Just for the record, New York is a non-recording state
Licensed Land Surveyor
Finger Lakes Region, Upstate New York
If the fight is over, you won, then pull it, frame it, and hang it in your living room.
somewhere where the neighbor can see it every day.
@nate-the-surveyor It was a slam dunk, landslide, easy win. Our surveyor had 2 previous surveys of our land that matched his survey, he had our very detailed deed description of the line, and he testified to his field work under oath in court. The other surveyor did not use any of the prior surveys and the deed description of our neighbor's land is vague (it was a remainder deed established in the 1970s) - nor was he brought in to testify. Our line was established in the 1800's and had not changed since - so testified an expert abstrator. The period for appeal is long past.
@skeeter1996 I'm in California, which is a mandatory recording state under pretty much any situation that involves a dispute, so "what if he never set the pin" isn't something we have to worry much about here.
A pin could end up there again someday. After all, another surveyor might come to the same solution and set it there again.
Working in a PLSS State, a pin set it is frequently common to four properties. A jundge can rule on the two opposing arguments. The other two property owners are not necessarily bound by that judgement. Weird. Surveying has few absolute answers.
Pull the pin.
Not enough info to give a definitive answer.
1. Trial court judgements on boundary matters are often little better than coin flips as it seems to be an area of the law few judges and lawyers really understand. They often come down to which attorney and/or expert witness was a more polished speaker, or even the personalities of those in the courtroom.
2. One survey matches the deed, the other based on a fence. That can mean a whole lot of different things. Often, when someone says "based on the deed", they mean that a math & measurement exercise was done whereby a geometric figure based on dimensions recited in a deed was placed on the ground with little to no regard toward physical evidence of the actual location of the original boundary locations.
Quite often, the dimensions come from some ground measurements made by unknown parties exercising and unknown amount of skill and care at some unknown time in the distant past. Taking those measurements as exact quantities that should control boundary locations is usually not the correct course of action.
A properly conducted boundary survey identifies the boundaries in locations where the preponderance of evidence indicates they were most likely originally established on the ground, which rarely agrees precisely with record dimensions, particularly dimensions created by unknown parties in the distant past.
If the boundary lines were originally created many, many years ago, old improvements such as fences are often the best evidence of original locations. The key to that is gathering info on when the fence was built, who built it, why was it placed where it is, did it replace an older fence and if so, whether it's in the same location as the older fence.
A survey that appears to reflect deed dimensions rather poorly but fits reasonably verified original boundary placement does follow the deed, making allowances for poor measurements of the original boundaries and used in a deed. Conversely, a survey that appears to match deed dimensions well but fails to utilize existing verifiable physical evidence of the original boundary locations actually does not follow the deed.
Then again, there are some surveyors who would accept a fence location without investigating any of those questions while ignoring other definite deed elements. If the fence can't be shown to be more likely than not along the original location of the boundary, then the survey utilizing the fence can't be said to be following the deed. In some instances, so little evidence is left of original boundary locations that the surveyor is left with just deed dimensions.
There are a great many scenarios by which a fence might be critical evidence and a great many in which it's just a fence.
My advice would be to wait at least until the window for an appeal to be filed has passed. If your surveyor has filed a map and documented the relationship of corner monuments he did not accept relative to the points he did accept or did set, then after the dust has settled, remove the other iron(s). If you remove them then end up losing on appeal, you may find yourself paying a surveyor to replace them.
At what point is "enough, enough"?
"IF" this case went up on appeal, the chances are very slim that it would be overturned by evidence or facts.
Trial courts are the defacto experts in evidence, testimony, facts, and application of the law.
Not sure what objections were raised that may be cause for appeal, but at some point, it must end.
I see your recommendation, and the "after the appeal window" is a fine standard to respect.
However, the troubling aspect is that you are second guessing: 2 surveyors (one of which will be wrong), a judge, and the legal process.
Cautious is one thing, but I wonder if you trust the courts in legal matters with respect to real property?
And maybe an attorney had a bad showing in court. But them's is the breaks.
I would argue that the judge and their staff have a better chance of getting it right than an average attorney (legal assistants) that may/may not have good real property experience, because the clerks for the judge aren't "on the clock" like a hired attorney.
Didn't say it would be overturned, or even that it's likely to be overturned. Unless there is clear error in how the trial court handled the evidence, the appeals court will take the conclusions of fact as they come from the trial court.
We know nothing about the trial other than 1 survey was accepted and one wasn't. We know nothing of the surveys other than the trial court accepted the one that "followed the deed" and rejected the one that accepted a fence.
I'm not second guessing the surveys because we don't know enough about them to second guess. Don't know what each of the surveyors testified to. Don't know if the judge disallowed any testimony as to particular facts or conclusions by either of the experts. Don't know how the judge applied the law.
Cases being overturned or remanded for further consideration of particular facts is not a rare thing. The odds of being affirmed, knowing virtually nothing of the case itself are better than even but the odds of being fully or partially overturned are quite a bit better than "very slim" based on cases I've reviewed. Pulling irons before the appeals run out can cause problems for the party doing the pulling if part or all of the ruling doesn't go their way.
IMO, enough is enough when all appeal options run out or the initial appeal window closes without the other party having filed (typically 6 months). I think that to be prudent.
After that, I say get rid of the extraneous iron(s) to avoid future confusion.
I'd pull it...
"IF" this case went up on appeal, the chances are very slim that it would be overturned by evidence or facts.
Trial courts are the defacto experts in evidence, testimony, facts, and application of the law.
I would disagree, Land Boundary cases are often reversed in appellant court. Trial court decisions are mostly based on what evidence the attorneys put forth. Statutes, case law and precedence are often overlooked in lower court. I would not consider trial court judge to be experts in Boundary evidence, facts or application of Boundary Law.
Or the judge could come pull it.
Well, obviously, if a case is going to be overturned, it would be at an appellate level.
The rest of what you wrote flies in the face of Civil Procedure.
Trial courts hear evidence, testimony, and establish facts. The attorneys (are supposed to) present the law to the court (judge) and the court (judge) applies the law, as applicable, and/or sorts out the application of said law.
If the court (judge) errs, and an objection was raised and preserved, then that may be grounds for an appeal.
No new material is presented upon appeal (VERY RARE). Appellate courts review only errors in application of the law that the lower court may have made.
That's what trial courts and appellate courts do. If you don't agree, then I'm not going to keep arguing.
And I didn't say that the trial judge was an expert in "boundary".
My comment about the court (judge) getting it correct stems from the fact that the court (judge) benefits from hearing from both attorneys and their finding(s) in the law, before evaluating the law for themself.
Obviously to your obviously.
What flies in the face, what civil procedure did I disrupt?
Florida appellant court does not work that way. They always introduce statutes, case law and precedents that explain why they overturned the lower court.
The post is about Boundary; you said the trial judge is an expert; I concluded you meant a Boundary expert as well. My bad for staying on tract.
Again Boundary Law court decisions are very often overturned. I am not trying to impugn or blame anyone, just stating fact.
