A Deed should be interpreted in light of the circumstances at the time the Deed was written. If a Deed ties to a land corner, the question of fact is, "what object (monument) may have existed and been used as that land corner?" Surveyors being stubborn technocrats often blow it on this point.
For example, consider the case of a 1/16th corner first monumented in 1894. A Deed Description begins at a point 400' east of the northwest corner of the southeast quarter of the southeast quarter (in other words, the SE 1/16th corner). Thence west 400', thence south 300' to the county road, etc. No one disputes that the P.O.B. is on the 1/16th line (which is just common sense, these things were probably written by lay people or attorneys). The description goes back to at least 1953 (and probably decades before that). The 1/16th post is still there.
So along comes Mr. Technocrat in 1979 and sets a dimension point NW 80' shifting all the Deeds west 61' and north 61'. There is a fence 400' east of the old post. This is causing other chaos in the area with two 1/16th lines each way, YAY! The boundary lawsuit between private parties was resolved in favor of Mr. Technocrat's corner in 2010 mostly due to procedural reasons (the other side defaulted resulting in the Judge declaring the only expert opinion available correct).
Then you have a Deed in the northwest quarter of the southeast quarter which begins at a point east 3059' from the west quarter section corner, thence west 901', thence south 1320' etc. There is no doubt in my mind the south end of the 1320' course is the southeast 1/16th corner. Later deeds breaking up this parcel are more sophisticated, they actually call for the corner. The lawyers who wrote these descriptions knew a quarter section is exactly cardinal and 1320' x 1320' exactly.
Much foolishness and chaos comes from constantly changing the answer.
You're oh so correct, Dave. However, I'm leaning toward the school of thought that a properly prepared description for a deed should really be "interpretation proof". A good description in my mind leaves nothing to interpretation. A call for a land corner should ultimately describe the monument that exists at that corner. Our monument perpetuation records and exercises will hopefully eventually minimize the error in corner recognition and identification.
BUT...until then, we're up to our orifices with truckloads of poorly prepared garbage with which to work. :bored:
Dave Karoly, post: 327768, member: 94 wrote: So along comes Mr. Technocrat in 1979 and sets a dimension point NW 80' shifting all the Deeds west 61' and north 61'.
What did he use to establish this position? Did his map note the old post and fence and describe their relationships to the 1/16th line?
I have re written those before. Beginning at the TECHNICAL 1/16 corner, thence S 47å¡20' W 75.2' to an old fencepost, with 1/2" rebar, and cap by PLS 12345, the USE 1/16 corner, thence.....
Nate The Surveyor, post: 327797, member: 291 wrote: I have re written those before. Beginning at the TECHNICAL 1/16 corner, thence S 47å¡20' W 75.2' to an old fencepost, with 1/2" rebar, and cap by PLS 12345, the USE 1/16 corner, thence.....
A Pincushion description???o.O
DDSM
Dave Karoly, post: 327768, member: 94 wrote: .....
Much foolishness and chaos comes from constantly changing the answer.
Seems these kind of survey problems hinge on minute details and are difficult to quantify in generalized principle. Many questions arise such as who owned what when. And what level of reliance or passage of time changes a wrong answer to a right answer? And what level of empowerment does the subsequent surveyor have to tell his/her client that bad title crafting and/or survey work is not actually an ambiguity? And do you and I have the power to resolve this by simply opining or does clarification of conflicts in evidence require landowner action or adjudication. Sometimes there are no right or wrong answers and most every survey is not just like the other.
I'm not sure the answer "changes" but is rather open to different interpretations depending on one's training and ideologies. 165 years of case law along with some statute guidance in California has but only scratched the surface regarding the myriad quantity of situations encountered. More often then not, we and our predecessors before us, have presented our opinions and surveys based on risk management and concern over upsetting the neighborhood apple cart rather than with an objective of achieving clarity of title.
No doubt the 1/16th corner in question was determined based on math. It's our most common error. 'Correct' is an identity, not a distance...
Right, Dave. It's called retracement.
6åá35. It may be held generally that the claimant, entryman, or owner of lands has located his or her lands by the good faith location rule if such care was used in determining the boundaries as might be expected by the exercise of ordinary intelligence under existing conditions. A good faith location is a satisfactory location of a claim or of a local point. It is one in which it is evident that the claimant's interpretation of the record of the original survey
as related to the [hl]nearest corners existing at the time the lands were located[/hl] is indicative of such a degree of care and diligence upon their part, or that of their surveyor, in the ascertainment of their boundaries as might be expected for that time and place. This is referred to as the good faith location rule.
6åá36. The relationship of the lands to the nearest corners existing at the time the lands were located is often defined by fencing, culture, or other improvements. In many parts of the country, county and other local survey monuments, which may consist of pipes or stones commonly used
at the time, may be found at the apparent corners of the entryman's improvements including fencing. The possible existence of such local monuments
demands a diligent search for any records from the old local survey, but even if the monuments are of unknown origin they must be analyzed for good faith location.
The vast majority of survey problems I deal with are caused by surveyors applying some "technically correct, but Maverick" survey "technique" derived in spite of all contrary evidence.
Applying rules governing the retracement of established boundaries, it doesn't matter if the 1/16th corner is "right" or "wrong." The only question to be answered is, "What evidence did the landowners (entryman) rely upon to establish their boundaries?" Clearly, they relied upon an old wooden post that was represented to them as marking the 1/16th corner. Whether or not they were mistaken in that representation or reliance is irrelevant. The retracing surveyor is required to make the same "mistake" and use the same "wrong" monument to ensure that the boundaries are recovered in the same "wrong" location. After all, when it comes to the "technically correct" location, they're all "wrong" to some degree or another.
JBS
I'm sure you could find court cases that have ruled either way on this topic. When I see rulings that are based on poor judgement, I assume there is a "technocrat" that presented his opinion more eloquently. My professional opinion will more often than not go with the fact that the intent on a call of, for instance, 330' west, would be that it needs to be 330' proportioned, and westerly along the landline. Of course if a previous surveyor has set a corner using a different interpretation of the description, I need to take that into account in a retracement.
When I see or hear court cases cited, I usually use that as a lesson on how I could better write my own descriptions so as not to introduce a similar misinterpretation of the offending call. How to interpret already-created problems takes a lot more analysis, including what has happened in the past and what is in the ground. My expert opinion may well differ from a courts decision. The court is not expert but only relies on testimony and their own nonexpert common sense and knowledge of the law.
(I think I may have kind of repeated myself here stating the same think in two different ways. sorry about that)
JBStahl, post: 327825, member: 427 wrote: The vast majority of survey problems I deal with are caused by surveyors applying some "technically correct, but Maverick" survey "technique" derived in spite of all contrary evidence.
Amen.
I recently saw a survey that rejected a stamped brass cap at the center quarter of a section (which matched the type and character of some of the exterior section and quarter corners that the same surveyor held, head scratcher) because it missed the mathematical center quarter section by 3-4'.
Apparently the rationale was that the brass cap marked for the center quarter was not shown on any recorded surveys and was not a perfect mathematical fit.
There were no previous surveys that even tied or held the brass cap, so the assumption may have been that it had not been relied upon. From the fences shown on the survey it was obvious that fencing had been constructed with reliance upon the position of the brass cap.
For what it was worth the cap was stamped 1972. The intersecting quarter section lines would have crossed rather rugged 300-400' deep canyons. I sure thought that missing the mathematical solution by 3-4' in 1972 with the equipment in use at the time was perfectly reasonable. It isn't like it was some goat stake that you really need to squint your eyes to make it look like a section corner.
These are the situations I come across that make me cringe. Obviously the cap was set by a surveyor and was clearly marked that it was intended to mark the center quarter of the section.
Can we make the ability to think critically and logically a prerequisite for licensure?
Jim Frame, post: 327775, member: 10 wrote: What did he use to establish this position? Did his map note the old post and fence and describe their relationships to the 1/16th line?
Does not show the fence...he did set the POB (400' east of the 1/16th corner).
A year later on a survey WKD (very prolific from the 1950s to the 1990s) shows the fence and sets a bunch of monuments implementing a sort of hybrid solution.
JBStahl, post: 327825, member: 427 wrote: Right, Dave. It's called retracement.
6åá35. It may be held generally that the claimant, entryman, or owner of lands has located his or her lands by the good faith location rule if such care was used in determining the boundaries as might be expected by the exercise of ordinary intelligence under existing conditions. A good faith location is a satisfactory location of a claim or of a local point. It is one in which it is evident that the claimant's interpretation of the record of the original survey
as related to the [hl]nearest corners existing at the time the lands were located[/hl] is indicative of such a degree of care and diligence upon their part, or that of their surveyor, in the ascertainment of their boundaries as might be expected for that time and place. This is referred to as the good faith location rule.6åá36. The relationship of the lands to the nearest corners existing at the time the lands were located is often defined by fencing, culture, or other improvements. In many parts of the country, county and other local survey monuments, which may consist of pipes or stones commonly used
at the time, may be found at the apparent corners of the entryman's improvements including fencing. The possible existence of such local monuments
demands a diligent search for any records from the old local survey, but even if the monuments are of unknown origin they must be analyzed for good faith location.The vast majority of survey problems I deal with are caused by surveyors applying some "technically correct, but Maverick" survey "technique" derived in spite of all contrary evidence.
Applying rules governing the retracement of established boundaries, it doesn't matter if the 1/16th corner is "right" or "wrong." The only question to be answered is, "What evidence did the landowners (entryman) rely upon to establish their boundaries?" Clearly, they relied upon an old wooden post that was represented to them as marking the 1/16th corner. Whether or not they were mistaken in that representation or reliance is irrelevant. The retracing surveyor is required to make the same "mistake" and use the same "wrong" monument to ensure that the boundaries are recovered in the same "wrong" location. After all, when it comes to the "technically correct" location, they're all "wrong" to some degree or another.
JBS
Oh come on John!! We have all repeatedly heard that an "existing" 16th corner can only be accepted if it can be "proved" that it was set by a licensed land surveyor using correct methodology. 😉
Brian Allen, post: 327883, member: 1333 wrote: Oh come on John!! We have all repeatedly heard that an "existing" 16th corner can only be accepted if it can be "proved" that it was set by a licensed land surveyor using correct methodology. 😉
Thanks for bringing this to John's attention! 😉
DDSM :-D:beer:
JBStahl, post: 327825, member: 427 wrote: Right, Dave. It's called retracement.
6åá35. It may be held generally that the claimant, entryman, or owner of lands has located his or her lands by the good faith location rule if such care was used in determining the boundaries as might be expected by the exercise of ordinary intelligence under existing conditions. A good faith location is a satisfactory location of a claim or of a local point. It is one in which it is evident that the claimant's interpretation of the record of the original survey
as related to the [hl]nearest corners existing at the time the lands were located[/hl] is indicative of such a degree of care and diligence upon their part, or that of their surveyor, in the ascertainment of their boundaries as might be expected for that time and place. This is referred to as the good faith location rule.6åá36. The relationship of the lands to the nearest corners existing at the time the lands were located is often defined by fencing, culture, or other improvements. In many parts of the country, county and other local survey monuments, which may consist of pipes or stones commonly used
at the time, may be found at the apparent corners of the entryman's improvements including fencing. The possible existence of such local monuments
demands a diligent search for any records from the old local survey, but even if the monuments are of unknown origin they must be analyzed for good faith location.The vast majority of survey problems I deal with are caused by surveyors applying some "technically correct, but Maverick" survey "technique" derived in spite of all contrary evidence.
Applying rules governing the retracement of established boundaries, it doesn't matter if the 1/16th corner is "right" or "wrong." The only question to be answered is, "What evidence did the landowners (entryman) rely upon to establish their boundaries?" Clearly, they relied upon an old wooden post that was represented to them as marking the 1/16th corner. Whether or not they were mistaken in that representation or reliance is irrelevant. The retracing surveyor is required to make the same "mistake" and use the same "wrong" monument to ensure that the boundaries are recovered in the same "wrong" location. After all, when it comes to the "technically correct" location, they're all "wrong" to some degree or another.
JBS
"The vast majority of survey problems I deal with are caused by surveyors applying some "technically correct, but Maverick" survey "technique" derived in spite of all contrary evidence. "
The vast majority of survey problems I deal with are caused by surveyors who are "expert measurers" who have no idea that there even is a thing called "boundary law". Many of them feel they "have to" set a new monument because that 60-year old one is 1.273' "out of position"!
I am sure I would adapt, but all those 1/16ths here and there make me happy to be colonial.
- Colonial Mustard
spledeus, post: 327913, member: 3579 wrote: I am sure I would adapt, but all those 1/16ths here and there make me happy to be colonial.
- Colonial Mustard
Repeat after Col. Mustard, technoVeyor...midpoint to midpoint...dittio...do...do...etc
DDSM:beer:
Dave Karoly, post: 327768, member: 94 wrote: So along comes Mr. Technocrat in 1979 and sets a dimension point NW 80' shifting all the Deeds west 61' and north 61'. There is a fence 400' east of the old post. This is causing other chaos in the area with two 1/16th lines each way, YAY! The boundary lawsuit between private parties was resolved in favor of Mr. Technocrat's corner in 2010 mostly due to procedural reasons (the other side defaulted resulting in the Judge declaring the only expert opinion available correct).
Ugh, that is difficult to deal with, particularly with only one expert opinion and a court decision confirming it.
If original monuments happen to be found, the debacle can be undone with another lawsuit. But no one tend to appreciate that in most situations. I have heard of it happening however, and it should happen if the manuals instructions are to be respected or surveys from deeds relying on sectional descriptions are to be done properly.
It seems to me there should be an authority of the courts that specializes in dealing with this problem. Assignment to judges arbitrarily who might be unfamiliar with surveying can create problems that adjoiners for decades must deal with after all evidence is stale or destroyed making existent, erroneous monuments the only references. Seems to fly in the face of what the profession is about.
Kevin Samuel, post: 327833, member: 96 wrote:
These are the situations I come across that make me cringe. Obviously the cap was set by a surveyor and was clearly marked that it was intended to mark the center quarter of the section.
Can we make the ability to think critically and logically a prerequisite for licensure?
There was a practice used in my county of noting such monuments as "FTC" (from true corner, with bearing and distance given from the calc'e corner) in the case of a monument with no recorded map showing it despite fences or walls built along the lines created. I suppose not using it is okay by one interpretation, but seems contradictory when the line was used by fencing which is its own kind of officiation because it is consistent with the law of use of a line.
Certainly recognizing it most often causes the least disruption which I think is the idea of the "usage of the line" rule.
Jim in AZ, post: 327889, member: 249 wrote: "The vast majority of survey problems I deal with are caused by surveyors applying some "technically correct, but Maverick" survey "technique" derived in spite of all contrary evidence. "
The vast majority of survey problems I deal with are caused by surveyors who are "expert measurers" who have no idea that there even is a thing called "boundary law". Many of them feel they "have to" set a new monument because that 60-year old one is 1.273' "out of position"!
There is the real problem. How come these guys have a license?
>How come these guys have a license?
Because the tests and continuing education are too much about calculations and OSHA rules and hydrology and not enough about law?