At some point ya stop tryin to lay out the world, and start documenting WHERE it landed.
It's what happens, when civilization comes to town.
N
Been there, done that.....
Nate The Surveyor, post: 409806, member: 291 wrote: At some point ya stop tryin to lay out the world, and start documenting WHERE it landed.
It's what happens, when civilization comes to town.
N
My client's neighbor's piece of the world landed on my client's piece of the world.
Sometimes things don't land where they're supposed to.
Nate The Surveyor, post: 409806, member: 291 wrote: At some point ya stop tryin to lay out the world, and start documenting WHERE it landed.
It's what happens, when civilization comes to town.
N
Here's an article I penned a few years ago for a publication that dwells on such matters. Sometimes you just need to "survey" what's out there.
"Pls 13-1/2"?
Hmmm +-
paden cash, post: 409827, member: 20 wrote: Here's an article I penned a few years ago for a publication that dwells on such matters. Sometimes you just need to "survey" what's out there.
Farm to Courthouse, that's good, really tells the story.
Nate The Surveyor, post: 409828, member: 291 wrote: "Pls 13-1/2"?
Hmmm +-
They were all out of half degree compasses that day so he had to settle for a whole degree compass (read to the nearest half).
I have read a lot of case law regarding boundaries and essentially it boils down to: what was the agreement, did the correct parties make the agreement, is it in proper form, is it a legally enforceable agreement. People are free to enter into foolish agreements, maybe they are too cheap to hire a Surveyor so they get together with the neighbor and agree to a location, maybe they find out 20 years later that the agreement they entered into was foolish because they appear to have given up 20' of land, that is no excuse (unless the Judge cancels the agreement on the grounds of mutual mistake which is less common).
So I am trying to put the magnifying glass I use to read the various rules down (which are really rebuttable presumptions) and step back and see the Law as a whole system which runs from the writing to establishment. Sometimes the line of possession is not established, in that case the Deed rules. Maybe the agreement can be canceled because they knew where the original stakes were located (this varies by State).
Courts often attempt to read the Deed or Statute or the Law as a whole taking their parts in context and in view of the circumstances surrounding their creation. This is what we should do. Appellate Courts have a rule called the Substantial Evidence Rule which states that if substantial evidence supports the Trial Court's Judgment they will refuse to disturb it even if there is substantial evidence supporting the opposite result. I think this is what Land Surveyor's should do when possible, uphold old Surveys especially when they have been accepted, settled, and lived by by the property owners; sometimes the old Survey is so out of whack that it can't be done but accepting the status quo should be the goal if not always the result.
Dave Karoly, post: 409837, member: 94 wrote: I have read a lot of case law regarding boundaries and essentially it boils down to: what was the agreement, did the correct parties make the agreement, is it in proper form, is it a legally enforceable agreement. People are free to enter into foolish agreements, maybe they are too cheap to hire a Surveyor so they get together with the neighbor and agree to a location, maybe they find out 20 years later that the agreement they entered into was foolish because they appear to have given up 20' of land, that is no excuse (unless the Judge cancels the agreement on the grounds of mutual mistake which is less common)..
Whether there exists evidence or not, the grantor and grantee agreed in some fashion upon the location and size of a conveyance, around here anyway. It may have been something unspoken or assumed, as the location of a fence or a natural bound, but there was an agreement with or without a survey. Their both entering into a conveyance is a paramount evidence of that.
In my mind that very agreement is what should be honored if the conveyance is ambiguous at any level. If the "West 440 feet of the North 990 feet" was under physical (fenced) occupation at the time of the sale, no future "survey" should place the boundary anywhere except where it was actually agreed upon by the parties at the time of the sale. The word should yield to the physical evidence if no accurate survey was made at the time.
And therein is some of the biggest problems we run into thirty years after both parties have perished. But their original agreement should still remain true and honorable.
paden cash, post: 409843, member: 20 wrote: Whether there exists evidence or not, the grantor and grantee agreed in some fashion upon the location and size of a conveyance, around here anyway. It may have been something unspoken or assumed, as the location of a fence or a natural bound, but there was an agreement with or without a survey. Their both entering into a conveyance is a paramount evidence of that.
In my mind that very agreement is what should be honored if the conveyance is ambiguous at any level. If the "West 440 feet of the North 990 feet" was under physical (fenced) occupation at the time of the sale, no future "survey" should place the boundary anywhere except where it was actually agreed upon by the parties at the time of the sale. The word should yield to the physical evidence if no accurate survey was made at the time.
And therein is some of the biggest problems we run into thirty years after both parties have perished. But their original agreement should still remain true and honorable.
The writing is usually considered the most accurate evidence of the intentions of the parties, this is why parol evidence (this includes extrinsic evidence) is usually not allowed to be used to modify a written agreement (this is known as the Parol Evidence Rule, there are numerous exceptions). One of the exceptions is parol or extrinsic evidence is admissible to apply the writing to the subject matter (in our case usually the land). In addition, the property owners may make subsequent agreements, the parol evidence rule is usually thought to apply to parol or extrinsic evidence of intentions from before the time the agreement was put down on paper. Agreements as to location are not required to be in writing (they are not within the Statute of Frauds) because they do not transfer title, they merely define location, at least most of the time, usually, subject to certain wherefores, heretofores, and exceptions.
When the parties write the West 440 feet of the North 990 feet then establish that on the ground then that is very good evidence of their intentions. This evidence is highly relevant to prove location.
You are right, of course, it looks easy in the book, it's all flat on the map, all the monuments are there and stick up and measure the distances they should measure apart.
Of course there can also be an issue as to whether there are other rights on that same piece of property....what if two other fellows agreed on an area that encompasses part of the "ethereal" land in question. (Ethereal probably isn't the right word, but I thought of it and like it, so it now means what I meant it to mean, whether it means that or not....;-) )
Tom Adams, post: 409848, member: 7285 wrote: Of course there can also be an issue as to whether there are other rights on that same piece of property....what if two other fellows agreed on an area that encompasses part of the "ethereal" land in question. (Ethereal probably isn't the right word, but I thought of it and like it, so it now means what I meant it to mean, whether it means that or not....;) )
Ethereal IS part of Wendell's spell-check (thank God)!
I'm not meaning you or your post specifically, but sometimes I think we as surveyors try to create mountains to scale when there are merely graceful hills in front of us. Rights or claims of others can always become a factor. But a boundary is a boundary. We work from there. And our foremost task as surveyors is to locate that boundary first. Even in a case of obvious Junior/ Senior rights, we must determine each boundary before we decide whether the rights of others is a factor. And if others claims are not recorded, evident or visible it becomes more someone else's decision and less that of the surveyor.
What I'm saying is I'd love to have a beer with Karoly...but if I was on his crew and we ran into a retaining wall with a small encroachment at 4:00 PM I'd probably wind up walking back to the office.
PS Dave: just funnin' with you. 😉
Nate The Surveyor, post: 409806, member: 291 wrote: It's what happens, when civilization comes to town.
Ya wanna see "civilization"? Come on down to Central Florida, I have several clients that are projecting 300-1000 housing starts in 2017.
FL/GA PLS., post: 409856, member: 379 wrote: Ya wanna see "civilization"? Come on down to Central Florida, I have several clients that are projecting 300-1000 housing starts in 2017.
Just as a sidenote about something I've been wondering about:
Just how serious is the subsurface investigation for development in Florida? Are there insurance policies that cover everybody's butt when the sinkholes start popping up?
Tom Adams, post: 409848, member: 7285 wrote: Of course there can also be an issue as to whether there are other rights on that same piece of property....what if two other fellows agreed on an area that encompasses part of the "ethereal" land in question. (Ethereal probably isn't the right word, but I thought of it and like it, so it now means what I meant it to mean, whether it means that or not....;) )
Some examples,
Joe owned a house, he sold it to Harv and Mavis and showed them the boundary. Meanwhile Ralph next door was never included in these discussions. Court ruled, agreements need to involve parties on both sides of the line so this is not a valid agreement.
Unified Lumber Company owned many sections of prime timberland. They, for some reason (perhaps they already had harvested the old growth but this is only a guess), they sold the north half of the north half to Frank. They kept the south half of the north half. Frank said he needed to blaze the boundary (technically cut chops or hacks) but didn't know where it is located. So he was referred to the Company's Survey department. The Chief Surveyor gave him some distances to measure (from somewhere, the opinion doesn't elaborate) and two of the Chief Surveyor's employees agree to help Frank as a side job. They measure this boundary in and run it. As the properties change hands over the years the blazed boundary is used for a chopping line and the south asks and receives permission from the north to build a landing north of the line. Someone gets a survey a decade or so later and the blazed line turns out to be 500' too far north. The court ruled it is an established boundary under the agreed boundary doctrine.
Another common story is no one knows why the fence is located there but it follows the terrain, is not straight, goes from tree to tree, etc. These are generally found to be a convenience fence and not sufficient evidence of a boundary.
paden cash, post: 409859, member: 20 wrote: Just as a sidenote about something I've been wondering about:
Just how serious is the subsurface investigation for development in Florida? Are there insurance policies that cover everybody's butt when the sinkholes start popping up?
Prior to the land development there are usually soil borings all over the site primarily for muck removal and water table levels as well as any possibilities of adverse ecological effects.
As far as ÛÏpotentialÛ sinkhole locations, there is no known methodology for prediction. Most sinkholes occur during a severe drought. Developers donÛªt care anyway.
As for insurance, check this out: http://www.stateoffloridaliving.com/sinkhole-insurance-in-florida-and-the-worst-places-to-live-in-the-u-s/
paden cash, post: 409853, member: 20 wrote: What I'm saying is I'd love to have a beer with Karoly...but if I was on his crew and we ran into a retaining wall with a small encroachment at 4:00 PM I'd probably wind up walking back to the office.
What if Dave brought the beer.....what do you do now? (Okay, I'm making another mountain out of a molehill).
