Value of Cadastral Surveying to Efficient Land Administration, The

Jeffress, Gary A

ABSTRACT: The value of a cadastral surveying system to efficient land administration is highlighted when disputes arise over land title and the location of land boundaries. This paper discusses two case studies in Texas which demonstrate the value cadastral surveyors create in preparing legal documentation for land and real estate and relating that documentation to the location of the property on the ground. It is argued that the cadastral surveying system creates as much value in land and real estate as does the legal system.

Introduction

Land administration systems are designed to systematically store information pertaining to ownership in land and real estate. The legal aspects of rights and interests in land and real estate are recorded in land survey cadastres. Both land administration and the survey cadastre need to be up-to-date at all times to allow for the efficient transfer of rights and interests in land between buyers and sellers. Real estate markets, which involve enormous sums of money and financial interests, drive much of these transfers. The value of these financial interests heavily depends on the security designed into each land administration system.

An extreme example of the value which rides on the security provided by a land administration system is provided by the Flow of Funds Accounts of the United States of America (http://www.federalreserve.gov/releases/Z1/Current/default.htm), where real estate is identified as the largest single category of tangible assets in the U.S. economy. Likewise, on the debt side of the U.S. Flow of Funds Accounts, the single largest form of debt exists in the form of real estate mortgages. It has been argued that the wealth built up in land and real estate in any economy amounts to somewhere between 50 to 75 percent of all assets (World Bank 1989). An efficient land administration system is thus a critical infrastructure in a functioning free market economy. There are three major components to a land administration system that work as integrated sub-systems to securely record the interests in and ownership rights to land and real estate:

* The administrative system, which is the formal depository for the storage and retrieval of legal documents and information describing the extent of rights and interests in land and real estate and to whom these rights and interests are entrusted. Administrative systems vary in form from centralized federal or state agencies to locally managed recording systems or even the collective memories of traditional long-standing groups of individuals.

* The legal system, which formulates the rule of law whereby land and real estate can be owned by individuals and groups. The body of this law can lie within many legal instruments including the constitution, acts of legislature, codes, decrees, case law, statutes, ordinances, and even undocumented traditions and customs.

* The cadastral surveying system, which formulates and translates the actual conditions on the ground into legal documentation and information describing the extents of land and real estate ownership. Most jurisdictions rely on educated professional surveyors who are skilled in land measurement and mapping to undertake this critical translation of formal rights and interests to actual ground locations arid vice versa.

This paper focuses on the role of the cadastral surveying system and the critical role undertaken by surveyors in translating legal descriptions of land and real estate when disputes in ownership arise. It provides two examples of disputed boundaries that divide ownership and/or jurisdiction. One example pertains to the disputed location of a natural boundary, the other to the disputed location of an artificial boundary. Both cases are set in the State of Texas in the United States of America. Texas has a unique land administration system that relies on deeds recording indexed by purchaser and seller at the local County Courthouse.

Land Administration in Texas

The Texas Administration System

Land administration systems in the United States are generally still paper based and have a unique distinction of having security of title supported by private title insurance. The State of Texas is subdivided into 254 counties, with each county subdivided out of the state by a metes-and-bounds description as a separate Act of the State Legislature. In Texas, the Administration System is within the Land Records Office at the local County Courthouse. Land records are overseen by the County Clerk (an elected position as per the Texas Constitution) who files deeds and land-related instruments in paper volumes and folios that are indexed by the names of the purchaser and seller in chronological order.

Many County Clerks have computerized their indexes and have begun scanning paper documents. The Administrative System is labor intensive, with no evidence or interest in converting to title registration as is now the case in Great Britain where the current Texas Administrative System originated. Even though the current administrative system in Texas appears to be inefficient by modern standards there is no doubt that it does support a very active real estate market. From the standpoint of the general public, the current system works and there is no pressure from the public or from policy makers to change it.

The Texas Legal System

Legal issues with regard to land and real estate matters are dealt with within the Texas Common Law legal system, which has three levels of jurisdiction. Initial proceedings occur in District Courts, which are located at the County Courthouse. Land and real estate matters can be heard in front of the District judge or a twelve-person jury. Either the plaintiff or the defendant can elect to hear the case in front of a jury.

The outcome from a District Court trial can be appealed at the Appellate Court, which covers a number of Districts depending on their population size. There are three appellate judges all of whom sit at appeal hearings. Outcomes from the Appellate Court are by majority, or a unanimous decision of the three appellate judges. These outcomes can be appealed to the court of last resort, the Texas Supreme Court.

The Texas Supreme Court is made up of nine Supreme Court judges. All nine judges sit in judgment of issues brought before the court. Decisions by the Supreme Court are by majority.

The Texas legal system is unique in that all judges in Texas are elected by majority voting by the public. As most common law jurisdictions, Texas has built an impressive list of precedent-setting court cases. These cases guide the legal system in the collection of facts and the weight of evidence used to present and interpret legal arguments.

The Texas Cadastral Surveying System

The Texas Constitution of 1836 created the ability of the state legislature to subdivide the state into counties. The constitution set out the structure of the county management that included the position of County Surveyor to be elected every four years by the voting residents of the county. County Surveyors were responsible for undertaking surveys for original grants of lands in fee simple out of the sovereignty of the state. They could perform these duties only within their own county where they were elected. The County Surveyor was at liberty to appoint Deputy Surveyors to assist in carrying out required duties.

Like many developing free-market jurisdictions, the first license issued by the State of Texas for any purpose was to Licensed State Land Surveyors (LSLS) in the year 1919. These surveyors became agents of the state and could undertake original land grant surveys in any county in Texas. In the early 1950s the present system of licensing Registered Professional Land Surveyors (RPLS) was enacted by the Legislature. This system now requires a four-year baccalaureate degree with at least thirty-two credit hours of surveying-related courses and two years of experience under the direction of an RPLS before a candidate can sit for the Texas Board of Professional Land Surveying examinations. There are approximately 2,713 RPLS and 64 LSLS surveyors presently active in Texas.

Case Study of Boundary Disputes in Texas

John G. and Stella Marie Kennedy

Foundation vs Commissioner, Texas

General Land Office

This case was initiated in the late 1980s when the Kennedy Foundation (a charitable Foundation that belongs to the Catholic Church) sued the State of Texas over title to lands contained within some 35,000 acres of mud flats lying between the Kennedy Ranch, which was held under fee simple title by the Kennedy Foundation, and the submerged lands of the Laguna Madre. The Laguna Madre is a long, thin body of water between the mainland and Padre Island, a long narrow coastal barrier island along the south Texas coast of the Gulf of Mexico. The submerged lands of the Texas coast are sovereign lands of the state and fall under the jurisdiction of the Texas General Land Office (TGLO). The area in question is shown in Figure 1.

While the mud flats in themselves do not represent any significant real estate asset, they sit above some very productive oil and gas fields. During the life of the dispute, the value of royalties for the mineral extraction from the mud flats was estimated to be in the order of $40 million, which the state was reluctant to loose. Revenues from state lands are deposited into the Texas Permanent School Fund the interest from which assists in the funding of public schools in Texas.

Previous case law in similar disputes pertaining to the Laguna Madre had established the natural littoral boundary along the coastal bays and estuaries as the Mean Higher High Water (MHHW) datum observed by tide gauges. The argument put forward by the Kennedy Foundation was that the MHHW datum run on the ground by their survey-ors encapsulated the mud flats and was part of the original land granted to their forbears (Jeffress and Thomson, 1993).

The Texas General Land Office argued that the mud flats were part of the submerged lands of the Laguna Madre and that tide gauge data observed adjacent the mud flats showed that fluctuations in water level were not caused by the gravitational pull of the sun and moon but by changes in atmospheric conditions due to wind speed and direction and atmospheric pressure. Essentially, they argued that the MHHW datum could not be scientifically produced and did not exist at the site. The lack of tidal datums was determined from tide gauge data and published by the National Ocean Service, the federal agency that developed the methods of tidal datum observation and computation (Gill et al. 1995).

Surveyors engaged by the TGLO also revealed that a 1880s reconfirmation survey could be retraced on the ground and that the survey ran around the mud flats on raised lands that represented the edge of pasture land and the true and original location of the boundary of the original land grant that became the Kennedy Ranch. The case was tried in front of a jury in the Travis County District Court in Austin, Texas. The jury deliberated the case in favor of the Texas General Land Office.

The Appellate Court reviewed the case and came down unanimously in favor of the original jury verdict. The Texas Supreme Court also reviewed the case and came down unanimously in favor of the state. Very rarely the Texas Supreme Court will permit a rehearing of their adjudications. Thus, it was extremely unusual that the Texas Supreme Court permitted the Kennedy Foundation a rehearing after a unanimous verdict. Upon the second, and final, rehearing, the Texas Supreme Court overturned its original ruling and placed the final decision in favor of the Kennedy Foundation by a vote of six to three.

The entire process for the resolution of this case took some 15 years to complete. During this time LSLS and RPLS surveyors for both sides uncovered facts and evidence to support both sides of the issue, while educating the lawyers involved in the interpretation of the technical aspects of littoral boundary definition and the construction of boundary evidence. As a result of the case, the

State of Texas, through the TGLO, has established the Texas Coastal Ocean Observation Network (TCOON). This system is comprised of forty water-level observing stations along the entire Texas coast, which are constructed to meet National Ocean Service standards for the determination of tidal daturns used in littoral boundary definition on the ground.

Tarrant County vs. Denton County

This case involved a disputed 21.5-mile county line between Tarrant County and Denton County in northeast Texas. The facts of the case stem from the order in which the original counties were established by the Texas State Legislature and the subsequent order in which the county boundaries were surveyed on the ground. The original county to which adjoining counties were attached was Dallas County. The legislature specifically located Dallas County’s northern boundary to lie on the southern boundary of an existing larger county (district) known as Fannin County which was surveyed by Mr. Surveyor William Orr in May of 1850. The metes-and-bounds description of Dallas County is defined in the Act to Define Dallas County of 30 March 1846:

Beginning on the southern boundary line of Fannin county, three miles east of the eastern boundary of Peter’s Colony grant; thence south thirty miles; thence west thirty miles; thence north thirty miles to Fannin county line; thence east with said line to the beginning.

The next county to be defined that has relevance to the dispute was Tarrant County, which was defined in the Act to Define Tarrant County of 20 December 1849:

Beginning at the southwest corner of Dallas County; thence running north with the Dallas county line, to the northwest corner of Dallas county; thence due west thirty miles; thence due south thirty miles; thence east thirty miles to the point of beginning-subject, however, to bear with the southwest and northwest corners of Dallas county, should said corners of Dallas county be found to be incorrect, upon final re-survey of said county of Dallas.

The next and most significant event in the chronology of events that led to the dispute was the survey of Dallas County on the ground in the summer of 1850 by Mr. Surveyor Warren A. Ferris. Mr. Ferris’ field notes are available and describe the trials and tribulations of surveying on the ground in 1850. He commenced his survey at the correct location of the northeast corner of Dallas County on the newly surveyed south line of Fannin County (surveyed in May 1850). The problem that initiated the dispute arose as Mr. Ferris’ survey ran north along the western boundary of Dallas County. After running the thirty-mile line, Mr. Ferris turned east and ran for five miles until he met with the Elm Fork of the Trinity River (which ran north-south). He then turned his course north along the river (some 2100 feet) to intersect the southern boundary of Fannin County. He then continued east along the Fannin County line to his point of beginning.

Standard surveying procedure would dictate that Mr. Ferris should have intersected his western boundary of Dallas County with the established northern line (Orr’s surveyed line) projected westward. He failed to do so, leaving Dallas County a six-sided figure (not four as the legislature enacted) and short in an area of a rectangle 2100 feet by five miles. It appears that Mr. Ferris was anxious to complete his survey after two months of surveying in inhospitable Indian country, and his field notes also mention days lost due to flooding and lack of food.

Subsequently, Denton County lobbied the Texas legislature to redefine Denton County (north of Dallas and Tarrant Counties) from its original definition on 11 April 1846 in order to recognize the error made by Mr. Ferris. The Texas legislature did redefine Denton County in an Act to Define Denton County of 24 January 1852, which concluded the following for the Denton County’s northwest corner:

…thence south to a point west of the northwest corner of Dallas county, as now established by law; thence east to said corner of Dallas county; thence with the north boundary line of said county of Dallas, eastward to the beginning.

It is clear that the Texas legislature did not want to adopt the northwest corner as established by Mr. Ferris; they preferred the legal system to resolve the issue. However, in December 1852 Denton County instructed Mr. Surveyor George White to survey the south boundary of Denton County (and part of the north boundary of Tarrant County) from Mr. Ferris’ misplaced northwest corner of Dallas County to the southwest corner of Denton County. There is no evidence that Tarrant County was informed of this survey, as required by law when a common county line is to be surveyed on the ground. Mr. White’s field notes state that he commenced his survey on 25th December 1852 and ran west for 1.50 chains then re-commenced the survey on 3rd January 1853. The completed field notes for the 21 miles and 33.20 chains of survey were then presented and signed by the Denton County Clerk on 8th January 1853 (Wilson 1998.) By all accounts this was a remarkable feat of surveying during the winter months by Mr. Surveyor White.

The Tarrant-Denton county line remained indefinite until the issue was raised again in the mid-1980s. The relative location of the Denton and Tarrant counties and the disputed county line between them are shown in Figures 2 and 3. In 1987, the counties of Dallas, Denton, Tarrant, and Collin formed a County Line Commission to engage Mr. Surveyor Donald J. Jackson to undertake a survey of:

* The North line of Dallas County where it is common with the south line of Denton and Collin Counties;

* The northeast corner of Tarrant County (which is also the northwest corner of Dallas County); and

* The Denton-Tarrant County line at the northeast corner of Tarrant County.

This survey was concluded in 1987 with the establishment of a monument at the northwest corner of Dallas County specifying the intersection point of the county lines and the correct relative location of the three counties in relation to the intersection point (Jeffress 1998).

At about the same time, the lands along the Tarrant-Denton county line were being developed with a freight airport, commercial subdivisions for retail and manufacturing, and expensive residential housing, and the Denton County refused to move forward with discussions to resolve the Tarrant-Denton county line location. The expanded development caused problems concerning policing jurisdiction by the County Sheriff’s office and, to make matters worse, property owners were receiving land tax bills from both counties.

In order to resolve the issue of the correct county line location, Tarrant County sued Denton County in 1996. The dispute and surveying evidence centered on Tarrant County claiming that the common county line was a straight line (geodetic line) connecting the northwest corner of Dallas County (and the northeast corner of Tarrant County), as set by Mr. Surveyor Donald J. Jackson in 1987, and the southwest corner of Denton County (which both parties agreed to). Denton County maintained that the common county line was the original line as established by Mr. Surveyor George White in his 1852-1853 survey. Both parties elected to hear the matter in front of a District Court judge. The case was tried in the District Court at Parker County in Weatherford, Texas. After a three-week trial, the judge ruled in favor of Denton County, Tarrant County elected to appeal the decision to the Appellant Court. The three appellant court judges decided unanimously in favor of Tarrant County and reversed the District Court’s judgment.

Denton County tried twice to have the case brought before the Texas Supreme Court. Both times the Texas Supreme Court refused to hear arguments, indicating that the Appellant Court had made the correct legal decision. The refusal of the lexas Supreme Court to hear the case meant that the county line was to be in the location argued by Tarrant County. At the time of writing this article, the case was back at the District Court in Parker County, awaiting the District Judge to order the county line surveyed on the ground.

The economics driving this case lie in the fact that both counties were taxing the landowners in the disputed area. The laws in Texas state that a landowner needs only pay one county land tax bill per year. Denton County’s tax bill was the lesser of the two, as Denton County does not support a Community Hospital whereas Tarrant County does. Hence, Denton County was receiving in the order of $1.5 to $2 million in revenues that it would not have received if Tarrant County’s definition of the county line held. But there are some intrinsic costs involved in this case too. The case took seven years to reach a conclusion, and as many as seven surveyors (four working on behalf of Tarrant County and three working on behalf of Denton County) were involved in presenting the evidence to the lawyers arguing the case and to the court.

Conclusion

The two case studies presented in this paper highlight the enormous value that the cadastral surveying system creates by delineating the location of land and the wealth tied up in land. The objective of maintaining an up-to-date cadastral surveying system is to minimize the number of conflicts over land boundaries on the ground and title to land and real estate. Indeed, Land Administration Systems that are based on surveyed descriptions experience little or no conflicts over title and boundary location and are thus of the highest value to the jurisdictions they serve.

The direct connection between the legal description of land and real estate to their correct locations on the ground puts the Cadastral Surveyor in a very responsible position; his or her work gives legal dimensions to the value of land and real estate in our Nation. The level of education and expertise of those who work within the cadastral surveying system is no less than the level of education and expertise needed to work within the legal system. Both the surveyor and the lawyer are needed for society to maximize the efficient use of land and the wealth tied up in land.

ACKNOWLEDGEMENTS

The author wishes to thank the Texas General Land Office, the Texas Water Development Board, the U.S. Army Corps of Engineers, and the National Ocean Service for support of the Texas Coastal Ocean Observation Network and of this paper. Mr. C. Ben Thomson, RPLS, LSLS, PE and Mr. Jimmie Flowers, RPLS, LSLS from the Texas General Land Office are thanked for reviewing this paper.

REFERENCES

Corpus Christi Caller Times. State, Kenedy Foundation battle over mudflat rights. Corpus Christi Caller Times, Thursday, March 23, 2000.

Gill, S.K., J.R. Hubbard, and G. Dingle. 1995. Tidal characteristics and datums of Laguna Madre, Texas. NOAA Technical Memorandum NOS OES 008, July 1995.

Jeffress, G.A. 1998. Oral deposition of Gary Jeffress, Ph.D., taken for Defendant, June 2, 1998, Tarrant County vs. Denton County, 43rd Judicial District Court, Parker County, Texas.

Jeffress, G.A. 1993. Texas Coastal Ocean Observation System Quarterly Progress Report. Texas A&M University-Corpus Christi, Texas.

Jeffress, G.A., and C.B. Thomson. 1993. The Texas Coastal Ocean Observation Network: Opportunities for littoral boundary definition research. In: Proceedings of ACSM/ASPRS Annual Convention, New Orleans, 1993. pp. 261-269.

Wilson, W.C. 1998. Oral deposition of William C. Wilson, Jr., taken for Plaintiff, April 28, 1998, Tarrant County vs. Denton County, 43rd Judicial District Court, Parker County, Texas.

World Bank. 1989. World Development Report 1989, World Bank, Washington, D.C. p. 87.

Gary A. Jeffress (Ph.D.) is a licensed surveyor in Texas, past President of the Texas Society of Professional Surveyors, and past GLIS director of the ACSM Board of Direction. He is presently Professor of Geographic Information Science, Coordinator of the Geographic Information Science Program and Director of the Division of Nearshore Research at Texas A&M University-Corpus Christi. Email: .

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