Just finished a Court case where the opposing Land Surveyor went through a lengthy decsertation on how he accepted pins due to their patina, mushroomed heads etc. Citing Brown's throughout his presentation. I had testified they were not original corners because they were a significant distance from Plat measurements, were 5/8 inch pins rather than 3/4 inch pins described on the Plat. One corner was a spike in a coffee can filled with concrete.
Next witness was the 85 year old developer. He testified he bought and set the 5/8 inch pins and spike in the coffee can, because Surveyors don't set corner with substantial monuments. It was a 26 lot subdivision. Only 8 pins could be found in the subdivision. Curiously they were only around built cabins. The Developer's brother followed him on the stand. He testified he was his brother's "Stickman".
Now my argument is the Developer is guilty of Fraud. Does the Statute of Limitations start when the Developer set the pins or when confessed under oath he set the monuments?
If the developer set monuments where he owned all the affected lots and the lots were sold with reference to those monuments, then the monuments probably rule regardless of what some drawing shows, and he probably was not guilty of surveying without a license.
The Developer set the pins after he sold the lots because the buyers pestered him to show them where their lots were.
I disagree with you that he isn't guilty of surveying without a license. He was asked on the stand if he was a Registered Land Surveyor, which he replied he was not.
This sounds like a real-world case of Garfunkel's Subdivision.
What standing does a retracing surveyor have to allege fraud in this case?
Surveying without a license is usually a misdemeanor, investigated and prosecuted by the AG rather than the board. The statute of limitations for misdemeanors is usually 1 year from the act, unless extended by continuing representation.
If the seller and buyer relied on the monuments, I'd be shocked if the court did not consider them valid. Correct is an identity, not a math problem...
"In resolving this question Judge Cowart noted the distinction between the role and practice of the surveyor and that of the lawyer, architect, or design engineer. The latter group is accustomed to reducing abstract ideas to paper and then relying upon the written document to achieve the original goal as written. In this case the written document is always considered authoritative and any deviation or discrepancy between this written document and what is actually done, is resolved in favor of "changing the physical to conform to the intention evidenced by the writing." Id. The surveyor, however, plays a different role and has a different practice with respect to his profession. While the original surveyor has a right or responsibility to establish new boundaries when he surveys previously unplatted land or subdivides a new tract, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey by locating existing boundaries. Id. No following surveyor may establish a new corner or line, or correct erroneous surveys of earlier surveyors, when they track the original survey in locating existing boundaries. This is so because "man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and by running lines (`metes and bounds'), and the paper `survey' or plat of survey is intended only as a map of what is on the ground."
McGHEE v. YOUNG
606 So.2d 1215 (1992)
Surveying without a licence, sure, but where is the fraud?
...and I agree with, "Surveyors don't set corner with substantial monuments".
Whats with 1/2" X 24" rebar with tiny plastic caps?????
I said IF the lots were sold with reference to his monuments. Setting them after the lots were sold gives them less credibility. Now were looking at possible acquiescence by the buyers. He might be surveying without a license.
Skeeter, in court, you are likely being asked to testify regarding the practice of surveying where you are considered an expert, not on anyones property rights (where only lawyers understand rights, ha ha)
Under that premise, i agree that it is possible for a layperson to commit fraud, and with your opinion on original corners. The court will often rule on a different criteria altogether, they dont have to agree with either surveyor. Keep us posted.
In the absence of the original monuments the Lot buyers took the reasonable step of asking the developer to mark the lines. These can overcome the Plat measurements. The property owners being uncertain of their boundary locations have the right to resolve their uncertainty by marking their lines, especially if this is done by mutual agreement of the neighbors or the established boundary is sufficiently apparent to put the adjoiner on notice and they don't object for many years.
However, if the original monuments are there marking the disputed line that would be a horse of a different color.
It is possible that the developer has committed fraud by knowingly passing off his work as legal to buyers acting in good faith, but that the developer cant be found liable for substandard surveying because he has no licence. The court rules to the oldest set of monuments recognized by the landowner, as a basic property right, and discards both surveyors opinion!
As long as you won I wouldn't worry about the superfluous details associated with the case. ???? ?ÿ
The Fraud is showing someone the property corners for the lot they're buying that doesn't match the Subdivision Plat and is over his property line and half on someone else's property.
Did the developer intentionally set out to steal land (fraud) or was he just an incompetent layout man (negligence)?
He is just an incompetent old rancher that thinks he knows how to do every thing. He has admitted he knows his surveying is bad. The opposition's Lawyer attempted to get him to pay to have his bad surveying fixed, but he used the Statute of Limitations.
It is only fraud, if he marked the corners, knowing they were likely not correct, in a way that benifited him and sold the land with reference to those lines. Misleading someone in only one of the elements of fraud.
I hope you're not right. The oldest monuments are the GLO monuments, which when used match the Subdivision Plat quite closely.
This is the first mention of GLO monuments in the thread. Are the developer's monuments trying to represent the same corners or are his just distorting lots whose other side is anchored by GLO mons?
The Section is fractional. The Developer's subdivision is Government Lot 8. Subdividing the section was beyond his surveying skills,so it was never surveyed. He found somebody with the knowledge to do a proper breakdown of the section using the GLO Plat. The GLO Surveyors did a pretty good job, because when I broke the Section down by survey the government lot lines didn't vary more than 5 to 10 feet which would have been acceptable taking into consideration the difficulty of surveying in that terrain. The problems came when the Developer payed out the lots using a magnetic bearing and slope chaining. The lot the dispute was over was over 200 feet from it's platted location from where the Developer set his monuments. Due to his using a magnetic bearing his monuments encroach over into Lot 3 by 50 to 60 feet. His Surveyor estimated there was an 18 to 20 degree error in his bearings. My guess is he didn't use a declination, because that's about what it is around here.
