i'm not sure of a court citation but i do know of boundaries conveyed by ditches. i'm not sure if it should be considered a natural monument, would one expect the ditch to move over time?
was it a scribner's error where the intention was to convey 5' east of the ditch per the surveyor's plan and the lawyer gummed up the wording by typing west? how is the reputation of the previous surveyor? if he did good work great, if his crew has a reversed scope, then not so great. (i worked with a guy who would leave the scope flopped every so often. it kept me on my toes.)
who the heck would not just make the boundary the ditch? a 5' swath on the side of a ditch is pretty useless except for the maintenance of the ditch. leads to the question, who maintains it? or better yet, who maintained it for the years following the cross conveyances? that would get you some information on the original intention.
Torrential creeks change course by natural forces and we have a well defined set of laws to address that movement. Ditches are created, maintained and possibly moved by the actions of man. In my area the BOR has made a career out of replacing boundary ditches with pipelines for instance. Those pipelines are rarely laid in the bed of the ditch but I do not believe the boundary snaps to the pipeline.
Thanks again to all for your input. I have reported the facts and made my determination and will let the attorneys fight it out. Maybe they can find a decision addressing the ditch issue.
Still there is little difference in practice. Theoretically you're correct; however, in practice, unless you birddog the folks maintaining it, and watch the weather daily, it is where it is. Same as an old road that is used as a line. While technically, it can never elevate to that of a natural monument, it does in practice and everyone stays happy, unless there is a DRASTIC change to the ditch/road.
Not on subject, and perhaps trivial (brings back fond memories though)... Two, several hundred acre tracts of land were bounded by a lengthily portion of a ditch (the underground railroad). The survey took place in circa 1985 and deep within a forest. During the recon mission with a compass, I noticed a pattern of shallow swales in the ground rather short in their length's, however, many in a few hundred feet. Plotting these by means of plane table and alidade revealed the swales as being in an unnaturally straight line and therefore being of manmade. Now with the deed bearing and compass..the called out stone and chisel-'x' has been recovered providing a P.O.B. for rest of the recon mission.
The Ditch is an artificial monument called for in the Deed.
I would presume it hasn't moved. In other words, it hasn't moved unless it can be proven otherwise.
The mathematical data yields to the monument.
This seems pretty fundamental to me.