More experienced surveyors input please

Fast forward to 1942: piece to the south has a survey that encroaches onto the 14 acre first outsale of 1875, as well as the adjoining property owner to the east.
Question:
How did you reach this conclusion?
1990: adjoining owners on the east subdivide and go to the pipes set by the surveyor in 1942.
Reliance
No occupation exists along any of the property lines.
The pipes exist.

If I put the line where is was supposed to be then that will leave a gap between the subdivision
A wise old surveyor once said surveyors create gaps

(only 2 large lots, currently owned by another surveyor) and the "true" line.
Have you discussed this with the surveyor-owner? It's hard to imagine those pipe were not recognized as the line by the surveyor-owner. "true" always scares me. It usually is a word used to add credibility to an unmarked line that no one has ever recognized.

Hey Matt,
That sounds like a good one. I can't quite follow along with the deeds, but it occurs to me that our job is to offer an opinion as to where the line where it is "supposed to be" to the best of our ability. Any gaps or overlaps are not your issue to "fix", only to be revealed. Kind of like an X-ray, the radiologist doesn't necessarily cure the lung cancer he reveals.
Good luck!

> I am in the middle of a boundary survey that I need some input on.
>
> Here is the scenario:
>
> 1843: 163 Ac. parcel transfers from father to son.
>
> 1863: 163 Ac. parcel sells at an estate auction
>
> 1875: new owner sells off 1 parcel of 14 acres
>
> sometime after new owner sells adjoining piece to the south. (cant find deed, my guess is it was unrecorded)
>
> 1878: piece to the south sells at sherrif sale (this description is has no calls just adjoining owners "bounded on the north by so and so, east by so and so ect.")
>
> Fast forward to 1942: piece to the south has a survey that encroaches onto the 14 acre first outsale of 1875, as well as the adjoining property owner to the east.
>
> 1990: adjoining owners on the east subdivide and go to the pipes set by the surveyor in 1942. No occupation exists along any of the property lines. All heavily wooded property.
>
> I have done enough deed research to know what happened. My question is do I hold with the adjoining subdivision to the east and the 1942 survey or put the line where is was supposed to be? If I put the line where is was supposed to be then that will leave a gap between the subdivision (only 2 large lots, currently owned by another surveyor) and the "true" line.
>
> I know it is a bit confusing, but I would appreciate any input on this.
>
> Thank you in advance
>
> Matt

My first question is how do you know the 1942 survey encroached on any parcels? Did the 1942 surveyor ignore obvious physical evidence? If so why then did the 1990 subdivision hold to the 1942 pipes?

My advice is, if you haven't already done so, is to take each deed by the four corners and apply the priority of calls, starting with senior rights. And remember, a call for an adjoiner is a call for a legal monument, and typically holds above distance and bearing calls. For example, the bounds description from 1878, while difficult to measure, will close perfectly. So looking at it from that perspective, is there even a gap? My gut tells me there is not.

Punt, dammit, punt!!!!!!!!

Oops, sorry. I try to reserve that command for Sunday afternoons between September and February.

Seriously, you have an excellent discussion subject. How does anyone today know what was in the minds of the buyers/sellers/subdividers at various times in the past?

You say the 1942 survey encroaches onto two adjoining tracts. Please explain how your theory must differ from that of the surveyor in 1942.

>remember, a call for an adjoiner is a call for a legal monument, and typically holds above distance and bearing calls. For example, the bounds description from 1878, while difficult to measure, will close perfectly. So looking at it from that perspective, is there even a gap? My gut tells me there is not.

I agree with Newton.

> Any gaps or overlaps are not your issue to "fix", only to be revealed.

Although many may agree with that, I disagree a bit. There is but one boundary and I Imagine the client has hired the surveyor to determine it. YES, in many cases the ultimate determination of this one common boundary may require the surveyor to change hats multiple times. Researcher, mediator, Surveyor, quasi interpreter of prior adjudicated case law and legal interpreter of state law / boundary law, and the hardest may be business man and teacher of thy lay person. Work with your client to assist them with the determination of their boundary this may in most cases change the scope of the original contract.

As with any boundary survey,...... the many intricacies involved create a very personal, unique case, that is open to interpretation of the various controlling elements. Without knowing and evaluating each and everyone of these elements, IE surveys, deeds of record, deeds not in the record, physical evidence, PAROL evidence, it is nearly impossible to offer a conclusion with any merit. Question, without leading the owners to a conclusion, where do they feel their boundaries are on the ground?

Wrong JB.

What you are saying is "I am the licensed land surveyor. I am who you go to when you need to find the extent of your physical domain. I am the legally recognized authority on determining property bounary lines, to the extent that I am granted an exclusive franchise to do so by the state... unless of course it's kind of a tough one, then I run away and hide and send work that should be mine to other professionals such as lawyers, who probably know less about boundary law than your average surveyor."

Yes, I'm laying it on pretty thick, but do you not see the point of what I'm saying?

You are tasked with showing them their property boundary lines. If you show them two possible lines, then you have not fullfilled the task that they came to you for. You have failed in your primary, most basic function.

By the way, as to "...gaps and overlaps are not your issue to fix...", have you never heard of senior rights?

Stephen

> Hey Matt,
> That sounds like a good one. I can't quite follow along with the deeds, but it occurs to me that our job is to offer an opinion as to where the line where it is "supposed to be" to the best of our ability. Any gaps or overlaps are not your issue to "fix", only to be revealed. Kind of like an X-ray, the radiologist doesn't necessarily cure the lung cancer he reveals.
> Good luck!

I would very much disagree with JB's summary of the surveyor's duty in this example. The duty of the RETRACING surveyor is to retrace the boundary where it is, never where it is "supposed to be." If you were the original surveyor, you have a duty to place the line where the owners intend to put it (where it "should be"). Now that it's been done, the retracing surveyor's duty is to determine the position of the boundary AS ESTABLISHED on the ground.

We are talking about a boundary line which has existed for over 136 years (or longer), has been surveyed and marked for over 60 years, and has been accepted and relied upon by an adjoining subdivision for 22 years.

Retrace the boundaries, recover the record, physical and testimonial evidence which will give you an accurate set of facts, then apply the proper rule of law which will tell you where the boundary is. I'd wager that you'll find several rules of law which will prove the boundary on the 1942 survey line.

Forget the "gap." The only way for there to be a gap is if the owners in the distant past INTENDED to create a second boundary line (the one where you say it "should be")and to retain ownership of a strip of land next to one of the outside boundaries.

Like LineBender said, "A wise old surveyor once said surveyors create gaps." Landowners certainly don't.

JBS

>
> sometime after new owner sells adjoining piece to the south. (cant find deed, my guess is it was unrecorded)
>
> 1878: piece to the south sells at sherrif sale (this description is has no calls just adjoining owners "bounded on the north by so and so, east by so and so ect.")
>

Kind of hard to talk about gaps and overlaps if there is no root to the title... you need to find what ever it was that created the original lot that triggered taxation... not that strange that a sheriff's deed would be vague, speaks to the land value at the time...

Don't know how things work in Ky but in my world color of title is paramount.

a sketch would help 😉

Have you found the corners of the original 163 acre parcel? Have you found the corners of the 14 acre parcel?

If so, then hold them. Subsequent purchases can't alter them. You state that there is no occupation along any of the property lines. Then there is no possibility of acquiescense. Hold the original lines. You have no obligation to follow a retracing surveyor, only the original one. If the 1942 southern parcel surveyor encroached across the south line of the 14 acre parcel, then it sounds like he was trying to hit the south line of the 14 acre parcel. This makes him a retracing surveyor, and not a very good one. Although usually it makes sense to follow retracing surveyors, this is an example of a time when not to follow them. If you are sure that the retracing surveyor's retracement was faulty, then don't hold to it.

Stephen

JB Stahl,

I think he is saying that the 1942 surveyor missed the original line and went over onto the eastern adjoiner. Then a 1990 surveyor held 1942's 2 irons for his subdivision.

The original 1843 line is still re-traceable if I am reading him right.

Stephen

I have done enough deed research to know what happened. My question is do I hold with the adjoining subdivision to the east and the 1942 survey or put the line where is was supposed to be? If I put the line where is was supposed to be then that will leave a gap between the subdivision (only 2 large lots, currently owned by another surveyor) and the "true" line.

Stephen,
I appreciate your comment. What I was replying to is the question posed by the author who seems to have determined the "true" line and is questioning if he should hold the "true" line in order to NOT reveal a gap. In my opinion, I would show the gap for resolution by the abutting property owners, rather than do all the work to resolve the "true" line and then make a seemingly arbitrary decision to move it to an adjoining subdivision to close the gap.
Unless the gap is 0.04';-)

> 1990: adjoining owners on the east subdivide and go to the pipes set by the surveyor in 1942. No occupation exists along any of the property lines. All heavily wooded property.

No occupation, all heavily wooded. What evidence do you have for the location of what you call the "true line"? Just math? The boundary line is where the 1942 surveyor set those pins most likely. What else is there? With nothing else, how could you even consider setting new pins 14 feet onto the subdivision? Because you measured 14 feet short of what the distance on the old deed says? I think not.

As others have mentioned, it sounds like you're worried about a 1942 measurement that is different than one from 1875 or before. That is not a valid basis for a question of where the line is "supposed to be".

If you found an old stone wall or fence or markers of some kind that are 14 feet different and agree better with the deeds from the 1800's, then that might be a different story. The line is "supposed to be" where it was originally marked on the ground.

The 1942 survey may well be the best available evidence of that location today. There may have been something there in 1942 that is hard or impossible to see today, such as an old dead plow furrow, a stone wall that has been removed, etc..

I wouldn't think the 1942 survey is an original survey, but I'm not familiar with local history in your area. In all of the places I have worked there would have been survey activity in the 1800's and some kind of farming or other activity relying on those lines and leaving some kind of physical evidence of the boundaries.

If the 1942 survey reported the same measurements as the 1800's descriptions, that's when I would really suspect there is a problem of some kind. That is usually clear evidence that someone is not performing a retracement survey, but rather taking the shortcut of performing an unauthorized original stakeout of part of the parcel based on one or two quickly found pieces of evidence and a deed plot. That method is quick, easy, economical, and unfortunately completely wrong. However, after all this time and the reliance of landowners and other surveyors, the 1942 survey lines may well be the ownership lines, even if they were initially placed in error.

If there really is a problem, based on physical evidence, you should try to get the parties to write down agreements instead of just putting out a map and sending them to their repective attorneys (although that's usually where they will go anyway).

Nice to do all the due diligence on title, but if the pipes that were set in 1942 have been relied on by the adjoining land owners for 60 years, I think you would be hard pressed to find a court that would expect them to be changed. Retracement is one concept (as Prof. Stahl said), reliance is another. Or as Jeff Lucas would say, "the law in not interested in ancient controversies....."

> 1942: piece to the south has a survey that encroaches onto the 14 acre first outsale of 1875,

60 years has well developed into reliance as I would imagine most courts would find.

Got a sketch ready yet? Post it.

I say, hold the pipes, pretend they are perfect. Finish your project. File a plat with a note, telling what you did, and why, ie that they were set in 1942, and had been there and relied on for a long time, and you chose in your professional capacity, to yield to them, due to their age.

Others will understand, and follow your footsteps.

The brief version of this, is simply to put "Yielded to pipe set by ___ in 1942", and pointing to them.

N

if it was me, boss?

most of my mentors/supervisors say leave the "e" word to the attorneys. that said, how big is the discrepancy? is it worth anything? and when you say you know what happened, what was it?

is there really no other evidence on either set of lines, either to the 1942 mons or to the older (presuming GLO) ? likewise is there any evidence along your fixit lines?

if a fella was to create a gap on paper that didn't exist there before, that'd be tantamount to walking thru the woods randomly whacking stuff with a machete until you hit that nest of hornets. and you will.

seems like what you need is a map showing the discrepancies, and If Everyone Is Happy So Far with the 1942 subdivision and pins, a draft of a revised legal with a revised description of the new/old/found/held monuments etc., and a good narrative explaining what you think happened in the past, so that no one has to figure this all out again in a few years. A good narrative is always defensible, much more so than just calling a line record or calc'd or true. [edit: Nate basically said all this and better]

put yourself in the shoes of each of the adjoiners. what seems fair? A few times I have seen hostile adjoiners let go of long time grudges because of good narrative and some gentle explanation about history and measurement. They finally had the story and everyone could move on.

the "e" word and a new paper gap parcel are grist for the papermill, and will take all the local green paper with them. maybe yours. what's that buzzing noise? easy with that machete, boss.

I see no problem offering more than one solution to the problem. I would rather do that than take the short-cut as indicated by JBS.

I will post sketches after I complete my traverse.
It looks like I will not get back to this job until late next week. I appreciate the input and hope to get more after I post my field findings.

Thank you

Matt