So where was the proposed line? Regardless of whether the proposed line falls at the center of the easement as the dimensions of the description indicate, or if the existing line was built on the proposed line, or if the proposed line was somewhere else entirely, it is that proposed line, if it can be determined, which controls.
I'm sure we've all learned about, or at least heard the term "latent ambiguity". as soon as the surveyor found a difference between the described location and the physical location, a latent ambiguity was discovered. That means that not only can you, but you must look beyond the recorded document for resolution.
If there is no other record of the proposed line, then you need to look at other extrinsic evidence. One thing I would find out is whether it was common that the USBR would build lines in locations other than the preliminary line that the descriptions were based upon, or if they consistently built lines in their preliminary locations.
Which leads me to what I would do if I were that private surveyor. Once discovering the discrepancy, and prior to mapping out any lots (which should not have occurred before the field survey where the discrepancy would have been found), I would contact the USBR and get any history that is available, including any maps or field notes of the proposed line, as-built drawings, if any such exist, and get some anecdotal background from an employee who has good knowledge of the history.
Without the knowledge these things may give, there is no way of discerning intent, or even probable intent. Because the description does not call the line as constructed the centerline, you can't assume that to be the case without corroborating evidence. Similarly, the line may have been intentionally placed to one side for the reason Jud stated - room for a second line. But again, you can't assume that without corroborating evidence. IMO, you don't need some silver bullet evidence, just something to tip the balance.
A surveyor can't make any responsible decisions without first having all the information available.
Derek,
Contacting the utility is a great idea. Unfortunately, often time surveyors don't view an easement as "important" as the property boundary they are surveying. So they just plot it per the deed and move on, not considering the rights of the utility or future havoc they are creating with the future adjoining landowners.
Since the description was not written to reference the line as built or as constructed, you cannot assume the existing powerline is the centerline monument. I have seen way to many intentionally offset lines to make that assumption.
If there is some codified law or sufficient case law that states that the intent of all USBR power line easements is that they be centered on the powerline as constructed, even if the description does not clearly state that, then that's what you should do. Absent that, you cannot make that assumption without other supporting evidence.
Making that assumption would not be much different than determining a lot boundary to be 10' off the side of a house because that's what the building setback is and you've found no other evidence of where the line originally existed, using the logic "most of the other houses in the neighborhood were built on the setback line, so it's OK to assume this one was as well".
It may be a valid assumption, but without corroborating evidence, that's all it is. it doesn't rise to the level of well reasoned professional opinion based on assumption alone.
You are correct is saying that you should not make assumptions and collect as much evidence as possible. Contacting the agency/utility would be a great idea. I think the easement document language of proposed centerline, with no other lines planned or constructed, is pretty strong evidence to start with. BUT, how would you know without contacting the utility?
BTW, it would be highly unusual for an offset centerline in WAPA's territory, and fitting 2 H-frame lines in an 100 foot easement would be impractical. Of course, I did not tell you the voltage or structure type in this hypothetical example.
I guess upon finding that the easement centerline (as described) and actual transmission line centerline (as field measured) are not in the "same" place, I would call the right-of-way department for the owner of the transmission line and begin working to find out why (is it offset for better access of large equipment?) and if it is possible to vacate the old easement in favor of a new one (to re-center the easement description) if desired for the proposed development layout to work the way we want it.
I have done similar work with underground gas pipelines that were not quite where the record said they should be. Usually find the pipeline company willing to work with us to move the easement to fit the actual position but it sometimes takes a little extra time.
I agree with Mr. McGrath and Mr. Karoly
Those are exactly the kinds of things I would be looking for. If there is an established history that lines deliberatley constructed at an offset to the centerline were either highly unusual or never happened, and there existed no evidence that there may have been a prelim line in any other location than at the constructed location, that would certainly support the existing line as the monument to the centerline of the easement.
I would still like to know something of the procedure and care typical of the ties made between these easement locations and the PLSS corners mentioned in the descriptions. With our local power giant, if it were a recent description, I would expect it to have been a careful tie, which would cause me to look a little deeper into whether the power line as constructed may have been intentionally placed off centerline. But if it were an older description, all bets are off. The tie may have been carefully measured, may have been compass and rag taped, paced, or scaled off a quad.
When I was a chainman/I-man, I did some work with a natural gas provider in MI. At that time, their idea of careful measurement was on angle turned with a 30" K&E set over a stob and steel taped distances with the chain lying along the ground along the line of the angle turned. Their normal measurements were made with a handheld Suunto compass and a rag tape pulled in the general direction of where they wanted to go. Less careful reported measurements were either paced or taken from an odometer. Any of those distances may have been used in descriptions. All I can say now, or even then with as little as I knew, is "Yikes!"
The other thing is the monument they had at a given section corner 75 years ago might have been different or might have been a guess to a fence corner.
> All I can say now, or even then with as little as I knew, is "Yikes!"
I say the same thing when a "realty specialist" writes a legal from GIS locations or a handheld GPS position collected by someone who knows nothing about land surveying.
> The other thing is the monument they had at a given section corner 75 years ago might have been different or might have been a guess to a fence corner.
Good call, Dave. Yes this was indeed common on old USBR baseline surveys.
Thanks for the comments.
I assume that the chain of title for the easement reads the same since it was created.
The language of the deed is paramount here. Since you found the monument, then we need to found out what they (the parties) intended.
I basically agree with Mr. Karoly..even though he's a California surveyor...:-P
Let's mentally rewind to 1950 or so when the easement was originally granted. The owner (let's call him Farmer Brown for now) is approached and requested to grant the easement. One of his first questions is "where do you intend to put it?". That is shown to him on the ground and put down in writing. It is made a part of the actual deed of easement because it has to be agreed to in writing by Farmer Brown, or it isn't binding upon him. It is the sole indication of the intent of the parties. It doesn't matter what the construction plans show indicating the intent of the power company by itself.
According to what the OP has posted, a proper description, referenced to the PLSS, has been made a part of the deed of easement and it contains no problems which prevent him from finding the section corner(s)called in the deed and retracing the footsteps of the original survey on the ground. That is what Farmer Brown conveyed in 1950, not an "as built".
The OP finds that the centerline of the powerline does not coincide with the centerline of the easement. Is this now his problem to solve? What is the discrepancy? Is part of the structure actually off of the easement? We don't know.
But since my first major powerline work for Public Service of Indiana 1n 1972 to my latest for Dayton Power and Light, I can say that I have never seen a major powerline which was perfectly centered on it's previously deeded easement. Many have been off by several feet or even more.
I think it's the duty of the OP to inform his client of the situation so that a decision can be made by the client as to the dividing line, and the subdivision completed.
I think when Farmer Brown saw the giant towers being built that would have been a clue to him of where the easement is located. Farmer Brown wouldn't necessarily know how to lay out the tie to the Section corner but he sure can see the towers getting built. If his reaction is "hey wait a minute, not there" then he could speak up; but if he said nothing for 50 years then I doubt he had an objection. He probably even noticed the Survey crews out there laying out the tower locations. It is true that there could be an intentional offset but the easement owner should have that information readily available.
I agree. Farmer Brown would have known the location of the easement; every farmer I have dealt with has known that. And he would have seen that the towers were just where he agreed in writing that they could be located: on the easement. Farmer Brown probably didn't have design approval for the style or location or the number of the towers.
Some have apparently read into Farmer Brown's grant of easement the idea that he was not agreeing to a written boundary description based on the PLSS but granting the power company the ability to disregard that and locate the lines somewhere else, which would then be, at some future date, the location of the easement.
I don't think the power company is necessarily disregarding the written location; they are giving a clue as to its location with the tie but locating it per their Survey. If the towers are intended to be in the center and they are substantially in conformance with the ties then they mark the centerline.
The word substantially means there are exceptions.
Farmer Brown already has a better clue as to where his easement grant is located.
And maybe a surveyor also told him that uncalled junior monuments (the towers) are just not going to control senior monuments (recovered called-for section corners).
There is such a variance of opinion it's hard to know where to start.
Working for a major electric utilily company as their chief surveyor and head of r/w I comment:
Under
A. Exclaim "what a crappy description!" and proceed with your new calculated centerline, setting the new corners offset from the power line as constructed.
What would ever make a surveyor think that a crappy description with your new calcualted centerline based upon occupancy and construction CREATES the new record description unless the original creating document give that authority. Setting new corners.....I didn't think there were any OLD corners set by the document creating a boundary but only a right.
Under
B. Contact the agency and tell them to correct their description to match field conditions.
Being the chief surveyor for the utility company I would tell you to go play with yourself. Our powerline is fine.
Under
C. Recognize that the line as constructed has existed unchallenged for 60 years and set your corners along this line. Note the discrepancy on your plat.
Again setting corners along an unchallenged line for 60 years. Whatever possessed you as a surveyor to delineate the consumation of occupation as the TRUE line of intent of the easement.
You as a surveyor are an expert measurer. The record line and the occupation line should be your objective. Show both.
D. Fill in the blank. I'm interested in your thoughts.
My thoughts
Pablo
Pablo
That makes the most sense of any of the replies so far, I think. If I grant a 100-foot easement to a power company, why do I have any right to believe that their poles or towers are perfectly centered on that easement unless the description calls out the centers of poles or towers that might not have even existed yet when the description was written?
It also depends on the level of uncertainty in the description. As somebody said above, maybe the description was written with ties to section corners that were marked in some different location than they are today.
I wouldn't lay out a new development with lot lines involving an ambiguously located power line easement if I didn't have clear co-operation with the owner of the easement as to my interpretation of the easement location. You can't just unilaterally put the evidence on a scale and if it tips slightly to one side or the other make that call. You could put somebody's building site in a spot where the easement owner could come back later and tell you to get the heck off or you could unnecessarily restrict your client's use of his property if you erred in the other direction.
If the description can be placed on the ground without any material uncertainty and the towers aren't even close to being centered in it, the easement owner would likely be interested in that and would probably entertain the idea of swapping out the easement description, unless they actually intended it to be offset in the first place.
The owner of the land signed away his rights to a carefully written description that could be placed on the ground at that time and today as well. The physical location of the line, so long as it falls within that carefully written description, is irrelevant. The rights of the landowner are paramount in this case. To do otherwise is trespassing and subject to forced relocation plus damages.
I can show you underground lines all over the place that do not pretend to be centered within the alloted easement.
Consider this situation: One pipeline is to be placed in a 30-foot wide strip. A second comes along to be located adjacent to the first strip and 30-feet in width. In some of your opinions, if the two lines are not precisely down the centerline of their respective strips, then there must be gaps and gores created of all sorts of sizes and lengths based on what you say the creators of the easements intended. Bullhockey.
I thought we were talking about transmission power lines that go many miles either direction in a straight line.
Frankly there is one centerline of the easement. There is not a record centerline and an occupied centerline. There is a centerline. Say there is a tie from the centerline intersection down the section line to a section corner. There could be a record distance and a measured distance but I would not show two centerlines anymore than I would show two section corners, one imaginary record one and one real one.
Pipelines and small distribution utility easements are obviously an entirely different story.
