Kent McMillan, post: 415713, member: 3 wrote: 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.
I don't think you are reading the comments here. Not a single person suggested they would uncritically accept anything. The fact that the state accepted these contractors work for decades clearly establishes that these practices were accepted by the state. You can't call every monument a blunder.
Where are the court cases you refered to. I may find myself in Texas some day and would like to know if your ideas are legitimate.
I really like the member to ignore feature on this site. It keeps some of these long threads more relevant.
linebender, post: 415723, member: 449 wrote: I really like the member to ignore feature on this site. It keeps some of these long threads more relevant.
The guy in the middle has the right idea 😉
BajaOR, post: 415620, member: 9139 wrote: 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.
These are similar to staking notes I am familiar with, except the references can be any thing from boat spikes, smooth iron pins, rebars, or pipes. Hubs were set on the R/W. I believe it is essential to obtain the staking notes if you are attempting to retrace the existing R/W. The location of the references are your best indication as to the location of the original centerline along with structures such as bridges, etc, and not the R/W monument which was set at a later date.
aliquot, post: 415719, member: 2486 wrote: I don't think you are reading the comments here. Not a single person suggested they would uncritically accept anything. The fact that the state accepted these contractors work for decades clearly establishes that these practices were accepted by the state. You can't call every monument a blunder.
Where are the court cases you refered to. I may find myself in Texas some day and would like to know if your ideas are legitimate.
I take it that you didn't bother to read the opinion of the Texas Supreme Court in City of San Angelo v. Deutsch linked above. While that case dealt with the question of whether the principleof equitable estoppel applied to a municipal corporation, the identical reasoning applies to the State. Cities are merely political subdivisions of the State.
Essentially, the claim that a boundary was "established" by some road contractor's employee placing concrete markers in places that didn't conform to his instructions is an argument of equitable estoppel. State hires contractor and directs him to place concrete right-of-way markers in specific positions. Contractor tells employee to place concrete right-of-way marker . Concrete right-of-way marker is not placed on boundary of strip of land owned by State. Adjacent landowner can now reclaim title to land previously conveyed to State on the theory that the State has misrepresented the location of the boundary and correcting the mistake places an inequitable burden on Joe Landowner.
Except equitable estoppel can't be pled against the State or its subdivisions for the reasons set forth in the Deutsch case in Texas.
It is one thing to have a contractor incorrectly set a monument or monuments significantly out of position, but it is entirely different issue to be aware of the issues and not take corrective action to correct the issue as it is uncovered and make it a matter of record by removing, re-setting and filing a survey into the record or at minimum noticing the adjoining property owner of the issue. It seems that it is common knowledge to the profession that these monuments are bogus but how would a property owner ever know it, or a newly licensed Land surveyor for that matter? Once again, I know it is hard to argue with the King and keep your head but this is not protecting the public as our license requires. Jp
Having known and talked with many of the different members of various TxDot survey crews, I came up with many answers as to where the actual r/w was in relation to what they set during the 1950s thru 1960s and faded away in the 1970s when more people were paying attention.
When it came to the 4x4 concrete types, they set the width and Station at the:
Dead center
Top Back corner of back edge
Top Front corner of back edge
Center of back edge
According to the percentage of construction had much to how they proceeded to set the monument.
When set before the road construction they were usually set with care using a transit and chain.
If the pavement and stripes were present, they would usually measure down the stripe with chain, cloth tape or wheel and flop a 90 and pull the width out and set the monument.
If the construction baseline was in (usually on an offset from centerline and falling outside of the pavement) they would either use a transit and chain or flop a 90 and use a cloth tape.
Some times they drove the truck counting stations and jump out and pull a width with a cloth tape, maybe not from the correct station.
:8ball:
Kent McMillan, post: 415659, member: 3 wrote: 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.
Oh, okay. So you can take all of these positions, each containing random errors in different directions, run them through starnet and the program can remove these errors and get you back to the absolute true position of the original staked centerline removing all uncertainty. Got it, the afternoon beer cancels out the hit rock if you have enough data points. I didn't know that. That's amazing! I'll have to check that out.
roger_LS, post: 415774, member: 11550 wrote: Oh, okay. So you can take all of these positions, each containing random errors in different directions, run them through starnet and the program can remove these errors and get you back to the absolute true position of the original staked centerline removing all uncertainty. Got it, the afternoon beer cancels out the hit rock if you have enough data points. I didn't know that. That's amazing! I'll have to check that out.
Yes, when the right-of-way markers mostly have quasi-random errors similar to what you'd expect from fence builders who attempted to replace boundary markers with fence posts, they all provide a means of estimating the position of the centerline that, as the number of markers increases approaches being a very good reconstruction of the centerline.
Note that a simple Helmert transformation won't do the trick. You have to use an approach that treats the PIs on the centerline and its stationing as having errors consistent with having been run with a transit and tape (or whatever was used) and should expect to find that some markers have errors so great that they can't be attributed to random slop. Those markers typically should not be used in reconstructing the centerline of the right-of-way.
Just another possible method of determining the centerline is one I read in Professional Surveyor is to tie the monuments on both sides of the R.O.W., use the record distance from the monument to the centerline to calculate points on the centerline, then use your line of best fit though theses calculated points to calculate your best centerline to offset your R.O.W. from
Kent McMillan, post: 415729, member: 3 wrote: I take it that you didn't bother to read the opinion of the Texas Supreme Court in City of San Angelo v. Deutsch linked above. While that case dealt with the question of whether the principleof equitable estoppel applied to a municipal corporation, the identical reasoning applies to the State. Cities are merely political subdivisions of the State.
Essentially, the claim that a boundary was "established" by some road contractor's employee placing concrete markers in places that didn't conform to his instructions is an argument of equitable estoppel. State hires contractor and directs him to place concrete right-of-way markers in specific positions. Contractor tells employee to place concrete right-of-way marker . Concrete right-of-way marker is not placed on boundary of strip of land owned by State. Adjacent landowner can now reclaim title to land previously conveyed to State on the theory that the State has misrepresented the location of the boundary and correcting the mistake places an inequitable burden on Joe Landowner.
Except equitable estoppel can't be pled against the State or its subdivisions for the reasons set forth in the Deutsch case in Texas.
Yes, I did take the time to read it. You apparently did not take the time to read why I think it doesn't apply. You said there were many Texas court cases that held the state was not bound by mouments. I don't remember your exact words and can't find it now. Was it deleted? You are beginning sound like our friend from Singapore. I really would like to read these cases.
I don't know if it was mentioned in the previous 17 pages of this thread, but I have done a fair amount of ROW retracements, and when the land was conveyed as a strip (in fee or easement), it is referenced to a centerline, not a monument.
Therefore, it is our job to re-create the center line.and offset it the called distance to follow the INTENT of the deed, which is pretty clear, to convey a strip of land parallel with the centerline.
Now the question, the best way to recreate the centerline. I have found (and so have many other surveyors) the center of drainage structures is a much better representation of the engineers centerline than ROW monuments. The ROW monuments are almost always secondary to this. Also, just because a state agent set a ROW monument, that in no way makes it a boundary corner. I cannot see how it would?
This is an easy task when you are doing a large scale ROW retracement, but when you are surveying a 0.5 acre tract on a state highway, it can become cost prohibitive and most surveyors find the 2 nearest ROW markers, or rods set by previous surveyors and call it a day.
Furthermore on the validity of a Type I ROW marker, they were generally not there during conveyance, they were put there afterwards, usually haphazzardly by an underpaid construction worker who needed to fill out a punchlist item. If they were intended to be the actual monument of the ROW line, I feel the state would have mentioned them in their deed of the taking.
Bushwhacker, post: 415419, member: 10727 wrote: This may not be the correct method but it is the one most of the contract surveyors in Texas and Arkansas use. Use the center line as established from two structures, example bridge, culvert or curbs if shown on the R.O.W. plat and for stationing as these were laid out by surveyors not some one throwing a hand 90 and a 100' rubber tape. This method works better than anything else I've found, although I am sure there are others that are just as good. As for the R.O.W. markers were do you measure to on the marker? In Louisiana it is the outside edge.
Sounds reasonable to me. 🙂
Bushwhacker, post: 415780, member: 10727 wrote: Just another possible method of determining the centerline is one I read in Professional Surveyor is to tie the monuments on both sides of the R.O.W., use the record distance from the monument to the centerline to calculate points on the centerline, then use your line of best fit though theses calculated points to calculate your best centerline to offset your R.O.W. from
Sounds reasonable to me. 🙂
Dave Karoly, post: 415252, member: 94 wrote:
You have a marker intended to mark a known point on the R/W, that is what it represents, not an unknown offset to be determined 75 years later. Obviously you don't like the way the marker landed there but I don't that think that gives license to start shifting things around based on a centerline which is obviously lost.
In my previous post, I mentioned a project where many of the ROW monuments on compound, reverse and even standard curves were set at 90å¡ angles from either the back or forward PC/PT and were not tangent. So are you saying to accept these ROW monuments just because they exist?
billvhill, post: 415806, member: 8398 wrote: In my previous post, I mentioned a project where many of the ROW monuments on compound, reverse and even standard curves were set at 90å¡ angles from either the back or forward PC/PT and were not tangent. So are you saying to accept these ROW monuments just because they exist?
I'm saying if the monument was set in an official action to mark a specific point on the right-of-way then it controls in spite of imprecision of position. I'm not saying anything controls just because it exists.
If the monument was obviously set on another line, for example, say the right of way was originally intended to be 200 feet and monuments were set but the R/W was changed to 150 feet to save money then those monuments would not control the 150 foot right-of-way, that would be an actual valid reason to reject them. But rejecting monuments on procedural grounds when the State (usually considered a sophisticated landowner by the Courts) had every opportunity to inspect their setting and correct them as necessary.
Pick up 30 or 40 cases from across the spectrum of boundary issues and read them. You will find that an inquiry is made into who did what, when, where and for what reason, and what their position was with respect to the boundary, in other words, the human story is much more important in boundary cases than mere technicalities. Nothing is automatic or just because a hunk of concrete sits there. It's because people in authority took action, often using fast, efficient but inaccurate methods.
Many quarter section corners were simply stubbed and not in the way the field notes indicate, perhaps we should ignore all of those too because they are so far from where they should be located and it wasn't done correctly.
Notice: I will stipulate that a certain hat wearing Texan disagrees with what I have written here, there is no need to go on another demented straw man rant using my words in connection to the post. He may post whatever he wants, just leave me out of it.
aliquot, post: 415788, member: 2486 wrote: Yes, I did take the time to read it. You apparently did not take the time to read why I think it doesn't apply. You said there were many Texas court cases that held the state was not bound by mouments. I don't remember your exact words and can't find it now. Was it deleted? You are beginning sound like our friend from Singapore. I really would like to read these cases.
I have yet to find a single case in which the State of Texas was automatically bound by the fact that a surveyor had incorrectly placed markers on a boundary that was originally protracted. The ruling principle that would invalidate markers that encroached onto some private land adjacent to a strip of land owned by the State along a highway is the provision of the Texas Constitution that would prevent a taking without compensation, That is what a claim by the State extending the boundaries of land it owns onto privately owned adjacent lands would amount to, as in the case of right-of-way markers that are placed outside the boundaries of land owned by the State.
The sticking point with the folks in PLSSia seems to be that the call for a boundary to be located at a distance of 40.00 ft. or 50.00 ft. from some line that was run and marked upon the ground at the time of the deed is somehow vague or indefinite. The reality in Texas is that a very extensive portion of the public lands were conveyed on the basis of very similar surveys, only where the actual marked lines were often miles away from some protracted corner. Texas courts have consistently held that such lines are to be located by the calls for course and distance from such corners or points of reference as the description connected to. In that light, highway rights-of-way are trivial cases.
There are various surveying roles that the State of Texas authorizes:
- County Surveyor,
- Registered Professional Land Surveyor, and
- Licensed State Land Surveyor.
None of these are given the authority to adjudicate land boundaries, which is what adherence to the idea amounts to that once some survey marker is in place for the supposed purpose of marking a corner, that it necessarily concludes the location of the boundary in question.
What establishment amounts to in Texas is the purely practical question of whether the erroneous position of some boundary marker creates a problem that would be more trouble to fix than the loss that follows from it, not some power of surveyors or road contractors to inflict erroneously made surveys, without recourse, upon adjoining landowners.
In Florida those large 4" x 4" monuments that you see sticking out of the ground were not set to mark the R/W but to give the maintenance guys on the big mowers an idea as to where to stop mowing. At least that is what was explained to me. In the FDOT districts that I work in and for the alignment geometry from the R/W maps controls the R/W location so you recover or re-establish that first then you set the R/W from the alignment.
The boundary engineers have been improperly applying Deed rules of construction to establishment questions for decades such that it has become an unfortunate standard practice. The 19th century cases which enunciated these rules usually involved very large conflicts in how the grantor vs the grantee interpreted the words of the description. The rules, which are really rebuttable presumptions, were developed through experience as a guide to Judges in how to resolve these types of cases.
A Deed conflict might be the description specifies a strip 100' wide but the State determines it really needs 200' so based on a conversation with the grantor they claim this enlarged strip in Court. The Court would not allow that without an additional grant. Another example is what does half of a subdivision lot with a side street mean? Half including the street or half excluding the street? In California it has been ruled that half will be exclusive of the street unless a contrary intention is shown in the writings or the street has been vacated. These are Deed conflicts, not strictly boundary conflicts. The description provides instructions to the first surveyor on how to measure out the new boundary, if more than one interpretation is possible then the rules are resorted to in order to see how the Courts have interpreted similar descriptions in the past. This does not mean the boundary must be established perfectly or by the best, most accurate professional in the entire state. If the parties in authority choose a less accurate method and no one objects for decades then it not for us to overturn that boundary as established.
Boundaries become established through the conduct of the parties with the authority to do so. It was held by the California Supreme Court just the other day the government agencies act through its officers and employees or to simplify, people. The accusation has been repeatedly made that some of us believe a concrete monument planted in the ground automatically marks the boundary and moves with it wherever it goes. This dishonest effort is frustrating to say the least. I realize that some Surveyors have been making surveys for decades in accordance with a perceived correct practice and they aren't likely to change their opinions, change is just not the American way.
It is not automatic, not automatic, let me repeat that fifteen or sixteen times, it may sink in but I'm not counting on it. One time I found a stockpile of those CHC monuments lying in the weeds, apparently the contractor left them there when the project was completed. I in no way believe I could set some of those and claim they automatically mark the boundary.
Boundaries are legal, not engineering, entities. The question of location is answered by evidence, not engineering principles. In the case of location parol and extrinsic evidence is highly relevant to prove the fact of where it is. The acts and conduct of the parties subsequent to the delivery of the Deed is highly relevant. The boundary is being established substantially in accordance with the Deed, there is no additional taking or adverse possession involved. The position may not be in accordance with our expectations of precision decades later but what was done was done. Reality, not some best fit fantasy, is knocking on the door.
Land Surveyors connect the Deed and the Law with the ground. To ignore an entire area of law is not good practice. A cannon of legal construction is the law and Deeds should be read as a whole with each part taken in its proper context with respect to the entire scheme of law. Lifting a single rule out of a vast set of case law and exclusively applying it while ignoring the rest of the law is improper at best and in some cases I have seen very damaging. Courts have said over and over constantly moving boundaries can be sanctioned by no proper system of justice unless the owners take specific, written action to move the boundary from its established location to another location.
Dave, thank you for putting this subject together neatly. I'm going to print your post along with Stephan Calder's paper and fold it neatly and place it within my Elliott's book 'A Treatise, The Law of Roads and Streets' (1890) for future reference.
Thanks again, I am slowly becoming less confused. Jp