OK - so how do you ....
Clearly you must analyze the evidence to be sure that the corners are original. If they are, and your client insists on his 55' wide house, it is off to the ZBA we go.
Devil's Advocate
What really gets me is, those surveyors who use the prescribed precision of error of the location of their corner monuments, as the requirements for accepting existing monumentation!
Keith
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.
I say "blunder" and "due care" and appropriate methods and you say "random acceptable tolerance"? Well I certainly don't advocate applying random tolerances.
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).
There's more to it than that. You can't be setting someone's property into someone else's land due to blunders and sloppiness. I am not advocating precise math always being the precise corner. But I believe that if you come behind another surveyor who set a corner in someone else's property you don't just say...too bad so sad, but it was already set and accepted and therefor the law has set in and you can't put it in the right place now. I think I agree with you in principle, but I don't agree with going overboard with accepting every monument that has been smooshed into the ground any more than I would agree with ignoring the deeded distances and bearings.
Devil's Advocate
I think we are mixing apples and potatoes. I am only referring (as in the OP) to the original monuments set at or near the time of creation. If we want to talk about subsequent resurvey's and opinions of boundary location after the original monuments are truley lost, thats OK. But the courts have been very specific and consistant “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.”
As it pertains to resurveys, the courts have also been very specific that our duty is to find the location of the original boundaries, not to adjust/move the boundaries to meet zoning requirements, etc.
It was Gary Whitfield PLS 882
Nate,
They have had 2 complaints at least now. I filed one the other day for unliscensed practice. It was against a Flood Determination Company in Texas. Now we will see how they handle it. It was not a complaint about a surveyor, by a surveyor, it was a complaint by a citizen about someone regulated by the board.
Devil's Advocate
Brian today the Plat is what was approved by the governing body, and the document used to describe the units within it for their sale, Statute provides the precision the monuments are to be set in relation to the approved Plat, in this case the setting of the monuments do not represent the original survey unless they have been set within the limits of the law simply because the monuments are intended to be in agreement with the plat, not the other way around. The Plat come first and approval is the norm before the monuments are ever set, there is even a provision to set monuments after recording the Plat, because of construction activities. There are times when the monuments yield over record, that is what I am pointing out, I am not throwing out the use of judgement, I am kicking just a little dirt on a hard and fast rule.
jud
Devil's Advocate
> Brian today the Plat is what was approved by the governing body, and the document used to describe the units within it for their sale, Statute provides the precision the monuments are to be set in relation to the approved Plat,...
True. The process of subdivision in most jurisdictions (even here) is spelled out either in state law and/or local law. Some states, like yours, even spell out the precision that must be followed. It sounds like your law requires the monuments be set with a certain precision. Great - that is the standard of care for the platting (original) surveyor. If he violates that he is subject to the penalties laid out in statutory, common, and administrative law. The surveyor is subject to the law, not the landowners that have purchased the lots with notice of the monumented boundaries, and have relied upon them. An untentional lack of precision cannot alter the ladowners rights.
>...in this case the setting of the monuments do not represent the original survey unless they have been set within the limits of the law simply because the monuments are intended to be in agreement with the plat, not the other way around.
Monuments on the ground are the actual expressed intent, not the plan as shown on the plat. Monuments control over measurements. Yes, as with most things, there are exceptions, but that is the widely accepted rule. I can cite more cases that have held that the monuments on the ground control over the plat when a discrepancy arises, if you wish.
Surely you are not saying the plat is the original survey? If that is the case, that would be similar to saying all section and quarter corners are subject to be moved to exactly where they are represented on the GLO plats, ie, at precisely at 40 and 80 chains. The monuments set at or near the time of platting are the original survey. They control over the plat if there is a difference (barring gross error and/or fraud); ie, accuracy not precision. As for a blunder, which is a determination of fact, unless your state law has specifically defined a blunder as anything greater than the standard of care (a certain precision), then that would possibly control in certain instances. If your state has such a law, I would like to read the statute as that will once and for all answer the age old question of "how far is too far" (at least in your state).
Devil's Advocate
Let's not lose sight of the fact that senior bounds are also presumed to be the bounds of a parcel. You know what they say, "you can sell what you don't own."....or should we be releasing that can of worms.?
Those property pins should be reasonably close to where they should be, don't you think? I mean, if you platted 100' lots, I wouldn't expect to find a lot corner @ 120'. That might make me think that maybe I am not finding the original monument or that it has been moved, or that I am finding a monument that represents something else entirely. If that's true, what about 110', 105', 101', or 101.5 feet?
My only point being that the monument is not the only piece of evidence to consider. Finding a monument does not mean you found the original, that is where it once was. A fence that is closer to matching the distance my be alternate evidence. Testimony, other facts associated with your survey might also be clues.
Lets say the "original surveyor" carefully set his monuments at a precise distance, and got everything right with a good linear closure of error. The owners accepted the monument and everyone is happy. Now the fence builder comes in and drives a fencepost right where the monument was, and when he is done drives that monument back in the ground close to the fence post. You come along and say sorry, I don't see any reason to reject the monument? It is within 0.2' of where my math says it should be? Now you don't meet minimum setback standards, minimum areas?
how about you find other monuments in the same subdivision that all seem to match each other within a relatively accurate precision, and even have more evidence that the fence post is closer to the original location than the "original monument". Aren't you going to use a preponderance of all the evidence? Look at the legal description (or subdivision plat), look at all the adjoining evidence, and find out the evidence that most fits in harmony with the particular situation you are surveying?
Devil's Advocate
I do call the Plats created in compliance with ORS 92 as being the original survey and the monuments were intended to be in compliance with the recorded plat within given tolerances, Monuments were not set according to some plan and then the Plat created from the field notes. The GLO set the monuments first using a prescribed method, this is the difference, the monuments were set before the Plat was created, could not have been anything else, because the Field Notes were used to control the dat5a shown on the Plat. Discretion and judgement need to always be used and enough data collected to provide a feeling of what was the norm, especially in older subdivisions, those created during the last 20 years or so should reflect what the Plat indicates, if not, the reason needs to be determined, it may be necessary to replat a couple of Lots because of occupation and improvements, just staking the occupation no longer is protecting the Public or your client, only way to remove the under lying platted lines is a replat.
jud
Devil's Advocate
Most of you living and working in the US under a rigorous system of land registry might be surprised how loose things can be elsewhere. This is a summary of the guidance in Scotland:
http://www.epca.co.uk/news/new-guidance-for-deed-plans-in-scotland
Believe me, the official guidance isn't much longer!
The lawyers handle registration and just about anyone can have a go at preparing a deed plan! Needless to say there are loads of boundary disputes. It's not that many years since the country was carved up between relatively few big landowners with their boundaries at the sea or along mountain ridge watersheds, so fine detail wasn't often an issue!
Devil's Advocate
> Let's not lose sight of the fact that senior bounds are also presumed to be the bounds of a parcel. You know what they say, "you can sell what you don't own."....or should we be releasing that can of worms.?
>
Yea, lets not go there again, well, yet anyway 😉 I assumed we were talking about interior subd. mons.
> Those property pins should be reasonably close to where they should be, don't you think?
Absolutely. That is what standard of care is all about.
>I mean, if you platted 100' lots, I wouldn't expect to find a lot corner @ 120'. That might make me think that maybe I am not finding the original monument or that it has been moved, or that I am finding a monument that represents something else entirely. If that's true, what about 110', 105', 101', or 101.5 feet?
>
Agreed. However, remember the measurements are only one form of evidence and they may or may not be the "best available".
> My only point being that the monument is not the only piece of evidence to consider. Finding a monument does not mean you found the original, that is where it once was. A fence that is closer to matching the distance my be alternate evidence. Testimony, other facts associated with your survey might also be clues.
Agreed. Not to complicate things, but we also may have to consider the boundary location doctrines, if applicable.
> Lets say the "original surveyor" carefully set his monuments at a precise distance, and got everything right with a good linear closure of error. The owners accepted the monument and everyone is happy. Now the fence builder comes in and drives a fencepost right where the monument was, and when he is done drives that monument back in the ground close to the fence post. You come along and say sorry, I don't see any reason to reject the monument? It is within 0.2' of where my math says it should be? Now you don't meet minimum setback standards, minimum areas?
The fence builder disturbed the monument - if that is a fact (derived from evidence) then you had better consider it. However, lacking that evidence, the monument, being the same type, age, etc, may be the best controlling evidence of the boundary. However, if it is the boundary, it will not make the lot non-conforming. The intent was to create a conforming lot, and unless the landowners have expressed an intent to change the status via a conveyance, it is still conforming. Just like some areas that require 40 acres to build, if the NW1/4SE/14 (a nominal 40 acre parcel as intended and patented by the gov't) ends up being 39.7 acres because the original GLO surveyor dropped a few links on the section boundary, the nominal 40 acre parcel is still conforming to the 40 acre requirement.
> how about you find other monuments in the same subdivision that all seem to match each other within a relatively accurate precision, and even have more evidence that the fence post is closer to the original location than the "original monument". Aren't you going to use a preponderance of all the evidence? Look at the legal description (or subdivision plat), look at all the adjoining evidence, and find out the evidence that most fits in harmony with the particular situation you are surveying?
Yepper, we had better consider all the relevant evidence and all the relevant laws, and usually a zoning law and/or a precision standard isn't controlling or relevant evidence.
Dang. I haven't agreed with anyone so much for so long, I may have to add you to my christmas card list (well, if I had one!!) 😀
Maybe not
> Actually, in many situations the existing "monument" is presumed to be correct, and we then look for both kinds of evidence, that which will either support or reverse the presumption of correctness.
I've read something similar before. I think it was even backed by a claim that "the law" says it is presumed to be the corner and the contrary must be proven. Odd thing is that I have not seen a court case that actually states:
"There is an object at this location.
There is no evidence of the who/what/when/why/how of it being placed.
There is no claim or use of the object as a corner by any parties involved.
As a matter of fact, there is absolutely nothing known about this object at all.
For all this court knows, it could be scrap space junk that just fell here.
The object is the corner!"
If you know of such a case, I would love to read it if you post a link. So as to not waste your time, I'll reiterate - there can be no reason, other than the existence of an object, given for declaring the object as the corner.
I know I have read cases wherein there is an object at a particular location and based on any variety of reasons for acceptance of the object as the corner, the opinion is rendered as:
"Here is a big bunch of reasons why we, the judge(s) involved, are stating that object is the corner -
Long list of reasons (or proof in other words)
That object is the corner!"
Being both a Professionally Licensed Surveyor and a lowly technically (at least reasonably) competent Measurement Technician, the only thing I 'pre assume' about an object found in a location is:
It's an object.
I just found it.
It is located where I just found it.
Any conclusions (either way) beyond that are going to have reasons (proof) for being made.
Devil's Advocate
>with measurements (in metric units, to one decimal place)
That seems to allow xxx.x kilometers, xxx.x meters, xxx.x cm, or xxx.x millimeters.
