Misnomer or Misconception
A misnomer is “a wrong name or inappropriate designation,” the “use of a wrong or inappropriate name.” (Webster’s) Otherwise stated, “a misnomer is a particular kind of mistake in labeling.” (Google) A misconception, on the other hand, is a “wrong or inaccurate idea or conception.” (Webster’s) Another way of phrasing this is “an opinion formed from a poor understanding of the topic.” (Google) It seems to boil down to a simple mislabeling versus not understanding the subject matter.
I have said for a long time in seminars and other fora that the term “unwritten rights” (referring to unwritten property rights) is a misnomer. I have finally decided it is more than just a mislabeling, it is a lack of understanding the subject matter.
Either that, or it is a throwback to the Neanderthalic idea that slapping the client’s deed on the ground (deed-staking) is good practice and anything else is practicing the law. Actually, if you think about it, staking the client’s deed on the ground in contradistinction to the property boundary lines that are already established on the ground, could be considered a legal opinion that the title documents are wrong. Perhaps this is where the idea of “unwritten [property] rights” was illegitimately conceived and subsequently born.
In the property context (not constitutional law), I’m not sure who first came up with the idea of unwritten property rights. In 1955, Curtis Brown published an article entitled “Duties and Liabilities of the Surveyor Where Land is Transferred by Unwritten Means.” In that article Brown discussed “unwritten means of transferring title” and included estoppel, agreement, recognition and acquiescence, adverse rights [i.e., adverse possession], statutory proceedings, accretions and erosion, and escheatment. We will eliminate “statutory proceedings” and “escheatment” because these two activities do not involve surveyors.
We will put adverse possession aside for another day, as it deserves its own discussion that I can’t give in the space I have available. Let’s just say that adverse possession is both a title and location doctrine.
The title will be affected in an adverse possession case, but in all the other situations only the location of the property is affected, not the title. Therefore, no conveyance is taking place, meaning there are no unwritten rights/transfers of property. It is also important to note at this point in the discussion that boundaries involve two questions: 1) the legal question of title; and 2) the factual question of location.
Possibly picking up where Brown left off, sometime in the mid-1970s, Darrell Dean and John McEntyre, who were then professors in the School of Civil Engineering at Purdue University, wrote a 171-page treatise entitled “Establishment of Boundaries by Unwritten Methods and the Land Surveyor.”
As Brown did in his 1955 article, Dean and McEntyre discussed what they considered to be the primary doctrines by which title may be transferred by unwritten means: adverse possession, estoppel, oral agreements, acquiescence, and practical location. Again, with the exception of adverse possession, none of these location doctrines affect the title to the property.
We will take our last treatment of unwritten rights from Brown’s 1979 article, “Land Surveyor’s Liability to Unwritten Rights.” In that article, he describes three surveying scenarios based on real events, wherein title to property was somehow conveyed by unwritten means. In all three cases, however, there was written title and there was confusion as to the on-the-ground location of the property.
The real question in each case boiled down to the factual question of location, not the legal question of title. The star-witness case Brown discussed in that article but did not name, turned out to be Western Title v. Murray and McCormick, (1977), that Ted Madson featured in his book The Anatomy of a Surveying Disaster, (1989). The ostensible unwritten transfer in that case was actually a junior/senior rights issue between two properties out of a common grantor. The rights were written, it was an interpretation issue (who had the senior rights?), not an unwritten transfer of title.
“Unwritten rights” is not a misnomer, it is a misconception of the difference between the title to property (the legal question) and the factual question of location (not a legal question). By the way, answering the factual question of location is not practicing the law—it is practicing land surveying.