The Inside Outside Guys: Whose Land is It?

By Ken Calverley and Chuck Breidenstein

DETROIT, September 9, 2021 ~ Years ago, the Inside Guy purchased an old farm property on some acreage. The property included a barn and other out buildings. A month after the purchase, the neighbor to the west strolled down to say hello and proclaim that the barn encroached on his land by 2 feet.

A re-survey by the company that placed the original boundary stakes verified that there was no encroachment by the barn. Lawsuit avoided.

Accurately defining specific parcels of land is a critical function of surveying since land ownership by private citizens has been the backbone of great civilizations. Surveying is said to be one of the world’s oldest profession’s going all the way back to the creation of the Egyptian Land Register in 3,000 BC. Indeed, surveyors were considered upper-class citizens in that culture.

One of the critical principles of growing this country was the concept of individual land ownership and land rights. Washington, Lincoln, Adams and Jefferson all started as land surveyors. Battles over land ownership and boundaries have been waged throughout history.

Even the infamous Mason/Dixon line is the actual result of a four-year survey ordered to resolve a boundary dispute between Pennsylvania and Maryland.

Mistakes made 100  years ago still haunt land owners as evidenced by property lines that are tied to ever changing shorelines of creeks, rivers and lakes or the offset intersection of a long east/west road that was laid out by different parties working from different points of beginning.

Even today, the boundary between Tennessee and Georgia is one mile further south than it was intended due to a survey error. That mistake represents 2,500 square miles of land!

Early survey tools were rocks tied to a string, line of sight, 16.5 foot “rods” and 66 foot iron chains. The chains varied daily in length depending on temperature and benchmarks could be anything from a notch in a tree to a cedar stake driven into the ground – as evidenced by the boundary line still delineated by such stakes that separates Michigan from Indiana.

Attorneys will tell you that buyers should not take possession of a property without first reviewing an updated stake survey. Note when reviewing the legal description that it may indicate the actual survey beginning at a point distant from the parcel you purchased. This “Datum” is a known and recognized point, very often the center of an intersection of two roadways. You might also note on some surveys that you “own” to the center of the adjoining roadway.

But a dedicated easement allows the road to remain and you cannot use the land dedicated to that easement.

All easements should be noted by land purchasers. An easement is a dedicated, and written, “right to use” for a specific purpose. Most properties are subject to “utility easements” that grant to local utilities the right to run power lines or gas lines or cable, water and sewer across or under your property.

But easements are also granted for other purposes and they “run with the land or pass with the title” such that a new owner will be subject to existing easements when she takes possession.

Look for any encroachments from neighbors. These typically include fences, driveways, building overhangs and even mowed grassy areas that have been claimed for use by an adjoining property owner.

Remember that land owned by you that is used by another over time might be claimed by that person under a legal tenet called “adverse possession”; whether they are simply maintaining it or using it for a specific purpose such as a garden or driveway.

A case was brought to court against a developer whose platted and approved land sat idle for a few years during a “down” economy. During that time adjoining neighbors created walking trails and “nature paths” through the property and tried to prevent future development for housing.

Another potential concern for property owners is setbacks. Under urban planning guidelines every jurisdiction and even subdivision plats within a jurisdiction will have minimum distances that a building must “set back” from a property line, whether a front, side or rear line.

The issue that comes in to play is that every jurisdiction is different not only in the required distances, but in the definition of what constitutes a “building line.”

In some instances the building line is that of the foundation, excluding porches, while others include the porch if it is tied to the foundation. Sometimes the building roof overhang determines the building line and sometimes a “permanent” deck might be considered as the start of the building.

There was a case years ago where a house built adjacent to a wetland was designed to accommodate a deck to the rear off sliding glass doors. The permit was denied under the setback laws and the home never got a deck off those doors.

Today a survey is going to use global positioning systems and recognized historical data to be pinpoint accurate. Even if you can find those stakes at the four corners of your lot it is still wise to consult the experts like attorneys and surveyors when in doubt. Check out InsideOutsideGuys.com for professionals you can trust.

For more housing advice, listen to the “Inside Outside Guys every Saturday and Sunday on News / Talk 760 WJR from 10 a.m. to noon or contact us at InsideOutsideGuys.com.