Kent McMillan, post: 414728, member: 3 wrote: Well, if the boundary is located somewhere other than the language of the deed would place it, what is the basis other than equity to argue in favor of the alternate position? The typical deed to a strip of land conveyed to the State of Texas for a highway would refer to a centerline that had been located upon the ground (or some similar language) and describe the boundaries of the strip by stations and offsets from that centerline, with possibly some other subordinate calls for bearing and distance between particular points offset from the centerline at given stations.
In other words, to locate the boundary of the strip requires determining the location of the centerline as surveyed, but everything else is protracted from that centerline. Absent any express agreement, the supposed correctness of a monument that was subsequently placed would seem to depend entirely upon equity in Texas since there is no principle of statute I'm aware of that would apply.
Do you think an original boundary is equitable or legal?
Dave Karoly, post: 414799, member: 94 wrote: Do you think an original boundary is equitable or legal?
I'd frame the question this way: "Does a landowner have to rely upon some doctrine of equity such as establishment in order to prove the location of his boundary along a State highway or can he rely upon the clear language of the grant to the State that created the boundary to be proven?"
I am 100% certain that I would myself rather rely upon the clear language of the grant in such matters as width of the strip instead of pretending that I would be able to convince a judge that the State of Texas had somehow done itself out of a foot of right-of-way because after title had passed, some concrete marker that a contractor had set, presumably to lines marked by some employee of the State, was mistakenly located.
The exact circumstance of the placement of the marker would typically be shrouded in the mists of time and all that could be produced would be the standard specifications for highway construction for some early date. Against that would be the grant itself that makes no reference to either the marker or the specification, only to a line that had already been surveyed and marked at the time of the conveyance. There would be little doubt but that the marker was not in place then but appeared months or years later.
A Harris, post: 414797, member: 81 wrote: [USER=3]@Kent McMillan[/USER]
Tyler TxDot sent me that and informed there was no more on that section of FM14.
There may have been more available when the Quitman Office and Winsboro Office were open.
At that time the local office personnel wore many hats and were more than just a maintenance crew.
The r/w data for this highway is probably among the 1%å± of information that never made its way to the District office and on to Austin.
You've probably discovered that the right-of-way maps were often filed with the local government as well. It isn't unusual to find old blueprint strip maps from the 1940s and 50s rolled up in some nook or cranny of the office of the County Clerk or County Judge in many rural counties that don't have a County Engineer.
lmbrls, post: 414743, member: 6823 wrote: Yes Andy is correct that this is the position of GDOT. I have asked GDOT numerous times for a copy of this written position by the Attorney General and have never received it. Having been involved in several GDOT projects, I have used the R/W monuments at times to help determine the original centerline. Often, we can not make an accurate determination of the R/W by shooting the centerline of the road and a few R/W Monuments on a just the parcel we are surveying. To just simply use the monuments or the road centerline as we determine it today, may not be the most accurate representation of the original intent. How much data a Surveyor needs to collect is a matter of professional judgement based on the specific situation. Right of Way is just another line for Quicky Dicky Surveyor to screw up.
There was an instance here in Cobb County where all the R/W monuments were set 50 feet from centerline. 40 years later we survey for the widening of the road and I find all the R/W deeds, but one, in the record room. Condemnation dockets are not filed in our Grantor/Grantee books. When I found that one deed (condemnation) the R/W condemned was 80 feet (40 feet from center). The plans all say 50 feet and the monuments are set at 50 feet. Do you still hold the monument? Not me.
Andy
Ken, I don't pretend to be an expert in Texas boundaries, maybe your argument would hold water there. Texas boundaries are unique in a number of ways. Before I would ever apply a math solution to a state sanctioned mounment I would have to see a statute or decision that differentiates ROW boundaries from all other boundaries. If I ever find myself in the position of surveying a ROW in Texas I may return to this conversation and have some questions for you.
aliquot, post: 414812, member: 2486 wrote: Ken, I don't pretend to be an expert in Texas boundaries,
Well, there are some fundamental principles involved. While there may be some states in which it is accepted that if you sell a strip of land to the State with boundaries that both parties have in view at the time of the conveyance, then wherever State employees may later decide that the boundaries *really* are will override the actual language of the grant, but Texas isn't one of them. In Texas, our State Constitution has a say in governmental takings and the rights of private landowners.
Kent McMillan, post: 414815, member: 3 wrote: Well, there are some fundamental principles involved. While there may be some states in which it is accepted that if you sell a strip of land to the State with boundaries that both parties have in view at the time of the conveyance, then wherever State employees may later decide that the boundaries *really* are will override the actual language of the grant, but Texas isn't one of them. In Texas, our State Constitution has a say in governmental takings and the rights of private landowners.
But the right's of private land owners to rely on the monuments they can see has been upheld over and over and over. I don't remember a requirement for the land owner to determine if the mouments were set at the exact time the deed was signed.
aliquot, post: 414817, member: 2486 wrote: But the right's of private land owners to rely on the monuments they can see has been upheld over and over and over.
Uh, no. Not in Texas. Keep in mind that on a typical Texas State highway right-of-way there isn't much doubt about where the centerline described in the deed by which the State acquired title is located. It can be located by a surveyor and isn't some mysterious location subject to confusion or dispute. So trying to insist that you've somehow magically acquired title to a foot of the highway right-of-way because a marker was set by a road contractor in the wrong position just means that you should have hired a surveyor.
aliquot, post: 414817, member: 2486 wrote: But the right's of private land owners to rely on the monuments they can see has been upheld over and over and over.
Let's break that proposition down. Does a landowner have a "right" to rely upon some survey marker that isn't described in his title? In what way, then does that right extend beyond some merely contractual obligation of the surveyor who identified the markers as marking a particular corner? The proper formulation is that "a landowner can expect that a professional surveyor who identifies some survey marker as marking a particular corner will have exercised some acceptable standard of care in forming his or her opinion". That is much different that a landowner finding some marker and having a "right" to consider it to be whatever he thinks it is.
As for the "upheld over and over" bit, I'm sure you'll be able to cite cases in which the first inquiry of the court was not where some line or corner located in a conveyance was situated upon the ground following the description of the conveyance.
It's true that there are doctrines of equity that would apply between private landowners, but in the case of the State of Texas, no. Possibly that would be true in Iowa or Wisconsin or some less developed state like Idaho, though.
I don't remember a requirement for the land owner to determine if the mouments were set at the exact time the deed was signed.
The landowner doesn't have to have the professional skill of a land surveyor, but a land surveyor does.
Kent McMillan, post: 414836, member: 3 wrote: Let's break that proposition down. Does a landowner have a "right" to rely upon some survey marker that isn't described in his title? In what way, then does that right extend beyond some merely contractual obligation of the surveyor who identified the markers as marking a particular corner? The proper formulation is that "a landowner can expect that a professional surveyor who identifies some survey marker as marking a particular corner will have exercised some acceptable standard of care in forming his or her opinion". That is much different that a landowner finding some marker and having a "right" to consider it to be whatever he thinks it is.
As for the "upheld over and over" bit, I'm sure you'll be able to cite cases in which the first inquiry of the court was not where some line or corner located in a conveyance was situated upon the ground following the description of the conveyance.
It's true that there are doctrines of equity that would apply between private landowners, but in the case of the State of Texas, no. Possibly that would be true in Iowa or Wisconsin or some less developed state like Idaho, though.
The landowner doesn't have to have the professional skill of a land surveyor, but a land surveyor does.
A land owner absulutly has a right to rely on a munument not called for, even the federal government, the ultimate sovereign recognises this (see 2009 Manual). This is doubly true when a party to the conveyence sets them themselves with no objection from the other party. It is also well established that the parties to a conveyence can establish the boundary themselves. No surveyor required. These are basic boundary principles. I could be convinced that ROWs are differnent from other boundaries, but nothing has been presented to show this is the case except quotes from engineers and the fact that it is standard practice in some areas. Standard practice holds no water with me. I have seen standard practices that loose every time they come in front of a judge. Staking a deed rather than an established line is also a loosing proposotion.
aliquot, post: 414838, member: 2486 wrote: A land owner absulutly has a right to rely on a munument not called for, even the federal government, the ultimate sovereign recognises this (see 2009 Manual).
I hate to tell you this, but I sincerely doubt that the BLM Manual of Instructions deals with boundaries other than those of the PLSS. So a question related to the boundary of a right-of-way of some State highway acquired by conveyance from private land owners is quite unlikely to fall within the scope of the Manual and whatever opinions the Manual may offer about much of anything would appear to be irrelevant.
It is certainly true that not even an acre of Texas was originally surveyed under any sovereign other than the State of Texas, it's predecessor the Republic of Texas, or it's predecessors, none of which were the United States.
I don't think the establishment doctrines are based in equity, they are based in policy, the same policy that original boundaries are based in, that is stability. The problem with highway right-of-ways is the location of the mythical engineer's centerline can only be reconstructed from secondary evidence which tends to mean they vary depending on the surveyor and how he runs his best fit routine so the R/W boundary becomes unstable from Survey to survey.
Kent McMillan, post: 414840, member: 3 wrote: I hate to tell you this, but I sincerely doubt that the BLM Manual of Instructions deals with boundaries other than those of the PLSS. So a question related to the boundary of a right-of-way of some State highway acquired by conveyance from private land owners is quite unlikely to fall within the scope of the Manual and whatever opinions the Manual may offer about much of anything would appear to be irrelevant.
It is certainly true that not even an acre of Texas was originally surveyed under any sovereign other than the State of Texas, it's predecessor the Republic of Texas, or it's predecessors, none of which were the United States.
I wasn't intending to apply the manual to any specific ROW, just trying to illustrate how universal the concepts are, but the BLM manual most definitely applies outside the PLSS. It applies to all official surveys of federal interest lands, even in Texas. Although rare, BLM surveys done in accordance with the manual are preformed in Texas. Check out GLO records and search for surveys under Texas. You will also see most, if not all non PLSS states listed. Each of these surveys containes a certification that the survey was done in strict conformity with the manual.
Since we have veered so far off topic and neither of us seems lickely to convince the other I think I am done with this thread. If you come across any decisions related to this topic I would love to see them.
Much of the PLSS was laid out by shoddy contractors yet their stakes hold. Much of Texas was laid out by Surveyors that didn't even bother to use the correct declination. The "the construction contractor did it sloppily" argument likewise does not hold water. The contractor wasn't doing it as a hobby, it was part of the project which in California was later accepted by the California Highway Commission, an official act which the public may rely upon. If the State needed the monuments set better that was well within their power to do so. The Deed conveys land marked out upon the ground, not the paper, this is extremely well settled in American Jurisprudence.
nm
Dave Karoly, post: 414844, member: 94 wrote: I don't think the establishment doctrines are based in equity, they are based in policy, the same policy that original boundaries are based in, that is stability. The problem with highway right-of-ways is the location of the mythical engineer's centerline can only be reconstructed from secondary evidence which tends to mean they vary depending on the surveyor and how he runs his best fit routine so the R/W boundary becomes unstable from Survey to survey.
Well, establishment is essentially a protection against the enforcement of a right by one who has the lawful right but had neglected for one or more of various reasons to avail himself of it. This would particularly be true in the case of land owned by the State against which statutes of limitation for adverse possession may not be pled (in Texas) .
It would be worth digging into the ancient origins of the common law to find the cases where acquiescence figures in real property. My assumption was that it began in actions where the statutes offered no remedy for some wrong. Considering the irregularity of the cases in which establishment figures, I would tend to think that the principles originate in equity rather than statute law as highly varied fact situations are weighed according to competing principles that seem to me to be in the domain of equity.
Dave Karoly, post: 414851, member: 94 wrote: Much of the PLSS was laid out by shoddy contractors yet their stakes hold. Much of Texas was laid out by Surveyors that didn't even bother to use the correct declination. The "the construction contractor did it sloppily" argument likewise does not hold water. The contractor wasn't doing it as a hobby, it was part of the project which in California was later accepted by the California Highway Commission, an official act which the public may rely upon. If the State needed the monuments set better that was well within their power to do so. The Deed conveys land marked out upon the ground, not the paper, this is extremely well settled in American Jurisprudence.
I think you're forgetting that we are discussing markers on the lines of State highway rights-of-way, the majority of which may be easily measured by steel tape and centerlines that in most cases (in Texas) were lines physically run on the ground and relied upon for setting fences back, in many cases before construction began. In other words the centerline was the line that was central to the agreement and the subsequent acts immediately following the transaction.
Is it reasonable to think that the landowner must watch the road contractor install the right-of-way markers and hire his own surveyor to verify that they are correctly placed or suffer the loss of some strip off his land greater than he bargained for? Likewise, having contracted to sell the State a strip, say, 80.00 ft. or 100.00 ft. in width, something that is easily measured in most cases, is the landowner at liberty to claim that somehow the State has lost the right to more than a 95.56 ft. wide right-of-way just because it has let construction to the lowest bidder?
BTW, in looking for the earliest statements about the thread of equity in the law, I found this statement by William Blackstone in his "Commentaries on the Laws of England (the perverse retention of 17th-century typography isn't my choice):
"What equity is, and how impoffible in it's very effence to be reduced to ftated rules, hath been fhewn in the preceding fection. I fhall therefore only add, that there are courts of this kind eftablifhed for the benefit of the fubject, to correct and foften the rigor of the law, when through it's generality it bears too hard in particular cafes ; to detect and punifh latent frauds, which the law is not minute enough to reach ; to enforce the execution of fuch matters of truft and confidence, as are binding in confcience, though perhaps not ftrictly legal ; to deliver from fuch dangers as are owing to misfortune or overfight ; and, in fhort, to relieve in all fuch cafes as are, bona fide, objects of relief. This is the bufinefs of our courts of equity, which however are only converfant in matters of property."
Kent McMillan, post: 414859, member: 3 wrote: BTW, in looking for the earliest statements about the thread of equity in the law, I found this statement by William Blackstone in his "Commentaries on the Laws of England (the perverse retention of 17th-century typography isn't my choice):
"What equity is, and how impoffible in it's very effence to be reduced to ftated rules, hath been fhewn in the preceding fection. I fhall therefore only add, that there are courts of this kind eftablifhed for the benefit of the fubject, to correct and foften the rigor of the law, when through it's generality it bears too hard in particular cafes ; to detect and punifh latent frauds, which the law is not minute enough to reach ; to enforce the execution of fuch matters of truft and confidence, as are binding in confcience, though perhaps not ftrictly legal ; to deliver from fuch dangers as are owing to misfortune or overfight ; and, in fhort, to relieve in all fuch cafes as are, bona fide, objects of relief. This is the bufinefs of our courts of equity, which however are only converfant in matters of property."
Was bill blackstone still feeling the effects of dental anaesthesia while recording his commentary?
Kent McMillan, post: 414857, member: 3 wrote: Well, establishment is essentially a protection against the enforcement of a right by one who has the lawful right but had neglected for one or more of various reasons to avail himself of it. This would particularly be true in the case of land owned by the State against which statutes of limitation for adverse possession may not be pled (in Texas) .
It would be worth digging into the ancient origins of the common law to find the cases where acquiescence figures in real property. My assumption was that it began in actions where the statutes offered no remedy for some wrong. Considering the irregularity of the cases in which establishment figures, I would tend to think that the principles originate in equity rather than statute law as highly varied fact situations are weighed according to competing principles that seem to me to be in the domain of equity.
The origin of acquiescence on the eastern seaboard was clearly as evidence of the original boundary, not equity. In one early case brought before the US Supreme Court it was ruled that there was an implied agreement in the established boundary.
Our courts generally seem to operate agreed boundaries in contract although in the 19th century the agreement was regarded as a legal fiction, an agreement being necessary to establish the boundaries. We don't have a stand alone acquiescence doctrine.
Establishment does not move the boundaries or create a new boundary, it establishes the Deed boundary. This is why we don't run record course and distance when the original monuments are found, there aren't two corners, the monument and the imaginary point at precisely 80.00 chain, no the monument and the corner are the same.
I've seen four scenarios:
1) nothing
2) centerline control and concrete monuments (only once, US101 in Gaviota)
3) concrete monuments only (in one case there were centerline monuments set in the 1940s but they got destroyed by a k-rail project). I haven't found any that were more than half a foot "off" but I don't encounter a lot of right-of-ways.
4) Reference monuments, no concrete monuments.