Below is the fact set:
1) A public utility agency surveys the centerline alignment of a transmission pipeline in 1948 and 1949.?ÿ Adjoining boundary corner monuments are tied and reference monuments are set.?ÿ Notes are available but not of record at the county.
2) Deeds are written for the right of way acquisitions in?ÿ 1950.?ÿ Some deeds are written as metes and bounds describing the ROW lines and others are written as offsets from the centerline alignment.?ÿ Ties to adjoining boundary corners but not to boundary monuments are written in the deeds, but distances match what is shown in the notes above.
3) Also in 1950, the public utility agency creates ROW maps labelling the boundary corners(labelled 1-280 R and L) along the ROW lines.?ÿ ROW maps created in 1950 are not of record.
4) In 1952, the public utility agency (per the ROW) map sets concrete monuments with brass disks labelled 1-280 R and L along the ROW lines.?ÿ Field notes are available but not of record.
There is no evidence to show that the monuments found (labelled brass disks, tied adjoiners monuments, or centerline reference points) have been disturbed.?ÿ The field to record measurements between opposing brass disks (eg. 1R and 1L) are typically within a couple of tenths of a foot or better, and between the succeeding corner monuments (eg. 1R and 2R) typically within several tenths.?ÿ There has been reliance on some of the monuments and some have been held as the ROW corners on publicly recorded surveys.?ÿ The located reference points?ÿ are show similar field to record discrepancy as the opposing ROW corners.?ÿ The tied adjoiner's monuments are within a tenth of a foot or so of each other field to record.?ÿ?ÿ
Based on the above, would you recreate the centerline alignment and hold the record centerline offsets or hold the brass disks set at the ROW corners to determine the ROW and why?
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When you say "public utility agency", do you mean it is a goverment agency, or just that the agency runs a public utility??ÿ
A government agency.
I work for a public utility and it is my understanding that if an easement or ROW document is not officially recorded in the county, it will be considered invalid as soon as the grantor of the corridor conveys their parcel to another party. ?ÿThe reason being that the public had never been put on notice and the new owner could not be reasonably expected to be aware of the easement or ROW grant.
In my opinion, the recorded deeds control the true conveyance of the ROW corridor and will be the documents that control the boundary thereof. ?ÿConsidering that the utility agency created the ROW maps the same year these deeds were recorded (1950), i would expect them to be based upon the deeded conveyances and therefor the monumentation should adequately fit both sets of documents. ?ÿUnless there is some major discrepancy, I would likely hold those monuments as being the boundary.
The original Centerline map/survey (1948-1949) is irrelevant due to it not being recorded, and not having recorded property conveyances around the same time the map was made, unless seeking grant of ROW or easement rights per unwritten rights.?ÿ
I am an LSI and not licensed yet so I suppose you can take that into consideration when weighing my response, but let me know what you guys think.
- AW
Did the same surveyor or firm oversee all phases of the surveying spanning from 1948-1952??ÿ?ÿ
If the 1950s deeds have implied references to the notes, then I would have a difficult time rationalizing the idea that the intent was not to use the 1948-1949 survey as a base in which to eventually monument the RoW.?ÿ An expensive survey was commissioned, deeds were prepared, and the boundary monumented in grand fashion.?ÿ I don't doubt for a moment that it could be argued that deed calls for the centerline without specific calls to concrete bounds could prevent the acceptance of the CBs.?ÿ I would argue that the intent was clear when viewed as a whole.?ÿ?ÿ
If this is a government entity, the deeds that are described based on the centerline of the alignment, and with no calls to CBs, are of less weight than the intent of the utility company, which seems clear based on the facts presented.
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Question from a physician??s Internet forum:
If normal body temperature is 98.6?ø does a person have a fever when his temperature is 98.642358536?
The monuments simultaneously don??t exactly match the record distance and mark the limits of the easement
Hold the monuments.?ÿ
Hold the monuments because they were set with the intention of marking the easement location and presumably no one has complained since.
I'd have a hard time comming up with a good argument to not hold the monuments. The monuments were set by the agency, any possible statute of limitations has passed, they were visible to land owners,?ÿ the records were freely available to the public, and the monuments have been used.?ÿ?ÿ
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I work for a public utility and it is my understanding that if an easement or ROW document is not officially recorded in the county, it will be considered invalid as soon as the grantor of the corridor conveys their parcel to another party. ?ÿThe reason being that the public had never been put on notice and the new owner could not be reasonably expected to be aware of the easement or ROW grant.
In my opinion, the recorded deeds control the true conveyance of the ROW corridor and will be the documents that control the boundary thereof. ?ÿConsidering that the utility agency created the ROW maps the same year these deeds were recorded (1950), i would expect them to be based upon the deeded conveyances and therefor the monumentation should adequately fit both sets of documents. ?ÿUnless there is some major discrepancy, I would likely hold those monuments as being the boundary.
The original Centerline map/survey (1948-1949) is irrelevant due to it not being recorded, and not having recorded property conveyances around the same time the map was made, unless seeking grant of ROW or easement rights per unwritten rights.?ÿ
I am an LSI and not licensed yet so I suppose you can take that into consideration when weighing my response, but let me know what you guys think.
- AW
You might have an argument if the deeds were not recorded, but that does not appear to be the case here. Even then, if the utility is visible it would be hard to argue that buyers didn't have notice of the ROW.
Not sure if the same surveyor oversaw?ÿ all phases of the surveys.?ÿ At least one crew member was present in all phases though.?ÿ Likely the party chief but not indicated on the notes.
Question from a physician??s Internet forum:
If normal body temperature is 98.6?ø does a person have a fever when his temperature is 98.642358536?
The monuments simultaneously don??t exactly match the record distance and mark the limits of the easement
The question posed is not one of of field vs. record.?ÿ It was only included to give perspective.?ÿ I have never once assumed that the measurements would be perfect (especially with regards to the?ÿ monuments that the agency set in 1952).?ÿ ?ÿ
Based on previous ROW threads, its apparent that there is a wide gulf in thinking between those who hold the centerline alignment and those who hold the ROW monuments.?ÿ The intent of this post was to introduce a particular fact set (possibly different but likely more complete) than what ive seen on the other DOT ROW posts and see where people stand.?ÿ It is not to get caught up on field vs record measurements.
A question came up a few years ago involving a similar 100' wide ROW, staked with concrete monuments 100 years earlier.
Monuments at intervals were, of course, more or less than the prescribed 100'.
Ultimately, the adjoiner fighting over a few tenths realized his deed called for his parcel as shown on a filed record of survey.?ÿ That RS showed the concrete mons which where still undisturbed.
Sometimes bounds are explicit.
With regards to the ROW in question, I've seen surveyors both accept and reject the ROW monuments.?ÿ Centerline monuments of subdivisions often set years after the ROW monuments are often held to determine the ROW boundary.?ÿ Rarely are preceding or succeeding ROW monuments surveyed and shown on recorded to see how well these monuments work with themselves.?ÿ
?ÿRarely are preceding or succeeding ROW monuments surveyed and shown on recorded to see how well these monuments work with themselves.?ÿ
Sounds like incomplete surveys then.?ÿ
I'll take the contrary position, to a degree. The taking deeds do not call for the monuments. Therefore, the monuments are evidence of the location of the right of way lines, but not automatically controlling of them.?ÿ
Is this "public utility agency" eligible to be adversely possessed against? If so, the monuments may have become controlling via estoppel?ÿ
IMHO, in most cases, a right of way gets it full stated width. This pretty much precludes the simple "hold the monuments" answer without some qualification. As evidence, I present that it is the policy/practice of many state DOT (including all 3 I am licensed in) to omit calls for monuments from their right of way taking descriptions. I take that to mean that they do not intend the monuments to control the right of way width.?ÿ ?ÿ?ÿ
Based on the above, would you recreate the centerline alignment and hold the record centerline offsets or hold the brass disks set at the ROW corners to determine the ROW and why?
The OP has not shared how he would recover the alignment centerline. Is there another, conflicting,?ÿ set of monuments that would be used for that? The ROW monuments may be best evidence of the location of the alignment centerline. I might well hold the monuments for the purpose of reestablishing the centerline.?ÿ
If we are talking about departure from the record of a few hundreths I'm going to use the power invested in me by the state and apply the virtual hammer.?ÿ
In Pacific Gas & Elec. Co. v. Minnette, 115 Cal. App. 2d 698 Minnette built a building underneath P.G.&E.'s powerlines:
"The answer of the defendants denied that the plaintiff's rights of way cross their lot, although not denying that their building was beneath plaintiff's wires. These allegations rested upon a theory that the descriptions contained in the right of way grants, when platted by reference to the public 702*702 records thereof and by reference to recorded title documents affecting lands referred to in the rights of way descriptions, were located some 100 feet easterly of defendants' lot and touched no part thereof. Defendants denied that plaintiff had ever entered into possession of the granted easements or into exercise of the rights given them, but on the contrary had erected their poles, wires and electric conduits on lands other than those described in the grants. Defendants alleged their title was not subject to the easements claimed by plaintiff."
and
"Appellants contend that the finding the rights of way crossed the defendants' lot is not supported by the evidence. This contention cannot be sustained. The witness Pestoni testified for plaintiff as follows: He was a registered civil engineer and licensed land surveyor; in 1916 he located the right of way granted in 1917, and in 1920 went back and located the second right of way; in each instance he set stakes in the?ÿ704*704?ÿground at the exact location where the poles suspending the wires were to be placed; in each case the poles later were actually placed in the ground where these stakes had been placed; all the poles and lines have remained in the same position ever since; having set the stakes, he then drew up descriptions from his survey. These descriptions so drawn were used in the easement grants. Both grants contained statements that the center line of each right of way, where the same crossed the Dos Reis lands, had been located and marked upon the ground by stakes driven therein by the engineer of the grantee and approved by the grantors. Appellants' argument based upon a claim that the surveyor made a mistake with reference to the proper location of his starting point for his survey, so that a platting of the descriptions would put the rights of way in nonconformity with the actual location of the poles and wires, is unavailing here for it is clear from the testimony of the surveyor and from the language of the grants that the parties had agreed upon the actual lines, staked them upon the ground and intended that the descriptions should conform thereto. Any doubt, therefore, as to the conformity of the description as it might be platted with the actual location of the rights of way made by the parties is immaterial. This is a case where the descriptions as written must yield to the monument stakes set before the descriptions were written. They control the descriptions and fix the location on the ground of the rights of way described in the grants. [1] Where the parties themselves so construe a deed by their subsequent acts that there can be no reasonable ground to doubt the correct interpretation of the descriptions used, the location so fixed by the parties themselves and acquiesced in by them over the years would control any technical construction of the deeds. (Grant v. Bannister, 160 Cal. 774, 781 [118 P. 253].) This is but an application of the rule that when the meaning of the language of a contract is doubtful the acts of the parties done under it afford one of the most reliable clues to the intention of the parties. The findings of the trial court as to the actual location of the rights of way and that these rights of way cross the appellants' lot are amply supported."
Agree with Norman, it's a matter of best available evidence, like any other survey.?ÿ At least as to the parcels deeded via negotiation.?ÿ Those that fought till the bitter end and actually had the land condemned and taken will need further scrutiny.?ÿ If you can prove the baseline or metes/bounds based on reference monuments, and prove the taking line doesn't match the R.O.W. monuments later set, then the R.O.W. monuments have to yield on the condemned parcels. Condemned parcels need to be analyzed through the lens of constitutional law rather than contract law.?ÿ Regardless of what has transpired since; the government gets exactly what was described and the landowner loses exactly what was described in the proceeding, IF that description can be proven.
Dave,
I'm not sure we can take a case that involves 100 feet and apply it to a circumstance that involves a few tenths, at most. There isn't enough of a difference there to say anything one way or the other about the intentions of the parties. Indeed, the parties involved (aside from a few in the engineering department and the surveyors themselves) might?ÿ have been quite ignorant of the presence of monuments at all. The same could not be said of whatever utilities are within the right of way. So, indeed, your case would be better applied to using the installed utility itself to locate the centerline of the right of way.?ÿ Presumably if one went that way the stated width would be applied and the monuments disregarded.?ÿ
The parcels were not acquired through condemnation (there was no court action) but were deeded.?ÿ There was negotiation, but the fact set would lead me to believe that the true bargaining was for the price only.?ÿ Being that the agency surveyed the area prior to the deeds being written and included some of the same adjoining property corner tie distances in the deeds, leads me to assume that they also wrote the deed.?ÿ ?ÿ
