Dave Karoly, post: 371156, member: 94 wrote: Well no, presumptions are based in reality and experience.
Actually, isn't experience the origin of most presumptions? For example, the language of a deed is ordinarily presumed to be the grantor's, but in the case of a deed to a railroad company or other expert grantee, not. This didn't come out of thin air. Some judge didn't just make that up and later judges just read the head notes and repeated the idea in their own opinions. It arose from knowledge of how transactions were done, how the instruments were typically drafted.
Mark Mayer, post: 371169, member: 424 wrote: We have descriptions here that do not call for monuments or a plat, and a plat that does not show monuments. I'm not sure which side of this debate requires twisting.
I'm not the one twisting anything.
Maybe Justice Cooley can help us out:
"When a man has had a training in one of the exact sciences, where every problem within its purview is supposed to be susceptible of accurate solution, he is likely to be not a little impatient when he is told that, under some circumstances, he must recognize inaccuracies, and govern his action by facts which lead him away from the results which theoretically he ought to reach. Observation warrants us in saying that this remark may frequently be made of surveyors."
"If now the disputing parties call in a surveyor, it is not likely that any one summoned would doubt or question that his duty was to find, if possible, the place of the original stakes which determined the boundary line between the proprietors. However erroneous may have been the original survey, the monuments that were set must nevertheless govern, even though the effect be to make one half-quarter section ninety acres and the one adjoining seventy; for parties buy or are supposed to buy in reference to these monuments, and are entitled to what is within their lines and no more, be it more or less. "
" ... it is remarkable how many there are who mistake altogether the duty that now devolves upon the surveyor. It is by no means uncommon that we find men, whose theoretical education is thought to make them experts, who think that when the monuments are gone, the only thing to be done is to place new monuments where the old ones should have been, and would have been if placed correctly. This is a serious mistake. The problem is now the same that it was before: To ascertain by the best lights of which the case admits, where the original lines were."
"No statute can confer upon a county surveyor the power to establish corners, and thereby bind the parties concerned. Nor is this a question merely of conflict between State and Federal law; it is a question of property right. The original surveys must govern, and the laws under which they are made govern, because the land was bought in reference to them; and any legislation, whether State or Federal, that should have the effect to change these, would be inoperative, because of the disturbance to vested rights."
"In any case of disputed lines, unless the parties concerned settle the controversy by agreement, the determination of it is necessarily a judicial act, and it must proceed upon evidence, and give a full opportunity for a hearing. No arbitrary rules of survey or of evidence can be laid down whereby it can be adjudged."
" ... where it appears that they have accepted a particular line as their boundary, and all concerned have cultivated and claimed up to it. Public policy requires that such lines be not lightly disturbed, or disturbed at all after the lapse of any considerable time. The litigant, therefore, who in such a case pins his faith on the surveyor is likely to suffer for his reliance, and the surveyor himself to be mortified by a result that seems to impeach his judgment."
"He is to search for original monuments, or for the places where they were originally located, and allow these to control if he finds them, unless he has reason to believe that agreements of the parties, express or implied, have rendered them unimportant."
The Florida Appellate Court laid it out quite plainly, as have many other courts:
"Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he "traces the footsteps" of the "original surveyor" in locating existing boundaries. Correctly stated, this is a "retracement" survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a "following" or "tracing" surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it."
I'm really not seeing the problem here with Nate holding the original monuments.
Do you have any authoritative sources that contradict Cooley or the courts that say "yes, these rules apply EXCEPT when 'we have descriptions here that do not call for monuments or a plat, and a plat that does not show monuments', and in those instances, the original monuments set by the original surveyor, even though they were represented by the grantor to the grantee(s) during the conveyance(s), the plats, descriptions, and bearings and distances shall in every situation control over said monuments?" I've yet to find one and would be very surprised if one existed, for it did exist, it surely would have quoted by now.
Brian Allen, post: 371166, member: 1333 wrote: The only way the "standards of the day" would apply in any manner what-so-ever is in an administrative action holding the original surveyor to the standard of care. It would not in any manner change the locations of the boundaries as established on the ground.
Not really. A protracted plat is basically just a plan for laying out a subdivision and the standards of the day are a test of whether that was accomplished without gross error or not. It's not as if lots in a subdivision aren't a zero sum game. Lots can't just be mistakenly staked anywhere with no means of the injured parties who bought according to the protracted plat asserting their own rights when gross errors are disclosed.
Nate The Surveyor, post: 371154, member: 291 wrote: Kent, it was surveyed, and monumented, and a plat drawn, and recorded.
Actually, what I was asking was what evidence there is that plat was drawn from a survey. Some plats can be drawn in the office, for example, and even in the pre-digital age were.
In Arkansas, it wouldn't surprise me if at one time plats were drawn in the office and distances and bearings of lines just scaled off the plat to produce the layout dimensions from which surveys were made later. This is why I was asking about some features like existing roads and powerlines that you say existed on the site before the subdivision. If the plat accurately depicts those features, that would be a clue. If it doesn't, what does that suggest?
Kent McMillan, post: 371178, member: 3 wrote: Actually, what I was asking was what evidence there is that plat was drawn from a survey. Some plats can be drawn in the office, for example. In Arkansas, it wouldn't surprise me if at one time plats were drawn in the office and distances and bearings of lines just scaled off the plat to produce the layout dimensions from which surveys were made later. This is why I was asking about some features like existing roads and powerlines that you say existed on the site before the subdivision. If the plat accurately depicts those features, that would be a clue. If it doesn't, what does that suggest?
Maybe you ought to re-read Nate's original post. There IS NO "protracted plat". The survey was performed on the ground in 1978, then the plat was recorded in 1979. 1979 was after 1978, even in Arkansas, and I presume, even in Texas.
Brian Allen, post: 371180, member: 1333 wrote: Maybe you ought to re-read Nate's original post. There IS NO "protracted plat". The survey was performed on the ground in 1978, then the plat was recorded in 1979. 1979 was after 1978, even in Arkansas, and I presume, even in Texas.
What Nate posted was this:
What happened, was this developer, went and bought some 170 acres, in around 1978. Then, cut timber, and sold it. Then, he'd hire the lowest priced surveyor, that money could buy. He hired a guy with a compass and tape. (We will call him C&T) And a pile of pinch top pipes, and whatever metal he could buy from the local scrap metal yard. So, this 170 ac got cut into 3 or so acre pieces, by C&T.
Well, as it works out in Arkansas, the plat got recorded, in 1979.THEN, lots were sold by description, with no mention of the plat.
Since Nate also posted that he was in California in 1978, I think it's reasonable to assume that the above account is his reconstruction of events. He doesn't say how old he was in 1980 when he saw the subdivision, but I'm going to guess that he wasn't very old. If there is something about the plat itself that leaves as only reasonable conclusion that it wasn't merely a protracted plan drawn up in the office from which lots were later staked, then that's another matter. This is why I asked Nate about clues such as roads and power lines shown on the plat.
As I understood Nate's account, the plat itself doesn't call for monuments set and there are discrepancies between it and the actual descriptions by which lots were conveyed. So, the questions remain: What evidence is there really that the plat followed the survey and why did the developer decide to convey lots by metes and bounds once the plat had been recorded unless his obvious intention was to repudiate the plat?
Maybe you missed these parts of the OP:
Nate The Surveyor, post: 371026, member: 291 wrote: Well, the MARKS seen on the ground were set and seen by the buyers. These were the ones set by C&T (That's Mr Compass and Tape) and were used, as boundary marks.
Nate The Surveyor, post: 371026, member: 291 wrote: I am holding the C&T survey points, because they were SET at the time there was ONE owner on ALL sides of that line/corner. Therefore, they are the markers people SAW when the signed the contract for 75 down, and 75 a month. And, they have been there a long time.
Or maybe you are going to continue questioning Nate's intelligence and/or integrity? As for me, I will take him at his word.
Brian Allen, post: 371184, member: 1333 wrote: Maybe you missed these parts of the OP. Or maybe you are going to continue questioning Nate's intelligence and/or integrity? As for me, I will take him at his word.
So, do we think that Nate was much older than eight in 1978 and not even in Arkansas? This really is mostly a question of evidence. Novel concept, I know.
Brian Allen, post: 371174, member: 1333 wrote: Maybe Justice Cooley can help us out:
Thanks for cutting and pasting Justice Cooley's statement.
From Diehl v. Zanger, which that statement comes from:
[INDENT=1]"....The lot the boundary of which is in dispute in this case has been fenced in for twenty years by fences on the supposed lines, and it does not appear that the lines have been disputed until recently. The adjoining lots have also been claimed, occupied and improved according to the practical location of the lines...."[/INDENT]
[INDENT=1] [/INDENT]
That is, the boundary in question in Diehl v. Zanger had become binding through the action of practical location, and not by the operation of platting, the exchange of deeds, or the setting of monuments, called for or not. Nate's photographs suggest than there has been no such practical location in this case.
Mark Mayer, post: 371186, member: 424 wrote:
That is, the boundary in question in Diehl v. Zanger had become binding through the action of practical location, and not by the operation of platting, the exchange of deeds, or the setting of monuments, called for or not. Nate's photographs suggest than there has been no such practical location in this case.
As I recall, what Zanger v. Diehl was really about was most likely a pattern of occupation that perpetuated original evidence of the survey of the subdivision. That pattern differed significantly from the theoretical scheme that a later City Engineer wanted to follow that was based upon zero evidence of where the subdivision had actually been laid out. The key element of the case, as you point out, was the highly consistent pattern of fences and building improvements within the addition.
Brian Allen, post: 371163, member: 1333 wrote: We seem to have no problem holding an original undisturbed quarter corner stone that is out of record position by 100 feet or more, but yet we can't accept an original undisturbed monument in a metes and bounds or platted parcel that is only "out" by less than a few feet or even a rod or two? Please, please someone point out the legal difference. .
Not to say that you can't hold a monument out by more than a few feet, but, we did have a lot better ability to measure in 1978 than we did with the public lands surveys, mostly done with compass.
Mark Mayer, post: 371186, member: 424 wrote: Thanks for cutting and pasting Justice Cooley's statement.
From Diehl v. Zanger, which that statement comes from:
[INDENT]"....The lot the boundary of which is in dispute in this case has been fenced in for twenty years by fences on the supposed lines, and it does not appear that the lines have been disputed until recently. The adjoining lots have also been claimed, occupied and improved according to the practical location of the lines...."
[/INDENT]
That is, the boundary in question in Diehl v. Zanger had become binding through the action of practical location, and not by the operation of platting, the exchange of deeds, or the setting of monuments, called for or not. Nate's photographs suggest than there has been no such practical location in this case.
Actually. all the Cooley quotes I posted were from his speech to the Michigan surveyors (The Judicial Function of Surveyors). If they were used in many of his decisions (no doubt they were), that only reinforces their veracity.
Mark, with all due respect, I guess I'm confused. I'm not aware of anyone claiming that the boundaries in question (Nate's OP) were established via the boundary establishment doctrine of practical location? They were established by the running and marking of the lines (pre-conveyance) which were accepted by both the grantor and grantee(s). The retracement of which (as stated by Cooley and many courts, and, I hope, is fully understood by all licensed Professional Surveyors) is accomplished by finding the location of the original corners (unless the surveyor has reason to believe that agreements of the parties, express or implied, have rendered them unimportant."
Are you claiming the monuments found by Nate are NOT the original monuments?
Or, are you doubting Nate's veracity in gathering and analyzing the relevant evidence?
Certainly, you are not, like Kent is obviously is doing, doubting Nates's honesty.
Or, are you really trying to argue that original monuments are subordinate to a plat and/or description that, for whatever reason, failed to accurately and fully describe each and every monument set by the original surveyor?
Or, is this simply a rejection of original monuments because they weren't set precisely enough (the old argument of how far "off" is too far "off"?
roger_LS, post: 371190, member: 11550 wrote: Not to say that you can't hold a monument out by more than a few feet, but, we did have a lot better ability to measure in 1978 than we did with the public lands surveys, mostly done with compass.
No doubt. However, the same laws and reasoning that require us to hold original GLO monuments (in nearly all cases) are the same laws and reasoning we should hold original monuments (in nearly all cases) for other boundaries. The ability to measure more precisely has nothing to do with accuracy.
Brian Allen, post: 371193, member: 1333 wrote:
Certainly, you are not, like Kent is obviously is doing, doubting Nates's honesty.
Actually, doubting that an eight-year-old living in California could have personal knowledge of what Nate presented as the factual history of the subdivision is merely wondering what evidence there is to support his narrative. You've been riffing on original monuments this and original monuments that, but without any evidence to support that view aside from Nate's reconstruction of what he supposes happened.
Since the descriptions by which the lots were sold call for no monuments (or, presumably, for any survey) and the plat, as I understand it, calls for no monuments, then you've gotten waaay ahead of the evidence. I've pressed Nate on any details of the plat that would actually suggest that it reflected a survey made prior to it being drawn. That would be evidence.
As for childhood recollection, I'm skeptical as to the probative value of what Nate might recall unless it somehow connects the scrap rebar in question with what he personally knows. I'm not saying that you couldn't get there, but it would take an extensive examination of boundary markers that are claimed to have been in place at the time of the sales and some means of showing that none had probably been disturbed or relocated afterwards.
Brian Allen, post: 371195, member: 1333 wrote: The ability to measure more precisely has nothing to do with accuracy.
"The ability to measure more precisely has nothing to do with accuracy."
Dead on Brian!
First rule of RETRACEMENT Surveying...FIND the "CORNERS" (which hopefully will still have monuments parked on top of them).
The Bearings & Distances are just clues to get you in the zip code, and (sometimes) aid you in the identification of poorly marked, poorly described, or seriously deteriorated monuments. Sometimes the "math" works pretty well, sometimes NOT so well. IF there if no/zero/zip/nadda evidence of the position of the Original Corner (or accessories, testimony, etc.) THEN the math becomes more important.
Whether or not the pipes that Nate recovered are the Original Monuments (hence CORNERS), is a professional judgment call that Nate has make (if he hasn't already).
Loyal
Kent McMillan, post: 371199, member: 3 wrote: Actually, doubting that an eight-year-old living in California could have personal knowledge of what Nate presented as the factual history of the subdivision is merely wondering what evidence there is to support his narrative. You've been riffing on original monuments this and original monuments that, but without any evidence to support that view aside from Nate's reconstruction of what he supposes happened.
Since the descriptions by which the lots were sold call for no monuments (or, presumably, for any survey) and the plat, as I understand it, calls for no monuments, then you've gotten waaay ahead of the evidence. I've pressed Nate on any details of the plat that would actually suggest that it reflected a survey made prior to it being drawn. That would be evidence.
As for childhood recollection, I'm skeptical as to the probative value of what Nate might recall unless it somehow connects the scrap rebar in question with what he personally knows. I'm not saying that you couldn't get there, but it would take an extensive examination of boundary markers that are claimed to have been in place at the time of the sales and some means of showing that none had probably been disturbed or relocated afterwards.
You have the presumptions backwards for most States.
I don't make the rules.
Kent McMillan, post: 371199, member: 3 wrote: Since the descriptions by which the lots were sold call for no monuments (or, presumably, for any survey) and the plat, as I understand it, calls for no monuments, then you've gotten waaay ahead of the evidence. I've pressed Nate on any details of the plat that would actually suggest that it reflected a survey made prior to it being drawn. That would be evidence.
[USER=291]@Nate The Surveyor[/USER]
Nate,
Please post a copy of, or a link to, the 'subdivision' plat AND an example deed description. If you also have an example sales contract it would help in understanding the situation.
Thanks,
DDSM:gammon:
Kent McMillan, post: 371199, member: 3 wrote: Actually, doubting that an eight-year-old living in California could have personal knowledge of what Nate presented as the factual history of the subdivision is merely wondering what evidence there is to support his narrative. You've been riffing on original monuments this and original monuments that, but without any evidence to support that view aside from Nate's reconstruction of what he supposes happened.
Since the descriptions by which the lots were sold call for no monuments (or, presumably, for any survey) and the plat, as I understand it, calls for no monuments, then you've gotten waaay ahead of the evidence. I've pressed Nate on any details of the plat that would actually suggest that it reflected a survey made prior to it being drawn. That would be evidence.
As for childhood recollection, I'm skeptical as to the probative value of what Nate might recall unless it somehow connects the scrap rebar in question with what he personally knows. I'm not saying that you couldn't get there, but it would take an extensive examination of boundary markers that are claimed to have been in place at the time of the sales and some means of showing that none had probably been disturbed or relocated afterwards.
Well Kent, I obviously have no evidence other than what Nate has presented. I presume, even you would admit that you have no solid evidence to contradict what he has presented. So, not surprisingly, in your never-ending, arrogant attempts to prove your unquestionable superiority over us mere mortals, you have reached a new low - yes, a new low even for you. You can insult me all you want, but, when for no understandable reason, you publically question Nate's integrity and professionalism, you have gone beyond any pretense of common decency, let alone the expected level of professionalism that should be displayed on a public surveyors forum. You must be really proud of yourself.
Dave Karoly, post: 371201, member: 94 wrote: You have the presumptions backwards for most States.
So, in California, any plat that is of record is presumed to have been fully marked upon the ground by a survey prior to the sale of any lots? That's novel, to say the least.
The interesting question to me is what evidence one could actually develop to support the older rebar in Nate's example as having been in the ground in that position at the time of the original sale of any of the lots marked by it. Nate said that the older markers are a motley assortment of scrapyard junk, but include some shear-cut pipes. That suggests anything but a survey prior to the sale of lots. That fact could be overcome by examining all of the older corner markers in the subdivision to see which fall into groups with similar characteristics, i.e. rebars of same size, length, pattern of deformations, and tool marks on cut ends. If they were bought from a scrap dealer, they might have been cut in his yard by the same method, for example.
Yes, you could resurvey several lots and get affidavits from the owners of the lots, if they were the original purchasers in 1978, but what beyond the existence of corner stakes at the time could you get out of that? I'd be surprised if half of them even knew exactly where the corners were or described them in any detail other than "stobs".
To show that any particular stake was probably undisturbed, you'd need to identify certain stakes as original and reproduce the slope-tape measurements between them recited in the deeds. Then you could apply that same method to demonstrate that some stake without a provenance was similarly positioned.
Then, of course, you'd need to record a new map or description of the lot as you determined that it actually exists since the old description bears only a fleeting resemblance to it. My guess would be that the bill for this amount of work would only be five or six times what the land is worth.
Brian Allen, post: 371205, member: 1333 wrote: Well Kent, I obviously have no evidence other than what Nate has presented. I presume, even you would admit that you have no solid evidence to contradict what he has presented.
I suppose I'm handicapped by being a land surveyor and have never based a boundary determination upon the statements of persons without the reasonable belief that they actually had the means to have the knowledge of the facts claimed.
