General Provisions

CHAPTER 11. Boundaries

§ 1101. Unauthorized removal of landmarks and marking of boundary trees; penalty.

No person shall cut, fell, alter or remove any boundary tree or other landmark, nor shall any person, without lawful authority, mark any boundary tree upon any land that is not person’s own, under penalty of forfeiting $200 to the party wronged.

Code 1852, §  987;  Code 1915, §  3616;  Code 1935, §  4165;  25 Del. C. 1953, §  1101;  69 Del. Laws, c. 359, §  170 Del. Laws, c. 186, §  1

§ 1102. Perpetuating testimony of boundaries.

(a) Any person interested in perpetuating testimony respecting boundaries or landmarks may file a petition in the Court of Chancery representing the case, and naming the tenants and the owners of adjoining land, and praying for an order to take depositions to perpetuate testimony respecting the bounds. A summons shall be issued for summoning the tenants and owners to appear and show cause if they have any objection to such order. If any of them cannot be found, the Court may order proper service or publication of notice to them. If no sufficient objection is shown, the Court shall order that commission issue to 1 or more persons to take depositions on interrogatories filed after 10 days written notice of the filing thereof. Notice to an attorney or solicitor of record shall be sufficient notice to the party for whom he appears, and notice need not be given to any person not residing in the county where the lands lie.

(b) Each party may produce witnesses to be examined under the commission. The Court may suppress the depositions and make new orders, or it may order the depositions to be recorded, and they shall then be evidence against the parties to the petition and their privies in any suit or controversy in which the bounds which they concern shall come in question, in case of the death of the witnesses or inability to procure their attendance.

(c) If any person is not summoned or notified, the order for commission may be made without notice to that person; but that person shall not be affected by the proceedings.

(d) Each party shall bear the costs of the attendance and examination of witnesses produced by each such party; all the other costs shall be paid by the petitioner.

(e) The commissioners may employ a clerk. The commissioners and the clerk shall be sworn faithfully to perform their duty. A commission directed to several may be joint and several.

Code 1852, §§  988-992;  Code 1915, §  3617;  Code 1935, §  4166;  25 Del. C. 1953, §  1102;  70 Del. Laws, c. 186, §  1

§ 1103. Marking and bounding lands; procedure.

(a) Any person seised of any estate in possession, reversion or remainder, or possessed of any term, not less than 15 years, in any lands, the bounds of which are unknown or are in danger of being lost, may apply to the Superior Court in the county where the lands are situate for a commission to mark and bound the estate. The Court may issue the commission to any 5 persons agreed on by the parties or appointed by the Court, but no surveyor shall be appointed on such commission.

(b) Three months notice of the application shall be given by advertisements posted at the courthouse door of the county and at 5 public places of the 100 where the land lies, and also delivered to the persons in possession of the adjoining lands or left at their dwellings, and to the owners of such lands, if within the State. If the lands are unoccupied or the owners unknown, the Court may direct the service or the publication of notice, as shall be judged proper.

Code 1852, §§  993, 994;  Code 1915, §  3618;  Code 1935, §  4167;  25 Del. C. 1953, §  1103; 

§ 1104. Notice of commission meeting; powers of commission; recording of certificate.

The commissioners shall give at least 20 days notice of their meeting to execute the commission by advertisements at the courthouse door and at 5 public places in the 100 where the land lies; and shall meet on the land accordingly. They shall be sworn to mark and bound the land mentioned in the commission most agreeably to the true original location thereof, according to the evidence, without favor, affection or partiality, according to the best of their experience, ability and judgment, and make true return thereof. They may direct writs of summons for witnesses to be issued out of the Court, and the neglect of the witnesses to attend may be punished as a contempt of court. They may cause the land mentioned in the commission, or any other land, to be surveyed, and may appoint 1 or more surveyors and chain carriers to make the survey, and may swear them to do their duty faithfully and impartially, according to the best of their skill and ability. They may also swear the witnesses. They may adjourn from time to time. The commissioners, or a majority of them concurring, shall cause the land mentioned in the commission to be marked and bounded according to its true original location, and shall return a certificate of the marked bounds or lines to the Court, under their hands, which return shall be recorded in the recorder’s office of the county, unless it is set aside by the Court for irregularity.

Code 1852, §  995;  Code 1915, §  3619;  Code 1935, §  4168;  25 Del. C. 1953, §  1104; 

§ 1105. Effect of commission’s return; savings provision.

If suit is not brought within 7 years from the return to controvert the decision of the commissioners, or in which the accuracy of the bounds or lines fixed by them is questioned, the record of the return shall be conclusive evidence of the original location of the land, and of the lines and boundaries. If the return shall, in any such suit, be confirmed in any particular by the verdict of a jury, it shall be conclusive to that extent, as between the same parties and those claiming under them, or any of them; saving to infants, and persons mentally ill, imprisoned, or beyond sea, and those claiming under them, the right to bring any such suit, within 5 years from the removal of their disability. The term of 7 years shall not begin to run against any person while that person is in possession of the land in controversy.

Code 1852, §  996;  Code 1915, §  3620;  Code 1935, §  4169;  25 Del. C. 1953, §  1105;  49 Del. Laws, c. 57, §  170 Del. Laws, c. 186, §  1

§ 1106. Boundaries fixed by agreement of parties.

If any lines or boundaries are ascertained and fixed by agreement of parties, they shall not be disturbed by any commission, as between the same parties or those claiming under either of them. If any persons agree to ascertain and fix the lines or boundaries of their land, the agreement and a plot of the land so settled may, by the consent of the parties interested, be recorded, and shall have the same effect as if the location of the land had been settled by commissioners.

Code 1852, §  997;  Code 1915, §  3621;  Code 1935, §  4170;  25 Del. C. 1953, §  1106; 

§ 1107. Right of holders of separate parts of tract or of younger survey to a commission.

When several persons hold separate parts of the same tract, they, or any of them, may have a commission to mark and bound the whole, as well as the several parts thereof. When any person holding a younger survey is interested in the locating of interfering or neighboring elder surveys, he shall have a commission to mark and bound the elder survey. Three months’ written notice shall be given to the person seised of the elder tract of the intention to apply for such commission. The commission may be obtained only if the person seised of the elder tract neglects to apply for and obtain the commission. The commission shall be executed in like manner and have the same effect as if obtained by a person seised of the land therein mentioned.

Code 1852, §  998;  Code 1915, §  3622;  Code 1935, §  4171;  25 Del. C. 1953, §  1107; 

§ 1108. Fees of commissioners, surveyors, chain carriers and witnesses.

Each commissioner shall be entitled to $1.00 per day for each such commissioner’s services, each surveyor to $2.00 per day, the chain carriers to 80 cents per day, and each witness to 50 cents per day, to be paid by the person at whose request the service is performed. The Court may compel payment by attachment.

Code 1852, §  999;  Code 1915, §  3623;  Code 1935, §  4172;  25 Del. C. 1953, §  1108;  70 Del. Laws, c. 186, §  1