Boundary Dispute

It may be silly, but, ain't it fun. It beats picture shows and carnivals all rolled up into one. (taken from a very old Little Jimmy Dickens song)

Try to remember that this is why we get paid the big bucks.

Put all those big bucks in a jar and bury it in the yard, because someday somebody is going to come looking for you to give them those big bucks. No matter what you do, somebody will not be happy. Maybe soon, maybe later.

From your posts, we have learned that you are a very capable surveyor. I would go with what your gut tells you is the correct solution.

These are frustrating because all too common. I've searched and searched court cases and secondary references for 25 years and never been able to find reference to why surveyors think they can take an old map and stake it from the numbers as if it just came into being when occupation and improvements have existed since at or near the time of the map. It's the strangest thing.

Duane

I think I'm following what you are saying.

I'm not holding the occupation out there, there really isn't anything that definite. I don't think the other surveyors held occupation either. There are some seawalls, but I never really have put a lot of weight on them. I find they put them where they wished they owned to.

I'm leanning towards holding the three recorded deeds and maps, thats what was conveyed by my clients.

Now it may not match the original lines, but they held that surveyors work for those three lots.

Also, I would then at least agree with one of the 5 surveyors out there:-)

Duane

Have you spoken to any of the surveyors that are involved? I believe that I would take the time to run the situation by them first. They just might be able to shed some light on the problem. Just my 0.02 worth.;-)

Great respons, Duane. Mind boggling isn't it?

Stephen

One thing not mentioned is the magnitude of the discrepancies - is it a foot, 5 ft, 50 ft? Or if there is an apparant shift or rotation in some direction, or some pattern (scaling). I've seen these older plats where all the distances are slope, which is a real treat. Just not agreeing doesn't make as much sense, because we all have to base it on something.

I would definately be talking to the other surveyors. Maybe you all agree on an overall perimiter of your area, so perhaps a replat of that immediate area is in order. It sounds like the surveyors are the ones with the problem, not the landowners.

But it does sound like a fun one to sink your teeth into. Hopefully you'll make some money in the process.

Lets see...

Is there evidence of a written agreement establishing the boundaries? Yes.

Is there physical evidence of the evidence on the ground? Yes.

Is there testimony which indicates reliance upon the agreement? Yes.

Is there evidence of representations made ? Yes.

Is there evidence of reliance upon the representations? Yes.

Is there evidence of mutual recognition of the boundaries? Yes.

You could come up with at least five legal doctrines why the boundaries have been established according to the more recent work.

Is there written evidence of an original survey which created the lots? Yes.

Is there physical evidence of the original boundary location? Appears not.

Is there testimonial evidence that the original monuments were known? Appears not.

Is there any evidence of reliance upon any original monuments? Appears not.

You can't come up with any legal doctrines which allow a surveyor to place monuments on the ground without any reliance upon their original positions. You also can't come up with any evidence which would establish a boundary by actions of the landowners relying upon the original monuments. The landowners cannot be expected to rely upon something that doesn't exist to establish their boundaries. That's what happens when evidence fades over time. New evidence arises and gets relied upon.

JBS

You need to establish an agreement or disagreement of this area to the whole. Don't project any local problems outward. You need to locate, as best as you are able, the original locations of the lots. Once those things are covered, occupation could be the prime mover, but using it comes last, but first to think about, everything following should be aimed at it's justification. Can't fix anything until you isolate what is broken and whatever fix must preserve that isolation from the whole. Sounds like you probably have considered all of that, be interesting to hear your solution and if it justified riding a white horse.
jud

I agree with all the posts

I was hoping to get a little more feed back on the mapping and deeds recorded on the sale of the 3 lots from my client. I feel in some ways those documents would have more weight than the original subdivision map in the group of lots. I believe that is what Jud was saying, a solution in this area may not fit another part of the tract.

The tract by the way, follows a very irregular shoreline and has minimum math shown throughout.

I will be contact the other surveyors.

thanks

> I was hoping to get a little more feed back on the mapping and deeds recorded on the sale of the 3 lots from my client. I feel in some ways those documents would have more weight than the original subdivision map in the group of lots.
You might consider the constructive notice provided by the recorded documents. Typically, a recorded document is considered as giving constructive notice against any BFP (Bona Fide Purchaser) claim, particularly in the event of a subsequent sale of an adjoining parcel. They take their property subject to the notice provision. Constructive notice provisions are typically found in your state statutes.

There are also some jurisdictions which provide that any recorded document, after a length of 20 years (typically), becomes prima facie (at first sight) evidence of its contents. Prima facie evidence is sufficient to raise a presumption of the truthfulness of the facts purported. This could be a statutory provision or common law. Then there are other jurisdictions which provide a MRTA (Marketable Record Title Act) statute which can elevate the recording as de facto (done in fact), after a period of 30 to 40 years. MRTA would be a statutory provision.

JBS

Thanks for putting the time into this post. I really appreciate it.

You have all helped gather my thoughts on this one and gave good course to attack this.

After a little more field work for my base work map, I will start talking to the other surveyors, my client and lawyer and then post the highlights.

The funny thing is like Duanne said this happens all over upstate NY and mostly with waterfront property!

Forrest

actual CEU's earned here?

Just another demonstration of how valuable the resource tool of this website is. Great topic that many of us can say "..been there got the tee shirt..". I know I have a few in my closet.

Wendell for President.

...food for thought. I always wonder if anybody could track this stuff. My guess is that there is a way. I have no clue, nor am I concerned about my CEU's. Just a thought??

Go Red Wings!!!

Duane

Yes, I think we're on the same page. The best evidence could be structures or improvements built nearer the time of the original survey, or it could be surveys done nearer the time. In addition, case law tells us that surveys that have been on file and unchallenged for 10 years are prima facia correct. In other words, you need clear and convincing evidence of a contrary location to disprove them rather than the normal preponderance of evidence.

If there is a lot of ambiguity why not agree with the existing retracement survey. Even if it's not exactly what I would have done if I had been there first, if it's reasonable and has stood unchallenged for 20 years, then it's going to be difficult to question.