This addresses a post by Duane Frymire from over a week ago regarding holding R/W monuments. Duane posted a new take on the subject, which I’ll copy here. I was intrigued at the time and have given it a lot of thought. Unfortunately I simply don’t have the time to delve into it and explore it rigorously at present. But I wanted to firstly acknowledge that he presented what appears to be an argument worthy of examination and secondly agree to look at it further and or see if others want to offer any opinions.
At this point, I will simply say that I am interested, but not convinced.
The issue seems to revolve around the fact that since the land transfer involved a taking and not a negotiable contract, that the line is where it was first established and cannot be moved by later actions, such as recognizing and acquiescing to concrete monuments. I was unaware of that distinction and I’d like some confirmation if that is really the case.
Further, that seems to go towards issues of title and not boundary lines of title. How does that overturn the concept that boundaries go where the best evidence indicates? The further I go in my work as a property boundary surveyor the more I am consolidating at the position of using “best evidence” but also of taking course of action that are the most beneficial to parties involved. That last phrase translates to using easily identifiable monumentation.
Also, many seem to attribute a lot of significance to the fact that the monuments were the last items put in and were surely done so after the property was taken. To my thinking the building of the road is a long process and it is the entire process that should be considered as the establishment of the new boundary line. I do agree that for a brief period of time, the centerline stakeout is the best evidence of the property, but once the construction commences, this ceases to be the case.
Again, I am keeping to my position for now, but I certainly am open to more discussion on it. But kudos to Duane for introducing a stimulating line of thought and I hope we get to work on it some more.
Stephen
Duane's post:
If a takings process was involved then those conrete blobs are not monuments in the sense you speak of. Monuments usually hold because it is presumed they are the consumation of a bargained for exchange and the parties took title with a view of them indicating the final and complete bargain. This follows contract law where a deed is the contract.
A taking is not a normal contract, even if one decides to settle before going through the whole court process. There is no bargaining over whether the land will be sold, only a requirement and usually a fight, over how much the government has to pay. Most courts recognize that the land is being taken either way. The public can not gain or lose and neither can the landowner on subsequently set monuments.
Those that have been taught this should not be so ready to make up their own rules. You're not going to get very far fighting a constitutional law rule with a contract rule that doesn't apply to the given situation.
It has nothing to do with construing ambiguity in favor of one or another; again it's not a contract of equal bargaining power, or even one with state power getting the benefit of the doubt like the case of issuing a patent of land. It's a condemnation under eminent domain theory. Different animal altogether.
Once the line is determined per the taking documents then it is subject to normal rules of a boundary between public and private for the given type of property and use. There can be no establishment of a different line by actions of the parties. There have been isolated successful adverse possessions of unopened streets. I'm not sure whether any have been successful on an unopened street that was acquired through a taking process, but I doubt it. There would have to be something showing the state transferred it to a proprietary interest property, such as an attempt to sell it.
If you can figure out the description well enough to know some of those concrete structures or pipes or whatever are out of position by 10 feet, then the description seems sufficient. The ones that are verified are still not monuments in the normal sense. They may better be described as memorials. If they're not close enough that the point falls on them, then they are witnesses. The baseline stations are usually the best evidence of the intended location, but they are still not monuments either. Once the baseline is gone, the memorials become the best evidence in many cases to find the intended location. But ones that disagree with the taking documents must be disregarded.
My .02 take on the takings issue. Good luck with it.
Duane is right on. That what I have been doing for years. Accept some monuments and reject others. Some are within a few hundredths (set with care) and others were just there. When its all done, in several miles of alignments probably 75% monuments are good. At least the intent can be maintained, curve data held/preserved etc.
I have the same questions/reservations you do.
My general thoughts are that the action of the highway agency was to set the monuments, fence to the monuments and keep up the property inside the monuments. It sure looks, acts and quacks like a duck to me.
Generally speaking newer rights of way are (hopefully) written to a more specific and clearer level by licensed land surveyor who make calls to the existing right-of-way limit (wherever that may be and making it a higher element in the seniority of calls) and writing the new locations of the right of way that have little or less room for dispute. (but we all have even seen descriptions that were poorly written even by licensed land sureveyors).
I look forward to the discussion this thread leads to.
Almost all the GaDOT right-of-way deeds I've seen (except possibly condemnations) are for X number of feet left and/or right of the centerline. No mention is made of right-of-way monuments. I've seen deeds calling for 40 feet from center and found monuments set 50 feet from center. They're usually pretty good at pointing in the general direction of the right-of-way, but NOT as definitive.
Andy
Generally speaking newer rights of way are (hopefully) written to a more specific and clearer level by licensed land surveyor
If only that were true. I can't seem to even get them to stop using spirals in their descriptions. But they have started to set temp's at ROW's for new takings, at least for the last few I've been involved with. Caps and rebar set before construction and before the deeds are filed.
Do the deeds reference the plans of the Highway? I think each and every one I have ever seen certainly does, upon which are shown the right of way monuments.
Here's an example of one I'm currently working on:
from 1947:
"... of the following described centerline of road as surveyed and shown on the official plat of the Ovid-Riverdale S 52(1) road Survey on file in the office of the Department of Public Works of the State of Idaho....."
As we all know, if a plat or other document is referenced in the description, that plat, map, plan, drawing, etc. becomes a part of the description.
An interesting side note to the survey I'm currently doing is that the plan shows the r/w widening from 40 ft to 50 ft at station 490+50, however, the description in the deed calls the widening station as 490+35.
We seem to have the habit of looking at a boundary as being created by the actions of the surveyor. Put yourself in the shoes of the innocent landowner who was approached by the gov't to "take" some of his land for the highway. Is the landowner required to hire his own surveyor to check the exact mathematical position (and being assured that they fall within the "acceptable error") of each and every marker set by the taking agency before relying upon them? Certainly not. Why were the right of way monuments set? Why were they usually stamped "RIGHT OF WAY"? Why are they shown on the plans and plats? Why go through all that process and trouble (not to mention in many cases, the agency pointing out and telling the landowner that the monuments are the property line) if the monuments that were set at or near the time of the taking/construction were represented as being the right of way line, and have been relied upon (usually by both parties) as being the right of way line if they mean absolutely nothing to nobody?
Come on guys, we know what the correct answer is; let's put down our fictitious table of "acceptable precisions" and start surveying boundaries. It is after all, what the public and the courts expect us to do.
> Generally speaking newer rights of way are (hopefully) written to a more specific and clearer level by licensed land surveyor
>
> If only that were true. I can't seem to even get them to stop using spirals in their descriptions. But they have started to set temp's at ROW's for new takings, at least for the last few I've been involved with. Caps and rebar set before construction and before the deeds are filed.
Wow....okay. I knew every state wasn't on the same page, but around here, existing rights of way are determined by a licensed land surveyor, a licensed land surveyor creates the right-of-way plans, writes the legal descriptions for the new properties, and stakes the final right-of-way limits. I thought that most states generally were the same.
As to spirals, I have seen some old right of way descriptions paralleling a centerline of an alignment with spirals in it, but for the most part, even the old right of way descriptions didn't employ spirals.
Good post Mr. Allen. You are summing up what I have argued for a long time. Generally, those old concrete posts were part of the highway construction and represented the limits of the rights of way. They mowed to those posts, fenced to those posts and controlled the corridor between those posts....now some are arguing about whether the right of way limit floats in out out a few tenths.... I say, who cares? The highway department is going to keep up the fences to keep cattle off the road, and the private adjoiners are going to plant crops or grass to the fence and upkeep to there. One surveyor says that the right of way line goes through the middle of the post, another says it goes a tenth in front of the post and another says, no, no, it goes a 2 tenths behind the post. In the mean time life goes on and the fence is where it is.
The fact that the fence is a foot or two inside the right of way and that no one cares about exactly freezing activity at some magical line in the vicinity of the right of way marker is the primary point. The philosophical argument of precise right-of-way location is just something for surveyor boards I would think.
> Put yourself in the shoes of the innocent landowner who was approached by the gov't to "take" some of his land for the highway. Is the landowner required to hire his own surveyor to check the exact mathematical position (and being assured that they fall within the "acceptable error") of each and every marker set by the taking agency before relying upon them? Certainly not. Why were the right of way monuments set? Why were they usually stamped "RIGHT OF WAY"? Why are they shown on the plans and plats? Why go through all that process and trouble (not to mention in many cases, the agency pointing out and telling the landowner that the monuments are the property line) if the monuments that were set at or near the time of the taking/construction were represented as being the right of way line, and have been relied upon (usually by both parties) as being the right of way line if they mean absolutely nothing to nobody?
From your post(s) you use the term(s) property line and Right-of-Way line as if they are interchangeable.
I have been involved in 100's of miles of Right-of-Way surveys, over the last 38 years; my concern has always been where the line is between the municipality and the private properties. The location of the line between the private properties has never been my concern. If the individules along the route needed to know where there boundaries were, they could hire a surveyor. My client (the municipality) was not going to pay to have each individuals property surveyed.
Doug Casement, PLS
> From your post(s) you use the term(s) property line and Right-of-Way line as if they are interchangeable.
>
> I have been involved in 100's of miles of Right-of-Way surveys, over the last 38 years; my concern has always been where the line is between the municipality and the private properties. The location of the line between the private properties has never been my concern. If the individules along the route needed to know where there boundaries were, they could hire a surveyor. My client (the municipality) was not going to pay to have each individuals property surveyed.
>
> Doug Casement, PLS
In this discussion we are only referring to the line between the highway and the private owner. The usage of "property line" and "right of way line" are intended to be the one line dividing the public highway interest from the private adjoiners interest. I don't think we even want to get into if and when the right of way is really an easement or not........ :-O
As to spirals, I have seen some old right of way descriptions paralleling a centerline of an alignment with spirals in it, but for the most part, even the old right of way descriptions didn't employ spirals.
The spirals are a new thing. 50-60'sish era. Why they started using them? Who knows? The really old timers didn't use them, but a newer generation started using them after WW2.
And it just continued; the last project using spirals that I worked on were, I think, 2004-2005 deeds with spirals and metric. Now that one was fun.
> I don't think we even want to get into if and when the right of way is really an easement or not........ :-O
Come on Brian; where's your sense of adventure..:-S
I was at a Jerry Broadus seminar; in the hand out was a Right-of-Way description.
He read it out loud while everyone followed along. When he finished he asked who thought it was fee simple and who thought it was an easement; the crowd was about 50-50, I was in the half that got it right....B-)
It is an important issue even if it is off the subject line a bit. Most of the deeds I see written these days avoid the term "right of way" in the legal description or the body of the deed, and they don't mention a specific use of the parcel. Furthermore, there is a fair market value appraisal for the full value of the property.
If a parcel is to be acquired for easement purposes, there is a definite effort to write in the specific purpose of the easement in the body of the deed, it is usually labeled as an easement, and the appraisal is for a percentage of the full value of the parcel.
Many older rights of way are indeed easements, but I hold that most of the ones written around here are written as full fee simple acquisitions.
I struggle with ROW monuments on a monthly basis while recreating miles of highway right of way. Most of the older highways around here reference the highway plans only with and supply very little detail while in other areas there are no deeds at all just plans. Amazingly, in most instances the right of way has been monumented by concrete mons.
So you have a plan and you have the monuments. Many of the monuments will fit together just fine but there are those outliers that just don't fit all, lets say 5-10' in any direction. I will typically not hold those as a right of way and would continue the ROW per plan. If you were to hold it what would you do with the right of way? Do you jog it at perpendicular the mon, do you angle it from the previous PC/PT or angle point? Do you angle it back to the last found mon (if along a straight tangent) You can't fit a square peg into a round hole.
This is an ongoing issue in my neck of the woods and there is no clear, easy answer. I can say that the local district surveyor's have 'accepted' many different interpretations of their ROW by us private surveyors.
