Duane Frymire, post: 439595, member: 110 wrote: One way to research this is to ask the question of your State Attorney General. It may take awhile to get an answer. But appropriations are usually derived from state statute and/or the state constitution. The attorney general may already have written an opinion on it (you can search previous opinions). These opinions are usually well researched with reference to any available court cases. The problem with appropriations is that they are an exercise of eminent domain power, hence determining the extent has constitutional law implications. Not merely a contract interpretation problem derived from a deed or patent.
I have been told by our AG's representative that our AG does not retain records over 7 years old, in accordance with State Statutes regarding records retention. I do not believe this, but that is what I am told.I am looking for a 20-year old agreement wherein the AG's office agreed to let DOT surveyors practice to a different standard than non-DOT employees. Neither the DOT, the Board, nor the AG's office seems to have any record of this agreement.
aliquot, post: 439650, member: 2486 wrote: The road certainly can be the monument in all states if there is nothing else, but has it been ruled that the current location of the road overrides DOT monuments? If so, please share the rulling. The cases I have ssent have ony been physical location of road vs. written document, not location of the road vs. DOT monuments.
I doubt that there is a ruling for the monuments vs. deed location. The ruling I'm referring to is about the location of the road overriding the deeded description. What happens when the physical road is not where the written description places it. In one case the road is 1/2 mile from the description, but the court ruled it doesn't matter, the road is the public right of way regardless.
Shawn Billings, post: 439617, member: 6521 wrote: rights of way, not right of ways...
sorry. It's been bugging me since yesterday.
No problem. Thanks for the correction
Jim in AZ, post: 439533, member: 249 wrote: In my State the DOT does not accept any existing monument as being on the easement (or parcel) line. All monuments found are noted as to how many hundredths of a foot they lie from where the offset a reconstructed, usually unmonumented centerline lies. As a private surveyor I can not do this, I must follow State statutes - I must set my new monument based upon the location of the nearest accepted monuments, whether they fall on the theoretical DOT line or not. The DOT sets their monuments on the theoretical line. Makes for interesting discussions...
While researching the internet on Rights of Way, I found a document (attached) titlted The Arizona Department of Transportation Right of Way Survey & R/W Plans Preparation Process. On pg. 13, it states that "It is the position of the ADOT Right of Way Plans Section that in general, existing highway right of way monuments, especially if they were set pre-2000, are not considered to be "errorless" or "original" monuments, and most of the time their position should not, or cannot be literally held". Very interesting
MightyMoe, post: 439661, member: 700 wrote: I doubt that there is a ruling for the monuments vs. deed location. The ruling I'm referring to is about the location of the road overriding the deeded description. What happens when the physical road is not where the written description places it. In one case the road is 1/2 mile from the description, but the court ruled it doesn't matter, the road is the public right of way regardless.
Right, in this case the road is the best evidence of the location of the original aquisition.
What I am still looking for is something supporting the opinion of those who belive DOT monuments don't control. I don't think a statement from a DOT employee is enough without a statute or judicial history to back it up. Just like the title companies and local governemt employees, DOT employees are likely to repeat what they have been told by others as if it is the law. Sometimes these people are correct, but othertimes it is just wishfull thinking. I have no interest in doing what the state says, just because they say it, but I will do my best to apply the correct law.
HICALS, post: 439667, member: 6788 wrote: While researching the internet on Rights of Way, I found a document (attached) titlted The Arizona Department of Transportation Right of Way Survey & R/W Plans Preparation Process. On pg. 13, it states that "It is the position of the ADOT Right of Way Plans Section that in general, existing highway right of way monuments, especially if they were set pre-2000, are not considered to be "errorless" or "original" monuments, and most of the time their position should not, or cannot be literally held". Very interesting
But their "position" doesn't matter is if it contrary to the law. This isn't a regulation, it is just a position, and their position is contrary to all other boundary law. Errors in measurent don't normally invalidate monuments and neither does the fact that a monument was not set by a surveyor. Why is the DOT special. Even the federal goverment doesn't claim the right to claim the exact paper dimensions and to ignore good faith locations by non surveyors. There may be a good legal reason for what they are claiming but it wasn't presented here.
aliquot, post: 439669, member: 2486 wrote: But it doesn't matter what there position is if it contrary to the law.
That's my line of thinking also. I was just surprised that the ADOT Right of Way Plans Section published their position.
Title: found only in the Deed except in limited circumstances.
Location: found both inside and outside the Deed. Extrinsic evidence is allowable except as it effects title.
HICALS, post: 439670, member: 6788 wrote: That's my line of thinking also. I was just surprised that the ADOT Right of Way Plans Section published their position.
And I have seen other DOTs claim the same thing, but when confronted with my opinion of the the boundary based on their monuments they eventually abided by my boundary.
I think the way it works is when they resurvey a boundary they follow that procedure and set new monuments. Usually the adjoiner doesn't need a survey for many years after the DOT resurvey, and by that time it is usually appropriate to accept the latest DOT monumentation. Otherwise, the adjoiner can waste their money in court to find out DOT now has a perspective easement.
aliquot, post: 439647, member: 2486 wrote: Most aquisitions are not through eminent domain. There may be differences in title law when dealing with eminent domain, but is there a difference in boundary law? If anyone finds anything please post.
I could be wrong but I think the OP was talking about strip descriptions based on modern (early to mid 20th century on) road acquisitions, for new roads or widening existing. If that's the case it's an exercise of eminent domain, whether the individual agrees to the price initially or not. It doesn't have to go through an individual condemnation procedure to qualify as a taking. If it's not offered up as part of a subdivision, or part of the ancient farm to market user (prescriptive) road system, then it's almost certainly an exercise of eminent domain, in which case the boundary rules are probably a bit different. For practical purposes, many of us accept the right of way monuments, but push comes to shove and the line is probably going to be based on the baseline offsets if the baseline can be recreated with a reasonable degree of certainty and it differs substantially from the monuments (whether the monuments have been relied on for years or not). But again, reason says that after many years the baseline reconstruction might never be reasonably retraceable. Except, now the baselines are in state plane (and have been for some time) and the coordinates may well be controlling in that case.
Struggling with one right now. One monument was set between two baseline points. Found the monument. Baseline points are gone. DOT provided the state plane coordinates. Do I hold the coordinates or do I shift the picture 2 tenths to match the one monument? Or do I go miles down the road until I find some two baseline points or eliminate the possibility of their existence? Then if I find two baseline points do I recreate everything based on those even if it now misses the monument in front of my parcel by half a foot or more? I'm inclined to just use the coordinates as they hit the top of the monument and DOT has error in their survey and stakeout and so do I. But I doubt I'll find a court case spelling that out. Did I mention DOT sent me a monument setting verification form, wherein the stamping surveyor certified the monument was set within 0.003 m, the monument is below surface and completely undisturbed. Hmm, maybe the monument instead of the coordinates? I hate dealing with this minutae. The more important part is a previous surveyor has my entire parcel 70 feet from where it should be and DOT takings the same or more off (although DOT gets what they take, even if didn't really come out of my parcel as described).
Jim in AZ, post: 439655, member: 249 wrote: I have been told by our AG's representative that our AG does not retain records over 7 years old, in accordance with State Statutes regarding records retention. I do not believe this, but that is what I am told.I am looking for a 20-year old agreement wherein the AG's office agreed to let DOT surveyors practice to a different standard than non-DOT employees. Neither the DOT, the Board, nor the AG's office seems to have any record of this agreement.
They may not retain the records (entire file) studied in formation of the opinion, but not sure how they can throw out AG's opinions. But it may have been an informal agreement not rising to the level of an official opinion.
Since I do a lot of road construction, my purpose is sorta opposite of many here. I have used R/W markers attempting to establish a better centerline for the purpose of construction, not boundary determination.
What I do if I find a marker on each side is draw a line between them and use the midpoint, provided the R/W is the same width each way, or prorate the centerline between the markers. Finding one marker doesn't tell me much. Finding an abundance of single markers does help.
I can show you roads that the width was increased by adding 5 foot to one side and moving the center stripe over 2.5 feet. I can show you one road that the engineer messed up on the plans and the road moved 7 feet, conflicting the R/W markers in the area.
There is not any one size fits all solution here.
James
Our State DOT does not dictate how to retrace the highway boundary. They do require that any new Right Of Way Plans be signed and stamped by a licensed land surveyor. Most of the older highway descriptions I've seen have been metes and bounds descriptions vs. strip descriptions (as to the original post). However the staking of the highway and setting of the old ROW Monuments were based on a station and offset from the centerline of the roadway and the station and offset to where the ROW Monuments were to be set were part of the old ROW Plans.
aliquot, post: 439668, member: 2486 wrote: Right, in this case the road is the best evidence of the location of the original aquisition.
What I am still looking for is something supporting the opinion of those who belive DOT monuments don't control. I don't think a statement from a DOT employee is enough without a statute or judicial history to back it up. Just like the title companies and local governemt employees, DOT employees are likely to repeat what they have been told by others as if it is the law. Sometimes these people are correct, but othertimes it is just wishfull thinking. I have no interest in doing what the state says, just because they say it, but I will do my best to apply the correct law.
I can say that I got into a discussion with one DOT employee, I couldn't persuade him that even though a subdivision street said 90 feet in width, it didn't mean when it became a state highway that the 90 feet overrode found evidence of the original street. This isn't the prevailing DOT stance, but it sure can be a frustrating discussion, the old "king gets his". Not sure there ever was a case where the courts would rule about the monument vs. deed in a ROW dispute. I would like to see that also.
I seem to remember some Caltrans right of way maps that had a note stating that the "T" bars w/tags set along the exterior of the right of way were set for fencing purposes only. I don't recall what was stamped on the tag.
I see them held all the time as best available evidence of the R/W. Of the few I have tied...some fit like a glove, others miss record dimensions by feet.
Wasn't that long ago this issue was discussed here.
https://surveyorconnect.com/community/threads/dot-boundaries.329781/
Warren Smith, post: 439642, member: 9900 wrote: HICALS,
California codified the principle of holding monuments early on (1872) when the construction of the descriptive part of a conveyance of real property is doubtful and there are no other sufficient circumstances to determine it.
This is the general statement of the law, and the particulars are held in case law - searchable by topic.
Almost identical for Oregon Revised Statutes
93.310 Rules for construing description of real property. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it:
(1) Where there are certain definite and ascertained particulars in the description, the addition of others, which are indefinite, unknown or false, does not frustrate the conveyance, but it is to be construed by such particulars, if they constitute a sufficient description to ascertain its application.
(2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles or surfaces, the boundaries or monuments are paramount.
(3) Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.
(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title.
(5) When tidewater is the boundary, the rights of the grantor to low watermark are included in the conveyance, and also the right of this state between high and low watermark.
(6) When the description refers to a map, and that reference is inconsistent with other particulars, it controls them, if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.
Jp7191, post: 439693, member: 1617 wrote: Almost identical for Oregon Revised Statutes
93.310 Rules for construing description of real property. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it:(1) Where there are certain definite and ascertained particulars in the description, the addition of others, which are indefinite, unknown or false, does not frustrate the conveyance, but it is to be construed by such particulars, if they constitute a sufficient description to ascertain its application.
(2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles or surfaces, the boundaries or monuments are paramount.
(3) Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.
(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title.
(5) When tidewater is the boundary, the rights of the grantor to low watermark are included in the conveyance, and also the right of this state between high and low watermark.
(6) When the description refers to a map, and that reference is inconsistent with other particulars, it controls them, if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.
I think most states have statutes like this, and if they don't they have case law (angle vs. distance does vary). I haven't yet seen one that says, "except DOT rights of way ."
Duane Frymire, post: 439676, member: 110 wrote: I could be wrong but I think the OP was talking about strip descriptions based on modern (early to mid 20th century on) road acquisitions, for new roads or widening existing. If that's the case it's an exercise of eminent domain, whether the individual agrees to the price initially or not. It doesn't have to go through an individual condemnation procedure to qualify as a taking. If it's not offered up as part of a subdivision, or part of the ancient farm to market user (prescriptive) road system, then it's almost certainly an exercise of eminent domain, in which case the boundary rules are probably a bit different. For practical purposes, many of us accept the right of way monuments, but push comes to shove and the line is probably going to be based on the baseline offsets if the baseline can be recreated with a reasonable degree of certainty and it differs substantially from the monuments (whether the monuments have been relied on for years or not). But again, reason says that after many years the baseline reconstruction might never be reasonably retraceable. Except, now the baselines are in state plane (and have been for some time) and the coordinates may well be controlling in that case.
Struggling with one right now. One monument was set between two baseline points. Found the monument. Baseline points are gone. DOT provided the state plane coordinates. Do I hold the coordinates or do I shift the picture 2 tenths to match the one monument? Or do I go miles down the road until I find some two baseline points or eliminate the possibility of their existence? Then if I find two baseline points do I recreate everything based on those even if it now misses the monument in front of my parcel by half a foot or more? I'm inclined to just use the coordinates as they hit the top of the monument and DOT has error in their survey and stakeout and so do I. But I doubt I'll find a court case spelling that out. Did I mention DOT sent me a monument setting verification form, wherein the stamping surveyor certified the monument was set within 0.003 m, the monument is below surface and completely undisturbed. Hmm, maybe the monument instead of the coordinates? I hate dealing with this minutae. The more important part is a previous surveyor has my entire parcel 70 feet from where it should be and DOT takings the same or more off (although DOT gets what they take, even if didn't really come out of my parcel as described).
I guess we are starting to drift off topic...
aliquot, post: 439694, member: 2486 wrote: I think most states have statutes like this, and if they don't they have case law (angle vs. distance does vary). I haven't yet seen one that says, "except DOT rights of way ."
I think what sets "DOT rights of way" apart from most transactions is that it is acquired under eminent domain which begs the question "if they need of a road requires a 100' swath of land why would they suddenly get other than exactly 100'". Also it is always acquired prior to being monumented and becomes a separate parcel without adjoining corners or monuments of where the road is going to be.
Jim in AZ, post: 439646, member: 249 wrote:
IMHO this is a basic precept of surveying almost everywhere (except Inonesia;)),...
Now that's just Francis Funny right there.
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