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Client Pushing Me to Go Against Neighbor’s Survey
So I recently did a property survey in a small poor old town here in west central PA. Our client was fighting with his northern adjoiner and wanted a survey to put a fence up. The client’s parcel was positioned between two previous recent surveys; piece of cake, right? Our clients deed description (with the adjoining deeds prior to their surveys reading similar) reads like this: Beginning at a point along the east side of the road, thence along said road north 61 feet to a point; thence east along lands of XXXXXXX 236 1/4 feet to a point; thence south along original tract 60 feet; thence west along lands of XXXXXXX 243 3/4 feet to a point along the east side of the road, the P.O.B. (By the way, the road is at bearing of approx. N 18 degrees E and there is a creek at the rear running at a bearing of approx. S 17 degrees E. The northern adjoiner follows the creek at the rear, but my client’s parcel turns away from the creek slightly.) The deed to the north (prior to survey) says “______erly direction” rather than just “east” or “south”, etc. and adds “more or less” to the distance calls.
The survey to the south was performed by a very reputable surveyor in 1999. He’s now retired and out of the area (we actually own his old files now). His pins work very well with his plat and I agree with his resolution for that southern parcel. The survey to the north was done in 2004 by a firm that I am not familiar with (recognize the name, but no idea of how reputable they are/were). I believe they are a large Engineering firm and this survey was likely performed out of a local satellite office which no longer exists. I can tell that they hinged their survey on a survey done in 1991 for their northern adjoiner (those calls on that northern line are identical and they held the 1991 pins, which I found and located as well). That 1991 survey was done by an older surveyor that I have retraced a few times in the last couple of months and have found to be rather sloppy (plats don’t match well to pins found in the field, plats of surveys he did in say 1984 don’t match plats done adjacent for the same property owner just a few years later, deed plotting his plats results in significant misclosure, etc.). There is no recorded plat for the 2004 survey, so I can only recreate it from the deed description which says it’s based on that survey. The deed plot of that 2004 survey does not close by a few feet (C’mon! Really??? 2004 and you can’t create a description that closes decently???). I suspect it doesn’t close because they regurgitated the same bearings and distances from the 1991 survey along their common northern lines (there is a jog in that line, so multiple calls). Anyway, that 2004 survey description fits pretty well with the pins found (distances hit great, deed angles not great, but close). I don’t really have any issue with the frontage along the road for my client nor the northern adjoiner. My issue is at the rear (a term I’ve coined: “rearage”). So that 2004 survey took a parcel with a deed description for the rear line of “thence in a southerly direction 60 feet more or less” and created a rear line with a bearing of S 17 degrees E 70.10 feet and set a new pin. So on the diagonal along the creek they gave the parcel 70.10 feet, but if you measure perpendicular from the northern line to the southern line you get nearly 60 feet exactly.
Fieldwork was simple with plenty of monumentation found from both surveys as well as some more for good measure. However, my client’s parcel being stuck between the two surveys is only getting 54.46 feet instead of the deed call of 60 feet. I reviewed this with the client that day during fieldwork, told him there was a possibility that the 2004 survey to the north was in error, that it would take a significant amount of extra work to try to prove or disprove that survey (perhaps a few thousand dollars in deed research and fieldwork) and that we could end up with the same result as we had now, and finally convinced him to accept both surveys and let that potential 5 1/2 feet go (it’s a sliver of 5 1/2 feet at the rear, 0 at the front, for a length of 259 feet). Even with that resolution for his boundary, the northern adjoiner has some landscaping across the property line and a shed that is within hundredths of the line.
The client was okay with this resolution then, but has since called me back to pursue this 5 1/2 feet “no matter what it costs”. His neighbor is throwing a fit about the fence (under construction) and has complained to the local township to force my client to remove it which has lit a fire under my client to get back at him.
So currently I had my client authorize spending another $500 just to do some additional deed research and look into whether or not I could justify extending his rear line to 60.00 feet and thereby claim that his neighbor’s 2004 survey was in error (and also causing their shed, additional landscaping, and some brick patio to be across the property line). Note that the 2004 survey was done for a prior owner (actually two owners back) and not this current owner. Our client also came along well after the 2004 survey. So neither owner was there during the 2004 survey. I am under the impression that the location of that common rear pin set by the 2004 survey between these owners was unknown until we uncovered it during our survey. So it’s not like they had been living there awhile accepting that pin’s location. I’ve begun my additional deed research and it’s messy with much of the same vague calls, deeds with no references of prior deeds, smaller portions of property being deeded off with no survey, etc. I don’t think this is a cut and dry case of “that survey is wrong, here is where they should have set that corner”. It’s basically going to come down to one lot’s deed call of “southerly direction 60 feet more or less” versus another lot’s deed call of “south 60 feet” and how a judge might resolve the line (which I’d expect to be a “cut it down the middle” ruling).
So do you have any advice for me in this situation? Set the new corrected corner at 60.00 feet and plunge the owners into battle with each other? Tell my client sorry, but I don’t think you have a strong enough case for me to risk my seal on this? Does the fact that those pins were set in 2004 without anyone raising an issue mean anything? Am I bound to them? Part of me wants to move forward (assuming once I plot up my newly pulled additional deeds that I feel there is some case for it) because I like “discovering the long lost truth” on boundary surveys and getting the lines where they really should be, but I don’t want to be foolish here ending up in court looking like a terrible surveyor. Advice?
Thanks,
-Garry -
15 Replies
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“It’s basically going to come down to one lot’s deed call of “southerly direction 60 feet more or less” versus another lot’s deed call of “south 60 feet”
Unless it was a simultaneous conveyance it doesn’t work like that. It will either come down to an application of unwritten rights, or junior senior rights.
If not unwritten rights the earliest deed from the common grantor gets what is in their deed, and the adjioner gets what us left. I suppose the latter deed could be used to interpret the intention of the earlier deed if it is ambiguous and they were both by the same person.
I know economic considerations come in to play when deciding how complete of a job to do, but ending a survey with a solution based on the owner saying they were all right with it is an incomplete job. In most jurisdictions surveyors dont have the authority to move a line, just because the owners are O.K. with it. We need to find the true location, or work with our clients to establish the accepted boundary by whatever means are locally appropriate.
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It is either a subdivision, city lot and block or was conveyed out as individual lots on different dates.
Each has its unique way to reconstruct when monuments are missing and how individual rights to ownership were created.
When you let the client tell you where to put monuments you might as well give him your monuments and let him set them and then you show up and locate them and sign off to the stupid idea. This will certainly go towards you losing the right to survey for others.
First and most importantly, make your own decisions and not let the client dictate your course of action in making those decisions.
0.02
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I cannot agree that it’s ‘either or’. You have two deeds that may disagree if read in a vacuum. There is a monument in the ground that was in place during several transfers. Many times the courts have said it doesnt matter if the owners knew about it. The question may be if they should have known. Does your state require actual or constructive notice? Was the survey recorded or provided at closing?
This isn’t about how you feel or what you think is right. It’s about understanding and following the law. If the client wants a hired gun, he shouldn’t be talking to a survryor.
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Neither these two parcels in question nor the next couple parcels each direction are from a plan of lots. This area was just deeded off from the original mother tract (best I can tell at this point that they all came from the same tract/same owner since I’m not finished working through all the old deeds I’ve pulled yet). Some years later that mother tract owner sold off to another owner who then created two plans of lots for the town. Both of those plans go around this area of parcels showing them as existing with the last names of the owners at the time (1903).
That 1903 map does tip me off to the fact that my clients parcel and the northern adjoiner were both parts of slightly larger parcels, but that the line between these parcels is an “original line” (i.e. line between two parcels sold off from the original mother owner). So yes, I can see looking into Junior/Senior rights based on recording date (PA is a race-notice state, a constructive notice state, and does not observe simultaneous conveyances with the creation of a plan of lots).
I have a question regarding Junior/Senior rights. So let’s say the northern parcel with it’s more vague description of “southerly direction 60 feet more or less” was the senior. Does that mean that parcel gets 60.00 feet and my client would get leftovers? But yet that assumes that northern parcels other rear corner to the North would have to be in an accurate location to measure from too. How do you deal with “more or less” in a JR/SR rights issue?
I also forgot to mention that there is no occupation evidence down the side lines – no fences, no shrubs, nothing. During the course of my survey, no corners that seemed “original” were found, just rebars from the mid-70’s forward. The 2004 survey was not found to be recorded, just a deed description “written in accordance with survey by . . .”
I am by no means letting my client tell me where to place pins. If my research shows the line should be only 0.5 feet further, than that’s all I’ll give him and all I’ll stand up against the 2004 survey for. (You all can’t tell me you don’t yield to adjacent surveys and retrace their work to be sure they were right during the course of a doing an $800 survey.)
-Garry
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If the 2004 survey is a reasonable interpretation I think it will stand, even if had you done it first you might have put the line somewhere else. I think you would need clear and convincing evidence that the line was originally staked somewhere else, and I don’t see that in what you posted. In addition you now would need to disagree with your own previous opinion, which is not going to look good. But yeah, 800 survey I still try to make sure I would not have to change my opinion sometime in the future. Having said that, I probably would have been able to foresee the work needed and gave a proposal 2-3 times higher (and probably not got the job). But I know many firms just throw out the same price for any lot survey; the good ones figure they win some and lose some on time spent, the others leave a mess and don’t really care. The way you’re trying to do it may seem reasonable but I’ve never had any luck explaining my opinion can change based on further evidence needed that wasn’t provided for in the contract. Nobody understands that, they only see you changing your mind for some other less than noble reason.
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You would be hard pressed to hold a more or less distance as exact without some supporting evidence, even if the language made it senior. More or less distances almost always have some other controlling element, though it is common for the deed writer to assume everyone knows the reason and fail to write it.
It sounds like you are developing the evidence. I’d be interested in how it pans out.
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Concerning doing two surveys on the same parcel years apart, I’ve had to call myself wrong a few times. Worst one was where I did an ROS on a large polygonal parcel in a high value suburban context, original record rear (northern) lot corners not found (3,000′ of boundary), so I proportioned in from more distant monuments & adjoiner’s monumentation. Pretty cut and dried. Ten years later I’m working for a different company surveying the same parcel for a bridge widening on the south side, & lo and behold my PC found every original rear lot line monument, no doubt. My monuments were within 2′-15′ of the originals.
Here’s my mistake: The northern lot lines were all in the most godforsaken bamboo stand I’ve ever seen. It would take days of bushwhacking to accomplish even a rudimentary monument recovery search. It was the northern edge of an ephemeral 4 acre drainage retention pond so I figured high water had eroded them out. I was an office LS running three crews, and Party Chief “Mr. X” (who later was jailed for a cocaine distribution side job he operated) reported “searched, found nothing” for all the northern monuments. He accomplished that in one morning according to the timesheets. That was the red flag.
Turns out he never even went up there to do a search, just glassed it from afar and decided to lie, I guess because my first ROS actually concerned a small take on the other side of the parcel. He was the darling Party Chief at the company, always under budget and on time. I had other imbroglios with him and he made it clear I was to stay out of his face or there’d be trouble, so when he reported “searched, not found” I bought it.
For ROS #2 working for a different company the PC easily located my monuments, given that there was a slightly overgrown 2′ wide straight chopped line directly to them, sort of a sideshot/set monument procedure. He coincidently saw the one original monument at the 5′ off location, and proceeded to spend the next two days laboriously searching the original monument search locations, where he stated there was no evidence of anybody even trying to get in there and do a search, and found them all, and they were very close B/D to the record, less than 0.5′. Way over budget, mud on all our faces, but as the LS in charge I told corporate to suck it up, praised my PC and filed an ROS where I called all my northern monuments I set as found, not accepted, and held the original monuments as found.
I guess that makes look like an idiot concerning my courthouse record history. But yep, salient to this topic is I’ll call my original record survey wrong if subsequent surveys prove I made a mistake. So if your client bought a $2,000 boundary/fence building survey from you and he wants to pay you $8,000+ more to really dig deep (spite survey), I’ll diligently do so and may prove myself wrong. It’s ugly when further research validates my survey (which is 95% of the time); get the $8,000 retainer *before* embarking on spite surveys.
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I think Duane is giving good advice here, I would listen to Duane on this.
Your client being angry with his neighbor is not a good basis to contradict your earlier survey. I think the resolution holding the 2004 Survey was the best answer given the circumstances.
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“I reviewed this with the client that day during fieldwork, told him there was a possibility that the 2004 survey to the north was in error, that it would take a significant amount of extra work to try to prove or disprove that survey (perhaps a few thousand dollars in deed research and fieldwork) and that we could end up with the same result as we had now, and finally convinced him to accept both surveys and let that potential 5 1/2 feet go (it’s a sliver of 5 1/2 feet at the rear, 0 at the front, for a length of 259 feet). Even with that resolution for his boundary, the northern adjoiner has some landscaping across the property line and a shed that is within hundredths of the line.”
Guess what the client heard you say? “Yep, your neighbor is stealing a few feet of your land.” Sure he was OK with it until the fireworks started because the few thousand dollars was a bunch of money to gain a few feet (I’m assuming he started building the fence across the landscaping that was “encroaching” which tee’d off the neighbor). Now the client heard you say, from your previous conversation with him, that he can now punish his neighbor and get back the few feet that was stole for a mere few thousand dollars……………..
This is what sometimes happens when we express our opinion to a client or a neighbor BEFORE we have fully uncovered and properly evaluated ALL the evidence.
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Thank you all for your replies. I do think Duane has provided some good wisdom – thank you Duane! And thanks Mike for your story. I’m going to continue with plotting and fitting these older deeds I now have (haven’t got back to it yet) and see how things look. Unless the 2004 survey looks to be in gross error, I’m just going to tell the client I don’t believe he has a case to “gain back his full 60 foot wide lot”.
(Off original topic:)
Funny thing is, I got another call for a survey estimate last week where another survey firm surveyed her neighbor’s property and they had just left the site after placing a row of “center of alley” stakes in “her driveway and toward the center of her garage” and she needs a survey which she can pass to her attorney to “do something about it”. (Red lights go off in my head.) I ask who did the survey, take her info., hang up. We start pulling deeds online – deeds call for a plan of lots for the town, but none has a reference and it won’t come up online. Deeds also call for alleys (which are unopened) all over the place with no widths called out (trace a bunch back – same thing). So we go to the courthouse – no plan found. I call said surveyor (he was directly involved in the fieldwork) and let him know we’ve been asked to do this adjacent survey due to his stakes. I ask about the plan of lots and alley widths – no plan ever discovered, but one particular deed had calls for widths which they used to make assumptions on the rest of the alley widths. He proceeds to tell me how they went about their fieldwork, went completely around every lot, then staked out every lot’s corner (paint dot) to see how their alignment fit with all the surrounding lots before setting their client’s pins. Sounds like they did their due diligence to me which means I’m 98% sure I’m going to match right up with their work. So I worked up an estimate to basically do everything they did, retracing their efforts and showing their work looks good – $3,000. I think they’ll go away when I give them that number, but that’s okay with me. One headache job is enough right now! If they do accept, well it’s easy money and pretty easy work and very unlikely to end up with two disagreeing surveys. .
-Garry
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Be careful; every time I think it is “easy money” it turns out to be one of the worst locations in a long time!
Ken
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Tell the neighbors to buy a few beers and come up with a plan instead of blowing thousands of dollars on surveys and lawyers.
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Exactly right.
I’ve heard Land Surveyors say thousands of times “Only a Court can do that or this or that other thing.” WRONG. Courts only get involved if there is a dispute. If there is no dispute then there is no requirement to go to Court. If a solution fits within a settled legal principle (such as an established boundary) and the neighbor does not object then there is no need for a Judge to rule. If the neighbors can agree on a compromise then it would be best to reduce the agreement to writing but not required in matters of location.
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One Lawyer giving a talk to other Lawyers (we got invited) said, first tell your clients to go next door with a bottle of wine and make your neighbors into your friends, then resolve your uncertainty about the boundary by compromise of some sort and you know what? The judge will probably split the baby anyway.
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I’m finally able to push aside other work (and the phone quit ringing) to spend some decent time on this survey (the original topic here). I’m branching out and finding more and more surveys done by “the surveyor to the south of our client” – the good reputable one. I’m not done going through things yet, but what I am seeing seems to suggest a 1976 survey two parcels south of us (by what used to be a fairly large reputable firm back in the 70’s to 80’s) seems to have established wrongly what I think should be the “original dividing tract line” between my clients parcel and the one to the north. This surveyed parcel runs back off the road the depth of our immediate southern adjoiner and then turns northward up behind that parcel and my clients for 100.00 feet and then turns eastward away from us. The adjoiner to the south and my clients parcel are both supposed to be 60 feet wide, so if this “line turning eastward away from us” is the “original tract line”, then there’s a 20 foot issue right there. We have the pins from that 1976 survey located (100.00′ line) and they work well with themselves.
A parcel to the East (which has this 1976 survey as it’s western adjoiner) had a survey done by the same “Mr. Reputable surveyor” that surveyed the parcel immediately south of my client. (I think I said before – we own his files.) His plat shows his line coming up along that adjacent 1976 survey to their found pin, but then he continues on the same bearing another 33.73 feet to the CL of the creek. So my suspicion is that “Mr. Reputable surveyor” discovered some discrepancy here, but it was only an adjoiner and wasn’t on him to try to correct anything. In addition to the question of where is my clients “actual” northern line, there is also now a “gap” of property left behind between all these surveys at the rear of my clients parcel (it’s low lying wet area and the creek back there, so I can see nobody ever making a big deal of it or claiming it).
So, if I just quickly hypothesize that this survey further east correctly established the “original tract line” and draw a line from his NW corner (in the CL creek) to my clients NW corner pin (which no one is contesting and is the best thing I have along the road), it ends up nearly splitting the difference in location between my client’s deeded 60 foot wide lot and where the 2004 survey put the line! My initial survey gave the client “rearage” of 54.46 feet and with this solution it would come out to 57.94 feet, so he would only gain 3.48 feet instead of the 5.54 feet he was hoping for – yet still placing the neighbors shed and additional landscaping across the property line. Of course this solution would require additional fieldwork to tie into that eastern survey since right now it’s only based on deed plotting that plat.
This would all be more understandable if I posted a pic of deed plots and such, eh? (I don’t have one cleaned up enough to post right now – maybe another time.)
-Garry
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