I have always said we in California need to go to the top of Mount Diablo and start over, do it right this time.
I think some actually believe that and if in fact we used control surveying techniques, we would be somewhere in Indiana doing original surveys.
So, we do with what we have and appreciate how our predecessors handled life and the surveying world.
Keith
For the sake of argument..
Frank,
This reminds me of an earlier post of yours about a BLM surveyor coming into your area and subdividing a section and obviously using the trained bogus theory of subdividing a section by establishing those dashed protracted lines exactly on the ground!
Incidently, I still have not received a response from the Director, BLM after almost a year of sending them a question on this bogus theory!
I have been out of touch on the big ocean for the past 15 or so days and will pick up my mail tomorrow and maybe..........there will be a letter from the Director.
This is simply getting more embarrassing all the time and will get more, if no answer.
Maybe they just are too busy!
Keith
Surveying 320 Acres Response
The iron pin in question may designate the aliquot 1/4 1/4 of Sect 10 SE 1/4 and or Sect 15 SE 1/4. If so, to see if it has been relied on, one has to survey a quarter in each section. That is 320 acres.
For the North adjoiner to say he relied on it, absent fences or other improvements, some surveyor would have had to set the center of quarter based on it. The South adjoiner has a lesser burden since he has always understood he has a proper aliquot 40.
It is the surveyor's job to seek and find evidence of what is true. The surveyor must also consider that this pin affects Sect 10 SE 1/4 SW 1/4 and Sect 15 NE 1/4 NW 1/4. We have yet to hear from either. That it is 5.8' South may not affect the owners to the West, that it is 7' West does affect them. Therefore there are 2 more owners to be apprised of the situation.
To say one relied on that misplaced corner is just words. There are no facts, zero, none to support that statement.
In my opinion Frank Willis, shows all the facts, and as a professional has no basis to say anyone relied on the iron pin. The owner's will each get to state their cases.
His only other alternative is to get agreement from 4 lot owners.
In the end, the lawyers will win out, even if Willis is upheld.
Paul in PA
"While it is true as a general rule that the period of acquiescence in the agreed boundary must be equal to the period of the statute of limitations ( Silva v. Azevedo, 178 Cal. 495 [173 P. 929]) such rule is not without its exceptions. As stated in Young v. Blakeman, 153 Cal. 477 [95 P. 888], which case was cited with approval in Martin v. Lopes, 28 Cal.2d 618 [170 P.2d 881], experience has shown that measurements made at different times by different persons with different instruments will usually vary with the result that a line so established would never become a fixed boundary but would be subject to the variance of each new measurement. Hence it is now well established that where adjoining owners have agreed upon the true position of their boundary line, built up to it or otherwise so improved their property that substantial loss would result if the agreed boundary line were subsequently changed (153 Cal. 477, 481) and regardless of its accuracy as may appear by subsequent measurements, such line becomes the true line called for by the respective descriptions. ( Howatt v. Humboldt Milling Co., 61 Cal.App. 333 [214 P. 1009].)"
Needham v. Collamer, 94 Cal. App. 2d 609 (1949) which is admittedly an Agreed Boundary case but if the shoe fits, wear it.
more from Needham:
"Defendants further contend that the agreed boundary line cannot be upheld because it is not "marked upon the ground by a dividing fence or similar monument." While the actual erection of a fence or like monument along an agreed boundary would have great weight in the fixing of such a boundary such means are not exclusive, since the primary question is one of fact going to the question of whether there was an agreed boundary, and if so by what visible thing was it delineated. Here the evidence shows and the court found that the line was fixed by the plaintiffs and the Moys as running from an iron stake, which had been in position for more than 18 years, to two willow trees on the lake shore; that said line ran 30 inches to the west side of plaintiffs' garage, which garage had been built by Moy while he occupied the premises and in accordance with his understanding as to the boundary line."
Surveying 320 Acres Response
I disagree that this pin affects all the other pins in the quarter or rest of section.
The extreme of that is someone coming along and proving that a section corner was not in right position even though it had been used by a multitude of surveyors. Are you saying that property corners throughout the section would have to move? Not me. Land lines would never ever be stable.
I'm betting
Dang! Got the diaper wearing at the wrong end of the 42 year period.:'(
No! I Am Saying, That Other Corners Might Show Reliance
upon the pin in question.
If they show the contrary, then the statement regarding reliance may be unreliable.
In other words you have thus far failed to prove or disprove your point.
BTW, are there any accessories?
Paul in PA
No! I Am Saying, That Other Corners Might Show Reliance
Yes, his other surveyed corners show reliance on it. I also found reliance of the corner in question in 1982 by a very reputable surveyor.
No! I Am Saying, That Other Corners Might Show Reliance
The owner ordered a survey from a surveyor in 1971 and a corner was set. He relied that the survey established the corner. It did. The record since 1971 is evidence of the corner. We are into the 5th decade of notice. That monument is no different by now than an original monument set by the GLO.
No! I Am Saying, That Other Corners Might Show Reliance
Well said. I totally agree.
No! I Am Saying, That Other Corners Might Show Reliance
Well said, I totally agree!
That Is Contrary To What You Started Out Saying
How does the field to field of the ipin in question and the center of the quarter set (NW of the 40) agree with the record?
Paul in PA
No! I Am Saying, That Other Corners Might Show Reliance
Keith, How are you?
Long time no see.
What do you mean by "in the wrong place theoretically"? Do the 1971 subdivision monuments agree with the 1971 map? In other words, do the measurements between the GLO monuments have a similar error as the ones the surveyor set, or is there a mistake in the set monuments only?
Whether this is a mistake or an error should make a difference in the analysis, although not necessarily in the ultimate outcome.
What seems to be lacking here are "actions" of reliance that would lead to an equitable or legal reason not to disturb the 1971 pipe. No other survey has relied on the 1971 survey. No improvements have been based on it. No agricultural activity has been based on it. Descriptions and conveyances have not been changed to reflect it.
I think the survey to the south is correct in using the proper midpoint to lay out the remaining portion of the southern parcel, in either case. But I wonder if that surveyor would change their survey to use the 1971 pipe if that is held. Then there may be another dispute on the south line of that parcel. So, I would hesitate to say that the 1971 pipe is the 1/4 1/4 by original survey. It may be a property corner but it seems both current surveyors agree it's not the 1/4 1/4 per the government survey and description and mapping.
I would encourage the client to work toward agreements on all lines of that 1971 survey. I would also explain it may be more cost effective to simply resurvey the entire parcel and forget about the 1971 survey. A tough sell I know. But the apparent fact is that you have a retraceable actual government survey line, not merely a protraction that was finally laid down in 1971. On only the facts presented, I think the court throws out the 1971 pipe.
No answer to the question, but a recap and
comments on some interesting statements from this particular thread:
1. "Found provable corners at the south quarter corner and the southeast corner of section. These corners are accepted by everyone and have been for many years."
Frank Willis
2. "Corners set, by the original subdivider, always hold."
Radar
Quotes 1 and 2 relay the big issue I take with the idea that just because something iron is in the ground in the vicinity of a corner location means it has to be accepted as the corner. It seems many surveyors play a little fast and loose with the idea of the original subdivider - actually reversing the timeline of when the original division occurs. Making the more recent surveyor the original subdivider.
3. "It may be a problem that the south adjoiner didn't know where the Line is located, didn't positively acquiesce.
The fact that the monument has been in use since 1971 shows plenty of good faith uncertainty and no objection from the neighbor could infer an agreement depending on how your State's Court opinions see this."
Dave Karoly
One thing we do not yet know is if the south adjoiner even knew about the 1971 'corner' marker. What is the use that it has been put to other than by the north adjoiner (the person who paid for it's placement)? How could the south adjoiner have objected if he was not aware of the location of the marker?
Too often, surveyors do not have the integrity to contact the neighbor and let them know what the surveyor is doing with their line. Poking something down flush with the ground and sticking a wooden stake by it (especially in a large tract) really isn't very much in the way of 'notice'.
4. "The recent survey created a conflict but didn't change the right of your client to depend on the 1971 corner."
linebender
If the northern owner has a right to depend on the 1971 corner, why would the south adjoiner not have a right to depend on the outer corners that established his line?
5. "The landowners are already disputing the line. I am simply going to survey the location of the midpoint that another surveyor marked, and also survey the location of the 1971 rod. I will tell both sides that the use of the 1971 rod is what I propose, since it has been there so long and has not been challenged as far as I know."
Frank Willis
As the location is currently being challenged: In Kentucky, the surveyor has no authority to decide ownership. If the position is disputed, as indicated, the only thing to do would provide an opinion of the location of the line. If you can then get the neighbors to work things out, document the heck out of it. I would again question how aware of the location of the 1971 marker was the south adjoiner. Was there a witness post of some kind or some way for the south owner to have been able to easily find the 1971 marker?
6. "The owner ordered a survey from a surveyor in 1971 and a corner was set. He relied that the survey established the corner. It did. The record since 1971 is evidence of the corner. We are into the 5th decade of notice. That monument is no different by now than an original monument set by the GLO."
linebender
Key in that statement is that one individual with interest in the line ordered a survey and 'relied' on it. Again, what notice does the southern adjoiner have in this process? Not being familiar with Louisiana, I am thinking in terms of how things happen in my home state. We do not have a plat law that would have required a survey plat be recorded, the property description would most likely have remained the same as before, and there is no corner record recording - so my question would be exactly what provided 5 decades of notice to the southern adjoiner? If the answer is the existence of the marker, I would again ask how was it marked and did the southern adjoiner know anything about it's existence?
7. "You have a property corner set in 1971. You also have an ideal solution based on today's technology. Let there be peace on Earth, let this be the moment now."
Holy Cow
8. "My belief is that corner misplacement off the true line is probably about as accurate as many or most others in this rural section,..."
Frank Willis
7 & 8 are probably the result of the folks who think that measurement science has no place in the profession of land surveying. I have retraced surveys from that exact time period in rough wooded land with hills and bluffs. Using modern equipment and good measurement techniques, I missed the called points in the range of 0.10' over 3,000'+ distances. So accurate measurements actually could be made in the 1970s, it is just a matter of how much pride one took in their work.
Then there are the other 'surveyors' in that time frame who will have 10 feet of misclosure in the reported calls on a small quarter acre lot.
Frank
Good to see you and your postings too!
I was away on a ocean cruise to Hawaii and back home now and posting away on here!
Internet was expensive on the cruise ship!
Keith
No answer to the question, but a recap and
Those of us who were surveying in the 70's know something about measurement science, or at least what it meant at the time. Times change. Monuments rarely do. A monument does not need to be "agreed to" in order to have been "relied on". The ridiculous assertion that a monument must be open and notoriously visible to all in order to meet the reliance criteria, is like saying the original GLO corners locations aren't valid unless accompanied by a fluorescent stake adjoining them.
Another thing most of us know about surveying in the 70's who were actually doing it was that full section breakdowns rarely actually happened. With three man crews using tapes and plumb bobs, very few clients could afford to subsidize what can be done in a morning today using GPS.
The pin from the 70's is in it's fifth decade of existence. At least one party relied on it without it being challenged (until recently). It has ripened into a position of honor. Barring any extraordinary circumstances, none of which have been described here, I don't think you would find a court ready to dispense with it.
Unless you can produce some ancient document describing the corner in question as having been actually set with a recoverable mark, and you can prove that you can indeed find that described mark, I think the pin holds.
Just food for thought.
An original subdividing surveyor has the benefit of the individual parcel written descriptions being based on references to his work and monumentation. His work controls, generally regardless of errors contained therein.
And then there are those parcels of land where the written title refers to controlling surveys performed for the exterior of an original, larger parcel, but are by themselves unmonumented and unsurveyed. The task of the first surveyor to locate these written conveyances on the ground, is to first retrace the original, controlling boundary survey.
This first, albeit retracing surveyor, is giving his opinion as to the location of the written title on the ground.
He is not unlike an attorney who is giving an opinion on the meaning of a law. The attorney is not creating law, rather he is interpreting law.
If the attorney does a shoddy research effort and gives his client questionable advice, certainly he is liable for it.
However. The client does not get to have law changed due to his reliance on bad legal advice.
A shoddy survey does not locate a boundary which is dependant upon retracement of an original controlling survey. It is a bad opinion and the client was harmed. The client does not get to benefit from bad survey "advice" against those who are infringed upon. Rather both the shoddy surveyor and the harmed client are on the losing end of a well scrutinized review. They may find relief from the court on another principle of law, such as if the corner gains pedigree through common acceptance and reliance.
In my state at least, there is no cook book answer for when a survey was performed to a substandard level to where it should be considered worthless. Nor is there a cook book answer as to what the level of reliance is necessary for a shoddy retracment to gain rise to original status.
In my opinion, given the limited information presented, the 1971 surveyor's work was borderline shoddy. 10' is not unusual for that era, however much higher precisions were certainly possible and really should have been the rule rather than the exception. The level of reliance appears to be low. On the surface, it does not appear that this is truly a corner of common accpetance.
If I was to give an expert evaluation in a courtroom of law, I see it easier to undermine the 1971 position than to defend it.
Certainly a red flag is that the adjoiners are in dispute. The 1971 surveyor could and should have done better. And the level of reliance and accpetance is minimal at best.
WEll SAID by all, especially jon and marc.
Bottom line is something I have said many times....
The only accurate survey is the full-sized thing out there on the ground. All the measurements that were taken to get it on paper, and then putting it on paper are really nothing more than a convenient way to represent the full-sized survey drawn full scale out there on the ground. The only issue about that would be if the points marked on the ground grossly vary from intent or in fact grossly out of the attempted or guided position. So unless gross error exists, the monuments hold unless overruled by intent or gross error. I am using the pin and calling the misalignment geometry to the attention of the client by noting it on the survey.
ALSO,
Every survey has the same problem. It is just a matter of the degree of the problem, and where the threshold for gross error or violation of intent occurs.
