No answer to the question, but a recap and
I don't see anything in my post that says that agreement equals reliance or agreement must be in place for reliance. I do question how anyone can rely on something if they are not aware of it's existence (and I am talking reliance by both parties).
Again, we do not know anything about the marker as found in place. We do have a statement that there is no evidence of use of that marker by way of cut lines or other physical occupation. If there is no reasonable way that a non-surveyor would have seen or known the actual location of the marker, how the heck can they rely on it?
My point being that if there was an 8' tall t-post with a white Clorox bleach jug on top of it, maybe the southern owner should have been aware of it and might be considered to have some form of notice of where the claim of the line is at. But even that would not bar him from stating the line is elsewhere.
I have had clients on a half acre tell me they know where their corner is and then show me an area about 10 square feet - that does not even encompass the corner monument. Just the mere existence of a pin does not mean there is reliance either. If I find the corner outside that 10 square feet should I just pull it as the client was relying on a speck of dirt instead of the monument?
> 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.
This is not just to argue with you, very seriously I ask:
How has the one party relied on it?
In the original posters statement, there was no indication of use of that marker. Could the northern owner have walked out to the pin, put his toe right on it and said "This is my corner marker!"? Or would he have walked to an area within 10-20 feet of the pin and said "My corner is around here somewhere, I think."?
Also - there are still two parties involved.
A while back, I actually posted synopsis of two cases that indicate a line is straight barring a call that indicates w/ a stream or ridge line, etc... and that a call to a senior line runs to the senior line as long as the senior line can be established. With the Kentucky conference and a survey committee meeting, I have not had time to get a copy of these to post. Between trying to catch up with work, I will try and do that as soon as I can as I am interested in the full case as well. However, it would seem those two courts might dispense with the pin found.
Ultimately, I have no doubt that Mr. Willis will make the correct decision for the case based on the specific nuances that do not come across on a message board post. However, his post does provide for some interesting discussion. For instance, it is interesting to hear from someone who participated in the activity that breaking down a section was not done when needed. From the metes and bounds area I practice in, I can tell you that a similar version was that surveyors would measure along a new line with ties to the original deed then they would simply recite the old calls to close out a 'new' description.
> 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.
:good:
Too True
Right on Frank!
If in fact gross error could have been identified with a distance; It would have been done years ago!
Keith
