Not to worry, Leon
Nobody is expecting the owner's to 'show the surveyor' where the boundary is, this is mickey's consistent mischaracterization.
The surveyor is bound to recognize the validity of the physical evidence already in place because a competent surveyor knows the description does not control the location of the property lines.
Remember, the bright red sponge rubber nose, extra large shoes that flap when he walks, the three-legged stool, the pail and the gold plated vise grips; along with the asinine rejection of section 16 of the Texas Civil Procedures and Remedies Act.
Richard Schaut
🙁
Not to worry, Leon
Actually, I hate to intercede into this type of thread, but I feel compelled to do so at this time. LR, what are your answers to the 2 questions you posted above and I quote, "What authority do you have do set that marker where there isn't one needing repair or worse, never has been one? Aren't the landowners the directing authority?"
My opinion about the answer to the first question is that in Texas we are bound by state law to show all found corners that are relevant to the resolution of the property we were hired to survey and set monuments at all corners that do not have monumentation.
I interpret your second question to mean that the landowners have the right to tell the land surveyor where the deed lines are located. That is just not so here in Texas. We must "follow in the footsteps of the original surveyor". The clients are not our directing authority. The only directing authority Texas land surveyors have is the State of Texas. We can't show favor to our clients when resolving the locations of the property lines because we have a higher responsibility to the "public". If one is prudent, one follows evidentiary procedure in resolving said lines and nowhere in that list is there a mention of clients' wishes. Clients' presenting external and heretofore unknown evidence is something else, however.
If there is an unrecorded boundary line agreement between both landowners, a prudent surveyor should publish that agreement and write a new metes and bounds description so that the agreement becomes a matter of public record, but that agreement must be documentd with, in my opinion, notarized, sworn statements.
While I don't approve of Mr. McMillan's methods of making a point, he does make one. Even if there is parol evidence of some boundary line agreement, we must show the location of the original, undisturbed monuments which established the known boundary line. New evidence may establish a new boundary line, but can't change the location of the previous.
Generally, we are hired to locate, show and monument existing recorded boundary lines.
I personally have never, in 36 years of land surveying, encountered a situation wherein parol evidence of a boundary line agreement was a part of a boundary which I was hired to survey. Without exception, so far, the situation has been quite the opposite: Each land owner wanted every square inch of land to which their respective deeds entitled them.
Mr. Chiles
> Actually, I hate to intercede into this type of thread, but I feel compelled to do so at this time. LR, what are your answers to the 2 questions you posted above and I quote, "What authority do you have do set that marker where there isn't one needing repair or worse, never has been one? Aren't the landowners the directing authority?"
>
> My opinion about the answer to the first question is that in Texas we are bound by state law to show all found corners that are relevant to the resolution of the property we were hired to survey and set monuments at all corners that do not have monumentation.
>
> I interpret your second question to mean that the landowners have the right to tell the land surveyor where the deed lines are located. That is just not so here in Texas. We must "follow in the footsteps of the original surveyor". The clients are not our directing authority. The only directing authority Texas land surveyors have is the State of Texas. We can't show favor to our clients when resolving the locations of the property lines because we have a higher responsibility to the "public". If one is prudent, one follows evidentiary procedure in resolving said lines and nowhere in that list is there a mention of clients' wishes. Clients' presenting external and heretofore unknown evidence is something else, however.
>
> If there is an unrecorded boundary line agreement between both landowners, a prudent surveyor should publish that agreement and write a new metes and bounds description so that the agreement becomes a matter of public record, but that agreement must be documentd with, in my opinion, notarized, sworn statements.
>
> While I don't approve of Mr. McMillan's methods of making a point, he does make one. Even if there is parol evidence of some boundary line agreement, we must show the location of the original, undisturbed monuments which established the known boundary line. New evidence may establish a new boundary line, but can't change the location of the previous.
>
> Generally, we are hired to locate, show and monument existing recorded boundary lines.
> I personally have never, in 36 years of land surveying, encountered a situation wherein parol evidence of a boundary line agreement was a part of a boundary which I was hired to survey. Without exception, so far, the situation has been quite the opposite: Each land owner wanted every square inch of land to which their respective deeds entitled them.
I'm certain that you have misinterprested Leon's statement. In the 6 or 7 years that I've been reading his posts, I have never known him to advocate placing a boundary in aposition contrary to where a careful consideration of all available evidence would place it.
Go back to the post where he cut-n-pasted a passage from Clark. That explains the "directing authority" parallel he was trying to make better than the use of that term. It is by the landowners' authority that the surveyor is there. From that point, they heve ceded authority to the surveyor to determine where the boundary line as originally established exists. Landowner testimony may prove useful in that regard. Afterwards, the landowners may decide that they do not like the location of the line determined. Moving it requires a different process.
As to the rest of your post, from all I've read of Leon's surveying, I believe you and he are on the same page on more than you would disagree about. Also from your statement, I suspect that you may disagree with Kent more than you know. From all I've read of his surveying, unless there is an existent original called for monument and the words of the deed lead you right to it, there is no other valid form of evidence to ascertain the footsteps of the original surveyor. That's rather narrow in my view.
Hopefully Leon will come back and make his own statement to clarify his points.
Evan
I don't think the clients have exactly ceded authority to the surveyor when they ask for an opinion of a boundary line. They don't have to agree with the surveyor's results, do they?
Not to worry, Leon
The original question was:
If you need to set a marker on an existing land parcel (other than repairing a deteriorating mark), what is the chances that you are doing something beyond a retracement survey?
By definition
6-7. A retracement is a survey that is made to ascertain the direction and length of lines and to identify the monuments and other marks of an established prior survey. Retracements may be made for any of several reasons. In the simplest case it is often necessary to retrace several miles of line leading from a lost corner which is to be reestablished to an existent corner which will be used as a control. If no intervening corners are reestablished, details of the retracement are not usually shown in the record, but a direct connection between the two corners is reported as a tie. On the other hand, the retracement may be an extensive one made to afford new evidence of the character and condition of the previous survey. Recovered corners are rehabilitated, but a retracement does not include the restoration of lost corners or the reblazing of lines through the timber. The retracement may sometimes be complete in itself, but usually it is made as an early part of a resurvey.
Setting a new mark would be either a dependent resurvey or an independent resurvey.
6-1. The resurvey, like an original survey, is subject to approval of the directing authority.
Who is the directing authority in a resurvey of private lands? The BLM? No. The court has final authority. The private land owner who hires the surveyor is seeking the legal location of their boundary. No more and no less. Most of the time the surveyor is the only shot they will get at having their day in court. Any line that is marked anywhere else than where the court would be led to decide its location is irrelevant.
6-10. The rules of procedure laid down in the Manual of Surveying Instructions for the re-marking of lines of previous surveys are intended to be in harmony with the leading court decisions in suits involving boundary disputes. The rules should be applied that the courts may, with security, accept the boundaries thus determined insofar as they represent the true location of a particular piece of land intended to be conveyed by a patent.
The courts do not accept calculated corner locations as land intended to be conveyed by patent with security if there is any other acceptable evidence of establishment. How in the world do you show the location of the original, undisturbed monuments which established the known boundary line even when there is parole evidence of an established boundary with no other original monuments marking it? It's by calculation and its going to lose to acceptable parole evidence of the patented line.
Jack
The "directing authority" words came from the third post in this thread. That was a BLM definition of a RESURVEY. The BLM has resurvey authority delegated to it by the United States, the landowner or at least interest holder in the land being resurveyed. So in this case for a resurvey, which I take to be a new laying down of the lines either to correct ugly originals or for whatever reason the United States desires. The United States as land interest holder can resurvey their interests. As the quote from Clark points out and the BLM Manual directs, they must respect prior patents to the private sector and survey these boundaries in their bona fide location. So you have the landowner resurveying its own land under the authority of the landowner which is the United States. The landowner (United States) has delegated the authority to do the survey work to the BLM (an agency of the United States).
Now my interpretation of the quoted Clark section is that private surveyors do not have authority to establish boundaries. By establish I take it to mean fix the legal location of the boundary line between to adjoining landowners. So if a resurvey is to lay down new lines then I'd say that the adjoining landowners must be on board. The landowners must accept the resurvey and rely on it for it to be binding. The surveyor can do the work, but the surveyors work does not establish the location of the boundary. If the landowners (both) hired a surveyor to resurvey the line and specifically authorized the survey for the purpose of settling an uncertain boundary location I suppose the establishment would be almost immediate. Clark addresses this also. Properly executed and recorded documents to this would be the most ideal. So in line with the BLM definition of a RESURVEY in the private sense the “directing authority” would be the landowners (all landowners with an interest in the resurvey). The landowners could commission a licensed surveyor to do this resurvey and authorize the surveyor to perform the resurvey.
So now I suppose I'm going into the territory that is going to be controversial. I see surveys that are essentially resurveys (well beyond sound retracement). A pin cushion corner comes to mind amongst others. I hear very few landowners tell me after the fact that they even knew a survey of their boundary was being done. So these surveyors are setting resurvey corners without even talking to many of the landowners that they are messing with their boundary, let alone getting an authoization to survey the boundaries. Usually only the one landowner that hired the survey knows its being done. So from my point of view what is being done is a resurvey and attempt to establish a boundary which the surveyor has no authority to do. So why take the risk and liability of doing a resurvey, you could be sued.
Sure, if you can retrace the evidence of the existing original survey and the landowners have accepted it and relied upon it the surveyor is doing what they are licensed to do. But they are not trying to establish a boundary line, just locate the existing established boundary. Yeah, a few destroyed (obliterated) corners can be reset with sufficient evidence to put it back where it was.
But where I work you may have what automatically becomes an ambiguous description the minute you hit the ground. So in these situations the deed alone isn't going to cut it and many times an established boundary location exists on the ground. The deed gets you there but the simple math only description (usually without any calls to monuments at the corners) doesn't provide the evidence to perform a retracement. There may be physical evidence of the boundary history and establishment but you won't find it in the deed nor many times digging in the dirt either. Sometimes you can locate some original survey info off the record or figure out that some markers where originally set and not described in the record. But all this evidence is out side the four corners of the deed. So eventually the surveyor may have enough evidence to justify a retracement of the established boundary even without it being described in the deed.
But sometimes you can't retrace the boundary or its just to weird to call what you found evidence of an established boundary, or maybe the liability factor bothers you. Honestly sometimes I just decide that I can't retrace the boundary, it's to uncertain, lack of evidence, things just don't gel.
So what do you do, resurvey the property? I say no. You are not authorized to do resurveys, only retracements and new boundaries for a client inside an existing parcel. But I see plenty of resurveys on file at the county surveyors office. Some of them show what I would consider the original evidence as an occupation line sort of parallel to the resurvey line (two or more lines must be better than one). And what good are these resurveys? They don't hold much weight other than they can become testimony in a boundary dispute. In that case they have a negative value to a landowner. In my opinion, opinion surveys are worthless to a landowner.
A surveyor would provide a much more valuable service to landowners if when things are uncertain they would admit they can't do the retracement survey. Deal with the problem straight away, get the landowners to authorize you to provide your best shot and accept it. It's a lot more work than a quick resurvey, but there is no liability and you are not doing something not authorized to do.
If you buy into the idea that Kent has tried to pin on me that I let landowners direct me where to place their boundaries, then that just proves how damaging slander can be. I retrace if I can. When I can't I resort to having the landowners settle the problem with my help if they want it. Sometimes I go happily on my way. If the landowners want to relocate a line that I definitely know couldn't be considered a legitimate boundary line agreement then they would need to convey the property (a boundary line adjustment).
But let's just keep this straight. My basic opinion is in line with Clark's version of what authority a surveyor has to establish boundary lines. I'm reluctant to even post this at all for obvious reasons.
I believe I'm a libertarian by nature. From what I hear about the regulation of surveying in Texas, I'm sure I couldn't work there. Sounds as if the law has been put to death by board regulations. I'm fighting this very thing in Utah, seems there is no end to proposed solutions by stupid legislation. No legislator will ever match the wisdom developed by centuries of thoughtful thinking by the courts.
Jack
There is a difference between responsibility and authority. Judges and land owners have authority. Licensed Land Surveyors have responsibility but not actual authority over land owners and Judges. Land Surveyors develop and opinion which we have a responsibility to do competently and in accordance with our State laws but we have no authority to impose our opinion.
Resolution
No legislator will ever match the wisdom developed by centuries of thoughtful thinking by the courts.
That pretty well summarizes the concept of the thread in a single succinct sentence.
Well done.
Dave
Well Dave, private surveyors survey under state authority. It should be noted that there is no such thing as private ownership of property without the "state" making legal provision for such a notion.
Jack
Great observations by LR Day. Bulls eye!
I wonder how many disputes could be avoided if the surveyor would stop to explain to all involved why the boundary cannot be retraced and that authorization is required to continue a resurvey?
LRDay
Only the original surveyor creates boundaries, and his work is not open to collateral attack from other surveyors. As a retracer, you are merely attempting to ascertain or identify boundaries from the evidence available; short of having the deceased original surveyors come back and retrace their lines for you. So if you have to set corners in the course of your work, are you really "establishing" the boundary? Of course not, it already exists, and is not alterable. Are you altering the original boundary? Again, of course not, no more than a pincushion provides 'x' number of corner locations (there is only one)! It is only your professionally rendered opinion as to where the boundary is located, thats what you get paid for whether you think its 'worthless to a landowner' or not. It would be arrogance to presume that just because YOU had to set a corner, that you are either establishing or modifying the original boundary.
butch
It appears to me that we agree other than the value of a opinion.
I know it is very common for surveyors to duck behind the "its only an opinion." But the opinion can have serious consequences for landowners. It can cause disputes and great expense.
Opinions can have serious liability. Ask an attorney to render an opinion that you intend to rely on. They likely won't do it or if they do it will really cost you a lot. That's because they realize that there is seriuos liability attached. For some reason surveyors think it's just normal practice (it appears $500 lot survey opinions are quite common). Unfortunately few surveyors get sued and taken to task for issuing bad opinions, so the practice goes on all the time. Most folks don't act on them or if they do the problems caused don't get properly put back onto the surveyor that caused the mess to begin with by doing a opinion resurvey. But if you do get sued it may cost you dearly and it should if you damaged a landowner.
I know I'm out of the mainstream here but I'm a landowner also. Landowners when they want a survey expect that their boundary is going to be located. The surveyor should be the professional to help them do this. If all you can do for them is some quick opinion what good, really , is that? What the landowners needs located is the established boundary that they can rely upon to do whatever the plan to do. So other than give some opinion why not help them get the boundary established. It might be a lot of work other than field surveying to accomplish this task especially if the boundary can't be retraced. In that case the adjoiners are going to need to be engaged so that the parties can establish the boundary.
If the boundary is clearly retraceable the survey is not just an opinion. A retracement is just refreshing the existing established boundary which the surveyor has been able to find. If you need to render an opinion on which of several points a corner could be located at maybe you don't have sufficent evidence to retrace. You should search for more evidence and facts for the retracement or admit that you can't retrace the boundary. Rendering an opinion just to get paid when the landowner has not been served in locating an established boundary or establishing an uncertain boundary is not serving the client in my opinion.
The worst opinions in my view are the ones you find plugged in the ground without much supporting documentation to back them up. Let's be honest, they are all over the place and landowners are aware. Then we wonder why we are not hired to solve these problems. Maybe surveyors to a certain extent are the problem.
Dave
I agree. Did my words imply something else? If they did, I take them back. The only authority I have is over my mancave in my home. That authority was given to me by SWMBO and she admits that even she cannot reacquire said authority.
Steve
It is a temporary ceding of authority, and one that a landowner on either side of the line may reject once the job is done.
One or more landowners calls the surveyor and says "show me where my (our) lines are." After that, the landowner may supply testimonial or other non-record evidence, but does not tell the surveyor how to do his job. The authority of properly locating the lines according to the evidence is the surveyors.
Until called in by a landowner, the surveyor has no authority to make any boundary determinations along their private lines. That authority only comes at the invitation (contract with) one or more of the interested parties. Their actions with respect to the lines marked indicate whether they continue to honor the decisions of the surveyor in the form of lines marked under his authority to practice as granted by the state and under the authority to practice on their lines as temporarily granted by the landowners themselves.
Once the results come in, one or both landowners may decide they do not like, or in some case do not trust the veracity of the surveyor's results. If one accepts and the other rejects the results, then a conflict arises. How that is resolved depends upon the circumstances and how the parties decide to approach it.
If both parties reject the survey results, they can either get a second opinion, or they can seek an administrative remedy to place the line where they wish it to be. In this manner, the landowners are overriding the authority that they previously granted to the surveyor.
Reading ahead to Leon's post below, he seems to be addressing situations where the record (deed description) cannot be reconciled with the evidence of boundaries as originally established on the ground, latent ambiguities. He also refers to situations where it is apparent upon looking at the deed that the boundary will not be properly locatable. I don't know if he is speaking from experience that he is certain to find latent ambiguities upon going into the field, or if he is speaking of patent ambiguities that render the property unsurveyable by defects visible and readily apparent in the description itself. Either way, it renders the true boundary location uncertain.
In that case, if it is truly uncertain, then a Boundary Line Agreement is in order. In the case where a BLA is to be executed, the authority to direct the placement of that line lies with the landowners and not the surveyor (unless part of a court ordered agreement to settle a dispute where the court specifically authorizes the surveyor).
It isn't entirely applicable to draw parallels to BLM definitions, but if I were to do so, a Retracement is the survey act of finding existent lines and monuments. It involves no remonumentation at all. A Dependent Resurvey would go one step further by re-establishing missing monuments at the original corner locations according to the best evidence available. An Independent Resurvey would be the act of establishing boundaries in locations where they may or may not have existed previously, actually in disregard of where they may have been, and for the purpose of superceding any line which may have existed previously.
In common private practice parlance, we tend to lump Retracement and Dependent Resurvey together when speaking of a boundary survey of an existent parcel. An Independent Resurvey in private practice terms would be one performed to reflect a Boundary Line Agreement. A Lot Line Adjustment is sort of a hybrid which says "OK, we acknowledge and accept the results of the Retracement and Dependent Resurvey, but want to move the line somewhere else".
A little long-winded, but I think I addressed your comment.
butch
> I know I'm out of the mainstream here but I'm a landowner also. Landowners when they want a survey expect that their boundary is going to be located. The surveyor should be the professional to help them do this. If all you can do for them is some quick opinion what good, really , is that? What the landowners needs located is the established boundary that they can rely upon to do whatever the plan to do. So other than give some opinion why not help them get the boundary established.
Hey, small world, I imagine 99% of the posters here are landowners too. You're equating the term "opinion" with unprofessional quicky-dick work for some reason. I don't in any way advocate shortcut practice, fenceline surveying, deed staking, or whatever...but when the deed hits the dirt (and it has to eventually), and when all is said and done the evidence i have observed, obtained, weighed, measured (ad infinitum) still results in my professional opinion (by state statute & licensing board) as to where the boundary lines are. My work will always be subject to collateral attack from other surveyors, even if I didn't set any corners.
> If the boundary is clearly retraceable the survey is not just an opinion. A retracement is just refreshing the existing established boundary which the surveyor has been able to find.
This statement equates the surveyor to a glorified subsurface utilities locator. Just 'bug' the corners, retrace the lines, render no opinion whatsoever, good to go. Of course your retracement is an opinion - or to use a better term, a conclusion. A conclusion formed on the preponderance of evidence found. Unless you actually were the original surveyor, any retracement will always be some succeeding surveyor's opinion / conclusion of where the boundary lies.
Professional opinions / practice do have liability behind them. It is why doctors, surveyors, architects, engineers, attorneys, lawyers, etc are required to be licensed in their field of practice. That is part & parcel of being a professional. Landowners pay you for more than just your ability to use a metal detector & a shovel - or at least they used to.
butch
You are certainly entitled to your opinion and I respect it. I certainly didn't mean any offense, sorry you took it that way. It's always good to grow and learn from others expressed viewpoints.
butch
none actually taken. your stance is...unique - I don't entirely understand where you're coming from, so forgive any bite my post may have displayed. at the end of the day, I'd trade stories w/ ya over a :beer: or two
Dave
Jack-I didn't mean to imply I was replying directly to you. The Subject "Jack" was because I didn't change it when replying to Leon (kind of a quirk of this website).
Dane
replying to Dane is easy, just change one letter! I agree with what you said.
I think the State gives us the authority to offer to practice as a Land Surveyor but that does not come with Judicial power.
Without government to provide the structure of laws and law enforcement property rights would be meaningless but don't tell a Republican that ;-).
Dave on letter changed
I did not say that it did. When individual surveyor's run amok. the problem is the individual surveyor running amok and not necessarily the fact that the state has the authority to license land surveyors and require them to execute certain responsiblitites. The state issued license provides the licensee with responsiblities and duties in order to continue to be licensed.
