Who subdivides a lot without tieing it to at least one corner of the parent tract???
This is an excellent reminder of how different things are between our practice areas.
I'm researching a boundary in the coastal plains of NC that probably was never officially deeded to the Board of Education.?ÿ There's one sentence in a 1912 deed that describes it as one acre given to the school.?ÿ It's more likely 2.5 acres.
Pedigree of monuments, plats, deeds that close within 100', what a luxury.?ÿ Then again, the absence of these things forces a person to do their own deed research and get creative with it (transpose numbers, pull wills, search mineral and timber records etc.) and above all place the actions of humans above mathematical ideals.
I've dealt with similar scenarios as the OP.?ÿ I prefer to meet with each owner separately and explain the situation with a sketch labeling the recalculated area and a list of possible outcomes or consequences such as zoning issues and decreased value.?ÿ I'll refer them to a realtor for the latter assessment.?ÿ
When dealing with the elderly, I insist on having one of their younger relatives or friends present.?ÿ I would tell both parties that I cannot predict what a judge will rule but my best guess (a word I'll emphasize) is that they'd hold the agreed to rebar.?ÿ?ÿ
This is the exact opposite of a random rebar with no pedigree. The rebar mathes the corners set and called for in the survey and "both are adamant the they sold to/bought to that pin"?ÿ?ÿ
I think this is an agreeable position, but there was also mention of a hesitancy to reveal that that rebar will change the occupied size of their lots by 1/3 acre with a fear that it may cause one to owner to inquire further.?ÿ I may be wrong but I think if they are truly agreeable to that corner, there would be no disagreement to the errant corner and that it should be clearly shown as such (record vs measured) on the new plat as deterring from the deed.?ÿ To not do so would be opaque and would likely cause worse problems down the road when one transfers their interest - and would look pretty poorly on the record surveyor. CYA with facts kind of thing.?ÿ I do understand not wanting to make an issue where there isn't one, but down the road those landowners, or any new ones, may not have any interest in protecting the map if it's to their legal detriment.
Document their agreement to the pin, get the record straightened out, then finish your survey.?ÿ Find a mistake -- fix it.
JBS
Weird that I get interested in this thread for a few days and last night, while listening to political news and watching short true crime mysteries, I stumble across this discussion with Jerry Mahun (?) on re-establishing boundaries.?ÿ One of the cases he discusses is almost exactly this problem.?ÿ I don't think I got a clear picture of what his answer to it is (beyond, "well, it depends.") but here he's discussing recognition and acquiescence, which would be one way to get this 'fixed' (beyond just noting the discrepancy on the new plat) I think fairly painlessly.
The video should start at where he's discussing this, about 35 minutes in
Sorry if this has already been posted, but this story reminded me of John's Little Acre
Problem is agreements are not always agreements. Here's something from Georgia that sounds familiar.
https://scholar.google.com/scholar_case?case=15288715867862302186&q=rebar+boundary&hl=en&as_sdt=4,11
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@duane-frymire Interesting case. I wish I knew why they held one monument and the bearing for the boundary line as Godowns interpreted the boundary instead of the 2 monuments on each end of the line. Seems that was the real survey issue in the case and I'm left wanting for more information on that aspect. This decision was more about whether the parties had an agreement, and I found that very informative, but seems like the bearing vs. monuments aspect was given short shrift.
@lurker?ÿ
That is one of the issues brought up on appeal. The parties stipulated (intended to agree) on a common boundary line. There were 2 different ways the parties interpreted the way in which to determine the line: 1) between the monuments; 2) from one monument, and then along a bearing. The trial court picked one. This issue was appealed because the trial court erred by establishing the common line between them. That conclusion is a fact based determination that should have been conducted by a jury, not the court (judge). As such, there could be no agreement (stipulation) to the common line because of the technical matter, so the "settlement agreement" was invalid.
This decision was more about whether the parties had an agreement, and I found that very informative, but seems like the bearing vs. monuments aspect was given short shrift.
And this is why I presented my understanding of this thread as "not a survey issue (yet)".
You have to get all the way through the underlying issues to even get to the "survey issues".
Intent and agreement (or lack thereof) cut survey issues off at the knees, almost every time. The video posted by @dave-o references this concept pretty well, and then elaborates how the Rules of Construction/Priority of Calls are a factor in evaluating the evidence with respect to intent & agreement, and not necessarily hard, fast, and unbreakable tennets, as many seem to believe.
And 99% of survey issues are matters of fact. The "proper" interpretation of evidence during your survey will bear out the direction to a favorable outcome. The trick is, did you do what you were supposed to, the way you were supposed to (common law/statute/rules) to not screw it up? Or did you "half-ass it" because your client only paid $800 to split off 1.5 acres, and now you've left a hole in your testimony so big that the opposing attorney can drive a truck through?
I can understand how you've arrived at your interpretation of a surveyor's role.?ÿ It is certainly reasonable that a PLS should concern himself with the facts and tread lightly around interpretations of the law.?ÿ As we're learning in America, it's the agreement on what exactly the facts are that gets hairy.?ÿ You could hold the deed math and I could hold the monument and neither one of us would be accused of having performed a grossly negligent survey assuming we adhered to local minimum standards and were ethical.?ÿ This likely extends to any or our surveys.?ÿ Ten judges and twenty attorneys could look at any given survey and differ on their interpretation of the relevant facts.?ÿ?ÿ
The intent was to convey land.?ÿ Maybe the grantor could visualize what two acres would look like, maybe not.?ÿ I'm not fond of interpreting deed math as intent as most people have a poor understanding of what a straight line, curved line, or even an acre looks like on the ground.?ÿ Another fact might be that the parties were perfectly happy before a surveyor came in and solved their problem.?ÿ Maybe this doesn't matter to some PLSs, it matters to me, as I like my clients and work in transparent and honest ways to keep them away from lawyers and courts and, by extension, pain and suffering.?ÿ Again back to Justice Cooley, there's history to support the quasi-judicial function of a surveyor.?ÿ?ÿ
As a citizen, I'm expected to know and understand the laws of the nation, my state, and my municipality.?ÿ This of course is as patently absurd as is the premise that a land surveyor cannot opine on boundaries established by the actions of humans.
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@lurker The point I see in relation to this thread is that an agreement is not going to hold up based merely on statements lacking the required background information.?ÿ A "meeting of the minds" simply can't happen legally if all the facts are not know to both parties.?ÿ Anything can be challenged, but detailed maps accompanied by corrective deeds and or quit claim deeds are more likely to stand the test of time than a procedure of recognition of a single statement followed by a map that doesn't match the record and leaves out important information (acreage).
The court didn't interpret the agreement, they said there was no agreement.?ÿ Then proceeded to rule on the boundary location per existing record and field evidence, which may have been different than what was in the agreement. Although presumably the Hudson map would have been part of that.
I can understand how you've arrived at your interpretation of a surveyor's role.
I'm not sure what you mean by "my interpretation of a surveyor's role"? If you know my thoughts better than I do, why are you on this thread instead of retired on a beach as a multi-state lottery winner? (unless you really are the unclaimed $1.3B Chicago area Mega Millions winner?)
As we're learning in America, it's the agreement on what exactly the facts are that gets hairy.
Are you insinuating that I believe everyone is entitled to their own facts in surveying? Because that is not the issue here, and everyone seems to be arguing about it. Carroll was offering evidence as fact. We can only evaluate his evidence as presented in the context of the other evidence.
Surveyors are not fact finders.?ÿSurveyors only collect, evaluate, and opine on evidence.
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Ten judges and twenty attorneys could look at any given survey and differ on their interpretation of the relevant facts.
Ten judges and twenty attorneys would likely not spend much time looking at any given survey to determine facts. The reason being is a survey is just an opinion of the evidence. If a case hinged on an interpretation of evidence to determine a fact, to then be applied to the case as a matter of law, a jury would be empaneled to evaluate the evidence and determine the facts.
Like average people, most surveyors don't have a clue about how the legal system works. I will grant you that 30 "average people" could look at any given survey, and not have a clue about what any of it means. But 30 average surveyors are reading this thread and don't have a clue about what any of it means.
In most cases of dispute, a bad survey is not the (cause of) "problem" for the underlying claim or tort. The accepted survey will show where the wrong occurred to assess liability.
I have not seen an initial claim against a surveyor for providing a "bad survey" to a client. The surveyor may get brought into a suit under the claim of negligence, but that would be because they affected someone else's rights that they owed a duty to, and that person is already a litigant.
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Another fact might be that the parties were perfectly happy before a surveyor came in and solved their problem.
Ignorance is bliss?
Today you are happy, but tomorrow you are diagnosed with terminal cancer and have 6 weeks to live. You may have been happy, but did you ignore evidnece that you had cancer prior to yesterday? Does this change how you will live the rest of your life?
Yesterday they were happy, but today it was discovered that there is a discrepancy between two sets of beliefs separated by time.?ÿWill that change how people proceed based upon new evidence?
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Again back to Justice Cooley, there's history to support the quasi-judicial function of a surveyor.?ÿ
Most people mis-quote or take Cooley out of context because they read this article or that article in American Surveyor or Point of Beginning, or the Lucas Letter. They rareley read the actual case(s). The surveyor's expertise is in service to the judicial process.
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As a citizen, I'm expected to know and understand the laws of the nation, my state, and my municipality.?ÿ This of course is as patently absurd as is the premise that a land surveyor cannot opine on boundaries established by the actions of humans.
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/sarcasm off (?)
Your survey license says you know and understand the laws of your state and municipality with respect to your craft, which includes the legal process and litigation.
Many don't know. And it's mostly because they don't read, or don't comprehend what they read, or just don't know what they don't know and don't care.
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the premise that a land surveyor cannot opine on boundaries established by the actions of humans
Opine? Sure.
Find facts? Not so much.
@murphy It is a basic part of our duty to understand the sources and meanings of law related to our profession. Without that ability we have no idea how to evaluate evidence.
I never suggested we should ignore it or not spend large amounts of time trying to understand it.?ÿ I'm only saying that there has never been and never will be an individual who understands the law.?ÿ Sure, we can and should apply our expertise, but with humility.
@murphy I'm certain I do understand many of them. I wrote them...
Interesting edit. Makes my reply read completely different.?ÿ?ÿ
I'm not sure what you mean by "my interpretation of a surveyor's role"?
I thought about writing a long preamble attesting to the fact that I don't know you at all and am only going by the words you've written in this thread and others.?ÿ I assumed, incorrectly, that this was obvious.y
I didn't see in your posts where you discussed having an open conversation with the affected parties.?ÿ This is my main departure from your line of reasoning, assuming I'm understanding it correctly.
You've mentioned, "the record", (may it live forever) in a way that gives me the sense that this matters more than the people living on the land.?ÿ I've seen this enough to have a healthy respect for the differences between PLSs who have only worked Colonial or PLSS. You work in a system that can promulgate surveyor error far beyond the boundaries of tracts adjoining the subject tract, though in theory it should not.?ÿ I work in one with few plats, no requirement to record them, and where it's might be more acceptable to believe people who point to a monument and say, "that's my corner".?ÿ Neither is right or wrong, just different.?ÿ Did you catch the thread about the British surveyors relying on bounds only, no metes?
All I'm suggesting is that if it were me, I would speak with the owners and disclose the evidence and answer their questions and offer to help them clean things up.?ÿ Probably this would be a plat and a couple of quit claim deeds.?ÿ Land owners don't always make rational decisions, but I respect their right to agency.
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Cheers!
Isn't it ironic that depite all the differences, the common thread is people?
I often wonder, despite society's "progress", why it seems as if the people are drifitng farther apart?
But because of that progress, we're able to come together on this website and hash things out.
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edit: I did not catch the thread about the British surveyors, but will have a look.
I'm just glad they called you Stacy