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How about a good thread on land surveying?
Kent McMillan replied 14 years, 1 month ago 13 Members · 59 Replies
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This is as backa$$wards that one can get!
Keith,
I had the same mindset as Kent 40 years ago. It took me a long time to see the light.
J.W.
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> I am out of town for the next few days, so will not be answering any more of these posts, but it sure would be good for all of us for Kent or whoever to cite some sort of legitimate reference to justify the rationale that a senior line is NEVER bent with subsequent retracement/resurvey monumentation.
>I agree, never say never, specifics and context are very important, as I said above.
But again, with regard to citing references, how about virtually every text out there that discusses the basic premise of RETRACEMENT. Meaning, the surveyor who set the junior monument was supposed to retrace the senior line and set his junior monument along it. He had no license or mandate to do anything other.
Evidence of any intent or reasoning for doing anything other than that would have to be demonstrated – otherwise, the clear intent is that the junior monument is witness to the actual junior point which is ON THE SENIOR LINE and that as Jim has it, any wobbles a foot or so to this side or another be just survey error on the part of the guy who set the junior corner, without any actual intent of deflections in the senior line.
But again, never say never, consider the context, such as significant improvements made based on the faulty junior corner, and the age of those improvements.
The converse of never is always, and it’s likewise problematic to suggest one always must accept faulty junior monuments or any other apparent bits of evidence along a senior line as might be implied by the statements above. Sometimes you will end up accepting them, sometimes you reject them. It’s all about context, it’s all about evaluating and weighing the evidence and circumstances, it’s all about applying professional judgement and experience. That’s what makes surveying a true profession, instead of just being the work of a technician.
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Jim
I would say what Jim describes is fairly common practice especially where the deviations are below the functional precision of the property (for example the average residential fence is at least 4″ wide).
It’s not completely unjustified in non-PLSS situation especially when reliance hasn’t happened. A common case is the backyard fence is 2′ from the property line and a Surveyor was hired after the fact to monument the rear lot corners. The property owners will generally ignore the new monuments and leave the fence alone. I see that as a lack of reliance.
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Property owners do not request a boundary survey as a theoretical exercise to never be used.
This is how it is conceivable that a “junior” monument can bend a “senior” line.
No one can say it can never happen just as they can’t say it will always happen.
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> The converse of never is always, and it’s likewise problematic to suggest one always must accept faulty junior monuments or any other apparent bits of evidence along a senior line as might be implied by the statements above. Sometimes you will end up accepting them, sometimes you reject them. It’s all about context, it’s all about evaluating and weighing the evidence and circumstances, it’s all about applying professional judgement and experience. That’s what makes surveying a true profession, instead of just being the work of a technician.
Actually, I think that the “always” bit is a fundamental statement of law. The rights that accrue by virtue of priority of title always exist.
What many folks want to conflate with the fundamental problem of senior rights is the situation where a boundary may have been established by some unwritten process such as equitable estoppel (as fits the situation Jim Frame mentioned). That simply confuses the issue in my view, mixing apples and oranges.
It is also true that there are many situations where, as a practical matter, a mistake would cost more to correct than is warranted. So it is convenient to treat some old mistake as fixing a boundary in a position other than the original. However, there are hidden costs associated with this plan, particularly if this decision is one that a surveyor unilaterally takes without having documents in the public records that will act to bind subsequent owners. Where they are possible, written boundary agreements are hardly free. So the hundreds of dollars or more than they cost has to be figured into the practicality equation.
What Keith’s permanent talking point has been is neither of the above. He wants to claim that the mere fact that a surveyor has made a mistake in running a line has altered the physical location of the record line. That is clearly fundamentally wrong.
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> Property owners do not request a boundary survey as a theoretical exercise to never be used.
>
> This is how it is conceivable that a “junior” monument can bend a “senior” line.Doesn’t that ignore the fact that only one land owner typically hires the surveyor and the other simply assumes that the surveyor has correctly run the line in question? That would be true in probably more than 90% of the cases I can think of and is why it is inequitable to consider whatever mistakes are made in favor of the party who had the survey made to be uncorrectable.
And absent the non-client landowner’s reliance upon the work of the adjoiner’s surveyor that was represented to him as correct, how is it contrary to equity for the mistake to be corrected later? The equitable value that boundaries be fixed, permanent, and readily ascertainable can be easily defeated by the tangled mess that surveying mistakes can make.
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Keith’s citation does not support kinks as I read it.
> Junior-Senior Corners
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> 7-23. This situation exists where one set of corners was established for one side of the line, and a second set of corners was established for the other side of the of the same line in the course of a later resurvey or retracement (figure 7-4).> The line is regarded as having been fixed in position by the senior survey and subsequent dependent resurveys or retracements. If both sets of corners are recovered, a junior survey,if it was established in the course of an obvious careful resurvey or retracement, reporting the most recent measurement of the line, will be used for alinement of the line and for control in restoring a lost senior corner of the line.
As I read that, seems to me it acknowledges that the senior line is the ultimate authoritative boundary but that yes, obviously if the senior corners go missing, and there’s nothing at all remaining from the senior survey and all you have to work with is the junior corners, believed to have been set by a careful retracement, then that’s the best there is.
First, that’s obviously very different than just showing deflection in the line when there is a junior corner that is offset from the senior line, when the senior monuments are still there.
Second, in this case with the language cited, there’s theoretically not going to be any “kink” because you theoretically don’t have the senior corner(s) to work from any longer and are re-establishing it based on the junior monumentation. If that’s truly the case, then it is what it is, and since there was no deflection prior, there should be no deflection after, and you can only extend and re-establish based on the junior monument and whatever remains of senior monumentation.
The assumption you work on is that the surveyor who set the junior monument had retraced the senior line and set his junior monument on that senior line.
But now, let’s cut to the chase:
If there is an obvious kink that materializes in the process, based on other evidence found, then obviously it flies in the face of this piece of the language Keith cited: The line is regarded as having been fixed in position by the senior survey and subsequent dependent resurveys or retracements. If both sets of corners are recovered, a junior survey,if it was established in the course of an obvious careful resurvey or retracement, reporting the most recent measurement of the line, will be used for alinement of the line and for control in restoring a lost senior corner of the line.
So, if there is appearance of a kink that shows up, then obviously the surveyor who set the junior corner did not do an obvious careful resurvey or retracement if he was so sloppy so as to put a significant deflection in the line – and then, does Keith’s language really apply? Seems to me that it does not apply, because it is in evident violation of that stipulation that an obvious careful resurvey or retracement had been performed in setting that junior corner.
But again, this is just one circumstance out of many, and how you treat an offset junior corner is always going to be contingent on the context and circumstances, so let’s not use problematic language like “always” and “never”.
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This is as backa$$wards that one can get!
> . It took me a long time to see the light.
This was after retirement, I take it? :>
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Never
The only time you could safely use the word “never” in this context is that the junior corners will “never” be precisely on the senior straight line. The apples and oranges part of this thread is that the manual deals with government surveys of government land. They can put all the kinks they want in lines between their own sections.
I agree with Kent, though, that if I take title to property with a straight line boundary and a subsequent surveyor comes along and sets some monuments intended to be on that line, I can argue about whether those control my line until such time that I somehow legally acquiesce to or imply agreement with those monuments.
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I feel my pain on this issue 🙂
Yes one flaw in our ad-hoc system of Land Surveying where one property owner hires a Surveyor who sets half inch rebars with plastic caps in expansive clay is the Survey is not binding on the other property owner without his consent.
The art of it is to figure out or at least use good reasoning to justify whether the “junior” monument now controls the line.
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> The art of it is to figure out or at least use good reasoning to justify whether the “junior” monument now controls the line.
I trust, though, that the fact that your conclusions will likely vary depending upon the land value and its intended use (which also is subject to change in the future), shows the decision to be an informal discretionary one based mainly in considerations of convenience and practicality more than law.
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Kent
Convenience and practicality, not law? Is there a way to see what you wrote while I’m typing? Anyway, I think law is way more important than convenience. Convenience is holding a straight line between original monuments and calling the intermediate monuments off. That results in a nice neat world of straight lines but I don’t live in a world like that. My world includes subdivisions that weren’t built or monumented anywhere close to the plat that was supposed to represent the lots being sold. After 50-100 years any little shred of evidence that may have been relied upon by the property owners can indicate all kinds of kinks in the lines that were supposed to be straight.
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Kent
>Convenience is holding a straight line between original monuments and calling the intermediate monuments off. That results in a nice neat world of straight lines but I don’t live in a world like that. My world includes subdivisions that weren’t built or monumented anywhere close to the plat that was supposed to represent the lots being sold. After 50-100 years any little shred of evidence that may have been relied upon by the property owners can indicate all kinds of kinks in the lines that were supposed to be straight.
No, that isn’t the convenient solution. The convenient solution is just to dot-to-dot the boundary between any survey-marker-looking things found in the vicinity of where you suppose that the boundary runs. So inconvenient to have to show all the details of the boundary mayhem created by various subsequent surveys. Personally I dislike having to do it.
The law considers the words of conveyances that have no ambiguities or inconsistencies to mean what they say. So where the parties originally describe a boundary as a line running between ascertainable endpoints, that is where it runs.
The situation you are dealing with, it sounds, is having no clue as to where the endpoints originally were and so no real basis for disputing any monument found within a certain tolerance of where other evidence would place the line in question. That doesn’t call the principle that the line was originally created as a straight line into question. It’s just that you are recognizing a general inability to say where those endpoints are and are choosing the practical solution of considering the line to be established in some position that, although plainly not originally cannot be shown to be definitely wrong at any particular point.
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Kent
Note that the important distinction is that Keith has consistently wanted to claim that even if the endpoints are identifiable, whatever intermediate survey markers there are will still introduce angle points in the line at every one, regardless of whether the original line can be definitely identified or not. Beyond strange, I know, but that is apparently one of his hobbies in retirement.
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Kent
Surveyors do not have ownership rights in the land they are surveying., therefore the surveyor cannot deny the validity of the occupation line as honored by the landowner(s).
We have no authority to ‘correct mistakes’ made when monuments do not fall on the theoretical ‘straight’ line and descriptions do not control property lines.
For the surveyor, the basic principle in the US is that physical evidence honored by the affected owners will control the location of the boundaries of the land owned.
From Wigmore;’s compendium on “Evidence”, 2nd. Edition, Vol. 5 Section 2476:
“It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted. …”See also Judon Fambrough’s “Use it or Lose it” article explaining Texas law that mcmillan himself posted.
Deed staking is not a land surveyor’s professional work product.
Richard Schaut
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Kent
> See also Judon Fambrough’s “Use it or Lose it” article explaining Texas law that mcmillan himself posted.
In case there is any reader in doubt of the proposition, that article that Richard mentions is actually not a very good restatement of Texas law on adverse possession.
As for Richard’s other ideas, we have yet to determine which jurisdiction he has in mind. He has been extremely reluctant to post any examples of his own work, so who know?
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Kent
No one has stated the most important question of, “intent”, needs to be investigated and the answers obtained need to be considered before any personally preferred rules are applied. We have many occupations around here where the owners have agreed and state that the occupation lines do not represent the described ownership line or are there any claims made for anything other than the described lines. Saving the cost of a survey is common and so no evidence was recovered, new evidence set by a Survey was commissioned when need arose to build a fence or the female half wanted to plant flowers. I find that most owners are well aware of those conditions and so the occupation is moved to the described line after being located by a Survey. Sometimes other solutions are found to protect property rights or a sale of the area in question is done if the minimum lot size can be maintained. One rule does not fit all and the attempt to bring to light intent of the evidence found, “it is not always obvious”, is a must before mucking things up because of your superior knowledge and ego.
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Kent
> No one has stated the most important question of, “intent”, needs to be investigated and the answers obtained need to be considered before any personally preferred rules are applied. We have many occupations around here where the owners have agreed and state that the occupation lines do not represent the described ownership line or are there any claims made for anything other than the described lines. […]
Well, actually, I don’t think that the intentions of the parties has been left out at all. The first evidence is the actual writing. If the writing describes the boundary as running from terminal monuments on a straight line without reference to any other feature such as an existing fence, then it would be an exercise in ESP several generations later to insist that the parties originally intended something else unless there is some common presumption of law at work.
> One rule does not fit all and the attempt to bring to light intent of the evidence found, “it is not always obvious”, is a must before mucking things up because of your superior knowledge and ego.
Well, considering that Keith has endless argued that any marker a later surveyor places along a boundary automatically alters the location of that boundary, and without regard to the seniority of title, I think a surveyor is much safer starting with the more general rule that it isn’t so.
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