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Does any one here know of a successful prosecution for destruction of a survey monument?
protracted replied 4 years, 5 months ago 21 Members · 55 Replies
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. 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. The description is often just an expediency to facilitate the transaction. 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. French had built a block wall a few feet onto the vacant lot when he owned both lots. 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. 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.
(1) For the purpose of this chapter, unless the context indicates otherwise:(c) “Property of another” means property in which the actor possesses anything less than exclusive ownership.RCW 9A.48.080
Malicious mischief in the second degree.
(1) A person is guilty of malicious mischief in the second degree if he or she knowingly and maliciously:(a) Causes physical damage to the property of another in an amount exceeding seven hundred fifty dollars;-All thoughts my own, except my typos and when I am wrong.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 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.
Historic Boundaries and Conservation EffortsStill doesn’t change the fact that you need to catch the perp on camera.
Not to mention that it’s also a no-no in the eye’s of your maker…
??You shall not move your neighbor??s landmark, which the men of old have set, in the inheritance that you will hold in the land that the LORD your God is giving you to possess.”
I hope everyone has a great day; I know I will!Right, but just because it’s a felony doesn’t mean video evidence will suddenly appear out of thin air.
Or does it?
/conspiracy
Most laws dealing with destruction of monuments are misdemeanors with a civil penalty component. The boards have no jurisdiction unless a licensee does the pulling. They may be able to help using thier relationship with staff at the office of the attorney general or prosecutors.
The problem with this is investigating and prosecuting a crime nobody in the office understands within the statute of limitations. The idea that no prosecutor anywhere will pursue a case without certified hi-def video or felony circumstances is ludicrous. If things are that bad where you live figure out how to change or move. There are better places (almost everywhere).
If the suspect couldn’t afford a lawyer he would already have been charged and pled out. But everyone in that area has money and a lawyer or two on speedial, so his rights are intact.
I agree that conviction is unlikely, I was more wondering if anyone had EVER been charged and convicted of the crime of disturbing a survey monument. Considering you can get NGS mons on ebay that threaten legal action, I am guessing the answer is “NO”
-All thoughts my own, except my typos and when I am wrong.No but it might be like speeding. People go 63mph in a 55 zone and 43 in a 40. Never get pulled over, unless you exceed that because fines are stiffer and worth law enforcement time if you exceed a certain threshold. Just a theory.
Nah, the reason you don’t get pulled over for going 5 over is because the precision of the gun is +-5 mph.
Back when my employer did classroom Defensive Driver Training with retired Highway Patrol officers as instructors the last one said the threshold is 8mph over, you could go 78 in a 70 and not get cited, according to him. He was very specific about that.
There are four speed traps around here where there is no posted speed limit along that portion of highway passing thru a couple of small towns and they will pull you over when you exceed the speed limit, period. If it is 40mph, they will stop you if you are going 41mph.
There are so many ways to go everywhere, I simply do not drive thru them unless I have a project along one of them.
So, another analogy might be timber trespass. Quite a few prosecutions for this where no video evidence of the thief. Dollar values of fines and damages are quite high though. Could be because of evidentiary problems, but circumstantial evidence and motive would seem to be fairly overwhelming in the case of a monument removed.
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