Evidence Hierarchy

Overview#

When a boundary description contains conflicting elements -- and most descriptions of any age do -- the surveyor and the court must decide which element controls. A deed might call for a bearing of S 45 W for 300 feet to a stone wall at the corner of Jones's land. But what if the stone wall is found at 287 feet? What if the corner of Jones's land, as established by Jones's deed, is 15 feet from the stone wall? The description contains multiple calls, and they disagree.

The resolution of these conflicts is governed by the priority of calls -- a hierarchy of evidence types ranked by their reliability as indicators of the original intent of the parties. This hierarchy, developed over centuries of common law, reflects the practical observation that some types of boundary evidence are inherently more stable and less subject to error than others.

"If there is any principle that perhaps is most often misinterpreted and possibly misapplied by surveyors, attorneys, and courts, it is the priority of calls." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 5, Sec. 5.20

Understanding the priority of calls is not optional for the boundary surveyor. It is the primary analytical tool for resolving the conflicts that arise in virtually every retracement.

The Traditional Hierarchy#

The priority of calls, as recognized by the majority of jurisdictions, ranks the elements of a boundary description in the following order, from most controlling to least controlling:

"An examination of numerous state and federal statutes, case law from numerous states, and common-law principles leads to the following list of the priority of calls for the retracement of metes and bounds boundaries (and GLO boundaries as well). This list reflects the law in the majority of states, although a particular state may place one element in a somewhat different position on the list." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 5, Sec. 5.20

Lines Actually Run on the Ground#

The first and highest priority is given to the lines actually run on the ground by the creating surveyor. This includes corners established, monuments set, and lines marked at the time of the creating survey. When the evidence of the original field survey can be positively identified on the ground, it constitutes the best evidence of what was intended.

"The first rule in retracing a boundary is to 'find the lines actually run on the ground by the creating surveyor(s).' This includes corners established, monuments set, and lines marked on the ground at the time of the creating survey. This rule is paramount in both metes and bounds and GLO surveys." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 5, Sec. 5.21

This principle is grounded in the Land Act of February 11, 1805, which declared that original survey lines are "without error" -- meaning that the lines as actually run, not as they were intended to be run, are the true boundaries. Once these lines are identified with certainty on the ground, conflicts in calls or ambiguities in field notes are subordinate.

The practical challenge is identification. How does the retracing surveyor know that a particular marked tree or iron pipe is from the original survey and not from a later one? This requires documentary research -- connecting the physical evidence to the written record through field notes, plats, and witness testimony.

Natural Monuments#

Natural monuments are permanent natural objects that exist independently of human activity. They include:

• Rivers, streams, creeks, and other watercourses
• Lakes, ponds, and seas
• Ridges, bluffs, and mountain peaks
• Rock outcrops and ledges
• Specific trees called for by species, size, and position

Natural monuments rank second in the hierarchy (and first among the descriptive elements when the original survey lines cannot be recovered) because of their permanence and visibility. A river or ridge is far less likely to be moved or destroyed than a stake or iron pipe. Natural monuments also tend to be unambiguous -- there is usually only one "great oak" or "ledge of rock" at or near the described location.

"Calls for natural or permanent objects or monuments, definitely located, will generally control over other and conflicting calls unless a different intent is determined." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 5, Sec. 5.21

However, natural monuments are not absolute. A natural monument controls only if:

1. It was called for in the description or survey
2. It can be positively identified as the feature referenced
3. It has not been materially altered since the time of the original survey
4. The intent of the parties supports its use as a controlling element

A surveyor cannot elevate a natural feature to monument status simply because it exists near the described location. The feature must be referenced in the documentary record.

Artificial Monuments#

Artificial monuments are man-made objects placed to mark corners or lines. They include:

• Iron pipes, rods, and rebar
• Concrete monuments and brass caps
• Wooden stakes and posts
• Stone markers and cairns
• Fence posts and fence corners (when specifically called for)

Artificial monuments rank below natural monuments because they are more susceptible to disturbance, destruction, and replacement. An iron pipe can be pulled, a stake can rot, and a stone can be moved -- either intentionally or accidentally.

The critical requirement for any monument -- natural or artificial -- is that it must have a documentary connection to the original survey. A found monument with no written history of its placement has limited value as boundary evidence.

"A found monument with no written history of its placement has no legal or survey value indicating the boundary." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 2, Sec. 2.6

Adjoiners (Record Boundaries)#

A call for an adjoining parcel is a reference to the boundaries of a neighboring property. For example, "thence along and with the land of Smith" or "to the southeast corner of the Jones parcel." Calls for adjoiners rank below monuments but above courses and distances.

Adjoiners are useful boundary evidence because they incorporate the entire boundary record of the referenced parcel. When a deed calls for the "land of Smith," it calls for all of the evidence that defines Smith's boundary -- Smith's deed, Smith's plat, Smith's monuments, and Smith's occupation.

The priority among adjoiners depends on seniority of title. When two parcels share a boundary and their descriptions conflict, the senior parcel (the one conveyed first) generally controls the location of the common boundary. This is because the junior parcel is carved from the remainder of the parent tract and is therefore subordinate to the rights already conveyed.

Senior vs. Junior Rights

The concept of seniority is fundamental to resolving adjoiner conflicts. When a parent tract is subdivided, the first lot sold becomes the senior parcel and receives exactly what its deed describes. Each subsequent parcel sold is junior and receives what remains. If the total of all conveyances exceeds the area of the parent tract due to a surveying error, the junior parcel absorbs the deficiency. If there is a surplus, the junior parcel may receive the excess -- depending on the jurisdiction and circumstances.

Courses (Bearings and Directions)#

Courses -- the bearings or directions called for in the description -- rank below monuments and adjoiners. This is because courses are measurements, and measurements are always subject to error. The magnetic compass readings of historical surveys are particularly unreliable due to changes in magnetic declination, local attraction, and the limited precision of early instruments.

In most states, bearings are considered more reliable than distances when the two conflict. The reasoning is that angular errors tend to be smaller in proportion than linear errors, especially in surveys conducted with a compass and chain.

However, there are exceptions. In federal (GLO) surveys, distance sometimes controls for corner positions because the survey instructions specified distances between corners along section lines. The particular hierarchy in federal surveys is governed by the BLM Manual of Surveying Instructions rather than common law alone.

Distances#

Distances are the linear measurements called for in the description. They rank below courses because distances were historically measured with chains, which were subject to cumulative errors from sag, temperature, slope, and worn links. Even modern electronic measurements are more precise than the original distances they are compared to.

"A modern survey may describe bearings and distances to a greater degree of precision using modern technology, but it can be no more precise than the original measurements that created the original lines." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 2, Principle 10

Distance is inherently a "more or less" quantity in boundary descriptions. A call of "300 feet to an iron pipe" means the distance is approximately 300 feet, but the iron pipe controls. The distance is informational; the monument is positional.

The "More or Less" Qualifier

Many deeds include the phrase "more or less" after a distance or area statement. This qualifier reinforces what the law already presumes: that distances are approximations. Even without the phrase, courts generally treat distances as estimates rather than guarantees. However, "more or less" has limits -- it covers reasonable discrepancies arising from measurement error, not gross errors that suggest fraud or mutual mistake.

Area (Quantity)#

Area is the lowest-ranking element in the hierarchy. A deed's statement of acreage -- whether "containing 40 acres, more or less" or "being approximately 2.5 acres" -- is generally treated as a mere description and not as a controlling element.

The phrase "more or less" is almost always implied even when not stated. Area is computed from the other elements of the description and is therefore only as accurate as those elements. If the boundary is moved because monuments, adjoiners, or courses dictate a different position, the area changes accordingly.

There are exceptions. In some jurisdictions, if land was sold by the acre (e.g., "$500 per acre for 40 acres"), area may be given greater weight because it was part of the consideration. Similarly, in some GLO survey contexts, area may have evidentiary value for determining original lot boundaries.

When the Hierarchy Can Be Altered#

The priority of calls is not an inflexible rule. It is a rule of construction -- a tool for determining intent. When clear evidence shows that the parties intended a different element to control, the hierarchy yields to that intent.

"In applying the priority of calls, it is not a selection of 'pick the one I like most' but a rule of survey of evidence: evidence that was created at the time of the survey, evidence that was described in the instruments, evidence that was searched for in the retracement, and evidence evaluated as accepted to locate the boundary line." -- Robillard & Wilson, Brown's Boundary Control and Legal Principles (7th Ed.), Ch. 5, Sec. 5.21

Circumstances that may alter the standard hierarchy include:

The hierarchy is a guide, not a formula. The surveyor must exercise professional judgment, weigh the totality of the evidence, and determine which elements most reliably reflect the original intent.

The Controlling Element Test#

When faced with conflicting calls, the surveyor should ask: Which element most reliably indicates where the original surveyor placed the boundary? This is the controlling element test.

The analysis proceeds as follows:

1. Identify all elements in the description (monuments, adjoiners, courses, distances, area)
2. Check for agreement -- do the elements agree? If so, no conflict resolution is needed
3. Identify the conflict -- which elements disagree, and by how much?
4. Apply the hierarchy -- in the absence of contrary intent, the higher-ranked element controls
5. Test against intent -- does the result make sense in the context of the overall conveyance?
6. Document the reasoning -- the surveyor's opinion must be supportable and defensible

This process is what gives the boundary surveyor's work its quasi-judicial character. It is not a mechanical application of rules but a reasoned analysis of evidence.

Conflicting Elements Within a Deed#

In practice, conflicts between elements appear in nearly every retracement of any age. The following examples illustrate how the hierarchy is applied:

Example 1: Monument vs. Distance

A deed reads: "N 23 E, 721 feet to the lands of Jones, a 3-inch iron pipe on the north right-of-way line of Highway 20." The surveyor finds the 3-inch iron pipe at 708 feet. The iron pipe (monument) controls. The boundary is at the pipe, not at 721 feet.

Example 2: Natural Monument vs. Artificial Monument

A deed reads: "thence to a stone set at the edge of the river." The stone is found 40 feet from the current river bank. Here, two monuments are called for -- the stone (artificial) and the river (natural). The surveyor must determine which was intended to control. If the river has migrated 40 feet through accretion since the deed was written, the stone may mark the original position. Context, including the age of the deed and evidence of river migration, is essential.

Example 3: Adjoiners vs. Course and Distance

A deed calls for "S 45 W, 400 feet to the northeast corner of the Smith parcel." Smith's northeast corner, as established by Smith's senior deed and monuments, is located at S 44 15 W, 387 feet. The call for Smith's corner (an adjoiner) controls over the bearing and distance. The boundary goes to Smith's proven corner, regardless of what the bearing and distance say.

Example 4: Area vs. Everything Else

A deed describes a parcel by metes and bounds with courses and distances, then states "containing 5 acres, more or less." When the described courses and distances close on 4.7 acres, the area statement does not enlarge the parcel. The courses and distances control; the area is informational.

The Priority of Calls in Context: GLO vs. Metes and Bounds#

The priority of calls described above applies primarily to metes and bounds descriptions and private surveys. In the Public Land Survey System (PLSS/GLO), the BLM Manual of Surveying Instructions provides its own hierarchy for the restoration of lost corners and the retracement of section lines.

Key differences in the GLO context include:

• Distance may control corner positions along section lines, because the GLO instructions specified distances between corners
• Proportionate measurement is the standard method for re-establishing lost corners between found original corners
• Original field notes and the official plat constitute the primary documentary evidence
• Bearing trees and witness marks have special evidentiary weight because they were required by the survey instructions

The surveyor working in sectionalized lands must be familiar with both the common law priority of calls and the BLM Manual's specific procedures.

Common Pitfalls#

Surveyors most frequently err in applying the priority of calls in the following ways:

• Treating it as absolute. The hierarchy is a rule of construction, not an immutable law. Intent can override it.
• Ignoring the requirement for documentary connection. A monument must be called for and identifiable to control. A random iron pipe found in the field does not automatically control.
• Applying it to resolve non-conflicts. The priority of calls applies only when elements within a description conflict. It does not resolve discrepancies between the description and physical evidence not referenced in the deed.
• Confusing precision with accuracy. A modern GPS measurement that places a corner at a different location than the original monument does not mean the monument is wrong. The monument was placed by the original surveyor and controls.

Key Takeaways#

• The priority of calls is the primary tool for resolving conflicts within a boundary description, ranking evidence types from most to least reliable.
• The standard hierarchy is: (1) lines actually run, (2) natural monuments, (3) artificial monuments, (4) adjoiners, (5) courses/bearings, (6) distances, (7) area.
• Monuments control courses and distances -- this is one of the most fundamental rules in boundary law.
• The hierarchy is a rule of construction, not an absolute law. It can be overridden by clear evidence of contrary intent.
• Every monument must have a documentary connection to the original survey to be given controlling weight.
• Area is the least reliable element and is generally treated as descriptive rather than controlling.
• The surveyor must exercise professional judgment in applying the hierarchy, considering the totality of the evidence and the specific circumstances of each case.
• The priority of calls applies only to conflicts within a description -- it is not a general tool for resolving all boundary disputes.

References#

1. Robillard, W.G. & Wilson, D.A. Brown's Boundary Control and Legal Principles (7th Ed.). John Wiley & Sons, 2014. Chapters 5, 12.
2. Robillard, W.G. & Wilson, D.A. Evidence and Procedures for Boundary Location (6th Ed.). John Wiley & Sons, 2011. Chapters 2--3, 5--6, 11.
3. U.S. Department of the Interior, Bureau of Land Management. Manual of Surveying Instructions (2009). Chapters 5--6.
4. Clark, F.E. Law of Surveying and Boundaries (6th Ed.). Lexis Law Publishing, 1999.
5. Myrick v. Peet, 180 P. 574 (Mont. 1919).
6. Rivers v. Lozeau, 539 So. 2d 1147 (Fla. 1989).