Nate,
I ask WHO it was and WHEN it was...I doubt you were the FIRST in Arkansas to file a complaint.
DDSM
OK - so how do you ....
stakeout a house. This is not a far fetched example, but reality - I run into this all the time.
Let's use the current example of a 75' wide residential lot. And say the front 2 pins you find are only 74' apart. Clearly there is a discrepency. And the local zoning regulations say you have 10' side yard setbacks.
Now a client comes along and says he has this 75' wide lot and wants to build a 55' wide house since he knows about the side yard requirement. How do you stakeout the house since the front pins don't allow room.
So don't tell me that zoning and subdivision issues don't come into play when trying to resolve where corners are supposed to be. Just because you have to irons that look good doesn't mean they are.
Precisely!
Relied on usually does define ownership but does an out of specs monument shift platted lot lines when Statute clearly states the tolerance shall be .....?
jud
Corners?
We don't need no stinking corners!
OK - so how do you ....
Those questions were touched upon, to some extent, in [msg=128636]this[/msg] thread. There were some good responses to the OP.
Kent posted quite some time ago concerning a lot/block survey he performed where a majority of iron pipes missed the platted geometry by roughly 0.2' in differing directions with one adjacent(?) iron pipe missing by roughly 0.8'
Numerous responses, extended discussion, quite a bit to learn there.
OK - so how do you ....
> So don't tell me that zoning and subdivision issues don't come into play when trying to resolve where corners are supposed to be. Just because you have to irons that look good doesn't mean they are.
That is the problem, you are looking at the situation and the solution wrong. We do not place boundaries "where they are supposed to be" or "where they should have been set". We find them where they are.
Maybe not
> If they are original corners set by the original surveyor of the subdivision they hold. If the monumented dimensions end up being 74.8 x 75.2...then so be it. Irregardless, the platted document doesn't change...at least that's the way it works around here. The lot dimensions don't officially change until the plat is modified and that's a very painful process around here.
:good:
A few references
"Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity." Cooley
“In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. Clark on Surveying and Boundaries, 2d Ed., Sec. 411, page 495; Kahn v. Delaware Securities Corporation, 114 Fla. 32, 153 So. 308; LeCompte v. Lueders, 90 Mich. 495, 51 N.W. 542; City of Racine v. Emerson, 85 Wis. 80, 55 N.W. 177; Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384. As stated in 8 Am. Jur., Boundaries, Section 102, page 819: "The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it." It is generally held, therefore, that a resurvey that changes lines and distances and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat. See Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384; Cragin v. Powell, 128 U.S. 691, 9 S.Ct. 203, 32 L.Ed. 566; City of Racine v. Emerson, 85 Wis. 80, 55 N.W. 177, 178.” Akin v Godwin, 49 So.2d 604 (1950)
"Although without final authority, the surveyor when employed on a resurvey must act as judge and jury, collecting the evidence, hearing the testimony, interpreting the law and then making a decision consistent therewith. Questions relative to faulty surveys, obliterated monuments, contradictory testimony, disputed boundaries, riparian rights, inconsistent deed descriptions, erroneous plats, and legal decisions may be involved." (Clark on Surveying and Boundaries, second edition, introduction ix.) "The authorities are agreed, in such controversies, that any testimony tending to show the location of the line as established by the government survey is admissible, and the parties are not limited to the expediency of having the line established by a surveyor. [18] `In cases of disputed boundary, all evidence, whether documentary or parol, which bears upon the point in issue and which is not inadmissible on general principles, may be received in evidence, including records of original proprietors, their plans and maps and the location of lands by ancient settlers.'" (Pounders v. Nix, 222 Ala. 27 [130 So. 537, 538].) To the effect that this is a sound principle, see 8 Am.Jur. § 94, p. 812; 11 C.J.S., § 105, pp. 698, 703, § 116, p. 714, § 117, p. 727. [19] In section 108 of 11 C.J.S. it is stated at page 704: "Lines actually run and marked on the ground may be proved by any evidence, direct or circumstantial, competent to prove any other disputed fact, and where markers of the original survey have been destroyed, secondary evidence as to the authenticity of their relocation is admissible." Chandler v. Hibberd, 332 P.2d 133
And finally, Tyson v. Edwards, 433 So.2d 549 (1983)
“More simply put the question is: In the event of a discrepancy as to subdivided land lot lines, do you go with what the original surveyor intended to do as shown by the plat or do you go with what the original surveyor did by way of laying out and monumenting his survey on the ground?
Surprisingly, because of surveying principles based on established surveying practices, the correct answer is that what the original surveyor actually did by way of monumenting his survey on the ground takes precedence over what he intended to do as shown by his written plat of survey.”
OK - so how do you ....
My interpretation would be that if the lot was platted at the lower limit 75 and approved, it is still a buildable lot, but for new construction the guy needs to meet the setbacks and winds up with a maximum 54 ft house.
OK - so how do you ....
> stakeout a house. This is not a far fetched example, but reality - I run into this all the time.
>
> Let's use the current example of a 75' wide residential lot. And say the front 2 pins you find are only 74' apart. Clearly there is a discrepency. And the local zoning regulations say you have 10' side yard setbacks.
>
> Now a client comes along and says he has this 75' wide lot and wants to build a 55' wide house since he knows about the side yard requirement. How do you stakeout the house since the front pins don't allow room.
>
> So don't tell me that zoning and subdivision issues don't come into play when trying to resolve where corners are supposed to be. Just because you have to irons that look good doesn't mean they are.
Well, I guess the landowner should have had a survey performed before buying the lot, or if damages are incurred and it can be proven the original surveyor was negligent, He better have a deep wallet. Those circumstances do not change the location of the boundary line. See my post entitled "A Few References". I'd be happy to review any case cites you have supporting the theory that Zoning laws change established boundary lines.
OK - so how do you ....
>
>
> So don't tell me that zoning and subdivision issues don't come into play when trying to resolve where corners are supposed to be. Just because you have to irons that look good doesn't mean they are.
I hear where you are coming from but I can't see how you can let zoning regulations influence your surveying decisions.
OK - so how do you ....
> My interpretation would be that if the lot was platted at the lower limit 75 and approved, it is still a buildable lot, but for new construction the guy needs to meet the setbacks and winds up with a maximum 54 ft house.
In these cases, we would always create 76' wide lots to avoid future non-conforming lots. If you make all the lots 75.00', half of them will be non-conforming given the tolerances allowed in setting the (original) monuments.
Devil's Advocate
So, if I create a subdivision and someone goes in and set pins that were not where I subdivided the land, does my subdivision then change because of their incompetence?
Did you mean "accurate!"?
(oops, I almost forgot my smiley-face 😉 )
Devil's Advocate
If they set the monuments to an acceptable tolerance (the same tolerance any reasonable surveyor would adhere to), then they are in the correct place. If they set them at a blunder, I would agree, that something should be corrected. I have trouble believing that the surveyor has no responsibility to use due care and appropriate methods to set his or her corners.
Devil's Advocate
> If they set the monuments to an acceptable tolerance (the same tolerance any reasonable surveyor would adhere to), then they are in the correct place. If they set them at a blunder, I would agree, that something should be corrected. I have trouble believing that the surveyor has no responsibility to use due care and appropriate methods to set his or her corners.
I don't think anyone is claiming that an original surveyor shouldn't or isn't supposed to use due care and appropriate methods, he is expected to perform the measurements and set the monuments, etc., within the standard of care. However, just because the monuments happen to be outside some random "acceptable tolerance" doesn't mean they are automatically deemed unacceptable as evidence of the boundary. Technincal "minimum standards", just like zoning laws, do not change boundary law and the rules of evidence. They may however, be used as a measuring stick to find out if the offending surveyor was negligent, and therefore he may be subject to discipline and damages to the landowner(s).
Don't most plats say something like,
"This plat represents a survey made on the ground by me or under my supervision."?
That statement clearly expresses what was performed first - the ground work. If the original undisturbed monuments differ from the plat, the plat contains the mistake, not the ground.
It was Gary Whitfield PLS 882
And, the State BOR told me that it was the FIRST one filed, WITH documentation, WITH affidavit, and WITH specific complaint, written out.
Thus, they said it was the first properly filed complaint.
There were others that grabbed the phone, and complained, and other stuff. Maybe even a letter of complaint.
But, that is what THEY told me.
Life. Aint it grand?
N
Devil's Advocate
Here, using the provisions of ORS 92 there is a good argument that the found external boundary monuments may be considered as the proper evidence to hold, it is not so with the internal evidence found in conflict with the Recorded Plat, those Plats come first and must go through proper review and obtain written approval before they become reality by being Recorded. Those Lot and Parcel lines do not move or disappear without a replat, a boundary line adjustment within a platted subdivision or Partition, by changing ownership lines is creating another unit of land because that adjustment can not move or remove platted lines, those 3 units involved, where there was once 2, then become non conforming. Old Plats and lands described individually have a little more leeway where holding reasonable locations of occupation and recovered monuments may truly represent what could be accepted as evidence of prior surveys and intent. When the record comes first, then those records and their numbers hold, you may find ownership has changed because of occupation but by monumenting that occupation line as a division line between two owners you have caused both tracts to become illegally created units of land and they will remain so until a replat is done. Only reasonable that, as measuring tools improve, population densities increase making land more valuable, that the record becomes more important than in the past. Like it or not, we are coming to a point where not holding the record will need very strong evidence and much scrutiny before rejecting record will be the norm. Laws evolve because of different needs and established law of the past will change because it no longer applies, we are in a transition phase today and that change is not coming about without some problem. ORS 92 is State Statute and not an opinion of a local planning director or a local zoning decision.
jud.
