I have a survey where the surveyor did not hold the monuments but instead used the area of the deed to perform their survey.
I have never done this, but it got me to thinking or I should say wondering, how common is this method. If you have used this method, how many times and over what timeframe.
I will try and find it but there was an article in POB or one of the surveying magazines years ago talking about a legal case on this very topic. I actually want to say the case was in VA. Bottom line was that the surveyor in the end that held acreage over monuments even though the monuments were in but just didn’t fit the dimensions on a line or so ended up losing that battle. I want to say the title was something along the lines of priority of calls. Now not every retracement would end in the same way but acreage is down the list of priority of calls. I received that article from a crusty old surveyor I actually met for the first time in a survey supply shop as he was picking up his instrument for repair and I was getting some supplies. He told me as I pursued licensure to paste tack nail that article up and look at every time I did a boundary in the future and ask myself have I followed the priority of calls.
Negligence of boundaries came to me as I dosed off and it was an article in the American surveyor magazine around early 2000’s. I will find the print out and try and scan it in and post it here I probably don’t have the full recollection in my statement above. But this post made some of that pop in my head. Now it’s not a clear memory but at least something bounces around up there once in a while. lol.
I would really appreciate that.
In California it is codified in Ca Code of Civil Procedures 2077 that area is at the bottom of the list.
The Priority (Dignity) of Calls for Evidence Compiled from State Courts, Statutes, Writings
1) Lines actually run in the field and proven from evidence
2) Monuments and/or Boundaries set and called for in the description
A. Natural Monuments
B. Artificial Monuments
3) Adjoiners (if Senior)
4) Courses
A. Bearings then Distances (Metes and Bounds States)
B. Distances then Bearings (GLO States)
5) Recitation of Area
A. May be controlling
B. May be evidentiary
6) Coordinates
Applying The Priority of Descriptive and Controlling Elements
RULES AND GUIDE FOR APPLICATION
To be considered, the element must be referenced in a written conveyance, preferably in the chain of title.
First Identify what elements are contained in the description that is to be surveyed.
Consider NO element that is not referenced.
Classify your elements in descending order.
Look for the highest element. If it is there, accept it. If not, go to the next element.
Any element that is not referenced has NO controlling factors.
Report ALL evidence found, regardless.
As you can see from what I posted that the use of area is a last resort which in my 45 years of land surveying I have only used a couple of times. Not knowing the specifics of the incident you brought up, my first impression that the land surveyor ignored the existing monumentation is quite incredulous.
It would be an extremely rare circumstance.
When you mention area, do you mean a called for acreage, or a fraction?
The West 5 acres of tract xx, and the west 1/2 of tract xx probably will be treated differently. The 1/2 area call will have more weight than the west 5 acre call.........usually.
Seeing the actual survey, deeds, and history would make it more of an issue to comment on.
Uncalled for monuments, area calls, deed sequencing, they all matter.
Butt........area over monuments is not something I've ever done. I accept monuments as a default position until I come up with a very, very good reason not to. The burden of proof is on the rejector; math and acreage are week reasons.
I seem to remember from "Legal Evidence & Boundary Procedures" (my personal copy was the 2nd release, before Robillard got involved) that hearsay was somewhat high on the list as well.
Not really on topic, but one of the counties I currently work in has thousands of descriptions that read "the North 10 acres" or "the East 10 acres" or some other reference to only area.
I dont know how that became normal, it isnt common in other counties around here. There must have been some lawyer or whatever that used that method 100 years ago.
Ok I found the article online in the archives. https://archives.profsurv.com/magazine/article.aspx?i=842
1) Lines actually run in the field and proven from evidence.
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This one always baffles me. Actual is defined as “existing in fact”. Isn’t a line comprised of two points, which would default to natural monuments, artificial monuments or lines of occupation? If so, could this be remove and just start the list with natural monuments?
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Blazed and painted trees directly marking the, "actual," boundary are superior to the invisible line defined by whatever hunk of metal someone threw at their termini. Same thing with a stone wall.
That is something that is being a lost art or procedure. I am seeing very little new lines blazed now days. I retraced one last year that some of the blazed trees were actually called out along a line so running NE dist through a hickory tree blazed to found iron. I am in the process now of buying a farm and the first time on site I had the plat and started out walking near the lines and wow what a great job the surveyor did. Had trees chopped all along the line which led me to my first monument which was very easy to find from the chops. I just kicked the leaves around and bam there it was. That survey was from the mid 90’s and I ran into that surveyor a few weeks later as I was hauling some hay. I had to stop and shake his hand and bother him a bit as he was out looking over a site. Do you have your crews blaze line anymore or is it just flagging etc.
"Not really on topic, but one of the counties I currently work in has thousands of descriptions that read “the North 10 acres” or “the East 10 acres” or some other reference to only area."
Very much on topic, IMO. But for the answer as to whether the area is held or not we have to go outside of the deed and look into what the adjoining owners did subsequent to the land division. We may have an unwritten boundary agreement, in some form, that fixes the boundary in a location that yields a different area.
If the deed specifies area only, and then the parties have it surveyed and monumented, and then quietly occupy in accordance with the monuments for an extended period of time, then you have a practical location, and the monuments hold over the area. Same if they simply agreed on a location of a dividing fence, or some other identifiable line.
Nevertheless, there is an Oregon case (Aspinwall v. Dunlavy) where acreages were sold by metes and bounds (which dimensions yielded an exact area, and the price paid was set by area), without mentioning monuments. But there were monuments, which the buyer had no knowledge of and did not learn of until years later. The court ruled that the dimensions of the deed held over the monuments. We might say that monuments are paramount, but only if all the parties know of them, or, at least, have reasonable notice that they exist.
Hearsay is called parole evidence but is another one of the last resort items to consider when other evidence is available.
