I received a call from a woman involved in a land court dispute regarding access to the water. This is a very common issue around here because we have upland ownership that runs to low water on the tidal lands. The public has limited rights in the intertidal zone, only fishing, fowling and navigation.
So, she and her neighbor own lots that are registered and abut a private road shown on the land court plan and drawn to the water in between the lots.
All she needs is, "a land surveyor to write a letter stating that the plan showing the road to the water doesn't mean anything." After some further discussion she doesn't want to incur more expense, all she needs is a letter, because she's spent over $60K in lawyers fees to date.
So I pull up the land court plan and this is what I find. The defendants being the owners of lot 19 and 22 claim that Ferry Road does not go to the water and those folks in the subdivision that have rights in the ways shown on the land court plan do not enjoy the benefit of Ferry Road for access to the water.
I tell her that it appears to me that the plan means something and the way is shown to the water. She then asks' "So, you're not going to write the letter?" I try not to laugh and mostly succeed when I deny having the ability to write the letter.
I don't understand how this really could have reached $60K in lawyers fees without the judge throwing this out. The only argument that could mean something is that the grant of easement was solely meant as access to the homes and NOT the water, although in a resort community it's going to be hard to make that argument.
I declined writing anything and will not be engaged in this battle.
Dtp
Looking at the map, with her logic Lots 23, 22, 19 and 18 would not have access to the water as well.
The thing I find interesting is that after $60k in attorneys fees and somebody finally thought to call a surveyor.
Norman Oklahoma, post: 331304, member: 9981 wrote: The thing I find interesting is that after $60k in attorneys fees and somebody finally thought to call a surveyor.
If that wasn't so sad; it would be funny...
What makes you think lawyers wanted a surveyor to answer the question early in the process? A surveyor would have put this to bed early enough they wouldn't have been able to suck very much money out of their clients.
Norman Oklahoma, post: 331304, member: 9981 wrote: The thing I find interesting is that after $60k in attorneys fees and somebody finally thought to call a surveyor.
Because a lawyer will litigate any case, and try to win in a trial.
Most surveyors will tell them how it is. These are the facts - deal with them.
In MA the upland owners of lot's 19 and 22 would own to the low water mark, or 100 rods, which ever came first, unless specifically excluded in the deed title. So they would have access to the water, similarly Ferry Road Right of Way would extend to the low water mark, in my opinion.
foggyidea, post: 331315, member: 155 wrote: In MA the upland owners of lot's 19 and 22 would own to the low water mark, or 100 rods, which ever came first, unless specifically excluded in the deed title. So they would have access to the water, similarly Ferry Road Right of Way would extend to the low water mark, in my opinion.
What does the dash line signify?
Here, if there was no description of the easement, an implied easement would be interpreted by the intent of the plan. Unless one wanted to spend $60k to maybe reach some compromise with the logic bring to wear down the opponent with legal actions and/or fees.
The dashed line is not defined on the land court plan but I would assume that it's representing the top of bank, unless I got to the site and found something else.
Must be up past the "elbow" if North is up on that plan
way down the upper cape, at the other end there, Paul!
It's more like in the armpit of the Upper Cape 🙂
toivo1037, post: 331310, member: 973 wrote: Because a lawyer will litigate any case, and try to win in a trial.
Most surveyors will tell them how it is. These are the facts - deal with them.
Although I enjoy lawyer-bashing as much as everyone else, the one time I retained a lawyer (medical malpractice suit), after he forced release of my medical records (they stonewalled me) and hired an MD subject matter expert witness for an opinion ($500 total), he advised me not to pursue litigation. He said although it was likely true the doctor was negligent and harmed me (missed a brain tumor that remained undiscovered until a year later by an audiologist), the risk-reward ratio of proving it in court didn't pan out.
That raised my eyebrows and I asked him if was common for him to turn down work where he thought negligence existed. He smiled and said after preliminary review he only takes on about 5% of the cases that walk in his door, but of the ones he does take on he obtains a settlement in 90% of them, usually without going to trial. Apparently, his reputation is such that doctors (and their malpractice insurers) realize their goose is cooked when he comes knocking at their door.
Robert Hill, post: 331322, member: 378 wrote: What does the dash line signify?
If it was Australia the dash line would be the traverse line, required on the older QLD plans. Surveyors here set marks a suitable distance away from the water edge so that they are stable and there for the next guy to find. Then you show a distance to the waters edge (and usually put a Corner mark as close as possible to the water.) P&T = Distance to Peg and Traverse Line, R for River distance. Example. As part of the new regs you have to define the edge of water, and label it (i.e. Top of High Bank.) Some surveyors were a little liberal with their "suitable" distance though. I've seen traverse lines up to 100m away from the waters edge. Thick lantana/grass would have made traversing closer to the water difficult, but not impossible.
Under fairly recent regs (2010) the water bound properties can only own to a 'Definable natural feature' being the top of the high bank where possible (non-tidal). We are no longer allowed to make calls to tidal boundaries we have to pick a natural feature approximating the tidal boundary. Though toe of sustainable bank can be used, if that is what was recorded previously on a survey. State owns the rest* usually.
You still have access rights just the 'Water boundary' can be a bit away from the water.
As an example of tidal boundaries here, I've attached a plan that was submitted as field notes Here, showing the different definable 'features' we successfully argued the Toe of the High bank best followed original survey, as per field notes in RP184939.
The Proposal plan shows that this feature is still a few meters from the Mean High Water tidal boundary, and even higher than the Highest Astronomical Tide. River gets higher than the tide in rain events though, which is why the banks were likely chosen as the boundaries by past surveyors.
foggyidea, post: 331315, member: 155 wrote: In MA the upland owners of lot's 19 and 22 would own to the low water mark, or 100 rods, which ever came first, unless specifically excluded in the deed title. So they would have access to the water, similarly Ferry Road Right of Way would extend to the low water mark, in my opinion.
The road name implies something also. I would think a little time at the local historical society may reveal that a ferry operated at this location.
Equivocator, post: 331410, member: 6885 wrote: If it was Australia the dash line would be the traverse line, required on the older QLD plans. Surveyors here set marks a suitable distance away from the water edge so that they are stable and there for the next guy to find. Then you show a distance to the waters edge ../QUOTE]
Same thing here, only they are called a meander lines. In this case the dashed line may represent the high water mark instead.
So, you won't write the letter then?
If Ferry Road does not extend to the water, then Lots 19, 22 and others do not extend to the water.
I know you know, but for the curious: 100 rods commences from Mean High Water.
60k... I hope they got something else out of those lawyers.
I am just starting on one where the neighbors fought development on two 2-acre tracts. The neighbor apparently paid 850k fighting and ultimately purchased the land which is now assessed at just over 100k per tract. If the neighbor had gone to the developer early on and offered 850k, everyone would have won, but no, he had to go to the big city attorney to fight it. I am working on the next two 2-acre tracts and the neighbor has already started his fight, the land is just north of the highway, just south of the power lines and within earshot of an active gun club.
Don't feed the lawyers.
Gazing deep into my crystal ball and getting out my 'Ring Ring' translation manual, is it possible Ferry Road is no longer open, and/or was abandoned in times past? And that being the owner of both lots 19 and 22, has attempted to have it legally extinguished, hence the 60k in legal fees?
I helped with a similar case a while back, client owned both sides of the right of way. While it had existed on paper since the 1920's, there had never been an actual traveled path within the right of way. On paper it had to be there, because three lots would be landlocked without it. In reality, everyone had been getting to their property along the north line, along a meandering trail that wove on and off our client's property, since the 1940's when the subdivision was created. It took about 5 minutes on Google Earth in the county engineer's office to get the ball rolling, while we are out of the picture until he needs legals written for the easement we were told this is doable.
