Above You Said Westerly Was Senior
Senior rights. If fences were built to the pins I'd reconsider. If nothing has been built, deed should hold. Both parties get what they paid for. The pins were set in error, and they should be replaced.
Above You Said Westerly Was Senior
The pins were not set in error. The pins were set at a point where the surveyor measured 500' with the tools he had available. The fact that we can measure better doesn't make his work wrong. The owners have relied on these pins for years. The monuments found should control in this situation.
Above You Said Westerly Was Senior
I misspoke then I saw East as having senior rights, maybe I wasn't clear.
Mapmaker
Many times in Texas, we are asked to survey something and our descriptions don't get used. This is the rational for my argument. We don't always know that the irons are original from the deed. However, in this example, we have to believe that the irons are original based on the information given, which was they were set when the tract was created and shown to everyone as the corners.
NOW, if you have a deed where the East 500' was conveyed and not located at the time of conveyance, then you may be right.
As always, it depends. 🙂
JBS
I was right with you up until the "statutory time period comment". At least in Texas, while the AP may pass the instant the statue has been perfected, it still needs a district judge to bless the occurrence. So I'll disagree with you on that point.
All the rest, I'm with ya!
The Easterly 500' Has Senior Rights
> Assuning the resuvey showed the outbounds to be at 1000'.
>
> Jones sold Easterly the easterly 500' making it the Senior Parcel.
> Jones sold Westerly the westerly 500', not the remainder. That Jones pointed to the pins is hearsay, since the deed language does not confirm that action. Jones did not sell the remainder to Westerly.
>
> Easterly needs to bring Jones into court where his lawyer should ask, "Did you sell Easterly the easterly 500? Did you sell Westerly the westerly 500?" Then the lawyer turns to the judge, "Your honor, a correctable error has been made in staking out the easterly tract, and we thank Mr. Westerly for pointing it out to us. Mr. Jones is not a surveyor and relied upon what was told to him in the past. The record is clear as to Jone's intent, we ask for a directed verdict."
And the defense counsel stands up and says, "not so fast, your Honor." "We have a few questions to ask in cross-examination."
Q. Mr. Jones, Did you sell Mr. Easterly a tract of land? A. Yes. Q. "And, how wide was that tract of land?" A. 500 feet. Q. What did you do to identify the location of that tract of land? A. I hired a professional land surveyor to mark it out on the ground. Q. Did he do that? A. Yes, he did. Q. What kind of markers did the surveyor place? A. He set iron pipes at both ends of the line. Q. When you sold the property to Mr. Easterly, did you walk the boundaries and show him the markers? A. Yes. Q. When you sold the property to Mr. Westerly did you also walk the boundaries and show him the markers? A. Yes, I did. Q. Did Mr. Westerly raise any questions or doubt the locations of the markers? A. No, why should he have? They were set there by a surveyor and had been marking the boundary for over 25 years. All that time, I and Mr. Easterly knew they marked the line between us. That's what they were put there for. I couldn't sell Westerly anything beyond those markers as I didn't own it. I already sold it to Easterly. Q. When did you first question the location of the irons? A. I've never questioned them. Q. Let me rephrase that. When did you first become aware that the irons were being challenged? A. When Westerly sold his land to Mr. Jones, he hired some surveyor from the city who came out with his fancy-dancy, high-falutin, GPS survey equipment and started saying all the monuments were "off" and proceeded to set new markers where the old ones "should have been." He tells us that the old surveys are all "off" and that it was his job to "fix" all those old markers. Well, that just ain't right. We set those markers with good intentions. We set those markers so we'd know where the line was. They've marked the line for over 25 years, some of them over 50 years. Who does this surveyor think he is to come into our neighborhood and drive irons wherever he thinks they "should" be when we've got perfectly good irons that we set so we'd know where the boundaries are. It just ain't right. There's laws that protect us from surveyors like that!
You're honor, we'd like a directed verdict upholding the existing boundaries as established under the doctrines of written agreement, implied agreement, oral agreement, and estoppel as well as the rules of construction properly applied to the deeds which must be construed by taking into account the actions of the parties at or near the time of the conveyance as well as their subsequent actions made in reliance upon the knowledge and perpetuation of the boundaries as established on the ground. We also move to enjoin city surveyor to this action under the grounds of negligently performing his duty by failing to adequately gather, analyze and honor the evidence necessary to retrace the boundaries. We'd also move to amend our complaint to include claims of negligence, slander of title, and gross negligence as indicated by his willful, wanton disregard for my client's property rights.
JBS
Mapmaker
Like i mentioned in my 1st comment It's a grey area for me. I still think you fall back on the original irons of the entire lot. The irons set at 496 were set in error, they way I read this. I would consult a few senior mentors before I hung my hat on any decision. Fortunately I've worked under some great Surveyors, and would not hesitate to get their opinion. I'm testing for my license in a couple weeks, so I'm no expert. Just trying to learn a better way here.
I enjoy the different ideas and debate about these issues. I might be better suited to watch and keep comments quiet. lol. You learn more from participating though.
Facts Indicate The Pins May Date To 1960
No facts are given that anyone relied on those pins. In 1996 a survey was done to erect a fence. That survey showed the pins were wrong. No information is available to indicate a fence was built and where.
I see a lot of assumptions on information not given". In fact there is no information given on when the question of Senior Rights arose, 1996 or 15 years later or somewhere in between.
Paul in PA
The Easterly 500' Has Senior Rights
If he walked the property with Mr. Westerly, and if everyone agreed those were the markers. That wasn't in the original post, unless I missed it. That would be more facts, and would change the result.
JBS
Kris... You might want to check your sources regarding the priesthood blessing by the district judge. The boundary is fixed at the time of fulfillment of the statutory requirements, not at the time of the blessing. That makes the monuments control before any blessing is given. Only when one of the parties challenges the running of the statutory provisions is a blessing required. Before then, the blessing should be given by the surveyor.
I also left out the elements of AP, because most states don't rely on AP to establish boundaries like TX does. They've got their own unique thing going with AP in TX to make up for their lack of common law doctrines relied upon by the other states.
JBS
Mapmaker
You do learn more from participation. Debating certain topics and providing your input on those topics is a great way to get feedback from others.
But I've got a legal text book that lists controlling factors in case of a conflict. They all put senior rights over monuments.
The Easterly 500' Has Senior Rights
> If he walked the property with Mr. Westerly, and if everyone agreed those were the markers. That wasn't in the original post, unless I missed it. That would be more facts, and would change the result.
>>Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back.
The landowners hired a surveyor to mark the line "at the time of the sale" in 1960. That's when they ran and established the line.
>>In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly.
Westerly is shown the boundary pins in 1985 during the sale. Westerly has a burden of challenging the monuments prior to his purchase, not 11 years later, after the survey markers are over 51 years old and recognized since the day they were set as marking the boundary.
Where do we surveyors get the idea that it's our job to "fix" monuments when we find them somewhere other than where we expect to find them? The law clearly rejects that idea and chides the surveyors for not retracing the lines as established by the original surveyors. Established boundaries trump senior rights.
JBS
That's what I was taught. Unless the monuments a referenced in the deed. "the East 500 feet marked with, or bounded by 4 iron pins" then the monuments hold over distance calls.
The Easterly 500' Has Senior Rights
> > Established boundaries trump senior rights.
>
> JBS
So Established boundaries should be at the top of the list of conflicts. That's not how it is in my legal text book.
The Easterly 500' Has Senior Rights
I think you may be misreading the text. That list is for re-establishing a boundary that is in conflict. This boundary wasn't in conflict until the surveyor decided he could measure better than the previous surveyor.
The Easterly 500' Has Senior Rights
But we don't know these monuments were shown the the buyers. They were not referenced in any documents (other than an old survey that may not have been shown). We can add many factors, but using the data of the original post. Senior rights should hold. The original 4 pins would be the boundary of both lots. Later surveys would not hold the weight of the original pins.
I can see both sides here, but the 1960 Survey seems to be in error. No occupation exists. Honoring the senior rights is not going to cause any issues ( such as tearing fences out, moving homes, etc.). If the Survey was reversed and done for the Westerly lot, and set 4 feet into the Easterly lot, then senior rights would hold and the pins would be moved. What's the difference?
The Easterly 500' Has Senior Rights
The difference is you are creating a problem where none existed before by "fixing" those pins that were not wrong in the first place. Don't mis-use the math.
Objection Mr. Stahl Is Testifying
Mr Stahl states that "we have relied on these pins". There is no evidence before the Court that reliance on the actual location has been confirmed by any action of and party. They have merely acknowledged that they were aware that the pins existed. I move that his questions, the answers and his statements be stricken.
I was in error in that this action should have been brought by Mr. NewYoung, Mr. Eastman's (not Easterly) successor.
Possession is something that must be shown by construction. Had Mr. Westerly erected a fence based on the pins location, the story would be different.
Paul in PA
Mapmaker
We're straight dude!
🙂
