Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 5
1 Introcluction 1.1 ORIGINS OF THE CADASTRE CONCEPI A cadastre may be defined as a record of interests in land, encompassing both the nature and extent of these interests. An interest in land (or property right) may be narrowly construed as a legal right capable of ownership or more broadly interpreted to include any uniquely recognized relationship among people with regard to the acquisition and management of land. Ac- cording to the French etymologist Blondheim, the term cadastre is probably derived from the Greek word katastichon, meaning notebook. (don Simmer- ding, 1969~. In Latin, the term gradually evolved to captastrum, or register of territorial taxation units into which Roman provinces were divided. Precursory cadastral arrangements may be traced to the earliest agricul- tural settlements along the Tigris, Euphrates, and Nile Rivers. In the pristine Egyptian state, revenues for the Pharaohs and the priesthood were met prin- cipally by taxes on the land. For purposes of taxation, the land was measured and the boundaries demarcated. Clay tablets unearthed from the ancient ruins of Sumerian villages provide records of charges against the land, maps of towns and tracts of land, area computations, and, most notably, court trials adjudicating ownership and boundary disputes. The Greeks and Romans established elaborate land-record systems primarily in support of land taxa- tion policies (Richeson, 1966~. One of the most famous cadastral projects was the Domesday Book of Norman England. The Domesday Book was primarily a collection of facts about the land and its improvements made for fiscal purposes. The actual 5
OCR for page 6
6 NEED FOR A MULTIPURPOSE CADASTRE collection of data was carried out during 1085-1086 and covered all of England with the exception of the four northern counties and the cities of London and Winchester. Similarly, Louis VI provided for the first measure- ment and assessment of French lands in 1 1 15. The origins of what has come to be accepted as the modern cadastre con- cept are found in the development of the cadastre systems of Continental Europe during the eighteenth and nineteenth centuries. Like the earlier efforts, these were fundamentally designed for taxation or fiscal purposes. The Milanese cadastre mapping program conducted between 1720 and 1723 was one of the earliest efforts to establish a fiscal cadastre in the modern sense. This program generated a series of estate maps at a scale of 1:2000 for the Italian provinces of Milan and Mantua shortly after they were ac- quired by the Austrians. Somewhat later, the program was expanded when Emperor Joseph II ordered a cadastral survey for the entire territory encom- passed by the Austro-Hungarian monarchy. This survey was made over a period of 5 years (1785-1789) and resulted in plans and descriptions of all individual land parcels in the monarchy (Rinner, 1969~. In 1807, Napoleon appointed the mathematician Delambre to chair a Commission given the task: To survey . . more than 100 million parcels, to classify these parcels by the fertility of the soil, and to evaluate the productive capacity of each one; to bring together under the name of each owner a list of the separate parcels which he owns to determine, on the basis of then total productive capacity, their total revenue and to make of this assess- ment a record which should thereafter serve as the basis of future assessment .... (Simp- son, 1976.) Some scholars have suggested that most of these eighteenth and nineteenth century European efforts to develop land taxation or fiscal cadastres were motivated by the economic principles of the Physiocrat movement. The Physiocrats held that the earth is the basis of all riches and that the revenues for the maintenance of the community should be derived from taxing the land. This concept was widely accepted, and most state revenues came to be obtained by "levying a ground tax, ultimately based on the taxable revenue of the separate ground parcels, and buildings, subdivided according to their different use such as agriculture grounds, meadows, orchards, woods, houses, factories, workshops . . ." ~enssen, 1973~. This "ground-tax" concept evolved over time into complex differential tax-assessment systems, based in part on differing land uses. These complex systems required land-parcel infor- mation arrangements capable of supporting them. Dobner (1973) has argued that almost all the early European cadastres were established in response to this need for fiscal information. In addition, it appears that as early as the seventeenth century, the Euro- peans developed an understanding and appreciation of the cadastre concept for purposes beyond taxation. Henssen (1973), for example, has traced the
OCR for page 7
Introduction 7 evolution of the legal or juridical cadastre from this period. The juridical cadastre was conceived as a system for recording and retrieving information concerning the tenure interests in the land that, as with the fiscal cadastre, required the identification of the people holding an interest in the land and the location of those interests. However, the juridical cadastre required a more rigorous delineation of these interests in order to provide for the secure transfer of the land. 1.2 EVOLUTION OF THE NORTH AMERICAN CADASTRAL ARRANGEMENTS The early North American cadastral arrangements were designed to promote quick, efficient, and secure land settlement. The alienation of public or crown lands, as a means of inducing European emigration, was from the outset recognized as a basic function of government in the English colonies. In sup- port of this policy, three uniquely North American land-record tools were developed: the American recording system, the commercial abstract, and the public-land survey system (albeit, the latter was only developed in the west- ern portion of the continent). English land-conveyancing practices at the time of the American coloniza- tion were dominated by two characteristics: and First, the substantive law had reached its technical worst, and, second, the structure of institutions and practices employed were still fluid, relatively undeveloped, and in a state of transition and experimentation. (Payne, 1961.) As a result, the colonial land-record systems that evolved in the New World were a strange mixture of old English private conveyancing practices and some entirely new institutions. Among the English practices adapted were the concept of a conveyancing profession and the abstract of title. These were blended with two new institutions, the American recording system and the commercial abstract. The form of the American recording system was first de- scribed in the early seventeenth-century recording statutes of the Plymouth, Massachusetts; Virginia; and Nova Scotia colonies. These statutes had four characteristics that persist today in the deed-recording laws of the United States and the eastern provinces of Canada: 1. The instrument of transfer, such as deed and mortgage documents, must be acknowledged before a public official before recording; 2. The entire instrument must be recorded; 3. Legal priority is generally assured the grantee by the act of recording;
OCR for page 8
8 NEED FO R A M ULTIPU RPOSE CADASTRE 4. The instrument is operative without recording, with the title passing before the instrument is recorded. The actual granting or patenting of the land, together with the delineation and demarcation of the boundaries, was initially the responsibility of the col- onial Surveyor-General. This was a particularly prestigious appointment, and it was not uncommon for him to report directly to London. But, if the posi- tion of the Surveyor-General was one of special importance in the early years of the colonial era, it was not always reflected in the resources allocated to his surveying mandate. In some instances, particularly where large tracts of land or townships were granted to the land companies and proprietors' coun- cils, extensive surveys would at least be made of the township perimeters. Initially such surveys were often made by British army engineers well versed in the art and practice of surveying. Later these engineers were supplanted by deputy land surveyors, men of mixed experience and expertise, who were lo- cally commissioned by the Surveyor-General. In addition to executing the township perimeter surveys, these pioneer surveyors often provided some internal control by traversing along navigable waters and monumenting the frontages of individual lots (a common practice in a large township of perhaps 100,000 acres or more was to arrange tiers of individual parcels in layers mov- ing back from a navigable stream or river). In many instances individual grants were made strictly on the basis of a written description, without benefit of boundary demarcation. Sometimes the settler would contract for a private survey, more often he established and maintained his own boundaries. In some cases, particularly where the tenure arrangements were stable and the boundaries physically maintained, this un- systematic survey system provided an adequate base. But in many instances the lack of adequate surveys created havoc. Marschner (1960), in a study prepared for the Agricultural Research Service, U.S. Department of Agricul- ture, examined some of the resulting difficulties: Running of boundary lines in wild and heavily wooded country, with the simplest ~nstru- ments and frequently by unskilled operators, did not make for precision. Boundaries were poorly marked and could not be identified. Frequently, contiguous grants were not recognized and overlapping of grants resulted. Cases in which a settler developed a part of his neighbour's property, although it was not within the limits of his grant, were not uncommon. The lack of adequate surveys presented special difficulties in the laying out of town lots. As early as 1634, for example, committees were established in New England to set out the boundaries of unsurveyed towns and to settle boundaries in dispute. The difficulties attributable to the unsystematic system in the Eastern
OCR for page 9
Introduction 9 United States were to influence the policy of alienating the federally owned public lands in the West. One concept that was central to the discussions that preceded the passage of the Northwest Ordinances was the need to have an actual field survey of the territory before issuing any grants (Ford, 1910~. This was accepted in the recommendations of a committee under the direc- tion of Thomas Jefferson, which urged the adoption of a systematic rectangu- lar survey system. The concept of the rectangular survey was adopted in the Land Ordinance of May 20, 1785. Provision was also made in this ordinance for the establishment of the six-mile-square township, which was to become the basic survey unit. In 1804, additional provisions were made for the crea- tion of baselines and meridians to control the location of the townships. In many ways the idea of the rectangular survey system was not new. Many of the early American cities, such as Charleston, New Orleans, and Philadelphia, had been laid out in a rectangular grid fashion. Similarly, the plans of the early Carolina and Pennsylvania proprietors, which dated from the mid-seventeenth century, had acknowledged the value of rectangular sur- veys. Nevertheless, the development of the Public Land Survey System was to rank as one of the major government decisions of the post-Revolutionary period and was to have a profound impact on the nature of western settlement. The American rectangular survey system, with minor variances, was subsequently adopted in Canada as the basis for the settling of the Canadian Northwest. These cadastral institutions, designed primarily for the initial alienation of the federally owned public lands, have changed remarkably little over time. Payne (1961), for example, has noted that the basic legislation regulating the form of the land records have remained essentially unchanged since the time of the American Revolution. 1.3 NEEDS FOR IMPROVING THE CADASTRAL INSTITUTIONS While concern about the quality of existing cadastral institutions has been voiced for some time, it is only within the last two decades that an awareness of the magnitude of the economic and social costs incurred by the continued public reliance on these outmoded arrangements has surfaced. Although these costs have been incurred in many and varied areas of human activity, they are most apparent in the processes of land transfer, property assessment and land- use regulation, and in the quest for a better understanding of the land-tenure institution itself. The land-transfer process in North America is founded on the principle of publicity, the concept that all information relating to the nature and extent of interests vesting in a legal parcel of land must be available for public in- spection. The costs associated with the acquisition of this information, the
OCR for page 10
10 NEED FO R A M ULTIPU RPOSE CADASTRE subsequent negotiations based on differing interpretations of the information, and the enforcement of the consummated transactions constitute the land- transfer economic costs. These costs must be borne by the parties to the transaction. It has been estimated that these land-transfer costs in 1974 ex- ceeded $17 billion in the United States for residential and farm real estate Deployer, 1977~. Included in these transfer costs are charges for the creation and maintenance of public records pertaining to the transfer documents. In 1971, recording-off~ce costs in the United States were estimated at $137 mil- lion according to statistics compiled from the National Survey of Real Estate Transfer Records (Wunderlich, 1973~. Other major sources of difficulty in the land-transfer process are related to costly searches resulting from inadquate indexing of documents and to the costs incurred from faulty descriptions. Judge John E. Fenton, Jr. (1976) of the Massachusetts Land Court has stated that . . . the land tenure system presently used in the United States is a rudunentary deed registration system, negative in nature and formulated to fit a rural, agrarian society. As land and building development exploded across America, with its attendant public con- trols and successive transfers of title, public registries became crowded with those who needed information about the land. Owners, buyers, realtors, investors, conveyancers, surveyors, mappers, title abstracters, assessors, foresters, planners, environmentalists, conservationists, census takers, utility personnel, among others, literally nudged one an- other in small areas to absorb and chronicle information about the land. These problems are extensively documented in a major report prepared for the Department of Housing and Urban Development pursuant to Section 13 of the Real Estate Settlement Procedures Act of 1974 (Booz, Allen and Ham- ilton, Inc., 1978~. The importance of adequate cadastral information for equitable property assessment has been of major concern since the beginnings of the modern f~s- cal cadastre concept in seventeenth-century Europe. A fiscal cadastre record not only provides the basis for the valuation of the land by including infor- mation about parcel size, shape, location, tenure rights, and restrictions but also provides a means of ensuring complete and equitable assessment of the improvements to the land. Inadequate cadastral records contribute to the cost of carrying out the assessment mandate and enhance the chances of error or omission. Recent court rulings in Alabama, Arizona, Missouri, Massachusetts, New York, Tennessee, and Virginia have focused attention on the inadequacy of the existing cadastral records. The "Sudbury" decision of the Supreme Judi- cial Court of Massachusetts, for example, directed the State Department of Corporations and Taxation (now the Department of Revenue) to enforce a constitutional requirement for uniformity and fair-market valuation through- out the state (Supreme Judicial Court of Massachusetts, 1974~. Many locali-
OCR for page 11
Ir~troductiorz ~1 ties in Massachusetts had become dependent on the de facto differences in rates of taxation inherent in the outdated and nonuniform assessments. The voters approved a constitutional amendment in November 1978 that allows the classification of properties into four categories for maintaining differen- tial rates of taxation: residential, commercial, industrial, and open space. The statutes to implement this arrangement were revised by the state legislature in 1979 (Chapter 797), to make such classification a local option and to give the state administration broad powers for enforcing standards for uniformity of property records and assessments. This focus has been amplified by the f~d- ings of agencies such as the Massachusetts Land Record Commission, which concluded: Local real estate assessors typically must maintain the most extensive record of current conditions of individual land parcels of any single governmental agency, and In many cities have automated their files; both for their own purposes and for reference by other agencies of local government. However, their work has proceeded without the benefit of a standard, statewide format for coding, filing and retrieval of this data, and typically without a supportive role by the registry of deeds in providing mach~ne-readable files re- gard~ng current ownership of the parcels. Where reevaluations become necessary, the assessors must normally proceed without the benefit of a history of title and encum- brances to the land, given the cost of assembling this information from the present files of the registries of deeds. (Barr, 1975.) Professional assessment organizations, such as the International Association of Assessing Officers (1978), have also urged that such reforms be effected. The increasing problems associated with managing the publicly owned lands demonstrate yet another need for improved land records. In addition to federally owned public lands, the General Services Administration and the Department of Defense own or lease many parcels throughout the United States. The Department of Housing and Urban Development through its rent- subsidy program and the various federal agencies that guarantee mortgages are concerned with parcels. Unfortunately, the federal records as to guaranteed mortgages have not been adequate to meet the problems that arise from nu- merous defaults. Federal agencies as assignees of the mortgage after default must not only deal with defaults but with foreclosures, which often result in purchase and ownership of the property by the federal agency. The rising demand for the identification and protection of natural and cul- tural resources is resulting in pressures to develop new programs for (1) the acquisition, transfer, and withdrawal of publicly owned land; (2) the protec- tion of such lands from vandalism and trespass; (3) planning and management for alternative (and often competing) uses; and (4) the regulation of these uses. Effective management of publicly owned lands requires a complete and accurate inventory of all such lands pertaining to boundaries, acreages, ex- isting use, soil types, vegetation types, and other parameters. Modern land cl
OCR for page 12
12 NEED FOR A MULTIPURPOSE CADASTRE records and a supportive continuing system are necessary to satisfy these needs (Bureau of Land Management, 1976~. Modern ownership-based land-record systems are also required for environ- mental and land-use planning purposes. In the last 15 years there have been numerous attempts to develop land-planning information systems relating cul- tural and resource information to a geographical framework. The primary purpose of the efforts has been to organize extensive and varied planning data within a common spatial framework, so that the complexities and interdepen- dencies of the land-planning problem can be represented. These systems have met with limited success, especially at the regional and local level, in part be- cause of inappropriate design assumptions, limited development, poor data resolution, and simple inattention or lack of inflation at the time of the design of the systems to user needs and institutional precedents. Despite the relatively recent influx of required environmental considerations, the signifi- cance of the ownership land unit as a basic land organizational or reference unit is as important as ever. This may be illustrated by citing the results of a series of county Critical Resource Information Program Workshops held in Wisconsin (Clapp et al., 1975~. The goal of these county workshops was to obtain, from local participants, a list and the geographic locations of poten- tially critical resources within the county. The reference that was used the most and on which most of the discussions were concentrated was the plat of the ownership units. Even in those frequent cases in which the resource under discussion (e.g., a prime farming unit or a wetland) was not directly compa- rable with a particular ownership unit, the participants could identify the re- source unit from the ownership units represented on a plat. In North America, the more-intensive use of limited land resources, a wider diffusion of holdings, and the appearance of new forms of land tenure have taxed the capabilities of existing tenure institutions. As used here, land tenure encompasses all the many relationships that govern (1) control and access to land resources, (2) the use of these resources, and (3) the claims on goods and services that flow from these relationships. These tenure institu- tions were developed to address much simpler questions that required much simpler analyses. Recent discussions concerning a number of land policy ques- tions demonstrate the shortcomings of the current land-information system. These policy questions include such items as foreign ownership of U.S. real estate, farming by corporations, and protection of prime agricultural lands from nonfarm uses. Congress and many state legislatures have recently expressed concern about the extent and impact of foreign ownership of U.S. real estate. Specific con- cerns have included the amount of such ownership, where it is located, and the likely or potential impacts of such ownership. Of particular concern are how foreign land ownership affects the U.S. balance of payments, land prices,
OCR for page 13
Introduction 13 access to farmland by young farmers, community viability, use of conserva- tion practices, and intensity of land use. Results of studies completed thus far emphasize two points: (1) more data are necessary on the incidence of for- eign ownership of U.S. land, and (2) a more complete, more uniform data base on U.S. land ownership in general is needed, in order to provide an ade- quate base for decisions by policymakers, including Congressmen and state legislators (Wunderlich, 1976~. These conclusions are also valid as to other land-tenure questions noted above. The multipurpose cadastre system out- lined here can provide both the framework and data for dealing with these questions. 1.4 THE CONCEPT OF THE MULTIPURPOSE CADASTRE North American cadastral arrangements to date have evolved in response to specific and limited user requirements. For example, the fiscal information necessary for property valuation purposes has generally been compiled by and for assessment officials. Land-recording offices have been designed pri- marily for providing notice of the existing ownership arrangements specif~- cally to the parties involved in a real property transaction or, more often, to their agents and for providing the state with a means of regulating the trans- actions and resolving potential problems of entitlement. In some instances, these fiscal and juridical cadastral facilities have at- tempted to provide at least a minimum level of service to external users of land-tenure information. For example, it is not uncommon in those American jurisdictions where rudimentary fiscal cadastral systems have been developed for assessment purposes to find many of the records, assessors' maps, and work sheets available for public inspection. The difficulties in gaining knowl- edgeable access to these records, except by professional practitioners such as surveyors, appraisers, and lawyers, however, coupled with the specific nature and limited qualities of the documented information, have greatly limited their usefulness. The result has been a dearth of accurate, publicly available ownership-related information resulting in the serious problems discussed above. The multipurpose cadastre system is designed to overcome the difficulties associated with these more limited approaches by (1) providing in a continu- ous fashion a comprehensive record of land-related information and (2) pre- senting this information at the parcel level. The multipurpose cadastre is fur- ther conceptualized as a public operationally and administratively integrated land-information system, which supports continuous, readily available, and comprehensive land-related information at the parcel level. Its components are the following (Figure 1.1~:
OCR for page 14
14 NEED FOR A MULTIPURPOSE CADASTRE TITLE & RSCAL ADMINISTRATIVE RECORDS RECORDS NATURAL RESOURCES RECORDS OTHER LAND RECORDS . 1 LINKAGE MECHANISMS CADASTRAL OVERLAY BASE MAPS GEODETIC REFERENCE FRAMEWORK FIGURE 1.1 Components of a multipurpose cadlastre. 1. A reference frame, consisting of a geodetic network (Section 3.1 and subsections); 2. A series of current, accurate large-scale maps (Section 3.2 and sub- sections); 3. A cadastral overlay delineating all cadastral parcels (Section 3.3~; 4. A unique identifying number assigned to each parcel; and 5. A series of registers, or land data files, each including a parcel index for purposes of information retrieval and linking with information in other data files (McLaughlin, 1975~. 1be reference frame, consisting of a system of monuments having geodeti- cally derived coordinates, will permit defining the relative spatial location of all land-related data. The large-scale mapping series will consist of a family of planimetric and topographic maps at scales from 1:500 to 1:25,000. These maps will permit the graphical representation of the land-related data. The cadastral overlay will consist of a specialized series of maps delineating the current status of property ownership. The individual building block for the overlay will be the cadastral parcel. This is an unambiguously defined unit of land within which unique property interests are recognized. Associated with each cadastral parcel will be a unique identification number. The unique parcel identification number will provide a key for linking
OCR for page 15
Introduction 15 each cadastral parcel to various land data files or registers. These records may contain information about land ownership, use, cover, assessment, and such other attributes as may be required in making decisions about the manage- ment of land resources. Other identifiers, either existing or to be introduced, may be used to assist in accessing and manipulating these land-information records.
Representative terms from entire chapter: