This memorandum is prepared for the purpose of providing research information about
the doctrine "Boundary by Agreement" it is hoped that it will provide the reader with
additional information that will allow this doctrine to be more recognized and allow these
agreements to be recorded in the County Clerks Office across Oregon. This report is
merely a bundle of information and personal opinion. The author of this report is not
qualified to write about or discuss the many laws pertaining to surveying or real property
title issues.
The Boundary by Agreement doctrine is founded on common law principles, which have
been codified by state statute in many jurisdictions. The doctrine is applicable in a vast
majority of states were the title to land is recorded. The doctrine allows landowners with
uncertainty or disputes regarding their boundaries to enter into an agreement to settle the
uncertainty. The agreement will be upheld in a court of law. The agreement of the
landowners is not an agreement to create a new boundary to replace the former. Nor is it
an agreement to exchange portions of their lands or to transfer ownership between the
parties. It is an agreement to settle the uncertainty that exists in the location of the
existing boundary. As such, the agreement will not fall under the purview of the Statute
of Frauds and is an acceptable remedy.
The source of law in the United States and in Oregon is legislative enactment, judicial
decision and administrative rules, with that in mind we will look at source of law and
how it relates to the Boundary by Agreement doctrine.
* Underlining by Author
The Federal Government and Boundary by Agreement
The BLM manual and the BLM circular entitled "Restoration of Lost or
Obliterated Corners and Subdivision of Sections, A guide for Surveyors" (1974)
are not statutes, even though the Courts of Appeals appears to have treated them
as statutes, states "Where the lands are in private ownership it is a function of the
county or local surveyor to restore lost corners and to subdivide the section.
Disputes concerning these questions must come before the local courts, unless
settled by joint survey or agreement."
They go on to say "In many of the States there is a well-established practice for
filing notes and plats of surveys, usually in one of the county offices. Otherwise
the record ordinarily would be filed as an exhibit with a deed, or agreement, or
court decree, ect."
The Oregon County Clerks and Boundary by Agreement
ORS 93.610 states, "Separate books shall be provided by
the county clerk in each county for the recording of deeds and
mortgages. In one book all deeds left with the clerk shall be
recorded at full length, or as provided in ORS 93.780 to 93.800,
with the certificates of acknowledgment or proof of their execution,
and in the other all mortgages left with the county clerk shall
in like manner be recorded. All other real property interests
required or permitted by law to be recorded shall be recorded
in the records maintained under ORS 205.130 or in records established
under any other law.*
(2) Counties maintaining a consolidated
index shall record deeds and mortgages and index them in the consolidated
index in such a manner as to identify the entries as a deed or
mortgage record. All other real property interests required or
permitted by law to be recorded shall be recorded in the records
kept and maintained under ORS 205.130 or in records established
under any other law.*
ORS 93.630 states, "The county clerk shall also keep a proper direct index and a proper
indirect index to the record of deeds, mortgages and all other real property*
interests required or permitted by law to be recorded*, in which the county clerk
shall enter, alphabetically, the name of every party to each instrument recorded by
the county clerk, with a reference to where it is recorded.
ORS 205.130 states, "The county clerk shall:
(1) Have the custody of, and safely keep and preserve all files and records of
deeds and mortgages of real property, and a record of all maps*, plats, contracts,
powers of attorney and other interests affecting the title to real property required
or permitted by law to be recorded*.
(2) Record, or cause to be recorded, in a legible and permanent manner, and keep
in the office of the county clerk, all:
(a) Deeds and mortgages of real property, powers of attorney and contracts
affecting the title to real property, authorized by law to be recorded*, assignments
thereof and of any interest therein when properly acknowledged or proved and
other interests affecting the title to real property required or permitted by law to
be recorded;*
(e) Instruments recognized under state law or rule or federal law or regulation as
affecting title to or an interest in real property if the instrument is properly
acknowledged or proved; and
(B) All instruments presented for recordation when required or permitted by law
to be recorded that affect the title to or an interest in real property, other than
instruments recorded in the deed and mortgage records or the statutory lien
records;*
(4) Perform all the duties in regard to the recording and indexing of deeds and
mortgages of real property, contracts, abstracts of judgments, notices of pendency,
powers of attorney and other interests when required or permitted by law to be
recorded that affect the title of real property,* and in regard to the entry of
satisfaction and discharge of the same, together with other documents required or
permitted by law to be recorded.
The Oregon Courts and Boundary by Agreements.
65 Or. App. 586; Ross v. Delorenzo:
The court states: There are three essential requirements for application of doctrine
of boundary by agreement: there must be initial uncertainty or dispute as to true
location of boundary; uncertainty must be resolved by agreement, expressed or
implied, to recognized particular line as boundary; and parties must evidence their
agreement by subsequent activities. Resolution of uncertainty may provide
consideration for agreement by which adjacent landowners fix uncertain
indefinite or disputed boundary. Element of doctrine of boundary by agreement
that there be initial uncertainty or dispute as to true location of boundary is
liberally construed; it is not necessary that boundary be unascertainable, only that
parties be uncertain about its location. Fact that boundary could have been located
by survey does not prevent application of doctrine of boundary by agreement. For
application of doctrine of boundary by agreement, boundary recognized must be
mutually intended as permanent, not as tentative or temporary boundary or as
mere barrier; parties must intend to resolve uncertainty. If agreement by which
adjacent landowners fix uncertain, indefinite or disputed boundary is
memorialized in writing, it may be recorded in the chain of title to establish
recognized dividing line.*
99CV3178CC; A111902 Gibbons v. Lettow
The court states in regards to boundary by agreement; There are three essential
elements:
"First, there must be an initial uncertainty or dispute as to the 'true' location of
the boundary. The stated purpose of this requirement is to prevent the
agreement from falling within the Statute of Frauds or violating other real
property conveyancing requirements, for it establishes that the parties are
resolving a dispute by mutually fixing an unknown boundary rather than by
making a conveyance of land. The element of resolution of uncertainty may
also provide the consideration for the agreement.
"Second, the uncertainty must be resolved by an agreement, express or
implied, to recognize a particular line as the boundary. The boundary
recognized must be mutually intended as permanent, not as a tentative or
temporary boundary or as a mere barrier. The parties must intend to resolve
the uncertainty; an attempt to locate the 'true' line cannot change the boundary
described in the deed.
"Finally, the parties must evidence their agreement by subsequent activities.If
the agreement is memorialized in writing, it may be recorded in the chain of
title to establish the recognized dividing line*. If there is an express oral
agreement, courts have required occupation to the boundary line in question."
18 Or. App. 144, 524 P.2d 569 Cascadia Lumber Co. v. Oregon State Highway
Commission
Several statements made by the courts in regards to boundary by agreement:
Several Oregon cased deal with the doctrine of parol boundary agreements.
The Statute of Frauds problem is disposed of by using the fiction offered by
most courts; viz., that the parties take title , not from the agreement, but from
their deeds as interpreted by their agreement. "Oregon appears to have taken
the liberal view with respect to the extent of uncertainty that must exist prior
to the agreement. In Thiessen v. Worthington it was only required that the
agreement be a settlement of a disputed boundary, or one that is uncertain or
unascertained. In Kincaid v. Peterson it was only required that the agreement
grow out of a disputed, indefinite, or uncertain boundary.
The court goes on to state: "if the agreement was a valid boundary agreement
between their respective predecessors in title, it is binding upon them. The
agreement was duly recorded* and, as such, constitutes notice to them both."
The Surveyor and Boundary by Agreement
ORS 93.310(2) states "When permanent and visible or ascertained boundaries or
monuments are inconsistent with the measurements, either of lines, angles or
surface, the boundaries or monuments are paramount." This seems to say that
surveyors must recognize boundaries, which may be established by occupation or
any doctrine that would legally create a boundary.
The Oregon Administrative Rules
The Oregon Administrative Rules for Engineers and Land Surveyors require as
per 820-020-0015 Registrants Shall Hold Paramount the Safety, Health and
Welfare of the Public in the Performance of their Professional Duties
(1) Registrants shall at all times recognize that their primary obligation is to
protect the safety, health, property and welfare of the public. If their professional
judgment is overruled under circumstances where the safety, health, property or
welfare of the public are endangered, they shall notify their employer or client and
such other authority as may be appropriate.
It could be argued that in order to "protect the* safety, health, property* and
welfare of the public", the Land Surveyor with the assistance of a land Attorney
would by law be required to, at the request of a client and adjoining landowner
document and assist with the recording of a Boundary by Agreement document so
that it may be binding on all future parties.
Summary
It seems evident that ORS would allow and requires County Clerks to record documents
affecting title to real property, that Boundary by Agreements are documents that affect
interests and title to real property that such a document should be recorded so that it may
be delivered to future parties at conveyance. It seems evident that the Oregon Courts have
made it clear that Boundary by Agreements are allowed in Oregon and that they have in
the past been recorded into the chain of title, that as stated in case's as recent as 2001
they allow these agreements and if in writing to be recorded in the chain of title. It also
seems evident that a Land Surveyors if competent in providing this type of services along
with the assistance of a land Attorney if requested by a client and an adjoining landowner
to aid and assist with such an agreement that he or she would be required to make the
public aware of such agreement as requested by the parties and cause such an agreement
to be reduced to writing and recorded with the County Clerk for all to see.
Thank you for taking the time to read this memorandum, please feel free to respond with
any thoughts and ideas you may have, as I continue to practice surveying as an LSIT and
continue my education to become a Professional Land Surveyor I request your expertise,
knowledge and years of experience.
Sincerely,
Lance King LSIT
368 SW 5th Ave.
Ontario, OR 97914
Cc.
Danny K. Cummings, PLS CK3, LLC
Scott Warner, Attorney Yturri Rose, LLP
Deanna Berman, Crook County Clerk
Jim Kimberly, Malheur County Surveyor
Deborah R. DeLong, Malheur County Clerk
Robert Schultz, PE, PLS Oregon State University
JR Wilkinson, Investigator Oregon State Board of Examiners for Engineering and Land
Surveying
