Land Tenure, Boundary Surveys, and Cadastral Systems

George M. Cole, Donald A. Wilson

• Publisher: CRC Press
• Year: 2016
• ISBN:
  9781315352961
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: City Planning & Urban Development
• Index: Politics & International Relations

Land is important to all aspects of human life and has a key role in the economic well-being of society therefore, land tenure, land ownership, and real property law is a critical part of any developed nation. Together, the processes of how land parcels are held; how they are defined, measured, and described to allow economic transactions; how they are marked to allow their use and defense; and how they are legally protected have allowed for the orderly possession and use of land. In doing so, these processes have also provided the basis for the advanced economy of most developed nations. Very often, these processes—land tenure, boundary surveying, and cadastral systems—are considered separately. They are very much interrelated, and none of these processes may be completely understood without an understanding of the others.

Land Tenure, Boundary Surveys, and Cadastral Systems provides an introduction to land tenure, cadastral systems, and boundary surveying, including an understanding of the interrelationship of these areas and their role in land tenure and real property law. This is especially true considering the advent of georeferenced cadastral maps reflecting the location of land parcels relative to many other components of the physical and legal infrastructure. Although intended as a basic text for college-level surveying courses, this book should also be of significant value to cadastral mappers, real property attorneys, land title professionals, and others involved with land transactions.

1

Introduction

Since the dawn of history, land has been the primary source from which Man has taken the things that he needs for existence and for progress, for life in the lower margin and for luxury. Land still brings forth the grain, fruit and meat that feed him; the flax, cotton and wool that clothe him; the wood, stone and iron that house him. It supplies the fuels that warm him—the fuels that, transformed by his arts into energy, serve him in a thousand ways.

Charles Abrams (1979)

Mankind has always had a special relationship with the land, and with good reason, since it is a primary key to our existence. As suggested in the previous quote, land serves as the basic platform for life and source of nourishment, shelter, and energy for mankind. It also serves as the basis of income for humans. Reflecting that essential nurturing role, land has often been called “Mother Earth.”

As a result of the special relationship with and dependence on land, humans have long had a tendency to claim exclusive rights over tracts of land that they occupy, either jointly with other members of a tribe or community or as individuals. That tendency to claim a parcel of land as one’s own and to defend it from others appears to be a natural tendency since it may also be observed with many other animal species. As an example, most people have observed a dog marking its territory. As another example, persons living in some parts of the United States have possibly experienced being threatened by mockingbirds defending the territory around their nest. Such actions are really not that far-removed from that of marking the corners of a land parcel with concrete monuments or the filing of a deed to the land at the county land records office. Both involve methods of defending a claim to land.

Early in recorded history, humans refined the process of defining and marking the limits of claimed lands by use of boundary surveys and landmarks. Based on such surveys, methods have been developed to uniquely describe parcels of land, which provides the basis for land being used as a commodity that can be bought, sold, traded, or used as equity. In addition, humans have refined the process of defending land claims by use of a legal system in lieu of a physical defense. This was eloquently recognized by philosopher John Locke (1698/1952) as follows:

I cannot count upon the enjoyment of that which I regard as mine, except through the promise of the law which guarantees it to me. It is law alone which permits me to forget my natural weakness. Tis only through protection of law that I am able to enclose a field, and to give myself up to its cultivation with the sure though distant hope of harvest.

In most advanced societies today, a key element of that legal defense is the recordation or registration of land claims in a central database, or cadastral system. That recordation process provides public notice of a claim to a specific parcel of land and thus allows utilization of the legal system for defense of the claim.

Together, the processes of how land parcels are held; how they are defined, measured, and described to allow economic transactions; how they are marked to allow their use and defense; and how they are legally protected have allowed for the orderly possession and use of land. In doing so, these processes have also provided the basis for the advanced economy of most developed nations. For those living in societies with such property systems, those processes are often taken for granted and have become an almost invisible part of the landscape. Nevertheless, because of the importance of land to all aspects of human life, as well as the key role that it has in the economic system, the processes are essential to the orderly operation and economic well-being of society and therefore deserve careful study. That is the objective of this writing.

Very often, these processes—land tenure, boundary surveying, and cadastral systems—are considered separately. Nevertheless, they are very much interrelated, and none of these processes may be completely understood without an understanding of the others. This is especially true considering the advent of georeferenced cadastral maps reflecting the location of land parcels relative to many other components of the physical and legal infrastructure. Therefore, the interrelationship of these processes is a central concept that will be found throughout this writing.

The objective of this book is to provide an introduction to land tenure, cadastral systems, and boundary surveying, including an understanding of the interrelationship of these areas and their role in land tenure and real property law. Although intended as a basic text for college-level surveying courses, this book should also be of significant value to cadastral mappers, real property attorneys, land title professionals, and others involved with land transactions.

When used as a text for a course in the subject matter, it is suggested that the course instruction include several practical exercises to supplement the text material. For example, students should perform a title search for a parcel of land. In addition, information should be obtained using a fiscal cadastre. Other exercises should include obtaining and using Public Land Survey plats and field notes from a state repository. Practical exercises in writing and interpretation of legal descriptions and the actual participation in boundary surveys should also be included for a complete learning experience. Recommended additional reading in that chapter’s topic is provided at the end of each chapter.

2

Land Tenure

2.1 Territoriality

Territoriality is usually considered to be the attachment to and defense of a specific geographic area. Although often considered a characteristic of mankind, the identification of an area for exclusive use is a well-documented practice among many species of animal life. The examples provided in the Introduction involving the “marking” of territorial boundaries by dogs and the defense of nesting areas by mockingbirds illustrate two of many examples of territoriality by species other than humans. In addition to birds and dogs, territoriality has been observed in many other species. A number of mammals claim exclusive territories and mark the boundaries of those areas with self-produced scent in the form of urine or musk on stumps, tree limbs, or rocks. Among some social animals such as the primates, there is a tendency for territory to be claimed by groups rather than individuals. Organized bands of monkeys and apes often occupy and defend territories as a group.

Therefore, territoriality is apparently a natural tendency since many examples of territoriality may be observed among various species of animal life. In many cases, this tendency takes the form of a territory being claimed and defended by an individual or close family unit. In other cases, territory is claimed and defended in common by an expanded tribal group.

Among humans, groups of people have been seizing land from other groups as far back as historical records exist. Even early cave-dwellings societies have been reported to have individual partitions within their caves. Among the early hunting/gathering societies, land was probably not considered a commodity as in most contemporary societies. Nevertheless, a particular area of land was often associated with a tribe or group of people who lived upon it and defended it. Among Native Americans, for example, a tribe usually claimed a wide area common to all members, which was defended against intruders. In addition, individual occupancy of garden patches within that territory was respected in some areas. Some groups, such as the Sitkans of Alaska, divided productive areas of the coastline among families and used cornerstones and stakes to demarcate the boundaries of those individual tracts. As other examples, the Montagnais tribe of Canada is reported to have produced good maps of their territory by carving on pieces of birch bark. Where urban societies or formal agriculture developed, both requiring intensive land use, recognition of individual rights over territory generally developed as opposed to tribal or group rights.

Thus, territoriality appears to be a natural pattern among many species of animal life, including humans. Furthermore, exclusive claim to land appears to be a universal trait of human culture and a part of the basic fabric of human society.

2.2 Land Tenure and Its Development

In human society, territoriality is manifested by the process of land tenure. That term may be very simply defined as the process of holding land.* Slightly more detailed, it may be said to be the relationship, whether defined legally or customarily, among people, as individuals or groups, with respect to land. Land tenure is an institution, that is to say, it is rules invented by societies to regulate behavior. The rules of tenure define how property rights to land are to be allocated with societies. It is an essential part of most legal systems and is an important part of social, political, and economic structure. Because of that multidimensional nature, it has important social, technical, economic, legal, and political aspects.

Reportedly, the earliest urban society, as well as earliest formal agriculture, developed about 8000 BC. Our knowledge of land tenure during that period is limited, but it is presumed that some sort of individual or group exclusive rights to land were recognized due to the nature of land use by those societies.

In the early stages of civilization, most forms of land tenure were collective. When people began to cultivate or otherwise intensely use the land, individual rights began to be recognized. With intensive use, it became more important to delineate and defend the areas involved to protect one’s investment in the land. Eventually, this led to the development of ways to describe the land and legal systems to protect interests in land other than with physical defense, as well as to allow for the use of land as a commodity.

Definite evidence of private ownership of land and sales of privately owned land parcels in various societies has been found for periods as early as 2700 BC (Powelson 1988). That evidence is in the form of textual information on tablets in Southern Mesopotamia. No evidence exists of an organized system of land distribution or of concepts such as title deeds, but land was apparently claimed and occupied by those who would take it and hold it.

Egypt provides another example of an early society developing sophisticated land tenure practices. The oldest documented evidence of such a system is dated approximately 2350 BC. The land system in that country, even then, had laws requiring a document to be drawn up on papyrus, signed by three witnesses, and stamped with an official seal when transferring ownership of land. Furthermore, that system accounted for lands by use of a central registry in the office of the vizier, the pharaoh’s prime minister. That registry also was used for recordation of wills and other documents affecting land ownership similar to the process in use in advanced societies today.

An interesting example of the relative complexity of early land transactions is one conducted by the prophet Jeremiah, which may be found in Holy Bible as follows (Jeremiah 32: 9–14, Holy Bible, Revised Standard Edition)

And I bought the field at An’athoth from Han’amel my cousin, and weighed out the money to him, seventeen shekels of silver. I signed the deed, sealed it, got witnesses, and weighed the money on scales. Then I took the sealed deed of purchase, containing the terms and conditions, and the open copy; and I gave the deed of purchase to Baruch the son of Neri’ah son of Mahsei’ah in the presence of Han’amel my cousin, in the presence of the witnesses who signed the deed of purchase, and in the presence of all the Jews who were sitting in the court of the guard.

I charged Baruch in their presence, saying, Thus says the Lord of Hosts, the God of Israel: Take these deeds, both this sealed deed of purchase and this open deed, and put them in an earthenware vessel, that they may last for a long time.

As may be seen, the transaction involved many of the same elements used today, including the requirement for witnesses to the transaction, public notice of the sale, and the preservation of the deed in a safe place such as a sealed vessel as was the custom of those days.

During the dynasty of Ptolemy (305–31 BC), a relatively advanced land information system was developed in Egypt that contained precise information on even small plots of land, including the legal status of the land, its dimensions, its location, the holder of the land, the state of its irrigation, and the type of crops grown on it.

It may be seen from the foregoing examples that having exclusive rights to land is a long-established practice of mankind. Furthermore, it may be seen that many of the practices associated with land ownership today, such as considering rights to land as a commodity that can be traded, the creation of formal land title deeds to represent land in transfers of ownership, the maintenance of a central registry of deeds to land, the recordation of other documents affecting rights to land such as wills, and even land information systems, are also long-established and essential components of human society.

As various societies have evolved, various degrees of private rights to land were recognized. At times, in some regions, land ownership became consolidated under a sovereign power. At other times in history, individual rights to land were recognized. Nevertheless, the general tendency in most urban or agrarian societies, especially in more recent times, has been to move toward individual land ownership rights with the demise of feudalism.

2.3 Modes of Interests and Tenure in Land

Practices and laws regarding land tenure vary considerably among nations. Nevertheless, there are some common principles. Generally, most systems provide for several levels of interest in land, some of which may intersect one another and exist simultaneously. For example, under common law, fee simple is the most complete ownership interest one can have in real property, other than the rare allodial title, when real property is owned absolutely free and clear of any superior landlord or sovereign. Yet, even land held in fee simple may be subject to overlapping interests, such as when the property is leased or rented by its owner to another party. Generally, when there is more than one interest in property, the interests are considered to be in one of the following classifications:

Overriding interests: when a sovereign power (e.g., a nation or community) has the powers to allocate or reallocate land through expropriation or similar practice

Overlapping interests: when several parties are allocated different rights to the same parcel of land (e.g., one party may have lease rights, and another may have a right of way). Examples of overlapping interests are in abundance. An obvious one is the land, burdened by a highway easement, further burdened by slope and sight easements, which in turn are burdened by overhead and underground utilities, along with telephone and cable lines. In major metropolitan areas, easements are stacked on top of one another, some being surface, while others are subsurface and above surface (air space)

Complementary interests: when different parties share the same interest in the same parcel of land (e.g., when members of a community share common rights to grazing land, community wells, and the like)

Competing interests: when different parties contest the same interests in the same parcel (e.g., when two parties independently claim rights to exclusive use of a parcel of agricultural land. Land disputes arise from competing claims)

Many different forms of la...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Authors
• 1. Introduction
• 2. Land Tenure
• 3. Land Tenure in the United States
• 4. Subdivision of Land in the United States
• 5. Land Descriptions
• 6. Land Boundary Surveying
• 7. Cadastral Systems
• References
• Index