The way the fence builder looks at it is the post was set at the rebar and the rebar was put back at the post so it is the same spot.
James
This is easy, if I am reading correctly!
The original survey holds. I would record the current corner locations showing R/W & boundary overlaps and gaps, including the adjoining parcels. It is not my responsibility to assume intent and move corners. It is my responsibility to retrace the original survey and report my findings. The Superior Court is responsible in determining the intent and correct the boundary lines.
I think you are taking the math way to far.
When the subdivision was approved by P & Z the lots created are legal lots in compliance. The world isn't perfect. A little difference in the area shouldn't matter. They created a compliant lot and the lot remains compliant even if a new measurement shows the area short.
If you are in a $%^*$# match with P & Z it should be over the reasonableness of the issues and not over a tenth difference in the math and the current calculated area for the zone. Government shouldn't be able to take back what was approved just because some new survey shows the area a bit short. Instead of fighting over the exact dimensions you should be showing them the way the law should apply to what has already been approved. The lots where approved when created, THEY ARE NOT NON-CONFORMING!!
> The way the fence builder looks at it is the post was set at the rebar and the rebar was put back at the post so it is the same spot.
>
> James
He looks at it incorrectly and breaks the law, damaging property owners. He also damages the reputation of the original surveyor.
> This is easy, if I am reading correctly!
>
> The original survey holds. I would record the current corner locations showing R/W & boundary overlaps and gaps, including the adjoining parcels. It is not my responsibility to assume intent and move corners. It is my responsibility to retrace the original survey and report my findings. The Superior Court is responsible in determining the intent and correct the boundary lines.
Good grief. Why can we not let go of the God of perfect measurement?
Anybody else see the contradiction? "The original survey holds" and "...showing R/W boundary overlaps and gaps...."
Well, which is it? IF the original survey holds, how the heck can there be boundary overlaps and gaps??????
Oh, dang it I get it ----- you forgot the sarcasm button!!!! Dang!! Sorry!!
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It was not intended to be sarcasm, Brian.
The original surveyor erred in his work and corners were set creating the subdivision. The set corners, even though not set correctly, create the subdivision on the ground!
The deed description and/or Plat may show intent, but, the "original monumentation" holds! So, according to his description, the corners were set inside and outside the R/W creating gaps and overlaps in addition to adjoining properties outside this subdivision.
Only the original surveyor (sub-divider) may correct the corners, if time allows, and record a revised plat and/or deeds, if necessary. In NC, a Plat alone does not create a subdivision. The Plat is followed by a deed describing the plat. Without the deed the plat is just a map showing a proposed subdivision.
If I were to move the corners, I could lose my license. I enjoy eating and sleeping inside, so I don't want to lose my job.
The correct answer is to record your findings and report them in a factual manner. Moving established corners in a subdivision is in violation of the Law.
What if your survey is wrong?
Target - My responses to this feed were based on the fact that we are in agreement the corners were set by the "original subdivision surveyor".
In real life, how do we determine if the corners we find were set by the original surveyor (sub-divider)? In most cases we can't. In most cases we can come to a conclusion that the corners were set by others because the descriptions of the monumentation does not match that of the Plat and/or Deed.
Therefore, in the latter case, I would hold the corners that are within reason. If I found corners out a foot or more, I would probably set a new corner by various means and locate and record the existing corner. I would never remove the existing corner. They become part of the Record Survey and Plat.
> ...If I found corners out a foot or more, I would probably set a new corner by various means and locate and record the existing corner.
Can you provide the reasoning for this? Or better yet, cite a court case that opined this was proper procedure?
> The deed description and/or Plat may show intent, but, the "original monumentation" holds! So, according to his description, the corners were set inside and outside the R/W creating gaps and overlaps in addition to adjoining properties outside this subdivision.
Monuments do not create gaps and overlaps; descriptions do. They are created when descriptions either overlap or do not meet, thereby leaving a gap between them.
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David,
I have to respectfully and strongly disagree with you.
It is the actual survey as made on the ground that controls over any other instrument such as a map of the survey or the description thereof.
The true location of the lines between the monuments, as stated above create overlaps and gaps with the R/W. This is a "Survey Overlap" not a "Deed Overlap"
(Copied form above)
Brown's Boundary Control and Legal Principles, Fourth Edition Chapter 12 "Monuments, as placed by the original surveyor of a subdivision, represent the true location of the lines as run by the original surveyor, and as such have prior rights over any informative call for angle, distance, or surface. Errors in the measurements of distance, angles, or surface occur, but the location of original monuments, if undisturbed, is certain and conclusive as to the original location of the lines run by the original surveyor. Calls on plats for distance, angles, or surface are informative terms to aid in the location of monuments; the monuments mark the lines as run." (Brown, Robillard, & Wilson, 1995)
I am not arguing that the monuments don't control, I agree that they do. That is one of the fundamentals of boundary law. What I am saying is that a monument that is not located where a retracing surveyor thinks it should be, does not create a gap or overlap. Gaps and overlaps are created by descriptions. They are title problems as opposed to boundary problems.
Assuming that we all agree that the monumentation found was set by the original surveyor (as stated). The lines created by the monumentation are survey overlaps not Deed Overlaps. The survey ground monuments hold regardless of the deed description.
> Assuming that we all agree that the monumentation found was set by the original surveyor (as stated). The lines created by the monumentation are survey overlaps not Deed Overlaps. The survey ground monuments hold regardless of the deed description.
If the recovered original monuments hold (which most of us can agree that they do), how do you have a "survey overlap"? Just show record/measured and be done with it. Why confuse things by showing overlaps/gaps where there isn't one?
Not My Responsibility!!! (???)
> This is easy, if I am reading correctly!
>
> The original survey holds. I would record the current corner locations showing R/W & boundary overlaps and gaps, including the adjoining parcels. It is not my responsibility to assume intent and move corners. It is my responsibility to retrace the original survey and report my findings. The Superior Court is responsible in determining the intent and correct the boundary lines.
Good grief, you are really mixing up terminology of the correct course of action with a completely different meaning.
Let's take it a sentence at a time.
> The original survey holds.
Correct! But the survey is NOT the map, it is what the surveyor did in the field. Go back to your reference books... you remember, those ones you studied so hard out of to pass your exam and then packed away. Go find them and start looking up passages about the survey controlling. You will find that invariably, the courts view the map as merely a graphical representation of the actual survey, and except in rare circumstances, hold the points actually placed in the ground over contradictory information shown on the map.
>I would record the current corner locations showing R/W & boundary overlaps and gaps, including the adjoining parcels.
But that's just the opposite of what you just said. Now your describing that you would discard the survey in favor of the map that was drawn to represent it. that's a losing position far more often than not.
>It is not my responsibility to assume intent and move corners.
Not your responsibility? NOT YOUR RESPONSIBILITY?!? Then why the heck do you think surveyors are licensed and classified as professionals? Measurement is not a professional endeavor, it is a technical task used to provide information that go into professional analysis and decisionmaking.
So is it your responsibility to create needless strife which costs your client and adjoiners needless stress, conflict, and money to resolve through legal action? Is it your responsibility to create needless controversy to be resolved by a court when the courts have countless published opinions for you, as a professional to discern how they would regard the information you find and how they would apply it in coming to a boundary location conclusion? They publish these opinions in part so that practicing professions can make better informed decisions when rendering opinions within their supposed areas of expertise. Take advantage of them or look like a fool when the other side has a surveyor who has studied these things, applies them in practice and can clearly articulate his or her well-reasoned opinion.
It is the surveyor's responsibility to make a determination as to the relative significance of the various evidence found, and to come to conclusions that are well reasoned and likely to be supported by a court of competent jurisdiction. If you have no idea how to arrive at a well reasoned opinion, and have no idea what a court of competent jurisdiction would support, then you are not prepared yet to be licensed.
Creating various gaps and overlaps when doing so would be contrary to what a court of competent jurisdiction is likely to do is very irresponsible and a disservice to everyone affected by those decisions.
The surveyor is the only professional licensed to determine where boundaries are located. You cannot do that if you do not understand what a boundary is and what controls its location. By tossing that responsibility to a profession whose training is not directly focused on boundaries, and choosing not to be knowledgeable to assist the court in its interpretation of the facts of the case, you place your client's property at the mercy of those who may have less knowledge than you on the topic. Not a professional or responsible thing to do.
>It is my responsibility to retrace the original survey and report my findings.
Correct again! That means that it is your responsibility to show where the points of the original survey are and report any variance between your measurements between those points and those reported on the map of that survey.
Not only is it not your responsibility to correct the points of the survey to locations that you think they should have been placed, it is not within your authority to do so.
Again, retracing the original survey means following the points in the field and showing where the mapped info deviates. It is not following the map and showing where the points placed in the field are "wrong".
A surveyor, a real surveyor does not assume intent. A real surveyor, if there is any doubt either found within the map and documentary record, or upon finding variance between field monument locations and map & documentary info investigates to find supporting evidence of the true intent and makes boundary decisions based upon the best evidence one can find. There is no room for assumptions in the professional practice of surveying, just as there is no room for the shirking of one's responsibility to investigate the reasons for found discrepancies and to find evidence of actual intent.
Every survey decision needs to be based in fact and accepted principles, which have most often been defined by a court decision and further refined and affirmed by several others. If you refuse to investigate beyond merely finding the discrepancies, you've served no one and have done worse than if you had simply refused the job to begin with.
When you refuse to investigate beyond finding the discrepancies, make an arbitrary decision to hold plat geometry (or an arbitrary decision to hold monuments as found, occupation, or any other basis) without further investigation, you are making an assumption about intent. You have assumed, that is made an uniformed and unprofessional decision that intent is most reliably expressed by whatever you have chosen to control the boundary locations.
>The Superior Court is responsible in determining the intent and correct the boundary lines.
If someone challenges your findings and files suit, it will become the Court's responsibility. If you fail in your responsibility to fully investigate and make boundary decisions upon a full set of available facts (as opposed to only those you chose to look for) and base your boundary decisions on sound principles of boundary law as shown us by the courts, and if you failed in your professional responsibility to offer to facilitate corrective actions that the landowners themselves could have exercised, then yes, the adults in the black robes will have to pick up the slack that the adolescent in the workboots neglected to do.
Like I tell my kids, if your going to do the job poorly and only halfway, don't do it at all because then I'll have to get someone more responsible to completely redo it or just do it myself. That causes me more work than had I just found a more responsible person or had just done it myself to begin with. It's very frustrating for someone who paid for a certain level of service and got a poor teenager's effort in return.
"not my responsibility?"
Really???
Not My Responsibility!!! (???)
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Not My Responsibility!!! (???)
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