Just a hint
Thanks line bender,
In order to understand this ruling, one really needs to see the survey plats and the field notes of the subdivision of the section.
Read the field notes and you will immediately understand what I am posting about!!
Keith
Just a hint
And my wife is "suggesting" that I get off this iPad and start packing so we can hit the road?
Today's highlight is the Spruce Goose!!
Have fun.
Keith
Just a hint
So if you have a Section in rough country often those were broken up or reconfigured by metes and bounds descriptions no too long after patent. They did this to make the Section more practical to occupy and use. What else happens in rough country? The County Surveyor in the 19th century often used less than perfect methods or they used the east to west and back method (dividing it up equally) which was commonly accepted practice.
So a crazy patchwork quilt of metes and bounds descriptions results, some tied to original government corners but a lot of them tied to 1/16th corners and the center quarter on the interior. If a Surveyor comes along and insists on putting the center or one of the 1/16th corners exactly in its Chapter 3 position then we wind up with multiple Deeds moved off of the occupation. So the Surveyor says, hey not my problem, obviously you have "legal" 1/16th corners and the "legal" center quarter corner and you have unwritten rights to all of these "property lines and corners" out here. You need a Judge to figure that out.
The Judge needs you to point out where the 1/16th corner or center quarter corner is based on the best available evidence and if an existing physical monument, although not perfect, allows the Deeds to substantially fit the existing occupation that is pretty strong evidence for the monument.
This is what happened in Oregon's Dykes case. They had two experts, one that used Chapter 3 of the Manual and one that essentially used common sense by finding and using the imperfect center quarter monument. The Appellate Court ran with the common sense solution because it solved a bunch of problems. They didn't have to leave the Deeds to try to use some non-existent doctrine to force fit the occupation lines. The Deed starts at the center quarter, where is that? It's right here at this post. Great, now we go south (happens be on or near a fenceline) to a road, glory be, the pavement is in the road right-of-way (not shifted off into a private lot because we couldn't get past Chapter 3).
This is why established monuments control.
Keith
You're probably packing. I know that sometimes things get lost in the posting translation. My apologies (again) if I was a bit offensive.
As to the issue at hand, I have heard that, for instance, through a boundary-line-agreement, a corner can become the boundary corner between two owners per agreement. That means that if the C-1/4 corner is ambiguous or unknown and two parties for whom that monument helps establish the line between them....their agreed-to corner becomes the C-1/4 for them. It may not be the C-1/4 for others in the section and it may not be the "legal" center of section as far as the intersection of the two quarter-section lines.
I am sure that there are other instances where, for instance, a court-order corner monument might produce a property corner vs. the "legal" plsc corner.
Just a hint
Here's the quotes from Dykes v. Arnold wherein they used and cited "published opinion of some real boundary/legal experts":
"...one of the foremost treatises on surveying, Clark on Surveying. That authority identifies precisely the problem that confronts us in this case — i.e, the problem of the center of a section, as it would be located by a correct survey, not conforming to the lines of occupation. Among the chief reasons for that happening, Clark explains, is the tendency of surveyors to "stub in" the center of the section using only one or two of the quartersection corners or the mid-point of the north-south or east-west section center line. Clark on Surveying § 10.22 at 276. Clark then lists, in apparent order of preference, the generally endorsed solutions. The first is to deem the center of the section an original corner if it was first set by a county surveyor.18Id. The second is to defer to longstanding local reliance on boundaries as reflected by the lines of occupation. Id. ("If the interested landowners have always relied on the location of the center of the section, albeit incorrectly located, it becomes the center of the section and no one should tamper with it."). The final resolution, which apparently applies if no county survey has located the center and local reliance has not done so de facto, is to locate the center "in accordance with the federal statute" and to treat the ensuing disputes as ones of property rights, not survey law. Id.
Under the facts of this case, then, Clark would advocate treating Derrick's center as an original corner and giving it the same dignity as a corner originally set by the federal government — that is, the same controlling status as if it had been set, however erroneously, in Mercer's survey. That approach was taken by the court in Adams v. Hoover,196 Mich.App. 646, 493 N.W.2d 280 (1992), which is factually on point and highly persuasive in its reasoning."
Isn't it interesting that Robillard is a contributing author of both the Brown book and the Clark book?
Keith
The Court can't just rule something is a "property corner" contrary to the Deeds. They have to follow rules which are public information. The only way they can move off of the Deed is to have another Deed (e.g. a boundary line adjustment) or use Adverse Possession which usually fails here due to the tax issue.
This is why it is best to recognize the monument for what it is; an original monument without error. Then the problem becomes simple, everyone stays within the four corners of their Deed (required by Law), etc.
Of course there is the possibility of Acquiescence in the Monument or an Agreed Boundary in which case the Doctrines themselves state the Monument or Boundary is the legal point or boundary, not some other imaginary intersection point or line.
"[6] The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. (Mello v. Weaver, 36 Cal.2d 456, 459 [224 P.2d 691]; Hannah v. Pogue, 23 Cal.2d 849, 856-857 [147 P.2d 572]; Martin v. Lopes, 28 Cal.2d 618, 622-627 [170 P.2d 881]; Young v. Blakeman, 153 Cal. 477, 481-483 [95 P. 888]; see also 4 Cal.L.Rev. 179; 14 Cal.L.Rev. 138; 56 Mich.L.Rev. 487 et seq.) The doctrine requires that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position. [7] It is not required that the true location be absolutely [51 Cal.2d 708] unascertainable (Price v. De Reyes, 161 Cal. 484, 489 [119 P. 893]); that an accurate survey from the calls in the deed is possible (Silva v. Azevedo, 178 Cal. 495, 498 [173 P. 929]), or that the uncertainty should appear from the deeds (Mello v. Weaver, supra, 36 Cal.2d 456, 460). The line may be founded on a mistake. (Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651].)"
This is critical:
"Under the foregoing circumstances the line so agreed upon became in legal effect the true line." and "he 'holds the excess by the same tenure that he holds the main body of his lands.'"
-from Ernie v. Trinity Lutheran Church , 51 Cal.2d 702
Keith
> As to the issue at hand, I have heard that, for instance, through a boundary-line-agreement, a corner can become the boundary corner between two owners per agreement. That means that if the C-1/4 corner is ambiguous or unknown and two parties for whom that monument helps establish the line between them....their agreed-to corner becomes the C-1/4 for them. It may not be the C-1/4 for others in the section and it may not be the "legal" center of section as far as the intersection of the two quarter-section lines.
>
> I am sure that there are other instances where, for instance, a court-order corner monument might produce a property corner vs. the "legal" plsc corner.
A monument won't become the C 1/4 (or any other corner designated by a standard term) simply by agreement of the landowners. It must be show to have been set by good faith effort for the purpose of marking that designated corner.
In Dykes, the corner was not set by the method commonly prescribed by the GLO, but it was set by a method which was standard in that region at that time, and did represent the result of a good faith effort by an authorized person to properly establish the C 1/4. That's what gave it it's validity as the C 1/4 as opposed to merely a locally recognized property corner separate from the legal C 1/4.
My understanding is right in line with Dave's. Recognizing a monument as marking a point other than the corner designated in the conveyance (i.e. the aliquot corner) and nevertheless calling that corner the "property corner" requires the recognition that some unwritten transfer has occurred.
As (rightfully) nervous as many surveyors are about rendering opinions on the status of unwritten transfers, it is incongruous (and just a little amusing) that many of the same surveyors would also adhere to the practice of indicating a "property corner" and the aliquot corner to be different locations when the conveyance calls for the aliquot corner. In trying to cover their bases and limit their liability, they are stepping into a big stinky pile of liability by in effect adjudicating the validity of an unwritten transfer on their map and by their survey.
I don't have that version of BCLP at hand here (I'll look it up at home over the weekend) and it's been a long time since I've looked that one up in my 2nd Ed., so I don't know if the authors are suggesting is that anytime the existing mon doesn't fit the math, that it represents some other point which may be the property corner, or if they provide context which calls for further analysis of any such monument.
If the former, then, IMO, it's a mistaken opinion. If the latter, then I agree with them. The surveyor must have the historical evidence of the establishment of that point and/or have a very strong case to recognize it by common report. It is by the evidence of its establishment and recognition that a surveyor determines whether or not a monument represents the corner designated in the conveyances. The math is, as in almost all boundary determinations, merely secondary and informative of location relative to nearby corners, and only very rarely conclusive as to whether an existing monument is at the true corner.
Evan
As usual your response is more rigorous than mine :-). It is true a BLA between two property owners does not necessarily fix the corner for others so in that case there could be two 1/16th corners, for example. One for one boundary settled by a BLA and another for other Deeds that used it. It's a little cleaner where some respected Surveyor set the aliquot corners in the Section then everyone else followed along with the general plan.
I am working on a Survey in the Town of Weott. Several aliquot corners around the Town were set by J.N. Lentell in 1921 using Chapter 3 procedures. Those corners are not perfect yet there are dozens of Surveys that use them as the aliquot corners; no one is showing dual sets of lines and corners out there.
There is even a line monument set by Lentell on a Deed line which is on the line between two 1/16th corners which measures off line a little and yet no one is showing it off. It is being held by the Surveys I find in the Town.
This is as it should be.
Evan and Dave
I think I agree with you even if you were disagreeing with me. I am not sure if you are telling me I was wrong or if you were just expanding on the terms and greater detail.
I did say that based on a "boundary line agreement" and when the corner is ambiguous or unknown. In a boundary line agreement there is already a deed or description. If that description calls to an aliquot corner and that corner is an unknown or ambiguous element to where that corner monument lies, then they can agree in terms of a boundary line agreement. (p.s. I don't necessarily like the abbreviation bla as I don't know what the "a" stands for) Their deed description won't necessarily change, and the call will still be to the C/4 corner; they are just agreeing to where that corner is in the circumstance of their common boundary. Hence my line that the C-1/4 corner is that location that they agree on for their deeds (which call to that common corner).
What I am talking about is not a "boundary line adjustment" which changes a boundary to a new location. the distinction between an adjustment, and an agreement, is one moves or "adjusts" the boundary line, and the other "agrees" to the boundary line that already exists in writing.
Can courts determine where a property line is? I suggest that they can and do. But lets keep in mind that when it goes to court, it is already most likely ambiguous as to exactly where the line is.
I am saying that the term "legal center of section" is, by some definitions the true intersection of quarter corners. that is the factual original center. The second is a center of section based on other circumstances. (also I am not talking about unwritten rights per se, nor acquiescence or adverse posession and I have learned a lot about that but am no expert.)
You both are obviously more knowledgeable in this matter than I am, and I apologize if I am reiterating my point that you already understood.
Evan and Dave
Yes, you are right, an adjustment moves the boundary so we are talking about a different boundary.
The Court can determine the location of a boundary line but it has to use the existing law to do so. Generally the law supports the legal fiction that the imperfect corner monument is the perfect corner monument so that we don't have parol transfers of strips and gores of title.
The Courts seem to believe that a point not established physically is uncertain. For example, if I own the southwest quarter of the southwest quarter then three of my corners a 1/16th corners. If they have not yet been monumented then the Chapter 3 location controls but their exact location is uncertain. As soon as 1/16th corner monuments are set and the adjoining property owners implement those as the boundary then they are acting on the uncertain to make it certain and they become the legal corners. That is my understanding of legal thinking, anyway.
from Mello v. Weaver , 36 Cal.2d 456
"[1a] Since there is no evidence that the plaintiffs paid the taxes on any land except that called for by their record title, it must be concluded that there could be no support for a judgment based on adverse possession (Code Civ. Proc., § 325), unless the evidence supports the judgment which establishes the fence and canal as the boundary between the lands of the parties."
and
"It is of no consequence on this record that 30 years later the agreed line is shown to be different from a surveyed line; for, as said in Young v. Blakeman, supra, 153 Cal. 477, at 481, to permit the boundary to be changed by every subsequent measurement would produce an intolerable condition of uncertainty and instability in the title to lands."
Mello involves a Fractional SW quarter of Section 6. The GLO east half is standard and the west half is larger. Apparently Weaver and his mother assumed an even split of the southwest quarter contrary to Chapter 3 and added a 3 acre parcel on the west to cover the ground between the two nominal 40s. Later Weaver sold the east parcel to Mello and acquired his Mother's parcel on the west. Then a Surveyor properly split the quarter per Chapter 3 and Weaver suddenly decided he owned more than he meant to keep. Ultimately the Court looked at the circumstances with logic and common sense and made the physical evidence the boundary.
Evan and Dave
An agreement between two adjacent landowners is conclusive upon those two owners, but if there are other properties, the boundaries of which are dependent upon the location of the C 1/4, the agreement is not binding beyond the parties who entered into the agreement.
If the boundaries of those other properties had been established prior to the agreement and used a location other than that agreed to by the adjacent landowners, then the agreed C 1/4 may not be the C 1/4, unless there is a history for it showing it to have come into being by a good faith attempt to establish it by someone with authority to do so.
If other properties outside of the agreement had not yet had lines established on the ground prior to the agreement, those establishing such lines would be wise to accept the agreed C 1/4 as the C 1/4 for the section.
To be the "legal" center of section, it is not necessary that the point have been marked precisely at the intersection of opposite 1/4 corners. I have yet to see a case where the court rejected a monumented C 1/4 which was set according to a standard which was in use in the region at the time it was set and there was no showing that the surveyor was negligent. Be aware that throughout much of the 1800s there was much regional confusion as to the proper method to establish the C 1/4. There were even versions of "official" directions which prescribed setting it at the midpoint between 2 opposite 1/4 corners, and were probably some other regionally recognized "official" methods prior to the GLO publishing it's 1st Manual.
At this point in time, anywhere in the PLSS, if you are the 1st to establish the C 1/4 on the ground, you would be wrong to use any method other than placing it at the intersection of lines between opposite 1/4 corners since all the alternate "official" methods have long since been weeded out of the system. (there might be an exception in MO - I don't know how their original instructions would affect a modern breakdown of a whole section).
But suppose you did establish the C 1/4 by the correct procedure, but your measurements were on the edge of acceptable for current practice. Would it make sense for another surveyor, following 10 or 20 years later with far more precise equipment to set another monument a few tenths, or even a foot or two from yours, declaring his new point to be the C 1/4 and yours, according to your filed map and thought by all affected landowners to be at the C 1/4, to no longer be at the C 1/4?
Nearly all surveyors will agree that the C 1/4 did has not moved, but there will be a lot of disagreement among us as to what is the C 1/4. As a whole, our profession is quite confused about that. The courts are not at all confused. Prior to it being marked, the corner exists and it has a definite location that simply has not yet been established on the ground. Once it has been established by appropriate method, its location has been made tangible and no amount of math or argument of it not being at the "true" intersection can change its location as originally established.
If the location could be redifined, how could any affected landowners ever take full possession of their land, lacking the confidence that their marked corners will continue to be their corners once another surveyor arrives on the scene? Method, not measurement is the important factor.
Also, as far as a local agreement as to what is the corner, there may be an official, documented agreement, or there may only be an implied agreement based upon occupation and use. Either way, whatever is found at the agreed corner must be evaluated on the full set of evidence, hopefully including a record of its establishment.
By the way, I don't think we're arguing, just clarifying our opinions.
Evan and Dave
I get it. Your clarification helped. Thank you.
Evan and Dave
from Mello v. Weaver , 36 Cal.2d 456
"[1a] Since there is no evidence that the plaintiffs paid the taxes on any land except that called for by their record title, it must be concluded that there could be no support for a judgment based on adverse possession (Code Civ. Proc., § 325), unless the evidence supports the judgment which establishes the fence and canal as the boundary between the lands of the parties."
From a different state and that state's view of taxes and adverse claims.
Case Number: 83-31
Decided: 06/20/1983
Supreme Court of Wyoming
"Nonpayment of taxes on adversely possessed land, while a consideration, does not in itself destroy an adverse possession claim. Rutar Farms and Livestock, Inc. v. Fuss, supra; Meyer v. Ellis, Wyo., 411 P.2d 338 (1966). Nonpayment of taxes by the claimant is usually the case where use to a fence line rather than deed line is the primary basis of the claim. As pointed out in Meyer our Wyoming statute does not require payment of taxes in order to establish adverse possession as do some states. All the other facts and circumstances in the case now before us override any question of taxes. There was no error in that regard."
Evan and Dave
> By the way, I don't think we're arguing, just clarifying our opinions.
I agree. I am understanding what you are saying much better.
My only earlier point is/was I can think of several scenarios where the c-1/4 is ambiguous. Maybe it was never set, and some of the exterior corners are even unknown. Maybe there are several "uncalled-for" monuments calling themselves the Center-of-Section. Maybe even there is no known origin of these monuments (no deeds or plats calling out the monument).
At that point, I could see the landowners saying screw that....lets just say this here tree is the corner and we will sign an agreement to the effect. I am saying that the "true" or "legal" center-of-section might be the first monument set that established the center; or maybe the center of opposing quarter-corners. Maybe even someone else's boundary calls are commencing from the "Center 1/4 corner" and his property corners commence from one of those markers in the ground....his boundary wouldn't necessarily move because the other two parties agreed on a tree. The tree is the center of section for the two parties (it is what their deed calls for and they agreed to make it the common corner by bl-agreement). The center of section monument that established the third owner may be that two-bit rebar that was established prior to setting his boundary.
Anyway, I made up a bunch of scenario, but in short, you have clarified your point well, and I do believe we are in agreement.
You and Dave are quite well-spoken. I appreciate real boundary discussions like this.
These kinds of threads are the ones that keep me coming back.
Tom
Just a hint
Brian,
I have heard several people deal with this in their own way, and with special terminology for the different corner monuments. I have heard the corner set by proper procedure at the intersection of corners as the 'legal center of section' and another corner that was perhaps stubbed out by methods other than those prescribed by the manual and accepted as the center as the "corner of common report". I would think that, as a surveyor, I would want to distinguish between the two, and recognize that the accepted corner for all these years is different than the intersection of lines. Point being that by definition, a corner using the PLSS nomenclature is implied that it uses the general rules to be established. ie: the stubbed corner is not "aliquotly" set taking all for quadrants into account to establish it at a theoretical "fractional" location.
Yes, Robbilard has quite the influence in some of the most noted survey books of later editions. Sometimes even disagreeing (at least in my opinion) of what some of the original author's points were.
Good post.
Evan and Dave
To summarize, from someone who is decidedly not well-spoken, if Bob and Billy Bob decide that their common corner, which is called out as the C1/4, is where they agree it to be, that really has no effect on me because I live half a mile away and don't even like them OR their banjos.
Don
Evan and Dave
My understanding is the tax requirement in California was put into the Statute by the railroad barons who were heavily influential in early California government and who owned large tracts of land in the form of railroad grants from the government.
Evan and Dave
I agree, Don. I've seen two quarter section corners 120' apart. One used in the Section to the north and one in the Section to the south. Several maps recognized reality and used the appropriate monument in their respective Section.
Generally speaking Court decisions only apply to the single litigated boundary. They don't order the whole section full of boundaries to move although they often recognize that an entire Section of boundaries are already recognizing the one corner used. The authority of the Court order is limited to the one boundary contested though.
Just a hint
Adam,
That is the problem, too many surveyors deal with it in their own way, using different terminology, and very little of it having to do with the actual law and the Manuals. This entire debate about the location of the C1/4 or any corner for that matter boils down to basic principles, the first being - is the survey you are performing a creating (original) survey or are you performing a resurvey/retracement in which you are required by law to follow in the footsteps of the creating/original surveyor. If you are the first into the section, I doubt anyone would arue that chapter 3 methods are the only appropriate and legal method to establish the interior 16th's and C1/4, but for some unknown and irrational reason many cannot wrap their minds around the concept of retracement/resurvey within a section, especially when their new modern measurements tell them the corner "should" be elsewhere than where it actually was previously established.
Brown also addresses the concepts of the two questions and the source of the answers to them: What is the C1/4? and Where is the C1/4? The former is a question of law, ie, see USC Title 43, Section 752, at the intersection of the lines drawn between the 1/4 corners. The second question is a question of fact, has it ever been established? Has the established position been recognized and accepted? Can you find the position where it was established? Is it existing, obliterated, or lost?
I find it easier to use the quarter corner as an comparative example. What is a quarter corner? (A question of law) at the mid-point and on line between the section corners. Where is the 1/4 corner? (a question of fact) Where did the origianl/creating surveyor place it? Is it existing, obliterated, or lost? The laws of property boundary retracement are the same for a quarter corner, C1/4, C-E 16th corner, section corner, the NE corner of lot 3, Block 34, of Whereever Subdivision, or the SE corner of Aunt Mabel's 2 acre home site in Whatever townsite Vermont.
Just a hint
The Spruce Goose was awesome!
