Tom Adams, post: 346652, member: 7285 wrote: That's a bit hard to swallow. If a legal description for a "taking" calls to or along a line, I would think that is a legitimate call. And you are saying that following a deed that comes from a "taking" is not a deed retracement? Are you saying that if the deed says "containing 7.000 acres" that you have to hold the acreage if it does not match the metes and bounds? If that is the case, what bearing and distances to you change to meet the acreage calls? If it calls to a property line and along that line, are you saying that that is not a significant call? If a taking is for 7 acres and they pay owner "B" for the 7 acres but half of the description is in owner "A"s property, are you saying that they still get 7 acres from Owner B?
Obviously you know the law better than I do, but I have a hard time with what you are saying.
Yes it gets a bit complicated in practice as A. Harris also pointed out. A deed does not come out of a taking though, what comes out of a taking is a condemnation (the practical process of eminent domain). The condemnation line does have to be retraced at times, but it is always like an original line problem. The evidence must be weighed a bit differently than retracing a contractually agreed line (deed line). For instance in a road project the survey control baseline would control over subsequently set monuments, unless the control can't be re-established. You have to go against normal retracement in that the question is "how should it have been laid out originally" instead of "how was it laid out originally". It's an equitable retracement sort of.
I had one case I think from PA that I used to go over teaching route surveying/highway design. Entrance exit ramp re-designed and taking line described for a service station. Re-design results in almost no traffic entering the service station to do business. Court holds the taking line encompasses the entire service area and more compensation is needed to include the business. You might think this doesn't have anything to do with the above discussion, but the point is that a taking is strictly construed against the government in any scenario you can think of. So, area and metes and bounds in disagreement; put the line wherever it's most beneficial to the one who's property was taken. If a call is to a record line, then use it if it agrees with the metes within reason, but if there is say 10-20 feet between the two then might want to leave the strip rather than giving it to the government (again unlike normal deed retracement).
It is the governments responsibility to be clear, mistake and error free, in the written documents. Problems will be construed against them whether that means more or less distance/acreage. And no, they especially can't get someone else's land via a condemnation of the neighbor.
I think I know something about this, but really an area I would like to research further.
I didn't really consider the taking/condemnation aspect of this question and was thinking of it strictly as a boundary matter of a conveyance. After reading Duane's latest posts, I think he is right, government has a higher duty for due diligence because there is not a "meeting of the minds" as with a contract or a conveyance that both parties willingly consent to. A mistake in area that results in more area to the government than what was paid for, especially where there is agreement between the measurements and the calls to the physical monuments is probably enough to tip the scales of decision toward that and toward disregarding the call to the edge of the easement.
If it were me, I would still make some inquiries about the information I mentioned in earlier posts. If initial inquiries came up empty or at least showed nothing definitive that the agency, the landowner from whom the land was taken, and the judge ruling on the condemnation understood or reasonably should have clearly understood that the taking was supposed to have encompassed all the land up to the edge of the easement, I'd feel entirely comfortable moving on by holding the monument positions.