I have done my work locating the conflict. Further resolution of the 11' encroachment will be by agreement of the adjoiners or litigated by the attorneys. The two tracts are out of the same parent tract. The deeds are dated identically, they were both signed on October 19, 1981, notarized on November 30th, 1981 and recorded on December 8th, 1981. I don't think the resolution is going to be a junior/senior rights issue but not sure if these would be considered simultaneous conveyance.
The irons that the clients have held to be their property corners since 1996 appear to have been set in error, perhaps a bad backsight angle. I am investigating other factors to see if they can support a claim for adverse possession. The original surveyor is still alive and surveying in a nearby town and I need to find out what type of monument he was setting in 1981. If they are original mons set in error and the clients have held them as their corners since purchasing in 1996, I think they have a strong case. The nice shiny new plastic capped two bit rebars are correct for the bearing and distance, but the new fence has client greatly annoyed.
The nice shiny new plastic capped two bit rebars are correct for the bearing and distance, but the new fence has client greatly annoyed.
Were these two bit rebars set by a land surveyor or an expert measuring technician?
They are capped with the number of a currently practicing land surveyor. I understand why he did set the new mons considering the 2' and 11' bust in the location of the older mons. The old mons clearly appear to be set in error. However, setting new mons and flagged lathes 11' into someones yard is an easy way to raise hackles, it would certainly raise a red flag with me. Not sure what he advised his clients to do about it, but they apparently decided to build a new fence on the corrected line.
I am curious to find out what the original surveyor set. I have found both square rods and capped rods in the field work phase. Unfortunately the caps are severely weatherbeaten and illegible.
Just being a little sarcastic, but to be a real land surveyor, you have to put em where they are supposed to be, not where you find them!;-)
That's some quantum stuff there, Keith
I think the older monuments have some validity, especially if I can show them to be original.
> Just being a little sarcastic, but to be a real land surveyor, you have to put em where they are supposed to be, not where you find them!;-)
Well if you're the one putting them, how the heck would you find them until you put them? You sound like the scene from Scary Movie:
This morning, he woke up dead!
How in the heck do you wake up dead?
'Cause you're alive when you go to sleep.
You're telling me you can go to bed dead and wake up alive?
You can't go to bed dead! That would be redundant.
No, it wouldn't. 'Cause you can go to bed and not be dead, and you can die but not be in a bed.
But you are in a bed, man. That's how you wake up dead in the first place, foo'!
Damn! That's some quantum stuff right there, man!
I recall reading some case law where close in time recordings can be considered as being simultaneous in some instances. I don't believe it is solely a matter of being on a map if it can be shown that the creations were conceived at basically the same time by one entity.
Do those old monuments in any way reflect the intention of the deeds? Were they moved? Something not quit right here. Dependent on the attorneys how this will come out and they are the only ones to gain anything. Knocking on both doors of the adjoiners and including them both in a solution would have been a wise move by the surveyor who set the new monuments, but he might have a rule he is hanging his hat on and needs no input from the owners involved.
jud
and your opinion is?
Before I tell you what I really think, what is your opinion?
Keith
and your opinion is?
With respect to Texas law, I think I have clearly stated my opinion on the boundary already. It depends on what additional information about the monuments I can glean.
With regard to the junior/senior issue, I would have to assume they are simultaneous from the grantor to the two grantees in 1981. The only possible exception perhaps being that one was filed before the other on the same day, but that doesn't matter in Texas since the execution date of the deed rules. A deed does not even have to be filed in Texas to be valid.
and your opinion is?
Are you accepting the monuments where you found them?
The old ones, that is!
Recent case law from Texas
TH INVESTMENTS, INC. v. KIRBY INLAND MARINE
218 S.W.3d 173 (2007)
When finding the lines of a survey, "[t]he cardinal rule is that the footsteps of the original surveyor, if they can be ascertained, should be followed." Hurr v. Hildebrand,388 S.W.2d 284, 288 (Tex. Civ.App.-Houston 1965, writ ref'd n.r.e.); see also Humble Oil & Ref. Co. v. State, 162 S.W.2d 119, 132 (Tex.Civ.App.-Austin 1942, writ ref'd) ("The primary objective in locating a survey is to `follow the footsteps of the surveyor'; by which is meant to trace on the ground the lines as he actually ran them in making the survey."). If the actual lines and corners run by the original surveyor can be found, they are controlling, even if they are inconsistent with the calls and references in that surveyor's field notes. See Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149, 151 (1952) (stating that the footsteps of the original surveyor are controlling and prevail over calls for course and distance); Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317, 318 (1907), (stating that when the actual lines run by the surveyor can be found, they constitute the true boundary and cannot be made to yield to course and distance calls); Teal v. Powell Lumber Co.,262 S.W.2d 223, 226-27 (Tex.Civ.App.-Beaumont 1953, no writ) (stating that "if the footsteps of the original surveyor can be identified and followed, they will control the location of the line or boundary in question even though they may not be in harmony with the field note calls").
When one can locate on the ground with certainty and without inconsistency the objects or monuments designated by the original surveyor "as marking the lines he actually traced . . ., the survey must be laid out from those points, and extraneous evidence cannot be admitted to contradict the assertion of the surveyor that he actually went to the points he so designated." Humble Oil, 162 S.W.2d at 132-33. However, if the location of the actual footsteps of the surveyor cannot be established with reasonable certainty, "all the surrounding facts and circumstances should be considered in order to arrive at the purpose and intent of the surveyor who made the original survey." Hurr, 388 S.W.2d at 288.
Thus, although the original surveyor's marks and calls are generally controlling, when the surveyor's marks have disappeared over time, the lines and corners of the survey may be established using any evidence tending to show their location that is "the best evidence of which the case is susceptible." See, e.g., City of Carrollton v. Duncan,742 S.W.2d 70, 72, 76-77 (Tex.App.-Fort Worth 1987, no writ); Angelina County Lumber Co. v. McKnight,265 S.W.2d 246, 249-50 (Tex. Civ.App.-Waco 1954, writ ref'd n.r.e.); Taylor v. Higgins Oil & Fuel Co., 2 S.W.2d 288, 300 (Tex.Civ.App.-Beaumont 1928, writ dism'd w.o.j.).
Long-recognized and established boundaries will be disturbed only upon the most cogent and compelling evidence. See Strong v. Delhi-Taylor Oil Corp.,405 S.W.2d 351, 375-76 (Tex.Civ.App.-Corpus Christi 1966, writ ref'd n.r.e.) (citing Blaffer v. State, 31 S.W.2d 172, 191 (Tex.Civ. App.-Austin 1930, writ ref'd)); see also Kenedy Mem'l Found., 90 S.W.3d at 281 ("Stare decisis is never stronger than in protecting land titles, as to which there is great virtue in certainty.").
Bearings and course calls should not be used to establish the location of a survey line if there is other reliable evidence showing where it was actually run on the ground. See Wheeler, 252 S.W.2d at 151 (footsteps of original surveyor control over calls for course and distance); Thatcher, 105 S.W. at 318 (where actual lines run can be found, they constitute the true boundary and cannot be made to yield to course and distance calls).
Andy,
I would think that the same premise that the monuments are in error could hold for the deed. The deeds are in error...therefore the monuments are correct...Have the parties involved acted upon the monuments and are their improvements in relation to the monuments originally set?
Pablo
I agree, it doesn't appear to be Jr/Sr, it appears that Intent/Monuments/Footsteps, will be controlling factors, as well as language in the "original" conveyances and intent of said original conveyance, and not always "just calls" for bearings and distances, I beleive that any acreage calls should be considered too. Was it 5ac being split into two equal 2.5 acre tracts or is it in an official or unofficial subdivision of the entire parent tract.
Intent could be two equal tracts, conveyance may say two equal tract, but the footsteps were just off a little, as are the monuments.
Different lawyers and judges may see case law differently and how it applies to this situation.
I agree Greg,
Gee whiz, must be the first time that the measurements are not what they said they were?
No junior-senior problem here.
Keith
Essentially simultaneous.
The person who set the original monuments did so erroneously. The costs of resolving this problem should be their responsibility.
I would show both solutions. The original intent was to convey to the math. The erroneous solution produced monuments that were relied upon by one or both parties. Now it's up to others to resolve with your expert help.
> Just being a little sarcastic, but to be a real land surveyor, you have to put em where they are supposed to be, not where you find them!;-)
Hopefully, Keith, you are being a LOT of sarcastic.
Stephen
> Essentially simultaneous.
>
> The person who set the original monuments did so erroneously.
Original monuments have no error.
> I would show both solutions.
Thereby you would be showing them nothing. They didn't come to the surveyor for more confusion, they came for certainty.
> The original intent was to convey to the math.
While I agree that the intent was to cut off a piece of a certain size, and that all parties had a general and approximate idea of what that size looks like on the ground, none of them had an exact idea, and certainly not to the precision of modern surveying. Therefore, it's not controlling. Original monuments that were set near the time of the conveyance as marking the corners of the land described in the deed that were seen by and accepted by the parties become controlling. They don't fall in the exact conformance to the perfect geometry stated in the deed, and they never will. That fact is insignificant to the land conveyance process.
> The erroneous solution produced monuments that were relied upon by one or both parties. Now it's up to others to resolve with your expert help.
Yep. It's been good enough for them for decades. Ought to be good enough for us.
Stephen
> Yep. It's been good enough for them for decades. Ought to be good enough for us.
Exactly. There wasn't a problem here until a surveyor showed up and decided that the location of those monuments didn't meet his expectations of accuracy. Surveyor problem, not a landowner problem.
Yes, Stephen.........being a lot sarcastic!
But you read the same concept here every day by serious people!
Yep. It's been good enough for them for decades. Ought to be good enough for us.
I like that!!
That should be printed in big type and taped to the top of every surveyor's computer! It would be a real reminder on what he/she is supposed to be doing.
Keith