Last I heard a monument controlled the boundary between TWO parcels, many of which are owned by different persons.
When a deed says all the same property as conveyed to Joe Smoe, all that same property is transfered to the next owner no matter where the seller or realtor points out where the limits are.
Many times I have seen where one of them had to purchase land they sold they did not own yet they pointed it out as being what they were selling.
Fraud is real and is costly.
Not many DAs will prosecute people that pull monuments. It takes undeniable evidence and witness to testify and pictures or film of very good quality that clearly identify the guilty party.
Even a verbal admission of guilt gets very little attention.
Law enforcement barely actually know the law. They rely upon what they are told to do by their local system. Unless you find some way to grease their palms with blood money, you will be ignored.
Judges make wrong decisions all the time and make stuff up to get it out of their court. If you are serious about getting the laws enforced, expect to spend a small fortune until you find yourself in superior court or Supreme Court and get a correct application of the law and it takes time, money aND a dependable Attorney. Too many lawyers only look at the number of billable hours before they become interested in taking the case.
All the original parties agreed the deed didn't say what they agreed on.?ÿ So the deed can be "reformed". Cow's client is apparently an honest person. If other interests had intervened it wouldn't work out that way (such as a lender with a mortgage on one of the parcels).
I agree with you on the neighbor should be fined for pulling the corner, that someone else paid for and uses, but I dont think the law is enforced for pulling property corners. If they did the State would be rich from the fines coming from fence builders, and plumbers.
One way to encourage prosecution in such a case is for surveyors to charge enough for the monument that stealing it is a felony.?ÿ The corner may be common but the monument is personal property belonging to the one who paid to have it set. In order to protect the health, safety, and welfare of the public I'm going to look up the felony threshold and charge at least that per monument, itemized on the invoice.?ÿ Optional (for additional charge) will be embedded GPS tracker to help find the thief.
@ricky1947
Do you have a point to go with your ground breaking bombshell news, or just going to make a comment with no counter point?
My point was the landowner thinks its on their property and they can pull the corners, and Texas is big on property rights so not to many Judges are going to rule against them. They may rule you have to allow the Surveyor to reset the corner, and dont touch the corner after it is reset, but a fine would be rare from a Judge. State Board will give them out all day long, if they have proof they know who pulled the corner.
For a large fee you can hire a personal security guard to watch over the monument.
The Parol Evidence rule has about 80 or 90 exceptions, it is not nearly that simple.
It is often said the Statute of Frauds is a shield, not a sword. But the Statute of Frauds was not violated here, Title was transferred with a written Deed.?ÿ Location is usually said to not be within the Statute of Frauds.
The purpose of the Deed is to transfer title to a tract, wherever it is.?ÿ The description is often just an expediency to facilitate the transaction.?ÿ Other evidence can override it.
California has a case like that. French v. Brinkman, 60 Cal.2d 547 (1963), 387 Pac.2d 1
French sold Brinkman the vacant lot he owned next to his house by Lot/Block/Plat description.?ÿ French had built a block wall a few feet onto the vacant lot when he owned both lots.?ÿ After selling to Brinkman with the discussion that the wall was the intended new boundary, Brinkman had the vacant lot surveyed and discovered the problem.?ÿ Brinkman lived across the street and was familiar with the physical configuration of the lot he was purchasing.
This is one of the official headnotes:
Deeds ?? 175--Evidence--Parol Evidence.
In an action by the owners of one lot to quiet title to a strip of an adjoining lot on which they had built a cement block wall while they owned both lots, it was not error to admit parol evidence of the circumstances surrounding the conveyance of the adjoining lot to defendants where, under plaintiffs' theory that they intended to sell, and defendants intended to buy, only that portion of the lot up to the wall, there was a mutual mistake in the deed, which described the lot according to the official subdivision map with no reference to monuments on the ground, where, under plaintiffs' theory of implied boundary agreement, the parol evidence was admissible to show the agreement and its terms, and where, at the time of trial, defendants made no objection or motion to strike with respect to any of the parol evidence.
See Cal.Jur.2d, Deeds, ?? 122; Am.Jur., Deeds (1st ed ?? 445).
I *believe* the AOLS helped enforced a neighbour pulling the monuments along the boundary within the past decade (ie. a fine), but I cannot find the decision on their website.
I know, it's counter intuitive and against what most of us were taught beginning surveying. Deed is king, statute of frauds, latent ambiguity needed for parol evidence, all negotiations purchase contracts merge into the deed, etc.
On the other hand, interpretation of the deed has to take into account "circumstances at the time". Doesn't take much for disagreement on that part of it, which is latent ambiguity leading to testimony and other extrinsic evidence.
Some attorneys have argued contract for sale should not be used so they can't be used against you if they manage to get a better deal into the deed. Two sides to everything.
But that case you posted is interesting. Seems to have been a harbinger of things to come, where only metes&bounds can be considered a definite description not open to other interpretation. Part of the reason why, much to our frustration, attorneys started insisting on m&b for lot and block.
Perhaps malicious mischief would be a better description of what happened? The dollar amounts are the same for theft as for malicious mischief.
But, pulling a corner could easily result in $750 in loss.
https://www.avvo.com/legal-guides/ugc/malicious-mischief-Washington-State
https://www.avvo.com/legal-guides/ugc/Washington-State-theft
- Third-degree malicious mischief. The item is worth $ 750 or less.
- Second-degree malicious mischief. The item is worth more than $750 but less than $5,000.
- First-degree malicious mischief. The item is worth more than $5,000.
In Washington State, malicious mischief is a crime that happens when you cause physical damage to someone else's property. Malicious mischief can include erasing records, information, data, computer programs, or similar computer-related files that are recorded for use in computers. It can also include the impairment, interruption, or interference with the use of these records.
RCW 9A.48.010
Definitions.
RCW 9A.48.080
Malicious mischief in the second degree.
Construction activity is responsible for some monument destruction, largely out of ignorance or should I say stupidity. Two recent examples of record monuments circa 1800: One was a road layout stone with a drilled hole found on the bank near a recently installed utility pole. The other being two stones with drilled holes near a recent paving and curb project. When I told the City Engineer in the first example he suggested that recourse might be to sue the utility for the cost of re-establishing the monument. In?ÿ the second case I am certain the Highway superintendent didn't care, went on and on with excuses and claimed the entire project was within the right-of-way. Pathetic. Though they care about disturbing utilities enough to have the street painted colorfully, some do not have the same concern for survey markers.
The deed (and relevant monuments) need to reflect the intent of the landowner, which apparently in this case did not.
But yeah I agree that it's a dangerous road to go down not honoring a legal document.
