Does estoppel apply here?

I'd probably ignore the corner. If there were other errors in this subdivision, I'd probably use it but if everything else fits within a few tenths like you say, then this corners had probably been moved. Of course there is no way to prove this, just a gut feeling I go by usually.

One thing I've learned over the years, there is no set amount of distance a corners is off before its good or bad. In some places 13 feet might be very good, in other places 0.13 feet might be bad. 13 feet just seems like a lot in a subdivision done in the 1980's.

I guess it all depends on whether it's the corner or not.

Three feet off in one direction and twelve feet off in another makes it look like they built the fence to a traverse point.

> I'd probably ignore the corner. If there were other errors in this subdivision, I'd probably use it but if everything else fits within a few tenths like you say, then this corners had probably been moved. Of course there is no way to prove this, just a gut feeling I go by usually.
>

Ignore it based on what - measurements - not only the measurements at the monument in question, but other monuments in the area?

Your second paragraph seems to contradicts your first - or does it?

> One thing I've learned over the years, there is no set amount of distance a corners is off before its good or bad. In some places 13 feet might be very good, in other places 0.13 feet might be bad. 13 feet just seems like a lot in a subdivision done in the 1980's.

You are correct in this fact: "there is no set amount of distance a corners is off before its good or bad." Measurements (good or bad) do NOT establish corners. Actions and intentions of the landowners do. If we are using measurements to determine whether to hold a monument or not - we are not doing our job.

Why do we continually either ignore or try to change the law?

The fundamental principle underlying all of the rules of construction of deeds, as well as all other contractual instruments, is that the courts must seek and give effect to the intention of the parties.

A resurvey is a reconstruction of land boundaries and monuments of the original survey

I could post quotes until the cows come home (sorry Holy), but I cannot find any where it says .13 ft or 13 ft. is "too much" to accept.

An original is an original, blunders aside. I have one from the 90's that's 30 feet off that I'm accepting

>What gave me pause was the reliance upon this corner for the construction of a fence to delineate a common boundary between neighbors, which has stood in place for a number of years, and peace prevailed. Along comes Williwaw.

Thank You Williwaw!! Pause is exactly what we are instructed to do. The presumption of correctness stands with the recovered monument. Evidence of reliance upon the monument by the adjoining owners (the existence of the fence) is precisely the type of evidence which establishes boundaries (all boundaries).

>The rebar is very consistent with what was set in 1980 but lacks any identifying tags or cap, again consistent with 1980 work.

This is what is called corroborative evidence in support of the presumption. The questions I would want answered by the landowners are more about the fence. How long has it been there? Who constructed it? Was it by the actions of one or were both involved? This is the type of evidence that will prove the boundary location.

Remember a few of the basic differences between the boundary law doctrines: "Estoppel" establishes a boundary by the actions or representations made by one and reliance or acquiescence by the other with substantial costs incurred. "Expressed Agreement" (oral or written) will require direct evidence of an agreement between the adjoining owners intended to resolve some uncertainty (in their minds) or dispute resulting in an assertive effort to physically establish the boundary. "Implied Agreement" will require the assertive action to establish the boundary by often unknown persons followed by a long period of mutual recognition and acquiescence (differs between jurisdictions). "Practical Location" establishes the boundary after the evidence of the original survey has faded and the physical evidence remaining from the landowners' efforts to establish their boundaries is considered the "best available evidence" of the boundary locations.

>[A]re you really sure that the property owner didn't find that bar lying in the ditch and push it in at the end of his fence? If it's just one rogue bar in an otherwise well monumented plat it may not be in it's original position. Sometimes an iron rod is just an iron rod.

These might sound like good questions, but they are based purely upon speculation with no evidence. "Rogue bars" can be relied upon by landowners to establish their boundaries. The law allows for that type of mistake to happen. In fact, the provisions of boundary law are designed specifically to account for just such actions. It has nothing to do with the "rogue bar." The determination of the boundary is entirely dependent upon the actions of the landowners after the bar was placed.

>I would not have a problem with setting my capped corner where it belongs as long as it is not into a utility line.

This is precisely the thinking that leads to the pin-cushion corners which have become the bane of our profession and the distrust we garner from the public. The attitude that "if it's not in the 'right' place, it's my job to put it there" completely subjugates the role of the retracing surveyor. The duty of the retracement surveyor is to determine the boundary location based upon evidence that is present, not to make up excuses to reject evidence.

>An overlap may have been created. The fence owner is required to defend his title if he in fact has any.

Overlaps are a legal impossibility. What we have is a conflict in evidence as to the location of the boundary. We've got numbers on a piece of paper that conflict with the monument and fence location. No other profession has the duty or responsibility to sort out that conflict through the proper application of boundary law which is designed to resolve conflicting evidence. The only reason the landowner would ever have to "defend his title" is because a surveyor has flippantly attempted to force his opinion as to the boundary location contrary to the laws which govern our profession.

>An overlooked item is that if a claim of adverse possession makes a parcel non-conforming the claimer or fence installer may be liable for Tortious Interference and or Slander of Title.

"Adverse possession" is a title doctrine designed to resolve questions of ownership of entire parcels of land. I don't see any reason for considering "tortious interference" as that involves a contractual relationship between the owners, or "slander of title" which involves knowingly publishing a false claim against the title of another.

>For it to be a plat monument you would have to prove somehow that it's mistaken location was it's original location, like by ties to adjacent monuments, or references, or improvements. ... Without further proof that the rod is original and undisturbed it's just an iron rod that anybody can buy at Home Depot to tie up their goat.

Measurements won't prove the monument is not the "plat monument." A blundered monument will fail all the measurement tests, but still be the original, undisturbed monument. Assuming you could find evidence that the monument was disturbed still doesn't prove where the boundary is or isn't. Investigating monuments and conjecture about their origin won't ultimately determine boundaries. The investigation just garners evidence about a monument. Monuments don't prove boundaries. Actions of landowners in reliance upon the monuments proves boundaries.

The questions that must be answered concern what has happened after the fence was constructed. It's pretty obvious "why" the fence is where it is. The pertinent questions that remain are "who" constructed the fence and "when." That's the evidence you need to determine "where" the boundary is.

>As land surveyors we have no authority to adjudicate legal questions like estoppel and adverse posession -- I would monument whatever I believed the boundary would be without the "new corner" in question and then put a note about it on my plan, saying it may indicate certain rights, and that an attorney should be consulted if this is of concern.

No fault intended upon CeeGee or the majority of surveyors who have been handed this diatribe and taught to believe it, I used to believe the same thing too. But... yes, we have no authority to "adjudicate legal questions." The "legal question" is, "What does boundary law say in your jurisdiction?" That in now way means that we are not expected by the courts to properly apply the boundary law principles that have been given to us for the very purpose of determining boundary questions. The courts have already adjudicated the "legal question" and determined the governing laws. It's our duty to obey the law and apply it.

Next time you get pulled over for speeding and the officer asks you what the speed limit is, just respond "I don't have the authority to adjudicate legal questions." "How do I know if the ordinance was correctly adopted or the limit properly posted?" That's a legal question (one which has likely been well adjudicated).

Boundary law principles are designed to resolve the conflicting evidence that surveyors recover on a daily basis. These principles are designed for the purpose of determining the location of the boundary between two landowners. They were designed with the purpose of "preventing litigation and strife" over boundaries and "promoting stability and uniformity" in boundary locations. They only function properly when they are properly applied in EVERY boundary determination by the surveyor.

In fact, we are the only profession that can do it. Attorneys can't do it. Judges can't do it. When is the last time you ever heard of someone calling a judge to determine their boundary? Never. They're not licensed to determine boundaries. Judges are elected to resolve disputes that arise between neighbors that they cannot resolve by agreement and require the help of an arbiter. The only authority the judge has is the authority to arbitrate the dispute. His hands are bound by the law when he determines the boundary location in the same way our hands are bound. He follows the same rules of law that we follow to answer the question, "Where is our boundary?"

Boundary law is the go-to resource designed for the very purpose of determining the location of the boundary. It's the only resource. Our duty is to apply the appropriate legal principle to the fact set as proven by the evidence for the very purpose of determining the location of the established boundary.

The "cut-and-run" attitude that we were trained to take, leaves the landowners with no recourse other than "call your layer" and "sue your neighbor" so a judge can resolve "your problem" through litigation. I think our profession is greater than that. We are the ones who have the skills, knowledge, experience and license to determine boundary locations. If we don't apply the appropriate legal principles to determine them, the purpose for which they were designed fails. Our profession fails.

JBS

About 20 years ago we had a large, out-of-state firm doing a massive amount of surveying in a hurry. Sometimes bars were set, then a second bar was set at another point they deemed to be the correct location, but the first bar did not get pulled. Also, some dimwits with that firm went out setting "control point bars" in advance of the actual survey. In one case, the control point bar ended up being about three feet from the final bar set to monument a quarter corner. It was an entertaining call to their company headquarters when I found both bars with identically stamped caps prior to them filing the relevant section corner reports with the State and County.

Sometimes a bar is just a bar.

In Willawaw's case, landowner behavior comes into play as to property rights. Maybe the original surveyor made a blunder and maybe he didn't. Maybe someone moved his bar to a more convenient location. Maybe this is a bar originally intended for a different purpose and the lot corner monument has been torn out by some action in the meantime. Maybe the landowner's action bear weight and maybe they don't.

I think the point I was trying to make, although my words probably did a poor job of it, is in this case, 13 feet is too much. How do we know if its an original corners or not? Do you have a camera pointed at it for 35 years? There is no way to know.

Does if fit a pattern? If Willwaw said there were a lot of errors in the subdivision, then you might use it but he said everything checked within a few tenths of a foot, what he expected. I'm not sure there is a right or wrong answer in this case, I can see why a person would use the corner but in my opinion it doesn't fit the pattern as described.

A short story, I lived in a subdivision that was developed by a plumber. Guess who supplied all the pipes for this subdivision? He did. I once saw him in my backyard setting a pipe for the lot behind me. He was cloth taping it in and eyeballing line. The truth is, he probably got it close enough. In another case, I surveyed in a block one of the land owners set all the corners in the block for everyone, he admitted it to me. They were all badly out of position. In either of these cases, should the corners be used? What if someone builds a fence to one of them? The answer as always is it depends.

>
> Greater weight is attached to authentic evidence relating to the original position of an official corner monument than is attached to the technical evidence relating to bearings and lengths of lines. When a monument itself is obliterated, the accessories furnish the highest evidence of the location of the original monument and therefore such accessories are of prime importance in relocating the corner position.
>

Maybe I'm wrong, but its seems to me the issue isn't whether or not 13' is "to big a distance" to accept, but is that the "authentic evidence" may not be strong enough to conclude that the corner isn't where the record "math" claims it to be. Its very likely that the pin was placed by some one other than the original surveyor.

Maybe the landowner's action bear weight and maybe they don't.
'Tis the question. Do their actions bear weight.
I know, I know HC, it "depends".
'Depends' are also adult diapers, the irony of which is not completely lost on me. :-/

>For it to be a plat monument you would have to prove somehow that it's mistaken location was it's original location, ...
>
> Measurements won't prove the monument is not the "plat monument." A blundered monument will fail all the measurement tests, but still be the original, undisturbed monument. ...
At trial, the burden of proof would be on the adverse claimant. The adverse claimant being the person claiming to a position not in agreement with the record dimensions. If you want to hold a monument which is not in it's record position as a plat monument you are going to have to prove by clear and convincing evidence that it is in it's original and undisturbed location. Simply finding a bar that has been there for a long time is not such proof. Old surveyors notes, record ties to the iron from a time much closer to the platting, testimony of witnesses, etc., would be such proof. Proving that the fence was built up to the iron at or shortly after the time of platting would be such proof. I doubt that fence is 35 years old. Maybe in Utah such a thing would last that long and still look that fresh. Not in Alaska.

That doesn't mean that the found bar doesn't control the line. It just means it may not by virtue of it being a plat monument. Not without further proof.

This boundary could be established by any of the many variations of unwritten agreement doctrine but you are going to need more than I see in the photo to prove that. At the least the adjoining owners are going to have to be interviewed. Who knows, they may agree that the fence is just decorative and approximate and that the iron rod is a goat stake.

Bingo. Correct is an identity, not a distance...

> Maybe I'm wrong, but its seems to me the issue isn't whether or not 13' is "to big a distance" to accept, but is that the "authentic evidence" may not be strong enough to conclude that the corner isn't where the record "math" claims it to be. Its very likely that the pin was placed by some one other than the original surveyor.

The problem I see is understanding where the burden of proof lies. The relied upon monument is presumed to be the original - you need to prove the original was placed where the "math" says it was and then subsequently intentionally moved. The "math" doesn't carry the presumption of "correctness" (I know, that is a big blow to our measuring ego's), the current relied on position is presumed to be correct.

Even if you can prove the current monument isn't at the original location, subsequent long term reliance is still what controls the location of the property line/corner. Re-read JB's post. It isn't the math or plat that establishes a boundary or corner, and it certainly isn't its mathematical relationship to other corners that control. The "math" isn't presumed to be correct, the current position is presumed to be correct.

Please say that one more time. REAL LOUD.

I am going back to a neighborhood where one of my few unresolved conflicts remains. The other Surveyor proportioned in new corners for a 114 year old Lot. The found pins didn't match the exterior Section monuments by about 1.5 feet. When questioned he rambled on about not having the authority to ignore the Section line (1/4 mile away). He didn't care that the monuments and fences had a century of pedigree. He set pins and filed a map. Didn't say squat to the 5 owners about the pin farm he created.

Yes we DO have the authority and DUTY to apply well established law. If not we need to give math exams instead of Professional Licensure exams...

My conclusion (and I will be corrected here if I'm wrong) is that the corner (?) now controls the lot line between the two lots, but not the ROW or the utility easement.

I am a little confused as to why you would say this. I am assuming the ROW is the road and the easement you are referring is down the lot line in question.
Was the easement established by the subdivision plat or under a different description independent of the lot bndries? Was the ROW established as part of the subdivision or does it have some seperate senior rights?

If not and the corner is the lot corner than it is also the ROW bndry and the easement control, how could it be different and under what boundary law principle could it be used as an on-line witness instead of the real corner.
I don’t see how the distance off the ROW line should matter. – In other words if the corner is .2’ off ROW line than does it represent the ROW line or do you set another corner .2’ away from found corner ? “pin cushion”.

I used to be the surveyor that invariably gave the ROW its due width and I always had this nagging feeling about the golden rule “that an original corner is the corner no matter what”.

This all ended when a local surveyor ran across a very similar situation as the one you describe and he also decided the found corner being 20+ feet off the lot line and 2 feet off ROW line was a blunder and he set a corner more representing plat calls. The case went to court and he lost badly because of historical photos showing blunder lot line being used for some 20 years. Besides the fact that two utilities had ditched right down the ROW line and most likely disturbed the original corner he could not prove it had been disturbed. The court decided that the corner had been used for some time and unless proven otherwise was the original corner. To make matters worse he was required by the licensing board to take some classes in boundary law to retain his license. The thing that struck me the most was that I had done extensive work in the area both before and after his survey and due to the utility work, other corners in the subdivision, and some good topo calls in original notes I agreed totally with him for not accepting corner.
The judge saw it totally differently and when the board chastised him I was amazed.

I think that by 1980 all juristictions in Alaska required something more easily identified then an unmarked "iron bar". So I would assume there is no question that the original monument has been found. If the monument has not been disturbed it should act like a witness corners, defining the line between the lots but not the ROW.

In my area it is very common that the caps come of rebar, to not except because the cap is no longer present is a big stretch as far as I’m concerned.

Did you look for any evidence; were the corner was supposed to be?

If the pipe was pulled, there might still be a hole....

"This is precisely the thinking that leads to the pin-cushion corners which have become the bane of our profession and the distrust we garner from the public. The attitude that "if it's not in the 'right' place, it's my job to put it there" completely subjugates the role of the retracing surveyor. The duty of the retracement surveyor is to determine the boundary location based upon evidence that is present, not to make up excuses to reject evidence."

Thank you JB! I would pay money if my competitors understood this!

Extensively. ROW and adjacent utility easement was dedicated by the plat. The perpondernce of evidence indicated I have the ROW correct and it would be a stretch to imagine a radical jog was some how intended. By building a fence to the rogue corner and letting it stand for years, in my mind the two lot owners sanctified it's location as their common boundary, whether original or not. My math does not trump their long standing acceptance of it's location. We're the corner to disappear, I would put it back where I believe it was originally intended to go.

> Yes we DO have the authority and DUTY to apply well established law.
I agree with that, but along with that power comes great responsibility to fully understand the law.

Little footnote. In the photo I originally attached, in the left hand side of the picture is an old telephone pedestal. The pedestal was clearly placed where it was based on the original engineer determining the limits of the utility easement without the benefit of a survey, by measuring back 15' from the 'errant' corner. A little digging showed that this pedestal was placed in 1985, some 30 years ago.

> > Yes we DO have the authority and DUTY to apply well established law.
> I agree with that, but along with that power comes great responsibility to fully understand the law.

I can wholeheartedly agree with that, Norman.

JBS