Rivers v. Lozeau, 88-396

• Citation: 539 So.2d 1147
• Decision Date: 23 February 1989
• Docket Number: No. 88-396,88-396
• Parties: Harold J. RIVERS and Mary E. Rivers, Appellants/Cross-Appellees, v. Raymond S. LOZEAU and Joy Elaine Lozeau, his wife, Appellees/Cross-Appellants.
• Court: Court of Appeal of Florida (US)

Page 1147

539 So.2d 1147

Harold J. RIVERS and Mary E. Rivers, Appellants/Cross-Appellees, v. Raymond S. LOZEAU and Joy Elaine Lozeau, his wife, Appellees/Cross-Appellants.

No. 88-396.

District Court of Appeal of Florida,

Fifth District.

Feb. 23, 1989.

Rehearing Denied March 23, 1989.

Bryce W. Ackerman of Savage, Krim, Simons, Fuller & Ackerman, P.A., Ocala, for appellants/cross-appellees.

H. Randolph Klein of Klein & Klein, Ocala, for appellees/cross-appellants.

COWART, Judge.

This is a land boundary line dispute case.

THE FACTS The controversy in this case involves the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 1/4 of the Southwest 1/4 of Section 15, Township 14 South, Range 24 East, in Marion County, Florida. In 1964 Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question. The U.S. Forestry Service owns the land to the north. At that time, the Rizzos retained a surveyor, Moorhead Engineering, to survey their land and to establish certain internal land lines dividing it into parts. Moorhead undertook to locate and monument Rizzos' external boundary lines and corners and to establish and monument the terminal points of certain internal division lines.

In 1969, the Rizzos conveyed to Marcus E. Brown and wife by deed containing the following land description:

The North 400.00 feet of SE 1/4 of SW 1/4 of Section 15, Township 14 South, Range 24 East, Marion County, Florida.

The west, north, and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos. The south line of the Brown parcel did not follow any internal line established by the Moorhead survey. Mr. Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown. Later in 1977 or 1978, Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr. Rizzo and placed a metal rod at the point Mr. Rizzo had told him was his south boundary line. Marcus Brown conveyed this property by the same description to George Brown who conveyed by the same description to appellees Raymond S. Lozeau and his wife.

In 1975, the Rizzos conveyed a parcel of their remaining land to Paul W. Adams and wife, which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property conveyed being described as

thence N 89 53'01"' E. along a line 400.00 feet south of and parallel to the North line of said SE 1/4 of SW 1/4 a distance of 1327.04 feet to a point on the East line of said SE 1/4 of SW 1/4;

Using substantially the same land description, the Adamses conveyed to Daniel E. Reader and wife, who conveyed to appellants Harold J. Rivers and wife.

In 1982 the U.S. Bureau of Land Management did a "dependent resurvey" of the lands of the U.S. Forestry Service which retraced the lines of the original government survey and identified, restored, and remonumented the original position of the corners of the original U.S. government survey. ¹ This remonumenting of the original government survey, along with a 1986 survey by Whit Holley Britt, made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 28.71 feet north of the true location of that line as it was originally established by the official U.S. government survey and reestablished by the 1982 government "dependent survey."

Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 28.71 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the U.S. government (and Britt) surveys. The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them. The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the location of the land subsequently conveyed by Rizzo, notwithstanding that "later" surveys, i.e., the government survey of 1982 and the 1986 Britt survey, may show the Moorhead monuments to have been in error. ² After a non-jury trial, the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants. The Riverses appeal and the Lozeaus cross-appeal.

LAND DESCRIPTIONS Since time immemorial, parcels of land have been identified and described by reference to a series of lines or "calls" or "courses" that connect to completely encircle the perimeter or boundaries of a particular parcel. A particular property description may consist entirely of descriptions of original lines that compose it or it may, in whole or in part, refer to other sources which themselves show or describe previously surveyed and existing lines or calls. An individual line or call in a property description usually, but not always, ³ refers to an imaginary straight line customarily described in several ways: (1) by reference to its length, (2) by reference to its terminal points (commonly called "corners" or "angles"), (3) by reference to its angle with regard to true north, magnetic north, or to one or more other lines. A property description composed of descriptions of its constituent boundary lines or calls is known as a "metes and bounds" description. Of the ways that boundary lines are described, the reference to terminal points is the strongest and controls when inconsistent with other references. ⁴ In effect, real property descriptions are controlled by the descriptions of their boundary lines which are themselves controlled by the terminal points or corners as established on the ground by the original surveyor creating those lines. A property description that refers to, and adopts by reference, the description of a boundary line is DEPENDENT upon the proper location of the adopted line, which is dependent upon the location of the terminal points of the adopted line, which are dependent on their location on the ground as established by the original surveyor creating that adopted line.

LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions, the only professional authorized to locate land lines on the ground is a registered land surveyor. ⁵ In fact, the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor. However, in the absence of statute, a surveyor is not an official and has no authority to establish boundaries; like an attorney speaking on a legal question, he can only state or express his professional opinion as to surveying questions. In working for a client, a surveyor basically performs two distinctly different roles or functions:

First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the "original surveyor" and when his survey results in a property description used by the owner to transfer title to property ⁶ that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line.

Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he "traces the footsteps" of the "original surveyor" in locating existing boundaries. Correctly stated, this is a "retracement" survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a "following" or "tracing" surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it. ⁷

ORIGINAL LAND LINES When there is a boundary dispute caused by an...