Holy Cow should have this conversation written down in his field notes and I would think that he as a recognized expert on boundaries in his county or counties would be a highly credible witness in a local trial court as opposed to a property owner who suddenly "changed his tune" in his own favor. The property owner has already made an admission against interest.
Holy Cow, post: 408310, member: 50 wrote: Do you set monuments based on what the deed says?
In short, yes. Our job is to find the boundary of the parcel described in the deed. Does that mean we are to ignore everything except the exact distances as stated in the description - NO! Remember, the description is an aid to find the boundary.
Apparently, you have found ambiguities, and have found some evidence that will clear up the ambiguities. We are allowed (and are required) to use extrinsic evidence to resolve ambiguities.
Just because the description doesn't state or mention the fences or road, doesn't mean they may not control the location of the boundary. Find the intent.
Holy Cow, post: 408310, member: 50 wrote: Do you set monuments to conform to the fence alignments on the west and north either extended or shortened to the controlling outer boundaries of the true aliquot part?
Well, if that isn't a loaded question........ But the obvious answer is yes, no, maybe, and it depends. You should monument the boundary of the parcel. That includes finding the location of the south and east boundaries of the north half of the northwest quarter. Be sure to get past chapter 3 of the BLM manual when doing so.
What effect would it have to stake the property as described? I take it the description does not call to monuments? Could they have just been laying out where they thought the property probably was in order to get a feel for the general layout? Is this valuable land? Are there improvements that would be effected if you relied on the actual described area?
Just throwing some thoughts out there. I would probably do whatever Karoly told me to (within reason of course).
Didn't want to add the following confusion in the first post. There won't be any fighting because one side is famous for their pacifism. Old Order Amish. They are the ones who did the measuring and wrote the description. The seller at that time, and owner of the remaining little tract, simply let them do whatever they wanted to do and agreed to take a bundle of cash in exchange.
BTW, the fences that were measured and intended to control are excellent fences probably constructed within the past five years, long before any intention to sell off the other side.
I think a good idea might be to tell them (both parties) that the property, as legally described, would put it in a different place and give them the option of either staking it where the description puts it or use their monuments and rewriting the description for them to better describe where the existing monuments actually are. As long as the are both good folk, it might be easiest to correct the discrepancies right here and now.
Tom Adams, post: 408361, member: 7285 wrote: I think a good idea might be to tell them (both parties) that the property, as legally described, would put it in a different place and give them the option of either staking it where the description puts it or use their monuments and rewriting the description for them to better describe where the existing monuments actually are. As long as the are both good folk, it might be easiest to correct the discrepancies right here and now.
With all respect Tom, I think that in most cases, that would be one of the worst options. There are not two locations of the boundary for the landowners to choose from - there is only one boundary, and our job is to find that one boundary. Further, the distances as stated in the description generally will not "legally" outweigh the extrinsic evidence of location. We are allowed to go outside the writings to resolve ambiguities, and the resolution of those ambiguities become what is "legally described" in the document.
Just because the description only states direction and distance without monuments doesn't mean that there are no ambiguities in location to resolve. Mr. Cow has obtained evidence that the intent was to follow the fences, and without enough evidence to "over-rule" this intent, it will hold in determining where the ONE location of the boundary was created, as intended, during the original transaction by the original parties in interest. We do not have the power to over-rule the intent of the parties just because we may be able to measure better than the average Amish gentleman.
Yes, I do agree that sometimes there are shorter ways to get around the barn depending on the specific circumstances and the parties (personalities) involved. But I also believe that properly gathering all relevant evidence and forming a professional opinion on the location of the boundary is far preferable to handing the parties just enough ammunition to start shooting at each other.
Scott Ellis, post: 408343, member: 7154 wrote: This seems to be a problem in the PLSS States, if it is not spelled out how to solve the boundary in the Magic survey book, some Surveyors do not know how to solve the boundary.
Complete and utter horsecrap.
Scott Ellis, post: 408343, member: 7154 wrote: I would not set monuments based on the deed, I do not have much faith in any deed written by a non surveyor.
ItÛªs been my experience that a deed can be written by anyone, it doesnÛªt matter whether a surveyor wrote it or not, it's the intent of the deed that matters. I do agree with your opinion concerning the BLM approach.
I think the PLSS should be called the PLTS because that is what it is, a quickie title system with just enough Survey control to provide a basis for location. I doubt Thomas Jefferson ever thought we would still be refining the corners of 40s 200 years later.
It is enlightening to read some boundary cases from 1790 to about 1810, they inquired into where the boundary was located and if the original monuments disappeared and new ones set up by the parties in authority they had no trouble finding for those. This is the legal backdrop of the creation of the PLTS. Why any farmer can measure north 20 chains, nothing to it.
thebionicman, post: 408366, member: 8136 wrote: Complete and utter horsecrap.
After being on this site for a few years, I realized a few things. Most of the boundary questions asked on here are from a PLSS state, and they are questions that have to do when something is not in the BLM book, they are problems I see every week in a Metes and Bounds state.
What was the problem here, the deed did not match what was on the ground. Every Surveyor should be able to solve this without asking for help. Maybe if the deed said the NW quarter and no distances or bearing then there would not be a problem.
Its just a face surveying in the PLSS system is easier than a Metes and Bounds State. How hard is it to survey when they tell you how to solve the boundary or reset a corner based on the corners you found, and most of the Surveys already done are recorded.
If you can give me some examples on why it is horse crap, I would love to read them.
I thought we had that question settled. There is a difference between bovine excrement, and horse turds.
Calm down, calm down. Don't get all riled up.
I like the solution of "The fences don't match your deed. We can either USE the fence, or, IF you'd like, I can STAKE your deed numbers, and you can use those, BUT, if we do, there should be a signature on some paper, stating that you realize that the FENCES were the original line as surveyed, however at the REQUEST of both parties, they chose to HOLD the deed numbers.
I can do this either way, BUT record title is the fence.
N
Scott Ellis, post: 408377, member: 7154 wrote: Its just a face surveying in the PLSS system is easier than a Metes and Bounds State.
I disagree. PLSS has both the aliquot divisions to deal with and metes & bounds tracts carved out of many of them. It has all the problems of M&B and more.
The original post had nothing in it peculiar to PLSS except that the metes and bounds tract was up against two sides of a quarter section.
Bill93, post: 408381, member: 87 wrote: I disagree. PLSS has both the aliquot divisions to deal with and metes & bounds tracts carved out of many of them. It has all the problems of M&B and more.
The original post had nothing in it peculiar to PLSS except that the metes and bounds tract was up against two sides of a quarter section.
No it does not, with the PLSS you can always re establish the PLSS squares, then solve the Metes and Bounds tract.
With just the Metes and Bounds system, some areas are really badly written and marked, you may have to survey back to the land grant and every tract in the land grant due to Senior Junior rights. You may even have to survey the adjoining land grant, it's messy and difficult.
I am not saying the PLSS is a bad system, I do like it, I am saying Metes and Bounds is harder to survey. Its the pervious written description(s), what you find in the field, the adjoining tracts, your knowledge of Boundary law to solve the Boundary, thats it. No Government Book to help, no nice and pretty squares to use.
It's like the difference between wine and beer. Wine, you have to talk endlessly about because, secretly no one really likes wine so you have to have lengthy pseudo intellectual discussions about it. Beer, on the other hand, decide what type(s) you like (Stout, Porter, ales, IPA, Lager, etc) and drink it, no need to talk about it.
The flow of boundary law is pretty much the same everywhere...Deed to ground (establishment). Outside of a pure question of law (e.g, uncalled for monuments don't control), which almost never happens, extrinsic evidence is relevant to the question of the fact of location. The parol evidence rule is often cited by Surveyors who have not read the 84 pages of exceptions to the one page rule.
Scott Ellis, post: 408382, member: 7154 wrote: no nice and pretty squares to use.
Um... hmmmm hmmmm. You not from roun heah, are ya?
Scott, them nice perdy squares... I am in the PLSS... and I have spend countless hours, figuring them things out.
They have their challenges.
N
Nate The Surveyor, post: 408387, member: 291 wrote: Scott, them nice perdy squares... I am in the PLSS... and I have spend countless hours, figuring them things out.
They have their challenges.
N
Nate,
I have no doubts that some of the pretty squares have been difficult to figure out, either because a monument was just set in the wrong place, a surveyor took a short cut, or didn't follow the BLM book.
Scott Ellis, post: 408377, member: 7154 wrote: After being on this site for a few years, I realized a few things. Most of the boundary questions asked on here are from a PLSS state, and they are questions that have to do when something is not in the BLM book, they are problems I see every week in a Metes and Bounds state.
What was the problem here, the deed did not match what was on the ground. Every Surveyor should be able to solve this without asking for help. Maybe if the deed said the NW quarter and no distances or bearing then there would not be a problem.
Its just a face surveying in the PLSS system is easier than a Metes and Bounds State. How hard is it to survey when they tell you how to solve the boundary or reset a corner based on the corners you found, and most of the Surveys already done are recorded.
If you can give me some examples on why it is horse crap, I would love to read them.
The Manual only deals with the PLSS portion of our boundaries. Once divided in an other than aliquot manner our parcels are essentially metes and bounds. While we do our fair share of section breakdowns, we also deal with the same issues as non PLSS states. The primary difference being the layers of crap are usually a little thinner here as modern occupation started later.
I've taken and passed 4 PLSS State exams so far. Less than 20 percent of any exam came from the Manual or things related to it. If all you know is the Manual you won't get Licensed. If you happen to luck out and pass the exam you won't last. Your broad brush slap is unprofessional disparagement without foundation.
Scott Ellis, post: 408377, member: 7154 wrote: What was the problem here, the deed did not match what was on the ground. Every Surveyor should be able to solve this without asking for help. Maybe if the deed said the NW quarter and no distances or bearing then there would not be a problem.
No, I do not believe the problem as being "the deed did not match what was on the ground". Simply put, the distances measured by the original parties did not match the measurements made by a retracing surveyor within our unfounded expectation of precision. Yes, we should all be able to solve this problem, after all, we are supposed to be the experts in finding boundaries.
Usually the problem is that too many of us think the distances as stated in the description are "gospel" as measured by us "expert measurers" (this is probably just as applicable to metes and bounds states as PLSS states). Too often we forget that the measurements as made by the original surveyor are without error, and if our measurements are different, then we are usually the ones making the error.
And no, this common discrepancy between measurers does not create any title issues.