Hack, post: 413019, member: 708 wrote: I guess I'm confused by your statement. Seems to me that you are saying that the pipe should be held.
As I understand it rules of construction (which are rebuttable presumptions) such as control of monuments pertain to construction of Deeds but not necessarily location. If the original parties have a dispute over what the Deed conveys then the rules of construction apply. On the other hand, if neighbors many decades later disagree on location then other rules apply. It appears to me that the Mass Courts are not very strict in distinguishing between un-called for and called for monuments.
Sergeant Schultz, post: 413030, member: 315 wrote: Much like the questions in the exam I took to become licensed, I made a decision based on the information provided. I stand by it.
I really don't follow your reasoning in holding an uncalled-for monument that gives a junior parcel 4'+ of the adjoining senior parcel........
[SARCASM]Ich weiÌÙ nichts[/SARCASM]
Rejecting monuments just because they aren't specifically called for in an old Deed is not a very practical option, particularly in an old country. The common practice here is the non-original block corner monuments are used to call the non-original interior pipes off by small amounts which seems ridiculous to me. But we have a madness for perfect geometry.
Duane Frymire, post: 413012, member: 110 wrote: As far as I can tell from the post, this is a retracement survey rather than an original. The exercise is in determining where the boundaries were marked, by rag tape or otherwise. Show me evidence that the boundary was marked somewhere else, or not marked and relied on, then I'm with you. But the fact is the original description is in chains and links. Heck, I routinely follow a surveyor whose work with tape and transit in the 1970's has pipes that are out 1-5 feet with an occasional outlier of 10 feet. There are surveyors who will reject all these and set new ones. I can't find anything in legal decisions to support that practice. It is suspicious that the description changed and a pipe is found at the new description location, but I would want more information before I rejected it.
Duane let me ask you a question. Which is more likely, the IP is from the original 1881 survey or was it set by someone who didn't bother to run the title to the original deed 50 or so years ago? To me the later is the more likely scenario and absent of unwritten rights clearly the original deed distance is held. As to your second point and the shoddy surveyor that only comes into play if they are original monuments. Just my opinion.
Dave Karoly, post: 413038, member: 94 wrote: Rejecting monuments just because they aren't specifically called for in an old Deed is not a very practical option, particularly in an old country. The common practice here is the non-original block corner monuments are used to call the non-original interior pipes off by small amounts which seems ridiculous to me. But we have a madness for perfect geometry.
Dave I'm not rejecting simply because they are not called for. I am rejecting because I can reproduce the original intended location of the boundary. If i was not able to do that then naturally the uncalled for monuments weight would increase.
Tom Adams, post: 413029, member: 7285 wrote: If you hold a current description that does not match the original, aren't you "creating" a gap?
Bingo Tom!! The title would be in heirs of the original grantee who received their deed in 1856. Again that ignores any unwritten rights.
Hack, post: 413047, member: 708 wrote: Duane let me ask you a question. Which is more likely, the IP is from the original 1881 survey or was it set by someone who didn't bother to run the title to the original deed 50 or so years ago? To me the later is the more likely scenario and absent of unwritten rights clearly the original deed distance is held. As to your second point and the shoddy surveyor that only comes into play if they are original monuments. Just my opinion.
Why was the description changed? Maybe because a retracement survey was performed with better measurement and found the original line at 100 feet. I'm only arguing for the correct presumptions for the investigation. As far as I know the correct presumption in the case as posted is that it is a retracement survey. You need to affirmatively prove that you can't find the original line before you treat it as an original survey. I agree with the questions you are asking, and I would ask them as well. But if you start with the wrong presumptions, you often end up with the wrong results. What if the pipe agrees with 50 year old improvements and an original stakeout results in the line going through them?
Duane Frymire, post: 413053, member: 110 wrote: Why was the description changed? Maybe because a retracement survey was performed with better measurement and found the original line at 100 feet. I'm only arguing for the correct presumptions for the investigation. As far as I know the correct presumption in the case as posted is that it is a retracement survey. You need to affirmatively prove that you can't find the original line before you treat it as an original survey. I agree with the questions you are asking, and I would ask them as well. But if you start with the wrong presumptions, you often end up with the wrong results. What if the pipe agrees with 50 year old improvements and an original stakeout results in the line going through them?
In my opinion the call was changed by someone trying to convert from R/l to feet. But honestly guessing on why is a waste of time.
I don't have to make any presumptions in this case. I simply put the original description which clearly describes the grantor's intent on the ground.
If there were 50 year old improvements we aren't having the same discussion.
I guess we have to agree to disagree.
Dave Karoly, post: 413036, member: 94 wrote: Distinguished by Senez v. Collins, 957 A. 2d 1057 - Md: Court of Special Appeals 2008 on other grounds having to do with the nature of possession in an Adverse Possession case.
https://scholar.google.com/scholar_case?q=Senez+v.+Collins&hl=en&as_sdt=4,21&case=15271701357595304700&scilh=0
The AP elements of Barchowsky were independent of the boundary determination elements. It was just an attorney throwing "stuff" at a wall to see if anything would stick. "The boundary goes to the lane because the subsequent deed says so; oh, and if it doesn't, then we own it by adverse possession anyway"
Hack, post: 413048, member: 708 wrote: Dave I'm not rejecting simply because they are not called for. I am rejecting because I can reproduce the original intended location of the boundary. If i was not able to do that then naturally the uncalled for monuments weight would increase.
I'm assuming you're also rejecting it because there is no evidence that it has been relied upon by the property owners. If both parcels were developed, and improvements seemed to be built based on the pipe...that's a different matter altogether.
James Fleming, post: 413060, member: 136 wrote: I'm assuming you're also rejecting it because there is no evidence that it has been relied upon by the property owners. If both parcels were developed, and improvements seemed to be built based on the pipe...that's a different matter altogether.
Absolutely James. There are no improvements in area. In fact I first mentioned it here because it was a good and infrequent example of a decision based on clear circumstances without a lot of the "but..." issues we usually deal with.
Hack, post: 413056, member: 708 wrote: If there were 50 year old improvements we aren't having the same discussion.
This.
The other argument for the pipe that occurred to me is: is the frontage steep enough that the original deed distance, if measured on the slope, would fall in the vicinity of the pipe and the pipe is memorializing the location of a prior monument set based on the slope rather than horizontal measurement.
In some colonial states the courts have established the presumption that pre 1900 measurements were made on the slope.
James Fleming, post: 413063, member: 136 wrote: This.
The other argument for the pipe that occurred to me is: is the frontage steep enough that the original deed distance, if measured on the slope, would fall in the vicinity of the pipe and the pipe is memorializing the location of a prior monument set based on the slope rather than horizontal measurement.
In some colonial states the courts have established the presumption that pre 1900 measurements were made on the slope.
Flat like a pancake. Also don't forget the westerly parcel has a fence on the westerly side 114' from the IP while its deed calls for 110'.
Hack, post: 413065, member: 708 wrote: Flat like a pancake
Hack, post: 413056, member: 708 wrote: In my opinion the call was changed by someone trying to convert from R/l to feet. But honestly guessing on why is a waste of time.
I don't have to make any presumptions in this case. I simply put the original description which clearly describes the grantor's intent on the ground.
If there were 50 year old improvements we aren't having the same discussion.
I guess we have to agree to disagree.
I'm not meaning to debate or second-guess your determination.
A presumption is a default finding of fact Courts will make unless there is evidence to the contrary. Most of the rules we follow are really legal presumptions that have been converted to engineering principles by engineers. A presumption shifts the burden of proof. For example, the Courts will presume that the mail is delivered. If there is evidence that the mail was not delivered then the presumption is defeated but the burden is on the party claiming the mail was not delivered to prove it.
So what Duane is saying is that in a retracement survey the presumption is that the boundary is already established unless proven otherwise. It is not an unreasonable presumption given the property has been in existence for 136 years that somewhere along the way the owners physically established the boundaries.
The point is I think if we are using legal principles we should understand them and the fact that most legal rules are far from absolutes.
James Fleming, post: 413059, member: 136 wrote: The AP elements of Barchowsky were independent of the boundary determination elements. It was just an attorney throwing "stuff" at a wall to see if anything would stick. "The boundary goes to the lane because the subsequent deed says so; oh, and if it doesn't, then we own it by adverse possession anyway"
I knew that, I was just showing off.
A few thoughts:
First, I tend to agree with Dave K.; for two properties to be in separate ownership and possession for over 130 years without having the common boundary established on the ground is quiet remarkable and doubtful. At any point in time, after the original split, were both parcels under one ownership?
Second, I am still wondering about the found monuments at the southeast and southwest corners of the east parcel - what are the chances they were set at or near the same time? Are they of the same material, size, etc.? It is quite a coincident that a pipe was found at 100 feet and that has been the stated dimension in the descriptions for well over 100 years, and yet can be dismissed without substantial further investigation (see first thought)?
Third, what was the testimony/statements of the current and previous landowners concerning their boundaries, monuments, etc., before you expressed any opinion or presented any evidence/facts to them? Was the location of the boundary in doubt or dispute?
Fourth, have both owners agreed with and accepted your opinion on the location of the boundary (obviously, this is the most important, after all, who is going to question or challenge your opinion if all parties are in agreement and accept the boundary you marked)?
Fifth, I agree with those that have expressed the fact that we may not have all the evidence to support a well reasoned opinion.
First, I tend to agree with Dave K.; for two properties to be in separate ownership and possession for over 130 years without having the common boundary established on the ground is quiet remarkable and doubtful. At any point in time, after the original split, were both parcels under one ownership?
Second, I am still wondering about the found monuments at the southeast and southwest corners of the east parcel - what are the chances they were set at or near the same time? Are they of the same material, size, etc.? It is quite a coincident that a pipe was found at 100 feet and that has been the stated dimension in the descriptions for well over 100 years, and yet can be dismissed without substantial further investigation (see first thought)?
Third, what was the testimony/statements of the current and previous landowners concerning their boundaries, monuments, etc., before you expressed any opinion or presented any evidence/facts to them? Was the location of the boundary in doubt or dispute?
Fourth, have both owners agreed with and accepted your opinion on the location of the boundary (obviously, this is the most important, after all, who is going to question or challenge your opinion if all parties are in agreement and accept the boundary you marked)?
Fifth, I agree with those that have expressed the fact that we may not have all the evidence to support a well reasoned opinion.
First, What is your definition of established? Of course the properties were never in common ownership again or it would have been stated.
Second, in fact the pipes are different. Not uncommon around here especially with older surveys. I don't think it was a coincidence at all. I believe they more than likely were set at the same time. Exactly what do you mean by further substantial further investigation?
Third, the easterly owner was unsure of the boundary location hence the reason for the survey. The property was owned by his father and grandfather with neither ever expressing to him the boundary location. The westerly owner knew of the pipe and believed that was the corner.
Fourth, I don't make decisions with the goal of having all the parties agree.
Fifth, I was simply trying to stimulate a discussion based on the evidence presented.
Brian Allen, post: 413119, member: 1333 wrote: Fourth, have both owners agreed with and accepted your opinion on the location of the boundary (obviously, this is the most important, after all, who is going to question or challenge your opinion if all parties are in agreement and accept the boundary you marked)?
"There are not two locations of the boundary for the landowners to choose from - there is only one boundary, and our job is to find that one boundary." (famous quote in response to someone who suggested you get the buy-in of both owners.) 😉
Tom Adams, post: 413127, member: 7285 wrote: "There are not two locations of the boundary for the landowners to choose from - there is only one boundary, and our job is to find that one boundary." (famous quote in response to someone who suggested you get the buy-in of both owners.) 😉
Ditto
First, What is your definition of established? Of course the properties were never in common ownership again or it would have been stated.
Black's Law (7th): establish, vb. 1. To settle, make, or fix firmly; to enact permanently 2. To make or form; to bring about or into existence.
Surveyors don't establish boundaries - landowners do. Once a boundary has been previously established, it is our job to find it (see Tom's post).
Second, in fact the pipes are different. Not uncommon around here especially with older surveys. I don't think it was a coincidence at all. I believe they more than likely were set at the same time. Exactly what do you mean by further substantial further investigation?
Things like: Who set it? Why? When? Is or has there been reliance? If so by whom? Why or why not? You know, investigation that is designed and used to find evidence from which to make an informed professional opinion.
Third, the easterly owner was unsure of the boundary location hence the reason for the survey. The property was owned by his father and grandfather with neither ever expressing to him the boundary location. The westerly owner knew of the pipe and believed that was the corner.
Hmmm. Isn't the fact that the westerly owner knows of, and has possibly relied upon the pipe an important piece of evidence to investigate and consider??
Fourth, I don't make decisions with the goal of having all the parties agree.
I sure do. If they don't agree, I'm sure not going to try an force a solution upon them. If they wish to litigate, I make myself available to help in any way I can, and after the litigation is over, I am then available to finish whatever needs to be done. Surveyors should be seeking resolution to the landowners problems, not feeding or creating the problems.
Fifth, I was simply trying to stimulate a discussion based on the evidence presented.
I was merely participating in the discussion.
Tom Adams, post: 413127, member: 7285 wrote: "There are not two locations of the boundary for the landowners to choose from - there is only one boundary, and our job is to find that one boundary." (famous quote in response to someone who suggested you get the buy-in of both owners.) 😉
Yes, you are correct (as usual ;)). Finding the boundary is our job. However, just as importantly, as professionals we should be solving problems, even if they don't like my opinion on the location of the found boundary. It is their boundary and property, not mine. If they wish to adjust or change things so they can live happily ever after - so be it. The last thing we should be doing is forcing a solution upon non-willing landowners. (Yes, I have said that before too) 😀
