You can't sell what you don't own and you can't lose what you didn't have.
Linebender, A Different Standard For M&B Descriptions
Most professional surveyors are up to the task on writing M & B descriptions. There seems to be an assumption that a surveyor wrote this description. Maybe so. It wasn't me. You wouldn't see a description like that from a surveyor today. But that was then and this is now. I'm sure the surveyors who work outside the PLSS could give the rest good pointers on writing M & B. You read the deed as written and go find it. My taste test for gross error is if it is so far off I didn't even think about looking there it must be gross error. If I find something near where I'm looking it is my duty to consider it valid evidence of the deed.
did your post not say the aliquot corners were at the end of the straight line? assuming these are 1/4 corners, then the line is already established...I certainly wont argue that the property lines hold for themselves but it does not hold for someone that has another piece of property that is not adjacent to this one. just my 2 cents.
Quarter corners would be a mile apart but I know what you meant. One is a sixteenth and the other a quarter. I understand the beleif that the line HAS to be straight. I was there once myself. I don't beleive that anymore for reasons I already mentioned.
so you believe that the line bends everytime a surveyor sets a point on it? lets say you have a parcel the same size and 400 feet away from this parcel, they do not touch..do you hold the corner of this survey and the 1/4 or 1/16th or do you try and reestablish the original line...for the sake of argument, let the deeds be identical except for the commencing call.
I beleive every time a corner monument is established for the first time with the intention of following the deed or the PLSS plan and relied on it is the same as an original survey monument, yes. After studying court cases and reading some thoughtful posts, articles and seminar material that was my only alternative. This line of thinking makes more sense to me than introducing cloudy trianglar slivers, overlaps and gaps into the mix. I beleive these things were invented from the need to satisfy our addiction to measurements. Before the EDM and GPS you didn't find so much concern over the measurements. It was all about the monuments.
What many have a hard time understanding is that during a RESURVEY, the present day surveyor is not "creating" a bend in the line. He FOUND the bend.
To put it in more understandable terms, a quarter corner (in a regular section ) is mandated by federal law to be at midpoint and on line between the section corners - Correct?
How many original, undisturbed, quarter corners have you found are exactly at mid-point and on line between the original, undisturbed section corners? Did you complain that the quarter corner was not set exactly as required by federal law? Did you move the quarter corner? Did you treat it as a closing corner, witness corner, etc? Did you show, on your survey, the found monument and another line showing where the "title" line was at? Did you recommend that the landowners hire attorneys to help them solve this very serious problem?
Why or why not????
Think about it........
How about this, if you don’t by the legalese about presuming the corners are correct, or are saying that the new corners are “across” the original line:
How do you know that those “original” corner monuments are in the same place they were 35 years ago? Are they the original stones? Have they (one of them) sloughed down the hill over time? If they aren’t the original stones, how do you know the replacements were set within an accurate tolerance….should you replace those? Where on the stone are you measuring to/from. Did a landowner find the original stone on its side and erect it so it wouldn’t be lost? Did he stand it up within a foot of its original position?
Might the rebar be a more accurate depiction of where the original monuments once were? Could they even be evidence that the original monuments have moved? Do all the bearing trees or bearing objects point to the “original” monument being correct within ½’? or even a whole foot? Does the bearing and distance between original corners that you measure match within a foot or two? If you ran the actual bearing between original monuments by stellar observation or by GPS latitudes and longitudes are you matching the original measurements within a foot? Of course you probably aren’t.
You cannot absolutely prove the fact that they are in their same original position. You are “presuming” they are by a preponderance of the evidence. (More likely than not. You can't prove otherwise). Those rebar are closer in time to marking that original line. Unless you can monitor those monuments’ movements over the years….how do you know which were where, and which were original? You must look at all of the evidence. You have monuments, you have bearing trees, you have marks that were set on those lines 35 years ago. Which ones do you call off? You must find compelling evidence that one of those marks are “wrong”. Having 35-year-old rebar that were reported to have been set on the line, and you match them within ½ of a foot….How can you dispute them with any true knowledge? Actually, matching to them within a ½ of a foot or so is more evidence that you are on the right line.
It’s not a case of saying that the newer owner can encroach, or a case of adverse possession across a line. It is a case of determining where that original line is. There is no encroachment. Your measurement on the line differs than the original measurements on the line. I would depict the line as N89ºXX’XX”E as-measured and N90ºE record call. My measurements of the lines differ, not the location of the line. The location of the line is “through” the monuments.
The landowner to the north did not lose anything.
There is nothing to accept or reject! You locate what you found, prepare your map, and give it to your client. If you are in a recording state you record it.
Good point. Do you connect the dots or just map the dots?
Brian
The general rule has been and still is, that that closing corner monument that is found off the line that it was intended to be on, is amended and a new CC monument set on the actual line that it is meant to be closed on.
There have been and still are circumstances where the CC monument is the best evidence of the line that it was intended to be closed on, and can be used for control in direction and measurement.
But the scenario of the off line closing corner is not the same as the context of the monuments that are found off line as being discussed here.
Keith
Not Enough Information To Accept Or Reject
I think Dave lives in the real world. 🙂
Keith
Keith, I respectfully disagree.
The 2009 manual on this issue has been presented by various BLM as that a cc can be accepted as a kink on line if the retracing surveyor feels that the surveyor who set the cc did so using proper procedure (i.e., he actually tied in the standard corners in attempting to set it on the senior line).
This is a deviation from the past BLM practice. It is recognition that many feel it silly to set a new cc 1 or 2 and possibly more feet away from the original cc simply because of better measuring ability. As long as there is some level of confidence that the original setter of the cc was diligent in setting it on the senior line, a BLM surveyor can now recognize the cc as being a monument on line.
It is a change in thinking for many, but is rather a recognition of a growing philosophy to not change field conditions simply because of better measuring capability.
not sure where you got that from my posting Dave, I said hold the established corners.
clearcut
I will disagree too, with your explanation of a new concept in how to deal with an off line closing corner.
The 2009 Manual at sec. 7-45 is a repeat of the guidelines in the 1973 Manual and the 2009 Manual at sec. 7-47 is maybe the guideline that you are referring to.
There is no new concept in using closing corners for control in bearing and distance, just because they are not too far off line.
It only makes sense in those situations where the sec. corners and 1/4 sec. corners are lost, that a closing corner monument may be used for total control of the line that was closed on.
If in fact the original closing corner was set on the Standard after retracing both directions, we have a different set of facts then and the CC should be used for total control.
However, closing corner procedures have no relationship to the concept that is being discussed on the acceptance of the junior corner monument that is slightly off the senior line.
Keith
> "So, Mr. Non-bending, if an established, recognized, and long accepted monument is 1/2 a foot 'over a senior line' is too far, please state a legal precedent or any other recognized authority that has established exactly how far is too far?" Is .45 feet too far? Is .35 feet to far? Is .25 feet too far? Is .15 feet too far? Is .10 feet too far? Is .05 feet too far? Is .01 feet to far? Is .005 feet too far?
I'm sorry, your honor, but my client purchased his property from someone that purchased the property from someone long before Mr. "I can do What Ever I Want" and he is not going to allow anyone to steal his property. I don't care what size it is, that is not the issue here. Just because some Jack-Legged-Surveyor thinks he can go around pounding irons in the ground anywhere he feels like and then stand behind the "nobody's perfect" defense.
> Once again. We can never set the monument "exactly" on the line, and the law does not require impossibilities.
Don't get me wrong, I agree with you for the most part, I just like to argue...;-)
And I know A LOT of lawyers that do too. Some will even go as far as using the Chewbacca Defense....
[flash width=420 height=315] http://www.youtube.com/v/6Xywqv1cDH8?version=3&hl=en_US [/flash]
You need to be prepared for anything....
Keith
Keith,
Attached is an excerpt taken from a presentation on the 2009 manual by Lance Bishop, Bob Dahl and Dave Morlan
> I'm sorry, your honor, but my client purchased his property from someone that purchased the property from someone long before Mr. "I can do What Ever I Want" and he is not going to allow anyone to steal his property. I don't care what size it is, that is not the issue here. Just because some Jack-Legged-Surveyor thinks he can go around pounding irons in the ground anywhere he feels like and then stand behind the "nobody's perfect" defense.
>
Thats all well and good, except the time to raise the objection to the "inprecisely" placed monument(s) has long since passed - before reliance and acceptance by both parties (or the previous owners), not 35 years later.
There was a thread on the "Old Board"; 'So You Want To Be A Surveyor'. Seems that a county surveyor set a pipe a long time ago and everyone relied on it until Deral found the original stone.......
Like I said; I agree with you for the most part. But, I know that there are people out there that don't.
A word to the wise...Always be ready to stand behind your work with conviction!
clearcut
Read the words very carefully.
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. . . established during an obviously careful retracement of the intersected, senior, or existing line, . . .
Keith
