The Stone Post That Does Not Match the Deed
In Waldo County, Maine, a 42-acre woodlot is being retraced for a sale. The 1901 deed begins at 'a large rock at the northerly end of the stone wall,' runs S 12° E 20 rods to a stone post, then S 78° W 40 rods to a hemlock stump, then N 12° W 20 rods to the town road. The stump is gone. The stone post exists but is 3.2 ft east of the position produced by the deed bearing and distance from the rock. The adjoiner's 1968 deed calls to the same stone post but gives a distance of 39.4 rods to the stump corner. A wire fence runs from the stone post about 2.5 ft east of the deed line for 300 ft, then angles back. The client says the post is 'probably a property marker set by a previous owner' and asks you to stake the deed line mathematically so the sale can close Friday. You have the 1901 deed, the 1968 deed, a 1957 tax map, and no original survey plan.
1. Which evidence should control the location of the 1901 stone post, and how would you decide whether the post is an original monument?
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Start with the governing principle that original monuments control over courses, distances, and area, but only after the monument is identified as the one called for. The 1901 deed calls for a stone post, so a stone post at or near the call is evidence, not a conclusion.
I would test the post by: (1) its position relative to the large rock, the town road, and the projected stump line; (2) its physical character and age; (3) corner evidence such as bearing trees, fence intersections, or old references; (4) consistency with the 1968 adjoiner deed, which also calls the post; and (5) the tax map, which is only a weak index. A 3.2-ft offset over a 20-rod call (330 ft) is about 1 percent, so the post can be the original corner if the original survey was approximate. If the post is later, it may still be evidence of the original corner if it was set to mark that corner. I would neither accept the post just because it is a post nor reject it because it does not match the deed math.
2. The fence runs 2.5 ft east of the post for 300 ft. What do you show on the survey plan, and how do you treat the fence?
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I would show the found stone post, the mathematical deed line, the fence or occupation line, the 2.5-ft offset, and the distances that establish each. The fence is occupation evidence, not automatically a boundary. It may support a claim of acquiescence, practical location, or adverse possession, but those are legal conclusions for the parties, their attorneys, and ultimately a court.
The plan should not silently move the boundary to the fence. It should disclose the conflict and state the basis for the boundary shown. If the post is accepted as the original corner, the boundary follows the post and the deed calls controlled by it; the fence is shown as a discrepant occupation line. If the post is rejected, the plan should say why and show the evidence relied on instead.
3. The client tells you to ignore the post and stake the deed line as the boundary. How do you respond professionally?
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I would explain that I can stake the mathematical deed line, but I cannot present it as the boundary while ignoring a called-for monument that may control. I would stake and label the line as the 'deed line per course and distance, subject to monument evidence,' show the post and the 3.2-ft offset, and add a note explaining the discrepancy.
If the client insists on a plan that omits the post or calls the deed line the true boundary without qualification, I would decline to seal that plan. I would document the instruction in the file and offer alternatives: a plan disclosing both the deed line and the monument evidence, or a boundary determination after the adjoiner is notified and the legal issue is addressed. The Friday closing is not a reason to misstate the evidence.