Yesterday there was a long discussion that had the usual comments by some that claim that a surveyors mistake creates title. I agree that an original survey by a government surveyor in accordance with the manual means that the corners set and found undisturbed are gospel. But only under those circumstances.
So let's look at yesterday's 1000' square that the East 500' was sold and then the West 500' was sold. But then along comes modern surveyor with his fancy equipment and finds corner pins as indicated by the following sketch:
Now, here are the questions. Do you hold the pins without question as some of y'all yesterday indicated? If so how? One pin is clearly on the neighbor so you can't steal his land - there was never title to this to convey. The other pins leaves a long skinny triangle that was clearly not intended.
So what do you do? Put the corners where they should have been? Or take the wrong line and intersect it with the North and South lines? Or do you do something else?
I would contend that in any state, any survey system, the duty of the surveyor is to do the job correct. If the surveyor makes a mistake, then a subsequent surveyor needs to figure out how to solve the problem. Mayby he can set new pins where they belong and that solves the problem. Or maybe he helps negotiate a solution between the parties. But under no circumstances should a surveyor blindly accept another's error.
What say you?
I'd say that you should learn how to survey land.
Stephen
In the case we discussed yesterday, the argument was never made to blindly accept corners. The evidence suggested that the found corners were original corners and that they had been relied on for over 50 years. Our job as surveyors is not to place the line where a new and accurate survey would place the corners, it is to place the corners where the original surveyor placed them.
From Chp 14 Clark on Surveying and Boundaries:
"...the primary duty of the retracing surveyor is to locate the lines of the original survey as they were first located by the original surveyor, and not where they should have been, in the event the records of such surveys differ from that location."
"Once a dividing line between the two land parcels is located in an original survey, it remains fixed and unalterable..."
"The question as to the true and correct boundary line is not where a new and accurate survey would locate it but where the retracing surveyor actually found it."
"Although this principle has routinely been applied to sections of land and townships that were originally created by the GLO surveyors, the same principle must be applied to surveys that were conducted by private surveyors."
I cannot be certain in your neck of the woods, but here in Texas the land owner has the right to rely on the monuments as set by the original surveyor. It would be the responsibility of any following surveyors to correct the description to match the monuments as found on the ground. This idea of correcting the originals surveyor’s mistake is foreign to me. Can you recite any references to support this claim?
Some Of You Are Just Not Getting It
Senior rights apply to the East 500' which is marked with pins 4' to the East of the described boundary.
The Remainder parcel has Junior rights.
Jones did not transfer the Remainder parcel, he transferred the West 500' which is not the same as the 1000' parcel less and except the East parcel.
West has 500' period in the scenario previously given. He has not been wronged. There is a potential overlap in that 4' strip. No evidence has been given that West has claimed it by possession and use.
A conveyance to West that would include refernce to the pins or the survey would alter the facts.
Had the subdividing surveyor filed a subdivision map delineating pins set and an East Lot and a West Lot and had conveyances referred to said map and lots the facts would be different.
Possibly it is because all you PLSS surveyors fail to understand Metes and Bounds descriptions. Metes are easy, they include bearings and distances. Bounds must stimy some of you. A bound can be a "call to a pin" or a "call to a parcel" i.e. "along the East 500' as sold Jones to Eastman by Deed Reference and Date". If that said Deed has reference to a Survey by PLS and Date all the better.
In the aforesaid case we have no reference if the surveyor was employed by Jones to subdivide his land, giving him some stature as the Original Surveyor or was employed by Eastman, making him a retracer (in error) of the of the paper survey of Jones. In the latter case various things must follow to turn those errant pins into Bounds for Westerly.
Bounds make all the difference in the world to this argument, because they are few.
Paul in PA
David:
And yet on the very first page of that chapter Clark writes "...the surveyor must realize that his primary duty is the identification of a land parcel in accordance to a written description...." My problem with yesterday's thread was that the Maine courts repeatedly insist on the primacy of deed language, especially when it's as clear and unambiguous as that in yesterday's fact set. And neither the pipes nor any survey were called in the deed. The near-presumption that what has been described has been marked on the ground seems to me much stronger in the PLSS than it is here. Certainly Clark seems to have the PLSS in mind throughout chapter 14. Maine courts clearly recognize the right of landowners to establish uncertain boundaries on the ground, but the fact set did not convince me that that happened in this case.
The fact set was also, though credible, improbable. I've been hunting for a Maine case, or even just a Maine transaction, where a survey was performed just prior to, and in connection with, an outconveyance, but was not even hinted at in the deed, and where no plan was recorded. No luck so far.
I Agree Gene
Except that in this case, Jones is the original surveyor via deed, and the licensed gentleman that put the pins in the ground was an errant retracer.
"The original surveyor" is not the same as "the first person with numbers after his name to touch the ground".
Jones is entitled to do what he wants on his own property and in PA could borrow an instrument, measure and put pins in the ground, truly making him the original surveyor. However just as in the PLSS where Aliquot Parts are deemed an original part of Sectional Land, whether monuments had been previously set or not, the deed by Jones makes him the original surveyor. I have seen such deeds can create a lot of extra work, especially when have the calls are reversed, but my job is to retrace them. In a perfect world some has previously retraced them in an acceptable manner.
Paul in PA
> Yesterday there was a long discussion that had the usual comments by some that claim that a surveyors mistake creates title. I agree that an original survey by a government surveyor in accordance with the manual means that the corners set and found undisturbed are gospel. But only under those circumstances.
I don't think anybody said "a surveyors mistake creates title".
Dave, are you actually saying that only a "government surveyor" can perform an "original survey"?
> Do you hold the pins without question as some of y'all yesterday indicated?
No. I don't think anybody said to hold anything "without question".
> I would contend that in any state, any survey system, the duty of the surveyor is to do the job correct.
Absolutely. Our job is to do our job correctly, which includes following the law, not surveyor fiction. I guess one would further have to define what "our job" is in this case. Some seem to be claiming that our job is to find measurement errors of the past and "correct" them to match some newly devined "intent". This is surveyor fiction.
Each of the boundary lines in question need to be surveyed. In that I mean, evidence needs to gathered, analyzed, and the correct law applied to each fact set.
Oh I get it...apparently you don't
The original surveyor set pins where he measured 500' for the conveyance of the east 500'. Once that happened, and the land was conveyed, every surveyor after that is a retracement surveyor. His job is to "follow the footsteps" of the original surveyor. The pins found mark that boundary.
> Possibly it is because all you PLSS surveyors fail to understand Metes and Bounds descriptions. Metes are easy, they include bearings and distances. Bounds must stimy some of you. A bound can be a "call to a pin" or a "call to a parcel" i.e. "along the East 500' as sold Jones to Eastman by Deed Reference and Date". If that said Deed has reference to a Survey by PLS and Date all the better.
I am a metes and bounds surveyor and have been for many years. Metes and bounds are further down on our list than found monuments.
I Agree Gene
Agreed
Oh I get it...apparently you don't
> The original surveyor set pins where he measured 500' for the conveyance of the east 500'. Once that happened, and the land was conveyed, every surveyor after that is a retracement surveyor. His job is to "follow the footsteps" of the original surveyor. The pins found mark that boundary.
>
> > Possibly it is because all you PLSS surveyors fail to understand Metes and Bounds descriptions. Metes are easy, they include bearings and distances. Bounds must stimy some of you. A bound can be a "call to a pin" or a "call to a parcel" i.e. "along the East 500' as sold Jones to Eastman by Deed Reference and Date". If that said Deed has reference to a Survey by PLS and Date all the better.
>
> I am a metes and bounds surveyor and have been for many years. Metes and bounds are further down on our list than found monuments.
Metes, as in the measurements, are further down on the priority of calls, yes.
But a call for a bound, especially a call for a boundary which is senior in title, is considered to be a call for a monument of record, which puts the bound portion very high on the priority of calls.
Paul:
Borrow an instrument? If only! In Maine they'd borrow the wife's sewing tape and the kid's Captain Marvel compass, and set coat hangers!
Oh I get it...apparently you don't
I agree.
I Agree Gene
Come on Cee Gee; coat hangers?
You and I both know they would set empty bottles of Allen's Coffee Brandy.
I Agree Gene
> Except that in this case, Jones is the original surveyor via deed, and the licensed gentleman that put the pins in the ground was an errant retracer.
>
That is a novel idea, but it entirely contrary to the vast majority of case law on the subject. Why would you take a postion that is contrary to the vast majority of case law?
> "The original surveyor" is not the same as "the first person with numbers after his name to touch the ground".
>
That is actually true, but yet is misleading because it doesn't matter who was the first person to touch the ground, surveyor or not, but as long as they did indeed touch the ground, then OILA, they are the original surveyor.
> ... In a perfect world some has previously retraced them in an acceptable manner.
>
> Paul in PA
Gibberesh. There are valid, logical reasons that monuments control over deed geometry. You and several other posters here do not know of or understand these reasons. I will go over them again, briefly.
What we do for people is we show them what they own. They lack detailed knowledge of what they own and they pay us money to provide that knowledge to them. Knowledge is obtained through the five senses. Which provides deeper and more lasting impact on the five senses: written words on a deed or physical monuments set in the ground? The answer is obvious, isn't it? Think of all of the people who understand physical monuments as opposed to those who understand the written geometry described in a deed. Think of all of the illiterate land owners in America. I imagine that there is quite a few. Think of all of the perfectly literate land owners who just don't get what is meant by N35d.17m35sW. An 8 year old child with Down's syndrome can understand that he is not to cross a line defined by two visible monuments. The profession of land surveying may not have this simple, fundamental understanding of land and it's place in our civilization, or at best it may have failed to educate it's young practitioners of such, but I assure you that our legal system does have this understanding and they rightfully act upon it.
The facts in this case are astonishingly simple. An owner divided out his land with the aid of a land surveyor, who marked out the new parcel in accord with the owners wishes. The fact that he had an index error in his tape, probably as a result of a bad repair job or he used a cut tape (as opposed to an add tape) and an inexperienced chainman held the wrong zero has been deemed irrelevant by countless court decisions through the ages. The monuments were visible and acceptable to the new owner. They represented the intent of buyer and seller and thus they stand as expressing the limit of ownership of both. They fullfill their purpose of showing what is owned.
Stephen
Newton:
I stand corrected!
The original thread says Jones land has old irons at the corners. No mention as to whether these markers are called for in the deed. So why accept these irons also, because they are old. What if they also are not called for. What would you do then? At this date couldn't you say the 1960 irons are old and need to be accepted. Seems the primary reason for those that reject the 1960 survey is it doesn't measure up. So really from a landowners perspective, why ever hire a surveyor as the next surveyor is more than likely going to reject the previous work as he goes about fixing it up. Where is the common sense?
The fact set states there was a survey associated with the 1960 conveyance. So we reject it because it's not mentioned in the deed. An ambiguity of sorts arose when a modern survey showed a 4 foot difference. Seems extrinsic evidence is brought in at that point, which, from this fact set is there was a survey done with the 1960 conveyance.
Stephen:
Re: "Which provides deeper and more lasting impact on the five senses: written words on a deed or physical monuments set in the ground? The answer is obvious, isn't it?"
With all due respect, it is not obvious at all. I have known of dozens of landowners who were absolutely insistent on the language of the deed, irrespective of what's on the ground. Especially in cases like this, where the deed language is not at all technical. Usually they would lose out if they went to court. I'm not sure they would lose this one, if it were tried in Maine.
The problem with this case is that it is TOO simple. We don't know enough about the status accorded the monuments by the abutters over the years. And few if any of the court cites folks have been alluding to involve unrecorded plans, uncalled monuments, and such a near-lack of parol data.
LR:
I've gotta run so I can't dig out a cite, but I believe that in Maine the courts will only allow extrinsic evidence to clarify an ambiguity in the deed. There is nothing ambiguous about the deed language in the fact set.
As I said earlier, I'm beginning to think this case might play out very differently in a non-PLSS state (Maine, anyway) than it would "out west."
> What say you?
Three things:
1) The premise of the thread is misleading right off the bat. I'm certainly not claiming "that a surveyors mistake creates title." In fact, a surveyor's mistake has nothing to do with "title." What we are discussing is the legal doctrines which establish the location of the existing boundary line between two contiguous estates. Land Boundary Law and Title Law are two completely different bodies of law which are too often confused by surveyors, attorneys and title companies. Can boundaries become established by land surveyor mistakes as a result of landowner actions made in reliance upon the surveyor's mistake? Absolutely. Do all surveyor's mistakes result in the establishment of a boundary in the mistaken location? Absolutely not.
2) Based on the sketch, I'd say that it's time to survey the property. The sketch shows only the mathematical relationship between some found evidence of survey markers. Found survey markers don't establish the location of the boundary. Sometimes they do, but only when they are supported by other evidence. The sketch is completely void of any evidence that a surveyor must rely upon to derive the location of the boundaries. The sketch does expose a latent ambiguity in the boundaries. That ambiguity is the surveyor's trigger that tells him that the job has only just begun. It's time to contact the client to negotiate the addendum required to resolve the conflicting evidence revealed by the recovered monuments. I'd be looking for the first addendum to include time for contacting some landowners to research the survey history and the circumstances surrounding the conveyances.
3) The duty of the surveyor has nothing to do with performing a mathematically "correct" job. It is solely to either, a) run out new boundaries on the ground in accordance with the landowners desires and in concert with existing laws, and b) to retrace boundaries which have been previously established. The law does not permit a surveyor to "correct" a boundary line, once established.
Boundary determination according to the evidence and the application of legal principles has nothing remotely to do with "stealing land." Very few landowners, during the process of establishing their boundary, have any such intention. The same can also be said for most surveyors. The boundaries are established in good faith with regard to knowledge on hand at the time the landowners act. Surveys aren't conducted for no reason and landowners don't pay surveyors for no reason. There is a good-faith intent to locate the boundaries. To disregard all evidence of circumstances surrounding the establishment of land boundaries and to blindly accept or reject all monuments found "out of position" is the epitome of bad faith on the surveyor's part.
JBS