So, let me get this straight.
The highway department comes in, establishes the highway corridor and builds a road on for multi-millions of dollars, they monument that right of way, build fences to their monuments, upkeep that right of way for millions of cars, kick people off the right if way if they are on it for inappropriate purposes. Don't forget that they pay fair-market value for it and stake thproposed parcel in advance for the owner to see. They build fences to it and build improvements to, and some/of you are going to correct it with a two-bit rebar? Good lick with that. I sure hope whatever you're measuring from is better than the monument you're measuring to. Where I live, the highway plans often tie to controlling land corners. You might want to check those ties too, and make sure you have the same control.
Stephen
> The BIGGEST and most noticable monument is the center of the road. I have worked with the Georgia DOT on widening and improvement projects and have been told by THEM that the center of the road is the center of the right of way (unless otherwise indicated). The ROW monuments are clear indication that the right of way is "close" but the ROW monument (at least in Georgia) does not necessarily mark the exact location.
>
> Andy
Yes the road can serve as a monument and I've used it many times when it was the best available evidence. But when RoW mon.s are present, they are usually a superior monument to the right-of-way line. The monuments are self-evident. A distance off of centerline of road is not. Think of all the kinds of people who can see and understand a RoW monument; illiterate people, people with mental deficiencies, school children, soccer moms, politicians. Even blind people. Not so with a distance off of the centerline of the road. That would require correctly locating the centerline, correctly measuring off the correct distance to the edge, and don't even get me started if it's curved. Besides, you know as well as I that the centerline changes everytime they repave. Equally, no two field crews locate it the same each time.
As to your comments about GDOT, see both of my replies to Tom Bushelman. I specialized in GDOT surveying for 6 years, (I know, I know... you've done it for a little while longer... 😉 ) and I've been to those meetings, too. I've heard their same edicts. Even at the time it struck me as an arbitrary statement; they could just have easily said the monuments are good, but they are set 1.25' in from the R o W line. It doesn't matter what they said, they are not imbued with the authority to contravene fundamental real property law. They have to work within its confines and follow its' basic precepts. Does it not strike you as key that only a surveyor specializing in GDOT work would know what they think of their monuments? I assure you the affected land owners don't know. And that is the basis of my belief that there is no such thing as an approximate monument, certainly not after a relatively short duration of time.
Stephen
Ga has a provision to pay the landowner to "replace" existing property corners when they are disturbed during construction. This was my main source of income last year. I replaced several clients corners. The cost was much higher than what I would have normally charged because GDOT was involved.
I have been put on notice by the GDOT that the monuments set are set for "mowing purposes" and are NOT to be considered the R/W. The only way to re-establish the corners are to survey the entire parcel, locate the centerline and try to make it match with the plans
The GDOT plans with lat-longs, grid co-ordinates are incorrect. The plans for the actual transfer are not the way the road was built and I have even seen GDOT pay the wrong person for the property. (I happen to be a victim of this error).
GDOT pays the contractor to set the monuments and I have found some correct, some off BADD. This mostly depends on the contractor. The GDOTS position on monumentation is "the road is the monument". (notice this is in quotes and comes from #1 in the GDOT)
Often the concrete monuments are the only thing left.
The ties to remote corners on old R/W maps are sloppy at best.
Sometimes in the 1940s they set centerline monuments but those are in the middle of the freeway and are usually destroyed.
In a few cases I used the concrete monuments as the best available evidence of the Engineer's survey of the layout line (which the Deeds are tied to) because that is all there is left. The layout line is rarely the centerline and normally on a freeway or highway there isn't anything more definite than e.p.s which don't parallel the layout line.
This really seems to be a state by state issue. In Illinois, IDOT themselves state the 4" x 4" concrete "marker" is NOT the physical monument marking the corner of the ROW. It is for delineation of maintenance purposes.
There is supposed to be a 5/8" x 30" rebar with affixed aluminum cap stating IDOT ROW set at the actual ROW corner. Now, these rebar & cap are usually set prior to construction. Some are set flush with the ground. In cultivated areas, the rebar & cap are set at least 18" below grade to hopefully eliminate disturbance by farming activities. During the construction phase, licensed surveyors mark the actual ROW corners again. The State then tells the contractor where to dig the hole and set the concrete "marker." I would guess this directive is done in the job trailer or over the phone, rather than at the actual field location. This leads to the destruction of a good numer of the actual ROW monuments (the rebar & cap.)
IDOT regs used to place the "marker" so the back face or corner (away from the road) was set coincedent with the ROW line or corner. Now they are directing them to be set 1' (or so) inside the ROW.
This does lead to confusion to the public. After reading posts on this topic, it appears these "markers" may have different meanings, officially, in other states. As far as Illinois goes, there should be no argument by land surveyors as to what these "markers" represent.
I think we get sidetracked by semantics. Referring to these "markers" as monuments clouds interpretation as to what they actually are. The cemetary is full of monuments but headstones only give reference as to where the actual plot is.
I think the R/W is wherever the deed says it is. In Ky, the R/W deeds all reference the centerline stationing and offsets, never seen one call for a R/W monument. the monument is the centerline, IMO.
> Monuments rarely convey property, typically it's the description that conveys property.
Actually people convey property. Neither monuments nor descriptions convey property because as inanimate objects, they cannot have the intent to do so.
Both monuments and descriptions are used to express or demonstrate the intent of the people causing or executing the conveyance.
Except in rare cases, courts have been very consistent in holding original undisturbed monuments over any conflicting dimensional terms in an associated deed. That is true whether measurements between monuments are a few tenths of a foot different than the corresponding dimension in the deed, or if there is several feet (sometimes several dozen feet, and sometimes well more) of difference.
The monument is held as having the relationship to the line it witnesses according to the original record. If the record says the mons are on the RW line, then the RW line is where you find the original undisturbed mons, regardless of deed dimensions to the contrary. The reasons courts have given to support that, when they have chosen to explain it to its most basic reasoning, is exactly as Stephen said: not everyone can understand or adequately measure a set of dimensions from some distant object, but practically everyone can understand looking at a solid, tangible object that purports that "the line is here".
As far as holding the centerline of the existing road over the original RW monuments, if the RW deed descriptions specifically called out the centerline of the road as built, and the state first placed their RW fences relative to the road rather than the conflicting monuments, I would hold the road.
If the RW fence was placed according to the conflicting mons, and presuming we are talking about a well established RW and not one newly established on the ground, I would lean toward holding the monuments, regardless of whether the RW was described as so many feet each side of centerline.
Sometimes the existing road is the best evidence, but one must investigate whether the road is in its original location, whether there were alignment changes subsequent to the RW having been acquired, and consider whether the description was described with reference to a design alignment that did not get built, the construction alignment having been altered such that the resulting roadway is offcenter in the RW, and whether the RW monuments, if they exist, were set prior to or after road construction.
In CA, Caltrans has a habit of placing their monuments seemingly at random within or near the RW, but only occasionally making the attempt to actually place them on the RW, at least with the limited access freeways. They were somewhat better about placing mons on the RW on secondary state highways. Surveyors here (mostly) are aware that you need to get the monument plan to know what the original record relationship of the mons are to the RW.
I performed a survey of a parcel that was next to a 60 lot subdivision, both adjacent to a US Hwy which had been surveyed by Caltrans (actually the CA State Div of Hwys then - same difference). The RCE who had platted the subdivision around 1980 either had not bothered to get the state monument plans or didn't bother to look at them. He found a state monument stamped with a particular ID, which was reflected on the state monument plan as being 5.8' outside of the RW. The RCE took the mon to be on the RW and platted accordingly, and labeling that boundary of the subdivision as the Hwy RW.
So is there now a title gap of 5.8' x 900', does that sliver still belong to the party that owned the parent parcel of the subdivision, or would each of the lots along this line be extended to the actual location of the RW leaving no gap?
A question for another thread.
Is this recognition, or I should say "nonrecognition" of markers as properly marking the RW codified in IL statute? Is the actual placement of these "markers" relative to the RW accurately reflected on official state RW plans? Is there any case law that has ruled that in these cases, what looks, seems, and appears to be a valid official state RW monument isn't really an official state RW monument?
If not, I would think that by their negligent practice, the State of IL Hwy Dept is running the risk of essentially giving away 1' of each side of their RW as adjacent landowners begin to reasonably rely on those locations.
Unless their is record of the nature of the monument (i.e. rebar & cap actually marking the RW alongside concrete marker), and unless the record, not reflecting a more precise monument nearby, shows a different relationship of such a marker to the RW, the reasonable presumption would be that since it is of the same nature as a governmental entity might typically set as a survey monument, it is a survey monument (especially if marked "RW"), and it is an established presumption of law that unless the monument is conspicuously marked otherwise or it's associated survey record (map, description, field notes) specifically state otherwise, the center of the monument is presumed to mark the corner or line it was set to mark is presumed to be at or pass through the center of the monument.
An internal policy memo, or worse, an unwritten policy, if not reflected in the agency's publicly available records (maps, published manuals, RW deeds, field notes), would almost certainly not be sufficient to overcome such presumptions.
> Surveyors surveying for themselves and not the land owners. Typical. And disasterous to the profession.
That hits a real big nail squarely on the head!
So many surveyors seem to think of marked and mapped boundaries as something created by surveyors, and for surveyors. They seem to forget that we provide a professional service. That means that our profession exists to serve someone. That someone, those someones are the landowners who hire us to show them where the limits of their property are. We show them by means of placing monuments in the ground. That's the tangible, easily understood thing that the landowners should be able to rely on.
The monuments placed in the ground are primarily for the landowners, as a means of easily visualizing and understanding where the edges of their property, their domain, their castle grounds are. This is as far as they need to mow to, as far as they can extend their vegetable garden, where they can build a fence to enclose all that they own. It is also the limit to which their neighbor can do all of those things on the other side of the line. Surveyors are, at least in the minds of everyone but surveyors, merely a secondary consideration in the placement of monuments.
The maps of the surveys are primarily for other surveyors and secondarily for landowners. Maps contain the technical information that allows subsequent surveyors to know what objects to look for, where to find them, and provide spatial relationships to which they can compare their newer measurements. Most landowners don't know how to read all those specifics, or how to recreate the measurements reflected on maps. They see and may understand the acreage, the street names, and maybe that there is an indication of what type of object marks their corners. Almost none understand the distinction between a monument and a corner.
When most landowners see a monument, they see a corner. Many surveyors see a monument and also see a corner a few tenths away. That phenomenon can usually be identified as the double vision some surveyors have caused by wearing their math spectacles (kind of like the x-ray glasses that used to be advertised in the back of comic books, and just as useless when worn at inappropriate times). The excessive use of math spectacles has been shown to cause long term impairment of one's common sense, so one should only use them in moderation.
As one former participant of these forums used to say "monuments mean things." They seem to have more meaning to everyone else than they do to many surveyors.
BTW, good topic Stephen, and an excellent responses throughout.
What I want to know is ...
> If the monument is off by a foot, do you still have to hold it at its true location and not its intended location? 😀
That depends, what says it's off by a foot? If it is your current measurements as compared to the record measurements on the RW plans that also show the RW mon to be on the RW, then yes, you have to hold it.
But that's not because the monument is off by a foot, it's because your measurements are off by a foot according to the legal fiction that we must accept that there is no error of position in a called for monument which remains undisturbed from where it was originally set.
Your measurements may be more precise, they may have been made with more care than those of the original survey, you may even be able to prove that that mathematically, they more accurately reflect the true value relative to the standard length of a foot, but it still holds true that legally, the original monument is without error and any other position you assert it should be at is wrong.
Occupying to a line marked by monuments set by the state to mark the limits of state property is not adverse possession by any possible legitimate interpretation of the doctrine.
If the RW ends up being narrower than called for according to measurements now made, that is a difference in measurement equipment, methods, and standards. It is in no way the loss of land the state once had or the adjoiners gaining land to which they do not have written title.
If the state DOT had in the past employed negligent surveying practices by having non-surveyor contractors construct the monuments without having surveyors subsequently check the placement, then that is the standard that the state considered acceptable in the marking of its lands at the time. It cannot now come along and claim additional right of way by overiding those surveys performed to very poor but accepted standards at the time the RW was acquired.
> I have been put on notice by the GDOT that the monuments set are set for "mowing purposes" and are NOT to be considered the R/W. The only way to re-establish the corners are to survey the entire parcel, locate the centerline and try to make it match with the plans
I wonder if they've tested that in court and if so, how it turned out for them.
I wonder how that would work out, or even how many surveyors who are so ready to accept the "mower marker only" reasoning would view it if it were a private landowner making such assertions.
Consider a conveyance where the grantee agrees to buy the "South 100' of the East 100' of the grantor's parcel. Part of the agreement is that the grantee hire a surveyor to lay it out. Afterwards, grantee and grantor approve the survey and make the conveyance. Grantee fences the parcel in, builds his home, etc. Grantor places a shed about a foot off the fence, and each mow their yards up to the fence built according to the mons of the survey.
Several years later, the grantee reveals that he told the original surveyor to "just stake it rough, so I have an idea where to mow to", and claims that the monuments don't really mark the parcel boundaries. After all, even though the first survey was performed as part of the sales agreement, it was represented to mark the described property, and the parties completed the sale only after having the opportunity to see it on the ground, the description doesn't call for the monuments or the survey. Now the grantee has hired a new surveyor who found that the parcel was actually staked at 98' x 100', and grantee is claiming "his" other 2'.
Can he do that? Can the grantor reasonably argue that the monuments of the survey supplied by the grantee at time of purchase control?
Consistency check!
> The GDOT plans with lat-longs, grid co-ordinates are incorrect. The plans for the actual transfer are not the way the road was built and I have even seen GDOT pay the wrong person for the property. (I happen to be a victim of this error).
And so the adjacent private landowners should now suffer due to GDOT's history of negligence and incompetence? What legal precedent is that based on? Is there a reference in Clark, Brown, or some other well known survey text that states the principle that evidence of incompetence of the government surveyor or negligence of the agency is sufficient to override the monuments set in an officially performed and accepted survey by that agency? If there is, I've managed to overlook it.
> GDOT pays the contractor to set the monuments and I have found some correct, some off BADD. This mostly depends on the contractor. The GDOTS position on monumentation is "the road is the monument". (notice this is in quotes and comes from #1 in the GDOT)
The fact that GDOT has chosen to employ standards which would be considered to be negligent in any other context is immaterial. It is a standard that they set, a standard that they performed to, and the projects that they employed these standards in have been accepted as satisfactorily complete. That is a de facto acceptance of the surveys associated with the project.
They performed the surveys, either directly with employees or through contractors, they set the standards by which the work of those surveys would be performed (and monumentation of the RW lines is inarguably part of the performance of the surveys), they accepted those surveys at the time the conveyances were put in effect by taking possession of the RWs. They are now bound by the work they performed and the representations they have made. Actions speak louder than words, in life and in court.
The fact that they now, at some point after establishing lines on the ground, taking possession and indicating limits of possession through monumentation and fencing, assert that because a part of their standards are so far below the standard of care that the positions of monuments may not be precisely where they would have been if set carefully does not matter. The only thing that effectively does is serve as an admission to past negligence, or if monuments are still being set in the same manner, an admission to ongoing negligence.
So let's say DOT negotiates with me to purchase a slice of my rear yard. I sell it to them, and as part of the negotiation I negotiate for them to monument the purchase. The survey occurs and the monuments are set, deed records. I then proceed to build a 100$ a square foot wall on a line between the monuments. The wall starts and ends before the monuments, so they survive the construction. I have 500 glossy black and white photos documenting the construction, including the base course with the string line pulled between monuments. Two years later DOT comes in to build their new improvements and say my wall is encroached because the monuments were only approximately set. I don't think so! I don't think a judge is going to rule with the DOT either. When I set a monument, that is the way I think about. The home owner coming out the next weekend and building a wall or structure that costs more than I will make that year, based on the monuments that I have set. Keeps you remembering that it is not just a hunk of metal you are setting but a monument that is to be relied on by others! Other wise who needs us! My two cents, Jp
:good:
Good Post eap. I don't know about GDOT, but you make good points. I am not sure how you can monument a highway, build fences to it, maintain it and then claim that the right-of-way is indefinite (or whatever they're arguments are). An adjacent property must rely on the monumentation where the DOT claims to. And what about the acquisitions? They must write legal descriptions when acquiring properties, and show the landowner and the appraisers what properties they are acquiring (with the power of eminent domain I might add). It's hard to play dumb after all that and a few condemnations to boot. And what is this "where to mow to" if you don't know where the right of way is? Are those monuments inside the right of way?