I rotated the deed bearings by 000-31-57 and stretched the distances by 1.000138. Now the deed falls on some 24 ADOT monuments by a tenth or two, except three of them. Naturally two that don't match are on the site I'm doing.
The highway plans for the corner have the stationing 33+57.67 75' Rt and 289+82.36 75' Lt:
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However, someone misread another page of the plans which gave a station and offset for a tie to a 5' slope easement. He set the R/W monument at 33+62.93 but 75' Rt:
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The deed matches the correct station at 33+57.67, but the monument is at 33+62.93, or 5.2 feet away. At the other corner, for whatever reason, the deed misses the stationing and the monument by 2.8 feet. I don't know how that happened.
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Now the question: Do I hold the monuments as they were in 1986 (since destroyed but perpetuated by the plat I filed), or do I hold the deed?
The question really boils down to the practical one of whether the State of Arizona is somehow now estopped from claiming the easements and right-of-way conveyed to them as described in the conveyances of record. If there is nothing to prevent the State from sending a survey party out tomorrow to remonument the lines as actually conveyed to them, then the private adjoining owner ought to plan accordingly.
Otherwise, if he wants to insist that that the State has somehow monumented itself out of the right-of-way to which it is entitled by virtue of the conveyance, he's going to have to potentially sue the State in equity unless there is some specific provision in Arizona statutes that would be the grounds for the suit. That sounds like an expensive loser to me. Unless there was some compelling reason not to, I'd have monumented the right-of-way as described in the deed of conveyance and advised the private adjoining owner that line should be used for planning improvements.
Looking at the southeast corner of those two streets there doesn't appear to be anything substantial (such as a building) which might raise a question of damage to the property owner. The equipment there appears to be traffic signal equipment. There is a big billboard but it looks far enough in to be clear of the problem.
Fighting the State over a few weeds is probably a losing proposition.
Normally we would hold monuments but in this case they appear to not follow the Deed which would otherwise control if there were no monuments there.
Question for you Kent...
Would your answer change if R/W mon.s were still existing?
Stephen
How long were the R/W monuments in, Bruce? When did they get destroyed?
Stephen
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> Normally we would hold monuments but in this case they appear to not follow the Deed which would otherwise control if there were no monuments there.
That's kind of pretzel-y statement Dave. A but B if A unless B.
And besides, don't the deeds refer to the R/W plans and don't the plans show the monuments (assuming that the circular survey target symbols represent R/W mon.s)?
Stephen
The monuments were probably set in 1984 and were destroyed around 1992. Neither the highway plans nor the monuments were called out in the deed.
> Would your answer change if R/W mon.s were still existing?
No, of course not. They weren't mentioned in the conveyances by which the right-of-way was taken and so are merely an apparently blundered attempt to mark the position of the right-of-way on the ground after the conveyance. Unless an Arizona statute prevents the State from asserting its title to the right-of-way beyond the incorrectly marked line, I assume that the State can do it.
Well I'm only an amateur at double speak so give me a break ;-).
You have a point and I often hold right-of-way monuments that aren't shown on any plan or called for in the Deeds but there isn't really anything else besides ties to the DOT's mythical "engineer's centerline."
In this case I think Kent has good practical and realistic advice. We are talking about a few feet on a street corner which probably isn't worth the massive legal battle to fight the State (unless they agreed to the monuments).
I think the default should be to hold monuments in general unless enough evidence can be piled up against them (as opposed to the usual attitude of requiring found monuments to be proven).
> The monuments were probably set in 1984 and were destroyed around 1992. Neither the highway plans nor the monuments were called out in the deed.
Looking ahead, I'm going to guess that the real problem begins when the land adjoining the new right-of-way was subdivided and sold using metes and bounds descriptions that apparently were based upon surveys tied to the mistakenly located monuments for a bearing basis, but without explicitly saying as much.
I don't think you can reject the plans because they are not referred to in the conveyance. An ambiguity has been shown and so extrinsic evidence can be brought in to resolve the issue. The deed probably refers to the engineers center line and stationing which is an indirect reference to the ROW plans. Everybody knows there are ROW plans.
It appears to me that a mistake has occurred which you have been able to sort out. So the owners can fix it if they choose. It may not happen at light speed dealing with a DOT but I'm fairly sure they will discuss it with you. You have probably already done that. So is there a problem with going to the deed line, UDOT changing the error on their plans and your client not claiming the extra land. Maybe they can set new markers that conform to the deed and update the plans. If the budget isn't there at ADOT and you want to speed things along maybe your client could pay you to set new ROW markers for ADOT. You at least need to give a resolution for all a try!
OK, but just to shut me up, what DO the circular survey targets shown at the R/W corners represent? Are they shown in the legend?
Stephen
> > Would your answer change if R/W mon.s were still existing?
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> No, of course not. They weren't mentioned in the conveyances by which the right-of-way was taken and so are merely an apparently blundered attempt to mark the position of the right-of-way on the ground after the conveyance. Unless an Arizona statute prevents the State from asserting its title to the right-of-way beyond the incorrectly marked line, I assume that the State can do it.
So if land is not marked on the ground at the time of conveyance, or if they are but are not mentioned in the deed description, then for all time and all people the numbers of the deed description are controlling?
Stephen
> Well I'm only an amateur at double speak so give me a break ;-).
>
> You have a point and I often hold right-of-way monuments that aren't shown on any plan or called for in the Deeds but there isn't really anything else besides ties to the DOT's mythical "engineer's centerline."
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> In this case I think Kent has good practical and realistic advice. We are talking about a few feet on a street corner which probably isn't worth the massive legal battle to fight the State (unless they agreed to the monuments).
>
> I think the default should be to hold monuments in general unless enough evidence can be piled up against them (as opposed to the usual attitude of requiring found monuments to be proven).
I agree completely. Well said.
Stephen
Question- Have you called DOT to discuss with them?
The apparent aerial targets represent the standard ADOT R/W monument.
I agree with the comments on accepting the deed line at that location, and I'll monument that line. This is a rare condition where the deed bearings and distances controls over monuments that were there for years, putting us all on the alert to the possibility that it can happen.
I'm going to put off the third phase of the problem, the newer centerline monuments set by a private surveyor for the contractor around 1992, and which appear to be off nearly two feet north/south. I've just found out one of my old friends, and an excellent surveyor, is now with that firm, so I've sent him a note.
Thanks for the excellent advice guys.
> So if land is not marked on the ground at the time of conveyance, or if they are but are not mentioned in the deed description, then for all time and all people the numbers of the deed description are controlling?
No, if a monument is a substantially correct realization of the position described in a deed, then it's often good enough as a purely practical matter, although not necessarily as one of law. According to Bruce's desciption, most of the monuments he found along the right-of-way might qualify as substantially correct realizations of the lines and corners described in the deeds by which the State acquired the right-of-way. However, those two monuments that he shows in this thread clearly are not. All monuments are not created equal.
Actually, it was a county project, but using state standard monuments. Yes, I've had quite a bit of back and forth with their survey group. I believe, thanks to the comments posted here, that I now have the definitive answer.
The monuments have been gone for almost 20 years so it's not necessarily known with certainty where they were located.
Without reading further, I would compare topo/asbuilt of road. If per design by priority of monuments found, ignore local mons non-conforming. If local build fits the local mons, you got some real issues to decide. Just topo the asbuilt through your area. The mons that fit, use. The one's that don't, explain why they don't hold.
Show FoundandHeld, FoundandRejected and set mons. Send the bill.