Many states have supplemental, or ‘alternate’ storage systems for filing survey maps that are separate and distinct from the real property records overseen by registers of deeds. While these secondary resources are of great value to surveyors and other land use professionals, their limits should be clearly understood. Whether housed in the county surveyors office, the county recorder’s office, or in some other government or quasi-government facility, documents filed under the alternate systems seldom provide constructive notice to subsequent purchasers.
Legitimate benefits of alternate filing systems are described in the Missouri decision Independent Gravel Co. v. Arne, 589 S.W.2d 652 (1979). A tax lien was filed against parcel M-16-B, a designation found only on a map filed in an unrecorded atlas. The original collection of filed maps was stored in the office of the city engineer, and a second copy was kept by the county assessor. While the court states a preference for references to recorded plats, it concedes the legitimacy of an unrecorded map where it is expressly referenced by a deed.
The court concluded that that the original subdivision controlled the locations of the disputed boundaries even though the plat was unrecorded and the original surveyor applied inappropriate standards in his original determination of the existing section lines. Had the atlas not been available, determining the limits of the parcels would have been difficult or impossible.
The Difference — ‘Filed’ vs. ‘Recorded’
In states that have authorized separate filing systems for otherwise unrecorded surveys, storing a map in a ‘government-approved’ archive may give the map a misleading air of authority. However, the mere storage of maps somewhere in a government office is not synonymous with recording the plat. The primary benefit of these systems is to provide broader access to maps that would otherwise be inaccessible to the surveyor. Filing indices for these surveys often relate maps by geographic location rather than by chains of conveyance.
The Wisconsin court describes an alternate archive in TJ Auto v. Twist Holdings: 851 N.W.2d 831 (2014), and contrasts it with the ‘traditional’ method of recording deeds and plats in the register of deeds office. The ‘second-tier’ system for filing plats in the office of the county surveyor is authorized under a separate statute, with requirements independent from those associated with recorded plats. In this dispute, further confusion arose because the plats filed to the office of the county surveyor had been stored in the register of deeds office. However, the court distinguished between the separate legislative history of the two systems and the distinctions between “filed” and “recorded” surveys.
A Tennessee dispute over the location of a power line easement highlights the principle that a plat in a file folder is not a recorded plat. Tennessee Public Service v. Price: 65 S.W.2d 879 (1932) describes an easement created for a major transmission line by express agreement. One provision of the easement document stipulated that the location of the easement would be selected after the final route survey was completed.
A blueprint of the proposed ‘line survey’ existed in the power company files at the time of the deed, but was neither referenced by the deed, shown to the grantors, nor recorded in the Register of Deeds Office. Shortly after the deed was recorded, the power line was built along one side of the area shown on the blueprint. The power company claimed that the blueprint (showing a 100-foot easement) represented the original intent of the deed.
One problem with this assertion was that—if the blueprint already existed—it should have been expressly referenced in the deed. Furthermore, as the blueprints were only stored in power company files, their mere existence was not constructive notice to the grantors as per Tennessee recording statutes. The court concluded that the construction of the lines constituted practical location of the easement, and the blueprint was not controlling.
Bothin v. Cal. Title Ins.: 153 Cal. 718 (1908) describes representative attitudes towards documents that are not properly recorded. At issue was an exception to a title insurance policy that did not insure: “Instruments, liens, encumbrances, judicial proceedings and pending suits not shown by any public record thereof in the city and county of San Francisco…”
Because a deed of trust was executed but not recorded, it was not considered part of the public record and therefore was not a defect in the record title. As in the previous Tennessee example, the unrecorded document did not constitute constructive notice under the recording statutes in force at the time.
More recently, Stearns v. Title Ins. & Trust Co., 18 Cal. App. 3d 162 (1971) extends the distinction between recorded and unrecorded documents to encompass maps filed as a ‘record of survey.’ It also highlights the care needed to determine the significance of documents stored under either system: “The suggestion made at oral argument that a record of survey is a “conveyance” as that term is used in Civil Code section 1213, which provides for constructive notice, is not meritorious. The term “conveyance” is defined in Civil Code section 1215 as embracing “every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills.” A record of survey is not an “instrument” within the meaning of Civil Code section 1215. Furthermore, to impart constructive notice a “conveyance” must be within the chain of title.”
In other words, the significance of the map is discounted for two reasons: (1) survey maps generally do not fulfill all requirements of a conveyance, and (2) the ‘Record of Survey’ does not form a link in the recorded chain of title, and therefore does not provide constructive notice.
Analyzing the significance of a ‘Record of Survey’ in Idaho is more difficult than in many states, in part because statutes for recording Deeds, and for ‘Records of Survey’ both require filing in the County Recorder’s office. The two systems—governed by different statutes and indexed separately—provide a useful training exercise for land use professionals.
Title 55, Chapter 19 regulates Records of Survey. 55-1901 declares the purpose of the Record of Survey system to preserve evidence of land surveys and provide a public record. These rules are described as ‘supplementary’ to existing laws and make no mention of constructive notice. The sections that follow describe the conditions that trigger the filing of a survey, along with mapping requirements. 55-1910 requires that a Record of Survey be filed by the County Recorder, but records of these maps are indexed by Section, Township and Range rather than as part of a Grantor/Grantee Index.
By contrast, Idaho’s procedure for recording Deeds and its “Notice Statute” are found in a separate section—Title 55, Chapter 8. 55-810 describes the Books of Record that must be maintained for grants of real property. 55-811 itemizes documents that will constitute constructive notice to subsequent purchasers when properly recorded and indexed under this chapter.
In their attempts to reconcile the statutes described above, Idaho courts present somewhat conflicting views on the significance of a Record of Survey, but the rulings also raise important questions for land use professionals. The decisions that follow illustrate that, though a Record of Survey may be properly filed, it does not automatically provide constructive notice to subsequent purchasers.
In Harris v. Reed, 121 P. 780 (1912) Judge Ailshie poses the question: “This necessarily involves the inquiry as to whether the constructive notice provided for in sec. 3159 is notice only of “every conveyance of real property” from the true owner and within the claim of record title, or does it mean notice of any pretended conveyance from a stranger to the record title which purports to affect the land in question…”
This early decision includes a detailed discussion of documents that can and cannot provide constructive notice to subsequent purchasers.
In his dissenting opinion of West Wood, Inc. v. Acord, 141 Idaho 75, 106 P.3d 401 (2005), Justice Eismann cites the previous decision in his detailed discussion of the relevant statutes, and of the shortcomings of a Record of Survey in providing constructive notice: “There is a second reason why the record of survey does not give constructive notice under the existing recording statutes. The record of survey was recorded pursuant to Idaho Code 55-1901 et seq., which requires surveyors to record certain surveys. Such recorded surveys do not provide constructive notice to subsequent purchasers because they are outside the chain of title. As this Court explained almost 100 years ago, where Idaho recording statutes provide for grantor-grantee indexes rather than tract indexes, documents that are outside the chain of title—that are executed by someone who does not have an interest of record in the real property—do not provide constructive notice.”
Adams v. Anderson: 127 P.3d 111 (2005) reinforces two important principles: (1) a ‘record of survey’ is not the same as a ‘recorded plat’ and (2) A record of survey may or may not be sufficient to constitute a valid conveyance of land in Idaho.
The map in question was filed as a Record of Survey, described as a ‘lot line readjustment survey’ between lots 2 and 3, indicating that the map represented intent by the parties to transfer a strip of land between the owners, so that ownership would conform to the line shown on the map. A deed referencing the map actually was made and delivered between the owners of the lots, but the deed was never recorded.
Several subsequent legal documents relating to lots 2 and 3 referenced only the original subdivision plat and made no mention of the ‘lot line readjustment survey’. To summarize: neither the ‘lot line readjustment survey’ nor the relevant deed were on record in the Register of Deeds Office. Not until 1996, when the Andersons purchased lot 3, did their recorded deed reference the ‘lot line readjustment survey.’
Because of specific language on the face of the plat—including words of conveyance, description of the land, and signatures of the grantor and grantee—the plat was considered to be a valid conveyance. However, the court added this critical caveat: “It is important to explain that while we are ruling that the current Record of Survey was a valid conveyance, we are not holding that all records of survey are conveyances. The Record of Survey before us is a conveyance only because it meets all of the statutory requirements contained in I.C. 55-601 and I.C. 55-813.”
The court glosses over the issue of constructive notice because Anderson’s deed specifically references the survey.
These examples highlight the necessity to comprehend relevant recording statutes, and the relationship between those laws and the documents found in other quasi-public records. Documents stored by railroad or utility corporations, Transportation Departments, or County Surveyor’s Offices all may fall into this gray area. Depending on the specific circumstances, filed documents in these offices theoretically may be open to public search, but fail to fulfill related statutory requirements.
The Surveyors Educational Seminars website is currently updated with new course outlines for 2021. Information on classes—presented by Kline and by Donald A. Wilson—may be found at www.surveyorsed.com.