Almost all plats here in my area of NY are protracted lines that were never actually run on the ground. Nothing set until after the plat was filed, if ever set. Mostly in the 60s and 70s they were eventually set with wood stakes.
That being said it's very rare a deed or plat shows monuments. To this day ive never seen a plat that shows that monuments were set at each lot corner. Ie pipes or rebars etc. Most plats, but not all, show monuments set randomly around the subdivision. And half the time even those were never actually set. Sad.
So if the plat is 90+ years old it's very hard to determine if a pipe found is original. It almost certainly is not. That doesn't mean it has no merit, SOMETHING has to control.
Dave Karoly, post: 371122, member: 94 wrote: The vast majority of Deeds in States other than Texas have descriptions that don't call for the monuments. Our Courts have made it clear, where there is evidence of a Survey the monuments will control. There is a few cases where they invoked the un-called for monuments rule but that is because it was determined that they weren't intended by the parties to control the Deed and the monuments were out of position by a much larger number than just what the Surveyor could've measured if he wasn't an incompetent boob. We even have a case where they rejected a CALLED FOR monument because holding it would've increased the tract size by 40%; the monument was the high water mark (tidal) of the Noyo River in Fort Bragg.
Do you have any good cases to read about uncalled for monuments?
I've been trying to find cases to read regarding this as this is the area most intriguing and useful to me in actual practice.
Kent McMillan, post: 371207, member: 3 wrote: 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.
You are looking for bright line rules.
They don't exist.
Dave Karoly, post: 371210, member: 94 wrote: You are looking for bright line rules.
They don't exist.
He already has his bright line rule. Kent is right and anyone who disagrees with him is either dishonest or incompetent.
Dave Karoly, post: 371210, member: 94 wrote: You are looking for bright line rules.
They don't exist.
Not at all. Evidence is what convinces me as an expert in land surveying matters of the truth of some matter asserted. That same interest in evidence never loses sight of the question of how I would present the evidence upon which I based a boundary determination. If there is no supporting story that I find convincing, there is no supporting story that I would expect to convince anyone else with.
I'm not saying that there is no evidence in Nate's situation that could be marshalled in support of his claims, but I haven't read it here. Nate stated that the subdivision was laid out and platted at a time when he wasn't even in Arkansas. I did a little arithmetic and guessed that he probably was eight years old or less in 1978. Those two condititions place limits upon what he could be reasonably expected to know except from statements by others.
Nate The Surveyor, post: 371036, member: 291 wrote: Another thing, Mark, When we first moved to Arkansas, from Calif, by way of Texas, we actually WALKED many of these tracts, to see if we wanted to buy one. The year was 1980. The lines were all flagged. There were signs all over, 48/49. Sales plats in ziplock bags, stapled to trees.
If you wanted to look it over, grab a plat (Reduced size plat of the original) and go walk it. Then call the developer, and meet him in his office, sign the papers, and give him 75 bucks... my folks did the math... decided that although the pay rate was low, that the TOTAL cost was too much... so we did not buy one. But, we had PERSONAL KNOWLEDGE of this project.
Nate The Surveyor, post: 371038, member: 291 wrote: At the time lots were being sold, the corners and lines were HEAVILY marked. Even had numbers attached to trees, along the lines.
Corners were flagged. Very well flagged. I think Mr Developer hired a maintenance guy, with a case of flagging, to enhance the lines, for sales purposes.
N
Nate The Surveyor, post: 371080, member: 291 wrote: I have absolutely NO doubt that they are original.
To quote another surveyor, "if you find 1/2" pinch top pipes, that is practically like finding a cap, with C&T's LS number on it."
However, he would get all his monuments at the Cooks Scrap Metal... So this was not absolute.. A few other pieces of metal mixed in. I have searched much of this quasi subdivision. About 80 to 90% of the markers are 1/2" pinch top pipes.
N
[sarcasm]Yep, that ole' Nate sure has a vivid imagination.[/sarcasm]
[sarcasm]Yep, believing what an 8 or 10 yr old remembers, following his dad around parcels of land they were considering buying, is surely suspect and definitely reason enough to reject original monuments. [/sarcasm]
Wasn't Nate's dad a surveyor also? I could be mis-remembering though...............
Brian Allen, post: 371213, member: 1333 wrote: Yep, that ole' Nate sure has a vivid imagination.
Not to put too fine a point on it, but those statements you quoted are inconsistent. Nate did not state that as a child of eight or ten he had personally walked all of the boundaries of the lots in the subdivision, but extrapolated what he saw in part of the subdivision to the whole. His childhood recollections focus on the financing terms that are mostly irrelevant to the question of boundary markings.
While by his account the land was harvested of trees, among the details in his statements you quoted were that the "lines were HEAVILY marked".
Kent McMillan, post: 371206, member: 3 wrote: 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.
While I'm not aware of any governing case law, I would certainly presume that any plat made in NW Oregon after about 1940 had permanent iron monuments set at every corner. There are exceptions I'm sure. But it's a fair presumption to start with.
Brian Allen, post: 371213, member: 1333 wrote: Wasn't Nate's dad a surveyor also? I could be mis-remembering though...............
He was, or is. And Nate's son "Big Help" has been running lines with his dad since he was a preschooler.
Mark Mayer, post: 371216, member: 424 wrote: While I'm not aware of any governing case law, I would certainly presume that any plat made in NW Oregon after about 1940 had permanent iron monuments set at every corner. There are exceptions I'm sure. But it's a fair presumption to start with.
This is a presumption that follows from Oregon statute regarding land subdivisions, I take it? Would one apply the same presumption to a time and place where no such statute was in force?
Well no, if the plat does not show monuments it is incorrect to assume monuments exist. The map needs to make an affirmative statement as to the whether or not monuments were set. just like it is improper to assume a search was made and nothing was found when a map is silent on the matter. We ought not read into the unwritten intentions of the surveyor.
Dave Karoly, post: 371144, member: 94 wrote: I said it's a presumption...a presumption shifts the burden of proof. I did not say there are no protracted plats but you would have to prove the plat is NOT based on a Survey.
A lot of the problem is Surveyors have the presumptions backwards.
As a matter of fact I would look for monuments at the mapped corners and upon finding harmony between the two classes of evidence I would consider the weight of the found monuments even though they were not specifically called for.
Brian Allen, post: 371193, member: 1333 wrote: 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). ..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?...
I have no doubt that the monuments Nate is calling the C&T monuments were those placed in 1978. My point is that the properties were sold and resold by description only, by a developer who was fully aware of the existence of a plat and monuments. It appears to me that he made a conscious decision to ignore both the plat and the monuments. That is the evidence contained within the four corners of the deed, IMO. So the C&T monuments are goat stakes. Or, at least, that argument can be made.
It's not that the developer or the plat "failed to accurately and fully describe each and every monument", it's that neither monuments nor plat are referenced at all in the descriptions by which the sales have been made.
In favor of my argument is that the developer, who knew about the plat and the monuments, and knew that little or no construction that might destroy them had occurred, later commissioned STJ to rerun his described boundaries. Why would he do that if he was satisfied that the C&T monuments were controlling?
If buyers had constructed fences, or performed some such acts, in reliance on the C&T monuments that would have fixed the boundaries on them by practical location. If they had done so in reliance on the STJ monuments that also would have done so, on them. But that doesn't seem to have happened.
As this thread has progressed Nate has allowed certain factoids that tend to support his opinion that the C&T monuments and plat should hold such as the marking of lines on the ground in the early days. Those are important considerations, but my opinion remains based on the facts at my disposal. Still, if I had the plat, the descriptions, and the survey data laid out before me my opinion might change. If I were a lawyer I'd be happy to change it, for a fee, and would sleep well.
Kent McMillan, post: 371219, member: 3 wrote: This is a presumption that follows from Oregon statute regarding land subdivisions, I take it?
Indeed. That and observation.
Kent McMillan, post: 371219, member: 3 wrote: Would one apply the same presumption to a time and place where no such statute was in force?
I would not make the same statement about Oklahoma, nor even Washington State (I might say post-1973 in WA). I'd probably go further back in British Columbia. Mr. Karoly is posting from California where the laws governing platting are at least as stringent as Oregon's.
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.
I have no problem with holding plat monuments that disagree with map dimensions. I have problems with holding monuments that are not called for, either directly or by inference, in the deed. More especially when the preparer of the deed had knowledge of monuments and appears to have gone to extra effort to avoid referencing them.
"I have no doubt that the monuments Nate is calling the C&T monuments were those placed in 1978. My point is that the properties were sold and resold by description only, by a developer who was fully aware of the existence of a plat and monuments. It appears to me that he made a conscious decision to ignore both the plat and the monuments. That is the evidence contained within the four corners of the deed, IMO. So the C&T monuments are goat stakes. Or, at least, that argument can be made."
This may be important, at least it conflicts your unsubstantiated claim of the developer intentionally ignoring the 1978 monuments because he knew they were imprecisely set.
Nate The Surveyor, post: 371026, member: 291 wrote: THEN, lots were sold by description, with no mention of the plat. The way it worked, is $ 75.00 down, and $ 75.00 a month That could take 150-250 months to pay for. Depending. If you missed 3 payments in a row, then he reposed it. And, you STARTED OVER with payments. And, all past payments were considered rent. This mechanism of selling by description kept the developer from paying a higher tax rate, on his remaining unsold lots. (VEWY IMPOTENT!) Keep taxes down!
As for the "four corners rule" too often we forget the most important part about it when interpreting deeds, they must be read considering the circumstances (standing in the shoes of the parties) at the time, not here and now 20-40 years later and hundreds or thousands of miles away. Also, too often we forget about latent ambiguities and extrinsic evidence, and how and when it is used. What could be more of a latent ambiguity than a description failing to mention a plat or the original survey, and finding monuments and lines that apparently have been relied on for years?
"It's not that the developer or the plat "failed to accurately and fully describe each and every monument", it's that neither monuments nor plat are referenced at all in the descriptions by which the sales have been made."
So what? Again, where is it written that if a description or plat fails to mention the monuments set, the bearings and distances always control over what was done on the ground and relied upon by the parties?
"In favor of my argument is that the developer, who knew about the plat and the monuments, and knew that little or no construction that might destroy them had occurred, later commissioned STJ to rerun his described boundaries. Why would he do that if he was satisfied that the C&T monuments were controlling?"
Who said that the original developer hired STJ to re-run all the parcels in the subdivision?
"If buyers had constructed fences, or performed some such acts, in reliance on the C&T monuments that would have fixed the boundaries on them by practical location. If they had done so in reliance on the STJ monuments that also would have done so, on them. But that doesn't seem to have happened."
No, practical location is an establishment doctrine that is generally used when the original monuments were never set or have all subsequently disappeared. It isn't the reason why original relied upon monuments control.
"As this thread has progressed Nate has allowed certain factoids that tend to support his opinion that the C&T monuments and plat should hold such as the marking of lines on the ground in the early days. Those are important considerations, but my opinion remains based on the facts at my disposal. Still, if I had the plat, the descriptions, and the survey data laid out before me my opinion might change. If I were a lawyer I'd be happy to change it, for a fee, and would sleep well."
I only partially agree, and that is where our problem evidently lies. I would need more than the plats, descriptions and survey data to formulate an informed opinion - I would need all the evidence, including knowing the history of the area, relevant parol evidence, etc. Heck, I would even consider the first hand knowledge Nate and his family apparently have.
DANEMINCE@YAHOO.COM, post: 371220, member: 296 wrote: Well no, if the plat does not show monuments it is incorrect to assume monuments exist. The map needs to make an affirmative statement as to the whether or not monuments were set. just like it is improper to assume a search was made and nothing was found when a map is silent on the matter. We ought not read into the unwritten intentions of the surveyor.
The "intentions of the surveyor" are usually completely irrelevant. It is the intentions and actions of the landowners that establish the location of boundaries.
Mark Mayer, post: 371225, member: 424 wrote: I have no problem with holding plat monuments that disagree with map dimensions. I have problems with holding monuments that are not called for, either directly or by inference, in the deed. More especially when the preparer of the deed had knowledge of monuments and appears to have gone to extra effort to avoid referencing them.
What evidence do you have that they went to extra effort to avoid referencing the plat or the monuments?
The problem seems to be that too many surveyors rely solely on the "deed", and their erroneous ideas that they can never leave the deed if the description mathematically makes sense. They tend to forget about latent ambiguities, extrinsic evidence, and the establishment doctrines.
Nearly all of the descriptions and plats prepared prior to 1980 that I retrace, never mention monuments, but some do have monuments. Does that mean that all of the thousands of boundaries in this area are "non-established" and should be moved to their correct mathematical position? Good luck with that.
Nate The Surveyor, post: 371026, member: 291 wrote: This mechanism of selling by description kept the developer from paying a higher tax rate, on his remaining unsold lots. (VEWY IMPOTENT!) Keep taxes DOWN.
The developer did not want the tax assessor to know about the subdivision for TAX REASONS.
The plat was used as a sales promotion representing the layout of the parcels.
(Waiting for Nate to post plat and deed examples)
DDSM
Brian Allen, post: 371229, member: 1333 wrote: What evidence do you have that they went to extra effort to avoid referencing the plat or the monuments?
On the face of it. Is it not more effort to prepare a metes and bounds description that just recite by Lot on a Plat?
