> "The hat trick with this paradox is that the streets should get their width because you cannot take that which is the king's."
>
> What are you thinking? No one is "taking" anything from anyone! We are talking about proportioning distances across parcels that were simultaneously created by a plat. All have equal "dignity" in the eyes of the law, or there is not such a thing as "simultaneous creation" of parcels. Period.
Negative Ghost Rider, that pattern is full. You will note above in the example shown from Brown, that proportioning the street is taboo and that you should proportion the blocks, not the street. To proportion the street is either giving to the king, by excess, or taking from the king, by deficiancy, that which was dedicated to them, either as an easement or in fee. So, now that we have the technical aspect cleared up, I stand by my reality statement. The effing ROW is where the effing ROW is as monumented (using good practices) and never work block to block.
At some point, you gotta hold something, but you'll never see me make a street, through proportion, 60.1 or 59.1 when the dedicated width is 60.0. The king has what was delivered unto the king.
"To proportion the street is either giving to the king, by excess, or taking from the king, by deficiancy, that which was dedicated to them..."
What is this "king" concept that so many of you have? Why are they immune from the rules that govern the citizen? I did quite poorly in history in school, but I thought that's what the Revolutionary War was all about. Am I wrong?
The fact of the matter is that we are not "taking" or "giving" anything to anyone! We are talking about a long-accepted practice of dealing with systematic measurement errors. If you think that this "king" gets exactly the width shown on the plat then you are saying that its property has senior rights. Your same Mr. Brown says "A simultaneously created boundary results when several parcels of land are created in the same legal instant by the same person, persons, or agency and by the same instrument. All parcels have equal standing, and no such portion can be said to have prior right or seniority over any other portion" (Boundary Control and Legal Principals, Fifth Edition by Brown).
All parcels have equal standing...
Didn't we break away from the King back in the 1700s by declaring independence?
(Okay, I get the analogy, just being a smart-a**)
> "To proportion the street is either giving to the king, by excess, or taking from the king, by deficiancy, that which was dedicated to them..."
>
> What is this "king" concept that so many of you have? Why are they immune from the rules that govern the citizen? I did quite poorly in history in school, but I thought that's what the Revolutionary War was all about. Am I wrong?
>
> The fact of the matter is that we are not "taking" or "giving" anything to anyone! We are talking about a long-accepted practice of dealing with systematic measurement errors. If you think that this "king" gets exactly the width shown on the plat then you are saying that its property has senior rights. Your same Mr. Brown says "A simultaneously created boundary results when several parcels of land are created in the same legal instant by the same person, persons, or agency and by the same instrument. All parcels have equal standing, and no such portion can be said to have prior right or seniority over any other portion" (Boundary Control and Legal Principals, Fifth Edition by Brown).
>
> All parcels have equal standing...
Not so. The King, otherwise known as the city/county/state/feds/ISD/anyotherquasijurisdicition begins to take on the role that what is theirs is theirs and cannot be taken, proportioned, usurped, or anything else. With regard to streets, whether in easement or fee, once dedicated to the proper authority, they are theirs and must get their width.
The argument, that I see, that Brown is making, is that you cannot look at the tracts in a vacuum. All have equal standing when deciding on where the corners are to be placed. That being said, once the standing of the tract is elevated past private to public standing, then the rules of engagement change, and Brown goes over that also. We cannot cherry pick those snippets that best support our argument.
Like I said, it's a paradox. You CANNOT, in East Texas, in subdivisions prior to 1970, work from block to block. It doesn't happen and everything gets funked up. So, theoretically, you should consider the whole, but where do you stop. So you found your Northwest block corner and the Northeast block corner of the block East of you. Is it a 4 way? Did you look at the adjoining blocks, what about the other blocks. Theoretically, you better survey the whole damn subdivision. That's theory.
Reality sets in when you realize that the block corners were set (maybe), and probably none of the lot corners were, and you're dealing with everyone's interpertation of where they thought the lines of the tracts should be place. Also, you can only proportion between ORIGINAL corners, and no one in subdivisions really can say that with old iron stakes and crappy subdivision maps. So stay in your block.
But the king "the city" gets their call. Otherwise, you're taking from the king (city) and that's a no-no.
Think about it, if the street was called to be 60 feet, and you say it's 59.1, then you've taken 0.9' of the street from the city. Conversely, if you say it's 60, and proportion the blocks accordingly, then the right-of-way won't EVER work, unless you have no other corners and you can set in the other 6 block corners.
I understand your rationale, but it's wrong.
🙂
I don't buy this King stuff, even tho I brought it up.
I need some sort of legitimate court case that reads that the street is forever the original distance.
Keith
Yeah, but all they did is hide in another clothing, so we just call them what they are. 🙂
I'm in favor of holding..
:good:
Then you are denying that a subdivision is a simultaneous conveyance, and I don't believe that's correct.
Same here Keith. I've been looking for 30+ years, and there is none. ALL my "learned treatises" state that a subdivision plat creates ALL parcels simultaneously and NONE have senior rights. Its black and white to me..
Look at and read the page from Brown that I posted. Maybe that will wake you up.
I've read it many times Leonard, many times, and I am quite awake. Read Platt's "Arizona Boundary Law". Read Brown's "Principle 13." (After natural monuments, artificial monuments that represent the actual lines run by the original surveyor at the time of making the plat are presumed to control street lines irrespective of whether or not the courses, distances, and street improvements agree with the plat.) Proration is the legally accepted method of dealing with systematic measurement errors made by the original surveyor.
Show me a case where junior/senior rights were declared to exist in a subdivision where all the parcels were created simultaneously. Considering streets dedicated on a subdivision plat to have senior rights is in clearly contradiction with the theory of simultaneous conveyance.
What does the heading say? Does it not reference simultaneous conveyances? Also it does address the issue of recovered street monuments. Pretty straight forward it appears.
Proportioned street width or not, if the full, as dedicated, street width is needed, that is what the public body will use. Think both positions can be defended by a surveyor but what the public body wants, they usually get. Even local practice is a poor guide, around here you find both. Since it effects setback distances, I tend to give full measure to the public street ROW unless I find very good reason not to.
jud
PS
Also consider that the home owner is the one that defends his property. Not the surveyor. The Surveyor is accountable for any damages or loss his actions cause his client.
> Look at and read the page from Brown that I posted. Maybe that will wake you up.
I wish Brown would have provided citations. Same with JB's post above. I did take note that my copy of Brown also includes his statement to the effect that this principle is dependent on the particular jurisdiction's rulings.
As is the case in many aspects of boundary surveying, is it possible that there is no one true and correct answer? But rather is dependent on the most reasonable analysis?
I myself have not come across a landmark decision in my jurisdiction. It possibly may exist as I haven't had a job that required that decision and research in recent years. Earlier in my career I applied the principle per Brown's teachings, but I'm not quite so blind in acceptance now.
Also see "Evidence & Procedures for Boundary Location", Second Edition by Brown, Robillard, & Wilson, page 258 regarding a 1963 Ohio court case stating that alleys and streets were to get full measure in a prorate and the excess or deficiency was to be placed in the lots between recovered monuments.
I'm in favor of holding..
I'd be persuaded either way provided the surveyor adequately describes the methodology and monuments used. In that case, the difference is 0.04' per hundredth, not much to worry about. It makes me wonder about the largest (or smallest) scale factor ever applied to a subdivision.
The dedication of a right of way to the public is a contractual obligation by the subdivider. So if the contract (Conditions of Approval) states "60.00 feet", the public gets 60.00 feet.
> I need some sort of legitimate court case that reads that the street is forever the original distance.
>
> Keith
Here is a court case where the original SURVEY held, but ironically, it made the ROW less than the platted width. I was taught that proration is the last resort, really. It is much better to ascertain what the original survey was. It is only after we fail that we resort to proration.
Background: The City of Seattle (the appellant) argued that the plat held over found monuments. What makes this interesting, is that the land at issue was not simply a lot line, but was a case where the private land owners claimed ownership extending into a right-of-way called out in a plat map. The city spent a lot of time reminding the court that you cannot adversely possess a road against the government.
Opinion of the Court.—Fullerton, J.
[No. 4419. Decided January 10, 1903.]
Martin Olson et ux., Respondents, v. City Of Seattle,
"But the rule is not as the appellant assumes it to be. Where there is a discrepancy between the survey and the plat, the survey controls, when it can be ascertained, and the proof here is overwhelming that the boundaries of the lots as claimed by and in possession of the respondents are in exact accord with the original survey. The intention of one who has platted land into lots and blocks is indicated by the monuments which he has caused to be placed, marking the boundaries of the same, and another has a right to purchase from him with reference thereto, and such monuments and boundaries cannot be changed by showing that they do not conform to a plat on file. Lots in cities and towns are not held by such a precarious tenure."
> I was trying to ask about the case where the two monuments on opposite sides of the street were 59 feet apart. Do you correct them to give the street its 60 ft record width? If so, that might be a legitimate place for a pincushion?
I answered the question. "Finding two opposite block corner monuments will fix the street width, but not for any reason due to the apportionment rule. That reasoning hinges upon the intent for the monuments to mark the block line coupled with proof of the fact that they were relied upon by subsequent purchasers."
The monuments hold.
JBS
> "The private and public property, however, are not on equal footing..."
>
> Really? Why would that be?
Yes, really. Private property rights are not on equal footing with public rights. The only reason the public has property is because of the need for the public. Private property rights are always held in higher esteem than the public. That's the basis for a number of laws we have, such as reversion of vacated streets, etc.
>If the originally surveyor had a 100 foot long tape that was actually 99 feet long why wouldn't all his measurements be wrong? Don't I need to follow in his footsteps? Don't I need to attempt to do what he actually did, not what he should have done?
You are referring now to an indexing error, not the apportionment rule. In order to retrace a surveyor with a missing foot, you need to follow his footstep by repeating the same error. The apportionment rule is designed to distribute excess and deficiency to the private parcels because of their equal footing. Indexing error is designed to follow the footsteps of the surveyor.
>
> I just don't buy into a system of double standards where I follow in the footsteps sometimes but not others. I don't believe that a court would tell me that a subdivision plat does not simultaneously create ALL of the parcels thereon, all with equal standing, in which case all are treated the same.
It's not a double standard at all. It's different rules for different reasons. Would you consider jr/sr rights, which trough all the excess/deficiency into the jr parcel as a "double standard?" Of course not. The rule of apportionment doesn't apply to sequential conveyances. Yet, if you were retracing a sequential boundary and found the surveyor to have used a defective chain, you'd compensate for the error by repeating it. Different rule for a different reason.
I guess I don't understand why surveyors have such a problem accepting the fact that their decisions are governed by the law. It's not a choice that surveyors can make. We don't have to "buy into" it. We simply have to understand it and apply it. It's the law, not a choice.
JBS
