Estoppel TTT

I personally don't think a 'blundered' corner deserves any more reverance just due to its age. Though the number of surveyors that have possibly used this 'bad' corner could add some weight to its positional relevence.

My knee jerk reaction would be to use what should have been discovered when the previous surveyor was out there. I would also be very careful in trying to document the fact that the monument existed and was 'discoverable' at the time of the previous survey.

While an erroneous boundary may be ruled to continue to exist through estoppel, IMHO that doesn't supercede a surveyor's responsiblity or requirement to relocate a corner accurately.

Estoppel has nothing to do with this situation. Repose, reliance, common sense, best available evidence, reputation, etc., are in play, not estoppel.

Why was the monument referred to on the highway plans held?

The corner is tied to centerline by bearing and distance. The distance is about 200 ft. That was considered to be the best way to reset it by the surveyor and by me as well. (if there had not been a monument within a foot of it).

I'd give some serious thought to ignoring the old corner. Is the 1 foot of diference going to affect anybody in a serious manner. 1 foot is pretty close, even though is sounds like the guy should have found it 14 years ago. It sounds like if you use the old one, it screws everything up.

You can’t just ignore what you believe to be the best evidence of the corner, but the erroneously set corner be ignored either. If reliance can be shown the newer monument may control the boundary of the 40’s, but it will not become the section corner. Any section breakdown in any of the four sections will need to be based on the older “true” corner will need to be used. Brian is right no estoppel here.

> For the past 14 years there has been a corner record for a section corner in a very rural area. There was one survey done then and none since. It used the corner to subdivide the section into 40's by proportion so the nearest survey mark is 1/4 mile away. The corner record states that the surveyor set it from record information that tied it to highway centerline. There was nothing stated that there was a search done. This particular county has lost its old county surveyors records so we couldn't find any more to go on than the surveyor did 14 years ago.
>
Having a corner record that has been made public information raises the bar for the standard of proof needed to overcome the representations made. You are no longer looking for substantial evidence needed to overcome the monument; you need to meet the clear and convincing standard.

> To make a short story long I know that there are normally section corner monuments set when there is state hwy ROW involved so I was not ready to accept the corner record monument until I excavated. Of course we found an old rusty iron a foot away at a depth of 2 feet that obviously existed 14 years ago and fits the highway record better than where it was set then. It's not the original post.
>
So, now you have two monuments; one with a corner record and one without. They're not on equal footing: one is older, with no evidence of reliance; one is of record and has been relied upon to set interior corners. Both are located within reason. Should's, could's and ought to's aren't reasons for accepting or rejecting a monument. The law will always provide the solution. Elements to look for when accepting a monument are representation, reliance, good faith and mutual satisfaction. Elements which may overcome the presumption of good faith are deceit, fraud and misrepresentation. Do you have enough evidence to say that the second surveyor acted in bad faith, was deceitful or misrepresented the evidence with an intent to defraud someone?

By declaring the second monument, which has been in the record and has been relied upon to set interior sixteenth corner positions, as having been set in bad faith, you are saying that the surveyor failed to meet your expectations of due diligence. The standard of care is whether the surveyor, acting under similar circumstances, did what an ordinary surveyor would have done.

> So is the 14 year old monument the corner by estoppel?
The elements needed to prove estoppel are (generically):

• Representation by one (passive or active)
• Reliance by another
• Substantial injury caused by change in representation

>If no because no one has relied on it that much what if they had?
Application of the law makes the question's answer simple. The only evidence needed is, how much reliance has been made. It's a matter of degree. It could be measured by cost to install, cost to remove vs. value of land lost, cost of installation vs value of land. Any number of tests have been used. It becomes a judgment call (that's going to freak out many). You mean we have to make a "judgement?" Oh, the horror! Yes, we make judgement calls all day long. It's in the job description. This is just another one. Bottom line is, you have to gather the evidence before making any judgment. That's usually the real problem. Making a judgment without gathering the evidence is called "guessing."

>It will make the 40 corners set 14 years ago out of proportion by about half a foot and put a tiny litle bend in the line if I do a corner record on the older mark.
That's what the law is referring to when it discusses "minutiae." On one hand, are we going to declare the 14-year old survey fraudulent and done in bad faith while, on the other hand, impose our judgment that it will have little affect on some of the corners? How can we reject one point of a fraudulent survey without rejecting all of the points? How can we reject all when some are "close enough?" I would propose that the survey was done in good faith and it's points should not be rejected off-hand without having enough evidence to overcome the monument other than conjecture and supposition thrown in with a few "should have's" and "ought-to have's."

>My reasoning for accepting the older mark would be it existed in all likelihood when the other was set and it fits the highway record just as well if not better. I feel due diligence 14 years ago would have uncovered the iron.
>
What you "feel" or "think" or what you "would have done" doesn't enter the picture. The question is, did the surveyor 14 years ago meet the standard of care? Did he do what an ordinary, prudent surveyor would have done under similar circumstances? That's when we can start to think about what equipment he was using, what evidence was in place at the time, what was his search radius, etc.

If the surveyor failed to meet the standard of care, then declare the surveyor as a hack. You'd best make sure that you have the evidence that can prove your point before you go off making such declarations. You're talking about a monument within one foot horizontally and 2 feet below the surface. We don't know the conditions; I would hope you do and have given due consideration to the circumstances.

We surveyors are pretty quick to judge one another's work against what we think they "should" have done. Have you talked with the surveyor? The Rules of Evidence require that you attempt to contact that person simply because the evidence is only 14 years old. If it were over 20 years, you could get away with declaring the evidence as "unavailable," but, in this circumstance, the evidence is available. In order for your "clear and convincing" evidence to be admissible, you must contact the surveyor (witness) and discuss the issue. You don't have a choice. It's the law.

>So does time erase due diligence? Can estoppel overcome lack of due dilligence after 14 years? I can hear it now....it depends.
It depends (I had to say it). Estoppel typically arises because of a lack of "due diligence." A representation is made and it is taken for value without being further confirmed. Is it diligent for the person relying upon the representation to first check it out, or is it diligent for the person making the representation to first confirm it before making it? Who has the burden? Both, equally. That's why there's more to the doctrine than simply representation and reliance; there must be action taken which results in costs being incurred. Estoppel has nothing to do with time, so the 14 years has no bearing. Estoppel is fulfilled when the costs are incurred and the improvements have been made. It becomes "too late" (not in time but in expenditure) to fix. The boundary is established.

> The easiest thing to do would be pull the old iron and toss it in the pickup. Problem solved.
Sometimes the simplest solution isn't the best solution. However, there is always a solution.

😉 😉
JBS

> You can’t just ignore what you believe to be the best evidence of the corner, but the erroneously set corner be ignored either. If reliance can be shown the newer monument may control the boundary of the 40’s, but it will not become the section corner. Any section breakdown in any of the four sections will need to be based on the older “true” corner will need to be used. Brian is right no estoppel here.

Who's to say the older rebar is the "true corner?" This line of thinking makes it so that any surveyor can choose to use any corner they wish. If they're not happy with either, they can just proportion their own in and declare that as the "true corner." We see it happening all the time. That doesn't make this line of thinking correct.

Find me an original corner or direct evidence of its existence, then we'll talk about its possible use for subsequent breakdowns. The discovery may impact future divisions; however, finding an original corner, unknown for decades, does not automatically overrule every interior section corner placed in good faith and in reliance upon some other corner. It doesn't automatically undo every boundary that was established in good faith under the law without it. If it were, then the discovery of a monument would lead to a complete disaster within the section, moving entire subdivisions, roads, easements, homes and town sites. What a title nightmare the discovery would cause.

Do we really think the law would allow such a reaction?

JBS

Hmm, Looks like am an a$$. And now Im figuring out why my mentor didn't want me digging too deep. I always thought it was budget. And here I thought I was doing a good job digging for all the available evidence all along.

Ok, like I said estoppel may not apply here since there have been no expenditures due to reliance. I hadn't connected the expenditure to the issue totally. I think I read somewhere that estoppel is a doctrine of equity? So that computes.

You said something that caught my attention. Clear and convincing evidence of a crappy survey rather than a preponderance of evidence? Please expand on that thought.

PS
My understanding is that a corner can be located by a preponderance of evidence. (obliteration) I further understand that once a corner is located by a preponderance it can only be overcome by clear and convincing. It that a fair statement?

thanks

> You said something that caught my attention. Clear and convincing evidence of a crappy survey rather than a preponderance of evidence? Please expand on that thought.
>
> PS
> My understanding is that a corner can be located by a preponderance of evidence. (obliteration) I further understand that once a corner is located by a preponderance it can only be overcome by clear and convincing. It that a fair statement?
>
You've got it. The first surveyor goes out, after a (presumably) diligent search, cannot find the monument but, before declaring it lost, does a (presumably) diligent search of the history, finds the highway drawing reference, and relies upon it to replace the obliterated monument. He's done everything that an ordinary, prudent surveyor would do under similar conditions. He's established the monument (presumably) in good faith (too many surveyors would have simply declared it lost and proportioned in a new corner, missing by a lot more than a foot).

The presumption of law favors the prior surveyor who was held to the standard of "preponderance" to determine the corner position. In order for the second surveyor to challenge (reject) the former surveyor's monument, they must overcome the presumption of good faith by meeting a higher standard of evidence: "clear and convincing." After all, in order to reject the prior surveyor's monument, you are basically accusing him of conducting a fraudulent survey and intentionally misrepresenting the facts. Yes, he failed to find the monument. But was that failure due to an intentional attitude of, "It's just a waste of time to look," or "I forgot my shovel?" After interviewing the surveyor, they may admit to that. If so, they'd better consider fixing a few points.

JBS

Not Estoppel ttt

Ok
Now I'm going to move my a$$ up the road 1/2 mile to the quarter corner. We are going to call the surveyor from the previous corner Surveyor B. There is a surveyor A and C. I am D

Surveyor A files a quarter corner record 1 year before B. B accepts A and goes about the subdivision of the SW quarter. A writes a little narrative. "found 16 penny nail on N-S property line and replaced with 1/2" rebar. Believed to be approx 24 ft north of quarter corner per old highway plans." Survey A does not set the quarter corner, instead he references this witness?? corner in the center of the road. Surveyor B uses the witness? corner to subdivide holding the 24 ft to the invisible quarter corner. (other that being in a ditch there was no reason not to set it if that's where it is.)

6 yrs later surveyor C arrives and uses the referenced rerod - but wait. He labels it the quarter corner and mentions nothing about 24 feet. He shows section line in the middle of the road where one would expect to it to be but leaves the corner record as is.

So here we are today. We gather all the highway records and plans available. (about a dozen) Nowhere do we find any information that would lead us to believe the corner is anywhere other than in the middle of the road. We tie out the rerod that replaced the 16 penny dig down and find an old rusty pin just like the one at the section corner.

To me the evidence is "clear and convincing" that there was never a corner where the "not a corner" record reports it. It appears Mr A erred by filing a "Not a corner" record on the actual quarter corner. Mr B's 40 corner was proportioned 12 feet off. Mr. C got his survey right but did nothing to correct the record. Now along comes my troublemaking a$$.

Mr B's 40 corner was used to construct half a mile of boundary fence that has been accepted for 12 years. There is a 10 year rule for acquiescence in this state.

Is Mr B’s 40 corner the legal 40 corner? Is it just a boundary corner? Is it incorrect and not anything? Let’s have some opinions.

Not Estoppel ttt

> Ok
Can get pretty complicated at times. You've got a much better chance of figuring it out than anyone else, including the judge. Just keep in mind: "Every boundary stands on its own two corners," and, "there's a rule of law that governs every boundary."

JBS

Not Estoppel ttt

I felt compelled to post the resolution of the quarter corner. I have found a new professional friend in surveyor A who I had never met before and who I now respect a great deal. I presented him with the evidence I had which he was more than willing to review. He thanked me very much for bringing this to his attention. He suggested some actions he wants to take to clear up the confusion. It was a pleasure discussing the situation with him.

Not every surveyor would seem so eager to review a record that they sealed over a decade ago. I would venture a guess some would want me to go crawl back under my rock rather than bring this to their attention. Why can't we always work together like this rather than put up a defensive front? Here's to you Mr. A.

Not Estoppel ttt

> Why can't we always work together like this rather than put up a defensive front? Here's to you Mr. A.

Well done, Line. That's how professional relationships are forged. Your mutual respect will encourage the next conversation, then the next. Pretty soon, you'll have each other on speed dial.

😉
JBS