My buddy, Pablo, got distracted from his pipeline job from Louisiana to Florida.
Somehow, he ended up in a hillbilly haven called Sebring. This was a few years
back when Florida was booming. Another company who had staked and platted the
original subdivision would come out with their robot and do a house location from
about 200 or 300 feet away. Then we would do a house location setting on the
corner pipes that had their caps. There was a little slop throughout the
subdivision but nothing more than 0.3' Then our client would call up and say
somebody had moved their corner pipes. We didn't move them back but made a few
more ties. After this happens again, we discover the other surveyor is moving
his corners around. The boss calls him and asks what is up? The other surveyor
says he was tweeking the corner locations. The boss asks when he will be done
tweeking in the subdivision. He says when he is done locating the new houses.
I think I have agreed with Mr. Penry about 100%. I do not think a surveyor should
moving his mistakes, disturbed corners is another issue. Sorry, Mr. Penry.
I heard a surveyor come to our chapter meeting and declare there is not any
original corners in this county.
Somehow some of my statements are not being clearly understood. Let me present it another way.
You come across a location where a utility company has just installed several junction boxes and underground lines. The area at the corner location in a 6-foot diameter has been clearly disturbed, but you find a capped pin in this same area 1.5' out of position. Logic should tell you that the utility company removed the pin and tried to reset it. Instead, you hold the position and create future problems not only for other surveyors, but for the landowners. I would personally move it back to where it should be and make note on my plat as to what I found and why I did it. I understand many here seem to be in strong disagreement with this. To each his own.
While some will agree with this scenario if you happen to come upon the location after the disturbed dirt is still fresh, but 5-10 years later there are no signs of any construction. What conclusion would you then make when you find the pin 1.5' out of position?
There are many young surveyors reading these posts who will adhere more to the notion that whatever you find you must hold. I am not talking about the 0.2' - 0.3' out of position sloppy work stuff, but rather the situations where you should not be holding every monument just because you have heard another surveyor say that "original" monuments have to always be held. Who has ever attended a seminar where you thoroughly discussed the various reasons for monuments not being where they should be instead of whether or not you should hold a found monument?
I have a clipping somewhere from the home town newspaper in which an old timer reminisces about working with a young guy who later went on to be an Olympic champion. He says they both worked for the county engineer in 1931 on a crew correcting section corners by digging up the stones and putting them where they “should be”.
Not being an LS myself, I've never gotten up the nerve to ask the Co. Engr. office if they have field books from that activity. Maybe better to let sleeping dogs lie.
I don't think anyone is arguing that an apparent disturbed monument should at least be suspect. And I don't think you are saying that all monuments must be continuously moved to where they should have been set according to the plat. What the confusion seems to be is what is the presumption and where is the burden of proof?
As Evan pointed out nearly all court cases say that an original, undisturbed, relied upon monument controls, even if there are measurement errors. This is basic property boundary law.
Your scenario of a utility company digging the monument out while installing the utilities and placing the monument via their best guess, obviously meets the suspected disturbed monument category. However, the burden of proof lies with the person who claims the monument is disturbed. He must have compelling evidence that a disturbance has occurred, and measurements are only a form of evidence, generally not conclusive evidence, but merely a piece of evidence. If the apparent disturbance happened years ago, and the landowners have relied upon the "disturbed" monument, repose becomes a major consideration in the surveyors evaluation of the situation.
Remember we are supposed to be boundary surveyors, not merely measurement and cogo technicians.
Vern...
"My contention is that we do not have to hold every pin found just because it has been used by some incompetent public Joe."
Do you have any references from "learned treatises", surveying books, law books, court decisions, etc. to support that concept? It flies in the face of everything I have been taught over the last 40 years...
You know what I mean Vern?
Sorry, I couldn't resist.
Anyway, if you are ever unfortunate enough to run across a plat I have sealed, let me assure you that every single lot and block corner was set before I signed that plat. That is why I make said Certification. I set 'em all. To me, lots are new boundaries, the purest form of land surveying - a new property created and monumented by me! Texas mandates that we set monuments at or references to every corner of real property that we survey. Most do not set all the rods before sighning their plat, but I like to! I make sure I get paid for setting 'em, too.
You know what I mean Vern?
:good: :good:
Brian, I don't like your argument. After reading this thread, I thought I was going to be able to ignore all found momnuments. After all I wasn't standing there watching it all these years, so how do I know it wasn't moved?
Vern...
NO! It is my opinion and I may not live long enough to convince the rest of the world. Just finding a corner and saying "I found it, it must be right" is ludicrous.
Vern...
When did any surveyor on this forum advocate that? You placed those of us who accept monuments "just above fence line surveying". We are defending ourselves.
My eyes were open after reading this case. It has been referenced here before numerous times.
http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=31468
(Sorry, the "LINK" button did not work for me)
Vern, accept a monument, it will set you free.
Vern...
I did, It's right there^^^^^:clap: o.O
We are arguing a hypothetical circumstance here.
Then there is the case of the Central California Coast quarter section corner which was not found by the County Surveyor way back (1910 or something like that). So the County Surveyor set a monument by single proportion which is still there today.
Meanwhile the property got involved in litigation. One of the parties is a famous Billionaire. He said, "Spare no expense." So the local private Surveyor went out there and cleared a huge area of brush and dug until he found the remains of the original post. This happened 5 or 6 years ago.
I think a case could be made for the County Surveyor's almost 100 year old monument but we didn't contest the original because, frankly, it solved a problem for us, it put a water collection structure on his property so we didn't have to find some resolution to that problem. The main point of the case was elsewhere on the property, a disagreement over the exact natural location of a riparian boundary which is a steep ravine. The case eventually settled in favor our Expert's location of the flowline. We said the existing physical flowline is the natural location and the other side had contended unsuccessfully that it had been buried by road fill.
Vern...
To be fair, the referenced court case was talking about an original monument referenced in the language of the original deed parceling out that propety. It does not conclude that any and all monuments, original, retracement, or uncalled-for monuments in the deed be accepted as the boundaries of all properties.
If you reference a court case you need to have circumstances that meet the same elements of the decision and in the referenced case the deed description clearly called for an existing monument in the ground.
My argument more for accepting uncalled-for monuments is a prsumption that they were set with due care and proper procedures by a land surveyor. After making that presumption, looking for evidence that may overcome that theory. Being out a couple of tenths, generally, does not overcome the fact that it was set correctly. Who knows if the surveyor at the time came off the same exact pins that are there now in the same location...etc. etc.
Are you asking how to prove a negative?
You don't have to. The courts have solidly established that found original monuments have a presumption of correctness, that they are presumed to be in the location at which they were originally set.
You might find evidence that a monument is not at its original location. If that evidence is reliable enough, the presumption of correctness of the monument is overcome and it no longer is controlling.
A legal presumption is a principle that the law prescribes that the truth of a matter is accepted based upon certain facts being known. In the case of monuments, if the facts indicate that a monument is the same object as originally set to control a boundary, it must be accepted to control over other conflicting particulars unless it can be sufficiently shown that the monument no longer occupies the position it was originally set at.
A presumption is similar to an assumption in that in each, one does not have proof of the truth of a matter and so the truth is accepted without direct proof.
Note that where evidence tends to support a conclusion, proof establishes beyond all doubt a conclusion as the truth. Evidence may occasionally be proof but rarely is. Proof is more often a substantial body of evidence or a body of evidence together with a solid presumption or two.
A presumption differs from an assumption in that an assumption is essentially a guess based upon little, flimsy, or no evidence, whereas a presumption is based upon the experience that when certain facts are proven to be true, it is more likely than not that the matter at issue is also true. The courts, in recognition that certain things cannot be or can very rarely be proven absolutely, have prescribed certain presumptions in order to prevent stalemates in disputes for the lack of the ability to prove certain points absolutely before addressing the ultimate issue of the case.
These presumptions have not been prescribed arbitrarily, but are based upon the collective experience of the legal system or on a common sense recognition of the obvious, which the legal system calls judicial notice.
The presumption that a monument is in the place the surveyor set it is a very old one and is based the collective experience of the court that if a monument is credibly claimed to have been moved, there is most often discernible evidence to that fact.
By long collective experience, the courts have also found that there are errors in survey measurements to the extent that any two surveyors performing a survey contemporaneously will nearly always differ to some degree in their measurements of the same lines, and that newer measurements will almost always be at variance with older ones, and often at very significant variance.
Recognizing that measurements are not historically very reliable when compared to the stability of a physical object affixed to the Earth, by applying the concept of judicial notice (the common sense that recognizes the fixed is more reliable than the fluid or ever changing), the courts have arrived at creating the presumption that monuments are more likely correct than are measurements or calculations based on measurements.
Thus, many states have codified:
1. monuments over distances
2. distances over directions (or vice versa, depending on jurisdiction)
3. directions (or distances) over area.
Further, common law has solidly established these presumptions:
1. Monuments are more certain in position than the recorded measurements between them, therefore the survey as evidenced by the permanent marks left on the ground in conducting it controls over record data.
2. A map is made from the record data brought from the field after conducting the survey, so the map is less reliable than the actual survey as evidenced by the actual marks left on the ground in the performance of the survey.
and in some jurisdictions
3. Where the map is at variance with the field notes, since the map was made from the field notes, the field notes are more reliable.
Surveyors do not have the authority to rearrange these presumptions simply because they are more comfortable with making measurements and manipulating numbers than they are with assessing physical evidence any more than a driver is justified in driving 80 mph on the highway because he is more comfortable doing so that remaining stuck in traffic at 65 or less.
It's part of the law of boundaries and if you are a licensed surveyor locating boundaries, you are presumed to know it and obligated to practice according to it. If you reject a monument, you had better do so on stronger evidence than its location disagreeing with record measurements. To do otherwise is to operate outside of the law you are licensed to practice by.
Evan, that was very well written. This post has dropped down from the top quite a bit, but I hope others will see it and read it.
:good:
Very well said.
Evan, very well written. I feel this is not a one size fits all issue. I think all of us have that one or two scenarios in our minds we have come across that no one else can fully understand. When it comes to section corners and center of sections I would be hard pressed to disagree with anything you have stated.
Lot corners, however fall in a different category for me. I cannot understand why a surveyor would hold a lot corner in the middle of the block that is off by 3' in distance and 1' into the street when the distance across the entire block measures within a tenth. No one built a fence to it or even knew of its existence, yet a surveyor claimed it was an "original" monument, thus shorting one owner by three feet and giving three feet to another. This is the scenario in my mind that gets me in the position of playing the devils advocate on this discussion.
> So, for an example, let's consider a string of 10 lots that the plat says are 80' X 125' and this is where zoning regulations say that minimum lot size is 10,000 square feet and minimum lot width at frontage and setback is 80'.
>
> We are all in agreement that the pins we find are the original pins set by the surveyor (or employees) that signed the subdivision plat.
>
> Corner 3 is 1' to the West of plat location into the right-of-way of road. Can you take land from the road and say it is now part of lots?
>
If monuments control over course, distance, plat and design standards, then the correct question is whether you can take land from the lot and treat it as road. It's already part of the lot.
If, instead, design standards and plats control over monuments, then the monuments will always be found in a location other than the platted dimensions and we must create a false justification of "how far is too far" or "how close is close enough" to determine which monuments we throw out as "bad."
One of these two options is preferred under the law. Guess which one.
> Corner 4 is 1' to the North of plat location. This makes one lot wider, but now makes one lot is too narrow so it violates minimum lot width.
>
This common misconception presumes that there is a "violation of minimum lot width." It is false. A surveyor's ability or inability to measure with perfection does not determine compliance with zoning ordinances. Consider the fundamental maxim of jurisprudence: "the law does not require an impossibility."
Zoning compliance is a matter of intent and purpose, not a matter of perfection. The municipality passes a zoning ordinance to set density, aesthetics, and uniformity standards. A standard that requires 80' minimum widths and 10,000 square feet minimum areas expresses the intent to accomplish those goals. The owner of the property complies with that intent by designing and submitting a development with the intent of compliance. The municipality approves the plat because the design properly reflects the intent of the ordinance. The lots are approved for development, not because they will be staked on the ground to perfection, but because they conform with the intent, thereby creating approved developable lots.
The inability of the surveyor to measure perfectly a row of 10 lots cannot overcome the intent of compliance. The lots were intended to conform, they were reviewed for conformance, and they were approved as conforming; they conform.
The retracing surveyor should always report the record dimensions of the property which express the original intent of the parties and, thus, the "true" length of the lines and the "true" area of the lot. Then report the measured distance which will assist the next retracing surveyor to rehabilitate an obliterated corner monument to its former position (which may be 1' from the record).
We see this principle in texts such as the Manual of Instructions:
3-4. By law, (1) the corners marked in public land surveys shall be established as the proper corners of sections, or of the subdivisions of the sections, which they were intended to designate, and (2) the boundary lines actually run and marked shall be and remain the proper boundary lines of the sections or subdivisions for which they were intended, and the lengths of these lines as returned shall be held as the true length thereof (R.S. 2396 ; 43 U.S.C. 752).
JBS
"the SURVEY controls"
Before I read the other's responses, I will give mine, just for fairness. So if I repeat another's post, I apologize.
The set corner monument is the actual corner in Washington state. The first surveyor is not just a GLO surveyor, but the first surveyor to divide any land. That surveyor is not so much without error, but the survey on the ground controls, not the writing on the plat. Doubt me? Please read on:
Background: The City of Seattle (the appellant) argued that the plat held over found monuments. What makes this interesting, is that the land at issue was not simply a lot line, but was a case where the private land owners claimed ownership extending into a right-of-way called out in a plat map. The city spent a lot of time reminding the court that you cannot adversely possess a road against the government.
Opinion of the Court.—Fullerton, J.
[No. 4419. Decided January 10, 1903.]
Martin Olson et ux., Respondents, v. City Of Seattle,
"But the rule is not as the appellant assumes it to be. Where there is a discrepancy between the survey and the plat, the survey controls, when it can be ascertained, and the proof here is overwhelming that the boundaries of the lots as claimed by and in possession of the respondents are in exact accord with the original survey. The intention of one who has platted land into lots and blocks is indicated by the monuments which he has caused to be placed, marking the boundaries of the same, and another has a right to purchase from him with reference thereto, and such monuments and boundaries cannot be changed by showing that they do not conform to a plat on file. Lots in cities and towns are not held by such a precarious tenure."
> I had a fence contractor pull out several section corners around a major lake when the Game & Parks Commission hired him to put in a new fence. Then he redrove the capped pins back into the ground near the fence corners.
>
Deuteronomy 27:17
“Cursed is anyone who moves their neighbor’s boundary stone.” Then all the people shall say, “Amen!”
We should pillory people that move boundary stones or rebar!!!
This happens all the time. There is a HUGE lack of understanding in the public and specifically in fence builders!!! If you dig out the pin, fine! Leave it laying on the ground in the pile of dirt you dug out.
So many times I have been called out to our plats, with a foundation guy pointing at Rebar with our cap on it, and showing me how it doesn't fit. (And indicating my incompetence!) I just shake my head, point to the Rebar, set in concrete, with the 4x4 wooden fence post right next to it, and say, "I set that rebar before they built that fence, and that isn't where I set the rebar. I will reset it and bill the developer. They can back charge the fence builder." (But reality is, I will reset it paid or not.)
