Brian Allen, post: 415034, member: 1333 wrote: Apparently not.
Uh, basically that question boiled down to whether a deed conveying a strip of land 100 ft. wide conveys a strip of land 100 ft. wide. The controlling legal "authority" is simply the principle that ordinary English words used in a deed or contract mean what they say unless it is clear that some other meaning was intended.
Brian Allen, post: 415002, member: 1333 wrote: A good read:
TYSON v. EDWARDS, 433 So.2d 549 (1983)
More simply put the question is:
In the event of a discrepancy as to subdivided land lot lines, do you go with what the original surveyor intended to do as shown by the plat or do you go with what the original surveyor did by way of laying out and monumenting his survey on the ground?
Surprisingly, because of surveying principles based on established surveying practices, the correct answer is that what the original surveyor actually did by way of monumenting his survey on the ground takes precedence over what he intended to do as shown by his written plat of survey.
The difficulty with the problem is that the role and practice of the surveyor and his function in solving a surveying problem of the type in this case is misunderstood. Lawyers, architects and design engineers are accustomed to achieving objectives by first conceiving of abstract ideas or plans, then reducing those ideas (intentions) to paper, and then using the written document from which to construct a physical object or otherwise tangibly achieve the original goal as written. When this is done, the written document is always considered authoritative and any deviation or discrepancy between it and what is actually done pursuant to it is resolved by considering the deviations and discrepancies as being defects or errors in the execution of the original plan to be corrected by changing the physical to conform to the intention evidenced by the writing. In only one situation does the surveyor play a similar role and that is when he, in the first instance, lays out boundaries in the original division of a tract which has theretofore existed as a single unit. Thereafter the surveyor's function radically changes. It is not the surveyor's right or responsibility to set up new points and lines establishing boundaries except when he is surveying theretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey. Later surveyors must only track and "trace the footsteps" of the original surveyor in locating existing boundaries. They cannot establish a new corner or line nor can they correct erroneous surveys of earlier surveyors, even when the earlier surveyor obviously erred in following some apparent original "over-all design" or objective. The reason for this lies in the historic development of the concept of land boundaries and of the profession of surveying. Man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and running lines ("metes and bounds"), and the paper "survey" or plat of survey is intended only as a map of what is on the ground. The surveying method is to establish boundaries by running lines and fixing monuments on the ground while making field notes of such acts. From the field notes, plats of survey or "maps" are later drawn to depict that which was done on the ground. In establishing the original boundary on the ground the original surveyor is conclusively presumed to have been correct and if later surveyors find there is error in the locations, measurements or otherwise, such error is the error of the last surveyor. Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan. Written plats are not construction plans to be followed to correctly reestablish monuments and boundaries. They are "as built" drawings of what has already occurred on the ground and are properly used only to the extent they are helpful in finding and retracing the original survey which they are intended to describe; and to the extent that the original surveyor's lines and monuments on the ground are established by other evidence and are inconsistent with the lines on the plat of survey, the plat is to be disregarded. When evidence establishes a discrepancy between the location on the ground of the original boundary survey and the written plat of that survey the discrepancy is always resolved against the plat.
'...what the original surveyor actually did by way of monumenting his survey on the ground takes precedence over what he intended to do as shown by his written plat of survey. "
Absolutely!
Brian Allen, post: 415033, member: 1333 wrote: I guess if you are the engineer the centerline is the most important part, but if you are a surveyor, the boundary delineating the right of way from the private landowner is the one you would be most concerned with. You know, the one that was represented to the landowner (usually by stakes) before the conveyance, the same one referred to in the conveyance, and the one staked by the state (or its agents), and the one marked by monuments for the obvious purpose of marking the boundary, and most importantly, the boundary relied upon (usually for many decades) by both parties.
It is absurd to think that a private landowner would be required to hire a surveyor and roll the dice to find where the ambulant mathemagical boundary might fall each and every time he needs know where the boundary actually lies, as opposed to relying on the concrete monuments set by the state, represented by state as marking the boundary, shown on state drawn and issued plans, and usually stamped "Right of Way".
Brian - I could not agree more strongly. beyond absurd!
Do your DOT's accept found monuments along Federal & State Highways?
Not too often.
Are you, as a private surveyor, allowed to do this, or do the monuments control the line location, with a bearing change at each monument?
DOT surveyors and private surveyors work under the same set of rules so someone is wrong. A great surveyor once said "monuments mean things" then he would follow that up by saying "think about that for a minute or two". I wish I had a nickel for each time I've heard "if you could see how those were set...."
When you are addicted to measurements rather than facts you eventually become irrelevant. You may be interested to know I am a DOT surveyor who was trained by the "if you could see how those were set" crowd. You can deny facts all you want but that doesn't change them. They are called ROW monuments on the plans but they don't monument the ROW??? please
Kent McMillan, post: 415029, member: 3 wrote: Well, it seems to me to be a straightforward surveying problem. The right-of-way markers were set in relation to specific stations on the Resident Engineer's Centerline and perpetuate those points in the same way that any other tie would. If the strip is 100 ft. wide and the markers at nominally the same station on opposite sides of the right-of-way are 99.07 ft. apart, one rectifies the discrepancy using the most reasonable method of construction.
Typically, that involves surveying through at least one PI beyond the tangent in question to arrive at a solution.
If the state has come in to survey their own existing right of way and does so with the care of plus or minus a foot, then I don't know of any "straitforward" basic method of construction to set up a uniform width that would produce the same results every time. I might hold these certain points, you might hold others. It gets a bit arbitrary, and line starts moving around with every survey. So again, is this situation any different than one where you were surveying a piece of private property called by deed to be 100' wide but where the best available evidence puts it at 99'
The intent of the deed describing a 100ft strip is 100', not 100.0', not 100.00', changing the intent to something not stated in the deed is on the surveyor doing that. Then there are others that relied on the clear intent of the monuments, from parcels written and staked along said monumented right of way to utility strips that use the right of way line. All this needs to be looked at, if there is some way to "freshen" up the monuments and make them work to 100.00' by all means do that. And I have done that, but I was early on in the process, as years pass that becomes more and more difficult, are we really going to say a concrete monument with a brass disk stenciled with station, offset, elevation wasn't set as an intended right of way? Come on!!!
MightyMoe, post: 415042, member: 700 wrote: The intent of the deed describing a 100ft strip is 100', not 100.0', not 100.00',
So, you don't think a call for 100 ft. means 100.00 ft.? Interesting. Only a surveyor would want to insist that it really means 99 ft. when the acreage calculation was based on 100.00 ft.
roger_LS, post: 415040, member: 11550 wrote: If the state has come in to survey their own existing right of way and does so with the care of plus or minus a foot, then I don't know of any "straitforward" basic method of construction to set up a uniform width that would produce the same results every time.
I guess I just don't see that as being some indeterminate problem to reconstruct a state highway centerline. I can't recall a situation where there wasn't just one solution that reconciled discrepancies best, just like any other good solution to a boundary reconstruction problem.
Kent McMillan, post: 415043, member: 3 wrote: So, you don't think a call for 100 ft. means 100.00 ft.? Interesting. Only a surveyor would want to insist that it really means 99 ft. when the acreage calculation was based on 100.00 ft.
I don't think, I know it means 100'. If you infer it means 99ft, then that's on you.
Kent McMillan, post: 415044, member: 3 wrote: I guess I just don't see that as being some indeterminate problem to reconstruct a state highway centerline. I can't recall a situation where there wasn't just one solution that reconciled discrepancies best, just like any other good solution to a boundary reconstruction problem.
If there was a foot of slop between all found monuments and in all different directions where no pattern existed as to show that some were clearly outliers, how would you deem certain points to be good while others not?
If anything, I might think that the state, in surveying their own existing right of way has a special authority to short themselves if it turned out that way and particularly where they have been relied upon.
roger_LS, post: 415049, member: 11550 wrote: If there was a foot of slop between all found monuments and in all different directions where no pattern existed as to show that some were clearly outliers, how would you deem certain points to be good while others not?
If anything, I might think that the state, in surveying their own existing right of way has a special authority to short themselves if it turned out that way and particularly where they have been relied upon.
There are some fairly simple, impersonal rules of construction that fit the bill. For example, if all in the world you have are two markers that are supposedly opposite the same centerline station and 50 ft. distant from it, but the markers are actually 99.00 ft. apart, then midway between the markers is the most reasonable reconstruction of the centerline point unless there is some reason, such as terrain, to think that one of the ties was more likely better.
MightyMoe, post: 415045, member: 700 wrote: I don't think, I know it means 100'. If you infer it means 99ft, then that's on you.
I'm pretty comfortable treating a call for 100 ft. as a call for 100.00 ft. :>
Kent McMillan, post: 415044, member: 3 wrote: I guess I just don't see that as being some indeterminate problem to reconstruct a state highway centerline.
Therein lies the problem. We shouldn't be focusing on reconstructing the centerline when we are hired to retrace the boundary/right of way.
TxDot's requirement is for parcels to be described by offsets from the centerline of the highway.
For most highways, this centerline has no existing monuments in place today as they once were maintained.
When there was monuments inside the r/w it was usually on an offset line approximately 5å± feet from the edge of pavement along a reference line.
Whenever a boundary is along a highway r/w it becomes necessary to locate both r/w of the highway to assure locating the centerline properly.
Finding any r/w monuments can be a challenge these days since TxDot only maintains so far from the edge of pavement allowing 20+ feet of most to become overgrown unless the adjoining land owner clears the brush and trees.
Many times I follow surveys where the surveyor had only located the existing painted centerline and never found or called for any of the existing r/w monuments.
It is not uncommon for the need to locate portions of a highway as much as a mile or more in both directions from the property being surveyed.
Brian Allen, post: 415053, member: 1333 wrote: Therein lies the problem. We shouldn't be focusing on reconstructing the centerline when we are hired to retrace the boundary/right of way.
Well, when the boundary is defined in relation to a certain line that was actually surveyed, then not actually attempting to locate that line doesn't retrace anything. You might was well just be flagging fence posts.
Kent McMillan, post: 415052, member: 3 wrote: I'm pretty comfortable treating a call for 100 ft. as a call for 100.00 ft. :>
The only time 100 ft=100.00 feet is when nothing was ever established on the ground or all evidence of that establishment has been lost.
Kent McMillan, post: 415063, member: 3 wrote: Well, when the boundary is defined in relation to a certain line that was actually surveyed, then not actually attempting to locate that line doesn't retrace anything. You might was well just be flagging fence posts.
Sometimes fence posts are the best evidence of the location described in the deed.
Kent McMillan, post: 415063, member: 3 wrote: Well, when the boundary is defined in relation to a certain line that was actually surveyed, then not actually attempting to locate that line doesn't retrace anything. You might was well just be flagging fence posts.
I'll keep this going just for fun....we assume the centerline was originally surveyed, because they had to build the road. Do we also know as fact that the sidelines were not also originally surveyed, and that those secondary concrete monuments set after the original conveyance were not just put in the place of original wood stakes found along the right of way line?
roger_LS, post: 415066, member: 11550 wrote: I'll keep this going just for fun....we assume the centerline was originally surveyed, because they had to build the road. Do we also know as fact that the sidelines were not also originally surveyed, and that those secondary concrete monuments set after the original conveyance were not just put in the place of original wood stakes set along the right of way line?
Yes, that's ordinarily a safe assumption because (a) the deeds typically make no reference to any line having been surveyed other than the Engineer's Centerline, (b) the surveying is done before any clearing and grubbing that would destroy any marks set along the right-of-way lines, and (c) the right-of-way markers were usually set late in the road construction process when stakes set a year or more earlier would be unlikely to remain in place.
The other element is that one does run across instances where a private survey was made at some point after the right-of-way deed was executed and before the highway was constructed. We know from those cases that there weren't any markers in place on the right-of-way lines.
aliquot, post: 415064, member: 2486 wrote: The only time 100 ft=100.00 feet is when nothing was ever established on the ground or all evidence of that establishment has been lost.
By "established", I assume you don't mean established in the legal sense but "driven" or "stabbed".
Kent McMillan, post: 415067, member: 3 wrote: Yes, that's ordinarily a safe assumption because (a) the deeds typically make no reference to any line having been surveyed other than the Engineer's Centerline, (b) the surveying is done before any clearing and grubbing that would destroy any marks set along the right-of-way lines, and (c) the right-of-way markers were usually set late in the road construction process when stakes set a year or more earlier would be unlikely to remain in place.
The other element is that one does run across instances where a private survey was made at some point after the right-of-way deed was executed and before the highway was constructed. We know from those cases that there weren't any markers in place on the right-of-way lines.
Maybe, but that's a lot of assumptions on your part to overturn a basic assumption that lines have been established on the ground and especially when you're arguing a case that rights of way are always full record. I'd throw out your (a) because as we know, many many deeds make no call for monuments when in reality they were actually based on a survey and monuments were actually set.
