Need some opinions

How do the ties check to the section corner and quarter corner? Then, does the legal describe where the waterline was supposed to be built or where it was built, which came first?

I don't see anything "boneheaded" about showing the easement on a map where it is described. The bonheadedness comes into play with the fact that the waterline was not constructed in the easement! Why doe the easement you are preparing a description for have to parallel this easement? Maybe it should parallel the waterline itself...

The easement itself does not indicate that it is centered on the waterline nor does it call out the waterline position, it calls out a strip of land. Without additional supporting information as to the intent of the deed, the easement is where the easement says it is. There may also be a second precriptive easement covering the existing line as constructed.

I see things like this often and they would be so much simpler if the creator simply called out that the intent of this description is to be centered on the water line that is anticipated to be built here......

The easement seems fairly well defined and has the appearance that a survey was involved. I've seen much worse.

I just want to point out Doloris almost rhymes with something per Seinfeld.

If I ever had to argue one way or the other in court, I would have an easier time developing an argument that failure of construction contractor to match plans and planned centerline placement is by no means creation of change of prior granted location of rights. If the waterline actually crossed out of the easement boundary would bring forth another argument for that portion, but placement of a facility within an easement does not necessarily create a change in easement location simply by that facilities placement. The construction design plans may show intent of location of waterline placement, but they do not show intent of creation of change in land rights location.

The trouble is some boneheaded surveyor platted this particular 80 acres and this easement appears on the recorded plat in a mathematical position that is really consistent with this 'flaky' document rather than the waterline's physical location.

But bonehead didn't create the easement, just acknowledge it's existence. Location speaks to intent unless proven otherwise, and you're already holding the answer to that one. Just my take.

use the math luke
use the MATH!!!!!

The waterline is the monument to the centerline. I would show it centered on the waterline.

vern, post: 347069, member: 3436 wrote: How do the ties check to the section corner and quarter corner? Then, does the legal describe where the waterline was supposed to be built or where it was built, which came first?

I'm sure the easement came first. I'm sure they meant for the waterline to fit the easement, but the easement description is flaky at its best, the ties don't check worth a hoot. When these were written in 1961 most of the distances add up to 2640'. The simple fact is the legal doesn't really close on any of the quarter lines by a few feet and trying to determine the point of beginning as stated N40å¡06'W a distance of 3,461.3' from the SE Cor. of the section doesn't even make it to the actual south line of the NE/4 by about 15'. I guess I'm trying to say there are a few things in the legal you can use, but they all put the easement in a different place. You can start so many feet nw of the se section corner, or you can place it where it crosses the w line of the NE/4, 1887.9' south of the n qtr. cor., but neither allow the distance of 839' to be anywhere close.......or you call the physical centerline of the watermain the center of a 66' easement. Which I would love to do, but that doesn't jive with the newer plat by about 12'.

vern, post: 347069, member: 3436 wrote: How do the ties check to the section corner and quarter corner? Then, does the legal describe where the waterline was supposed to be built or where it was built, which came first?

I'm sure the easement came first. I'm sure they meant for the waterline to fit the easement, but the easement description is flaky at its best, the ties don't check worth a hoot. When these were written in 1961 most of the distances add up to 2640'. The simple fact is the legal doesn't really close on any of the quarter lines by a few feet and trying to determine the point of beginning as stated N40å¡06'W a distance of 3,461.3' from the SE Cor. of the section doesn't even make it to the actual south line of the NE/4 by about 15'. I guess I'm trying to say there are a few things in the legal you can use, but they all put the easement in a different place. You can start so many feet nw of the se section corner, or you can place it where it crosses the w line of the NE/4, 1887.9' south of the n qtr. cor., but neither allow the distance of 839' to be anywhere close.......or you call the physical centerline of the watermain the center of a 66' easement. Which I would love to do, but that doesn't jive with the newer plat by about 12'.

Jim in AZ, post: 347070, member: 249 wrote: I don't see anything "boneheaded" about showing the easement on a map where it is described. The bonheadedness comes into play with the fact that the waterline was not constructed in the easement! Why doe the easement you are preparing a description for have to parallel this easement? Maybe it should parallel the waterline itself...

I probably am going to parallel the water line, beginning 33.0' to the west. It's really not a problem of the waterline not being built in the easement, I'm sure when it was placed (it's a really straight line) it was staked by some surveying means. The trouble is in the fact there are a number of different places the "easement" can be mathematically located, but it misses the waterline by a number of feet any which way you plot it.

It is apparent in 1961 the easement was prepared using N-S-E-W cardinal directions and 2640' half miles. I would rather hang my hat on the physical location of the waterline. On the subsequent pages it restricts public street or utility crossings across the easement. I guess my problem is on each and every lot that it crosses, I will have an exhibit that shows the location of the easement where the surveyor thought it was at, and also where I think it's at.

some boneheaded surveyor

2640' half miles

That particular surveyor happens to be a member of that club on occasion.

What they often did was Survey a P-line for construction purposes. Someone realized they needed easements so they cooked up legals from the record. But the intent was the surveyed P-line which later became the waterline. Therefore the physical evidence of the water line is best available evidence of the centerline of the easement. I can't believe we even have to argue about this, it is fundamental.

At least the DOT calls for the mythical "Engineer's Centerline." Often easements like this call for the constructed facility but not always.

Based on my understanding of the situation, I would go with the description provided the centerline description can clearly be placed on the ground. I have seen easements where the pipeline was not intended to be centered; however, they were a uniform distance from each side. This may just be a case of the contractor using the low bid surveyor. As a past president of a local society of land surveyors, I wouldn't put much faith in him. The main qualification is being dumb enough to take the position.

I wouldn't show two easement locations. Just show the ties, record and measured.

Like if it says S 89å¡15' E 1599' to the quarter corner I would show the tie (S 89å¡15' E 1599') with the measured of S 89å¡12'39" E 1604.39'.

I'm a little confused. Someone (that boneheaded surveyor) showed the easement on a plat as the description called for, however you say that it has multiple potential locations. You say that the waterline misses the centerline of the easement by 15'to 25', so the waterline still falls within the easement? I mean, at 66' wide they do have that corridor to work within, right?

Where's the problem?

The only time that I center an easement on the construction is when the document calls for it, such as residential telephone and electric lines, cable, etc. Otherwise the easement exists as described, and the improvement is either within it, or not.

Dtp

That is one of the reasons I (we) included the phrase "centered on the line hereinafter constructed" on the hundreds of easement documents prepared in about 30 years of work. Of course that is assuming that the line is to be the center of the easement.

Andy

When I worked for a gas pipeline company, they made all of their measurements along the slope of the ground. That was useful for pipe quantities but could and did cause problems for any other surveyors trying to recreate portions of the work if the "landmen" used these measurements to write the descriptions, which they usually did.

Where would that centerline fall if you applied the distances along the ground rather than treating them as horizontal distances? Would it make 15' to 20' of difference in the right direction in this case?

1. Don and Dolores granted an easement for a water line over a very specific part of their land, not just any old place at random (as was often the case for oil pipelines).
2. The pipeline was built outside the easement, and apparently Don and Deloris didn't object in a timely manner. So they, their heirs and assigns, are estopped from having the misplaced waterline moved. Note: If Don and Doloris were absentee owners and could convince you, and a judge , that they never did and couldn't have known where the pipe line was relative to the easement they might have defeated the estoppel prior to 1978, but:
3. The statutory 15 years having passed in 1978 the waterline owner has a possessory right to a prescriptive easement for it's existing water line. For a width, I'd use the width quoted in the deed description.
4. Don and Doloris, their heirs and assigns, might successfully argue that the written easement is extinguished by abandonment, it's purpose having been terminated. But I'd probably leave that for lawyers to argue. Depends partly on how certain I was that the waterline in the ground is the same one that was contemplated in 1963.

So their is a prescriptive easement along the route of the pipeline, and (maybe) an expressed easement where the deed calls it.

That's my opinion.