Thank you James
Thanks for posting your reference cites, but maybe this needs more explanation:
"Then treating the junior monument as controlling solely for direction (in the absence of facts leading to estoppel, such as the testimony of both landowners to an agreement) effectuates the intent of the grantor to a greater extent that holding the junior monument."
I do of course notice the statements; ""...inasmuch as the general rules as to preferences are merely guides for ascertaining the intention of the parties. Thus, while it is a general rule that calls in a deed ordinarily prevail over courses and distances, this rule is not applied if it defeats the manifest intention of the parties." Sort of like, bearings and distances do not hold over monuments??
And of course the result of not accepting monuments will always give the result of overlaps and or gaps. Right? the huge majority of junior survey monuments will not fall on Kent's exact instrument line.
Keith
"Junior monument" defined
If you're acknowledging that a monument is 1.52' "off line", then you are acknowledging that there is a senior line that it is not "on". If the line goes through the monument, then isn't it "on line"?
THE LAW
A line draw on paper locating a persons claim does not changer ownership of property.
The transfer of title cannot be made without proper action, either by written conveyance or court order.
Kent does not need any stinkin law
when he has bearings and distances and an excellent transit to determine boundaries!
Keith
THE LAW
Does the setting of monuments to locate a landowners property on the ground count for anything?
That line on the paper plat needs to be found on the ground.
Keith
Richard
You're dead wrong. The 5 year statute is only ONE of the remedies in Chapter 16 of adverse possession. It requires a deed and all kinds of other things.
You keep getting hung up on the fact that it says that a suit to recover it cannot be brought forth. That's for a judge to decide whether or not the suit is valid under Chapter 16 or not. Not a surveyor's job to take that on.
For example, as a learned attorney friend of mine said, you are not the judge, you cannot accept testimony from both sides, and should I make the command decision that TITLE HAS PASSED under Chapter 16, I've effectively denied their rights to plead their case in a court of law, thereby leaving me open to some liability.
While it is true that Adverse Possession Title is Superior Title, and passes the INSTANT that the statute is perfected, we are not, nor have we ever been, the final say so in what has perfected the statute.
adamsurveyor
Ordinarily, a junior survey that retraced a senior line and set monuments with care, will be accepted as a faithful determination of the line and will be used by the landowners to plow the field, build the house, fence the property and the monument will obviously be used.
If that is not the scheme of land surveying, then we need to go to Kent's theory and never accept any monumentation that is not on his exact instrument line.
Keith
Thank you James
> I do of course notice the statements; ""...inasmuch as the general rules as to preferences are merely guides for ascertaining the intention of the parties. Thus, while it is a general rule that calls in a deed ordinarily prevail over courses and distances, this rule is not applied if it defeats the manifest intention of the parties." Sort of like, bearings and distances do not hold over monuments??
Actually I read the last sentence as "bearings and distance always hold over monuments when said bearing and distance are a better evidence of the manifest intent of the grantor than the monuments.
> And of course the result of not accepting monuments will always give the result of overlaps and or gaps. Right? the huge majority of junior survey monuments will not fall on Kent's exact instrument line.
Wrong.
If the intersecting junior line terminates at it's intersection with the senior line (irregardless of the location of the junior monument in relationship to the senior line) as Kent argues, then there is never an overlap or gap.
Kent
Can't provide the reference huh?
I understand that very well.
Keith
Thank you James
> And of course the result of not accepting monuments will always give the result of overlaps and or gaps. Right? the huge majority of junior survey monuments will not fall on Kent's exact instrument line.
No not as I see it. If the junior monument falls short of the senior line then the property between the junior monument and the senior line is conveyed based upon the presumption at law that, generally, the grantor doesn't intend to retain a small strip of land. If the junior monument falls beyond the line of the senior line the the property between the senior line and the junior monument is not conveyed. The property is conveyed only up to the senior line on the premise that you cannot convey what you do not own.
This is the general presumption. There are exceptions but they have to overcome the presumption.
Peter Lazio
Richard
> You're dead wrong. The 5 year statute is only ONE of the remedies in Chapter 16 of adverse possession. It requires a deed and all kinds of other things.
Yes, applying a statute of limitation on adverse possession to what is really a boundary dispute over a very narrow sliver of land would be quite unlikely to fly in most cases.
Say what?
"If the intersecting junior line terminates at it's intersection with the senior line (irregardless of the location of the junior monument in relationship to the senior line) as Kent argues, then there is never an overlap or gap."
If this is land surveying, then why set any monuments at all?
Obviously, the paper descriptions and platting will show the junior survey on the senior survey, but the proof of the location is on the ground, as surveyed and monumented.
At least that is the way I look at it.
Keith
adamsurveyor
Keith....if a monument was set correctly on a line, then that line goes through that monument and it is not "off" the line. Does the line go through the monument or not? your last statement implies that it goes through the monument.
Keith
Sure, generally they would because most people aren't going to argue with a shiny BLM 1/16 corner, they'll say thank you very much and accept it. And they will generally be placed pretty close to the original line. Would you say that they ALWAYS introduce a kink in the previously patented private property line, since they never, or almost never, will land on the instrument-straight line between the existing section corners? Or is it possible that the private property owner can refuse to accept the 1/16 corner as defining his property line because he took title to the property on one side of the originally marked line?
I'm trying not to be argumentative, just discussing an interesting subject.
adamsurveyor
"Keith....if a monument was set correctly on a line, then that line goes through that monument and it is not "off" the line. Does the line go through the monument or not? your last statement implies that it goes through the monument."
And what is your standard if ". . .if a monument was set correctly . . ."
Kent's standard is an exact instrument line. Is that your standard too?
Keith
Kent
Kunta Kenta doesn't like you keith.
Keith
I have heard that you should use the tolerances set in the manual of instructions, which I consider pretty wide (loose). I would suggest a tolerance of what a "reasonable surveyor" would do at the time the monument was established. Often times you don't know that when you just trip over some obscure, uncalled-for, mark. Sometimes you can set up an instrument on a point and sight down the line even with an old transit and get a monuement very close to on line.
The tolerance is on a judgemental basis. ("it depends" as we all love to say) I am talking drafting and reporting. If I accept a corner monument as being the true position of the boundary, I will report the line going through the monument, and the record vs. measured through that point. I will not report that the monument is "off line" by X-amount.
Another issue you and Kent have, is whether there is senior-rights established. Kent is discussing when senior rights have been established which is what happens when dealing with sequential conveyances. That is different than when a "first" surveyor sets a mark on a section or 1/4-section line (or any aliquot line) where no senioriority is established. The PLSS is, after all, a sort of subdivision/simultaneous conveyance, in a sense. Kent keeps saying that a senior line is senior over a junior line, and you are talking about "subdivision" monuments along a line. If a senior line is established, and the owner claims to a line and builds to it, I think you have a greater problem with setting a 1/16th corner on the wrong side of that straight fence. You are encroaching across a senior line.
My point is, that neither absolute rule applies in all cases. I will use judgement when I see a monument, that isn't called for in a deed or in original notes, that will probably differ then when I see a monument that meets certain standards such as being recorded and called for and not appearing to encroach across senior rights.
But then, on the other hand, I think that you and Kent like to argue. I am neither throwing in with the republicans or democrats (metaphorically speaking) but will vote my mind on a case-by-case basis based on my knowledge and past history of the candidates.;-)
In other words, plazio,
monuments mean nothing?
Not in my world.
Keith
Kent
What happens to that small sliver of land that you create with your bearings and distances only brand of surveying?
Keith
Great post adamsurveyor
It is not difficult to understand that Kent only believes in his instrument straight line and any monument off that line is simply rejected.
That simply is not land surveying but deed staking to the extreme.
Keith
