Boundary Law: the Rule of Monument Control in Washington

• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 7, No. 2WINTER 1984

COMMENTS

Boundary Law: The Rule of Monument Control in Washington

I. Introduction

The rule of monument control in boundary law provides that visible "monuments" or landmarks on the ground will control over the courses and distances in the deed.(fn1) This rule is often applied so stringently that it becomes more than a rule of construction; it becomes a rule of law which conflicts with the Statute of Frauds.(fn2) Furthermore, the rule assumes that the monuments will remain visible to subsequent purchasers of the land, but as land is developed, the monuments are often destroyed or moved.

To solve the problems caused by the disappearance or displacement of monuments, Washington courts have promulgated an unusual set of rules concerning the admissibility of evidence to prove a disputed monument. These rules of admissibility are based upon certain policies inherent in the rule of monument control. Unfortunately, the courts sometime assume that since the monuments will have controlling weight in a boundary dispute these rules of evidence must be viewed with suspicion, an approach which can lead to unsettling results. A prime example is the case of San Juan County v. Ayer,(fn3) wherein the court of appeals attempted to voice a bright line evidentiary standard for the authenticity of a monument, but merely confused the issue by declaring a standard unsupported by the history of boundary law.

The rule of monument control has developed as a necessary corollary to the Statute of Frauds as applied to land conveyances. Confusion in the application of the two rules can be avoided by examining their underlying equitable policies. A consideration of these policies is necessary for a reasoned approach to judging the admissibility and weight of evidence needed to prove a boundary monument. San Juan illustrates the confusion which can result when a court attempts to apply these rules in a technical manner divorced from their historical background. Many boundary disputes could properly be resolved by using the rule of monument control as a rule of construction, thereby allowing the court to weigh the equities of the dispute before it, rather than as a rule of law to be contrasted with the Statute of Frauds.

II. The Rule of Monument Control and Its Applications

Practically all boundary surveys are dependent in whole or in part on monuments or points previously established on the earth.(fn4) Monuments are tangible landmarks such as points left by a previous surveyor(fn5) or barriers such as fences or walls which landowners customarily use to mark their boundaries.(fn6) Monuments link the abstract words of the description to the visible boundary on the ground.(fn7) Disputes arise when the surveyor finds monuments on the ground in locations which do not match the courses and distances in the description he is following, or when he finds that necessary monuments are missing.(fn8) In such instances, the rule of monument control requires that the original locations of monuments control over courses and distances on the deed if the two are in conflict.(fn9) The original monuments must be found, or replaced in their original position, despite the words of the description.(fn10)

The rule of monument control is based upon an inherent presumption that people actually transfer land by reference to monuments rather than by relying on the words of the deed description. Monuments, however, are impermanent. If they disappear, they must be replaced in their original, even if incorrect, position to protect the rights of the parties.(fn11)

This reliance upon the protection of monuments raises serious questions concerning the rule's pervasiveness in our modern land conveyancing system, a system dependent upon the Statute of Frauds(fn12) and the Recording Act.(fn13) These acts are designed to protect the purchaser of land by requiring that evidence of all prior transfers of or encumbrances upon the land be put into a form which is permanent and open to public inspection.(fn14) Any reliance on perishable monuments would seem to weaken the Statute of Frauds.(fn15) However, the use of monuments is justifiable as long as the rule of monument control is viewed in a proper perspective. An explanation requires that the policies behind the rule be clearly enunciated. Similarly, the rules of evidence which affect the practical application of the rule must be explained and clarified.

The Washington courts have applied the rule of monument control differently depending on the type of legal description contained in the deed. The rule is applied most stringently to deeds describing land according to federal government General Land Office surveys. Other deeds call both courses and distances and monuments, and the rule of monument control is applied according to certain presumptions of notice and intent. Descriptions according to recorded plats often appear to use the rule to promote equitable principles, and the rule is strictly a rule of equity when it controls deeds that describe the land with courses and distances with no reference to monuments.

A. The Rule's Application to Boundaries Set by Federal Surveys

A line of Washington cases holds that the boundaries of private lands described in reference to federal government section corners will be controlled by the actual location of the original monuments, rather than the words of the description.(fn16) Washington was created out of the public domain.(fn17) Originally, all lands patented in the state were controlled by federal statutes that required a government survey before the patent could be issued.(fn18) General Land Office surveys followed a theoretically simple pattern of monumenting the corners of squares of approximately one mile on a side in lands that were to be opened for settlement.(fn19) The land was patented with reference to the sections so laid out. By statute,(fn20) the monuments set at the corners and on the lines of the sections controlled the boundaries of the patent.

The federal government surveying manual, which controlled the survey of most of the lands of the State of Washington, specified that stakes or stones, witnessed by blazes on trees, be used to monument the boundaries of sections.(fn21) The manual did not require any great accuracy in placing the stakes,(fn22) so it was never safe to assume that a monumented section would really ever be exactly one square mile. "In fact, the carelessness and inattention marking the original government surveys in this part of the country have led the courts to say of their own judicial knowledge that a survey is seldom correct."(fn23)

The United States Supreme Court has held that "[a] survey of public lands does not ascertain boundaries; it creates them."(fn24) General Land Office decisions were not assailable by the courts as long as the land was in the public domain.(fn25) The Supreme Court's deference to this position dates back to its decision that vexatious litigation would result if the courts attempted to correct the field work of the government surveys.(fn26) Therefore, the Court would not direct the General Land Office to move erroneously placed monuments into their theoretically correct position. Such deference could be explained as a recognition of the obvious difficulty in disposing of vast tracts of land in a reasonably expeditious manner, and a recognition that directing such a task is probably beyond the expertise of the courts. The federal government has since maintained the position that the boundaries of sections are unchangeable and controlled by the physical evidence of the monuments.(fn27)

The government's position is reasonable in light of its role as common grantor to parties who patented land in Washington. The uniform application of one set of rules to all original grants preserves fairness. Washington courts, however, have applied the federal statutes to subsequent private grants as well,(fn28) even though the presumption of fairness is certainly weaker for remote grants. The courts are perhaps assuming that a person who purchases land from a private party knows the federal laws concerning the public lands(fn29) and should expect to be governed by them in his private purchase. Such an assumption, however, is unwarranted.

The Washington courts' adoption of the federal statutes creates a level of certainty in dealing with disputes. Perhaps certainty alone is enough to justify the courts' position, at least when the party is selling exactly the same land that was originally patented by the government. A person may, however, sell a parcel that was subdivided out of a larger government patent by a party who did not know of the federal rules or the location of the monuments. The case of Town v. Greer,(fn30) represents the culmination of a lengthy boundary dispute which arose from such a sale, and raises serious questions of the wisdom of presuming that the federal rules should control private land sales.

In 1882, George H. Greer owned the west half of a particular section. He sold to Squire the land described as the southwest one-quarter of the section.(fn31) A reasonable reading of the deed would indicate that Greer was selling the south one-half of his land, but if the federal government rules were applied the deed land would have been bounded on the north by a line constructed between the...