcels, permitting them to be described according to a simple pattern by township, meridian, range, and lot, it lowered the transaction costs involved in buying property and enforcement costs associated with disputes over boundaries. (15) Libecap and Lueck's study suggests that, because of these lowered costs, property values may be higher and litigation frequency lower when areas are surveyed in grids and described in standard terms rather than marked and described by fences and trees. Numerous legal scholars have picked up on this study, using it to support broader points about the importance of standardization in property regimes as a precondition for optimal growth or resource value. (16)

Although subjected to these criticisms, metes and bounds systems have not been the object of serious study. Though some historians have written cursory descriptions of metes and bounds to preface histories of the rectangular system in the American West, (18) there are no books or articles focused on metes and bounds descriptions or the laws and institutions surrounding them. Indeed, the primary students of metes and bounds have been not historians or lawyers, but rather ecologists interested in the clues that boundary trees carry about presettlement forest cover. (19) Why have metes and bounds systems been ignored? Perhaps because, as one ecologist put it, records of private land are "widely scattered and difficult of access." (20) Metes and bounds deeds are buried in county records repositories, if available at all. (21) Seventeenth- and eighteenth-century court cases and laws on land recording and transfer were inherently local and intermittently published. And besides, how much nuance can attend a system where properties are described by things like "the big hemlock tree where Philo Blake killed the bear"? (22)

This Article takes a different view. Using new archival sources, it illuminates the important lessons metes and bounds provide about demarcation, property, and the history of American development. From hundreds of deeds and court records, it uncovers the practices and institutions associated with metes and bounds in one early American settlement: New Haven, Connecticut. This study reveals that metes and bounds systems were highly contextual and exhibited variations. While the term "metes and bounds" usefully indicates what is common among these systems--descriptions of property boundaries by adjacent features and markers--the use of metes and bounds in different locations was accompanied by different surrounding laws, surveying practices, and supporting institutions. As the history of the New Haven system indicates, metes and bounds systems could offer desirable design features within their specific social and legal context. Furthermore, this history of the New Haven system demonstrates neglected values associated with customization, as well as standardization, within property regimes.

The metes and bounds system explored in this Article has two underappreciated virtues. First, because metes and bounds descriptions were filled with rich, customized information about land, the system built upon these descriptions carried benefits for members of the interpreting community. As some information-cost theorists have argued, there are trade-offs involved in the amount of information provided about an entitlement. On the one hand, standardized information may make transacting less costly by making the entitlement easier for a larger number of interpreters to understand. On the other hand, thick, customized information can be tailored to the specific needs and preferences of a typically smaller audience. (23) Because residents could determine for themselves what information to record--such as detailed or simple descriptions of the boundaries and contracts governing land use--the system facilitated the establishment and ad hoc development of fledgling recording institutions and new land-related laws on the frontier. Furthermore, metes and bounds descriptions allowed settlers to map new territory through language that included useful information, such as predicted land uses, natural features, and the people surrounding property.

Second, metes and bounds descriptions could be supported by a variety of social and legal practices that mitigated the costs of enforcing boundaries and transferring land. These long-forgotten practices--the ritual walking of boundaries, legal processes for communal boundary upkeep, and highly regulated land distributions to closed populations--helped to reinforce shared understanding of the customized descriptions in deeds and to create witnesses and documents that could be used in transferring or disputing the property later. Because the community was relatively homogenous, and land was plentiful, these practices were strikingly effective at reducing conflicts over property. (24)

In outlining these two virtues, this Article provides a new descriptive account of both metes and bounds recordings and the missing context in which many metes and bounds systems evolved. Moreover, the Article explains why the benefits of metes and bounds were greater--and the associated costs lower--than they might appear to modern readers.

Importantly, the theory articulated in this Article explains not just the rise but also the demise of metes and bounds systems. Their imprecision eventually rendered them unwieldy as early American settlements grew and became more heterogeneous. Early in American history, when it was important to the establishment and growth of the colonial enterprise that its institutions be adaptable and its people close-knit, the use of metes and bounds...