This is the the entire text of Mechler (in the copy I have):
Appeal from a judgment, entered November 27, 1922, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (203 App. Div. 128, 196 N. Y. Supp. 460), reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the Court at a Trial Term without a jury. The action was in ejection and involved title to a strip of land in Middle Village, Queens county. Both plaintiffs and defendants derive title from a common source. Their original grantor divided a plat of land into lots and made and filed a map showing certain lots fronting on Williamsburg and Jamaica Trunpike road. The lot on the corner of Morton avenue extended along Morton avenue 111 feet 3 inches. The balance of the block fronting on Morton avenue was divided into four lots, purporting to be 25 feet front. Plaintiffs' predecessor in title purchased the corner lot and the one next adjoining, facing the Williamsburg and Jamaica Turnpike road. The boundary line was described as extending southerly 111 feet 3 inches along the westerly line of Morton avenue. Subsequently the lots on Morton avenue were conveyed by metes and bounds as described on the map, and defendants have become owners of the lot immediately in rear of plaintiffs' premises. It appeared that the block fronting on Morton avenue is 5 feet and 7/8 of an inch short of the distance shown on the map, and the question was whether that amount should be taken from plaintiffs' or defendants' land. The Appellate Division held that the original grantor, having conveyed to plaintiffs' predecessor in title 111 feet 3 inches on Morton avenue, could convey to defendants' predecessor only what was left and that plaintiffs were therefore entitled to the strip in dispute.
The Opinion reads:
PER CURIAM.
Judgment affirmed, with costs.
Brian,?ÿ
Great question. Colorado does not require continuing eduction for surveyors, and I have direct experience with the question, and how it is treated quite differently by licensed surveyors, which is very unfortunate because I have watched a lot of harm come to the public over a lack of understanding of this question.?ÿ
A simultaneous conveyance can NOT have junior/senior rights BECAUSE of the fact that a subdivision is a simultaneous conveyance.?ÿ
What DOES pertain to complicated subdivision retracements is other legal rights as asserted by landowners - such as possession, occupation, recognition, acquiescence, and estoppel.?ÿ
Ideally, every lot in a subdivision can be CALCULATED (by a technician) in an equitable manner that correctly allows a retracement in equitable units which would theoretically follow the original surveyors methods, tools, and errors.?ÿ
In reality, we NEVER get to do this: the reason a surveyor is even present is because he is asked to sort out numerous conflicts and confusions such as fences built according to a survey, improvements relied upon, roads built according to stakes visible at the time, but wiped out during construction and there are no original monuments left.?ÿ
This is not a matter of junior/senior rights - it is a matter of valid, legal evidence that can not be ignored. Because of the way people settle subdivisions, we have to weigh factors such as what has been recognized for the building of improvements? If a builder in good faith got approval from the Town for setback compliance, what is the legal affect that the public can rely on in that Town??ÿ
Junior rights, in the context of a series of metes and bounds parcels being sold over a period of time by one landowner,?ÿ and occupied, generally means that despite what the numbers on the piece of paper says, the last purchaser of IDENTIFIABLE parcels gets whatever is leftover by the previous purchasers.?ÿ
Despite the general concept of simultaneous conveyances, every lot in reality is different. don't set pincushions. Good luck! Hope to see you out there someday!
?ÿ
?ÿ
?ÿ
Merlino v. Eannotti is an interesting case.
Mainly it restates the well-known principle that monuments control over distances.
The Justices show that 1) monuments favor Merlino, 2) accepting Merlino's (2) surveys keeps his foundation on his lot (barely) and 3) Merlino was first in Title and Eanotti had actual notice of Merlino's title and possession before Eanotti received his lot.?ÿ They also criticize Eanotti's (2) Surveyors for running their surveys in the opposite direction from the Deed.?ÿ Both of Eanotti's surveyors began from remote points rather than using the established point of beginning monument in Eanotti's Deed (no information about the character of this monument is given in the Opinion).
I do not think Eanotti rules that senior rights control in subdivisions; that looks more like dicta and fact information to me.?ÿ That's not what they're saying; they're really saying that a buyer should check out the pre-existing boundaries of the lot they are proposing to purchase.?ÿ Prior lot owners may already have established possession lines in good faith and a Court would be unlikely to overturn those.
I do not think Eanotti rules that senior rights control in subdivisions.
Agreed, what it (and other cases ) point out is that seeing a recorded subdivision plat doesn't "automatically" exclude the possibility there being junior/senior rights.?ÿ That's the problem with the current versions of the Brown, Robillard,?ÿWilson books; they?ÿcan be read as flow charts for boundary determination: "If a plat is recorded - go automatically to Step 7".
Merlino v. Eanotti looks similar to a lot of California cases in that it takes more of a Forest view of the case and selects the best answer that way by bringing together the applicable legal principles and looking at the all of the facts together rather than focusing in on just one tree.
Merlino's lot closes (the metes and bounds for both lots are recited in the opinion).?ÿ Eanotti's lot mis-closes by almost 7 feet.?ÿ It appears that Merlino originally ran from Eanotti's established point of beginning by Eanotti's (later) record data to their common north lot corner.
Eanotti's surveyors concluded that the north line of his lot should be about 6' longer than record pushing Eanotti's northeast corner into Merlino's lot then they ran down the Eanotti/Merlino lot line showing Merlino's basement foundation being 5 or so feet into Eanotti.
Merlino's surveyors started at Eanotti's point of beginning, held the record distances across Eanotti's north line then ran down the east side of Eanotti clear of Merlino's foundation by about a foot or so then ran back over to the street on Eanotti's west line and found the distance was short about 6' when they arrived at the established street.?ÿ The court ruled this is the most likely correct answer especially since Merlino had already established his possession.
The only thing that really distinguishes this from California cases is the PA Court is much more strongly in favor of running around a lot in the Deed direction.?ÿ They don't say the surveyor can't run backwards but they give fairly strong guidance on when this is allowable.?ÿ The California Courts are more liberal in this regard, having ruled more than once that direction isn't all that important.
I have bookmarked this thread for future reference, great knowledge and reference here!?ÿ
Textbooks are dangerous.?ÿ You need to look at the section and what the authors are talking about.?ÿ Senior rights is at the top of what looks like a list of rules on conflicting deed elements, but on closer inspection that occurs in a section?ÿtalking more about?ÿtitle.?ÿ In the section on deeds and boundaries conflicting elements natural landmarks/monuments is at the top of the same list. (my recollection of one of the Brown texts)
If there's a rule on senior rights it's that senior rights are a rule of last resort. If your decision is relying on senior rights, go back and look for more evidence.?ÿ I can not recall ever having based a boundary decision on senior rights in any situation. I have kept it on the back burner for a fall back argument at times, but it's never really been reached by the inquiries.
Anyone who writes a book, including me, is distilling the vast body of law into something manageable. This process necessarily infuses the finished product with the author's personal biases and prejudices. Many well known legal principles are not stated in the primary authorities, they are teased out of a legal scholar's interpretation of the general flow of the unstated theory upon which the decisions are handed down.
Some of the traditional authors (some of whom are still alive) come across to me as being sort of pompous, don't worry your pretty little head about the area of law over here, let the grown ups (lawyers, judges, and engineers) handle it. Well I've got news for those guys, the law is more accessible than ever before, I can read, and it isn't rocket science. The traditional texts represent a professional ideology from another era which is no longer valid.
Dave, agreed. I've been voluntarily engaged in continuing education since 1986, and have likely listened to and read every prominent speaker as any surveyor. I'm grateful for all I've learned, and apply everything to some extent on a daily basis.?ÿ
In my own presentations, I try to make the following distinctions:
- How surveyors use case law is fundamentally different than how lawyers use case law. By and large, lawyers go to court and throw case after case to the judge in order to achieve some predetermined goal as set by the paying client.?ÿ
I have known the core group of lawyers where I live for 25 years - and I have seen some of them argue and advocate OPPOSITE sides of the same principle because their clients were paying them to reach different goals.?ÿ
I am here and now striving to understand the basics of case law in a different manner - that of going out every day and dealing with conflicts encountered in each and every survey I do.?ÿ
I sob when I see notes on a plat that expose material conflicts and merely advise that the landowners should consult an attorney.?ÿ
As you say, correctly, we are all big boys and girls, and it is WE who are presumed to understand how to apply our skills when we are hired, and it is usually pretty shocking to the average landowner when we confess that he has a conflict that will have to be resolved by the lawyers!
Reading and knowing what all the authors have said and written is very helpful and vital to my daily work. In contrast, when I see my colleagues cherry pick a statement out of one of the accepted treatises and post that verbiage on their plats completely out of context, they are causing harm to the public that we are entrusted to protect. (true story)
Yes, I think the Brown, Wilson, Robillard texts do a good job (nobodies perfect).?ÿ Many of the readers seem to have problems understanding it though. Cherry picking and using out of context seems to be a natural tendency that's hard to overcome when dealing with complex issues.
I have seen these speakers and they usually make it clear to all listeners that it is vital to apply the context to any principle, and I have seen more than a few licensed surveyors whom have NO continuing education (its not required here) cherry pick a statement out of the book and apply it to their survey which they think is helping their client.?ÿ
the former lends to order in society, the latter causes chaos and major legal problems for landowners - the exact opposite of why were are licensed.?ÿ
?ÿ
