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Yes or No Again
Here is an example of an average survey encountered everyday. For background, in Colorado an “improvement location certificate” requires a diagram showing the calculated property lines known by statute as “apparent deed line”, from at least two “control corners” (monuments). It also requires an official disclaimer that in essence says the surveyor is not actually liable for the information shown.
in 1959, a subdivision was created on fairly flat, thickly treed land and the original surveyor is unknown. We think he set 5/8″ rebars for several reasons. We cannot find any original monuments along the back line, but the smattering of monuments that are there are reasonably “straight”. It is most likely that the transit and tape crew set the front of all lots first. None of the pins are intervisible because of the thick trees, but the front line is reasonably “straight” and the distances of platted 86 feet work out fine north-south and east-west. there are three lots to the south of this lot with older houses and fences that all match the monuments. The 1959 plat does not state bearings for east-west line, but states that all lines are “normal” (and in my opinion, that means normal from the FRONT, not the BACK). At some time, an unknown surveyor set a 60d nail at the calculated “normal” position for the NE corner lot 3, which disagrees with the original monument by 9.5 feet. 2 years ago, a very reputable surveyor did an ILC and used the 60d nail because it was more accurate, and showed some stairs and concrete landing as encroaching. this summer I did a boundary survey, held the original monuments, and saw that the stairs and concrete landing had been removed, and the 60d nail was now encased in concrete along with a 5′ steel fence post.
My own definition of a theoretical, calculated, mathematical position is: “touchscreen corner”.
Someone decided they had to remove their steps and landing based on a touchscreen corner. While it is hard to digest a line of monuments being 9.5 feet out of normal, the neighborhood actually existed in peace with their old houses and fence lines and there was no dispute among neighbors. The touchscreen corner is completely out of whack to the whole Block as currently monumented. According to my observation, roughly half of the surveyors would take the touchscreen corner, and swear they are REQUIRED to do so as professionals. We are split as a profession.
I go back to this most basic statement recently run through this global committee, and apply it to this case: “A monument established by the first surveyor, acting in good faith, is a property corner. A boundary is the line where property rights change. Once established, a corner or line does not move, but can possibly be vacated.”
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29 Replies
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I don’t think anyone who didn’t perform the survey can really have an opinion on which line is more likely to be held if it went to court. But this does point out the problem with ILC. The surveyor that did the ILC correctly (imho) showed worst case, in other words, a possible problem. But then the results of the inspection didn’t lead to a full survey to sort out the problem. That was my experience also when I tried offering them for a brief period when I started business years ago. It’s like receiving an engineers inspection showing water in the basement and a cracked foundation, but instead of looking for further analysis and a fix if needed they mop up the water and paint the wall to hide the crack. Could have come in through an open window after all, and the crack could be normal with no side-affects.
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I agree it is dofficult to talk in absolutes about a survey I didn’t perform. At the same time it is nearly universal that an undisturbed original monument should be held. I say nearly because I am certain there are some farflung situations where the opposite is true.
My term for the mathemagicians who aee math as the only valid evidence is ‘helicopter surveyors’. They compute a perfect cogo deed plot and pick two monuments (either at random or simply the first two they find) to hold. They plop the ‘perfect’ parcel on the fround and move on. That’s not surveying. Put in the work or stay home.
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I am familiar with an addition to a nearby city that looks much like the pdf provided. It was a quarter-quarter of a not-so-square section which produced the significant deviation from square. East-west lines paralleled the north section line and the north-south lines paralleled the west section line. Some lots were only 25 feet wide with about a 10-foot deviation from square in a depth of 150 feet. In order to place a structure of any length within the side lines it was necessary to have the front of the building skewed with respect to the street in front. Building square to the front created issues even on a 50-foot wide lot.
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I can’t ever recall holding a 60d nail as a monument for a corner.
Looks like a control point that was set.
There are two lots to the north with the note that no monuments were found, there should be other evidence to allow a recreation of those lots.
It would be important to know that evidence also, in these situations I often survey a large area and work back to the lot.
It takes time but if it’s necessary that’s what I will do.
As an aside I don’t understand the BOB statement, is that bearing record along the south line or is that bearing “derived with GPS/RTK” some kind of projection?
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I would search a wider area for sure on this one…the first place I would start is the west side of the survey where the adjoining lot corner “D” was found coincident with west line of the subject lot. I’d confirm that monument is actually the lot corner of the adjoiner and verify the distance from the NW corner of your subject fits well. Then at least it confirms (with no other info) that the solution you have come up with fits the found rebar and the plats well enough to disregard the nail set 9 feet from the NE corner. I look at this and think you dont have a large enough piece of the puzzle to weight the found evidence against yet. I do believe you have the correct solution but If i were you I’d want more to back it up before recording that sucker.
– AW
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Duane, do/did you teach for the surveying program at Mohawk Vallley Community College in Utica, NY?
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Actually, I located a far wider area than what is shown but simplified the drawing, and the fundamental theorem remains: some of us use ourtouchscreens some of us follow in the footsteps. I personally believe we are legally required to follow in the footsteps but that appears to be an unsettled question
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Monuments come in many forms and not all surveyors are licensed. We might consider the idea that the houses on the properties are monuments and the foundation crew was, in fact, the “first surveyor”.
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For the sake if this discussion we should take “apparent original corner” as correct. In that case there is little question what the courts would find.
That being said, “apparent original corner”, isn’t enough information. The plat should communicate why those appear to be original corners, otherwise the next guy may come to his own conclusions, and if he communicates his reasoning, his conclusion will probably win, unless they are ridiculous, or you are available to explain yourself to the court.
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Yes, I was there 13 years. Are/were you familiar with the program (it’s no longer available)?
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Yes, I think he posted only portion of map. His explanation is right on in the post, and I bet he put it on the map (I saw reference to note 7). Still not a slam dunk in my opinion.
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@warrenward
Sometimes the courts make a distinction in cases of mistakenly set monuments. They hold after a certain amount of time not because they are consummation of the bargain and best indicator of intent deed/map (follow the footsteps), but because of equitable principles. Of course the result would be the same for the monumented lots, but might change analysis of how to further monument in the subdivision.
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A few things come to mind on the substance of the question(s). The main response I have is it depends on many of the variables not disclosed on the survey. To me a found spike/nail is some sort of evidence. Was the spike set by the original surveyor at the time of platting? I have found that some older sub plats done by engineers back in their day, they would set spikes/nails or even wood stakes with the intent of coming back and setting rebars and caps. Most of the time they never did return as their hopes were that they would get called back by the new lot owners to do some building staking or other types of design surveys and would set a more substantial monument then.
I’m not sure what a boat spike is. Either way, if the call out for a boat spike is typical in your area, then it would lead me to believe that there was a surveyor in the past and boat spikes were his/her mark in the world. I’ve seen “timber spikes” that have had a washer or aluminum tags wired to it making it clear that it was set by a surveyor. Kinda like blue, pink, orange, red, yellow or aluminum caps on #4 or #5 bars being a rebar or smooth rods. I’ve seen in one area 1/2″ smooth rods dipped in orange lacquer paint. You had to dig around them a little to see if they had orange paint to know who set it. Another area is a drag tooth or truck axles. A 1″square steel rod or some of us have heard of and seen or set cotton pickers/spindles. How about pipes? Capped ones or not? What are the local practices of the past surveyors in that area? Lots more research needed to even begin to opine what is correct or incorrect with a yes, no or even a maybe. If it’s an older sub plat from the ’30’s, ’40’s, ’50’s, ’60’s, ’70’s or even the early ’80’s, I would be looking real close at the boat spikes or 60d’s in concrete before I’d jump directly to the #5 rebars as the rebars tend to be something that came around in the late ’80’s. The rebars can even be dated by their manufacturing marks to be certain of the era they could have been set. You are in a recording state, are there any other survey records from around that area to analyze the type of markers past surveyors would have set? The 60d nails in concrete, someone thought it was significant enough to put concrete around it. Is the concrete in an old coffee can or tin can? How old are the cans? Are they really 60d nails or a 1/2″ rod in concrete? They could very well have been set by the engineer who did the sub plat, just sayin’. Too many unknowns.
I say if you have surveyed a great area to get to your lot, you should show that work as it would make it much more defensible and sensible to retrace your work in 50 to 100 years from now eliminating the unknown variables of Section 37/38. (It’s on your example average survey). Speaking of an average survey, there is not much there to try and retrace even for the ‘average surveyor’ yet alone a field tech/ button pusher that’s looking for rebars and caps to record on their touchscreen.
Just my Monday morning ramblings……
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IN Washington State…
(This is part of why we have different ideas on this. Different states have different rules and customs. Different areas of the state have different customs.)
IF the deed calls out the dashed line.
IF the found marks (B) are not set at the time of subdivision.
IF the found marks (B) have no tie in the record to the subdivision.
THEN in Washington state you would need a BLA of some sort (agreement or adjustment…argue among yourselves) to correct the deed to the surveyed lines. Meaning to correct the record to what the actual ownership lines are. This is not intended to mean that there is any doubt where the ownership lies, only that there needs to be an action to bring the legal descriptions into congruence with the actual ownership.
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IF the found marks are in fact the original marks of the subdivision,
IF the 60d nail is known to NOT be part of the original marks.
THEN the legal description (depending on the construction and other facts) would likely be to those marks (B), regardless of the bearings or distances called out.
In either case, to simply set “C” is not good practice, and does not protect the public (IMHO). (Of course, we might come to find out that it was simply meant to show the discrepancy on the ground for the land owners to facilitate the BLA process…)
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This doesn’t mean that there is no reason to set C…I would really like to see the survey that describes setting C…it would add to the conversation.
-All thoughts my own, except my typos and when I am wrong. -
@warrenward
Footsteps of whom? The subdividing surveyor acts as an agent of the owner, and so the corners they set are presumed to be the intent of the owner that is selling the land. This should not be disputed by anyone.
The confusion and honest difference of opinion comes when we do not know if the marks we find are the original plat corners of the XYZ subdivision. Just because a following surveyor gets it wrong, I have no right to continue that error.
The issue must always be protecting the public. Surveyors should passionately care about bona fide rights, and fight to protect them. But, simply keeping the peace isn’t really our job.
I don’t think anyone here disagrees with that, but the facts always matter.
Another issue is that a PLS with 10 years on their license is hopefully setting many pincushions, but most of us don’t step foot in the field.
-All thoughts my own, except my typos and when I am wrong. -
@sub-d-vider
I worked for a guy who would go out by himself and do one man surveying back in the T2/Topcon top mounted distance meter days. It was slow going to set subdivision corners that way and he would get in a hurry to put them in the ground. He would mark the corner with the intention of going back another day and driving in a rebar and cap. Years later in some of his subdivisions devoid of corners I would find screwdrivers, chisels, mechanical pencils at the coordinates that I would calculate for the corners. Often with bits of flagging, I knew it was his corner, only cause I had worked for him. Taught me a good lesson, set the dang thing while you are there, carry all the monumentation with you to the point.
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In Washington, if a row of five homes looking to be 20 to 30 years old each with fences built to monuments and homes within the setbacks defined by the monuments, and the touchscreen corner causes the only encroachment on the block, then what exactly has the touchscreen proven, and how has the touchscreen disproved that all previous monuments are not original or are not the legal property corners?
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@sub-d-vider
Sub, two points, the boat spike is from a well know local surveyor who set thousands of boat spikes in his time, and he was positively not the original surveyor. Most likely, it was he that is wrong, Often we get older subdivisions where there were no laws requiring the surveyor to describe their monuments so that it is easier to prove which ones are NOT original. Regardless what compels us to discard the work of our colleagues and rely on our touch screens as BETTER?
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Perpendicular does not necessarily mean precisely 90 degrees.
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@warrenward
What are you talking about? If there are monuments, who needs a touchscreen? Are you even reading the comments?
The fact that you think this is something new (and thus a “touchscreen” issue) is amusing to me. This is LESS LIKELY with a touchscreen. You have so much power, information, etc in your hand that you can make decisions on the spot that required multiple trips in the past. Most of the pincushions I find are from 90’s and maybe the 00’s. They were set because trying to figure out how the last guy got there would take forever.
-All thoughts my own, except my typos and when I am wrong.
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