9.3 The Surveyor's Role in Possession, Encroachment & Title Disputes

Fact-finder, not judge

A licensed surveyor has authority to retrace and monument boundaries and to report evidence. A surveyor has no authority to adjudicate title. Whether adverse possession has ripened (§ 15-1-13), whether a line was fixed by agreement or acquiescence (Section 9.2), or whether a senior deed controls an overlap (Section 8.2) is ultimately decided by deeds between the owners or by the chancery court. Mississippi's chancery courts hear suits to confirm and quiet title and to remove clouds on title under their constitutional equity jurisdiction (Miss. Const. §§ 159–160) and § 11-17-29.

The two-track method

Track 1: the record line. Research the chain of title and the adjoiners' deeds, determine seniority, recover original PLSS and deed monuments, apply the hierarchy of calls, and retrace and monument the record boundary to the standards of its class (Chapters 3 and 4).

Track 2: the possession line. Locate every visible indicator of occupation near the line: fences (type, condition, age evidence), walls, hedgerows, ditches, cultivated edges, drives, buildings, and utilities.

Bring them together on the plat.

• Show the record line and the occupation lines distinctly, with offsets at ends, angle points, and maximum deviation (Rule 7.3, item 10).
• Show visible encroachments with their extent; subsurface encroachments need not be located unless the client furnishes them (item 15).
• State discrepancies and their nature, and list sources, including any recorded boundary agreements, decrees, and § 15-1-13(2) notices found in the land records (item 9).
• Add explanatory notes, for example: "Fences and improvements are shown as found on [date]. No opinion is expressed as to ownership by adverse possession, acquiescence, or unrecorded agreement."

"Surveying to the fence"

Moving the monumented boundary to an old fence without a deed, a recorded agreement, or a decree causes several problems:

1. It decides a legal question (possession, acquiescence, or agreement) on facts the surveyor cannot fully know: permission, the fence's origin, how long it has been respected, and whether a § 15-1-13(2) notice was filed.
2. It can put the client's monuments on land the adjoiner still holds record title to, creating a cloud and inviting litigation.
3. It misrepresents the survey's basis, contrary to Rule 6.3's demand for objective, truthful documents and Rule 7.3's disclosure duties. That exposes the licensee to discipline for negligence or incompetency under § 73-13-37.

This does not mean fences are irrelevant. A fence of competent origin may be the best evidence of where an original corner or line was (Section 7.1), and a fence may be the line fixed by a recorded agreement or decree. The rule is to follow the evidence of the original line and the legal instruments, and to document occupation. Do not quietly substitute occupation for title.

Tools that do settle a line

Access and landmarks

• Access. Under § 73-13-47 a surveyor may enter lands and waters, but not buildings, to perform surveying duties without criminal trespass liability after a good-faith attempt to announce and identify themselves, and remains liable for damage (Section 2.4).
• Don't disturb evidence. Knowingly removing or destroying a boundary tree or landmark to the wrong of another is a misdemeanor (§ 97-17-15). Show conflicting monuments; don't pull them.

In the courtroom

When the dispute reaches chancery court, the surveyor testifies to where the record lines, monuments, and occupation lines are, what evidence supports them, and how measurements were made. Who owns a strip is the chancellor's decision. Mississippi evaluates expert testimony under M.R.E. 702 and Mississippi Transportation Commission v. McLemore, 863 So. 2d 31 (Miss. 2003), so the surveyor must show a reliable method and its reliable application (Section 12.3).

Worked example: a garage over the line

A client buys a house lot in a 1965 subdivision. The retracement holds the original lot-corner pipes shown on the recorded plat and finds:

• the neighbor's detached garage 1.4 ft over the common line for 22 ft of its length;
• a chain-link fence along most of the line that lies 0.8 to 2.3 ft inside the client's lot; and
• a note in the chancery clerk's land records, filed in 2021 by the client's seller under § 15-1-13(2), stating that the fence was built without permission.

The compliant plat:

1. monuments the lot corners from the recorded plat and original pipes, and cites the plat as the source (items 4 and 9);
2. dimensions the garage encroachment to Class B accuracy (±0.2 ft) and shows its extent (item 15);
3. shows the fence with offsets at each end and at maximum deviation (item 10); and
4. cites the 2021 notice by book and page among the sources, without concluding what it means for title.

With that plat, the owners and their lawyers can negotiate a boundary-line agreement or easement for the garage. If they cannot agree, they can litigate on a complete factual record. The surveyor has not decided anyone's title.

Checklist for possession surveys