Original Monuments....That Aren't

From Lewis v. Lewis, 4 OR 177 (1871)

" .... If the visible monuments have disappeared but their places can be ascertained, the construction of the deed should of course be the same now as on the day it was executed..... "

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@scott-bordenet?ÿ

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I think that the question is most often: "What would a typical local surveyor (operating under good faith and reasonable procedures) consider to be enough evidence of an original monument?"

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Sometimes that comes down to the name on that cap.?ÿ

Posted by: @dmyhill

@aliquot?ÿ

I could be incorrect in my understanding of what you are saying, but it seems that you are advocating a "beyond any doubt" standard of evidence for considering it a diligent and faithful restoration. With that standard, there would be no such thing as a diligent and faithful restoration, nor even an original, undisturbed monument.

I am not sure how you got to beyond a reasonable doubt. I was just addressing the question. The question of whether a reestablished?ÿ corner is without error.

We have to remeber that it's the original corner that is without error, not the monument, so it comes down to the question of whether the new rebar is at the original corner or not. This depends on the judgment of two retracing surveyors, neither of which are cloaked in the power of the original surveyor.?ÿ

The concept of "without error" comes with the power of creation. If you draw a line on piece of paper the line is what you drew, regardless of what you intended to draw. If the line fades and someone redraws it, no matter how diligently they follow the evidence of the original line their judgment is subject to error and is subject to errors in judgment and limitations of measurement. It is only "without error" if it is an exact copy of the original line.?ÿ

This is all fun to talk about, but it is not what our determinations on whether to accept or reject are based on. We accept if a bona fide attempt was made to reestablish the corner, or if principles of unwritten rights point us in that direction. The question of whether it is without error rarely is relevant.?ÿ

Posted by: @norman-oklahoma

Even if you have the original monument, or a paper trail documenting the restoration, you would still need to do some measuring and evaluating to show that it wasn't disturbed.

Measuring does not prove disturbance.?ÿ An evaluation of its condition concerning age,?ÿ its embedment (i.e. rust contamination of the soil, etc.), nearby refilled holes, obvious cultivation/roadwork/gardening damage or movement by nefarious agents may indicate disturbance, but I'll hold what I think is a bona fide original/restored monument even if the measurements disagree by feet or more.?ÿ I tire of those who record with a statement like "found record rebar with tag,?ÿ 0.35' blah-blah, disturbed, set new rebar w/my cap."?ÿ Really??ÿ They can detect 0.35' of disturbance and reject the original which is well within the error ellipse of the original survey?

I've rejected only half a dozen monuments with provenance in my 50 year career because of "disturbance".?ÿ Usually it's nefarious activity which I could easily detect but in two instances it was unstable clay slump hillsides or talus slopes where the original was travelling a few feet a year.?ÿ Yup, disturbed in my opinion so I set a new monument 10 feet uphill.?ÿ BTW, I've never pulled an alleged original monument, that's historical evidence and may prove my survey was BS.?ÿ Preserve the in the ground monmentation, our Courthouse records are only opinions and may be contradicted by an industrious surveyor who finds the original 50 feet west of your lost corner reconstruction.

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@norman-oklahoma?ÿ

Yes, and today's blunder could be yesterday's precise measurement.?ÿ

@scott-bordenet An important part of this is that once the original is gone, you need to back up your acceptance (or rejection) with evidence. What your "checking" consisted of needs to make it into the record. A survey that describes an accepted corer and says "found rebar",?ÿ and nothing else,?ÿ when the original was a wood post is easy to dispute, even if the measurements match the wood post.

@scott-bordenet?ÿ

Is the original obliterated? Lost?

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Let's fall back to a PLSS corner. If we can reestablish the location of the original position, then the new monument has the same weight as the stone or wooden stob or whatever was set 150 years ago.

@aliquot?ÿ

I see where the misunderstand came.?ÿ

You create a distinction where there is none. The original physical monument on the ground IS the corner. They cannot be parsed. That is well established (at least where I practice).

@norman-oklahoma?ÿ

amen and amen

@aliquot?ÿ

...but you could be in error in concluding that that the rebar is a diligent and faithful restoration.

This is not a useful argument.?ÿ It's the same as arguing there is no reality because when I dream I am unable to tell the difference between dreaming and being awake.?ÿ Unless you are trying to make an argument for futility then at some point we need to accept the idea that there is a reality, and that professional land surveyors make (at least some of the time) error-free determinations.

Thanks all for your input.?ÿ?ÿ

@dmyhill?ÿ

But this doesn't necessarily hold for a monument that is not the original.

@bstrand?ÿ

I don't think the courts have ever found or can ever find that any decision of a resurveyor is "without error". A resurvey always has a non zero chance of being shown to be in error.?ÿ