.................. would be interesting to read that created a 3.5" 'encroachment' without second guessing.
http://www.thenews-messenger.com/article/20101229/NEWS01/12290307
"On May 18, the city hired W. Robert Kusmer to do a boundary survey incorporating the parties' property lines. The survey indicated the Millers' building, specifically on the south wall, is located upon the shared property line on the westernmost point of the line, but encroaches on the city parking lot by about 3.5 inches on the easternmost point of the shared property line."
Cheers
DGG
What is the problem?
From the look of the photo in the article, it seems pretty clear that this was (and still is) a party wall, with all the rights and encumbrances that go with such condition.
The owners on each side have shared responsibilities and rights.
In general, either owner can make modifications to the party wall, but must bear the responsibilities of any damages.
The fallacy is the presumption that a document created the line.
In the US, moinuments create the line and the description in any document merely tells the surveyior where to look for the monuments.
In this case, the surveyor needs to be sued because it is evident that the monument, (building party wall), marks the legal property line and the description is in error.
Richard Schaut
Yes it seems like when the City removed the old building they should have done something to weatherproof what had been an interior wall.
> The fallacy is the presumption that a document created the line.
>
> In the US, moinuments [sic] create the line and the description in any document merely tells the surveyior [sic] where to look for the monuments.
>
Not quite, Richard... The document (required by the statute of frauds) expresses the owners' intent to create the line. The actions of the landowners which result in the construction of monuments (the wall) establish the location of the line.
> In this case, the surveyor needs to be sued because it is evident that the monument, (building party wall), marks the legal property line and the description is in error.
>
The surveyor didn't "cause" the problem, so no matter what their surveys show, it has nothing to do with the problem at hand.
The solution here is for the city to take responsibility for its ownership of their half of the common wall (which clearly shows wall plaster from their own former building). They could simply rehabilitate the wall by removing the old plaster and refinishing the wall. The whole job could be done by one person in less than a week and the problem would be solved. No need for lawyers, surveyors or any of the costs associated with litigation.
The city is seriously wasting tax-payer dollars and costing their neighbor huge amounts of money to prepare a defense and argue the issue in court. No matter what the outcome in court would be, the parties will walk out of the court room with the same problem they had when they walked in. The wall still needs to be fixed.
The fruit of a litigious society...
JBS
> Miller couldn't comment on the counterclaim, but said he's looking forward to putting this behind him, as it has been an issue for six years. His attorney, Ron Mayle, said other properties downtown have been dealt with properly over the years"
I kinda agree with JBS... I mean won't have fixing the wall been far cheaper to do and then just be done with it?
Its hard to say, based on the article, where the property line is..but it does seem a waste of money for it to escalate to spending 6 years on.
> > The whole job could be done by one person in less than a week and the problem would be solved. No need for lawyers, surveyors or any of the costs associated with litigation.
:good:
so simple... rather silly to do more than is needed
yes but you don't get it, the wall maintenance fund is empty but there's plenty of money in the Litigation fund. 😉
Sorry Stahl, but you are wrong again.
The surveyor who presented the difference between the location of the wall and the document dimension is the one who is creating the problem when it is the surveyor who must make the decision that the wall marks the location of the legal boundary.
The surveyor's report must be clear and unequivocal when depicting the location of the property lines.
A court will review our decision, but the decision is the surveyor's.
You may want to review Curtis Brown's talk on the surveyors liability to unwritten rights.
Richard Schaut
Sorry, Richard... I'll work on that. In the mean time, you might want to try studying anything other than what you already know. You might want to start with studying the laws on boundary establishment and conveyancing of property.
JBS
Remember Stahl, I'm the one who proved that inaccurate descriptions are title defects by posting the material from the law school textbook that listed the 19 title defects that would not be found by an attorney's search of the record.
I strongly suggest that you spend much more time reviewing the fundamentals of private ownership rights in allodial land.
Remember Cooley's caution:
All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the system which prevails in the country from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded in the governing classes in Great Britian, and that the aristocratic sentiment, which is there controlling, is here, in a political point of view, insignificant.
Richard Schaut
Mr. Schaut,
If you sold me a piece of property and described that property on a (legally signed) deed depicting a location and an area, and then came back and told me that the actual location and size isn't what is written on that piece of paper, I might have an issue with you and your fraudulent transaction.
What if you sold me 10 pounds of beans as written on an invoice and then delivered me 5 lbs of rocks; and told me that the actual transaction was based on what was delivered?
If all of that is legal and fair, hey....I'll sell you the brooklyn bridge .... cheap.
Tom
Hmmmmmm must be my Canuckian reading of "This instrument drafted by Richard L. Schaut"
http://www.bayfieldcounty.org/landrecords/surveyviewer/pdf_files/456.pdf
Seems Eskel and Florence could have "caused this survey and map to be made for sale to Wisconsin Bell" ?
Wonder if they were selling the land too ?
I'm happy that young Richard and I share similarly fat finger typing skills or was he more progressive in 1984 as he was already "betweet" ing reference monuments #2 & #3 on Page 2 ?
Richard- As young Winston put it of himself:
"Personally, I'm always read to learn, although I do not always like being taught"
Or, as I like it:
"To err is human, to forgive, divine"
:angel:
DGG
"I'm the one who proved that inaccurate descriptions are title defects..."
Richard, with all due respect, you are not the discoverer of unwritten rights being superior to written descriptions. This is boundary surveying 101 found in all of the textbooks. I will admit, as Mr. Lucas also harps incessantly, that many surveyors seem to be ignorant of this in their daily practice.
> law school textbook ....
>
> Richard Schaut
Richard: textbooks are much like dictionaries (such as Blacks)... a primer for those who don't know squat about the subject. I valid place to begin research and general education, but not a reasonable citation outside of a barroom.
Listen to JBS, he is trying to help you.
And... Have a Great New Year!
All of you fail to understand ownership rights in allodial land. Check Black's law dictionary definition of Alienatiuon:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
How do you locate the boundaries of land parcels that have been established by any of the: ' Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.'?
Statutes of repose and/or limitation confirm the legality of the established physical boundaries of these parcels, and the statute of frauds demands that these legal parcels be accurately described or else the transaction is fraudulent.
Richard Schaut
PS No misspelling has ever invalidated any survey I have performed and the survey graham refers to is a valid survey that has never been challenged by any civil regulatory body, just a bunch of a-holes who do not know what an accurate survey really is.
RS
> All of you fail to understand ownership rights in allodial land.
You are not the only person on earth who can grasp ownership rights, although you may think so. As I said before, land surveying 101. Stop pretending this is such a complex issue.
Richard, Cheers and have a drink..
"..the surveyor needs to be sued.."
"..but you are wrong.."
"..I'm the one .."
"..All of you fail.."
"..just a bunch of a-holes.."
This year is over, lets start next year off on the right foot. Cheers folks.
> All of you fail to understand ownership rights in allodial land.
All. That's a pretty big word there Richard.
>Check Black's law dictionary definition of Alienatiuon:
> Alienation
> In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
>
Nothing in the definition of Alienation is that difficult to understand, Richard. Alienation is "the transfer of property and possession of lands..." People do it all the time. It's not a difficult concept.
> Restraint on Alienation
> A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
>
Another simple concept. Restraint on Alienation is typically "against public policy." You can't prevent someone from transferring their property to another.
> How do you locate the boundaries of land parcels that have been established by any of the: ' Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law.'?
>
One's right to transfer their property to another has no bearing on their ability to establish the boundary location by their actions and agreements. This seems to be a difficult concept for you to understand. These are completely independent bodies of law. One body of law allows the owners to "create" boundaries. Another body of law allows them to "establish" the locations of the boundaries they create.
> Statutes of repose and/or limitation confirm the legality of the established physical boundaries of these parcels, and the statute of frauds demands that these legal parcels be accurately described or else the transaction is fraudulent.
>
The Statute of Frauds doesn't say anything about "legal parcels be[ing] accurately described." The Statute of Frauds simply requires that all transfers of title be made in writing. Whether there are latent or patent ambiguities in the writings is another matter that the laws deal with. By putting the transfer in writing, the parties have complied with the Statute of Frauds. Resolution of latent or patent ambiguities in the document is a matter of applying the rules of construction.
Richard, you really should put down the eight paragraphs which you incessantly quote ad infinitum ad nauseum, and get some more reading material. There's much more to boundary location than alienation and adverse possession.
JBS
PS Happy New Year, Richard!
It used to be the King would grant you some land, but when you died or whatever it went back to the King. The King's grant didn't give you the right of alienation so that you could grant it to someone else. America changed all that when we run the King off. Private land ownership with the right to alienate it became the new law. You need the right to alienate your land to be able to grant it to someone else. I don't believe its a free for all.
