Found At: www.statewidetitle.com
Issue 213 Article 348
Establishing the Location of a Disputed Boundary
Chris Burti, Vice President and Senior Legal Counsel
McClennan v. Josey, Court of Appeals (13-1271) filed May 20, 2014.
The defendants in this action appealed an order granting the plaintiffs' motion for summary judgment which was affirmed in this decision by the Court of Appeals. The respective parties own adjoining tracts of land with a common boundary located in Halifax County. The defendants recorded a survey in 2010 that encompassed an area claimed by the plaintiffs. Shortly thereafter, the plaintiffs filed a Quiet title action pursuant to N.C.G.S. Section 41-10 alleging that the defendants "claimed ownership of lands owned by Plaintiffs and have created a cloud on title to Plaintiff's [sic] property." The evidence presented at the hearing on summary judgment disclosed that both parties obtained title to their tracts from a common source, David Clark. Following Clark's death, his lands were partitioned and divided among his heirs. The plaintiffs' source of title was Anna Clark, who was allocated Lot 4 in the proceeding. The defendants' source of title was Dora Clark who was allocated Lot 8.
The Report of Commissioners describes the common boundary line as "down the run of [Gaynor's] Gut to the Canal[.]" This dispute arose from the parties' disagreement as to the location on the ground of the run of the gut to the canal. The parties agreed on the location of the boundary as it runs to the point where the flow of the gut diverges at a fork. The plaintiffs' contention was that the gut forks left at that point and then runs through a dam, a pond, and empties into the canal. The defendants asserted that it forks right and then runs to the canal.
Defendants argued that the trial court erred in granting the plaintiffs' motion for summary judgment because the plaintiffs failed to establish the location of the claimed boundary on the ground. Citing Chicago Title Ins. Co. v. Wetherington, 127 N.C. App. 457, 490 S.E.2d 593 (1997) the Court of Appeals observed that in an action to quiet tile pursuant to N.C.G.S. Section 41-10, the plaintiff must establish a prima facie case for removing a cloud on title. Once that burden is met, the burden then rests upon the defendant to establish that title to the property sufficient to defeat the plaintiff's claim.
The Court of Appeals observes (citations omitted) that a plaintiff may establish a prima facie case by satisfying two prongs: "'(1) the plaintiff must own the land in controversy, or have some estate or interest in it; and (2) the defendant must assert some claim in the land adverse to plaintiff's title, estate or interest.'" To establish ownership under the first prong, a plaintiff is afforded the "common source of title" doctrine, which requires him "'to connect both [himself] and defendants with a common source of title and then show in [himself] a better title from that source.'" The plaintiff must also establish that the disputed land lies within the boundaries of their property. The plaintiff's burden is to establish "the on-the-ground location of the boundary lines which they claim" and to "locate the land by fitting the description in the deeds to the earth's surface.
A deed speaks from the time of its making and the parties to the deed are presumed to refer to the condition of the property conveyed at that time. In order to determine what was intended to be conveyed, courts must endeavor to place themselves in the position of the parties at the time of the conveyance as the meaning of their terms they use to describe the property can only be properly understood by knowledge of their position and of the property conveyed at that time. Therefore a subsequent conveyance may not be used for the purpose of locating a call in a senior deed.
In establishing that knowledge for the court, the plaintiff may testify as to personal knowledge of the contended boundary line. This knowledge may be derived from living on the land and learning the location of boundary from an ancestor who had knowledge dating from the relevant time. A surveyor may also testify that "the courses on the court map were normal variations from the courses on the deed and that the land described in the deed is the same tract of land shown as plaintiffs' contended tract." Such testimony has been held to be sufficient evidence for a court to find that the description of the deed fits the land and embraces the land in controversy. The North Carolina Supreme Court has determined that where there was no evidence that a survey of the disputed land was made or that the plaintiff had personal knowledge about its location, the plaintiff had failed to meet the required evidentiary burden.
The Court of Appeals summarized that evidence proffered in this case and it is sufficiently illustrative to include relatively unedited.
In the case at bar, plaintiff McClennan testified that he worked on his grandfather's farm and Lot 4 since 1958. During that time, he 'came to know the location of Gaynor's Gut from the Dam at Blue Pond to the Dam at Coon Pond, and from the Dam at Coon Pond through Coon Pond to where Gaynor's Gut enters Clark's Canal.' In 1967, he managed the farm on a full-time basis, and it required that he 'know the location of Gaynor's Gut and the other boundaries of the property being managed.' Plaintiff McClennan testified that the disputed boundary line encompassing plaintiffs' land 'has been a well known, well marked and agreed upon line between our lands since the division of the David Clark lands in the 1800's. Additionally, a professional surveyor, Donald S. Hilhorst, surveyed Gaynor's Gut in 2010 using various recorded documents in the Halifax County Register of Deeds Office. He found the boundary line to comport with plaintiff McClennan's testimony. Hilhorst's survey was also consistent with "the legal description of Gaynor's Gut" found in a 1909 deed and "the recorded survey of the Mrs. Anna C. Arnold [map]."
The 1909 deed divided defendants' predecessors' Lot 8 into two parcels and gave one 805-acre parcel to the Wilts Veneer Company with the remaining tract to be held by defendants' predecessors. The deed explicitly indicated a shared boundary line between Wilts Veneer Company and Anna Arnold's (plaintiffs' predecessor in title) Lot 4, which necessarily included the disputed land as part of Lot 4. It also contained a course and distance description of the run of Gaynor's Gut that places the disputed tract within Lot 4.
The Anna Arnold map was created in 1918 to reflect a portion of Lot 4 that was given by Anna Arnold to Wilts Veneer Company in a timber rights conveyance. It included a metes and bounds description of Gaynor's Gut from Lot 4's northeast corner down to its run to the Canal. The metes and bounds description reflected on the map shows the disputed land to have been owned by Anna Arnold.
Although Hilhorst used junior conveyances by referencing the 1909 and 1918 documents in his survey, they did not enlarge the plaintiffs' boundary lines, but rather provided an unambiguous specific description of Gaynor's Gut, which comports with the general description found in the partition. See Carney v. Edwards, 256 N.C. 20, 24, 122 S.E.2d 786, 788-89 (1961) ("It is...well settled that a general description will not enlarge a specific description when the latter is in fact sufficient to identify the land which it purports to convey. Only when the attempted specific description is ambiguous and uncertain will the general prevail." (citation omitted)). In totality, plaintiffs' evidence was sufficient to meet their burden to show that the disputed area lies within the boundaries of their land.
Since the Court of Appeals deemed that the plaintiffs had established a sufficient prima facie case of title to the disputed land, the court observed that the defendants were required to prove that their title was superior. Since the record on appeal demonstrated that the defendants presented no evidence by way of deeds in their chain of title to establish their superior claim to the disputed land, that the defendants' 2010 map and subsequent deeds using the map's boundary description are junior to the 1909 and 1918 documents, the descriptions found in the 1909 and 1918 documents control. Offers of parol evidence in the form of affidavits of individuals with personal knowledge of the boundary line, and other extrinsic testimony to show that the disputed land belongs to the defendants is not admissible when the deed itself, including its references describes the property with certainty. While parol evidence is admissible to fit the description in the deed to the land intended to be conveyed, it is inadmissible to "enlarge the scope of the description in the deed." (citations omitted)). The defendants having failed to establish superior title to the disputed property, the Court of Appeals determined that the trial court properly granted summary judgment to the plaintiffs.
The evidentiary implications of the case for litigators are relatively straight forward. Once you bring out the common source of title, a party will have to be able to put the deed descriptions on the ground and subsequent deeds will not alter the older lines if they can be proved. The title implications are bit more complex. The record may not disclose sufficient evidence that testimony will be available to connect the descriptions to the ground when a recent survey suggests an overlap. Moreover as observed by this court, differences in survey calls may not necessarily be the result of differing lines, but rather may simply be different descriptions of the same line…as located on the ground. Resolving the varying descriptions in a chain of title can often prove to be very challenging.