Well, I only drive through Georgia. And I'm not an attorney, nor licensed PLS there either. But I'm guessing if I stop in and ask any judge within that state "what is the best evidence of the intent of the parties to a conveyance?", that judge will tell me the contents of the deed (which appears to incorporate a survey plat by reference).
If you're guessing at the intent of the parties, then you're not surveying. And contemplating legal principles from which to rationalize which way to go seems risky in this scenario.
Seems to me, if you bring this discrepancy to the original parties attention (at the same time), then the original parties can decide what they meant, or what their intent is moving forward, and proceed accordingly.
Well, I only drive through Georgia. And I'm not an attorney, nor licensed PLS there either. But I'm guessing if I stop in and ask any judge within that state "what is the best evidence of the intent of the parties to a conveyance?", that judge will tell me the contents of the deed (which appears to incorporate a survey plat by reference).
This is a common misconception. The Deed relates to the nature and quality of title conveyed. Title is very complicated and usually doesn??t directly affect the survey.
The courts have long recognized a much broader evidentiary investigation with respect to boundary. Without a somewhat more liberal interpretation original monuments could never be accepted.
No one is guessing, direct testimony is available from both neighbors and they are in agreement.
YOu have both original parties in agreement so you could do a corrective deed and have both sign those affidavits. It's a deed reformation.?ÿ But if a lender involved you'll need them to sign off also.?ÿ
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No one is guessing, direct testimony is available from both neighbors and they are in agreement.
Really?
The grantor/grantee have a Deed and a Survey Plat that successfully conveyed 2.00 acres of land in 1999.
In 2022, they offer oral/physical testimony that directly contradict the Deed and Survey Plat.
I fail to see any "agreement".
Which is the "correct" evidence to rely on for their intent to convey land?
The Statute of Frauds is on my side here.
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The courts have long recognized a much broader evidentiary investigation with respect to boundary. Without a somewhat more liberal interpretation original monuments could never be accepted.
When you make a claim like that, the burden of proof is on you. I saw no support of said claim.
A court will first look to the "four corners" of the (record) document(s) to establish the best evidence of the intent of the parties to (contract) convey land. Absent any controversy toward the matter at hand, the search stops there.
The Deed and the Survey Plat appear to be 100% reliable at the time of the contract/conveyance in 1999. There is no controversy to these set of facts.?ÿAs far as we know, and insofar as we've been led to believe, the records indicate their 1999 arrangment is sound. We have no reason to belive they are faulty, and nor would a court.
The "supposed controversy" is being proffered as speculation in the form of "our current theory is: x, y, or z" from a 3rd party that may be missing key evidence, who is then going to make a professional judgment, and then potentially insert themselves directly into the controversy they seek to avoid.
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This is a common misconception. The Deed relates to the nature and quality of title conveyed. Title is very complicated and usually doesn??t directly affect the survey.
Your eyes, ears, and beliefs mislead you.?ÿI spoke not a word of title or surveying.
A deed is simply an instrument for conveyance of an estate or an interest in real property.
What better evidence of an intent to convey can you offer?
And yes, title can be complicated.
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I didn't see a clear statement on this: Does the plat close mathematically and does it make 2.0 acres?
@bill93?ÿ
Yes, it closes mathematically and the area is what it is supposed to be.
Does the monument match the description on the plat?
Do you doubt the land owners when they tell you it is the original monument??ÿ
Doesn't seem like there is a conflict here. Do you really want to disregard the footsteps of the original surveyor AND create a conflict??ÿ
Also, what are "lines of occupation", if they are not the lines the delineate that areas where it is obvious who is using what?
@aliquot?ÿ
The monument in question is an every day average 1/2" rebar as described on the 1999 survey. There are no fences or hedgerows as possession lines. There's a goat pen belonging to one and a chicken house to the other. I'm not the lead on this one, but two landowners in agreement trumps a surveyor's math in the school I went to.?ÿ
One of my first crew chief experiences taught a pretty good lesson. In a rough area of the county I had found a couple good corners and using my shiny HP41, computed the others needed. One computed corner happened to be in someone's living room. So I called my boss/mentor. He said to sit tight and do not set anything. He came and talked to the property owners. He told me to bring my iron to set. Then he instructed me to drive it midway between the houses. "But Mr. Rucker, the math...". He said " OK, go drive it in the living room and start a feud where one doesn't exist. I don't really care if the math is happy or not as long as the neighbors are happy." I shut up, and drove the iron as instructed. And later apologized to my mentor. Lesson received and understood.
The monument, goat pen, chicken house, and statements of the owners are expressions of intent. There is NO FIGHT. Who exactly will be using the survey? Answer: The only two people with a dog in the hunt.
Forcing the owners to accept the deed and plat in the face of long-standing actions is inviting a huge legal (and possibly regulatory) slap.
The monument, goat pen, chicken house, and statements of the owners are expressions of intent. There is NO FIGHT. Who exactly will be using the survey? Answer: The only two people with a dog in the hunt.
Forcing the owners to accept the deed and plat in the face of long-standing actions is inviting a huge legal (and possibly regulatory) slap.
I would go even further. You won't be forcing the owners to accept the deed and the plat. You are forcing them to ignore everything on the deed and plat except the numbers. The deed is direct referral to the plat. The plat represents the footsteps of the original surveyor and the footsteps leed right to the monument the owners are happy with.
If the intent was to convey 2.00 acres and a plan and deed reflect that, I would go with that. Otherwise, prepare a lot line relocation plan to the agreed line (I'd obviously check minimum lot zoning requirements). Any parties involved would need to sign off on the deeds that reference the plans.
@mark-o You have a monumented corner agreed to and acted on by the owners. The dimensions on the plat and deed need to yield. Taking the owners through a planning process is the wrong tool to memorialize this clear case of establishment.
Document the evidence and folliw the statutory or case law process to reform the record.
You say one of them may have a problem signing an affidavit if they find out their acreage is 1/3 acre short.?ÿ So, if I'm following some of these responses, the suggestion is to somehow hold the incorrect pin without letting on the acreage problem??ÿ In other words, you hide the fact that the one pin doesn't match the record in order for it to be the corner? I'm not sure that's a real good plan.
At this point in time, I don??t see this as a ??surveying problem? (yet), and my subsequent comments should reflect that.
I??m struggling to get anywhere close to your conclusion, based on your statements. If I misunderstand the facts, I would appreciate them corrected, and I will fall on my sword.
Or don??t.
Because it doesn??t really matter, this has become quite tiresome, and I will agree to disagree. Ultimately, you and your other LS will have the last word any way.
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We couldn't find the 1999 corner on the road (south end of common line) at the computed position. "Uncle Glenn" took us straight to a 1/2" rebar at the base of a large oak. It was 50' from our computed position based on other irons found. So you were shown some random rebar, with no pedigree, history, or consistency with the Deed or Survey Plat.
So we went and asked Mrs. Mary. Her adult son took us straight to the same rebar. Did you ask Mrs. Mary, or did you ask the son? Because those are two completely different people, and your "testimony" did not come from the original grantee. While Glen may believe that to be the corner, Mary has not weighed in herself. The Son's testimony may reflect his belief, but is hearsay as to Mary.
So we located all of Mrs. Mary's corners, all of Uncle Glen's corners on the parent tract to prove/disprove the corner in question. At best, you may have located one-half (2 of 4?) of Mary's corners. In a previous statement you said you "couldn't find the 1999 corner on the road (south end of the common line) at the computed position." But, in trying to determine the common line, you've accepted a single 1/2" rebar, with no pedigree that is 50' away from a position derived from every other corner in the original survey that "fit"?
On the North end of the common line, neither land owner had a clue where the corner was. There are no lines of possession on the line in question but there are areas where its clear who uses what. These two sentences contradict one another, and your "conclusion" about "lines of possession" completely contradicts itself.
The surveyor that surveyed Mrs. Mary's property is deceased but I've followed his work many times with no problems. We can put the line where Mrs. Mary's plat says it should go but both are adamant the they sold to/bought to that pin. No, Glen & Mary's Son "think" that random 1/2" rebar may be one their corners. Again, not Mary, and no historical connection to the original survey.
Uncle Glenn and Mrs. Mary are willing to sign affidavits stating that the iron in question has been relied upon as the corner since 1999. So far as we know, your staff have only spoken with Glen and Mary's Son. At what point did Mary actually testify on the subject, that you have not told us about?
I just don't know if that will happen when one of them realizes that their acreage will be short (by about a third of an acre) due to the difference. This statement right here is proof positive that one or both of them may not be aware of an error, if there is an error. And you're not sure what is correct either.
I would call it reliance on a pin set in gross error. You can call it whatever you want, but this situation is not gender fluid.
Can land owners acquiesce to it? We might find out. Thoughts?
Mrs. Mary's deed refers to the 1999 plat. We didn't find anything at the computed position... Not a stitch of flagging, not a cut limb, nothing
I left that part vague on purpose. There is currently no dispute since they both agree that the rebar marks their common corner. There will be if we put the deed line on the ground. The problem is that you are ??assuming? there is no dispute because you ??assume? both parties have all of the facts and full knowledge of the current situation (which they don??t, based upon your own admission), and have subsequently agreed to a different circumstance.
Fundamentally, there cannot be a dispute if both parties are unaware of the full facts of the situation, and a potential adversarial claim/outcome related to the omission of those damning fact(s). Omission of facts is lying, no matter which way you try and slice it. And now you're possibly within the realm of Board Sanction.
I didn't say which party would be favored because it doesn't affect the answer to my question. You missed the point of the "favored" position remark. If all the historical and field evidence is harmonious, then the parties are at equity. You are already aware of a discrepancy and are fearful of the outcome/repercussions if/when both parties learn the truth.
Yes, in Georgia many times the deed refers to the recorded plat and makes it part of the description. Glenn wants to convey land to his niece that adjoins Mary. So we have to determine her line to know where Bailey's will begin.
Our current theory is that Mary or someone, may have had it surveyed and for some reason revised the plat and the pins didn't get "revised" or the wrong one used in the description. You have not presented any evidence to support this claim, despite complete and utter reliance on a fabrication that you seem to be hanging your hat on.
A peek at the 1999 surveyor's records didn't help either way. How can that be possible? The original surveyor??s records will either support the plat, or show an inconsistency with the plat. If there truly was "didn't help either way", then the original Survey Plat is sound.
?ÿAnd Mary is quite old and doesn't remember anything like that. Is it Mary that doesn't remember, or is it Mary's Son? Because you have a habit of using "Mary/Son" interchangeably as is convenient.
Yes, it closes mathematically and the area is what it is supposed to be. Every cited instance of the Survey Plat(s) appears to indicate that the original surveying is good, except for a missing corner or two?
The monument in question is an every day average 1/2" rebar as described on the 1999 survey. For all we know, is some random rebar, with no history, pedigree, or consistency with the Deed or Survey Plat. What you fail to clarify is that THIS 1/2" rebar is NOT one of the corners of the Survey Plat, it is not on the Plat Line, nor at the correct distance. Not every 1/2" rebar in existence is a valid corner to the Survey Plat, or parol evidence to the contrary.
There are no fences or hedgerows as possession lines. There's a goat pen belonging to one and a chicken house to the other. How do you know these are not encroachments? (That??s a legal determination, please don??t answer.)
I'm not the lead on this one, but two landowners in agreement trumps a surveyor's math in the school I went to.
One of my first crew chief experiences taught a pretty good lesson. In a rough area of the county I had found a couple good corners and using my shiny HP41, computed the others needed. One computed corner happened to be in someone's living room. So I called my boss/mentor. He said to sit tight and do not set anything. He came and talked to the property owners. He told me to bring my iron to set. Then he instructed me to drive it midway between the houses. "But Mr. Rucker, the math...". He said " OK, go drive it in the living room and start a feud where one doesn't exist. I don't really care if the math is happy or not as long as the neighbors are happy." I shut up, and drove the iron as instructed. And later apologized to my mentor. Lesson received and understood. This anecdotal story is far from being ??on point? with the current facts you have tendered for consideration. The only lesson that could be learned from this allegory is that you knew how to follow instructions, because setting an iron ??half-way between two houses? is not ??surveying?, and lacking any other rationale, is exactly the kind of contemptuous and insolent behavior plaguing the surveying profession to this day.
The current record indicates: You were shown some random rebar, with no pedigree, history, or consistency with the Deed or Survey Plat, and you/staff find it to be compelling evidence. You claim you asked Mary about the random rebar, but her Son provided testimony on her behalf in the form of hearsay. At best, you may have definitively located one-half (2 of 4?) of Mary's corners, while every cited instance of the Survey Plat(s) appears to indicate that the survey is good, except for (two) missing corners? You claim neither landowner had a clue where the corner at the north end of the common line was, and there are no lines of possession, yet your staff are able to conclude where lines of ownership exist, based upon the location of some potentially encroaching ??livestock structures?. You openly admit, ??I just don't know if that will happen when one of them realizes that their acreage will be short (by about a third of an acre) due to the difference?, but on the other hand, vehemently defend the notion that both parties are fully aware of all of the fact and circumstance surrounding their boundaries by agreeing to the errant 1/2" rebar, which may affect 3rd party interests, encumbrances, easements, etc.
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As they say on Reddit:?ÿ Roast Me.
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That wouldn't fly in my state. In Massachusetts, at the time of the conveyance in 1999, a plan would have to be drafted up to show that the lots meet the minimum zoning lot requirements. If it does (has sufficient land area and frontage), it would be approved as an ANR (Approval Not Required), but it would still need the signature of the zoning enforcer, and then be recorded at the local registry of deeds, upon which the new deed(s) would reference. It sounds to me like the uncle's intent was to convey 2.00 acres (the .00 after the decimal point makes that pretty clear). Agreeing after the point to a monument placed by who knows who/when would hold little water. In my state, zoning regulations hold a lot of significance. We can't just cut off a pice of land and agree to a different boundary whenever we decide.
If I were in that situation, I'd present all the evidence to the owners and if they wanted to correct it to reflect the rebar (how and why it doesn't go to the ROW baffles me, but that's another question as I don't have the plan). If they can make all 3 lots meet zoning, I would draft up a new plan and have it recorded.
