Reality and Equity
> Got to love the quotes around the term "original monuments", as if this is some sort of mythical thing or dubious proposition.
Dubious, no. But, mythical, that sure seems true. When ever a surveyor finds one, they (me) do the "candy dance" around it while shouting and slapping hands. It's like finding gold! Then they get all bummed out and confused when their mystical find doesn't mean anything to anyone except themselves. (It's happened)
> You've got to love the implied over-simplification of boundary determination, as if it is merely a cookbook proceedure
>
I wasn't talking about "procedure" Kent (yes, it's spelled with two E's, but not together). We all know your penchant for "cookbook" solutions. You'd better stick with the cookbook you know and love: Step 1) hunt for stone; step 2) can't find stone; step 3) ignore all physical evidence that doesn't look like said stone; 4) set new shiny bobble where stone was supposed to be; and, step 5) go home.
> Actually, that overlooks the entire nature of the problem, i.e. that the parties to a conveyance chose to describe a boundary in a particular way and that the evidence that they truly intended something else cannot often be proven, particularly when neither is around, all that is left is an inexpensive fence of unknown origin, and neither landowner has been coached to testify about it as the "rules" require.
>
Sounds like a perfect opportunity to find out the truth; before the landowner has been "coached to testify" that the fence is meaningless, because Kent told him it was after he questioned why Kent's shiny bobble wasn't on the fence line that his great grandfather told him was on the line that the original surveyor staked.
> That's a highly novel idea! The entire concept of boundary retracement involves following the footsteps of the original surveyor and making judgments about what is evidence of those footsteps and what is not. Part of the record of that survey are the survey measurements reportedly run along boundaries. It is usually not warranted (in Texas) to conclude that a tract that was cut out for conveyance wasn't surveyed at the time.
>
Actually, the "entire concept of boundary retracement" speaks to the determination of the intent of the landowners. Kent likes to shorten that concept to a presumption that the surveyor's footsteps are infallible expressions of the landowners' intent. That's not always the case.
> If one follows the rule that Texas courts have adopted, i.e. that many fences are presumed to be merely casual fences, the only way of showing that not to be the case is by showing a sufficient similarity to the conveyance of record that it is reasonable to conclude that the position of the fence perpetuates a line that had been run and marked upon the ground.
>
And... the only test in TX about that is whether the fence matches the Brng/Dist called for?
> That's a pretty theory, but one that doesn't take into account the evolution of the land ownership system and the gradual movement of the law as it evolves as well.
>
I haven't seen a case yet where the courts failed to determine the location of the boundary. The law has always been sufficient. Just because the doctrines may have "gradually evolved" doesn't meant that they've, at any time, been incapable.
> In Texas, it's more like just a few landmark cases.
>
Did you meant to say that, "In TX, I've only 'read' a few landmark cases." Or, "In TX, I only follow a few landmark cases that I like." There are a whole lot of TX cases dealing with boundary determination.
> The whole rule-based argument completely overlooks the role of equity in the way that boundary disputes are often resolved, and specifically the equities that may be shown and argued in court. While it is true that equity consists of a number of broad principles, to call them rules leaving little scope for alternate decisions would be a significant misunderstanding.
>
Most of the rules are based on the "role of equity." The rules of repose are "rules of equity." The rules of estoppel are "rules of equity." I'd say the "whole rule-based argument" is completely founded in equity. The court made the rules, they didn't set themselves up as the only ones who can follow those rules. If they did, what would be the point of a rule that no one is expected to follow?
> Until it goes to court.
There is a huge void between the discovery of a problem and "going to court" to look for resolution. That's the area where I have found incredible opportunities for surveyors. Opportunities for surveyors to stay in the game and to provide a professional level service to their client with the hope of resolving the issue before it "goes to court." Even if it does end up in court (only because the parties have failed in their attempt to resolve the issue), there's still a huge void left by our profession who have not been trained to offer a professional service for which the court is in desperate need.
I'm looking for and finding opportunity, not excuses.
JBS
JBS:
> I like dissertations myself, and I think this was an excellent one. The distinction between created and established boundaries is especially useful (I think I first saw you draw it, perhaps less formally, in the storied Knerr v Mauldin thread(s)). Thanks very much.
You're right, Cee Gee. It was around that time when these concepts really started to gel. That was back in 2006. I also was involved in two cases locally that really helped to further gel my understanding of the concept. I sure had to turn off my surveyor brain to understand it, though. Once I did, I found that it opened a huge level of opportunity and self-confidence.
JBS
Reality and Equity
YUP, you've appointed yourself "mister correcter". That's the problem, you think you know it all such as in self righteous indignation. Self appointed board moderator.
Well, everyone meets someone at some point that is smarter than they are. Too bad you can't recognize that and learn something. I'm not claiming to be that guy but there are several others on the forum way ahead of you. I'm sure you're pleased to be the "correcter" stalling land surveyors professional progress. Why develop beyond the measurement technician they licensed you as?
I have a suggestion for Wendell. There should be a quota on the percentage of posts any one poster can have. Maybe limit it to 1% or 2% at most. Let's open this up to all and not have it dominated by self appointed "correctors."
Maybe that is where god came from. Some average guy just appointed himself.
Reality and Equity
> > The entire concept of boundary retracement involves following the footsteps of the original surveyor and making judgments about what is evidence of those footsteps and what is not. Part of the record of that survey are the survey measurements reportedly run along boundaries. It is usually not warranted (in Texas) to conclude that a tract that was cut out for conveyance wasn't surveyed at the time.
> >
> Actually, the "entire concept of boundary retracement" speaks to the determination of the intent of the landowners.
Okay, I'll have to read the rest of your remarks later. When I read something as detached from the reality of surveying practice as your idea that the exercise of boundary retracement is something other than determining where the original surveyor ran a line or made a corner, it makes me think that the rest of it isn't worth the trouble. My own suspicion is that you just may not do very much retracement work at all if you think it's something other than a very specific and concrete exercise.
JB,
Not sure what you're trying to get at with this post, and I don't think you do either. Too many contradictions to your earlier post.
I do think you're on a quest, like many before you, trying to figure things out and put the answers in a nice neat package for future use. It's an admirable quest in some ways, but as others have found it's not very useful when the actions of people are involved. It is useful if you use your "discoveries" as enlightening rather than binding. Eventually one always finds that someone else has tried it before.
When you think you've found the answer or something new, keep looking. They don't call it "practicing" a profession for nothing.
I do agree there is a lack of understanding of boundary law; Judges expect Surveyors to be experts at it (not the law, but where the boundary is; Huh!), Attorneys know we don't know anything about it, Surveyors all believe they're experts at it, Engineers think it's all about looking through the little thingy, and landowners know what they own and don't need anyone telling them different.
But if it were just about the LAW being right all the time, and Judges having spelled it all out already, then all the lawschools would be closing and everybody would be getting along with a mere google of their particular problem.
Reality and Equity
See my remarks above about original monuments only!
Always keep this in mind when reading Kent's posts.
Keith
Sorry for the lack of focus in my reply, but I just copied it verbatim from "CLARK on Surveying and Boundaries" fourth edition, but then Clark was just some Indiana lawyer.
Reality and Equity
> See my remarks above about original monuments only!
>
> Always keep this in mind when reading Kent's posts.
Keith, have you already forgotten what the US Supreme Court said on the subject in Clement v. Packer? I'm thinking so.
Reality and Equity
Maybe I forgot, refresh my memory !
Duane,
I do agree there is a lack of understanding of boundary law; Judges expect Surveyors to be experts at it (not the law, but where the boundary is; Huh!), Attorneys know we don't know anything about it, Surveyors all believe they're experts at it, Engineers think it's all about looking through the little thingy, and landowners know what they own and don't need anyone telling them different.
That's great, I like it! Can I borrow it? I'm 3 out of the five (surveyor, engineer & landowner) so I can't even get along with myself. I like being a landowner most and identify mostly there.
Reality and Equity
> Maybe I forgot, refresh my memory !
You'll just forget again.
I know, the one I'm most scared of is the engineer in me. Gotta keep an eye on that guy when doing boundaries, but he is handy around the homestead.
Reality and Equity
Is there a specific word or phrase that you think supports your "original monument only" belief in your cited case of Clement v Packer?
Keith
Reality and Equity
> Is there a specific word or phrase that you think supports your "original monument only" belief in your cited case of Clement v Packer?
Keith, if you've already forgotten, there's no reason to worry about it. The rest of us will keep track of this for you.
Reality and Equity
I have downloaded the case and wanted to know where to look to find your favorite word or phrase to support your original monument only opinion.
It is a simple question and you should be able to handle it?
Keith
Reality and Equity
> It is a simple question and you should be able to handle it?
>
Keith, the reason I think you're losing it is that there was a long discussion about this very case that occupied at least a couple of threads that you were a party to. You ended by asking whether you were crazy and the consensus of opinion was - well perhaps it would be impolite to remind you.
Reality and Equity
Well, maybe I am losing it........so where is that long discussion?
Keith
Reality and Equity
> Well, maybe I am losing it........so where is that long discussion?
It was months ago. I'll post a link when I have a chance so you can revisit it.
Reality and Equity
good
Reality and Equity
waiting here!