Senior rights?

The Elements Missing Are Occupation And Control

Occupation and control have to occur before they can be challenged.

It is not evident by the information that they have in fact occured.

Paul in PA

JBStahl

They have accepted the survey in this situation though. The survey was completed in 1960 when the east lot was sold off. The fact that the purchaser went through with the purchase of the land is evidence of such. The same can also be said about the west lot, as the purchaser was made aware of the survey on the ground; he also went through with the purchase. Therefore both owners accepted the survey as it was. The surveyor's job now is to retrace the original boundary, whether mistakes were originally made or not.

Yes, a very interesting thread.

I have to say that I agree with JBS on all counts.

From Clark on Surveying and Boundaries Chapter 14:

"The cardinal principle guiding a surveyor who is running the lines of a previous survey is to follow in the footsteps of the previous surveyor."

"It is the extensive duty of the retracing surveyor to see what the first surveyor did, not what he should have done."

"No matter how inaccurate the original survey may have been, it will be conclusively presumed to be correct and, if there is error in the measurements or otherwise, such error is the error of the last surveyor."

"It is the responsibility of the surveyor to retrace the steps of the person who made the original survey. Therefore, the original artificial monuments control."

"The question as to boundary lines is not where an entirely accurate new survey would locate them but where the original stakes located them."

Need to add, if the evidence of the original survey were relied upon, these monuments were not relied upon and there is no occupation evidence to show that they ever were. If the owners wish to hold them now that they have been recovered or to reject them at this time is their choice to make. The owners choice and their actions resulting from that choice will fix the boundary, all they need is to know that they have the choice along with knowledge of the location of the pins in relationship with the record. If there was separate occupation divided by a fence, crop line or other visible evidence between the pins, there would be no question as to ownership. That is not the case here.
jud

I also agree with JBS all the way through.

Even though a lot of surveyors are getting hung up on the numbers, reliance, "if there was a fence...", and so on, they are all ignoring a more basic issue.

The 1960 survey was performed specifically for the purpose of laying out the boundaries of the east 500' and was apparently parformed in conjunction with (either just before or just after) the 1960 conveyance.

In nearly all, if not all jurisdictions in the US, if a survey was performed in conjunction with a conveyance, whether or not the conveyance document specifically calls for the survey, the monuments of the survey control over other elements. That's a basic tenet of boundary law that the surveyor ignores at his own peril.

Another basic tenet of law is that if there is any latent ambiguity in the agreement document (deed), it must be resolved in light of the circumstances surrounding the execution of the agreement (that is at the time the agreement was made).

In 1985, the parties had only the deeds and the 1960 survey to guide them. There was no new survey performed at the time of that conveyance to inform them of any additional facts. Both the survey and the grantor's deed showed the parent parcel to be 1000' wide. Both the survey and the deed to the easterly portion showed it to be 500' wide. All information available to the parties clearly indicated that the remaining portion was also 500' wide. They had no reason to suspect it was anything different, and therefore no basis to establish any other line in the vicinity of that previously established in 1960 which purported to mark the line which was both the westerly line of the easterly 500' and the easterly line of the west 500'. Possibly of even greater importance is that Jones and Westerly walked the property with Jones pointing out the monuments as the corners, giving the description tangible meaning and thus defining the terms of the description in a real way.

Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments. The surveyor in 1995 cannot reinterpret a new intent based upon extrinsic measurement evidence newly found at that time. Nor can the surveyor in 2011 redefine the intent of the parties based upon the extrinsic evidence of 1995, or even yet again by more extrinsic measurement evidence newly discovered in 2011 which would also likely conflict with the measurements of 1960 and to (probably) a lesser extent, those of 1995.

The parties themselves cannot now claim to have known all along a thing only recently discovered in order to redefine their intent. Jones cannot now say that he intended to keep a 4' strip for which there was previously no evidence to indicate its existence. Same goes for Westerly, who bought from Jones and was shown the 1960 monuments in connection with that conveyance, indicating intent by both parties to convey the remainder. Eastman likewise cannot now claim that he always knew his westerly boundary was 4' beyond the irons set in conjunction with his conveyance because he had no reason to know and he exhibited no such knowledge by his actions of ownership. Mr. Newyoung, the current buyer of Eastman's parcel can only receive what Eastman owns, and Eastman owns the easterly 500' of Jones' parcel as defined by the monuments set during the survey performed in connection with his purchase from Jones. The fact that the most recent surveyor has discovered that 500' to measure only 496' cannot be grounds to change the line, only to report a Record vs. Measured distance on his RS.

Measurements alone are very weak evidence upon which to overturn a monumented common boundary. Rather than further definite action by the parties indicating acceptance of the established line in order to support it, you would need a history of definite actions by the parties indicating an alternate establishment. Without that stronger evidence, the surveyor has no right to change the boundaries to a location he considers to be more correct than that previously established.

You cannot change an established boundary line because of an arbitrarily misapplied "survey" rule. The purpose of surveys is to either establish new boundaries, or to rediscover the location of previously established boundaries. The courst have established common law for this purpose, and indeed that is the source of all "survey" rules. The unfortuante part of that is that many surveyors, parforming the tangible investigative and marking work that the courts are not equipped to do, have lost the connection between "survey" rules and common law. They only differ when they are misapplied.

If you research the role of the surveyor in texts from Skelton, to Clark, to Brown, to the BLM Manual (and nearly any other that addresses it), you will find clear definition that the retracing surveyor has NO authority to correct previous surveys by which conveyances had been made. You don't even have to consider doctrines of acquiesence or AP. It's more basic than that.

Bottom line facts:

1. The 1960 survey was performed for the 1960 conveyance. It controls that conveyance.

2. The parties to the 1985 conveyance were informed only by the 1960 survey and the existing deeds, which were all in agreement that the parent parcel was 1000' wide and the easterly conveyance was 500' wide, leaving a 500' remainder. They also viewed the monuments of the 1960 survey as part of the conveyance, giving it tangible meaning that the court will not look beyond. Law requires interpreting intent according to the circumstances surrounding an agreement.

3. The circumstances which first indicated a latent ambiguity and a possible need to take a 2nd look at intent came in the form of measurements 10 years after the latest conveyance and 35 after the line was established. Go back to #2 for correct basic interpretation of intent.

4. A retracement surveyor has no authority to correct perceived errors of previous surveys. Lacking no other evidence than measurement, it is insufficient to overcome the basic interpretation of intent and the established line evidenced by the monuments of the survey controlling the conveyances.

I think Lex is a nom de plume for a more experienced surveyor doing a bit of research to get a feel for how many surveyors understand how the law applies and whether we know how to apply it. The OP seems designed just for the purpose of bringin forth the various opinions in this thread, and Lex popped in only a couple of other times to subtly steer the discussion toward the very limited reading most surveyors give to our survey legal texts. Lex, are you Jeff?

"Need to add, if the evidence of the original survey were relied upon, these monuments were not relied upon and there is no occupation evidence to show that they ever were. "

The OP hasn't clarified this any further so this is just conjecture. As the original survey was ordered and paid for by someone, concurrently with the subdivision and transfer of the parcel, it can only be assumed that the survey had one, and only one purpose, and that it was to be the original survey of the parcel. The original survey of a parcel does not have to be completed and recorded in the deed or concurrently with the deed to be the valid original survey.

"If the owners wish to hold them now that they have been recovered or to reject them at this time is their choice to make. "

I agree, but that is a question solely for the owners, not the surveyor.

We all know what happened in this example: Soon after moving in, Mr. Newyoung, who was not informed about the old survey by Eastman, proceeded to get one performed. I don't see anywhere in the text indicating that Eastman told Newyoung about that old survey so we must presume this doc was not part of this last transaction equation. Unf, Newyoung called around and hired the cheapest guy he could find on Craigslist (I know, it wasn't around in 1996- but you know the guy I'm talking about). This 'surveyor' came out and cut corners at every turn to make this work profitable. It's possible the 'surveyor' stumbled on the old pipes in the field but I'm skeptical he or his crew ventured 4' away from the coordinates on their point sheet. Once Westerly saw the fence going up on his property (yes, his) he called an attorney and here we are-trying to defend Crap-Ash surveying Co.(1996 guy). During the litigation Mr. Westerly's team hires a surveyor who is not ashamed to charge for the value of his services and who actually does real survey work; gets testimony and uncovers a copy of the old survey. Meanwhile, C-A surveyor is deflecting and shirking all the responsibility of his profession onto Mr. Newyoung and the court system. He did not perform as a professional, he acted as a technician; he did some math, turned some angles, and made a map. To point--when I, like so many of you, took my LS exam, I don't recall there being a lot of questions about math and angles. Those subjects were covered on the LSIT exam. Math and angles are a tool of our trade and like any tool, it should be engaged to help us determine a solution. It's strict construction should not usurp the solution. Had C-A surveyor performed his due diligence then there would be no lawsuit. Unless he could show that the '60 survey was fraudulent then it will likely be upheld so we should act as the court would act and give them the answer they are looking for. Argue about the facts given if you will, but we have been given enough information to justify the pipes. While it is up to the courts and land owners to establish boundaries, it is our duty to act their agents in determining them. You can do work which you think will keep you safe from legal retribution or you can do work which will be upheld by the court which will in turn keep you safe from legal retribution.

Amen to John, Carl & Evan.

To prevent torturing everyone with my spelling and grammer, I'll leave it to a authority - the courts. I could cut and paste scores of cases, but they all basically say the same thing as this well written decision:

TYSON v. EDWARDS, 433 So.2d 549 (1983)

"The difficulty with the problem is that the role and practice of the surveyor and his function in solving a surveying problem of the type in this case is misunderstood. Lawyers, architects and design engineers are accustomed to achieving objectives by first conceiving of abstract ideas or plans, then reducing those ideas (intentions) to paper, and then using the written document from which to construct a physical object or otherwise tangibly achieve the original goal as written. When this is done, the written document is always considered authoritative and any deviation or discrepancy between it and what is actually done pursuant to it is resolved by considering the deviations and discrepancies as being defects or errors in the execution of the original plan to be corrected by changing the physical to conform to the intention evidenced by the writing. In only one situation does the surveyor play a similar role and that is when he, in the first instance, lays out boundaries in the original division of a tract which has theretofore existed as a single unit. Thereafter the surveyor's function radically changes. It is not the surveyor's right or responsibility to set up new points and lines establishing boundaries except when he is surveying theretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey. Later surveyors must only track and "trace the footsteps" of the original surveyor in locating existing boundaries. They cannot establish a new corner or line nor can they correct erroneous surveys of earlier surveyors, even when the earlier surveyor obviously erred in following some apparent original "over-all design" or objective. The reason for this lies in the historic development of the concept of land boundaries and of the profession of surveying. Man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and running lines ("metes and bounds"), and the paper "survey" or plat of survey is intended only as a map of what is on the ground. The surveying method is to establish boundaries by running lines and fixing monuments on the ground while making field notes of such acts. From the field notes, plats of survey or "maps" are later drawn to depict that which was done on the ground. In establishing the original boundary on the ground the original surveyor is conclusively presumed to have been correct and if later surveyors find there is error in the locations, measurements or otherwise, such error is the error of the last surveyor. Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan. Written plats are not construction plans to be followed to correctly reestablish monuments and boundaries. They are "as built" drawings of what has already occurred on the ground and are properly used only to the extent they are helpful in finding and retracing the original survey which they are intended to describe; and to the extent that the original surveyor's lines and monuments on the ground are established by other evidence and are inconsistent with the lines on the plat of survey, the plat is to be disregarded. When evidence establishes a discrepancy between the location on the ground of the original boundary survey and the written plat of that survey the discrepancy is always resolved against the plat.”

“The result of all of this is that most boundary disputes essentially present a surveying problem and the surveying profession has its own rules, methods and practices for resolving its problems. Neither the legal nor surveying problem in a boundary dispute involves a question of what the original subdivider or surveyor intended or where, on the ground, a boundary should now be established to conform to the plat. The question is where on the ground the original surveyor did in fact fix the particular boundary and not where he intended, or should have, fixed it.”
Bold added.

It doesn't get any plainer than that. I'll gladly read any cases wherein the opposite was held.

Mapmaker

Mapmaker, Congratulations on sitting for your PLS exam.

I've been following your comments and input not only in this discussion but others. It seems like you are fairly open-minded and willing to learn. I'll throw in my 2 cents for its worth. Reading text books to learn about surveying laws is only a good first step. Most of the books are fairly good, I prefer Clark to any of Browns though. I would strongly recommend Lucas's new book. What you need to do is not take what they say for gospel. Research the claims and statements for yourself. Read the case-law cited, and if none is cited (which happens quite often) find case law on the specific issue at hand. There are quite a few good sources for case law: google scholar, leagal law, etc. If you have any trouble finding relavent cases, please ask this board, as you know, there are many experts that participate on here and most will be more than happy to help as would I.

Good luck

Sorry Evan, You Are Wrong

"Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments."

The EXCEPT description covers much greater territory. Not 500', but 400' or 600', whatever it takes. If the East description included the new monuments, then the EXCEPT description does also, whether mentioned or not.

Paul in PA

Mapmaker

Thanks. I like the discussions here. Many I refrain comment as to not show ignorance. Once in awhile (like this one ) I try to participate ( possibly putting foot in mouth). I try to study several different sources. Fortunately I have a good group of mentors. Most from Wa State, but a couple here in Kansas now. I find there is a lot of knowledge on this board to learn from.
Once I pass my test, I realize I'm no expert. It just will mean I'm dangerous. Learning never ends in this field.

Sorry Evan, You Are Wrong

> "Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments."
>
> The EXCEPT description covers much greater territory. Not 500', but 400' or 600', whatever it takes. If the East description included the new monuments, then the EXCEPT description does also, whether mentioned or not.
>
> Paul in PA

I assume you read his preceeding paragraphs.

I appreciate everyone who participated in this important discussion.

The text books can give you general principles, but they can't really discuss specifics like we can.

The learned practitioners on this Forum (and the old Forum) get down to brass tacks, and true boundary surveying can be learned.

Thanks.

Since Texas was mentioned in a response or two, here are few quotes from a recent Texas Decision:

TH INVESTMENTS, INC. v. KIRBY INLAND MARINE, 218 S.W.3d 173 (2007)

When finding the lines of a survey, "[t]he cardinal rule is that the footsteps of the original surveyor, if they can be ascertained, should be followed." Hurr v. Hildebrand,388 S.W.2d 284, 288 (Tex. Civ.App.-Houston 1965, writ ref'd n.r.e.); see also Humble Oil & Ref. Co. v. State, 162 S.W.2d 119, 132 (Tex.Civ.App.-Austin 1942, writ ref'd) ("The primary objective in locating a survey is to `follow the footsteps of the surveyor'; by which is meant to trace on the ground the lines as he actually ran them in making the survey."). If the actual lines and corners run by the original surveyor can be found, they are controlling, even if they are inconsistent with the calls and references in that surveyor's field notes. See Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149, 151 (1952) (stating that the footsteps of the original surveyor are controlling and prevail over calls for course and distance); Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317, 318 (1907), (stating that when the actual lines run by the surveyor can be found, they constitute the true boundary and cannot be made to yield to course and distance calls); Teal v. Powell Lumber Co.,262 S.W.2d 223, 226-27 (Tex.Civ.App.-Beaumont 1953, no writ) (stating that "if the footsteps of the original surveyor can be identified and followed, they will control the location of the line or boundary in question even though they may not be in harmony with the field note calls").

Bearings and course calls should not be used to establish the location of a survey
line if there is other reliable evidence showing where it was actually run on the ground. See Wheeler, 252 S.W.2d at 151 (footsteps of original surveyor control over calls for course and distance); Thatcher, 105 S.W. at 318 (where actual lines run can be found, they constitute the true boundary and cannot be made to yield to course and distance calls).

Gosh, if I didn't know any better, it sounds like the Courts are saying that they prefer stable boundaries over exact measurements!

When are they going to wise up and start reading the texts we read?

The monuments are 100% accurate.

The 500' number in the Deed has a precision of +/-4'.

JBS

No title passes in boundary establishment cases. The monumented boundary is the boundary between the two titles although it doesn't perfectly match the numbers in the Deeds.

Steve, My next big question is which way are the licensing boards gonna go; are they gonna go with the unsubstantiated "survey laws" as espoused in the "texts", or are they gonna go with what the courts have said the laws are? But that is whole 'nother ball of wax.

You have to do better than that Paul

You say simply that I'm wrong and offer no support for that statement.

You cherry pick one small part of my post which, if you apply a general rule about description writing, you would appear to be correct. But if you take it in context and correctly apply the law, you are unable to support your flippant assessment of my post.

Try to keep up. If you have support to argue against my opinion, taken in context, then do so. I welcome the challenge of thoughtful debate. But simply echoing a portion of my post and saying "your wrong" without presenting an intellectually honest and considered argument is just... empty an a waste of forum space.

You can do better, can't you?

In that case, of course you hold the monuments. If they were not both so perfectly in precisional harmony you might question if they were actually set to monument the line. But both are exactly 4 feet off. This is evidence that they do mark the boundary and have not been disturbed. Similar to the exterior pins. If we find a bunch of pipes that all fit within 1 foot in a small subdivision from 1960, but one that is out by 5 feet, then we know that one has been stubbed in approximately somehow and is not indicating a consumation of the contract. The other certainly are. Whether they are called for or not is merely a part of the evidence. Called for monuments are more easily proved than uncalled for. But tens of thousands of monuments have been set to consumate deed contracts and never mentioned in the record. You're going to be in court and losing a lot if you reject all these original undisturbed monuments. Judges are not dumb, they generally know the history of land boundarys and surveying in the U.S..

Typical rural surveying work in 1960 would turn in precisions of 1:200 in good conditions. Throw in some woods, hills, green field crew, etc., etc.,. Four feet in 500 may seem like a lot to you now. But this is really nothing out of the ordinary. The only thing suspect is that the exterior and interior pipes match precisions within themselves so closely. Obviously this is a hypothetical rather than a real situation.