Working along a township boundary today doing corner records. This boundary was monumented by a dependent resurvey in 1913 where the original stones were replaced with pipes and caps by the GLO. The east half of the township boundary has closing corners from the south. I've found every monument along this township boundary (six miles) except two.
So at one of the corners between Sections 34 and 35 there is a closing corner from the south about two chains west. Both pipes and caps are there in perfect condition. There is a four way fence corner at the standard corner. The fence just continues south as if the closing corner didn't exist.
So here you go, it's just a simple system of perfect squares, right? The landowners apparently found the "corner" and built there fences to it. Old fences been there at least 50 years.
Glad I'm not doing a boundary survey and need to deal with this situation. Ain't like the corner isn't there and right where the records says it should be. 50 plus years of occupation, fenced to the wrong section corner. How many times has this happened, thousands, millions maybe?
Too many, that's for sure. Not just PLSS corners either. I've seen it numerous times on lot line jogs too.
I'm working on two projects which involve confusion over a quarter section corner.
Is the evidence of the original credible?
It seems like it varies with who you ask.
Reversing Appellate Court thinks, yes, this is the original. Second Jury Trial (after the Appellate decision thinks, no the surveyor who "identified" that quarter was biased for his employer (a lumber company).
Meanwhile we have another Section (300 miles the other way) where the County Surveyor accepts the word of the property owner that a live oak stump in a north-south fence line is the remains of the original live oak which was the corner. Apparently 17 years later a Surveyor doesn't know about the stump or doesn't believe it so he single proportions the corner.
This causes just a little confusion. It depends on where you go in the section which version is being used for the subdivision of the section.
I had the same situation only reversed. A standard Section 34, north of a closing Section 2 (the south twnshp. was almost shifted 1 mile west). The closing corner for the NW of Sec.2 was 250' east of the SW corner of Sec.34. A fence for the east line of the W2W2 of Sec. 34 was constructed 1320' east of the NW corner of Sec.2 and extended 1 mile north through Sec.34, causing it to be shifted 250' east for a mile or about 30 acres. Of course, my client was gaining and he wanted all his fences "on the deed lines". Once the neighbor was shown the issues involved he relented and the fence was moved to the deed line. It didn't hurt that my client was paying to build all new fences and that these are large ranches and that he had "given up" similar occupied areas, but I sure hated staking that line to start with.
Corners close together can cause all sorts of confusion. A client we have has a "design team" laying out a Sub. This team kept sending division lines between rows of lots with 1' and 2' shifts between common corners. The SW corner of a lot in the north tier of lots would be 2' east of the NW corner of a lot in the south tier. Finally just told them that we're not signing for the plat unless that stuff was cleaned up. We have to stake each corner with a cap and label each cap with the lot numbers, but even so when they are 2 or 3 or even 5 feet apart it just means there will be a fence built off line. And the PC for a curve 2 feet from a lot corner? Really?
And DOT plans for new right of way with a Jog 5 feet from a PC. Why? Is that land so valauable that the 5'x20' strip will be cost more than the setting the extra concrete monument. Now I'm just ranting.
You have to be careful with many of these aliquot part descriptions.
Many times the surveyor used the right monument as specified by the owners but the lawyer who made out the deed used an aliquot part description instead of an accurate M&B. The west half of the north half of a section is not always the NW 1/4.
Remember, the surveyor's job is to discover and provide a means to correct errors in the record, not force the movement of legal property lines.
In order to do that, we HAVE TO know the statutes of limitation or repose and understand the meaning of "Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law." in Black's law dict.
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
Ignorance of the law is no excuse unless you are a lawyer or judge.
Richard Schaut
