Good article, but I am not sure that a high percentage of land surveyors would disagree with what Lucas said. I think most of us go by the fact that the only accurate map is the one drawn out there full scale on the ground, and all of this stuff on paper is an attempt to portray it on a medium that will enable us to manage the data.
That said, out of an abundance of caution, I would recommend boundary agreements on 3 sides. Probably would be easy to get.
I would also get affidavit from Garfunkel, or I would put him under oath and get his statement. (in LA surveyors can put people under oath)
I don't think I'd let something this loosely surveyed go without thinking about a way to protect myself and the client. If someone comes along wanting to do an ALTA on this, I am sure I would be getting a phone call from the title company later down the road. Boundary agreement would have resolved it. And if someone's septic tank permit is denied because land is too small, they might get attorney who will argue anything (at my cost if not careful).
So: In theory, I agree with Lucas. In practice, my recommendation for boundary agreement would be written on this survey. I would also issue a report with it. I absolutley would not release a survey of this land without calling the discrepancies to client's attention very clearly in writing and making sure client knew what was going on. To release a surey without clarification as set out above would be bad practice in my opinion.
My Dissent With Jeff Lucas and Garfunkel Subdivision
The Wilson conversation with Mr. Garfunkel is interesting hearsay. But I have a problem because the Filed Map is the official record of Smith's Survey, those are his official footsteps. It appears that no original set corners can now be found. While one can agree that acquiesence exists to the fences there is a legal flaw in accepting that versus the record. Acquiessence requires a further step to ripen to title. At no time does Mr. Lucas state that adjoining tracts now have filed descriptions per that occupation. Assuming deeds reference the Filed Map or have bearings and distances per the Filed Map everytime a deed is rerecorded the possession clock is reset. Possession that is different than title is only passed under rather specific language, (tacking). Absent that, John Doe may possess to the fences for 21+ years, but on sale only passes the deed title.
As a surveyor I am more than willing to recognize possession with agreeing title, but I will not yield a clients claim to his title. Absent agreement from adjoining deeds, I must advise my client of the two sets of lines and what each means. If my clients wishes to avoid all the fuss and yield to whomever, whatever and wherever I will provide a revised description. But if he is adamant about his purchase I will proudly stake the filed map lines.
Painted blazes merely indicate a direction to the line (away from the blaze) not the line itself and lack authority because they are not called for on the filed map or on deeds.
Blazes do carry more weight in specific states for specific estates of land, but Mr. Lucas offers this as a uniform example.
Until a thorough and uniform effort is put forth by the 10 lot owners, the existing Filed Map remains a rebuttable record for all.
"Paul in PA"
Lawrence Paul Lopresti, PE, PLS
When you have state laws that specify that an occupation line, in place and unchallenged by any affected owner, for a specified length of time is the legal boundary, (like CA's ss 321 & ss 322 for deeded land), simply citing the appropriate statute as justification for correcting the record to preserve the occupation line is sufficient. But, you do need to have an agency relationship with the land owner before you can complete and record the necessary documentation.
Knowledge of the law is mandatory and ignorance of the law is no excuse.
Remember, the state laws are written all in the same language; if you can understand the platting laws, you can be required to know the rest of the laws that deal with land ownership. Lawyers do not know about statutes of repose or limitation because those laws refer to the existence of established physical evidence, something lawyers have no way to determine and, therefore no way to know when or if the law applies.
Richard Schaut
As I read this case it has little to do with occupation or acquiescence. If all the lots were vacant, and the facts were otherwise identical (Garfunkel living, say, across the road rather than within the subdivision), the red lines would still hold. The plat says the boundaries run to the "stobs" and the positions of the "stobs" were recovered. They accord with the red lines, these being "lines marked and surveyed" as per numerous court cases. The conflict with the record involves imprecision of measurements, not location.
If this was a job I had undertaken, I would actually dig down to find that hub. If, in doing so, I find 2 or 3 right where Mr. Garfunkel said they were, I would hold the perpetuated monuments' positions. I would obviously attempt to acquire affidavits from the adjacent landowners, if possible, witnessing the fact that the hub was replaced in situ with the respective fence corner post at the time of construction.
So, if I understand Mr. Lucas correctly, I agree with him.
My problem comes in trying to describe the property. Obviously, if one were to describe the tract as "Lot 9, per plat of record in County Clerk's File #.... etc., as one (in my hypothetical scenario of this hypothetical scenario) would normally do, a huge problem erupts. I hate to do so, but I would prepare a metes and bounds description of Lot 9 and make sure I that in several places I call the tract, "Lot 9, as originally surveyed by Sam Smith in 1970".
I would also try to arrange a meeting with the owners of Lots 4 through 10 and show them the results of my surveying in a color drawing 24" by 36", (the bigger, the better), explain ALL the problems they will have selling their land in the future and then propose to have me prepare a new description of their lands so as to avoid all the fuss.
just my $0.02 worth.
What I have been waiting for some to point out is how similar this is to working in PLSSia. Each lot is similar to our quarter sections. I work in an area full of such misshaped quarter sections.
Cee Cee ?
Re read it, no original stobs have been found. Garfunkel made a statement about his lot For the survey in question,
I repeat, no original interior markers have been found.
Paul in PA
My Dissent With Jeff Lucas and Garfunkel Subdivision
Ok, I'm not an LS, but I have opinions that disagree with Paul, and hope others will agree or disagree on these points.
Hearsay? It sounds to me like direct testimony "I, Garfunklel, saw the surveyor pace and pound in stobs, and in some places saw fence posts replace those stobs."
Also, even hearsay may be allowed as evidence in some instances for boundary determination and civil cases.
>"the Filed Map is the official record of Smith's Survey, those are his official footsteps"
The whole point of the Lucas article, which many posters have agreed with, is that what is on the ground constitutes his official footsteps, to the extent the evidence or its perpetuation can be found. The paper is just a "treasure map" to help you find the evidence on the ground.
While no original corner monuments can be found, we have evidence that the positions were perpetuated. That evidence may not be available in many cases but it is in the one under discussion.
>"acquiesence exists"
The acquiescence rules don't even need to be invoked here, but if they were it only supports the same answer. Acquiescence does not require a filed description of occupation to occur; that merely documents what has already occurred.
>"everytime a deed is rerecorded the possession clock is reset"
You are mixing adverse possession, "who owns a parcel" with boundary, "where does the parcel begin and end". Different rules. And even for AP, in many states possession with chain of title is adequate, and does not require a single owner to have the possession for the statutory time.
Richard Schaut ?
Lucas has made no statement that anyone has yet corrected the record, so your argument is not supported by the facts in this case.
Paul in PA
There is no difference in kind between this case and most resurveys, only a difference in degree. At what point do you say the description needs to be corrected? 2.5 ft, 0.25 ft, 0.04 ft? Doesn't "record" and "measured" plus an explanation take care of it?
So here you have the original landowner/subdivider telling you how he worked with the original surveyor to mark the lots and also how each subsequent landowner except the last was walked the boundaries at purchase (beat the bounds). So you have the evidence that the current occupation is a result of the original subdivision and representation of the seller. The only thing at odds is the math of the plat and it seems that lots of surveyors want to throw the original lines to the dogs and resurvey the plat. That's not a retracement but a fix it to the math approach that blows the law to heck.
Geeezz, no wonder the profession is going to the dogs. Seems a great majority don't have a clue about boundaries and how the landowners establish them and even less respect for the law. It's a sad day for landowners when the surveyor shows up to correct all the lines to the record. The record is like god, must be perfect its on paper. One of these days the earth is going to go BOINK, form a perfect square, just like the record, and from then on everything will be just peachy! The record will have corrected the reality, the common law will have finally been put aside and surveyors liability will have vanished for messing with peoples lives at the alter of the record. It's just so much easier to deal with math and paper than the folks who live on and occupy the land.
The corners are not lost corners. There is parole evidence and physical evidence for their locations. Also, don't forget the old saying "one of the biggest works of fiction is a legal description that closes". Can't remember who said it, but it's still valid today.
"So here you have the original landowner/subdivider telling you how he worked with the original surveyor to mark the lots and also how each subsequent landowner except the last was walked the boundaries at purchase (beat the bounds). So you have the evidence that the current occupation is a result of the original subdivision and representation of the seller. The only thing at odds is the math of the plat and it seems that lots of surveyors want to throw the original lines to the dogs and resurvey the plat. That's not a retracement but a fix it to the math approach that blows the law to heck."
Amen
As I have posted on the other site, the Lucas Garfunkel Subdivision example is very close to reality.
Why do some of you insist on showing lines on your survey plats, that do not exist??
Keith
Paul:
Re-read my post! I said "the positions of the "stobs" were recovered."
Cee Cee ?
Positions of fence posts were recovered.
You cannot extrapolate from Garfunkel's statement that all fenceposts were placed at the stob positions.
In order to say the positions of the stobs were recovered one would have needed to excavate and found subterrainean discoloration indicating the former presence of stobs.
Paul in PA
Paul:
Why would we have to reject Garfunkel's testimony? The only real question in this case is "where were the 'stobs' originally set?" -- a question of fact. I would agree that Garfunkel's statement alone might not be conclusive. But taken along with the blazed lines, occupation, and fence lines, it overwhelmingly supports a professional opinion that the "stobs" were in the red line positions and that the record measurements are woefully imprecise. And a professional opinion is all we can offer.
Garfunkel's Testimony As To Stobs ?
Applies to Garfunkel's lot only. YOU cannot say it applies to all lots.
Paul in PA
My Dissent With PA's Post
I have a number of grave concerns about PA's post.
> The Wilson conversation with Mr. Garfunkel is interesting hearsay.
No. The surveyor's conversation with Mr. Garfunkel is not "hearsay." Mr. Garfunkel has direct testimony of the event. He was there; he saw it happen; he participated in each sale. Direct testimony of an event is not hearsay, it is evidence. Garfunkel's testimony is precisely the type of evidence the surveyor must gather to retrace the footsteps of the original surveyor.
>But I have a problem because the Filed Map is the official record of Smith's Survey, those are his official footsteps.
No. The filed map is a piece of paper, not official footsteps. The footsteps are found on the ground based upon physical evidence recovered from the markings left during the original survey. The filed map is record evidence. Record evidence is just that; evidence. The purpose of the record evidence is to identify the property being conveyed. That doesn't mean that the identification must be made with 100% precision in all dimensions reflected on the map. What it means is that Parcel C can be uniquely identified from Parcels B and D. Or, that Lot 6 can be uniquely identified from Lots 5 and 7. The legal description only has to identify "which" parcel of land is the subject of the conveyance. It doesn't have to identify every aspect of the boundaries of each parcel, nor does it have to provide every piece of evidence necessary to locate the boundaries.
>It appears that no original set corners can now be found.
That is given. However, the testimony directly explains why we can't find the stobs. They were removed and perpetuated by the fence corner posts. The testimony provides a direct pedigree from the original stob monuments to the current monuments which we can find. Any direct descendant of the original monument is evidence of the original and is treated as taking the place of the original. The physical evidence which remains, when coupled with Garfunkel's testimony, provides direct evidence to the original monument. The original monuments, were obliterated, and are now recovered. They are to be treated as original monuments. They are "found."
>While one can agree that acquiesence [sic] exists to the fences there is a legal flaw in accepting that versus the record. Acquiessence [sic] requires a further step to ripen to title.
Acquiescence is not a "title" doctrine and it has no affect on "title" to land. Acquiescence is a doctrine which establishes the location of the boundary over a given length of time. It doesn't create a new boundary (the red lines). It establishes the location of the black lines on the ground. (I'm not sure what is meant by "a further step" being required). The doctrine of "acquiescence" requires four things: (1) an existing boundary with physical properties (fence, tree row, buildings, etc.; (2) between adjoining landowners; (3) mutually recognized and acquiesced in as marking the boundary; and (4)for a long period of time (varies by jurisdiction).
>At no time does Mr. Lucas state that adjoining tracts now have filed descriptions per that occupation.
Having a description that matches the occupation has nothing to do with the location where the boundaries have been established. The description isn't some all-powerful, all-knowing guide to the boundary location. It is merely a document that provides record evidence that identifies which parcel is being surveyed or conveyed. The deed which the description is part of is the record of conveyance of the ownership of the identified parcel.
>Assuming deeds reference the Filed Map or have bearings and distances per the Filed Map everytime a deed is rerecorded the possession clock is reset.
No. The clock is not "reset" at every conveyance. Passage of title of a parcel passes all rights, title and interests of the parcel. Whatever title is held by the grantor is passed. The passage of title provides a continual link to the past with no break in the chain. That principle provides the basis for statutes such as the Record Marketable Title Acts which are available in most states as well as the adverse possession statutes which are designed to resolve matters of title when the chain is somehow broken. A break in the chain of title is resolved by continued possession
>Possession that is different than title is only passed under rather specific language, (tacking). Absent that, John Doe may possess to the fences for 21+ years, but on sale only passes the deed title.
Tacking is a continuation of possession which has nothing to do with any "specific language" contained in the document. Possession is a physical act outside of the document. John Doe's conveyance of the title to his property is a conveyance of all rights, title and interest held by John Doe, subject only to existing rights or interests held by others. If John Doe has gained a right of possession, then John Doe passes his right of possession with the passage of title.
> As a surveyor I am more than willing to recognize possession with agreeing title, but I will not yield a clients claim to his title. Absent agreement from adjoining deeds, I must advise my client of the two sets of lines and what each means.
The common law principles which establish the location of boundaries DO NOT create a "second set of lines." Only a conveyance between landowners can "create" a boundary. Every boundary ever "created" must eventually be "established" on the ground by some mechanism provided under common law. There aren't "two" lines. There is "one" line that has been created; and, there is "one" line location established on the ground by the actions (agreement) of the parties. The parties agreed to those lines when they (1) ran them out on the ground and physically marked them, and (2) perpetuated the knowledge and acceptance of those lines as marked by informing each successive owner of their purpose. There aren't "two" lines to inform anyone about. There is "one" line created and "one" line to retrace. The only thing to inform the owner about is the record vs. measured location of the "one" boundary.
>If my clients wishes to avoid all the fuss and yield to whomever, whatever and wherever I will provide a revised description. But if he is adamant about his purchase I will proudly stake the filed map lines.
It sounds to me as if the surveyor has lost sight of his sole duty and function here. The surveyor has a responsibility to both the client and to the neighbor. That responsibility requires that the surveyor locate the "boundary" which divides the client from his neighbor. That's not some willy-nilly process of picking whichever location suits the desires of the client. And, it's not a matter of selecting some line at random and re-writing the description. In fact, I'd really like to see what provision of law allows a surveyor or a landowner to unilaterally re-write a description for property that has already been described in the record. The provision isn't there. It's against the law.
> Painted blazes merely indicate a direction to the line (away from the blaze) not the line itself and lack authority because they are not called for on the filed map or on deeds.
I'll agree with that statement, with one caveat, however. If latent ambiguity is discovered in the record (as is found in this case), the terms of the writing are opened to the extrinsic evidence which may be relied upon to explain the ambiguity. The extrinsic evidence can be used despite the fact that it is not "called for on the filed map or on deeds."
> Blazes do carry more weight in specific states for specific estates of land, but Mr. Lucas offers this as a uniform example.
Monuments control over course and distance in all of the states for one reason or another. Being called for in the record isn't the only reason monuments control. If it were, we're wasting our time every time we set a monument that's not called for. That's a lot of worthless monuments under that interpretation.
> Until a thorough and uniform effort is put forth by the 10 lot owners, the existing Filed Map remains a rebuttable record for all.
The filed map will always be a "rebuttable record" despite the efforts of the original scrivener, the original developer, the original surveyor, or all 10 of the lot owners. It doesn't matter how many times you attempt to "fix" the map, there will always be some degree of error or uncertainty. 50 years after the attempt is made, the uncertainty will return as the evidence will not remain undisturbed forever.
JBS
With the "facts" as presented in the article, I agree that the purchaser of Lot 9 is stuck with the boundaries as originally staked and relied upon by the rest of the lot owners. Garfunkel and Smith were intentionally sloppy in staking the lots, they didn't intend to be precise and fail. Wilson running into Garfunkel to verify that the fences were placed on the lines and corners originally marked and represented to the buyers kind of seals the deal.
I think a more realistic situation is one where Wilson locates the fences, there's nobody around to tell him why they are such a mess and he has no reason to assume that Smith didn't try to stake out the lots much closer to the platted dimensions. Reliance and bona fide rights would probably still result in the same conclusion but for a different reason than holding original monuments.
Then, how about a situation where Wilson never meets Garfunkel to hear the story of how the lots were laid out, Lots 9 & 10 are both undeveloped and Wilson finds the stob at the back corner between them buried in a foot of dirt with no reliance since it was set. And while we're in hypothetical-land, the lines aren't blazed. Couldn't 169' on Lot 10 and 135' on Lot 9 that are mapped at 150' possibly be considered a gross blunder?
I started a thread about a situation like that on the CLSA Forum a couple of months ago and it's still being discussed today. There have been 12,678 views and 372 replies, still with no consensus. Surprise, surprise.
Garfunkel's Testimony As To Stobs ?
Garfunkel wasn't just a lot owner. He was the developer and served as the surveyor's assistant. He followed the surveyor around helping put in the corners for the whole subdivision. That it was the whole subdivision should be stated more clearly if Garfunkel is deposed.
