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."
I have that book but the typography has been modernized. His discussion of homicide is very interesting, especially his explanation of murder, malice afore thought, manslaughter, and mere misadventure. Holmes copies it in The Common Law.
Kent McMillan, post: 414858, member: 3 wrote: 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?
So the State hired the lowest bidder, so a giant hole opens up in the road because of that, is the state excused from liability when someone crashes into the hole because, you know because the lowest bidder?
Bear in mind, the Courts will sometimes refuse to hold even a called for monument if is clearly contrary to the intentions of the parties, such as a concrete monument being substantially out of position and clearly wrong. The rules we are familiar with are presumptions, they can be rebutted. But when there is no other evidence of the centerline it is contrary to good practice to use them to create a floating centerline for the purpose of measuring over precisely the width than disregarding them after that. Unfortunately the remote ties to section corners are usually unreliable.
[USER=6642]@Conrad[/USER]
All places where the letter "s" would normally appear, except the end of a word, have an "f" instead. That seems quite odd unless one has read the script in its original form. What I learned in handwriting class to be the proper cursive, lower-case, letter "f" is almost identical with the letter "s" in the middle of a word from ye olden days. I have a handwritten accounting of the results of an auction held to sell off the belongings of one of my fifth-great grandfathers about 1800 in what is now West Virginia. It is written in that form. It took a bit to figure out what a fhovel was.
Dave Karoly, post: 414862, member: 94 wrote: 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.
In Texas law, testimony as to reputation or recognition and acquiescence can prove a boundary when the passage of time erases the original evidence. However, when the boundary can be shown by its original marks to be elsewhere, mere acquiescence isn't sufficient to overcome that evidence of the true line. The 1970 decision of the Texas Supreme Court in Kirby Lumber Corp. v. Lindsey (455 S.W.2d 733) provides a good example. I cannot think of a situation in which, in the case of a highway right-of-way, recognition and acquiescence would operate to reduce the width of the right-of-way.
I would think that recognition and acquiescence were elements that English courts considered in adjudicating ancient rights that were not clearly set forth in writing and were adopted in the common law that migrated to the United States. Naturally, few grants of the lands or rights-of-way for the highways built in 20th-century Texas were as vague as the ancient grants that English courts dealt with.
Establishment by equitable estoppel is, of course a quite different matter, where one party has misled another to his detriment regarding the location of a boundary. I'd think that would be the equitable basis by which Larry Landowner would insist that the Mean Ole State tricked his surveyor into believing that some precast concrete marker represented the true boundary of the land that the State owned even though another marker 95 ft. away would have shown that some wider inquiry was necessary.
Dave Karoly, post: 414865, member: 94 wrote: So the State hired the lowest bidder, so a giant hole opens up in the road because of that, is the state excused from liability when someone crashes into the hole because, you know because the lowest bidder?
I don't know about California, but in Texas sovereign immunity means you need to have the Legislature vote to give you permission to do so to bring a suit against the State.
http://law.justia.com/codes/texas/2005/cp/005.00.000107.00.html
I'm assuming that you aren't suggesting that in the course of a normal boundary survey a surveyor should expect his client to go to court to estabish the surveyor's claim that the right-of-way is really a foot or two narrower than as set forth in the clear language of the original grant.
But when there is no other evidence of the centerline it is contrary to good practice to use them to create a floating centerline for the purpose of measuring over precisely the width than disregarding them after that.
In my own experience, I cannot recall a case where a right-of-way of a State highway could not be satisfactorily established from old evidence in a way that was not consistent with the language of the original grant. I don't think it is an unusual burden to expect land surveyors to search for evidence of the location of the centerlines of highway rights-of-way even though it may be either on the opposite side of the highway, hundreds of feet from the location of interest, or both.
Kent McMillan, post: 414881, member: 3 wrote: in my own experience, I cannot recall a case where a right-of-way of a State highway could not be satisfactorily established from old evidence in a way that was not consistent with the language of the original grant.
Uh, make that: "in my own experience, I cannot recall a case where a right-of-way of a State highway could not be satisfactorily established from old evidence in a way that was consistent with the language of the original grant."
Kent McMillan, post: 414883, member: 3 wrote: Uh, make that: "in my own experience, I cannot recall a case where a right-of-way of a State highway could not be satisfactorily established from old evidence in a way that was consistent with the language of the original grant."
You keep trying to shuffle anything that doesn't fit your analysis off into acquiescence which I understand you have a personal bias against. It's not necessary to go there most of the time. Maybe California has a better class of contractors because I haven't found the 6x6 CHC monuments off feet as a general rule, they usually are very good evidence of the location of the original survey. I'm not saying there aren't outliers out there and maybe they wouldn't control in those cases.
Kent McMillan, post: 414881, member: 3 wrote: I don't know about California, but in Texas sovereign immunity means you need to have the Legislature vote to give you permission to do so to bring a suit against the State.
http://law.justia.com/codes/texas/2005/cp/005.00.000107.00.html
I'm assuming that you aren't suggesting that in the course of a normal boundary survey a surveyor should expect his client to go to court to estabish the surveyor's claim that the right-of-way is really a foot or two narrower than as set forth in the clear language of the original grant.
In my own experience, I cannot recall a case where a right-of-way of a State highway could not be satisfactorily established from old evidence in a way that was not consistent with the language of the original grant. I don't think it is an unusual burden to expect land surveyors to search for evidence of the location of the centerlines of highway rights-of-way even though it may be either on the opposite side of the highway, hundreds of feet from the location of interest, or both.
The State of California gets sued a lot, Caltrans employs an army of lawyers just to deal with the continuous lawsuits which occur every time there is an accident.
Dave Karoly, post: 414898, member: 94 wrote: You keep trying to shuffle anything that doesn't fit your analysis off into acquiescence which I understand you have a personal bias against. It's not necessary to go there most of the time. Maybe California has a better class of contractors because I haven't found the 6x6 CHC monuments off feet as a general rule, they usually are very good evidence of the location of the original survey. I'm not saying there aren't outliers out there and maybe they wouldn't control in those cases.
Well, unless you are relying upon some state statute that makes any survey marker one that fixes a boundary in any position that a surveyor has placed it without the agreement of the adjoining landowner, what aside from acquiescence do you have where material errors are made? What you have is a marker that was caused to be set by one party, the State, by a construction contractor, with no participation by the adjoining landowner, right?
If you want to claim that wherever the markers ended up necessarily fix the location of the boundary, then you end up narrowing or widening the land conveyed to the State under the rationale that the private landowner who will often be on the losing end of that scheme simply did nothing to assert a contrary claim. Why would you not call that acquiescence?
Dave Karoly, post: 414899, member: 94 wrote: The State of California gets sued a lot, Caltrans employs an army of lawyers just to deal with the continuous lawsuits which occur every time there is an accident.
But the obvious practical implication of having to sue the State of California to recover a foot or two of land resulting from a misplaced right-of-way marker is to impose a very unreasonable burden upon landowners. It is much better policy to simply accept the idea that certain elements of descriptions of land acquired for highways without reference to any monumentation other than some surveyed centerline are superior to some road contractor's efforts.
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.
That's kinda how it works out for me. The highway deeds reference a engineer's center line and station offset. Usually the only real starting point are the ROW markers. They do have ties to section corners here and there but don't seem to be that reliable. I try to fit what I find but then it seems that the guys using a tape and transit back then didn't measure as good as a TS of GPS now. Go a couple miles along the road and you need to index the stationing to bring it in or adjust the curve deltas a bit. So you adjust and fit and finally come to some best fit from the data you collected and how you best fit it. The next surveyor's solution probably won't be exactly the same but we hope close. So when it comes down to the end, after I do my best to fit it up I don't worry to much about a little bit (a few tenths maybe) and just go ahead and use the ROW markers if they doesn't appear to have been disturbed. I don't really know what else you can do. The landowners deserve something to go by, something visible. For me. I've never found a engineers center line offset line that I could get onto with complete confidence. They just didn't survey it, document it and measure it so exactly that you can jump precisely right on it. The way it was planned and the way it turned out differ and I'd just consider that at fact. So deal with it!
[SARCASM]I always feel better when I found and used the plans and ROW markers compared to a guy before me that used the striping on the asphalt![/SARCASM]
LRDay, post: 414920, member: 571 wrote: ....They do have ties to section corners here and there but don't seem to be that reliable.
A couple of things I've seen on old plans around here: They all seem to show whenever they cross section or 1/4-section corners whether they actually found and tied in an actual monument. Often times they have a "big picture" on the last page or two of the old plans. They would show section-corner locations and coordinates on those corners (you know, based on some 10,000 / 10,000 origin or the like) but they would label them "stone" or some short descriptor if they actually found something and tied it in.
If you can get the old notes they show how they tied it in, that can help. It was always from their mainline (centerline, or whatever they called it). Most of the time they would turn an angle to it from a centerline station point off their survey line, and then turn an angle again from another point station point where they can see to the monument. They seemed to get the coordinates based on a bearing-bearing calculation. I have also seen where they did a one-way traverse to the point they found. You might keep in mind if they have that information, it may not be as precise as you would see today, but it was closer, time-wise, to when the original monument was set. I have even heard of the BLM once using the DOT ties to actually find a corner that no one had been able to find.
I'm sure accuracies and methods vary by what crew was doing them and from state to state, but I have seen quality work and sloppy work from old stuff.
LRDay, post: 414920, member: 571 wrote: That's kinda how it works out for me. The highway deeds reference a engineer's center line and station offset. Usually the only real starting point are the ROW markers. They do have ties to section corners here and there but don't seem to be that reliable. I try to fit what I find but then it seems that the guys using a tape and transit back then didn't measure as good as a TS of GPS now. Go a couple miles along the road and you need to index the stationing to bring it in or adjust the curve deltas a bit. So you adjust and fit and finally come to some best fit from the data you collected and how you best fit it. The next surveyor's solution probably won't be exactly the same but we hope close. So when it comes down to the end, after I do my best to fit it up I don't worry to much about a little bit (a few tenths maybe) and just go ahead and use the ROW markers if they doesn't appear to have been disturbed. I don't really know what else you can do. The landowners deserve something to go by, something visible. For me. I've never found a engineers center line offset line that I could get onto with complete confidence. They just didn't survey it, document it and measure it so exactly that you can jump precisely right on it. The way it was planned and the way it turned out differ and I'd just consider that at fact. So deal with it!
[SARCASM]I always feel better when I found and used the plans and ROW markers compared to a guy before me that used the striping on the asphalt![/SARCASM]
We usually have some ROW monuments to work with, the ones we "fix" have normally been new ones. There are some recent construction jobs in the area that needed monuments adjusted, the deed line was simple to establish cause there was project cogo control set, for a couple of projects the monuments were positionally challenged.
It's not much fun moving them but there were more than twenty on one project that got dug up and shifted over (maybe that's cause it was metric----the last one :)).
For older ones; DOT tends to want to use the monuments if they have been sitting for decades, I seldom find them out much. The example above of 429.6' vs 430' is typical (over 50 years in place), seldom are the distances long. Generally the survey line/centerline in the deed was described in minutes and tenths of feet, the tangent distances seldom work, and the curves are often short. Also some older deeds clearly had curvature calculated.
The highways that are really challenging are the ones without any monuments. Even when the plans show them:(. Those get full width if there is nothing impacting doing so.
Overriding monuments cause they aren't to the nearest .00' when the deed described the width to the nearest ' and the reference line is recorded in minutes and tenths of a foot is a clear misinterpretation of the intent.
If you want an example of what I think is good practice for the reconstruction of State highway rights-of-way in Texas, here's one along State Highway 32 on a high ridge known as the Devil's Backbone in Comal County, just West of the Hays County line. This is a detail of a section of the right-of-way. I've given the complete basis for retracement of the strip conveyed to the State of Texas in 1940 for the highway in the pdf below, accompanied by the Key to Survey Marks, Line Data, and Curve Data tables.
This Google Street View image is approximately at Engineer's Centerline Station 638+74.4 looking East.
@29.9332904,-98.1628017,3a,37.5y,85.52h,74.99t/data=!3m7!1e1!3m5!1sCIrnZ0L6W-FAck0gwG3v2A!2e0!5s20130601T000000!7i13312!8i6656!6m1!1e1?hl=en"> https://www.google.com/maps/ @29.9332904,-98.1628017,3a,37.5y,85.52h,74.99t/data=!3m7!1e1!3m5!1sCIrnZ0L6W-FAck0gwG3v2A!2e0!5s20130601T000000!7i13312!8i6656!6m1!1e1?hl=en
Note that the Centerline Stations I've used are those shown and on the right-of-way map on file at Texas DOT and used in the 1940 conveyances. They merely identify the various centerline points and are not resurvey data. There's a note to that effect on the map.
The centerline of the strip of land was surveyed by Highway Department forces in about 1937 and the land was acquired in 1940. The broken concrete right-of-way markers exposed rebars of a a pre-1947 design consistent with their being those set when the highway was actually constructed.
Generally, the quality of the surveying as evidenced by the old markers was fairly good. The chaining wasn't stellar, but was at least fairly consistent.
I've attached both the line data and monument descriptions. The mark descriptions give any offsets from the corner to some reference point on the concrete marker.
LRDay, post: 414920, member: 571 wrote: That's kinda how it works out for me. The highway deeds reference a engineer's center line and station offset. Usually the only real starting point are the ROW markers. They do have ties to section corners here and there but don't seem to be that reliable. I try to fit what I find but then it seems that the guys using a tape and transit back then didn't measure as good as a TS of GPS now. Go a couple miles along the road and you need to index the stationing to bring it in or adjust the curve deltas a bit. So you adjust and fit and finally come to some best fit from the data you collected and how you best fit it. The next surveyor's solution probably won't be exactly the same but we hope close. So when it comes down to the end, after I do my best to fit it up I don't worry to much about a little bit (a few tenths maybe) and just go ahead and use the ROW markers if they doesn't appear to have been disturbed. I don't really know what else you can do. The landowners deserve something to go by, something visible. For me. I've never found a engineers center line offset line that I could get onto with complete confidence. They just didn't survey it, document it and measure it so exactly that you can jump precisely right on it. The way it was planned and the way it turned out differ and I'd just consider that at fact. So deal with it!
[SARCASM]I always feel better when I found and used the plans and ROW markers compared to a guy before me that used the striping on the asphalt![/SARCASM]
That's what I'm talking about, retracing the original survey.
Dave Karoly, post: 414942, member: 94 wrote: That's what I'm talking about, retracing the original survey.
Yes, and when the original survey was the centerline, all the markers subsequently set provide is evidence of where the centerline was actually surveyed from which the description in the conveyance was drafted.
Kent McMillan, post: 414938, member: 3 wrote: If you want an example of what I think is good practice for the reconstruction of State highway rights-of-way in Texas, here's one along State Highway 32 on a high ridge known as the Devil's Backbone in Comal County, just West of the Hays County line. This is a detail of a section of the right-of-way. I've given the complete basis for retracement of the strip conveyed to the State of Texas in 1940 for the highway in the pdf below, accompanied by the Key to Survey Marks, Line Data, and Curve Data tables.
This Google Street View image is approximately at Engineer's Centerline Station 638+74.4 looking East.
@29.9332904,-98.1628017,3a,37.5y,85.52h,74.99t/data=!3m7!1e1!3m5!1sCIrnZ0L6W-FAck0gwG3v2A!2e0!5s20130601T000000!7i13312!8i6656!6m1!1e1?hl=en"> https://www.google.com/maps/ @29.9332904,-98.1628017,3a,37.5y,85.52h,74.99t/data=!3m7!1e1!3m5!1sCIrnZ0L6W-FAck0gwG3v2A!2e0!5s20130601T000000!7i13312!8i6656!6m1!1e1?hl=en
Note that the Centerline Stations I've used are those shown and on the right-of-way map on file at Texas DOT and used in the 1940 conveyances. They merely identify the various centerline points and are not resurvey data. There's a note to that effect on the map.
The centerline of the strip of land was surveyed by Highway Department forces in about 1937 and the land was acquired in 1940. The broken concrete right-of-way markers exposed rebars of a a pre-1947 design consistent with their being those set when the highway was actually constructed.
Generally, the quality of the surveying as evidenced by the old markers was fairly good. The chaining wasn't stellar, but was at least fairly consistent.
I've attached both the line data and monument descriptions. The mark descriptions give any offsets from the corner to some reference point on the concrete marker.
Nope, your submission is rejected! The concrete monuments were set by the lowest bidder! Get yourself to acquiescence court!!!
Dave Karoly, post: 414952, member: 94 wrote: Nope, your submission is rejected! The concrete monuments were set by the lowest bidder! Get yourself to acquiescence court!!!
Actually, if you examine the Monument Description list, you'll see that the construction placed a number of corners on the right-of-way line at offsets from the centers of the markers. The centerline was reconstructed using the markers in the way that is most consistent with the surveying methods of the day and then the right-of-way was located from that centerline at the distances from it described in the deeds by which the State of Texas might prove title.
Just to focus our minds, here are photos of some of the markers found along that stretch of RM 32 on the Devil's Backbone. Note the 1930s-vintage rebar that were used to reinforce the markers. The Rods and Caps are mine, of course, as is the Spike with the Punchmark :
BillRoberts, post: 414788, member: 1759 wrote: I have read the comments above and have yet to see anyone comment on the reference pins set by DOT forces during staking of the project centerline prior to construction. Reference pins were generally set at PC's, PT's, and breaks in the R/W. The location of these reference pins can be found in what is referred as the staking notes and can only be obtained at DOT head quarters. District offices may also have access to the notes. Generally the reference pin was set 3-5 feet inside the R/W. A hub was usually set on the R/W at this same time. In some cases the as built plans may show this information.
Tie all found reference pins and reconstruct the centerline from them. From there the limits of the R/W can be determined. In other words the R/W monuments (concrete monument) are ignored unless they fit the reconstructed centerline,. Keep in mind the concrete monument was typically set by the contractor at the location of the hub or by measuring the offset to the reference pin. These reference pins were used during construction to reestablish the centerline as required not the R/W monument. You will be surprised how well the reference pins fit.
Think it over-which came first the reference pin or the R/W monument?
Reference pins? No such thing here...
BillRoberts, post: 414788, member: 1759 wrote: I have read the comments above and have yet to see anyone comment on the reference pins set by DOT forces during staking of the project centerline prior to construction. Reference pins were generally set at PC's, PT's, and breaks in the R/W. The location of these reference pins can be found in what is referred as the staking notes and can only be obtained at DOT head quarters. District offices may also have access to the notes. Generally the reference pin was set 3-5 feet inside the R/W. A hub was usually set on the R/W at this same time. In some cases the as built plans may show this information.
Tie all found reference pins and reconstruct the centerline from them. From there the limits of the R/W can be determined. In other words the R/W monuments (concrete monument) are ignored unless they fit the reconstructed centerline,. Keep in mind the concrete monument was typically set by the contractor at the location of the hub or by measuring the offset to the reference pin. These reference pins were used during construction to reestablish the centerline as required not the R/W monument. You will be surprised how well the reference pins fit.
Think it over-which came first the reference pin or the R/W monument?
"In other words the R/W monuments (concrete monument) are ignored..."
So can I ignore all the private survey monuments set along this line too?
