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Senior rights?

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(@jbstahl)
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> 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.

That's what I was taught as well. Then I read a bit further in the court cases (primary sources) and read a bit more closely in the "textbooks." What rules of law trump monuments and senior rights? Yes. That's right. The rules of law which prove that the boundary has been established by actions of the parties through doctrines of agreement and estoppel. If that weren't the case, then every surveyor rerunning the line would continue to set more and more worthless monuments that will never control. Because, face it, we still can't set monuments at precisely 500'. With that premise in mind, what landowner would ever want to buy property where they'll never know the boundaries are fixed? It's lunacy.

JBS

 
Posted : October 10, 2011 8:25 am
(@paul-in-pa)
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The Boundary Exists At 500'

Since the pins are not referenced in any deed, they may in fact not represent the Boundary. Called for original monuments hold, that is not the case here.

Paul in PA

 
Posted : October 10, 2011 8:28 am
(@kris-morgan)
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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

Oh, I agree fully that title passes the instant that the statute is perfected, but in Texas, it's a district judge that blesses whether or not it has been perfected. Anyone else is playing with fire.

IMHO, anyone who states that it has or has not passed, without that, is looking to get sued and chastised by the district judge for usurping his power.

Several attorneys have indicated that I may even violate their constitutional rights by doing so. 🙂

I've said it many times, I've learned much from you and Richard over the years, this is the attitude that I've settled in on. I'm very well versed with Chapter 16 of the Texas Civil Practices and Remedies Code, and feel confident that I can spot, identify, and advise my clients or the situations as they've presented themselves with regard to AP, mutual mistake, practical location, etc. On every one but AP, will I step out and make the decision, and only after I have interviewed the parties who erected the fence (not subsequent parties). Otherwise, it's advice and conflicts shown.

I'm a part-time member of the "agree team". 🙂

 
Posted : October 10, 2011 8:29 am
(@mapmaker151)
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A good discussion. I guess it shows why there are boundary Law cases. Still a grey area for me, but I can see all the arguments given.

 
Posted : October 10, 2011 8:31 am
(@cee-gee)
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JBS:

But what if we put other words in Jones' mouth? I've known many landowners who would insist that their intent was to sell 500 feet, NOT to sell up to some corner monument; and who would say that they pointed out the monument only because they ASSUMED that it correctly marked the 500 feet. If the monument is called in the deed, too bad; but if you plugged testimony like that ("I intended to sell him 500 feet!") into a case like this where the deed calls 500 feet and mentions neither a monument nor a survey, and there's no long-standing fence line or line of occupation, I'm not sure the 496' solution would prevail, at least not in Maine.

 
Posted : October 10, 2011 8:31 am
(@davidalee)
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The Boundary Exists At 500'

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 deed reads, “the eastern 500’ of Jones’ land”. 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.

Both parties have relied on the pins since the 1960's. The boundary is established.

 
Posted : October 10, 2011 8:33 am
(@davidalee)
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JBS:

The fact remains that a Professional Surveyor set pins at a point where he measured 500'. Those pins have been relied on for years. The boundary has been established there. If no pins were found (or any other evidence of said pins), then we resort to junior/senior rights to re-establish the boundary.

 
Posted : October 10, 2011 8:39 am
(@cee-gee)
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The Boundary Exists At 500'

I'm not seeing the "reliance" in the original fact set. Merely knowing that some pins exist does not in itself constitute "reliance."

"If an owner ignorant of his true boundaries by mistake acquiesces in a line as a boundary, he and his grantees are not thereby precluded from afterwards claiming to the true line, and it has been held that one who has no knowledge that his adjoiner encroaches can not be held to have lost his rights by acquiescence in such occupancy no matter how long continued, for one can not waive or acquiesce in a wrong while ignorant that it has been committed...."[emphasis added]

--Skelton, Boundaries and Adjacent Properties, Sect. 324

Still, having played devil's advocate a bit here and in my response to JBS, I'd have to go with the pins at 496'. In my view, given this fact set, they were a practical location of the boundaries, of which all were aware at the time. But in the real world we would only rarely have this much reliable information about what happened so long ago and I'd be skeptical of the pins.

 
Posted : October 10, 2011 8:44 am
(@mightymoe)
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JBS:

So we find the pins @ 499.82'. I guess we have to set two pins 0.18' west to "get it right". And be sure to leave the older ones.

 
Posted : October 10, 2011 8:45 am
(@jbstahl)
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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.
>
When the seller takes the buyer onto the ground and shows them the markers, a representation is made. When the buyer subsequently goes ahead with the purchase, that is the evidence of reliance upon the representation. If there was no reliance, the buyer would have hired a surveyor or done other due diligence to confirm the representations made.

> 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.
>
That's not quite the full truth, Paul. "Possession" an be either "actual," or "constructive." Accepting the conveyance of the land, knowing at the time of conveyance the locations of the boundaries represented by the seller, qualifies as "constructive" possession. There is no evidence given in this scenario of "actual" possession.

JBS

 
Posted : October 10, 2011 8:46 am
(@mapmaker151)
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JBS:

I think most will note the .18 difference on a Survey Map, but not reset the corners. Big difference from 4' to 0.18'

 
Posted : October 10, 2011 8:50 am
(@davidalee)
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JBS:

Apparently so.

 
Posted : October 10, 2011 8:51 am
(@davidalee)
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JBS:

No there is no difference in the 4' or 0.18' in this instance...except 3.82. Also, noting the 0.18' difference on a plat of survey is going to cause as much confusion as setting pins 4' away but that is another topic.

 
Posted : October 10, 2011 8:53 am
(@cee-gee)
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JBS:

> When the seller takes the buyer onto the ground and shows them the markers, a representation is made. When the buyer subsequently goes ahead with the purchase, that is the evidence of reliance upon the representation.

Isn't the deed stating that Eastman gets 500 feet of land also a representation upon which the buyer has relied? And in this case, isn't it the only representation upon which Eastman relied? I don't see where he was shown any pins in the original fact set.

 
Posted : October 10, 2011 8:59 am
 ddsm
(@ddsm)
Posts: 2229
 

TDD and a Banjo

> No there is no difference in the 4' or 0.18' in this instance...except 3.82. Also, noting the 0.18' difference on a plat of survey is going to cause as much confusion as setting pins 4' away but that is another topic.

3.82'??? That rings a bell!...What is the Standard Length of a Banjo String?

"i can survey with a banjo" because i know how---tdd

😉
(humor humor humor)

DDSM

 
Posted : October 10, 2011 9:06 am
(@mapmaker151)
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JBS:

Anyone finding a 1960 Survey only off 0.18' would probably say good job. Chaining over surface features, brush, etc., and being that close would be a good Survey for the time. 4' starts to look like a blunder. Misread chain, error in a correction, etc.
If I found a 2010 Survey within 2 tenths I'd accept it, but make a note of the difference on my map. I still fall back on the original 4 pins (of both lots prior to division), and the fact that these 1960 pins are not referenced in the deed. They would be "secondary monuments" and not hold the weight to trump senior rights, with the evidence in the 1st paragraph of this feed. If you add in some facts others assumed, then a different solution is required.
If the Survey had been performed by the West Parcel, and set 4' inside the East Parcel senior rights would win. I just don't see the difference. Also no where in the original post does it mention the owner showing the pins, nor them being accepted by any party involved. Just that they exist from a 1960 survey. I don't see that this Survey was tied to the sale in any evidence, except assumptions made in later posts.

 
Posted : October 10, 2011 9:07 am
(@paul-in-pa)
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4' Would Not Be An Accepatble Error In 1960...

...in most areas of the US.

If I found 1000.00' between the outbounds and pins at 499.82' I would show the 500.00' as the boundary on the map and the pins within 0.18' as witnesses to the corners. They cannot gain the status of original called for monuments if they have never been called for.

Also if Mr. Westerly has never revised his deed with the 504.00' to a found pin notation one can reasonably assume he has not relied upon them.

Again we have surveyors assuming they are judges in all cases.

Paul in PA

 
Posted : October 10, 2011 9:10 am
(@davidalee)
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JBS:

> Also no where in the original post does it mention the owner showing the pins, nor them being accepted by any party involved. Just that they exist from a 1960 survey. I don't see that this Survey was tied to the sale in any evidence, except assumptions made in later posts.

From original post: No survey is performed but the 1960 irons are pointed out to Westerly.

 
Posted : October 10, 2011 9:10 am
(@jbstahl)
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JBS:

> But what if we put other words in Jones' mouth? I've known many landowners who would insist that their intent was to sell 500 feet, NOT to sell up to some corner monument; and who would say that they pointed out the monument only because they ASSUMED that it correctly marked the 500 feet. If the monument is called in the deed, too bad; but if you plugged testimony like that ("I intended to sell him 500 feet!") into a case like this where the deed calls 500 feet and mentions neither a monument nor a survey, and there's no long-standing fence line or line of occupation, I'm not sure the 496' solution would prevail, at least not in Maine.

Q. And, how exactly, Mr. Jones, did you intend to measure that 500 feet? A. Well, anybody knows what 500 feet is. Q. That's not what I asked. I asked HOW did you intend to measure that 500 feet. A. Well, I hired a professional surveyor. They certainly know how. Q. And, did you hire a surveyor to measure the 500 feet for you? A. Yes. Q. And, did you accept his work as being faithfully performed? A. Well... I find out now that it wasn't! Q. Did you pay for the surveyor's work? A. Yes. Q. Did you pay him in good and lawful money? A. Yes. Q. Then, were you satisfied with his work at the time you paid him. A. Well, I'm not now! Q. But were you then? A. Yes. Q. Did you do anything to confirm that the surveyor had set the markers at precisely 500 feet? A. No. Q. Is it true that you've done nothing for the past 51 years to confirm the location of the markers? A. I didn't have any reason until now. Q. So, you were perfectly satisfied with the survey marks so much over the past 51 years, that you showed them to Mr. Easterly in 1960 when they were new, and you showed them to Mr. Westerly in 1985, and you represented them as marking the line during both times. A. Well, ya, but that's when I thought they were at 500 feet! Q. Would it surprise you to know that it is impossible for any surveyor, even using the most modern technology, to set those monuments at precisely 500 feet? A. Yes. Q. But, the surveyor obviously couldn't, is that right? A. Yes. Q. You are aware that the oldest monuments which you relied upon when you purchased your land are also four feet in error, correct? A. Well, ya... Q. Have you done anything to figure out which one of those markers are "off" by 4 feet? A. No. Q. Are you suggesting, perhaps, we should be fixing your neighbor's property markers, and his neighbor's markers, and his neighbor's markers? A. No. Q. Would it be better, perhaps, to limit this argument to this single boundary, which was run out on the ground by a surveyor whom you hired to mark the boundary, who set markers which you have never before doubted, which markers you relied upon for over 51 years as properly representing the boundary, markers which you yourself represented as marking the boundary to Mr's. Eastern and Western? A. Yes. ... No more questions, your Honor.

JBS

 
Posted : October 10, 2011 9:11 am
 ddsm
(@ddsm)
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STARE DECISIS, ET NON QUIETA MOVERE

Wallace v. Fordyce Lumber Company

In some instances judgments and court decrees, as well as accepted usage, go back to corners established by our forebearers on the basis of the best knowledge they had obtainable and we rather think that the logic which brought forth the ancient maxim STARE DECISIS, ET NON QUIETA MOVERE, which has done so much to stabilize the decisions of the courts, might well be applicable as we contemplate the effect of the change of long established lines. In these circumstances we prefer to stand by precedent and not disturb settled points.

DDSM

 
Posted : October 10, 2011 9:13 am
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