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Another wrinkle in the "Hold The Monuments?" debate
In a thread below I pose a question for consideration. It appears to have sparked a good bit of debate and that is what I hoped.
Several people have expressed the opinion that a non-licensed contractor setting markers (carefully or not) was in fact not the original surveyor,. Therefore, the monuments can not be considered original markers. That line of thinking indicates that the road itself is the marker and that should be used to determine the proper location.
The extra wrinkle to this problem is that the road was never built. I think I am on solid ground when I speculate that this land was acquired in anticipation of a future project that has not yet come to pass. In fact, this future project is now being planned but the plans all call for a considerable shifting away from the area in question. So, no pavement, not drainage structures, nothing more than the monuments (and btw, no fence) to indicate usage.
Does this extra bit of data change any minds?
As for the math itself, that is where things get very interesting. The DOT in this area tend to record plans that try to capture every detail of ever aspect of a project. As a result they have so much ink on the page and so little white space that the entire thing becomes almost indecipherable. There is some data on some spiral curves. But, as luck would have it, the font is so small and blurred you can’t make out the numbers.
The original granting documents are of little use in that they do nothing more than describe a theoretical centerline with undetermined offsets along stations that change multiple times from the time the deed is written until the project is constructed. I sometimes wonder if things are done this way on purpose. It certainly leaves things in such a state as the only thing one can do is to accept as fact pretty much anything they want to say.
Larry P
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30 Replies
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> In a thread below I pose a question for consideration. It appears to have sparked a good bit of debate and that is what I hoped.
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> Several people have expressed the opinion that a non-licensed contractor setting markers (carefully or not) was in fact not the original surveyor,. Therefore, the monuments can not be considered original markers. That line of thinking indicates that the road itself is the marker and that should be used to determine the proper location.
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> Larry PThey reveal their flaws with their own words. The R/W mon.s were not set by surveyors and therefor are not monument, but the road paving which was not paved by surveyors is a monument.
Stephen
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> Does this extra bit of data change any minds?
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> As for the math itself, that is where things get very interesting. The DOT in this area tend to record plans that try to capture every detail of ever aspect of a project. As a result they have so much ink on the page and so little white space that the entire thing becomes almost indecipherable. There is some data on some spiral curves. But, as luck would have it, the font is so small and blurred you can’t make out the numbers.
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> The original granting documents are of little use in that they do nothing more than describe a theoretical centerline with undetermined offsets along stations that change multiple times from the time the deed is written until the project is constructed. I sometimes wonder if things are done this way on purpose. It certainly leaves things in such a state as the only thing one can do is to accept as fact pretty much anything they want to say.
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> Larry PAs to the illegible plans, around here one could go to the state DOT office and view a set that is, if not original, at least legible.
As to the rest, you have given a cogent description of why monuments rule. Monuments rule because they are self-evident, and do not require a member of an obscure guild to come out and read the tea leaves and make a pronoucement. Monuments speak for themselves.
Stephen
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By the looks of your reading glasses you’ve been looking at those plans in some detail. In the other thread you stated that the monuments have been relied on. Here we’re told no pavement, no structures, no fences. How have the monuments been relied on? If the road is now going to be constructed a distance away why wouldn’t this unused land be offered to the parcels it was taken from using the same description by which it was purchased? If the ROW has been unused land based on the existing monuments since the monuments were placed the ROW has been established as monumented. So you have record and measured. I once bought into the idea that monuments set by the highway authority does not actually mark the ROW because I was taught it. That idea is silly. Those monuments were placed with the express intent of marking the ROW. Otherwise there would have been no need to set them. Every reasonable person who views those monuments beleives they represent the extent of the highway property. It is only the surveying community who views it another way. Alternatively if the highway land is being used as it was before the monuments were set it is as though the ROW monuments don’t exist.
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Larry
ciphering NCDOT plans and Right of Way deeds is an Art . Needless to to say they can be ambiguous. 90 percent i use what I find . I have found monuments that do not match the mathmatics or deeds at all and set new monuments but rare. I will set a new corner if ncdot got a property line intersect at the RW wrong , but hold it as the limits of the RW. -
This is a case where the powers that be need to punt the ball. First, they need to confirm what it is that they really want to do now. Then they need to come up with a set of documents as if there had been no prior road planning. Next they need to set up a townhall type of meeting with all adjoiners to the project. There they can explain the confusion that has arisen due to no fault of anyone today, only those from many years ago. They then need to explain how this is going to work. The DOT has now properly surveyed what is needed for the current project. They will relinquish all prior claims in exchange for new agreements. Any areas that are needed beyond the “apparent” boundaries will be compensated per normal. Any areas that fall between the “apparent” boundaries and the new required areas will be returned to the adjoiners. In both cases, the adjoiners will have current evidence of the boundaries adjoining the new project. As there are no fences, payment for new and adjusted fences in not a concern. Payments must be made however for relocation or destruction of improvements of various kinds that will impede the new project, even if they were improperly located due to sloppy work from the old project.
Work with, not against, the adjoiners. Make this a win-win type of deal. It was not the adjoiners who created the mess.
In addition, all adjoiners should be compenated a set minimum amount, which is significant, regardless of the area involved. 0.01 acre or 1.01 acre is the same aggravation to the aggrieved party.
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> I once bought into the idea that monuments set by the highway authority does not actually mark the ROW because I was taught it. That idea is silly. Those monuments were placed with the express intent of marking the ROW. Otherwise there would have been no need to set them. Every reasonable person who views those monuments beleives they represent the extent of the highway property. It is only the surveying community who views it another way. Alternatively if the highway land is being used as it was before the monuments were set it is as though the ROW monuments don’t exist.
Why were we taught incorrectly? My major problem with the opinion of many on this topic (and what I used to believe) is that just because a “state” entity is a landowner involved, for some mythical, fictional reason, a new set of “boundary laws” are to be applied – essentially what ever benefits the “state” the most is what you hold.
Stop and think about that for a minute, if we are creating our professional opinion of the location of THE BOUNDARY LINE, based on who one of the landowners happen to be; are we really an impartial, professional party, expressing an opinion based on the evidence and the law? Not hardly.
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> Stop and think about that for a minute, if we are creating our professional opinion of the location of THE BOUNDARY LINE, based on who one of the landowners happen to be; are we really an impartial, professional party, expressing an opinion based on the evidence and the law? Not hardly.
With every property that adjoins a public right of way; whether it be state, county or city, there is an implied enjoyment; allowing the owner to maintain, within the regulations or an interpretation thereof, the area between the right of way line and the allowable traveled way.
You call it government property and the boundary line, but it’s not, it’s public property and the right of way line; there is a difference. The only thing a right of way restricts; is the regulation of how close you are allowed to erect permanent structures.
Douglas Casement, PLS
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The original granting documents are of little use in that they do nothing more than describe a theoretical centerline with undetermined offsets along stations that change multiple times from the time the deed is written until the project is constructed. I sometimes wonder if things are done this way on purpose
LOL! Welcome to my world! It’s nice to see I’m not the only one that wades through this kind of thing, that other parts of the country also face these issues. Hopefully it wasn’t one of those metric projects. You didn’t say if the monument was 10′ from the calculated ROW (I assume it was) or 10 short or long on a tangent.
This is an Interstate project? Then I assume it was deeded in fee to the state-that’s how I usually see it done.
I spend a lot of time “cleaning” up these kinds of situations. The DOT should offer to vacate anything outside the monument if it was placed well inside the ROW. Or acquire it if the monument was placed outside the ROW. I know it can be argued that it conforms to the deed but cleaning it up and getting it on a filed survey is how they would do it here.
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Did They Erect A Fence? Is It Limited Access?
If it is not limited access, in PA it is only an easement, despite words in a document saying otherwise.
If they do not intend to follow the original plans the documents of taking may be moot.
If it was not originally limited access and the intent is to now make it limited access, additional compensation is due. In general a highway of access fronting land adds value to land. A highway without access deminishes the value of that land.
Paul in PA
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If a takings process was involved then those conrete blobs are not monuments in the sense you speak of. Monuments usually hold because it is presumed they are the consumation of a bargained for exchange and the parties took title with a view of them indicating the final and complete bargain. This follows contract law where a deed is the contract.
A taking is not a normal contract, even if one decides to settle before going through the whole court process. There is no bargaining over whether the land will be sold, only a requirement and usually a fight, over how much the government has to pay. Most courts recognize that the land is being taken either way. The public can not gain or lose and neither can the landowner on subsequently set monuments.
Those that have been taught this should not be so ready to make up their own rules. You’re not going to get very far fighting a constitutional law rule with a contract rule that doesn’t apply to the given situation.
It has nothing to do with construing ambiguity in favor of one or another; again it’s not a contract of equal bargaining power, or even one with state power getting the benefit of the doubt like the case of issuing a patent of land. It’s a condemnation under eminent domain theory. Different animal altogether.
Once the line is determined per the taking documents then it is subject to normal rules of a boundary between public and private for the given type of property and use. There can be no establishment of a different line by actions of the parties. There have been isolated successful adverse possessions of unopened streets. I’m not sure whether any have been successful on an unopened street that was acquired through a taking process, but I doubt it. There would have to be something showing the state transferred it to a proprietary interest property, such as an attempt to sell it.
If you can figure out the description well enough to know some of those concrete structures or pipes or whatever are out of position by 10 feet, then the description seems sufficient. The ones that are verified are still not monuments in the normal sense. They may better be described as memorials. If they’re not close enough that the point falls on them, then they are witnesses. The baseline stations are usually the best evidence of the intended location, but they are still not monuments either. Once the baseline is gone, the memorials become the best evidence in many cases to find the intended location. But ones that disagree with the taking documents must be disregarded.
My .02 take on the takings issue. Good luck with it.
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Very good analysis!
I hadn’t thought of this situation from that perspective, but I like it. And we arrive at the same conclusion.
I’ve got to say Duane that since you finished your law studies I have been impressed with the various analysis you have done here over the last couple of years.
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I agree. however, regardless of whether it was a taking or not, the monuments were never set before the parcels were created and sold. It just doesn’t happen that way around here. It leads me to the same conclusion though, the monuments here are not controlling. If the centerline or baseline can be reproduced, it is the best evidence of the parties and their intentions.
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Yes, which would lead to proration in private subdivision lines. But, unlike the highway taking scenario, some courts will hold a lot stakeout over a prorated line saying that the staking destroys the inference of intention of equal lot sizes per the map. So the facts of a situation can lead to the wrong conclusion if held up against the wrong rule of law.
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> If the centerline or baseline can be reproduced, it is the best evidence of the parties and their intentions.
And just how is the centerline or baseline going to be reproduced? From monuments?
Round and round and round we go – when is close enough close enough? That is all we want to know………….
Maybe the state DOTS should have caps on their R/W monuments, and/or signs by each one informing the landowners, public and surveyors that the “monument” is only decorative, means absolutely nothing to anyone, and was placed only to give some poor contractor a job. The property line can only be determined by exact and perfectly precise measurements from other remote decorative hunks of iron and concrete that may or may not have been placed by a careless contractor.
Just think of the money that can be saved if all the state DOT’s abandoned the meaningless and confusing practice of placing decorative hunks of iron and concrete with caps at or near the right of way line. For goodness sake, the least they should do is quit stamping “right of way” on them.
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Very good analysis!
Thanks Dave. While law school does not cover boundary law much, it does help one understand where some of it comes from.
My message is that if one is going to disregard what they have been taught, then go for it, the law may have changed (it does that constantly). But be careful because there may be more to it than meets the eye. One can’t be found negligent for following the rules as laid out in the accepted textbooks (surveyors are not required to be experts on all the most recent law as if they were attorneys). Once you strike out on your own with new and better theories though, you set yourself up for possible trouble. Better have done some serious homework on the issue.
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They’re good enough if they are reasonably correct, which is really a very similar result as if they were monuments.
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> They’re good enough if they are reasonably correct, which is really a very similar result as if they were monuments.
And the next predicable question, just where are the “good enough” or “reasonable correct” standards found?
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> … the road was never built…no pavement, no drainage structures, nothing more than the monuments (and btw, no fence) to indicate usage.
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> Does this extra bit of data change any minds?
I was going to ask what exactly was meant by “everyone in the area (including DOT) has accepted the current position”. To “Accept the position” the landowners have to do more than just fail to object. The land owners on at least one side of the line have to do something in reliance on them. Like build a road or a fence. Then the landowner on the other side can do something in the form of acquiescing, if nothing more. But just setting monuments in the wilderness isn’t going to impress a judge much.The other question on my mind is the exact wording of the deeds. If they are like Oregonian or Oklahoman deeds they call out a centerline on a map and stations/offsets to that centerline, but no specific monuments. In those circumstances I think that the monuments are uncalled for and the only dignity they have is what they acquire through the operation of estoppel.
So I believe that I would call them “off”.
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Very good analysis!
Once you strike out on your own with new and better theories though, you set yourself up for possible trouble.
Good thought. Perhaps the surveyors that developed the theory that ROW monuments or any other monument mean nothing if they don’t fit the math and those that practice the (dare I say it) bogus theory should think about that for a minute. Is the theory that monuments control a new and better theory? Or are the new and better theories those that have been developed because the monuments just don’t fit the record close enough.
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> If the centerline or baseline can be reproduced, it is the best evidence of the parties and their intentions.
I have been told on more than one occasion, by DOT, that the r/w monuments are there to reference the centerline, the centerline being the only monument that should be held. Given this, if a r/w monument was 10′ off from where the intended station and offset lies it is not correct and should not hold for anything. I have yet to see a taking that uses monuments in the description, only stationing and offsets.
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