Jerry,
Not to hijack this post, I hope now is a good time to bring y'all up to date on Brann v. Hulett (Arkansas 2013).
Previous posts:
http://beerleg.com/index.php?mode=thread&id=233638
The 2004 Fletcher Plat (recorded in 2004)
ftp://ftp.geostor.arkansas.gov/Monthly_Plats/Jackson/00016475.pdf
The 2009 Lemley Plat (That just showed up last last week)
ftp://ftp.geostor.arkansas.gov/Monthly_Plats/Jackson/233359.pdf
Maybe Leon and Kent can review the drafting styles...but I am more concerned with the resultant 'mess'.
DDSM:pissed:
I don't think your two camps cover all the positions.
Isn't there a faction more like the second group, but inserting a factor of reliance? Call them the Cooley camp? They might say, for instance, that if no center monument was found in 1980, a rebar set, and a fence built to it, then reliance has made that the property line in the east half of the section, but since the west half is being newly subdivided if an older monument was found it would be controlling for the west half.
Edited to clarify.
Interesting read. Sounds like Hulett was his own worst enemy with his testimony. If he would have stuck with his story that they had an agreed boundary with the fence in the 70's the outcome may have been different. When he testified that they agreed to a dozed line and the boundary was not marked that pretty much made the fence go away. Also the 2004 surveyor did him no favors either testifying they did not survey with the GLO survey in mind. I don't see where the mess is. The court ruled there was no line so the 2009 surveyor laid it out as the original surveyor should.
Note that Mr. Lemley called for assorted 'Found' monuments. The section and quarter section monument labeled 'state' were ALL perpetuations by Mr. Fletcher in the 70's and early 80's. Can you figure out WHAT manual rules Mr. Lemley used to compute the section corners locations he used to proportion the quarter corner S5/S8?
DDSM
No I can't. I thought they were found. I do note that word "resection" . That is a concern.
After further review the 2009 plat looks like crap to me. If it were me I would say all it's good for is the 3 points the court ruled on. I certainly wouldn't hold myself to the corners that were computed and apparently not set? Isn't that a violation of minimum standards? It would be here.
> After further review the 2009 plat looks like crap to me. If it were me I would say all it's good for is the 3 points the court ruled on. I certainly wouldn't hold myself to the corners that were computed and apparently not set? Isn't that a violation of minimum standards? It would be here.
The Circuit Court ruled that the monuments found by Mr. Fletcher were the correct 3 points.
The 3 points that were 'set' using a proportion between proportioned positions by Mr. Lemley were ruled correct by the Arkansas Court of Appeals.
I also wonder why Mr. Lemley didn't use the 'state' monument at the SW corner of Section 5. By the way...ALL the 'state' monuments in this area are 'monument in place'.
Minimum Standards do require monuments to be set. Note the 2009 plat's "Description". The Survey was for only the West line of SW1/4 SE1/4 Section 5 and the West line of the NW1/4 NE1/4 Section 8. Lemley acknowledged a surveyor’s principle that “proportional measurement cannot be used to change long-standing corners” and stated that he had not been hired to find the east line of Hulett’s land, but rather to produce a G.L.O. survey of the line. He did not dispute testimony by Fletcher that numerous surveys, established
monuments, and existing corners vary from the G.L.O. surveys.
DDSM
So wouldn't the correct defense have been that the GLO never surveyed the interior lines and that the GLO contemplated the settlers finishing the interior subdivision in good faith and that using chapter 6 in the manual for guidance the retracement survey followed the long established good faith efforts of the settlers to finish the interior GLO survey ?
> So wouldn't the correct defense have been that the GLO never surveyed the interior lines and that the GLO contemplated the settlers finishing the interior subdivision in good faith and that the retracement survey followed the long established good faith efforts of the settlers to finish the interior survey?
Yes, that is also my opinion. I would have pulled out Wallace v. Fordyce 354 S.W.2d 271 (1962) and wielded it like a sword. 😉
In an effort to find evidence of government corners it should be borne in mind that more than thirteen decades and a lustrum have passed since the government survey was made and the corners established and the field notes made and filed. In the years that have passed between those events, armies have moved and a war has been fought in our section and the ravages of time and decay have also taken a toll of monuments which at best could be considered only transitory in a section where an outcropping of rock or other permanent material would be novel indeed.
It is entirely possible that over the generations past people have, as best they could with the crude methods at hand, located corners and lines from government corners that were known. Those corners may now be obliterated and difficult to ascertain but on the strength of those determinations of positions, forests have been leveled, fields have been cleared and tilled, homes, villages and cities have been erected and if there was error in measurement or location of any of these things it has persisted through a long period of time. That error, if error existed, may be reflected in lines of property long distances from the original markings but over the years they have been accepted and the court should weigh well the confusion and mischief that might be wrought by the change of an accepted line.
In some instances judgments and court decrees, as well as accepted usage, go back to corners established by our forebearers on the basis of the best knowledge they had obtainable and we rather think that the logic which brought forth the ancient maxim STARE DECISIS, ET NON QUIETA MOVERE, which has done so much to stabilize the decisions of the courts, might well be applicable as we contemplate the effect of the change of long established lines. In these circumstances we prefer to stand by precedent and not disturb settled points.
There you go! Looks like they should have hired you to testify.
My sentiments exactly I even handed them that exact case. I posted in your other thread about this DDSM.
Shoot me an email...I would like to know any firsthand details.
DDSM