The recent decision of the Court of Appeals, In Re: Boundary Dispute Between Lots 97 and 98 of the C.M. Bost Estate, COA08-1453, filed on September 1, 2009 is well reasoned and should be a good refresher on the hierarchy of evidence in a description. This case affirms a trial court decision determining the location of the boundary line running between lots in a platted division of lands. The trial court found that the line was located as proposed by the respondents and a unanimous panel of the Court of Appeals affirmed. Descriptions are not cast in stone and similar but significantly different descriptions may perfectly describe the same identical tract of land. A map of a subdivision of land may portray what appear to be discrete tracts, yet this case demonstrates that you may not get what was portrayed due to a mathematical error in the drawing. When this occurs, one must recover the original monumentation to establish what the original survey established on the ground.

The petitioner owns lot 97 and the respondents own their respective portions of the entire lot 98 of the C. M. Bost Estate (Bost Estate) in Cabarrus County. As the Court succinctly states the problem: "The disputed boundary is the southern boundary of lot 97 and northern boundary of lot 98. The cause of the dispute is a mathematical error contained in the Bost Estate map. As a result of this error, there is not enough land in the Bost Estate property to satisfy all the distances that are shown on the 1945 Bost Estate map from the intersection of Bethel School Road and Highway 601 to the southernmost point on the map. This so-called "floating error" could lead to a margin of error of up to 50 feet in the distances shown on the Bost Estate map. The location of the boundary as contended by petitioner is referred to herein as the Griffin line, and the location of the boundary line as contended by respondents is referred to herein as the Wallace line. The Griffin line lies further south than the Wallace line, and runs through two buildings that have been in existence since 1973."

The Bost Estate and subject property has been surveyed multiple times since 1945, the date of the earliest available map, by Guy Fisher recorded in Map Book 7, Page 23, in the Cabarrus County Registry. This map evidenced that iron axles or stakes mark the corners of lot 98. Jack Ritchie performed a survey of the property in 1973 and determined that the Bost Estate map showed the true boundary between lots 97 and 98. It was later discovered that Ritchie was not a licensed land surveyor, however his survey shows he relied on Fisher's corners as being located by the iron axles. Respondent Wallace sold some of lot 98 to respondent Barrett in 1990. At that time Jim Craddock performed a survey and marked the boundary line in question and then Craddock did another survey in 1999. The court noted that "Surveyor Greg Flowe performed a survey in November 2000 for respondent Wallace. Flowe used the iron axles and stakes as corners of the property and monuments to the south of the property to determine the location of the boundary line. Flowe's survey stated that the original Ritchie survey appeared to be correct and his calculations put the disputed boundary line within a foot of the boundary on the Ritchie survey. Respondent Wallace also hired another professional land surveyor, Thomas Harris, to study the existing surveys and research the location of the boundary line between lots 97 and 98. Harris found axle irons that marked the boundary as the Wallace line. He also found old hack marks on the trees growing along the Wallace line. Such hack marks are typically used to establish a property line because they are more effective than iron stakes in the ground, which can be easily pulled up and moved over." The petitioner hired surveyor Carroll Rushing to locate the common front corner and common boundary line of lots 97 and 98. Rushing surveyed the disputed boundary line in 2000, and Rushing re-did that survey in 2002.

In December 2000, petitioner filed a processioning proceeding pursuant to determine the location of the true boundary line between lots 97 and 98. After a hearing on the matter, the Clerk of Superior Court commissioned Mel G. Thompson & Associates (Thompson) to conduct a survey of the property. The Thompson survey found the Griffin line to be the correct boundary between the two lots. The court observes that the "hierarchy of evidence that surveyors typically use to draw a survey map gives artificial or man-made monuments precedence over courses and distances. However, Spidel used the courses and distances methodology to determine the corners of the property and the boundary between lots 97 and 98 because he thought this methodology was more reliable in this case."

Relying on the Thompson survey, the Clerk of Superior Court entered an order in support of petitioner's contention. This order was appealed to the superior Court which heard the matter de novo without a jury finding that the preponderance of evidence supported the Wallace line as the true common boundary between lots 97 and 98 of the Bost Estate. Petitioner contended in the appeal to the Court of Appeals "that the trial court's findings of fact are based upon mere hypothetical evidence or conjecture. Specifically, petitioner challenges the following findings of fact:"

"26. The front axle iron and the rear axle iron marking the corners of the Wallace line are old yet similar in age and appearance and were probably placed in the ground by the same person at the same time.

27. The axle irons are likely from old equipment such as farm equipment.

28. During WW II iron was scarce and surveyors and property owners sometimes used old parts of equipment to serve as boundary monuments.

29. Surveyors Craddock and Flowe determined that the Wallace line was the true boundary line of lots 97 and 98 and that the axle irons were the front and rear common corners [of] lots 97 and 98.

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33. Using the iron on the east edge of Muddy Creek as a control corner or starting point and proceeding in a northerly direction with the courses and distances and irons in line described on the C. M. Bost Estate map recorded in Map Book 7, Page 24, the axle iron on the west side of Hwy 601 contended by Wallace to be the front common corner of lots 97 and 98, is only 4.72 feet from the location called for by the C. M. Bost Estate map. This is within an excellent degree of tolerance considering the fact that the C. M. Bost Estate was subdivided and surveyed in 1945.

34. The front axle iron and rear axle iron are also supported and confirmed as being the true front and rear common corners of lots 97 and 98 by (a) calculating from existing irons to the north along Hwy 601 and to the west, (b) calculating from existing irons to the north along Bethel Road and along the rear lot lines of the C. M. Bost Estate lots, and (c) calculating from existing irons to the south at Muddy Creek and the Clontz land and the railroad line.

35. Irons located to the north, south, and west of lots 97 and 98 support and confirm the contention that said front and rear axle irons are the true front and rear common corners of lots 97 and 98.

36. The Norfo[l]k Southern Railroad line has existed to the south of lots 97 and 98 for over 100 years and is shown on the map of the C. M. Bost Estate.

37. An iron in the northern right of way line of Norfo[l]k Southern Railroad is a distance of 964.9 feet from the front common corner of lots 97 and 98.

38. Surveyor Craddock measured a distance of 963.33 feet from the iron in the northern right of way line of the Norfo[l]k Southern Railroad to the front axle iron. Surveyor Flowe measured the same distance as being 963.88 feet to the front axle.

39. Based on the distance to the northern right of way line of Norfo[l]k Southern Railroad at Hwy 601, the front common corner between the parties as contended by Wallace is located within a few feet of where it should be located.

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45. The existing rear axle iron contended by Wallace as the rear common corner of the parties is located on the north side of Muddy Creek. The C. M. Bost Estate map calls for an iron at the corner to be located on the north side of Muddy Creek. The existing axle iron is on the inside bend in the creek making it unlikely that the creek eroded the bank causing the iron to be moved over the years. Water in a creek erodes on the outside of a creek bend where the water flows faster. Accretion, not erosion, usually occurs on the inside of a bend in the creek because the water flow is slower.

46. Axle irons are sometimes referred to simply as irons by surveyors.

47. The Griffin line was not marked by monuments of any kind at the time he purchased it.

48. The Wallace line is well marked by old cuts on trees, old axle irons at the corners, and several irons in the line between the corners."

The Court of Appeals defines the parameters of a boundary processioning as follows:

"The purpose of a processioning proceeding is "to establish the true location of disputed boundary lines." Pruden v. Keemer, 262 N.C. 212, 216, 136 S.E.2d 604, 607 (1964) (emphasis removed). In such a proceeding, what constitutes the true boundary line is a matter of law and where it is located is a matter of fact. Smothers v. Schlosser, 2 N.C. App. 272, 274, 163 S.E.2d 127, 129 (1968). While the question of what constitutes the true boundary between two parcels of land is a question of law for the court, where the boundary is located on the ground is a question of fact. Cutts v. Casey, 271 N.C. 165, 167-68, 155 S.E.2d 519, 521 (1967). Petitioner carries the burden of proof to show the true location of the disputed boundary line. Plemmons v. Cutshall, 234 N.C. 506, 510, 67 S.E.2d 501, 504 (1951). However, if a petitioner fails to show "by the greater weight of evidence the location of the true dividing line at a point more favorable to them than the line as contended by the defendants," then the fact finder must resolve the issue of location of the boundary line "in accord with the contentions of the defendants." Cornelison v. Hammond, 225 N.C. 535, 536-37, 35 S.E.2d 633, 634 (1945)."

In this case, the parties waived a jury trial and as the trier of fact, the judge considered the evidence and witness testimony and determined the boundary location. The Court of Appeals states; "Based on the testimony of Craddock, Wallace, Harris, and Flowe, the trial court entered findings of fact 26 through 29, 33 through 40, and 45 through 48. Craddock, Flowe, and Harris, all licensed and experienced land surveyors, provided testimony that the Wallace line is marked by axle irons and also by markings in the trees. Craddock found axle irons that mark the original corners of the Bost estate, including the front common corner of lots 97 and 98. By using a surveying methodology that was slightly different, Flowe confirmed the location of the front corner. Flowe worked from the railroad track and proceeded north along Highway 601. Surveyor Harris checked the work of Craddock and Flowe, and determined the Wallace line as the true boundary. Respondent"

"Wallace also testified that old axle irons marked the common front corner between his property and that owned by petitioner. Respondent Wallace and petitioner's predecessor in interest recognized this as the true common front corner of the two lots. On the other hand, petitioner's surveyor, Carroll Rushing, testified that the Griffin line was the true boundary between the two lots. However, Rushing ‘built this line' by starting at a point to the north of Hwy 601 and proceeding with the distances of the other lots until he ‘established' the front common corner of lots 97 and 98. Furthermore, Rushing also testified that he was hired to ‘re-establish' the line between lots 97 and 98. The trial court found that Rushing ‘tried to restore footage to petitioner's lot 97,' rather than honor the original axle irons that marked the boundary of lots 97 and 98. That is, Rushing did not attempt to locate the original boundary line; he simply tried to restore the shortage that arose due to the floating error by establishing a new line. The court also found this practice to be in conflict with established land survey practices, where surveyors try to retrace old boundaries by ‘walking in the shoes of the original surveyor' and ‘following in the tracks of the original surveyor.'" The court held that these findings supported the trial court's conclusions of law. "The trial court …correctly concluded that existing monuments, custom and usage, and courses and distances all support the Wallace line as representing the true boundary line between the lots."

Petitioner contended that the trial court's conclusion of law that when "locating a boundary line shown on a map, the surveyor's job is to walk in the shoes of the original surveyor rather than ‘re-establish' the line or ‘restore' footage to a lot." did not support a result in favor of the respondents. The Court of Appeals affirms that the duty of the surveyor is to use the physical evidence on the ground in order to find the point on the ground where the original surveyor placed the artificial monuments referenced in the original survey "to verify where the original corner would be" and "not to reestablish a corner".

Petitioner also argued that the "hierarchy of evidence" observed by the trial court is not conclusive. The evidence considered relating to this hierarchy is not a legal conclusion but rather a finding of fact. The court observes that " North Carolina law provides adequate support for the court's finding that natural and artificial monuments control course and distances. In deciding the location of a disputed boundary line, "the general rule is that natural objects and artificial monuments control courses and distances." Newkirk v. Porter, 237 N.C. 115, 120, 74 S.E.2d 235, 239 (1953); see also Trust Co. v. Miller, 243 N.C. 1, 9, 89 S.E.2d 765, 771 (1955)." This doctrine of hierarchy of evidence is fundamental to the process of meaningfully interpreting property descriptions because descriptions are nothing more than word descriptions of the physical location of the land in question. In affirming the trial courts strict adherence to long established doctrine, the Court of Appeals reaffirms the established doctrine to give the meaning intended to conveyances rather than defer to technical interpretations that belie the real intent of the underlying transaction.

The lesson practitioners should take from this case is that to the extent that natural or artificial monuments exist, and to the extent that they can be located with reasonable certainty on the ground where originally located when the corners were originally established, the monuments mark the boundaries regardless of words used in the description or the calls and distances shown on the map. This is because the words describe how to find the markers not where they should have been located. It is only when the original monuments can no longer be found do we rely on the words or map to locate the point on the ground where they should have been found.