Hold the monuments? Why not?
> Brian, the boundary was established long before these monuments were set. The deeds predate the monuments. Basically, you have a poor retracement survey. Would that change your opinion?
Really? I see no evidence of that in the OP. like I said, if there is more evidence to be uncovered, my opinion might change.
The monuments for rights of way are usually set at or near the time of the taking, how else is the grantor supposed to know what land he is selling? 20+ years of substantial reliance on monuments, shown on the design plans, that were set to represent the land transferred - to now ignore those monuments?? Are you really that brave?
Just because a "contractor" set the monuments, doesn't make them disposable or meaningless. The contractor was hired by one of the parties to stake the newly created boundary line - and both parties relied upon the markers.
How many people would be so quick to dismiss the monuments if the state was not a landowner involved? If so, maybe you ought to re-think your opinion, and why.
Hold the monuments? Why not?
This a common source of confusion, I was confused: Deeds and Patents by themselves don't establish boundaries physically, monuments do that.
A Deed can create a boundary but it isn't established until monuments are set. Once the boundary is physically established then it is the same boundary as created by the Deed although it doesn't meet our expectation of precision.
That is how I understand it.
You Cannot Construe Against An Unwilling Grantor
The highway has been taken against the grantors will. The taker cannot come back at a later time and say, "Oh we made a mistake, we meant to take more". That would require additional compensation. The US Constitution guarantees that.
As I said the highway itself is the major monument. It was laid out with care and precision. It was inspected and accepted by the Sovereign. Monuments that come later may not meet any of the previous criteria.
Lastly let's consider the weight of the evidence. Four lanes of concrete traveled way plus shoulders is 12,000 pounds per lineal foot of highway. Compare that to a 75 pound monument every couple hundred feet. The weight of that monument is deminimous.
Paul in PA
You Cannot Construe Against An Unwilling Grantor
Larry posted there is no physical roadway.
The State is the Grantee in this case.
Edit: I see said the blind man as he picked up his hammer and saw. You are saying the State can't surreptitiously take more right-of-way through negligence in setting monuments. I agree that is a logical statement and may be good enough reason to disregard some of the monuments.
Hold the monuments? Why not?
Dave,
Can you show some cites that support that? I have not heard that before. My understanding is that the parcels are created when the deed is perfected. It doesn't make much sense that you can create parcels without boundaries. Most parcels that are taken by DOT in NC are described by station and offset from center line, no mention of monuments at all and the monuments have never been set until long after the taking. Most cases would be several years later as they have to get all the land before they fund the construction. I haven't seen many newer takings so the practice may have changed. In this case, we have the takings but no construction. I am actually surprised the monuments exist at all.
Hold the monuments? Why not?
That is my hypothesis and it is supported by "where boundaries are is a matter of fact..."
In other words the first Deed creates the boundaries but they are not necessarily established yet. In some cases they are established when the parties fix the location as part of the transaction, it is especially helpful if they put the calls to the monuments in the descriptions.
Patented aliquot parts are an obvious example of where the boundaries were not established physically on the ground at the time of patent except for the section lines. The Manual states that the County Surveyor is fulfilling a function contemplated by law in running the rest of the lines not run by the USGLO. Eventually the boundaries become established physically and the reason for holding them is the same reason as holding the section lines as originally established.
Boundary location is a question of fact to be determined from weighted evidence. Generally physical evidence carries more weight than the writings but not always.
As to the question at hand, I think Duane Frymire has a better analysis in the other thread.
I'm sorry I don't have a better answer than that. I have one chapter written on the California Agreed Boundary Doctrine but haven't started my own research on the rest of the boundary doctrines at the Law Library.
> Larry, I expressed my thoughts below. Since the deeds predate these monuments, the monuments set in error are not controlling. Basically, it is a poor retracement of the boundary. That said, you know in NC we are not supposed to decide such things and you should show both deed lines and physical possession lines and let the lawyers hash it out......but we both know our opinions of that..
I know well about the not expressing an opinion thing. Our chapter of NCSS is the one that had a member get a reprimand for expressing his opinion.
The final chapter of that discussion hasn't been written yet.
Larry P
Hold the monuments? Why not?
> Dave,
> Can you show some cites that support that? I have not heard that before. My understanding is that the parcels are created when the deed is perfected.
Yes the parcel is "created" but where is the boundary on the ground, between the two parcels?
> It doesn't make much sense that you can create parcels without boundaries.
Really? Millions of parcels were created without boundaries marked on the ground. Isn't it a good thing that throughout history boundary law has evolved to handle such things?
> Most parcels that are taken by DOT in NC are described by station and offset from center line, no mention of monuments at all...
This is usually done because strip descriptions are easier to write than finding the boundaries between all the taking parcels and writing m&b descriptions for all parcels taken. Most of the r/w deeds I have encountered, reference the official plans of the highway, upon which are shown ......... yep - monuments.
>....and the monuments have never been set until long after the taking. Most cases would be several years later as they have to get all the land before they fund the construction.
If this is true, what a screwy system. Do the landowners really agree to selling property to the state having not a clue about where it is located? I somehow doubt it. Are you sure the courts are allowing eminent domain takings without the takings ever being shown to the landowners or the courts?
Why does your DOT waste the time and money setting "monuments" if they are meaningless?
You Cannot Construe Against An Unwilling Grantor
I like what you're both saying there. The only thing I would add, is that if the monuments are set with apparent reasonable care, and the tons and tons of roadway fall inside the bounds set by those monuments, I wouldn't haphazardly throw out the evidence and "weight" of the monuments since they may well be in adequate conformance with each other. Additionally I wouldn't worry about a few tenths discrepancy either. For all practical purposes the landowner is going to use and accept to the fence, and the highway dept is not going to go outside the monuments. Why would we argue and bicker over those few tenths if it is acceptable to all parties on either side of the line.
It is a bit of a travesty to most surveyors that highways used to be staked and surveyed by Engineers or engineering technicians, and I guess that's why we generally don't like to accept any monuments they staked. I believe that in most states today, highway parcels are surveyed and staked by licensed land surveyors. Of course there's still the issue that monuments follow the actual acquisition. I think most states at least temporarily stake the parcel to be acquired so that the owner can see it as well as the appraisers.
(Paul) Since They Were Not Set By The Original Surveyor, NO!
> The highway itself is the monument. Hold the highway.
>
> Don't hold the fence either, most were 1' inside the right of way.
>
> If you completely survey adjacent parcels and find they held some monuments, still NO! Adjacent prperty goes to the correct right of way. The State has no need for additional land, nor claim to incorrect monuments outside the ROW, nor will they yield to incorrect monuments within the ROW. They have what they took, no more, no less.
>
> No one can take an interest in land against the Sovereign. In turn the Sovereign cannot take more land without additional compensation.
>
> Paul in PA
Your subject line is bunk because I've yet to see a statute where a landowner could not survey his/her own land. I do not think that this extends to private people. No original surveyor was required and they denoted their own location.
You would lose if you were to attempt to put the deed back on the ground. Forget harmony, forget intent, forget the math. This is mutual mistake, plain and simple.
Larry, hold the monuments as found.
You Cannot Construe Against An Unwilling Grantor
Often the old R/W monuments are the only evidence of the engineer's centerline or layout line. So if you are staking the R/W Deeds at least some of them would have to be used.
In the late 1940s they sometimes set the freeway centerline but those are often destroyed by subsequent construction in the median.
Here in NY State, the actual ROW line is defined by the HIGHWAY SURVEY BASELINE, and the ROW angle points are referenced to that baseline by station and offset.
"Back in the day" contractors would send out laborers to set the monuments, with (if you were lucky) a cloth tape, and they were never actually checked by survey. Nowadays, the State requires an LS to certify the locations after they are set.
NYS DOT ROW takings are done by APPROPRIATION (which is an administrative process having it's basis in Eminent Domain, not as a typical land transaction) and were created and transacted using these maps, which were then filed at the County Clerk's Office.
I've been involved with projects where the actual monuments were off by many feet, but the taking/ROW line was held as in the appropriation maps.