Taking the matter of pins in the wrong location a bit further. I think everyone will concede that the survey evidence is made up of not only the pins in the ground but also the map produced at the time. Does elimination of the pins really accomplish elimination of the threat to the true boundary per the deeds?
In one such NY case the supreme court (trial court in NY) held that the plaintiff owned the property shown on their survey as the true boundaries of the lot because the earlier survey was more credible, or that alternatively they owned said property by way of adverse possession through reliance on the said map boundaries.
Plaintiff (P) ordered a survey before purchase of the subject property in 1969. P relied on the map and pins set until the time of this action (1980's).
Defendant (D) ordered a survey in 1975. P testified that the 1975 survey agreed with the 1969 survey in some areas but differed by 8 feet in other areas. The 1975 survey showed a dashed line representing what the surveyor considered the incorrect 1969 location. P testified they continued to exclusively use the entire area up to the 1969 survey line. D testified they used the area up to the 1975 line.
The 1975 surveyor testified that the 1969 survey did not agree with the deeds because it did not give 101 feet lakefront to the Defendant and 122 feet lakefront to their adjoiner. He also testified that NO PINS were found marking the line between P and D in 1975.
The appellate division of the supreme court (case was not appealed further) had the following to say (Farley v. Nilsen, 1993):
First, the trial court erred by giving greater weight to the earlier survey because there was no expert testimony concerning its accuracy.
Second, upheld the trial courts alternative ruling in that there was sufficient evidence that the plaintiff acquired title to the property encompassed by the 1969 survey by adverse possession.
Comments:
1) NY courts have held that a survey on file for 10 years and unquestioned during that time is prima facie evidence of the accuracy of its contents. In this case the trial court erred in considering an older survey more credible merely because it was older. The court may have mistaken an older survey for an original survey. These were lots in an old lakefront subdivision, most of which were either protracted or staked haphazardly. In the absence of quality original stakeout (or any original stakeout) I would have to agree with the trial court that the older survey should be given a bit more weight. However, it's also reasonable to hold with a 10 year time period for said survey to be challenged. At any rate, and as usual, the appellate court does not want to base its findings on an overruling of the trial courts determination of credibility. A ruling such as that could in turn be overruled by the highest court.
2) The mere existence of another survey opinion is not enough. The Defendant should have either erected some substantial barrier of occupation or brought the matter to court in order to assert their rights in 1975. The fact that the only monuments in place beginning in 1975 were the ones marking the 1975 survey did not stop the Plaintiff from successfully claiming to the line per the 1969 survey map.
3) Regardless of the fact that the 1969 pins no longer existed, and that there was no substantial enclosure or cultivation, the appeals court awarded adverse possession to the entire area shown on the 1969 map. While the court does not state it outright, the only conclusion under NY law is that the survey map is a sufficient document to establish color of title. The adverse possessor under color of title is entitled to all the area described in the document and not limited to that which is enclosed, cultivated, or improved.
4) This case admittedly stems from a case where the boundaries were probably unclear from the deeds. However, it seems the same result could be reached even in a case of obvious error. When an earlier survey is discovered to be in error it may be just as important to try and get that survey map revised (and re-issued with the revisions) as it is to remove the actual monuments stemming from it.
"He also testified that NO PINS were found marking the line between P and D in 1975."
Suspicious...6 years - doubtful that P pulled them. Good post Duane! :good:
> Taking the matter of pins in the wrong location a bit further. I think everyone will concede that the survey evidence is made up of not only the pins in the ground but also the map produced at the time. Does elimination of the pins really accomplish elimination of the threat to the true boundary per the deeds?
Just as a footnote to the matter I described in a thread below, the situation was very clean in that the erroneous survey was not of public record. No copy of it had been recorded and no description based upon it or referring to it in any way had been made.
The parties who purchased the land in 1981 hired the 1990 surveyor to prepare a topographic survey for which the erroneous boundary determination was an incidental part of the work. The same people owned the land in 1999 and in 2005 when my work was performed.
There was no question of adverse possession either by my clients of a sliver of an adjacent property or vice-versa. In Texas dedicated public roads are exempt from the action of adverse possession limitation statutes.
Just as a footnote to the matter I described in a thread below, the situation was very clean in that the erroneous survey was not of public record. No copy of it had been recorded and no description based upon it or referring to it in any way had been made
I believe that in all cases of AP, "constructive notice" is necessary. The question is: is the mere recording of a plan constitute "constructive notice"? Apparently in NY it is, but I am not sure it is everywhere.
If there was such a thing as a "fairness doctrine", I don't believe the mere recording of a plan would be sufficient. In my mind there has to be absolute proof that the affected party was aware of the potential taking and did nothing, but then again I am not a judge.
The plats in question were relied on by the parties. There was no discussion of recording or constructive notice. I'm assuming neither was recorded. Either way, the court did not discuss those issues, they ruled on what the maps meant to the parties that relied on them directly, not on the legal theory of "you should have known what a filed map said".
The point is that removing the monuments does not remove the opinion, and one may continue to rely on the opinion even after the monuments are gone.
So what is the best course of action to take in order to protect the deeded boundaries?
Not making judgments, just throwing real problems out there. The discussion has focused on whether or not we should unilaterally get rid of the erroneous pins. But no one has addressed the map.
So the question is, what difference does it make if you remove the pins you think are erroneous, or if you leave them? If someone is still relying on the erroneous map, then it doesn't seem to matter if the pins are there or not. If no one is relying on the map, then the pins don't mean anything anyway.
Or, from a practical standpoint, if the erroneous quickie dickie surveyor will not remove the pins and will not revise the map, then what options do you have? Written agreements that none of the affected parties accept the quickie dickie survey might be in order. Does take time, and expertise, and therefore makes for a good profit for those who care about finding the true land boundary. If the clients don't care enough to pay, then the diligent surveyor can't really help them.
> So the question is, what difference does it make if you remove the pins you think are erroneous, or if you leave them? If someone is still relying on the erroneous map, then it doesn't seem to matter if the pins are there or not. If no one is relying on the map, then the pins don't mean anything anyway.
Well, I assume that the basis for holding that the erroneous resurvey moved the boundary from its original position would be one of equity, i.e. that the owner who hired the surveyor who placed erroneous markers made a representation as to the location of the line that the adjoiner relied upon in some tangible way such a constructing improvements.
In the example I mentioned in the thread below, the improvements on the adjoining properties both had been built about 20 years before the mistaken resurvey in 1990 and were in proper position in relation to the original lines. There was even a chain link fence that had been built before 1972 along one of the original parcel lines. The 1990 surveyor hadn't evidently been concerned that his mistaken location of the same line missed the chain line fence. Had he dug at the corner of the fence, he would have found one of the 1963 surveyor's original markers.
> Or, from a practical standpoint, if the erroneous quickie dickie surveyor will not remove the pins and will not revise the map, then what options do you have? Written agreements that none of the affected parties accept the quickie dickie survey might be in order.
Actually, the presumption is that the descriptions in the adjoining owners deeds that called for the 1963 survey control. Without some special circumstance the 1990 survey has no intrinsic effect on anything, so why fix a non-existent problem?
"Without some special circumstance the 1990 survey has no intrinsic effect on anything, so why fix a non-existent problem?"
I thought we were going on the assumption that a problem could surface based on reliance on the 1990 survey. That was the reason to pull the erroneous pins right? But pulling the pins doesn't stop someone from relying on the map. Each situation will be unique of course, but it doesn't seem like a good idea to have unresolved differences floating around in the hands of the landowners.
The case I posted was sitting on my desk because I'm dealing with a survey where there are five differing opinions, authored by three differing surveyors over the years. Time has a way of validating maps even when the monuments are long gone.
Erroneous surveys-Duane
The worry that I would have is that the file (coordinate) is still in the collector of the 1990's surveyors who might pull them up to do more staking in the same neighborhood by just building on their mistake.
I think this would be reason alone to have at least notified the other surveyor. In fact I would likely send him the same map that Kent posted. That was about a clear as could be showing what happened.
Otherwise there is risk that they will do more damage in the future in this subdivision.
> "Without some special circumstance the 1990 survey has no intrinsic effect on anything, so why fix a non-existent problem?"
>
> I thought we were going on the assumption that a problem could surface based on reliance on the 1990 survey. That was the reason to pull the erroneous pins right? But pulling the pins doesn't stop someone from relying on the map.
Well, the way that I solved the map problem was by preparing a new metes and bounds description of the parcels based upon my resurvey. The new description calls for both the original monuments found and the new ones I set, as well as reciting ties to other monuments at the corners of the adjoining parcels so that any future surveyor can see the situation. We also set spike and washer reference monuments in drill holes in the top of the curb on the prolongations of the side lines of the parcels and those are mentioned in the description as well.
When the land sold (for about a million), my metes and bounds description was used in the deed of conveyance. When the parcel on the chain line fence side sold, that surveyor found my brass tablet WC and called me up. I sent him a copy of the map and report of our work, which he found to be entirely accurate and correct. So, the order of the surveyed world is restored. I suppose that had I had that to do over again, I would have also asked my clients to destroy all the copies of the 1990 surveyor's map in their possession.
> 1) NY courts have held that a survey on file for 10 years and unquestioned during that time is prima facie evidence of the accuracy of its contents.
Duane,
I was under the impression it was 20 years for maps under the "ancient" map status law. Is this something new or am I wrong?
Jim Vianna
James,
That's a different issue. The ancient document rule allows maps into evidence without them being "authenticated" by direct testimony; an exception to the hearsay rule or the best evidence rule, depending on how one looks at it. So, if the surveyor is dead and can't testify about the map, you can get into evidence anyway. This might come into play if the map is not filed but was prepared by a surveyor that you can prove actually existed and prepared surveys in that area. Typically, this rule would apply when the map has not been filed.
The idea is that if it has been around that long it's not a forgery. But there is more to it than time alone. You need to prove that the author was a surveyor or engineer known in the community in some way (at least if you're using it to prove a boundary line). And, if it has been filed, then it's usually allowed in as "authenticated" without resort to the ancient document rule.
So, twenty years old, actually prepared by a surveyor, and not on file, and surveyor is dead or gone, then you use the ancient document rule to get the map into evidence. It has no special standing, except that the court recognizes it as one surveyors opinion.
On the other hand, if you have a filed map, that's been on file and unchallenged for 10 years, then the court gives it more weight. First, it's authenticated by having been filed. Second, it has been sitting there as constructive notice, waiting to be challenged, along with the pins presumably set according to it.
So, what happens if the quickie dickie surveyors start filing all their maps? Yikes!
Erroneous surveys-Duane
Deral,
Another good point!
Well, that's all I'm getting at. How do we really circumvent that darn quickie dickie survey? A decent surveyor surveyed next to this and picked up on the problem and called you. What if it had been another fly by night operation and reset the pins you removed based on the other map?
Duane,
Thanks for clearing that up.
Unfortunately, by your information I find that I am now dealing with a 30'x 300' gore created by a deceased "quickie-dickey" surveyor who failed to properly identify and locate the senior line. Compounding this issue is the last two descriptions in the chain of title (dating back to 1986) reflect this erroneous survey with no mention of the controlling elements (senior line) found in the original description. I doubt a title policy will insure the gore so I will show and document everything and suggest my client try to pick up a quit claim deed for the area in question. Kinda sad that this bogus survey that has been on file now for 24± years carries any kind of weight.
James Vianna
> Well, that's all I'm getting at. How do we really circumvent that darn quickie dickie survey? A decent surveyor surveyed next to this and picked up on the problem and called you.
Yes that surveyor was chewing on the fact that Pipe 71 was a foot or two off the line marked by Rod 52 and Brass Tablet 117 and knew from experience that (a) I wasn't likely to be wrong about the line I'd marked and (b) that I'd be willing to share the information in my file about the parcel boundaries and the title history. He was unaware of the goofy-looking 1990 survey until he got my map. The 1990 surveyor's map was fairly invisible: not in the public record and not floating around.
> What if it had been another fly by night operation and reset the pins you removed based on the other map?
Well, I made the judgment that the map was unlikely to be widely circulated and I think that I was right about that. As far as I could determine, only my clients and possibly the 1990 surveyor had copies of the map of the parcel as determined by misadventure in 1990. As a general rule, the quickie-dickie surveyors follow the path of least resistance. That is why if you suspect that there may be a quickie-dickie resurvey of your parcel in the future, the thing to do is to figure out how to make the boundary markers as easy to find as possible. Setting them in concrete is also smart because it tends to eliminate all of the markers that would otherwise get plugged in within about 0.8 ft. from the actual corner without discovering the corner marker.
Well, the court will presume it's correct. However, my take on that is the effect is to prevent argument over minor ambiguity. If the 24 year old survey is a reasonable interpretation, although one you don't agree with, the court would give the older survey the benefit of the doubt.
On the other hand, if you have substantial evidence disproving it, then the court would rule in your favor. So, if it's as clear cut as you say, I would not show a gap. I would show reference to the older filed survey and explain why it is erroneous.
But, as my original post indicates, if a landowner has been relying on it the court could give them adverse possession using the map as color of title. Quit claim deeds and Title insurance would definitely be appropriate for the area in question if one could obtain either or both.
