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?
Yes, the deed contains the written representation. The monuments imbue the physical representation made upon the ground at or near the time of the conveyance. Which is more certain? The monuments. That's why monuments control over course and distance. The monuments were intended to mark the boundaries and have been relied upon for an excess of 50 years.
>I don't see where he was shown any pins in the original fact set.
Go back and re-read the original post. Not only was an original survey performed when the line was created in 1960 (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 markers were pointed out to Western when he purchased the remainder from Jones (No survey is performed but the 1960 irons are pointed out to Westerly).
JBS
JBS:
I reread the original post. My bad the pins were shown to the buyers. I still stand by my post. They were said to represent 500'. When found to be in error and not referenced in the deed, senior rights using distance should hold.
JBS:
Junior/senior rights are irrelevant in this case. In the process of performing a retracement survey (which is what this would be; you are not creating a new boundary line) you follow the footsteps of the original surveyor.
From Clark on Surveying and Boundaries..."Great caution must be used in making resurveys or retracements. Lines long accepted should not be lightly cast aside for greater conformity to recent surveys. In the case of a disputed boundary, the testimony of the original surveyor who created the original boundaries and can point out with certainty where monuments were originally placed is proper and it adds a degree of certainty and credence that is lacking in a resurvey which could place the line in a different location. If the original survey can be retraced, it will govern. It is not to be disregarded. The locations of the original corners, right or wrong, govern...In making a resurvey, it is the primary duty of the surveyor to retrace the original lines, and not to run independent new lines, even though the original lines contained errors."
JBS:
Monuments do not hold if the encroach on senior rights. These are secondary monuments, and not referenced to the deed. They are represented as being set at 500'. Now if the original pins (1000 x 1000) were different then the West lot would get excess or deficient amount of land.
JBS:
They are not encroaching on senior rights. They were set by a Professional Surveyor at a point where he measured 500'. They have been relied upon. The boundary has been established.
JBS:
In general I agree that, given such testimony, the pins would likely prevail. But I can't see where in the original post the pins were shown to Eastman or hinted at in his deed. Eastman now finds that the pins short him out of 4 feet of land, he's erected no fence etc. to indicate acquiescence in them, there is no evidence in the original fact set that he knew or should have known about them, and I thus can't see why, given the original fact set, they would hold. In fact I'd overlooked his "ignorance" when I conceded the 496' solution awhile back and would now probably hold the 500 foot solution.
The Easterly 500' Has Senior Rights
> > Established boundaries trump senior rights.
> So Established boundaries should be at the top of the list of conflicts. That's not how it is in my legal text book.
You might want to re-check your "legal text book." First off, text books are secondary sources. I find a great number of misstatements in the text books I teach from. Test your textbook against the primary source.
Here's what my "text book" says.
[inlinecode]ORDER OF IMPORTANCE CONFLICTING ELEMENTS
A. RIGHT OF POSSESSION
B. SENIOR RIGHT
C. WRITTEN INTENTIONS OF PARTIES
1. CALL FOR A SURVEY LINES RUN (OR ACTUAL SURVEY ON WHICH CONVEYANCE IS BASED)
2. CALL FOR MONUMENTS
a. NATURAL
b. ARTIFICIAL
3. CALL FOR ADJOINERS
4. DIRECTION & DISTANCE
5. DIRECTION ORDISTANCE
6. AREA
7. COORDINATES[/inlinecode]
The "right of possession" isn't talking about "adverse possession." It's talking about the doctrines which establish boundaries. If most text books on surveying were truly taken literally, the only boundaries that would be fixed in location would be those which were 1) monumented prior to the conveyance, 2) called for in the conveyance document, and 3) remain today in their undisturbed state. That would also mean that every monument a surveyor sets on an existing boundary would be subject to challenge through eternity. The landowners will never know where their boundary lies because every subsequent survey will disturb the survey before it. Lunacy. The law is much more sane than that result.
JBS
JBS:
When he bought the "east 500'" a survey was completed and pins set where that surveyor measured 500'. Those pins were shown to the "west 500'" buyer. The pins have been in place for over 50 years. There is no problem until another surveyor comes in and decides he can measure better than the previous surveyor.
JBS:
Re: "Go back and re-read the original post...."
I have re-read the original post what feels like 496 times and I can see where Westerly was shown the pins in 1985 but not where Eastman was shown them in 1960, nor where he saw the survey plan, or a call for the survey. Maybe there's a subliminal recording state problem here, because it would not be at all uncommon in Maine for a buyer to be unaware of an uncalled-for, unrecorded survey plan and/or pins it depicts, and I do not believe a court here would let such pins prevail against Eastman or his heirs or assignees. Are folks assuming that Eastman knew about the pins? Why?
David:
> When he bought the "east 500'" a survey was completed and pins set where that surveyor measured 500'. Those pins were shown to the "west 500'" buyer. The pins have been in place for over 50 years. There is no problem until another surveyor comes in and decides he can measure better than the previous surveyor.
How was Eastman supposed to know about the pins when he bought the east 500 feet? As I posted above a few minutes ago, there may be a subliminal recording state problem here. If the survey plan is neither recorded nor called in the deed, and the pins are not shown to Eastman (all of which is consistent with the original fact set), how is Eastman supposed to have known the pins even exist, much less supposed to have "relied" upon them, acquiesced in them, etc.?
JBS:
> Are folks assuming that Eastman knew about the pins? Why?
There are two presumptions of law which support one another: Firstly, the buyer and seller, in the process of entering their agreement, have walked the property and viewed the boundary. That presumption is overcome when Eastman testifies, "I was completely unaware of the existence of a survey or markers on the ground, and I never walked the ground prior to purchase." Then, the unilateral action of the seller (who would have been marking the remainder, not the eastern parcel, would not prevail; senior rights would prevail). Second, actions of the parties conducted "at or near the time of the conveyance which created the boundary" provide valid evidence which must be considered when applying the rules of construction to determine the "intent" of the parties. A "survey performed at the time of the sale" in 1960 which results in the placement of physical monuments intended to represent the boundary locations meets meaning of the phrase "at or near the time."
The extrinsic evidence (the iron pipes) is to be considered by the surveyor. The surveyor must gather the evidence to determine if there is enough evidence to overcome the presumption of law. The pipes were placed "at or near the time" of the original conveyance, which incorporates them into the conveyance even though the expressed words are frequently missing. Knowledge of the pipes was passes to Western when he purchased the remainder. Western's successor in interest can't blindly dismiss the pipes today just because they're "off" of the precise measurement. If Western's successor has an issue, his issue is with Western, not with Eastern.
JBS
David:
> How was Eastman supposed to know about the pins when he bought the east 500 feet?
From original post: "Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale ..."
Are you suggesting that Mr. Jones DID NOT let Eastman know that he had or was having a survey made to determine the extents of the parcels? That's a stretch.
David:
From the original post, I take it that since Eastman purchased the property in 1960 and a survey was performed in 1960 for the purchase, that he would have received a copy of the survey and would have known what he was buying. I don't think the question here is whether or not either person knew about the pins, I believe they each knew about them and relied upon them. Our job as Professional Surveyors is to retrace the line as established in 1960.
Did he accept pins or what they were suppose to represent?
The survey was said to represent 500'. When Eastman found the survey to be wrong, would he not have a complaint? Did he accept the pins, or the intent that they were set at 500'? What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.
JBS:
Q. Mr. Eastman, were you present the day of the field survey? A. Yes Q. Did you observe the Surveyor making his measurements? A. Of course I did…I was told I would get a better price if I helped…so I was a tape holder. Q. What end of the tape? A. The hind end…the Surveyor said he would be the head man. Q. Do you remember the instructions you were given? A. Yeah…to hold the plumb-gob steady at the hunnert. Q. By hunnert do you mean the one hundred foot mark? A. I guess…he was yellin’ at me for tuggin’ the tape back and forth. Q. Do you remember where you held the plumb-BOB string on the tape? A. I am certain…at the very end where the little hoop thing is...No more questions, your Honor.
DDSM
Did he accept pins or what they were suppose to represent?
Why would you assume that he wouldn't accept them? They were set by a Professional Surveyor and have been in place for 50+ years.
Did he accept pins or what they were suppose to represent?
> What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.
Then I would probably treat them as closing corners. Hold line between them but stop or extend to the senior north & south lines previously established.
Dan:
Re: "Are you suggesting that Mr. Jones DID NOT let Eastman know that he had or was having a survey made to determine the extents of the parcels? That's a stretch."
Yes I am. It's no stretch here. People buy property, sometimes site-unseen, from far away, often from out-of-state. Some realtors are lazy. I would not assume that Eastman, or any buyer, had seen anything of which s/he had not been given written notice. Obviously in a recording state the presumption might be otherwise.
There is nothing in the original fact set to indicate that Eastman has ever even set foot on this property!
Did he accept pins or what they were suppose to represent?
> > What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.
>
> Then I would probably treat them as closing corners. Hold line between them but stop or extend to the senior north & south lines previously established.
Agreed.
Did he accept pins or what they were suppose to represent?
> The survey was said to represent 500'. When Eastman found the survey to be wrong, would he not have a complaint?
Yes. His complaint is against the surveyor, not the adjoining landowner. The surveyor would be the one to remedy the issue and making Eastman whole (through land acquired from Jones' remainder, or money).
> Did he accept the pins, or the intent that they were set at 500'?
That's why every court recognizes rules of "repose." Repose generally runs around 20 years (it's different in a few jurisdictions), with most holding to 20 years. If Eastman (or Western) had an issue or any doubt about the survey conducted in 1960, then he needed to step up and do something about it. Rules of repose are the "you snooze; you loose" principle referred to most as the 20-year rule, the rule of "acquiescence," or the "fence line" rule. Repose lies at the foundation of all those doctrines. It's just not wise to go around kicking sleeping dogs. You might get bit.
> What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.
Then it's time to be asking questions of the other neighbors who might be affected by the same markers. What do they know? What have they done? Gather the evidence before you assume that the markers don't control. Remember the presumptions of law; overcome them when the evidence is sufficient.
JBS