Check Lucas's Dec 2010 POB article and know that the owners have the right to establish their common boundary.
The surveyor, having no ownership interest in the land, has no authority to challenge the owner's ability to exercise their rights simply because we 'measure better'.
We recover and analyze ESTABLISHED PHYSICAL EVIDENCE, not lines drawn on a piece of paper; and, when the physical evidence that fixes the location of the legal boundary is not accurately reflected by a reasonable interpretation of the written record, that record needs to be corrected in order to preserve the rights of the owners and prevent a fraudulent land transaction when the inaccurate record is used.
Richard Schaut
Boundaries are established by the landowners as a result of two things: Representation and Reliance. The questions you need to ask are, "What representations were made the landowners," and "What representations were relied upon?"
The landowner who constructed the improvements relied upon something. It's highly unlikely that they simply constructed a building with no information as to the property size and location. So, what cross-cuts were in place at the time the building was constructed? A cross-cut set after the building went up obviously wasn't relied upon and could not control the boundary establishment.
It sounds like there are two possible interpretations (unless you consider the rule of apportionment applicable, which sounds unlikely). One interpretation results in a building encroachment; the other interpretation results in a boundary that is perfectly reasonable and justifiable by the record. I know which one I'd select.
The duty of the retracing surveyor is plain. Recover the evidence; resolve the conflicting evidence; retrace the boundary as it exists on the ground. The rest is just record vs. measured.
JBS
fundemental misunderstanding
This is not a measurement question. It is good to see that you agree with me that the role of the surveyor is limited. I am completely in agreement that owners can estsblish their own boundaries. This right ,however, does not occur in a vacuum.
There are legal mechanisms by which owners able to exercise their property rights.
In Califonria, these rights are controled by the subdivision map act. The subdivision map acvt has been in place since 1893.
In 1972 the state of California, entered into the arena of small divisions of land,parcels numbering 5 or fewer. Some counties had parcel map provision earlier than that date. With few exceptions ALL subdivisions of land are created via a MAP.
The 1972 law is applicable for divisions of land after that date. But it is important to note that divisions creatd prior to 1972 must have been do so in a LEGAL FASHION, in order to be exempt from the map act.
So in California,at least, owners ARE free only to dispose of their rights IN A LEGAL MANNER, with regard to real property rights.
>One interpretation results in a building encroachment; the other interpretation results in a boundary that is perfectly reasonable and justifiable by the record. I know which one I'd select.
That is how I view it too. I was surprised to find a recent surveyor would come up with an encroachment solution versus a free and clear solution since one can essentially come up with two solutions on this one, aside from some type of proportion, which I do not consider applies on this one.
Bryan help me out here
Solution A works for a result that is in harmony in the block.
Soultion B defeats the harmony in the block and results in encroachments.
Clearly, we would want to accept solution A. This is common sense.
But what about the preponderance of evidence, can we accept solution A because it is easiest and lest painful for us? If we found a preponderance of evidence supporting solution B, would we still pick solution A because it is convenient?
I suspect the harmonius result of solution A tips the scale of preponderance of evidence quite a bit it its favor, aside from the fact that it is a convenient answer for the surveyor.
Bryan help me out here
Surveyors who are REAL men will pick Solution B because if you always find the building NOT encroaching then we don't need Surveyors.
(I am not being serious).
()=note for Sarcasm deficient surveyors.
Best Regards,
Dave Karoly, PLS
Professional Licensed Sarcastineer
