Do not forget to probe for a hole in the record position; it won't look good in court.
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As page 259 says in my copy of Brown's Boundary Control and Legal Principles Senior Rights controls followed by the Survey and then the monuments. If the monuments don't fit the survey then how do you hold them? New York is a metes and bounds puzzle and maintaining the integrity of the puzzle is more important than holding every pipe that the local farmer set when he couldn't find the surveyors corner. I would think that once you have reached a point where the government survey no longer controls that it is okay to hold the measurement over the monuments when they don't agree, because the measurements were the intent of the survey and the monuments were typically set on a second trip.?ÿ
My 2 cents from 3,000 miles away.?ÿ
Did the 1981 Surveyor find or set the southeast corner?
The SE corner of my client's property is a set, original corner; along the East line of the plat. The property to the east was surveyed (platted) in 1976. It appears the 1981 surveyor set this corner in error. All other original corners I found in the plat are where they should be.
"As page 259 says in my copy of Brown's Boundary Control and Legal Principles Senior Rights controls followed by the Survey and then the monuments."
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It might be here in Texas, and maybe varies state by state, but limitation title will trump senior rights in the general hierarchy of boundary rights.
That deck may be able to perfect title to the adjacent lot(s).
I'm with what was said and/or implied above.?ÿ By definition an original, undisturbed monument can't be off.?ÿ It's off in relation to what??ÿ Other original undisturbed monuments??ÿ Secondary monuments? fences??ÿ
Couldn't be more wrong about NY, but maybe I misunderstand the post.?ÿ In fact, even an old structure built near the time of the original survey is held to be better evidence of the?ÿline than?ÿmeasurements and senior rights once all original monuments have disappeared.?ÿ But yeah, if you can retrace two lines and one was surveyed in 1930 and another in 2016, then you have to stop the 2016 line where it intersects the 1930 one.?ÿ But that's a title issue, not an interpretation of intent issue.?ÿ If you can't retrace the 1930 survey (or if it was a paper subdivision and never?ÿmonumented on the ground), then sure the 2016 survey is good.?ÿ The only puzzle that counts are the parcels as marked and occupied on the ground.?ÿ The paper puzzle doesn't fit and never has, but gets better as new descriptions are written with modern measurements shown to found ancient monuments.
I'm with what was said and/or implied above.?ÿ By definition an original, undisturbed monument can't be off.?ÿ It's off in relation to what??ÿ Other original undisturbed monuments??ÿ Secondary monuments? fences??ÿ
There's the Oregon or Washington board MTS that was in effect at the time. I think I read somewhere the positional tolerance for monuments was roughly 0.5'.?ÿ It seems that if they had noted the encroachment of the deck on the original plat, they simply memorialized their blunder. And I would say if the positional tolerance was exceeded, it would be characterized as a blunder.
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One of the first?ÿquestions I always ask myself in this situation is how do I know it is "undisturbed"??ÿ Monuments get moved for all sorts of reasons - intentional and unintentional.?ÿ The longer you survey, the more stories you hear about monuments getting placed back where they thought it should be.?ÿ Can you contact the other surveyor??ÿ If it were me, I would appreciate a call and a chance to check it out myself.?ÿ
A measurement of 3.5' difference might be evidence that it is not an "undisturbed" monument.?ÿ If you went that route, I would look for additional evidence to support it being in the original position, and evidence that supports that it has moved.?ÿ Weigh all the evidence, including possible parol evidence.
Be careful not to let yourself fall into the mind trap of "monuments hold" - period.?ÿ?ÿ If the same surveyor was not prone to measurements significantly being off in the same survey, and you are positive that this is where the surveyor set this point, then I would say it was likely a mistake.?ÿ Holding a mistake only compounds an issue for the next surveyor that you could have corrected.?ÿ You have to weigh all the factors in what you might consider being a mistake and the distance that separates a mistake and poor workmanship.?ÿ No two surveys or circumstances?ÿare ever alike.?ÿ For instance, a stone set at the Center of Section in 1885 that was found to be 3.5' off from the mathematical intersection of the quarter section lines would be acceptable in my opinion.?ÿ An interior lot corner placed?ÿin a subdivision?ÿin 1993 that was found?ÿ3.5' off would not be acceptable.
Around here, we have some (retired) surveyors that when you find irons a foot off, that's often as good as they were set.
One outfit in Madison, is famous for setting irons "on the money" way back in the 70s, and upon finding one of their irons off 0.2', I questioned the adjacent land owner, who confessed he moved the iron "a little bit" so his fence wouldn't be over the line. Actually, we knew he moved it before we even got out of the truck by his behavior. It was soft 0.2' over as it went back in the same hole it came out of.
That's just one scenario.
Utility guys are famous for moving irons when they dig/trench them out.
It's why we have what's called "professional judgement". Another way to look at it is if we can't outsmart a home owner, why are we worth paying?
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IMHO, the title of this post is an impossibility. No original, undisturbed monument is out of position...
It's probably interesting to note that in a case of negligence, the first question becomes whether there was a duty of care, or a standard existed in the industry.
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When is an original monument out of position ?
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How do I know the monument I find is in it's original position to accept? A better question is how do I know it's not other than the exact math? Under normal circumstances if it had been too far out of it's mathematical position to accept it likely would not have found because there would be no logical reason to search an area "too far" away. If it's found in the area that the numbers or occupation guide you to and it's been used what's the point in setting another one? IMO it's not a valid point.?ÿ?ÿ
When I asked my mentor why he accepted a monument one time he answered "because you found it where you were looking for it".?ÿ You might think that's overly simplistic but it makes more sense to me now than ever.?ÿ When you are searching for a rural corner your search area is going to be larger than when searching for an urban lot corner.?ÿ No new news there.?ÿ That should tell us something about how far is too far.?ÿ It's when the search area becomes so large that finding something to accept at its perimeter will produce an absurd result that does not conform with the neighborhood. Come to think of it - I've found several monuments set at the "correct location" that do just that.?ÿ
IMHO, the title of this post is an impossibility. No original, undisturbed monument is out of position...
False.?ÿ If I am subdividing your neighbors lot and set one of the new corners right in front of your house, that original, undisturbed monument is most definitely out of position.
By itself, a jacked up survey cannot infringe on senior rights.?ÿ If those new pins were all meant to be set on the east line of the parent tract, that is where they need to be.?ÿ However, if it can be shown that this particular pin has been there for 37 years and everyone has been looking at it thinking it's the corner, that could definitely change things.?ÿ If this was in Tennessee and I was satisfied that the pin had not been moved, I'd probably accept it.
"...a monument, set by a surveyor, even if it is later found to have been set in error, becomes the corner its was intended to represent, if real estate changes hands based upon it..."
Does that sound familiar to anyone? It seems applicable here, but, I can't?ÿremember where I read it.
I just went to court over a similar situation, but much worse.
My client had owned 7 acres for over 40 years.?ÿ 30 years ago his neighbor subdivided his property into 3 lots.?ÿ Everything was peaceful until 2 years ago when one of those lot owners had their timber cut and cut an acre belonging to my client.?ÿ What happened is 30 years ago when the neighbor divided his tract, the surveyor screwed it up and included about 2 acres of my client's property.?ÿ So, there were several original, undisturbed pins set by that surveyor that were absolutely in error.
IMHO, the title of this post is an impossibility. No original, undisturbed monument is out of position...
False.?ÿ If I am subdividing your neighbors lot and set one of the new corners right in front of your house, that original, undisturbed monument is most definitely out of position.
No, that monument is not an original monument for your property line, but it is an original monument for the line between the two new subdivision lots.
It is not out of position for the new subdivision line. It still controls that line; however, it does not somehow become senior to the original monuments that marked your senior?ÿ line.?ÿ
"...a monument, set by a surveyor, even if it is later found to have been set in error, becomes the corner its was intended to represent, if real estate changes hands based upon it..."
Does that sound familiar to anyone? It seems applicable here, but, I can't?ÿremember where I read it.
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It sounds like that would be more pertinent to a m&b description, as opposed to a subdivided acreage, but yeah, if it can be found in the written intent to convey property, a called for monument, found undisturbed, holds a higher degree of dignity.