RADAR, post: 415612, member: 413 wrote: So if:
is exactly where it should be, it still isn't worth the aggregate it was made with?
The point is that the only way that the marker can be determined to be correct is by actually retracing the Engineer's Centerline to which the conveyance referred in the first place. If the marker is intact and plumb (a vanishing condition among Type I Concretet Right-of-Way Markers these days) and the center of the marker is the correct offset from the Engineer's Centerline, then, sure, it correctly marks the strip of land sold to the State for the highway.
flyin solo, post: 415598, member: 8089 wrote: because you hold that widely recognized state-sponsored monument at the PC on the east side of the road, and you hold that widely recognized state-sponsored monument at the PC on the west side of the road, even though they fall 98 feet and change apart from each other and guess what? TxDOT is going to come yank a foot and a half from somebody. and it may well end up being just as arbitrary a decision as the original haphazard installation of the obelisk by whomever did it.
I'd like to see a case of that happening, and even if TxDOT tried to pull that off I think they'd get shut down by higher courts if pushed on it. That would be the state officially messing with people. Without being a constitutional scholar, I think we have protections against these things, this isn't Singapore. Consider, the State installs these prominent and highly visible obelisks, some even get painted bronze, a landowner builds a nice rock wall to the points, then the State comes back 75 years later and says, well we didn't care about setting those perfectly back then, but now we do, and we are going to take back this land. I don't think so. Then there is the problem of even knowing which one is to be moved as the exact location of the "original" centerline is lost, gone. Aside from some special and rare situation where a private surveyor has located the original stakes and perpetuated their location, there is NO way to be sure of where the centerline was to begin with. There is nothing left but these concrete monuments. You're kidding yourself if you think you know, and even starnet can't figure that out.
Every case is going to be at least a little different. Here's a sample of the DOT monument records we have to work with here in BajaOR. This is a rural area where trees and terrain often get in the way of achieving the quality of measurements one might get on flatter ground. Note that this 1931 easement example never mentions a centerline, but uses a metes and bounds description of "an irregular strip".
I remain in the "use the monuments unless obviously mis-set** or disturbed" camp.
** mis-set relative to the standards, methods, and conditions of the day, and relative to how one finds other nearby monuments to fit record.
roger_LS, post: 415618, member: 11550 wrote: I'd like to see a case of that happening, and even if TxDOT tried to pull that off I think they'd get shut down by higher courts if pushed on it. That would be the state officially messing with people. Without being a constitutional scholar, I think we have protections against these things,
Actually, the State of Texas is immune from statutes of limitation on adverse possession. So Joe Landowner can't claim adverse possession of the sliver of land that he or his predecessor conveyed to the State. About the only basis he'd have would be some theory of equity which likewise would be unlikely to fly against the State.
The thing about right-of-way monuments is that they typically show where the Engineer's Centerline is with very little uncertainty. So Joe Landowner can't really claim that the true location of the right-of-way line was in doubt, because it isn't.
The question a surveyor needs to answer is were the monuments accepted by the actions of the state and the adjoining owners. I have seen monuments that were 20 feet behind the record , the top backslope and the ROW fence. Those monuments were never accepted by the actions of the parties involved and are therefor discounted (and removed) and a new mark placed according to the record. No different than any other boundary.
JKinAK, post: 415588, member: 7219 wrote: All ÛÒ
In the positions you are advocating, is the R/W fee or easement?
AndÛ? in your opinion, is fee vs. easement relevant to the position you are presenting?
When I posted the OP I was thinking fee only...
Kent McMillan, post: 415622, member: 3 wrote: Actually, the State of Texas is immune from statutes of limitation on adverse possession. So Joe Landowner can't claim adverse possession of the sliver of land that he or his predecessor conveyed to the State. About the only basis he'd have would be some theory of equity which likewise would be unlikely to fly against the State.
The thing about right-of-way monuments is that they typically show where the Engineer's Centerline is with very little uncertainty. So Joe Landowner can't really claim that the true location of the right-of-way line was in doubt, because it isn't.
No uncertainty? you've gone on for pages about how poorly these right of way monuments were set, how do you gain certainty about the original location of the Engineers Centerline based on right of way monuments that were sloppily set? And, I don't think adverse possession has anything to do with this.
roger_LS, post: 415627, member: 11550 wrote: No uncertainty? you've gone on for pages about how poorly these right of way monuments were set, how do you gain certainty about the original location of the Engineers Centerline based on right of way monuments that were sloppily set? And, I don't think adverse possession has anything to do with this.
The certainty comes from the fact that the centerline as reconstructed has to fit so many conditions that even minor shifts in the final location agree poorly with the evidence. It's what happens whenever there is lots of data with quasi-random errors which must fit certain conditions. In the case of highway centerlines, one condition is that intervisible tangent sections of the centerline should be as straight as a transit line, for example.
Kent McMillan, post: 415630, member: 3 wrote: The certainty comes from the fact that the centerline as reconstructed has to fit so many conditions that even minor shifts in the final location agree poorly with the evidence. It's what happens whenever there is lots of data with quasi-random errors which must fit certain conditions. In the case of highway centerlines, one condition is that intervisible tangent sections of the centerline should be as straight as a transit line, for example.
But that's not the case here, remember these points were set by a fence builder, so they are sloppy and off in all different directions. There is no tight pattern w/ just a random outlier here or there.
Kent McMillan, post: 415607, member: 3 wrote: What of course that overlooks is the fact that the Engineer's Centerline to which the deeds typically refer was in fact usually surveyed and marked upon the ground at the time of the conveyance and both parties may be reasonably assumed to have had THAT line in view when the deed was executed, particularly when the deed refers to the line.
The State usually acted diligently to maintain that centerline throughout the construction process and it is also reasonable to think that the right-of-way markers were positioned in relation to it in some way rather than independently surveyed from some remote point. If the centerline were marked by spikes in the highway pavement, there would be no doubt about where the right-of-way is since measurements of 40.00 ft. or 50.00 ft. are considered by Texas courts not to be subject to significant error.
So if the centerline is reconstructed from the best evidence of its location, then the mistake is discovered. The private owner is perfectly free to recover any land he was augered out of by the State's contractor and the State's title is, of course unimpaired by the contractor's mistake since he had no authority to convey the land in which the State has an interest.
For such a dogmatic statement, I assume that you can offer at least one case in which a court has held that posts mistakenly placed by an employee of a road contractor hired by the State are binding upon the private owner who suffers the loss of property from the mistake? Likewise, I assume that if the principle is so firmly fixed as you think, there will be cases where the State has been held to have suffered the loss of property from a mistken in the placement of a marker by an employee of a road contractor not authorized as an agent of the State?
Kent this may come as a huge surprise and massive shock to you...you don't have to reply to every single post I make. You are a digital stalker.
Well, if you are going to make dogmatic claims about something as elementary as the lines of a right-of-way that are only 40.00 ft. or 50.00 ft. distant from a centerline that was surveyed and marked on the ground and maintained throughout the road construction process by some means being these nebulous things that can't be known until some construction worker drops a stubby concrete post into an augered hole, why wouldn't you want to have the obvious contrary view before you?
In particular, the whole idea of the State being bound by the equitable doctrine of establishment would seem to be fatally flawed in Texas. California may well be another matter, of course. There are plenty of Texas cases where the idea that some marker had been placed by an agent of the State and was therefore conclusive was explicity rejected.
Kent McMillan, post: 415657, member: 3 wrote: Well, if you are going to make dogmatic claims about something as elementary as the lines of a right-of-way that are only 40.00 ft. or 50.00 ft. distant from a centerline that was surveyed and marked on the ground and maintained throughout the road construction process by some means being these nebulous things that can't be known until some construction worker drops a stubby concrete post into an augered hole, why wouldn't you want to have the obvious contrary view before you?
In particular, the whole idea of the State being bound by the equitable doctrine of establishment would seem to be fatally flawed in Texas. California may well be another matter, of course. There are plenty of Texas cases where the idea that some marker had been placed by an agent of the State and was therefore conclusive was explicity rejected.
I'm telling you, buzz off. You can't be this dense.
roger_LS, post: 415645, member: 11550 wrote: But that's not the case here, remember these points were set by a fence builder, so they are sloppy and off in all different directions. There is no tight pattern w/ just a random outlier here or there.
No, the analogy to fence building is very good. If you take any series of boundary markers that were surveyed by transit and tape methods, the record of which survey exists, and then pulled the markers up and had some fence builders set posts "right where the markers were", you'd see all sorts of quasi-random noise in the deviations of the posts as set from the positions of the markers. Auger hits a rock and lurches one way or another? Check. Friday at beer thirty? Check.
C. Ben Thomson, RPLS, was in a former life a student of civil engineering at Texas A&M and once told how one of the summer jobs he had involved setting right-of-way markers for some highway project. The method was probably one of the more sophisticated ones in use, but not every highway project had future Aggie engineers using swing arms from saw horses to transfer lines to right of way markers set like fence posts in augered holes.
Dave Karoly, post: 415658, member: 94 wrote: I'm telling you, buzz off. You can't be this dense.
Okay, a Dave Karoly post is always correct as written and is never subject to error. :>
JKinAK, post: 415615, member: 7219 wrote: Where the R/W is an easement, the parent parcel is subject to whatever was acquired. The easement is the dominant estate.
If the acquisition was described as a strip, how can the servient estate assert that they don't owe the Public that full strip.
Oh I don't disagree that the conveyance of a specific strip width can be maintained. What I do disagree with is any conveyance that was defined by a physical survey at the time of the conveyance and then at a later date the grantee attempts to assert ownership outside of a previously established boundary merely because the original monuments should be in a slightly different location according to the geometry of a deed. A good example of equitable estoppel I might think.
And for the record, I don't consider concrete highway R/W posts set by fence contractors to be boundary monuments. Unless, of course, a previous survey or conveyance has relied upon the monument's location as a part of an extraneous parcel or conveyance.
paden cash, post: 415665, member: 20 wrote: Oh I don't disagree that the conveyance of a specific strip width can be maintained. What I do disagree with is any conveyance that was defined by a physical survey at the time of the conveyance and then at a later date the grantee attempts to assert ownership outside of a previously established boundary merely because the original monuments should be in a slightly different location according to the geometry of a deed.
In Texas, that would be a straight-up matter of the interpretation of contracts and deeds. As you probably know, what most of the rights-of-way of rural highways built during the period from 1930 through maybe 1980 represent are attempts to "dress up" the boundaries of a strip of land that was conveyed as being of some uniform width described as centered on a line that actually had been surveyed and marked on the ground, if in a way that would be maintained through construction and then paved over.
Unless a road pavement has been reconstructed, if you were to chip away at all subsequent resurfacings of the pavement, the actual nails that were set on the Engineer's Centerline from which the holes were staked out and into which the right-of-way markers were dropped are probably still there. For obvious reasons, it isn't highly practical to dig them out.
For those in Texas who may be interested in why the State of Texas is different from an ordinary private landowner and is not generally governed by the principle of equitable estoppel, there is this 1936 decision of the Texas Supreme court in City of San Angelo v. Deutsch (126 Tex. 532)
http://legaliq.com/Case/City_Of_San_Angelo_V_Deutsch
The case dealt with the negligent acts of an officer of a municipal corporation and whether the corporation was estopped from asserting its rights in the face of contrary representation. In its decision, the court approved the principle set forth in this quote from Ruling Case Law:
"The rule that a city is not estopped by the mistakes or unauthorized or wrongful acts of its officers or agents is thus stated in Ruling Case Law: "No estoppel can grow out of dealings with public officers of limited authority, and the doctrine of equitable estoppel cannot ordinarily be invoked to defeat a municipality in the prosecution of its public affairs because of an error or mistake of, or because of a wrong committed by, one of its officers or agents which has been relied upon by a third party to his detriment. So a municipality is not estopped by the unauthorized acts of its officer or agent, or by his wrongful act. Nor can an estoppel result from official fraud and corruption."
so, a State road contractor who was instructed to place a right-of-way marker in some specific location and failed to do so did not estop the State as a matter of equity from asserting its rights to the full width of a strip of land conveyed to it as described in the instrument of conveyance.
Kent McMillan, post: 415657, member: 3 wrote: There are plenty of Texas cases where the idea that some marker had been placed by an agent of the State and was therefore conclusive was explicity rejected.
Care to share any of these cases? They would go a long way towards proving you are doing the right thing in Texas.
Kent McMillan, post: 415673, member: 3 wrote: For those in Texas who may be interested in why the State of Texas is different from an ordinary private landowner and is not generally governed by the principle of equitable estoppel, there is this 1936 decision of the Texas Supreme court in City of San Angelo v. Deutsch (126 Tex. 532)
http://legaliq.com/Case/City_Of_San_Angelo_V_Deutsch
The case dealt with the negligent acts of an officer of a municipal corporation and whether the corporation was estopped from asserting its rights in the face of contrary representation. In its decision, the court approved the principle set forth in this quote from Ruling Case Law:
"The rule that a city is not estopped by the mistakes or unauthorized or wrongful acts of its officers or agents is thus stated in Ruling Case Law: "No estoppel can grow out of dealings with public officers of limited authority, and the doctrine of equitable estoppel cannot ordinarily be invoked to defeat a municipality in the prosecution of its public affairs because of an error or mistake of, or because of a wrong committed by, one of its officers or agents which has been relied upon by a third party to his detriment. So a municipality is not estopped by the unauthorized acts of its officer or agent, or by his wrongful act. Nor can an estoppel result from official fraud and corruption."
so, a State road contractor who was instructed to place a right-of-way marker in some specific location and failed to do so did not estop the State as a matter of equity from asserting its rights to the full width of a strip of land conveyed to it as described in the instrument of conveyance.
This principle would apply only if the monument was fraudulently set or if a blunder occured. It does not apply when the standard of care officialy accepted by the state at one point in time is latter changed to require a more precise location.
aliquot, post: 415689, member: 2486 wrote: This principle would apply only if the monument was fraudulently set or if a blunder occured. It does not apply when the standard of care officialy accepted by the state at one point in time is latter changed to require a more precise location.
In the case of a right-of-way that is only 80 or 100 ft. wide, and where the survey of the centerline reflects chaining errors of less than 1:3000, deviations of more than 0.03 ft. in overall width would indicate that the contractor failed to set the marker as directed and errors of more than a couple of tenths are obvious blunders.
The argument that the folks who want to uncritically accept all right-of-way markers have made is that the Mean Ole State arranged to have some contractor set them and so now as a matter equity can't claim that they aren't correct, even though they aren't.
