Activity Feed › Discussion Forums › Strictly Surveying › Virtual Pin Cushions
-
tomchurch, post: 393713, member: 10174 wrote: I believe that the rationale is that they survey the existing right of way lines, develop plans, then agree on an appropriation with that land owner. They agree to a specific amount of property to be taken and a specific amount of money to be paid. In some areas around me an acre of vacant land is worth around $500,000, just south of me that acre could be worth over $1,000,000. The state is entitled to exactly the amount of land agreed and can take no more than what the owner is compensated for. Once the agreements are finalized and the owner paid and the maps filed, they start construction. The monuments were/are set by construction crews as the last phase making just like any other random object set by a property owner (not a surveyor) to mark their property. If a monument is set two feet further out than specified (or half a foot) the state is not entitled to that land because they did not compensate the owner for it. That would essentially be a de facto taking by the state. There are other laws not related to boundary line location in play here and a balance in the public interest has to he found.
Here we have to weigh holding a monument imprecisely/incorrectly set by non surveyors as the line to make it easier on the land owner and us as surveyors VS. ensuring that the state is not appropriating land that is has not rightfully paid the owners for. OR having to use tax dollars to pay for land appropriated due to imprecise or improper placement of monuments by non surveyors. These days surveyors have to verify and certify the location of the markers (don’t remember when that started).
They did a lot of the same here; often the fence contractor placed the monuments.
But, then the question needs to be asked: A big concrete monument is set, not by a surveyor but by the landowner (DOT) it’s accepted for many years and when does it become THE monument.
How far off is too far off?
Is a 200′ ROW that measures 199.6′ a problem? 199.9′, 198′, 200.1′, 202′?Anyway, we’ve been having the same arguments here, you aren’t alone there.
-
What if it’s 20 feet down the line, creating a bend where the bend was never intended to be?
-
If the state paid for and took 200 feet wide of ROW then they have fee title to 200 feet wide or ROW, nothing more, nothing less. You can’t (at least not easily) claim adverse possession, prescription, or acquiescence against the State. If the monuments are the only thing left then we do the best we can to fit it over the monuments as they are the best avaliable evidence of the location of the ROW Line.
-
My father take this stance. I am in the middle. Depending on the magnitude of the ‘error’
When I compare a taking monument set by the railroad or highway department to the record of the taking if it’s similar and not ridiculously off then I hold the line of the physical monuments. As such as the Hutchinson River Pkwy etc. Or i95. Those are taking monuments and I hold them over the record of where the taking is supposed to be. If not, when do we decide where the bearings and distances record starts, diverges etc.
My father always taught me as you said, the monuments are junk. But they are visible, marked and can easily have been relied upon by people. So I take them for their ground location.
-
In my area, the monument is not called for in the deed. The acquisition is referenced to station and offsets from the project center line. Many times the location of the property line called for in the deed is wrong. The Department of Transportation maintains that the monuments are set so they know where to cut the grass and still sometimes they are the best evidence that we have. Getting back to the OP, if I disagree with the r/w monuments, I set a monument and not an imaginary point.
-
tomchurch, post: 393750, member: 10174 wrote: If the state paid for and took 200 feet wide of ROW then they have fee title to 200 feet wide or ROW, nothing more, nothing less. You can’t (at least not easily) claim adverse possession, prescription, or acquiescence against the State. If the monuments are the only thing left then we do the best we can to fit it over the monuments as they are the best avaliable evidence of the location of the ROW Line.
Deciding whether or not to hold a monument isn’t “adverse possession”.
In a retracement survey, the rules of retracement (usually found in common law) should be followed.
We’ve heard the argument before “that original monuments hold, well, unless it is a ROW for a highway or road”, many times before. Do you have any authoritative source (ie case law) that declares retracement rules are different along public highways? Does math and measurements and “the way it was planned out to be” really over-ride the physical manifestation of intent (monuments)? Why do you think many, if not most state highway agencies now require ROW monuments to be set by licensed professionals if they really are only decoration and do not define the property lines?
Yes, I know, that is “how I was taught” too, but the more I study, read, and learn, the more that rule contradicts everything I find. I’ve yet to find anything, other than “that’s how I learned it” to back it up.
-
I’m thankful our ROW markers are reasonably close. The old markers are concrete pillars, some as deep as 6′, with 2′ out of the ground. They get hit and moved around, but you can estimate center, use that to look for more markers, and hopefully find a large number of stable ones to work from. The newer markers are brass disks, and when they dont have witness posts, finding the first few can be a real PITA. cause they are set about 3″ subgrade frequently. And for some reason, it seems like the crew that sets them forgets to come back and dimple them when it really matters…
-
tomchurch, post: 393687, member: 10174 wrote: It is taught by the highway lawyers in NYS, in continuing education classes, and upheld and advised by NYS DOT regional surveyors. The monuments were not set or certified by a surveyor and are set after the mapping, taking, agreement, and payment for the property. They are set at the end of construction.
NYS considers what is shown on a taking map to be the absolute taking because they cannot take more than they paid for and because the map is the basis of the agreement.
-
Brian Allen, post: 393772, member: 1333 wrote: Deciding whether or not to hold a monument isn’t “adverse possession”.
In a retracement survey, the rules of retracement (usually found in common law) should be followed.Steven Calder makes many good points re. ROW monuments.
https://surveyorconnect.com/community/attachments/01confessionsofarightofwaysurveyor-pdf.4815/ -
Sorry our markers set for row withing subdivisions are usually very very reasonable in location. The ‘they are garbage’ theories I have heard are in reference to takings. i.e. lands condemned for major highway construction. These monuments are set based on taking maps (with semi reasonable accuracy) but do not match people’s deed description that tries to match these ‘calls’ along the property that was taken by the state. Many people here ignore the monuments that were set by the state for these lands. Or railroad monuments set for track widening. I should have clarified that I didn’t mean row monuments set during construction of regular roads.
-
tomchurch, post: 393687, member: 10174 wrote: It is taught by the highway lawyers in NYS, in continuing education classes, and upheld and advised by NYS DOT regional surveyors. The monuments were not set or certified by a surveyor and are set after the mapping, taking, agreement, and payment for the property. They are set at the end of construction.
NYS considers what is shown on a taking map to be the absolute taking because they cannot take more than they paid for and because the map is the basis of the agreement.
sarcasm on
omg are you advancing holding the plat over the pins?? the resident sith (one who believes in absolutes) will be right along to disagree. oh wait I see he already did. What a novel thought, the parties acted and agreed to the plat not the corners set at a later time, blasphemy. -
The ponderous of evidence is not the deed alone or the monuments alone. It is obtaining all the facts and making a professional opinion using all the available evidence. To totally categorically exclude monument location, vesting deeds, or parole evidence from the decision process is true blasphemy.
-
tomchurch, post: 393687, member: 10174 wrote: It is taught by the highway lawyers in NYS, in continuing education classes, and upheld and advised by NYS DOT regional surveyors. The monuments were not set or certified by a surveyor and are set after the mapping, taking, agreement, and payment for the property. They are set at the end of construction.
NYS considers what is shown on a taking map to be the absolute taking because they cannot take more than they paid for and because the map is the basis of the agreement.
I assume the highway lawyers, in presenting their classes, providing supporting documentation, including authoritative sources, to support their opinion. I, and others I assume, certainly would be interested in reading it.
If the monuments mean absolutely nothing, why were they set? Why are they stamped “Right of Way Marker”?
If the taking maps are absolute, and control, why even waste the time and money to set the monuments, why not just give each adjoining landowner a copy of the map?
Were the all landowners notified, at the time of taking, or at the time the monuments were set, that the map is absolute and that monuments did not mean anything?
Are we really advocating the position that if a monument is not set or certified by a surveyor it cannot control? -
No one has mentioned the original deeds that describe the take. Don’t they have some play in the acquisition and location of the highway?
The issue of the highway bought X00 feet, no more no less, has some weight I guess and the secondary issue is that the monuments were set under the guidance of a Project Engineer, and not a licensed land surveyor. There was certainly some sloppy work that went on back then (as well as some incredibly precise work). How is that different than “original” surveys? I mean they were under the authority of the GLO or whatever but often done by contract surveyors (non-licensed). Oh, yeah, and those in-house surveyors were just non-licensed employees. Many of them were sloppy and way off. Much more than 1/2 of a foot. What are you going to do about that?
Another issue is how do you determine where that centerline of the original roadway was set? Use the fences, the asphalt, the R/W Markers? (Structures are actually a good one like someone mentioned before). Are you going to actually use the R/W Markers, then some best-fit-line before you pull back out your 100′ and set something where the right-of-way marker isn’t?
Don’t forget those R/W Markers were set at a time that the control used to set them was more likely still in place.
We’ve progressed to the point where we are accepting non-original section corners and non-original or uncalled-for property corners, but, god-forbid don’t accept an original R/W marker (except to determine the original centerline then throw out the original marker so you can set something 0.1′ away).
No, I’m not advocating concrete markers and damn every thing else, but I am also not saying they are to be assumed to be non-representative. And what about those original creating deeds? No one even pulls those? (And don’t even get me started on how bad some of those are).
Boundary surveying (especially retracement) takes some professional judgement and not some by-the-book, one-method-fits-all solution.
-
tomchurch, post: 393750, member: 10174 wrote: If the state paid for and took 200 feet wide of ROW then they have fee title to 200 feet wide or ROW, nothing more, nothing less. You can’t (at least not easily) claim adverse possession, prescription, or acquiescence against the State. If the monuments are the only thing left then we do the best we can to fit it over the monuments as they are the best avaliable evidence of the location of the ROW Line.
You have a number of possible issues to consider. The DOT caused the monuments to be set and they represent to the private property owner where the State thinks the R/W line is located. If the DOT used inadequate procedures to set those monuments they cannot use that fact against the abutter. However, if the R/W is supposed to be 200′ from the Engineer’s centerline and the monument was set some material distance further than 200′ (say 250′) then the State would probably not be able to gain the extra 50′ by their mistake. On the other hand, if the monument is closer, say 2′ and the R/W fence is close or just insider the 198′ line then the State may have a problem trying to gain back their 2′ from a property owner that has acted in good faith for decades by accepting those monuments set by the DOT; this is known as estoppel. Consider another case, the concrete monuments are 150′ from the centerline and the R/W is fenced at about 200′; in that case the abutter, if they know about the concrete monuments way over yonder, is on at least inquiry notice to find out if the monument is really a monument.
Often those monuments are the best evidence of where the engineer’s centerline was located so there is that.
No definite rule can be laid down either way; it is a matter for reviewing the written and physical evidence, giving the evidence their appropriate weight, and making a determination.
I would not say the State is immune to acquiescence because acquiescence is not adverse possession and the legal theory of acquiescence is the line did not move, it is located where it always has been located. The reason for this is it creates an exception to the Statute of Frauds.
-
And another thing….how come I’ve never seen case law on this? I would think there must be some out there, but maybe the fact that everyone in the world except surveyors accepts where the highway was built and markers were set. We are the primary ones trying to make a federal case out of this issue where there is no federal case.
(sorry I’ll shut up now)
-
Holy Cow, post: 393748, member: 50 wrote: What if it’s 20 feet down the line, creating a bend where the bend was never intended to be?
got lots of those too, and lots of bends that were to be xxxx feet apart and are xxxx+-20-50′, those are also fun, but what do you do,,,,,,the bends are there on the gound
-
Tom & Dave both have excellent points.
“If the state paid for and took 200 feet wide of ROW then they have fee title to 200 feet wide or ROW, nothing more, nothing less.”
So, if an entry-man bought and paid for the “NE1/4 of Section 22, according the official plat thereof”, they purchased the land, in fee title, according to the PLAT. They bought and paid for 160 acres, nothing more, nothing less, being 2640 ft. x 2640 ft., nothing more, nothing less. Using the same argument, maybe we had better start moving the original GLO corners to match exactly what the plat calls for. After all, they acquired title to the land in reference to, and according to the official plat, prepared, monumented, and approved by the federal government.
We need to remember that title to the land and the location of the boundary are TWO separate issues.
-
Brian Allen, post: 393853, member: 1333 wrote: Tom & Dave both have excellent points.
“If the state paid for and took 200 feet wide of ROW then they have fee title to 200 feet wide or ROW, nothing more, nothing less.”
So, if an entry-man bought and paid for the “NE1/4 of Section 22, according the official plat thereof”, they purchased the land, in fee title, according to the PLAT. They bought and paid for 160 acres, nothing more, nothing less, being 2640 ft. x 2640 ft., nothing more, nothing less. Using the same argument, maybe we had better start moving the original GLO corners to match exactly what the plat calls for. After all, they acquired title to the land in reference to, and according to the official plat, prepared, monumented, and approved by the federal government.
We need to remember that title to the land and the location of the boundary are TWO separate issues.
Good point…..the dimension is “record” (your measurement in the field) and “as-measured” (original call). The “deeded” dimension is the record dimension. The “as measured” is just your current measurement that tracks how close you are hitting (or missing) the deed between physical monuments.
-
Tom Adams, post: 393850, member: 7285 wrote: And another thing….how come I’ve never seen case law on this? I would think there must be some out there, but maybe the fact that everyone in the world except surveyors accepts where the highway was built and markers were set. We are the primary ones trying to make a federal case out of this issue where there is no federal case.
(sorry I’ll shut up now)
I was looking through Public Roads under Boundaries in my California Westlaw digest PDF (list of headnotes), the first section is mostly “ownership carries to the centerline” cases so that doesn’t apply here. I didn’t get very far into the next section so there may be cases in there.
Log in to reply.