Don't know if you really believe that Kent but my take is to describe it well and where it is located on the record of survey filed with the county surveyor. This is a filing state, so unless prior to 1947, there should be a filed survey showing that marker as being set, by whom and how the position was determined. Some of the older surveys filed were very limited in what was shown but they are much better today. A filed boundary survey will be available for all to view for as long as surveys are filed and those record kept. Those surveys filed in this state are a better memorial to the surveyor than any stone or other structure could ever be.
jud
NY....DUH.
> b. Notwithstanding the provisions of paragraph a of this subdivision,
> a licensed land surveyor licensed under section seventy-two hundred
> three of this article or a person acting at the direction of any such
> licensed land surveyor, may remove an existing marker if substandard in
> nature in order to place an upgraded marker in the same location and
> shall note the same on the map of survey.
Well, the way I read that, you can't remove an existing marker just to dig to see if there is some other maker beside or below it. The only reason you can remove an existing maker is if the marker is "substandard in nature". That still sounds like a remarkably poor law because it guarantees that, if observed, the erroneously set markers will effectively conceal any older monument below them.
NY
> All of these laws are useless, unless a witness that observed the act and is willing to testify to having witnessed it under oath in court is found. Know of many pins pulled or destroyed by construction on private property and the numbers are right up there with public employees or those doing contract work for the public. Never have seen any charges brought because a witness can not be found to get the charge beyond speculation. The only way we can prevent this type of thing is to mine all monuments, after a few bangs most will avoid anything that looks like a survey marker. Many laws are passed to please someones interest but written in a way that they are unenforceable, our representatives are good at doing that.
> jud
You know, when you get right down to it you're mostly right.
But, I don't agree with that mining them part!:)
> I see you missed the point entirely about me calling out where I certify the correct corner to be by my plat. There are usually less problems caused by doing that and locating the other monument on the plat and explaining the discrepancy to the client than destroying what adjoiner Joe has believed to be "his" corner. Wrong as it might have been. I'm certifying to what I certify to no matter what else is around there or what anyone else believes.
So, is your plat recorded in the public records and will all subsequent surveys from now until the end of time be made with a copy of it in view?
> > My take on this subject has always been; if I find what appears to be a monument set by another surveyor, and in my opinion is out of position as indicated by record and other adjoining evidence found, and it is flagged as such, to locate it and denote it's position on the plat and to visually point it out to the client in the field and explain the situation to him/her as best I can. But, I don't move them or pull them up or anything like that. That is for the clients and their neighbors to decide.
>
> See, that clearly is a poor practice to rely upon lay people to correctly identify the erroneous markers to be removed. The professional surveyor himself or herself should be
> removing those markers so that the proper ones remain. Otherwise, the mess just grows, which defeats the entire purpose of weedomg out the junk markers.
Kent, what scares me about this is imagine if all surveyors do as you do - yes, even the bad ones. I don't think the intent of professional licensure for surveyors was for each one to anoint himself judge, jury, & executioner in terms of dispatching monuments of disaccord - granted, competent surveyors SHOULD arrive within the same general error ellipse, positionally. But destroying 'evidence' & essentially removing the other surveyor's ability to defend his work - assuming the other surveyor is identifiable - i don't believe that's ethical practice, let alone wise (or legal) practice. Agree to disagree on this one
Well Said, Kent
Hopefully this will discourage you from coming up to NY and starting a survey business.
> Don't know if you really believe that Kent but my take is to describe it well and where it is located on the record of survey filed with the county surveyor. This is a filing state, so unless prior to 1947, there should be a filed survey showing that marker as being set, by whom and how the position was determined. Some of the older surveys filed were very limited in what was shown but they are much better today. A filed boundary survey will be available for all to view for as long as surveys are filed and those record kept. Those surveys filed in this state are a better memorial to the surveyor than any stone or other structure could ever be.
Yes, in a recording state where it is light work to get copies of all maps pertaining to a line or corner, there is much less of a cost associated with maintaining multiple erroneous markers in the vicinity of a corner. Even in a recording state, however, I'll bet you still get landowners making assumptions about survey-marker-looking things they find and proceeding from there without consulting a surveyor.
Isn't it also true that some of those same records of surveys show corners that exist without monuments at the actual corner, showing small reference ties from the corner to some existing monument, a situation that most landowners wouldn't be able to make sense of?
Yes. Some other language that is kinda funny too.
? 18.2-137. Injuring, etc., any property, monument, etc.
A. If any person unlawfully destroys, defaces, damages or removes without the intent to steal any property, real or personal, not his own, or breaks down, destroys, defaces, damages or removes without the intent to steal, any monument or memorial for war veterans described in ? 15.2-1812, any monument erected for the purpose of marking the site of any engagement fought during the War between the States, or for the purpose of designating the boundaries of any city, town, tract of land, or any tree marked for that purpose, he shall be guilty of a Class 3 misdemeanor; provided that the court may, in its discretion, dismiss the charge if the locality or organization responsible for maintaining the injured property, monument, or memorial files a written affidavit with the court stating it has received full payment for the injury.
B. If any person intentionally causes such injury, he shall be guilty of (i) a Class 1 misdemeanor if the value of or damage to the property, memorial or monument is less than $1,000 or (ii) a Class 6 felony if the value of or damage to the property, memorial or monument is $1,000 or more. The amount of loss caused by the destruction, defacing, damage or removal of such property, memorial or monument may be established by proof of the fair market cost of repair or fair market replacement value. Upon conviction, the court may order that the defendant pay restitution.
(Code 1950, ? 18.1-172; 1960, c. 358; 1975, cc. 14, 15, 598; 1990, c. 933; 1999, c. 625.)
> Kent, what scares me about this is imagine if all surveyors do as you do - yes, even the bad ones.
Oh, the bad ones just use whatever they find. It never occurs to them to dig for an original if there is a marker visible on the surface.
> I don't think the intent of professional licensure for surveyors was for each one to anoint himself judge, jury, & executioner in terms of dispatching monuments of disaccord
Well, that is dressing up the actual situation. The actual situation I see is that some quickie-dickie survey has popped in some survey markers without much research or careful investigation. So, to dignify the effort as something to be taken seriously if it is obviously incorrect and there is no one who will be injured by removing the mistaken monument is simply making the boundary visible and preserving the rights of all of the adjoining landowners.
>- granted, competent surveyors SHOULD arrive within the same general error ellipse, positionally.
And what, exactly is the "error ellpse" of an original, undisturbed boundary monument? This whole discussion has been about the case where an original monument exists and some other surveyor has placed another marker in ignorance of the original.
Evidently some states think that protecting the public means encouraging the multiplication of boundary markers, as if the more markers there are at a corner, the better.
>But destroying 'evidence' & essentially removing the other surveyor's ability to defend his work -
Sure, where the surveyor is to be sued for malpractice or will be the subject of a disciplinary action, I wouldn't advise the affected landowners that it would be a good idea to remove the mistaken markers until the lawsuit is settled or the complaint acted upon.
However, the erroneous marker is typically merely "evidence" that a surveyor (or more typically his or her employees) didn't find the corner for some undignified reason. It certainly isn't evidence of the original corner, which is usually what is at issue.
Northern
Randy, havn't been out to Adak in years. Pretty much all shut down now out there since the Naval base closed. They had no fuel last winter for generator, people about froze. Last time I was there was 2003 or so, had to fly airborne direct georeferenced photography for the entire island. A very difficult job with the bad weather and remoteness. We got r done though.
If any person:
1) unlawfully destroys, defaces, damages or removes without the intent to steal any property, real or personal, not his own, or
2) breaks down, destroys, defaces, damages or removes without the intent to steal:
a) any monument or memorial for war veterans described in ? 15.2-1812,
b) any monument erected:
i) for the purpose of marking the site of any engagement fought during the War between the States, or
ii) for the purpose of designating the boundaries of any city, town, tract of land, or
c) any tree marked for that purpose,
he shall be guilty of a Class 3 misdemeanor; provided that the court may, in its discretion, dismiss the charge if the locality or organization responsible for maintaining the injured property, monument, or memorial files a written affidavit with the court stating it has received full payment for the injury.
Well, that's a complicated statute that just about has to be diagrammed in order to make sense of. It sounds as if it applies to Civil War memorials and the boundary markers of tracts of land that are part of a Civil War memorial. Are there quite a few of those?
Northern
will be in anchorage next week, visiting my bride's family. her father is having heart troubles. heart attack during fishing. didn't want to compromise his ifq's fuel etc. so finished out the license. three days later, the medical center in homer tells him he had a heart attack. tough man
Well Said, Kent
> Hopefully this will discourage you from coming up to NY and starting a survey business.
LOL! Who would want to survey where actually digging for the original evidence of land boundaries is illegal? :>
Yes our Federal Criminal Code does, Section 442 and 443, but it is more hono(u)red 😉 in the breach than the observance.
Interfering with boundary lines
442. Every one who wilfully pulls down, defaces, alters or removes anything planted or set up as the boundary line or part of the boundary line of land is guilty of an offence punishable on summary conviction.
R.S., c. C-34, s. 398.
Interfering with international boundary marks, etc.
443. (1) Every one who wilfully pulls down, defaces, alters or removes
(a) a boundary mark lawfully placed to mark any international, provincial, county or municipal boundary, or
(b) a boundary mark lawfully placed by a land surveyor to mark any limit, boundary or angle of a concession, range, lot or parcel of land,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Saving provision
(2) A land surveyor does not commit an offence under subsection (1) where, in his operations as a land surveyor,
(a) he takes up, when necessary, a boundary mark mentioned in paragraph (1)(b) and carefully replaces it as it was before he took it up; or
(b) he takes up a boundary mark mentioned in paragraph (1)(b) in the course of surveying for a highway or other work that, when completed, will make it impossible or impracticable for that boundary mark to occupy its original position, and he establishes a permanent record of the original position sufficient to permit that position to be ascertained.
R.S., c. C-34, s. 399.
A person (Porter) who moved a survey marker got to be a guest of the Crown for a year in
Henderson v. Porter, 2001 BCSC 1601 (CanLII)
Date: 2001-11-21
URL: http://www.canlii.org/en/bc/bcsc/doc/2001/2001bcsc1601/2001bcsc1601.html
R. v. Porter, 2002 BCCA 355 (CanLII)
t
Date: 2002-06-06
URL: http://www.canlii.org/en/bc/bcca/doc/2002/2002bcca355/2002bcca355.html
Cheers
Derek
> Well, that's a complicated statute that just about has to be diagrammed in order to make sense of. It sounds as if it applies to Civil War memorials and the boundary markers of tracts of land that are part of a Civil War memorial. Are there quite a few of those?
Maybe around Richmond there are a few. I think they are lumping the term "monument" into one huge catch-all. Don't forget, we still have Lee-Jackson day here. It is on the Friday before MLK day, so goobermint employees get a 4 day weekend right after the holidays.
They tried putting the MLK and Lee day on the same day for a few years, and THAT didn't go over so well.
Lee-Jackson Day
Lee-Jackson-King Day (now separated)
Well Said, Kent
Well, what's in a "location"? If I remove a marker that's substandard entirely because it does not properly mark the corner but purports to, and I replace said "corner" marker in the correct position, am I not in compliance with the law? The "location" was the "corner" right?
Still, in NY I merely make the client aware of erroneous markers and wonder aloud what purpose they serve and how they might be detrimental. I also make those with interest in the land aware that it's not a violation of statute if they choose to move said goat stakes to better pasture.
This has always been my policy, even before the above mentioned law was passed a couple years ago. I've never removed a stake, but I inform my clients of what may be in their best interest.
The thing is, the evidence is not really destroyed. At least two surveyors could put it back if required. People move stakes for bad reasons all the time and I have to constantly inform them that they can't move enough of them to fool a good surveyor.
But the real funny part of the NY law is that it ended up not addressing that real problem. The correct stake that the adjoiner keeps removing. If it's correct, they have an interest in the property. So, absolutely nothing accomplished once again by the legislation, in my view.
> Interfering with boundary lines
>
> 442. Every one who wilfully pulls down, defaces, alters or removes anything planted or set up as the boundary line or part of the boundary line of land is guilty of an offence punishable on summary conviction.
> 443. (1) Every one who wilfully pulls down, defaces, alters or removes
>[...]
> (b) a boundary mark lawfully placed by a land surveyor to mark any limit, boundary or angle of a concession, range, lot or parcel of land,
>
> is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
> (2) A land surveyor does not commit an offence under subsection (1) where, in his operations as a land surveyor,
>
> (a) he takes up, when necessary, a boundary mark mentioned in paragraph (1)(b) and carefully replaces it as it was before he took it up; or
>
> (b) he takes up a boundary mark mentioned in paragraph (1)(b) in the course of surveying for a highway or other work that, when completed, will make it impossible or impracticable for that boundary mark to occupy its original position, and he establishes a permanent record of the original position sufficient to permit that position to be ascertained.
So, then, how does it work when another surveyor drives a post in ignorance of the original that remains in place undisturbed? As I read those statutes, there is no provision by which the erroneous marker may ever be lawfully removed unless it it to be replaced "as it was before" it was removed.
Even if the miscreant surveyor is brought before your licensing body and disciplined, there still is no remedy for the actual land owner, is there?
Well Said, Kent
> Well, what's in a "location"? If I remove a marker that's substandard entirely because it does not properly mark the corner but purports to, and I replace said "corner" marker in the correct position, am I not in compliance with the law? The "location" was the "corner" right?
Actually, as I read the New York statute, to be protected, the boundary marker need only have been placed by a surveyor or someone acting under his or her direction, for the purpose of marking a boundary. If it was placed even under some grossly erroneous theory for the purpose of marking a corner, it is protected.
Any person who knowingly damages, destroys, disturbs, removes, resets, or replaces any boundary marker placed on any tract of land by a licensed land surveyor, or by any person at the direction of a licensed land surveyor, for the purpose of designating any point, course or line in the boundary of such tract of land in which he or she has no legal interest,
As for the "location" of the marker, isn't that inherent in the definition of a marker, i.e. that the marker itself defines a location?
a person acting at the direction of any such licensed land surveyor, may remove an existing marker if substandard in nature in order to place an upgraded marker in the same location and shall note the same on the map of survey.
CT..yes, although I've never seen it enforced.
Kent- "Ol' 58 feller"
When push comes to shove to remove incorrect monumentation, our Boundaries Act has a quasi solution ........
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90b10_e.htm
Section 10 Monuments
10. The Director may order the removal of any monument that conflicts with any boundary confirmed under this Act. R.S.O. 1990, c. B.10, s. 10.
Cheers,
Older, but not wiser
Derek
