Activity Feed › Discussion Forums › Strictly Surveying › Right of Way Monuments (Again)
I would turn to the order of importance of conflicting elements.
A. Unwritten rights. Not applicable
B. Senior rights. Everyone’s right appears to be senior to the utility.
C. Written intentions of the parties. Each party is obtaining what is described
D. Lines Marked and Run. This is what you have by your description.
E. Natural Monuments. Nope or at least I don’t think so.
F. Original Monuments. Yours are original to the utility ROW. Are the record monuments original?
G. Record Monuments. Would the original utility monuments run in the ’50s have a higher pedigree than possible common report monuments that are meant to perpetuate the original monuments to all the rights senior to the utility?
From the situation you described, it sounds like the record surveys omitted a potential source of survey data or is just paper surveying, and that happens. I would hold the utility monuments for the boundary and if needed for clarification, show the other alignment “as established by others per…).
I think Dave did a good job in explaining my viewpoint, but I’d like to add that I am mystified by the insistence that ROWs get their exact width, regardless of monumentation. This has been argued again and again an no one has ever produced any precident setting authority agreeing with this. The closest any one has come is references to DOT policy. But what DOT does and what the law is when they are challenged are two different things.
In my experience, when left alone DOT often claims the exact width, but when I hold the monuments in my survey they accept that, even to the point of purchasing the missing width from the adjoiners.
How is the first survey that establishes a C1/4 different than a first survey by a ROW manager establishing their ROW? Few would argue that that the C1/4 should be rejected if it is a few tenths from the correct mathematical solution, but many argue the ROW monuments should be ignored (or only used to mathematically recreate a theoretical line that then takes precident over the very same monuments).
I think this idea may have come from the practice of providing full width when proportioning. I dont necessarily disagree with this practice, but there is a big difference between determining a ROW width that has not been monumented and one that has.
- Posted by: Norman Oklahoma
I’ll take the contrary position, to a degree. The taking deeds do not call for the monuments. Therefore, the monuments are evidence of the location of the right of way lines, but not automatically controlling of them.
Is this “public utility agency” eligible to be adversely possessed against? If so, the monuments may have become controlling via estoppel
IMHO, in most cases, a right of way gets it full stated width. This pretty much precludes the simple “hold the monuments” answer without some qualification. As evidence, I present that it is the policy/practice of many state DOT (including all 3 I am licensed in) to omit calls for monuments from their right of way taking descriptions. I take that to mean that they do not intend the monuments to control the right of way width.
Based on the above, would you recreate the centerline alignment and hold the record centerline offsets or hold the brass disks set at the ROW corners to determine the ROW and why?
The OP has not shared how he would recover the alignment centerline. Is there another, conflicting, set of monuments that would be used for that? The ROW monuments may be best evidence of the location of the alignment centerline. I might well hold the monuments for the purpose of reestablishing the centerline.
If we are talking about departure from the record of a few hundreths I’m going to use the power invested in me by the state and apply the virtual hammer.
The public utility agency is a government agency utilizing the ROW for pipeline transmission (active and not abandoned), so it is not eligible to be adversely possessed against.
In some locations, the centerline alignment can be recreated from the found adjoining property corner monuments included in the pre conveyance notes (field book is labelled as “property ties). In other locations, the centerline alignment can be recreated using reference points also set pre conveyance and in the field notes (there were some set in trees so these would be a little harder to prove out). Overall the fit is not bad (recreated centerline alignment vs. ROW monuments), but more in the order of tenths (not focusing on field to record) instead of hundredths.
- Posted by: HICALSPosted by: Norman Oklahoma
I’ll take the contrary position, to a degree. The taking deeds do not call for the monuments. Therefore, the monuments are evidence of the location of the right of way lines, but not automatically controlling of them.
Is this “public utility agency” eligible to be adversely possessed against? If so, the monuments may have become controlling via estoppel
IMHO, in most cases, a right of way gets it full stated width. This pretty much precludes the simple “hold the monuments” answer without some qualification. As evidence, I present that it is the policy/practice of many state DOT (including all 3 I am licensed in) to omit calls for monuments from their right of way taking descriptions. I take that to mean that they do not intend the monuments to control the right of way width.
Based on the above, would you recreate the centerline alignment and hold the record centerline offsets or hold the brass disks set at the ROW corners to determine the ROW and why?
The OP has not shared how he would recover the alignment centerline. Is there another, conflicting, set of monuments that would be used for that? The ROW monuments may be best evidence of the location of the alignment centerline. I might well hold the monuments for the purpose of reestablishing the centerline.
If we are talking about departure from the record of a few hundreths I’m going to use the power invested in me by the state and apply the virtual hammer.
The public utility agency is a government agency utilizing the ROW for pipeline transmission (active and not abandoned), so it is not eligible to be adversely possessed against.
In some locations, the centerline alignment can be recreated from the found adjoining property corner monuments included in the pre conveyance notes (field book is labelled as “property ties). In other locations, the centerline alignment can be recreated using reference points also set pre conveyance and in the field notes (there were some set in trees so these would be a little harder to prove out). Overall the fit is not bad (recreated centerline alignment vs. ROW monuments), but more in the order of tenths (not focusing on field to record) instead of hundredths.
Adverse Possession is not a factor here.
It also goes to the original deed, all the CL deeds I’ve ever seen from that time frame offset a line 50, 100, 75 feet from centerline. Today some surveyors take that to read 50.00′ or 100.00′ even when the deed doesn’t say that. Then they find two monuments at 99.85′ on a 100′ ROW and want to expand the ROW 0.15′. Why not locate the measurement at 99.846′ and expand it by 0.154′, and so on endlessly.
They set the monuments to control their ROW, the monuments have been accepted for 70 years, they fit well within any accepted accuracy standard from 1948. Beyond that; the centerline is destroyed, done with the tools available in 1948, you will need a time machine to figure where it was in 1948 closer than the couple of tenths that the existing caps are already monumenting.
- Posted by: MightyMoe
It also goes to the original deed, all the CL deeds I’ve ever seen from that time frame offset a line 50, 100, 75 feet from centerline. Today some surveyors take that to read 50.00′ or 100.00′ even when the deed doesn’t say that. Then they find two monuments at 99.85′ on a 100′ ROW and want to expand the ROW 0.15′. Why not locate the measurement at 99.846′ and expand it by 0.154′, and so on endlessly.
They set the monuments to control their ROW, the monuments have been accepted for 70 years, they fit well within any accepted accuracy standard from 1948. Beyond that; the centerline is destroyed, done with the tools available in 1948, you will need a time machine to figure where it was in 1948 closer than the couple of tenths that the existing caps are already monumenting.
But -but-but then they’re not off/wrong, & I’m not the most, bestest, measurer and cogo-er of boundaries…… (TIC) (and besides- the deed says the sidelines are parallel and or concentric and my retracement skills are trapped in 10th grade geometry class)
AND!!!AND!!!! ANDDDD!!!! the state gets their whole measure!!! ( ”THEY” said that in a class I took)
If I’m recalling this correctly, what someone did wasn’t as simple as splitting the two opposing monuments to get the Engineer’s centerline.
Various judgments, maybe biases, certainly arbitrary decisions would be made where there might be non-record angle points introduced into the centerline by errors in the Survey crew’s producing the line. So sometimes the monument on the left might be a foot in the right-of-way and the monument on the right might be a half foot out of the right-of-way. Rebar/caps would be set in the big concrete monument and another rebar/cap on the “true” right-of-way. I guess it’s supposedly intended to be the most probable location of the original right-of-way as it would’ve been staked by the original DOT crew based on the only evidence there is, the big concrete monuments set by the landscaper.
- Posted by: Dave Karoly
Norman,
I respect your opinion, of course.
This case is consistent with my reading of 100s of mostly California cases which leads to a general statement that the Courts recognize the world is not a perfect place and they will generally favor what people actually did over technical rules in books within reason. This does not mean that it’s just anarchy, though, and you may be right in this case.
I respect your opinion also, Dave. And I’m not exactly disagreeing with you. Called for monuments, undisturbed, hold. Period. End of story. We agree on that.
Not calling for monuments has consequences. There is a simple way to but this matter to rest. Call for the surveys and monuments in the writings. Everybody has known that for centuries. But the monuments for rights of way are not called for. There has to be a reason for that. That reason is that the intent is to honor the stated width.
We have deeds signed and then monuments placed 2 years later. What is the proof that any of the property owners even know about those monuments? If the monuments are to be held without argument, then they must be called for in the deeds. If they are not, they may still be best evidence. But it’s not a slam dunk. We may be placing a little too much importance on monuments to determine the intent of the parties here.
The Washington case of Merriman v. Cokely had this to say about monuments:
“Illustratively, in a case in which there was no fence and no defining point of cultivation (apart from a row of pear trees along the purported boundary line), we held that no well-defined boundary was established. …. In another case, the Court of Appeals found insufficient a retaining wall constructed of railway ties that extended a short distance into the beach area of the disputed waterfront property, since there were no other “monuments, roadways, or fence lines” along the disputed boundary…… The three widely spaced markers in this case, set in a thicket of blackberry bushes, ivy, and weeds, did not constitute a clear and well-defined boundary.”
I hold that un-called for monuments and lines run in the field acquire the dignity of being controlling through the operation of estoppel. But that operation of law cannot happen the case of a right of way line and a public agency. Right of way lines are different than lines between private parties.
I’m fully aware of the realties of the theatre of judicial proceedings.
That said, I spent a lot of time time with WWII and Korean Vets in my youth. To argue that individuals in the 1950s would rely on a calculated centerline over physical monuments, set at considerable expense, goes against everything I experienced. If someone paid to set concrete monuments with brass cap inserts, they meant business. No doubt technical arguments can be made if the price is right, but I would not be afraid to honor the monuments as they most likely represent the true understanding of the interested parties.
Lawyers sow the seeds of doubt, surveyors understand history and the experiential truth of the times in question.
If the “un-called for” “monuments” are rejected what are you going to use? Is the pipe line called for? Are the deeds “perfect”? If the deed doesn’t exactly close should it be rejected? Does what the parties did matter?
Personally I’d step back and look at a bigger picture, think about if TIME matters here.
At the time they built the pipeline, why would they build it other than where they intended?
If a deed is recorded without any calls to monuments, can the boundary ever be established? If it is marked, fenced or “monumented” after the fact does it ever mean anything? Did any parties use “rely” on the monuments? Which matters most after multiple decades, what they intended or what they did? What if they did what they intended on the ground but the “papers” don’t precisely indicate that?
If you independently give the data to 10 different surveyors to establish the original center line, do you think any two answers would exactly match? Especially if you told them where the “monuments are” but had them each make their own measurements?
Sorry but what we do is deal in Gray, not black and white!
PS: Had a kidney stone surgically removed today, so I’m on pain pills.
- Posted by: Murphy
I’m fully aware of the realties of the theatre of judicial proceedings.
That said, I spent a lot of time time with WWII and Korean Vets in my youth. To argue that individuals in the 1950s would rely on a calculated centerline over physical monuments set at considerable expense, goes against everything I experienced. If someone paid to set concrete monuments with brass cap inserts, they meant business. No doubt technical arguments can be made if the price is right, but I would not be afraid to honor the monuments as they most likely represent the true understanding of the interested parties.
Lawyers sow the seeds of doubt, surveyors understand history and the experiential truth of the times in question.
In this case these people signed the deeds 2 years before the monuments were placed. They not only would do it, there is documentary proof that they did. Very likely they were much more interested in where the actual utility was going, and what width off that they were pledging.
- Posted by: Norman OklahomaPosted by: Dave Karoly
Norman,
I respect your opinion, of course.
This case is consistent with my reading of 100s of mostly California cases which leads to a general statement that the Courts recognize the world is not a perfect place and they will generally favor what people actually did over technical rules in books within reason. This does not mean that it’s just anarchy, though, and you may be right in this case.
I respect your opinion also, Dave. And I’m not exactly disagreeing with you. Called for monuments, undisturbed, hold. Period. End of story. We agree on that.
Not calling for monuments has consequences. There is a simple way to but this matter to rest. Call for the surveys and monuments in the writings. Everybody has known that for centuries. But the monuments for rights of way are not called for. There has to be a reason for that. That reason is that the intent is to honor the stated width.
We have deeds signed and then monuments placed 2 years later. What is the proof that any of the property owners even know about those monuments? If the monuments are to be held without argument, then they must be called for in the deeds. If they are not, they may still be best evidence. But it’s not a slam dunk. We may be placing a little too much importance on monuments to determine the intent of the parties here.
The Washington case of Merriman v. Cokely had this to say about monuments:
“Illustratively, in a case in which there was no fence and no defining point of cultivation (apart from a row of pear trees along the purported boundary line), we held that no well-defined boundary was established. …. In another case, the Court of Appeals found insufficient a retaining wall constructed of railway ties that extended a short distance into the beach area of the disputed waterfront property, since there were no other “monuments, roadways, or fence lines” along the disputed boundary…… The three widely spaced markers in this case, set in a thicket of blackberry bushes, ivy, and weeds, did not constitute a clear and well-defined boundary.”
I hold that un-called for monuments and lines run in the field acquire the dignity of being controlling through the operation of estoppel. But that operation of law cannot happen the case of a right of way line and a public agency. Right of way lines are different than lines between private parties.
With regards to proof that the property owners knew about the monuments, there were redwood 4″??4″ ?? 5’10” posts set 2’4″ above grade (have the diagram created in 1930) a foot or so from the monuments with the agency’s name on it. Some but not all were found in the field. Its hard to imagine that the grantors did not see these and the adjacent monuments. Being that diagrams were created for the witness posts and also the monuments, the possibility exists that these were provided to the grantors.
Ive searched the archives (dusty attic) for any sort of agreement/correspondence between the agency and the grantors regarding the setting of monuments or but haven’t found it yet.
With regards to proof that the property owners knew about the monuments, there were redwood 4″??4″ ?? 5’10” posts set 2’4″ above grade (have the diagram created in 1930) a foot or so from the monuments with the agency’s name on it. Some but not all were found in the field. Its hard to imagine that the grantors did not see these and the adjacent monuments. Being that diagrams were created for the witness posts and also the monuments, the possibility exists that these were provided to the grantors.
It’s not so important where one side of the deal is a public agency. Such an agency can’t be adversely possessed against, and can’t have unwritten agreement boundaries. Which is the legal basis for any dignity an uncalled for monument can acquire.
When monuments not called for in the deeds are set on a boundary – by a person competent to do so – after the boundary is created they give the landowners an objective basis to occupy that line in good faith. If the landowner then builds his fence or structure up that line, and nobody objects in a timely way (estoppel), and it later turns out the line is incorrect, he probably is going to be allowed to, at the least, continue to occupy that line as long as those structures stand. And maybe more. In time the monuments may form the basis for an AP or unwritten boundary agreement claim. That’s what uncalled for monuments can do. But those unwritten agreements cannot happen where public agencies are involved. First surveyor, second, third – it’s all the same. If you want monuments to control then call for them. It is even possible to call for a survey and monuments to be set at a future time and have them control.
Again, uncalled for monuments on a line between private owners can acquire controlling dignity in time. Where one of the owners is a public agency, they cannot – except by an express supplemental written agreement to make them so.
Where a monument that is called for in the writings has been lost, and is replaced by a competent surveyor acting in good faith, that new monument has controlling dignity same as the original. That is what resurveys can do. But that not at issue in this thread.
For those who think that I am advocating just running out the deed numbers every time, and pincushioning, let me assure you I am not. Every description has to have controlling monuments called for in it. And every surveyor who finds a monument in the vicinity of his calc’d position has to give due consideration to the intersection of his error ellipse and that of the previous guy. Measurements are never perfect and we shouldn’t pretend that they are.
- Posted by: Norman Oklahoma
With regards to proof that the property owners knew about the monuments, there were redwood 4″??4″ ?? 5’10” posts set 2’4″ above grade (have the diagram created in 1930) a foot or so from the monuments with the agency’s name on it. Some but not all were found in the field. Its hard to imagine that the grantors did not see these and the adjacent monuments. Being that diagrams were created for the witness posts and also the monuments, the possibility exists that these were provided to the grantors.
It’s not so important where one side of the deal is a public agency. Such an agency can’t be adversely possessed against, and can’t have unwritten agreement boundaries. Which is the legal basis for any dignity an uncalled for monument can acquire.
When monuments not called for in the deeds are set on a boundary – by a person competent to do so – after the boundary is created they give the landowners an objective basis to occupy that line in good faith. If the landowner then builds his fence or structure up that line, and nobody objects in a timely way (estoppel), and it later turns out the line is incorrect, he probably is going to be allowed to, at the least, continue to occupy that line as long as those structures stand. And maybe more. In time the monuments may form the basis for an AP or unwritten boundary agreement claim. That’s what uncalled for monuments can do. But those unwritten agreements cannot happen where public agencies are involved. First surveyor, second, third – it’s all the same. If you want monuments to control then call for them. It is even possible to call for a survey and monuments to be set at a future time and have them control.
Again, uncalled for monuments on a line between private owners can acquire controlling dignity in time. Where one of the owners is a public agency, they cannot – except by an express supplemental written agreement to make them so.
Where a monument that is called for in the writings has been lost, and is replaced by a competent surveyor acting in good faith, that new monument has controlling dignity same as the original. That is what resurveys can do. But that not at issue in this thread.
For those who think that I am advocating just running out the deed numbers every time, and pincushioning, let me assure you I am not. Every description has to have controlling monuments called for in it. And every surveyor who finds a monument in the vicinity of his calc’d position has to give due consideration to the intersection of his error ellipse and that of the previous guy. Measurements are never perfect and we shouldn’t pretend that they are.
Agree with this mostly. I’d just add that in private transactions uncalled for monuments are usually of the same dignity as called for ones because of the rebuttable presumption that monuments were set and people took title based on a view of the premises. Courts have recognized this was the historical practice and truth in most cases. That presumption is not true in the case of highway right of way acquisitions. And in this case, evidence exists that proves it to be false.
Still, most or all of the monuments might be the best representation of the description. Those within the uncertainty budget (evidentiary and measurement) found on the site should be honored and not continually moved around.
- Posted by: Norman Oklahoma
With regards to proof that the property owners knew about the monuments, there were redwood 4″??4″ ?? 5’10” posts set 2’4″ above grade (have the diagram created in 1930) a foot or so from the monuments with the agency’s name on it. Some but not all were found in the field. Its hard to imagine that the grantors did not see these and the adjacent monuments. Being that diagrams were created for the witness posts and also the monuments, the possibility exists that these were provided to the grantors.
It’s not so important where one side of the deal is a public agency. Such an agency can’t be adversely possessed against, and can’t have unwritten agreement boundaries. Which is the legal basis for any dignity an uncalled for monument can acquire.
When monuments not called for in the deeds are set on a boundary – by a person competent to do so – after the boundary is created they give the landowners an objective basis to occupy that line in good faith. If the landowner then builds his fence or structure up that line, and nobody objects in a timely way (estoppel), and it later turns out the line is incorrect, he probably is going to be allowed to, at the least, continue to occupy that line as long as those structures stand. And maybe more. In time the monuments may form the basis for an AP or unwritten boundary agreement claim. That’s what uncalled for monuments can do. But those unwritten agreements cannot happen where public agencies are involved. First surveyor, second, third – it’s all the same. If you want monuments to control then call for them. It is even possible to call for a survey and monuments to be set at a future time and have them control.
Again, uncalled for monuments on a line between private owners can acquire controlling dignity in time. Where one of the owners is a public agency, they cannot – except by an express supplemental written agreement to make them so.
Where a monument that is called for in the writings has been lost, and is replaced by a competent surveyor acting in good faith, that new monument has controlling dignity same as the original. That is what resurveys can do. But that not at issue in this thread.
For those who think that I am advocating just running out the deed numbers every time, and pincushioning, let me assure you I am not. Every description has to have controlling monuments called for in it. And every surveyor who finds a monument in the vicinity of his calc’d position has to give due consideration to the intersection of his error ellipse and that of the previous guy. Measurements are never perfect and we shouldn’t pretend that they are.
I think you are mostly right, but its not quite so black and white. Federal and state courts dont usually recognize unwritten rights that can move a boundary, but they do recognize the bona fides rights of adjoiners to rely on lines and corners set with appropriate regard to the law, even when a surveyor comes along years latter with better measuring ability and the extra clarity in the law that has been obtained in the intervening years.
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