Since the lot has been sold the monuments can't be moved unilaterally to their "correct" position since they are the original monuments.
This is a problem between the original surveyor and his client (the owner of the remainder lot).?ÿ I would not reset the monuments in their "correct" positions unless the two owners agreed in writing; doing this unilaterally could be a slander of title.
The owner can modify their plans leaving the monuments in place or try to persuade the buyer of the lot to allow them to be corrected with appropriate written instruments being executed.
Dave: that is what I was afraid of, that because they were set, and the property sold, they become the corners, right or wrong. Hopefully they can agree to move them.?ÿ
so my client called the surveyor who did the subdivision. She knows him from doing a lot of work in the past for him (aerial mapping). He apparently went off on her, telling her "how the !@#$ do I know what happened out there, anyone could have moved those pins...". He also said "the subdivision plan shows where they should be, so go out and move them". I think she sent my write-up and the sketch to him. Never mind that BOTH of the pins in the middle are off the same amount, same direction.?ÿ He had told her last week that his son did the survey, so...
I kind of expected this.?ÿ
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He apparently went off on her, telling her "how the !@#$ do I know what happened out there, anyone could have moved those pins...". He also said "the subdivision plan shows where they should be, so go out and move them". I think she sent my write-up and the sketch to him. Never mind that BOTH of the pins in the middle are off the same amount, same direction.?ÿ He had told her last week that his son did the survey, so...
Geez, some so-called "professionals" are really great ambassadors for their profession aren't they?
Not being absolutely perfect, I've made mistakes; I appreciate it when someone says you blew it here.
Somehow the Surveyor got the line shifted, in the calcs or the control or something but he did it, no one else.?ÿ The 0.12 could be it just moved, I've seen rebars I set move that much in expansive clay soil, but not 0.43 feet uniformly two monuments 100' apart.
I know a very good Surveyor that got hit pretty hard by the Board just because he had an adverse reaction to a client over a blunder or mistake.?ÿ I think if he had been reasonable and fessed up and fixed it the Board would've never heard about it and nothing would've happened to him. He staked a building in the setback because he didn't determine the property line location.?ÿ Not hard to guess what happened, client didn't want to pay for boundary survey, surveyor staked it from the plans, building inspector measured from fence, something not right, Surveyor checked the boundary line, oops, Expletive-you, you cheapskate you didn't want to pay for a Survey not my problem.?ÿ I'm just guessing, all I know is the Board citation, have to read between the lines.
I would call too. But it seems if that is a new division line created in 2015 I would not have a problem setting corners in that line where they are supposed to go and show both on the plat that you held them for line?ÿon the new division. The previous surveyor did possibly mess up but his original monuments would hold for the line regardless.
I looked at your pic again. They are not out of line so they have to be the line. I was thinking they missed the back and front line. When I posted before. They hold since it's the original corners set for the lot. Not even the surveyor can change that since it has already been sold to others.
I would call too. But it seems if that is a new division line created in 2015 I would not have a problem setting corners in that line where they are supposed to go and show both on the plat that you held them for line?ÿon the new division. The previous surveyor did possibly mess up but his original monuments would hold for the line regardless.
I looked at your pic again. They are not out of line so they have to be the line. I was thinking they missed the back and front line. When I posted before. They hold since it's the original corners set for the lot. Not even the surveyor can change that since it has already been sold to others.
This may be state specific and depends on the map or deed that was filed. Did the map or deed references caps set on that line? If not, the caps could be deemed extrinsic evidence even if it was the subdivision surveyor that set them.
Surveyors do not create boundaries. The owners do. It is incumbant on the surveyor to make sure he sets the corners where they are supposed to be set. Setting them in error may not necessarily change the line.
The filing documents needs to be examined.
In most scenarios in my state, those caps may be called off based on the true measure if said caps were not set at the time of the subdivision and not called for in the description/shown on a filed document.
I would be showing two lines in this scenario depending how the above shakes out.
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This may be state specific and depends on the map or deed that was filed. Did the map or deed references caps set on that line? If not, the caps could be deemed extrinsic evidence even if it was the subdivision surveyor that set them.
Surveyors do not create boundaries. The owners do. It is incumbant on the surveyor to make sure he sets the corners where they are supposed to be set. Setting them in error may not necessarily change the line.
The filing documents needs to be examined.
In most scenarios in my state, those caps may be called off based on the true measure if said caps were not set at the time of the subdivision and not called for in the description/shown on a filed document.
I would be showing two lines in this scenario depending how the above shakes out.
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This is the problem with boundary surveying in New Jersey, and why pin cushion corners are so prevalent now.?ÿ Everyone is trying to set the corners where they are supposed to be set.
The client is hiring you to determine where his boundary line is, not to give him 2 lines and let him chose.?ÿ "Why get a survey? I spent $xxxx and I still don't know where my boundary is."
In the case described above:
- I would contact the original surveyor, I need to know as much information about how the property was divided as possible.
- If the two lots are in separate ownership the the division line is as presently staked. The corners were in and visible to the buyer, he saw or should have seen what he was buying.
- If the two lots are still in single ownership, it is up to the owner if he wishes to "correct the corners" to match the proposed measurements. In this case I would recommend that he have the corners moved due to the size of the lot and his plans for construction.
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In the case described above:
- I would contact the original surveyor, I need to know as much information about how the property was divided as possible.
- If the two lots are in separate ownership the the division line is as presently staked. The corners were in and visible to the buyer, he saw or should have seen what he was buying.
- If the two lots are still in single ownership, it is up to the owner if he wishes to "correct the corners" to match the proposed measurements. In this case I would recommend that he have the corners moved due to the size of the lot and his plans for construction.
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#2 is a rebuttable presumption, and is very important to any potential resolution.?ÿ This is a case where proper research and proper evidence gathering could prevent a big fight from occurring.?ÿ An important point nobody has addressed very much is reliance.?ÿ Have the buyers of the lot relied upon the apparently erroneously placed markers??ÿ If so, a different solution may?ÿbe required than if they markers have not been relied upon.?ÿ?ÿ The transfer (sale) of one lot doesn't necessarily make the erroneous markers controlling without reliance by the owner(s).
59 BOUNDARIES 1,318
59I Description 468
59 3 Relative Importance of Conflicting Elements 164
59 3(1) In general. 9
17. Hyman v. Haun
District Court of Appeal, Third District, California. May 9, 1961 191 Cal.App.2d 891
Headnote: Rules for awarding priorities, such as, for example, monuments over distances, are rules of construction rather
than rules of property.
AND:
8. Machado v. Title Guarantee & Trust Co.
Supreme Court of California. February 14, 1940 15 Cal.2d 180
Headnote: In construction of boundaries, the intention of parties is the controlling consideration.
Apparently the original surveyor is an A**hole. He does not seem to care. I have asked a few people about him, no one praised his work. Leave it at that.?ÿ
The owner of the "empty" lot is the original owner of the entire three lot tract. I very much doubt that the buyer of the lot with the house had a survey done since the subdivision was fairly new (2015).?ÿ
My suggestion to my client was to tell the owner to bring it up with the adjoiner and hopefully they agree to move the pins.
I am not working for any of them directly. The builder's stake-out guy said there was a problem, I was asked to look at it.?ÿ Classic case of "I just need this one line staked", but I will not do that without verifying the overall boundary. Hence I do not do many boundary surveys at all (my choice), unless they are large. This was basically a favor for a client.?ÿ?ÿ
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I could've used Pennsylvania citations:
In a nutshell, as Brian pointed out above, the rule that original monuments control is not absolute but there would need to be sufficient evidence to reject the monuments (usually not found).
59 BOUNDARIES 1,519
59I Description 716
59 1 General rules of construction. 6
1. Long Run Timber Company v. Department of Conservation and Natural Resources
Commonwealth Court of Pennsylvania. August 30, 2016 145 A.3d 1217
Headnote: The rules of construction with regard to boundaries are not imperative or exclusive but are aids in construction to
ascertain, or to aid in determining, the intention of the parties that must yield to a contrary showing.
Document Summary: REAL PROPERTY - Boundaries. Substantial evidence supported Board of Property's
decision to use waterway crossing and stone piles to identify location of boundary line.
2. Pennsylvania Elec. Co. v. Waltman
Superior Court of Pennsylvania. September 11, 1995 448 Pa.Super. 174
Headnote: Primary function of a court faced with a boundary dispute is to ascertain and effectuate intentions of parties at time?ÿof original subdivision.
Document Summary: REAL ESTATE - Deeds. Extrinsic evidence was not admissible to determine intent of
grantor in unambiguous deed.
3. Appeals of Borough of Dallas
Superior Court of Pennsylvania. July 19, 1951 169 Pa.Super. 129
Headnote: General rules of construction applied to deeds and grants are applicable in the case of boundaries and the object
of all rules for establishment thereof is to ascertain the actual location of the boundary as made at the time.
8. Stark v. Equitable Gas Co., LLC
Commonwealth Court of Pennsylvania. May 14, 2015 116 A.3d 760
Headnote: The rule that artificial monuments control courses and distances in case of conflict is not an imperative and
exclusive one, but is a rule of construction to ascertain, or to aid in determining, the intention of the parties; and it is not
followed where strict adherence to the call for a monument would lead to a construction plainly inconsistent with such
intention.
The problem being, what is plainly inconsistent with the intentions of the parties?
I am guessing that the dividing line was incorrectly calculated at 76 feet rather than 76.5 as shown on the plan. That is just a guess, I have no info at all from the surveyor. The site is open, easy to survey, block control monument nearby, that is the only thing I can figure, maybe they punched in the distance incorrectly.?ÿ
Meaning intent was 76.5 foot width. It is actually possible to flat chain the distance between the front corners (mowed grass in between, nothing obstructing), which I did as a verification when I got the 0.44 foot difference. Probably the back corners could be chained directly between as well with plumb bobs, I think there is some debris online. Interesting thing also is that there is a stockade fence about 2' INSIDE the back line, yet it ends at the adjoiner to the back property line, does not go all the way to the back corner. But I found no discrepancy at all in the front-to-back dimensions.?ÿ ?ÿ
Dave: thanks for those citations, I will take a look.?ÿ
I am guessing that the dividing line was incorrectly calculated at 76 feet rather than 76.5 as shown on the plan. That is just a guess, I have no info at all from the surveyor. The site is open, easy to survey, block control monument nearby, that is the only thing I can figure, maybe they punched in the distance incorrectly.?ÿ
Meaning intent was 76.5 foot width. It is actually possible to flat chain the distance between the front corners (mowed grass in between, nothing obstructing), which I did as a verification when I got the 0.44 foot difference. Probably the back corners could be chained directly between as well with plumb bobs, I think there is some debris online. Interesting thing also is that there is a stockade fence about 2' INSIDE the back line, yet it ends at the adjoiner to the back property line, does not go all the way to the back corner. But I found no discrepancy at all in the front-to-back dimensions.?ÿ ?ÿ
That's also my best guess a sloppy 76'.?ÿ The other monument set in the correct place is of 0.12' so he did a better job erroneously setting the new line.?ÿ That is if he's using a total station and modern methods.?ÿ If he's still using a theodolite perhaps he forgot his offset line is an offset line.
