Duane Frymire, post: 353998, member: 110 wrote: Yeah, the science of law is more challenging than rocket science i.....
I would attribute that to the fact that law is basically a man-made science, whereas rocket science would be based on laws of physics which can't really be disputed without rocketships blowing up.
Dave Karoly, post: 353843, member: 94 wrote: I borrowed a Course Manual (reads like a legal Treatise) by Chuck Karayan. .... The Courts have handled this in at least two ways (if they wish to hold the physical evidence): one is to use an establishment doctrine to call it the boundary and the other is to use principles of Deed construction such as favoring un-called for monuments set by the parties near the time the Deed was delivered
It seems to me that the principles of Deed Construction deals in "calls" to monuments holding priority over other calls. Uncalled for monuments do not constitute a call to a monument. (I tend to want to accept any uncalled-for monument, but in my mind I am not using the rules of priority of calls in deed construction for the acceptance of those monuments)
Anyway, I am probably alone in my philosophical difference because I hear all my fellow land surveyors using the priority of calls as their reasoning for accepting non-called-for monuments.
Dave Karoly, post: 354150, member: 94 wrote: .....I'm going to write a practical boundary manual with the rules and examples, both ways, like Skelton. There are plenty of cases to work from. The idea is to try to address some of the serious misapplications I have seen. One case involves a 500' pincushion, another is only 80'. Both involve faulty Superior Court Judgments because of bad boundary surveying. The third case is minor and I think can be disposed of relatively easily. I figure if I sell 10 copies it'll be a victory.....
Put me down there, to bring it above 10. Skelton is probably my favorite read in survey manuals, and it's funny it is so old.
....I really appreciate the insights I've gained from you, Duane, your posts have been very helpful.
Ditto. I always perk up when I see it's a post by Duane. (and several other notable surveyors here). Many of the folks here have given me a different outlook on surveying and how I approach things. It must be about time to retire.
Tom Adams, post: 354228, member: 7285 wrote: It seems to me that the principles of Deed Construction deals in "calls" to monuments holding priority over other calls. Uncalled for monuments do not constitute a call to a monument. (I tend to want to accept any uncalled-for monument, but in my mind I am not using the rules of priority of calls in deed construction for the acceptance of those monuments)
If I find an uncalled-for monument, I have to disprove it as the corner. It is the corner until a lot of evidence against it comes to light. Reliance, occupation and blessings by the landowner all play a role in this decision.
I can relate to your assessment. My surveying ed courses all stressed original monuments. Original, original, original...and nothing else mattered. I believe your point is related to the 'First Surveyor' idea. Brown writes in Evidence & Procedures (p. 335, 6th ed.) that "a surveyor must determine whether he or she is retracing an 'original survey' or a 'first survey'." He goes on to say that "whereas the original survey controls, the first survey is nothing more than an opinion by the surveyor of where the written description should be placed. As such it is always open to collateral attack."
According to Lucas, this philosophy has become detrimental to our profession and exacerbates pincushion corners. He maintains that there are only two types of surveys...Original and Retracement. I agree with his argument.
JBrinkworth, post: 354233, member: 6179 wrote: If I find an uncalled-for monument, I have to disprove it as the corner. It is the corner until a lot of evidence against it comes to light. Reliance, occupation and blessings by the landowner all play a role in this decision....
My sentiments exactly. The presumption, to me, among other things, is that it was set by a licensed land surveyor who is licensed to make these types of determinations and that s/he use due process and care to determine the corner position (that's why he is licensed). (also what you said about reliance. If it has been relied on and you think it is incorrect, you better have a long conversation with the parties who have used and relied on that position and work on a solution.)
Dave,
Put me down for 2 copies! I also appreciate your research efforts and insights. We certainly need this in California.
Thank you,
Larry
I'd be interested in a copy as well.
JBrinkworth, post: 354233, member: 6179 wrote: If I find an uncalled-for monument, I have to disprove it as the corner. It is the corner until a lot of evidence against it comes to light. Reliance, occupation and blessings by the landowner all play a role in this decision.
I can relate to your assessment. My surveying ed courses all stressed original monuments. Original, original, original...and nothing else mattered. I believe your point is related to the 'First Surveyor' idea. Brown writes in Evidence & Procedures (p. 335, 6th ed.) that "a surveyor must determine whether he or she is retracing an 'original survey' or a 'first survey'." He goes on to say that "whereas the original survey controls, the first survey is nothing more than an opinion by the surveyor of where the written description should be placed. As such it is always open to collateral attack."
According to Lucas, this philosophy has become detrimental to our profession and exacerbates pincushion corners. He maintains that there are only two types of surveys...Original and Retracement. I agree with his argument.
"If I find an uncalled-for monument, I have to disprove it as the corner. It is the corner until a lot of evidence against it comes to light. Reliance, occupation and blessings by the landowner all play a role in this decision. "
AMEN! I was unqualified to be a PROFESSIONAL prior to understanding this. I estimate I was 20 years into the profession before I understood... And my STATE let me have a license the whole time!!
Duane Frymire, post: 354136, member: 110 wrote: Well, frankly, it does seem to be "beyond the scope and understanding of surveyors", generally speaking; and surveyors are not really licensed as professionals in most U.S. jurisdictions according to most U.S. statutes. Obviously, there are many who have stepped up, but more (in and out of the profession) who will not get out of the way.
It doesn't have to be that way. Attorneys and Courts will always be needed in boundary matters (due process requires it) but well educated surveyors could reduce the incidence of these matters going the full course of due process.
It's a question of what society wants. By all measures available, society still wants cheap and fast surveys and litigation over differences in them, rather than a well reasoned surveyor's opinion based on knowledge of evidence, law, and the application of one to the other that might avoid litigation.
This was understandable in our quickly expanding and developing nation, in order to get claims made and production started (much to the chagrin of the Native Americans, Mexicans, English, and French), and then during population expansion after world war II. Now it's merely preying on the public naivet̩. Courts and legislatures are filling the gap by simply making rules to eliminate old boundaries that surveyors can't seem to find. Those that have to do business based on stable land boundaries are going along with making affidavits of no change and GIS pictures the legal boundaries. Surveyors are being swept out of the way whether we like it or not. Failure to adapt is making the profession obsolete. It was once about measuring, sampling, identifying, analyzing the natural world and its boundaries. Surveyors, through lack of advanced education, have not kept up to date on any of these other than measuring. And technology has made measuring easier for those who have invested in the other areas. Sorry to be negative, but surveyors have made themselves buggy whips.
That's some great insight! I'm glad my post got such a reply.
Yeah, I don't think we should be surprised that when surveyors make themselves an odd cog in the gears that mostly jams up the transmission that trying to rid the system of the obstacle doesn't occur.
I think maybe cheap and fast surveys is changing into no surveys if possible, it should all be available one click on line. General society can't understand why this is not already in place. Why the profession decided at some point a few decades ago that they could avoid boundary law and the liability attached by taking the position that it is out of our ability or duty is where the trip to the buggy whip closet began. Can the profession reinvent itself and become relevant and useful to society, I hope so but there is much in the way for sure. Might be best to create something new rather than spruce up a buggy whip.
Tom Adams, post: 354227, member: 7285 wrote: I would attribute that to the fact that law is basically a man-made science, whereas rocket science would be based on laws of physics which can't really be disputed without rocketships blowing up.
Yes, but unfortunately many more people die when the laws of law blow up. I would argue that it's more important for surveyors to know the science of law than for NASA to know the science of rocket ships. Is that too bold a statement? I don't know. Seems when the law of laws blows up people move to other areas and try to start again by subjugating any in their way, then they turn on each other. I'm thinking that rocket ship is going to need to go an awful long way.
Tom Adams, post: 354232, member: 7285 wrote: Put me down there, to bring it above 10. Skelton is probably my favorite read in survey manuals, and it's funny it is so old.
Ditto. I always perk up when I see it's a post by Duane. (and several other notable surveyors here). Many of the folks here have given me a different outlook on surveying and how I approach things. It must be about time to retire.
If you're a surveyor you don't retire; nature retires you:)
LRDay, post: 354267, member: 571 wrote: That's some great insight! I'm glad my post got such a reply.
Yeah, I don't think we should be surprised that when surveyors make themselves an odd cog in the gears that mostly jams up the transmission that trying to rid the system of the obstacle doesn't occur.
I think maybe cheap and fast surveys is changing into no surveys if possible, it should all be available one click on line. General society can't understand why this is not already in place. Why the profession decided at some point a few decades ago that they could avoid boundary law and the liability attached by taking the position that it is out of our ability or duty is where the trip to the buggy whip closet began. Can the profession reinvent itself and become relevant and useful to society, I hope so but there is much in the way for sure. Might be best to create something new rather than spruce up a buggy whip.
As Dave mentioned, the courts consider us the experts on boundaries. But in modern society we are going to have to prove that we deserve that. What that means to society now is higher formal education. Whether that's true or not has become beside the point. The courts will not continue to recognize us if we fail to evolve. This has been proven by court decisions. Florida courts may have led the way.
Thanks Dave, you have influenced me greatly. But I do not understand why you talk down Brown's work. I think the proper use of Brown's work is to realize that his work models behavior. If you turn to Brown to find out how you are supposed this or that exact technical thing in a certain manner and always and without exception, then you have missed the point of his work entirely. I am not saying you Dave do that, but there are plenty who do.
If one gives credence to Cooley, then how does one propose to follow his lead when he indicates that surveyors should be guided by the same lights that guide courts and jurys? Surely at time issues of acquiescence ,repose, practical location, agreed boundary would factually place the location of a boundary in some other place than what is written in the dead. If the preponderance of the evidence factually places the boundary in one place and you ignore that evidence in favor of slavish adherence to the math in a deed, then have you failed in your duty to properly locate the boundary?
I highly recommend Chuck's article in Cal Surveyor on occupation evidence. I believe that it presents a more nuanced opinion than you have taken away from his book.
yes i want a copy of your book
DANEMINCE@YAHOO.COM, post: 354567, member: 296 wrote: Thanks Dave, you have influenced me greatly. But I do not understand why you talk down Brown's work. I think the proper use of Brown's work is to realize that his work models behavior. If you turn to Brown to find out how you are supposed this or that exact technical thing in a certain manner and always and without exception, then you have missed the point of his work entirely. I am not saying you Dave do that, but there are plenty who do.
If one gives credence to Cooley, then how does one propose to follow his lead when he indicates that surveyors should be guided by the same lights that guide courts and jurys? Surely at time issues of acquiescence ,repose, practical location, agreed boundary would factually place the location of a boundary in some other place than what is written in the dead. If the preponderance of the evidence factually places the boundary in one place and you ignore that evidence in favor of slavish adherence to the math in a deed, then have you failed in your duty to properly locate the boundary?
I highly recommend Chuck's article in Cal Surveyor on occupation evidence. I believe that it presents a more nuanced opinion than you have taken away from his book.
yes i want a copy of your book
Dane, I'm guilty of thinking out loud too much.
Chuck's book is fantastic, it should be in print. It covers a broad selection of real estate law topics. I think I saw the article you mention. He also published a couple in the 1990s.
Pallamay's collection of Brown's writings is very good too, presents a different picture of Brown. It has the ACSM debate of several articles from about 1980, very interesting.
Dave I did not mean to be critical of your comments i do really appreciate how you have blossomed as a surveyor. Your quest has influenced me greatly as I stated. I read case on a regular basis but I have yet to camp out in the law library. I was at a joint conference and the head of the department that trains surveyors gave a presentation. They were so proud to state that they educated surveyors to be engineers. One slide had all the classes listed in importance of what this school's department thought was truly necessary to be an employable surveyor. This slide contained a very small portion devoted to etihics/law. There was not two separate categories , one for law and one for ethics. Boundary surveying and boundary law does not seem to be a top priority for schools in California. I have not idea how formal educators expects to prepare surveyors to be boundary surveyors with only one semester on ethics and law.
DANEMINCE@YAHOO.COM, post: 354567, member: 296 wrote: If one gives credence to Cooley, then how does one propose to follow his lead when he indicates that surveyors should be guided by the same lights that guide courts and jurys? Surely at time issues of acquiescence ,repose, practical location, agreed boundary would factually place the location of a boundary in some other place than what is written in the dead.
You have to read Cooley's Diehl v. Zanger opinion in full and/or his address to the MI engineers & Surveyors in full if you're seeing contradiction in his statements. He talks about the inherent unreliability of surveyors measurements. That unreliability means that anytime a boundary location is defined by dimensions (measurements), you are certain to have latent ambiguity.
How long is 50'? Is it 50.00' as measured by my EDM, GPS, steel tape, or Disto? Is it 50' as measured by the chain owned by the original surveyor? That's closer to the truth, but not quite there. 50' is 50' as actually measured by the original surveyor, including the effects of any systematic errors and mistakes that may have entered his measurement of that particular 50' in the course of that survey. If we're both diligent and lucky, we find the monuments or marks that surveyor left to show us just how far 50' is on that reported 50' line. If not, we have to make educated estimates of where the boundary is and how long that 50' actually is based on other clues we are able to find of that survey.
Likewise, how straight is a straight line? (Bloxham v Saldinger) It is straight by commonly accepted mathematical definition of straight between each chaining point used by the original surveyor as evidenced by the points and marks he left on the ground. Each time a full chain length is reached, chain was broken, or an offset needed to be used to get around an obstacle on line, there was some deflection in the straight line established. The magnitudes of those deflections can range from negligible to several degrees. We find how straight the straight line is, again, by the monuments and marks we are able to find and reliably relate to that line. As direct evidence of the original survey disappears over time, secondary evidence, points set by following surveyors, improvements that were built according to original marked boundaries or proper retracements become the best evidence remaining and will also have an affect on how straight that straight line is now.
The acquiescence in this evidence is merely another way of saying that those affected by the boundary location have accepted the veracity or correctness of the established boundary. Affected landowners think of their boundaries in terms of tangible marks and objects. surveyors typically think of them in terms of bearings and distances. Between the two, who is correct? The courts have been pretty consistent in siding with the landowners on this point.
The deed that reads "thence from last said iron pipe monument North 50 feet to an iron pipe monument" does not dictate that when you don't find the monument at one end that the corner at other end is 50.00' at the cardinal from the monument you've found. It dictates that you go about 50 feet at or near the cardinal direction, look for evidence of the next corner and look for evidence of the line along the way. If you find any competent physical evidence, it helps to show you how close to cardinal that line actually travels and just how far 50' really is.
The deed will never tell you where the boundary is. But any valid deed will always tell you where to begin looking for it. The courts use the facts and the rules of evidence to make those determinations. They don't like to resort to measurements (they never make their own and don't necessarily trust the "experts" to have done it without error), and will normally avoid doing so unless there is no competent, reliable physical evidence to indicate where the boundary actually is. We are supposed to do the same thing - use the facts and the laws of evidence.
Surveyors should become familiar with the laws of evidence for the jurisdictions they live in. The statutes provide a framework for that (Evidence Code). But because of the nature of boundary evidence, that it tends to get disturbed, destroyed, or lost over years, coupled with the level of proof required (a preponderance, or 50% and a smidge), the exceptions to the limits of admissibility are somewhat looser than for matters of law requiring a higher level of proof. Some of the exceptions for boundary evidence may appear in statute, but for a fully adequate understanding, surveyors need to study case law. We can't govern our actions by the same rules and in the same lights as the courts unless we know what the courts do in differing situations.
Cooley is completely consistent.
DANEMINCE@YAHOO.COM, post: 354567, member: 296 wrote: I think the proper use of Brown's work is to realize that his work models behavior. If you turn to Brown to find out how you are supposed this or that exact technical thing in a certain manner and always and without exception, then you have missed the point of his work entirely.
I completely agree with this statement. The "Brown" books contain guidelines. Courts have said, and I'm certain Curt Brown included a quote from a case in both BCLP and EPBC that states that boundary principles are not an inflexible set of rules but are all for the purpose of and subordinate to the purpose of finding the intent of the parties to an original deed for a parcel. (I didn't verify that such a quote is in each this evening, but am quite certain I've found them in there before. Dave K probably knows the exact quote and the precise case citation it's from right off the top of his head.)
Far too many surveyors will grab a sentence or two out of a particular section that they think addresses a fact they've encountered and apply it, out of context, as if it were some unbendable rule of surveying that must always be applied whenever the one particular fact they're puzzling over is encountered. IMO, if one reads the 2nd Edition of either of those books, and does so by taking in more than a paragraph or two every few months or years from different parts of the books, it becomes more clear that Brown intended these principles, or guidelines to be taken as general advice to be applied as appropriate to the full set of facts of a survey and in light of other potentially applicable principles, and not as rules to be applied because of the existence or lack of one particular fact in the set. This becomes increasingly less clear in subsequent editions of those books.
IMO, the 2nd Edition of each is best because Brown had worked out the kinks that were in the 1st Editions and he was still the primary author/influence on the philosophy behind the writing.
eapls2708, post: 354581, member: 589 wrote: I completely agree with this statement. The "Brown" books contain guidelines. Courts have said, and I'm certain Curt Brown included a quote from a case in both BCLP and EPBC that states that boundary principles are not an inflexible set of rules but are all for the purpose of and subordinate to the purpose of finding the intent of the parties to an original deed for a parcel. (I didn't verify that such a quote is in each this evening, but am quite certain I've found them in there before. Dave K probably knows the exact quote and the precise case citation it's from right off the top of his head.)
Far too many surveyors will grab a sentence or two out of a particular section that they think addresses a fact they've encountered and apply it, out of context, as if it were some unbendable rule of surveying that must always be applied whenever the one particular fact they're puzzling over is encountered. IMO, if one reads the 2nd Edition of either of those books, and does so by taking in more than a paragraph or two every few months or years from different parts of the books, it becomes more clear that Brown intended these principles, or guidelines to be taken as general advice to be applied as appropriate to the full set of facts of a survey and in light of other potentially applicable principles, and not as rules to be applied because of the existence or lack of one particular fact in the set. This becomes increasingly less clear in subsequent editions of those books.
IMO, the 2nd Edition of each is best because Brown had worked out the kinks that were in the 1st Editions and he was still the primary author/influence on the philosophy behind the writing.
That is the danger of writing a book or anything, someone is sure to misuse it. Someone we all know complained that Surveyors in his City were citing the Lucas-Stahl method when accepting monuments presumably repugnant to good practice and he is absolutely demolishing them in the local legal forums. Assuming he is right, I would say anyone can misuse anything. Jeff Lucas never said accept the first thing you trip over but he did say sometimes the boundaries don't meet our expected precisions but still the surveyor needs to have good reasons.
Dave Karoly, post: 354598, member: 94 wrote: That is the danger of writing a book or anything, someone is sure to misuse it. Someone we all know complained that Surveyors in his City were citing the Lucas-Stahl method when accepting monuments presumably repugnant to good practice and he is absolutely demolishing them in the local legal forums. Assuming he is right, I would say anyone can misuse anything. Jeff Lucas never said accept the first thing you trip over but he did say sometimes the boundaries don't meet our expected precisions but still the surveyor needs to have good reasons.
The vast majority of people who read Brown think it tells them that a monument can't be controlling unless called for. That's not what the book says, but that's what people take away from it. This is pretty typical of legal studies, and students need teachers to help them understand the material. The thing about land law is it's always about exceptions to the rule, and nuances of evidence that shift the analysis from a rule you think should be controlling to another. You're doing a great job addressing one of those areas.
Evan, I suppose my question(s) was unclear. I find no contradiction in Cooley. I was asking a practical question about exactly what it means for a surveyor's action to be governed by the same lights that govern the court. Your answer is brilliant. You have to learn what makes up those guiding lights to start with.
