Brian:
by Cee Gee , central Maine, Wednesday, October 12, 2011, 07:45 (1 hours, 12 minutes ago) @ Brian Allen
The deed in Lex's original example read “the eastern 500’ of Jones’ land”. I can't see what term in that description becomes unclear simply because one finds pins at 496 feet. In the deed there is no call to any pins, no call for or hint of any survey, thus no call which the pins' actual location renders ambiguous. There is nothing that would prevent one from laying out "the eastern 500 feet" on the ground with certainty. My understanding of a "latent ambiguity" is that it would by definition pose such an uncertainty. The "3 oaks" would render the call "to an oak tree" uncertain.
I am not advocating "deed staking" here, and would readily hold the pins if Lex's deed had read "the eastern 500' of Jones' land, as surveyed by Badtape Surveying in 1960." It's the weight given the 1960 survey that has bugged me, since there's nothing to tell Eastman that it or the pipes exist.
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Brian:
by Stephen Calder , Mobile, Alabama, Wednesday, October 12, 2011, 08:57 (0 minutes ago) @ Cee Gee
Cee Gee, your assertions are just wrong. You are putting all of the control of the land boundaries on the scrivner or lawyer who worded the deed. Why do you want to put the power there? Yes Jones wanted to split it at 500'. But once set, the stake and iron became the expression of that 500'. Was it precise? Maybe not, but why assume that Jones or Eastman had a strong desire for a perfect 500'? There is no evidence to support that, there is evidence to support that they were happy with the corners as staked (a; they did nothing contrary to them and b; Jones pointed them out to Wesley as the corners when he sold the west 500').
The words are important, but, as has been pointed out numerous times in this discussion, they must be interpreted in light of the facts, conditions, and actions of the contract parties at or near the time of sale. I would love it if all descriptions called out monuments at the corners, but they just don't. I know you were told that if a deed doesn't call out a monument, then it has little or no relevance. I was told that, too. Well, we were told wrong. It is unreasonalbe to assert that Eastman was unaware of the survey or the newly set pins in 1960 when he moved it. He probably saw newly staked and flagged irons. We don't know for certain that he did, but it is a legal presumption that he did, and it is plain common sense that he did. The survey was performed at or near the time of sale.
I think you should change your mindset a little and stop being so doubtful of found evidence. You should give found monuments the benefit of the doubt. You shouldn't be so concerned about PROVING found irons, you should let them stand until DISPROVEN. That "thought environment" is more likely to lead you to conclusions that are supported by the majority of case law.
Stephen
I know you were told that if a deed doesn't call out a monument, then it has little or no relevance. I was told that, too. Well, we were told wrong.
I was taught this way also in the 1970s. Black & white surveying law. But if you read Brown & Robillard you will see changes in their books. It is just not very obvious. I don't think the law changed, I think we were just wrong back then. There was a lot of training in engineering and we had EDM to get precise measuring.
I think you should change your mindset a little and stop being so doubtful of found evidence. You should give found monuments the benefit of the doubt. You shouldn't be so concerned about PROVING found irons, you should let them stand until DISPROVEN. That "thought environment" is more likely to lead you to conclusions that are supported by the majority of case law.
Well stated. This is basically the doctrine of repose, the stability of boundaries. Without it no surveys but the original would be any good. Not even yours, because in 40 years our equipment will show you are off by a few hundreths. Now, that doesn't mean every monument is acceptable, they still have to be evaluated, but a monument set by a survey is probably acceptable unless there is some gross error that results in some gross unfairness.
Also, most newer court decisions have done away with the distinction between a "latent" and "patent" ambiguity.
Evelyn
Can you provide some documentation for the legal presumption that Eastman saw the pins?
In Slipp (the Maine case Brian posted yesterday) the court went to some length to state that the grantees had had notice of the uncalled pins (which were rightly held). Why would they bother if there is such a presumption?
> Can you provide some documentation for the legal presumption that Eastman saw the pins?
>
> In Slipp (the Maine case Brian posted yesterday) the court went to some length to state that the grantees had had notice of the uncalled pins (which were rightly held). Why would they bother if there is such a presumption?
The presumption is that a purchaser of land knows where the boundaries are, especially when a survey is performed at or near the time of conveyance. Please post cases that disprove this.
In Slipp, "the Stovers argue that the Smith deed may not be reformed because they are subsequent bona fide purchasers for value without notice. Whether reformation was properly granted is a question of fact. 'The standard applicable to reformation cases is that the decision of a trial judge ... will not be overturned on appeal if it is supported by competent evidence and is not manifestly unjust or plainly and palpably erroneous." Therefore Slipp entered all the evidence they could find that Stover had notice, that is what happens in a court case,the parties enter evidence to prove their case, even if their side of the argument is presumed to be correct.
Footnote 3 :
"The trial court found that prior to closing, Smith pointed out to Stover the basketball hoop and the spruce tree 50 feet south of the hoop which served as the boundaries of the 50-foot jog. In addition, the location of Smith's lawn would have served as an indication of the land claimed by Smith. The court also found that Stover saw the sketch on the back of the real estate agency listing showing iron pins marking the location of the 50-foot jog. Stover had been informed before closing that he would need title insurance due to missing pins. The court further found that Stover knew, or would have known if he had the land surveyed prior to closing, that if the pins still existed or their prior location was ascertainable,they would control compass bearings and distance. Finally, prior to closing, Stover reviewed a sketch provided by Slipp clearly showing iron pins marking the 50-foot jog."
Your entire contention has been based on the fact that the monuments or survey were not specifically called for in the conveyance document, therefore the called for distance MUST control. It is obvious that Slipp has proved that wrong, even in Maine.
Once again, we can play what-ifs 'till the cows come home, but the fact remains that the existance of monuments at or near the "corner" is a latent ambiguity, and from the fact set given, a previous survey had been performed, therefore the presumption is that the original monuments are better evidence of the one and only property boundary than mere measurements alone.
The compass bearings and distances in the Slipp deed practically scream "survey!" and one would rightly search for survey monuments and any other "footsteps." Moreover, there was a great deal of evidence that the parties had mutually established the boundaries on the ground (and they had) -- that was hardly evident in Lex's case.
> The compass bearings and distances in the Slipp deed practically scream "survey!" and one would rightly search for survey monuments and any other "footsteps." Moreover, there was a great deal of evidence that the parties had mutually established the boundaries on the ground (and they had) -- that was hardly evident in Lex's case.
Then why didn't Stovers surveyor look for and find them? Why did he ignore everything EXCEPT the called for bearings and distances?
We are going in circles now. The fact set in Jones, Easterly, and Westerly actually DID scream SURVEY. Not only that, but it screamed FOUND ORIGINAL MONUMENTS. Your contention was that the survey and the found original monuments meant absolutely nothing without them being specifically called for in the deed.
I don't think I've said the survey and/or pins have to be specifically called but rather that the buyer must be on notice of them. Clearly in Slipp the buyer was. I don't see how Lex's example includes either actual or constructive notice to Eastman, nor how Eastman ever joined in establishing the pipes as corners. The occupation so essential to Slipp was non-existent in Lex's example.
As for the Stovers' surveyor -- he didn't do his job, in my opinion, and he rightly lost.
TTT etiquette
Just a comment on the subject line: you might state what topic you are bringing TTT (to the top) in the future. I guess in this case, it was relatively easy to figure out, but just a suggestion.
:good: @ Cee Gee "occupation so essential to Slipp was non-existent in Lex's example"
I agree...with the information given in the original example I would stake at 500'
I am just glad I don't have to survey in the same areas as some of you guys. I imagine it is a nightmare coming behind some of you. A pin here, a pin there, might as well set another one right there too so the math works good.
I've said repeatedly that I don't think this is about math or "deed staking," and that there are a number of scenarios in which I would accept the 496' pins. I think we have to avoid generalizing and assuming that we accept all deed measurements or all monuments. We have to analyze each individual case, and it's in Lex's particular (and highly improbable) case only that I've defended the 500' solution.
TTT etiquette
Yes. Please explicitly clarify what is being brought to the top. Thank you.
TTT etiquette
10-4. Will do.
Stephen
> I am just glad I don't have to survey in the same areas as some of you guys. I imagine it is a nightmare coming behind some of you. A pin here, a pin there, might as well set another one right there too so the math works good.
:good:
Cee Gee,
There is specific case law to that effect, at least in NY. Parcels are presumed to have been surveyed and grantees have taken possession based on a view of the premises.
This is of course a rebuttable presumption. If the opposing side is presenting evidence to rebut the presumption, then the court may need to go into length about how it has or has not rebutted the presumption.
But every existing parcel survey starts as a retracement. In order to switch to original stakeout mode, based on senior rights or proration or some other title or equitable or establishment doctrine, one needs to rebut the presumption or prove that enough evidence for a fair degree of certainty in retracement no longer exists.
I agree it's a process that can't be laid down with one bright line rule of law nor codified into some minimum technical standard.
I'm not sure what it takes to convince some people that original surveys are to be followed in order to retain stable land boundaries. We could ask the old cliche if it requires an act of Congress. But that act was passed in 1805 and here we still argue about it. I know your argument is not exactly to not follow the footsteps, but in essence you are rejecting them if they are not mathmatically confirmed, which is the very reason for the legislation and the very reason for the common law rules.
It's a historical fact that many surveys are not referenced nor reported in the record. The courts have never said that this disqualifies them in any way.
So, I put the question back at you. Can you provide any case law that says an original monument should not be honored because it was set long ago and not mentioned in any record on file in the public archives?
Really what we are talking about is whether or not to hold a monument that is not called for. Whether it gets any dignity at all. The Cooley Dictum is all about holding uncalled for monuments and I have read hundreds of other cases holding them. The only ones you will find rejected are those that have been proved to be goat stakes by some pretty clear evidence.
Duane:
> So, I put the question back at you. Can you provide any case law that says an original monument should not be honored because it was set long ago and not mentioned in any record on file in the public archives?
It's not a question of its being set long ago, nor solely of its being uncalled; it's the fact that Eastman had no notice of it, actual or constructive. Yes, I can provide case law where such monuments were rejected, and in this case there was even a fence along the monumented line:
If you have it, I'd like to see the NY case you've mentioned.
I certainly don't advocate any blanket rule by which all uncalled monuments get rejected. My arguments have been specific to the case Lex outlined. Aspinwall resembles it.
Duane:
In fact, you are comparing differing circumstances. The question in the case you present is more about equity and challenging a subdivision line in a timely fashion. This all took place in a period of less than ten years? (didn't memorize the dates) We have a sale, another sale, and a challenge in pretty quick order. That is perfectly understandable. What the court does not tell us is anything about how the pipes were proved wrong. Obviously, there was another surveyor hired to remeasure.
The deeds read as a simultaneous conveyance, much like a subdivision map. They are describing the same thing over and over again. The decision could have been written in a better way, but I agree with the decision. Had the pipes not been challenged for 10 or 20 years, the parties not available to testify, then I would think the decision would be different.
Again, these things don't exist in a vacuum. If you are going to use this case as a reference that uncalled for monuments don't control boundaries; all I can say is good luck. Even in Maine I don't think it's going to fly.
Duane:
American Surveyor article on Uncalled-for Monuments
http://www.amerisurv.com/content/view/3878/153/
Duane:
Writer's definition of "called-for" monuments according to the American Surveyor article:
"called-for in any surveying document to which I have access in my role as retracement surveyor."
Our problem survey stated:
"Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale"
We have called-for monuments. We know there was a survey performed in 1960. The American Surveyor articla does not say called-for in the DEED, etc. You are arguing in favor of accepting the irons.
Next.
Duane:
I get the argument of called-for monuments, and artificial monuments are on the (in)famous "list" of seniority of 'calls' and uncalled for evidence is not mentioned on any lists.
I also get a lot of the arguments about the acceptance of the locations by the owners and the theory that only owners and courts can determine boundary lines, etc.
Something I don't see discussed or mentioned much is the retracing surveyor's real authority or (legal) respect. In fact we are always saying that the surveyor is only expressing his 'opinion'. Well everyone can express an 'opinion', so what sets us apart?
I say surveyors are, or should be, experts in determining boundaries. Just as an attorney can write a document in favor of a client, and we can't. A sureyor is the only person that can go out on someone else's property and interpret their existing ownership based on the deed and other evidence. They are "legally" qualified by virtue of their license I would imagine.
Now.....about those uncalled-for monuments. If I find a monument, and it was set by someone legally authorized to set a corner monument, I need to consider that it was set by an expert, and there may have been more original, or different evidence they were looking at when they determined the corner location. I need to respect their expertise before I off-handedly dismiss it, I think. Also sometimes, I only see an "iron pin" that I don't know who set or why and have no survey notes for...now what?
I weigh things differently, and I judge them differently. I consider that there was a time that things weren't measured as precisely as they can be today, that there was a time that an engineer, and even a time that a nonlicensed surveyor, could practice surveying legally. I consider a lot of other factors (including the bearing and distance calls).
My point: I will usually presume a monument I find to be in the correct place and look for evidence to disprove it. Someone went to the trouble to drive it into the ground there. (we all know that even an original stone set 100 years ago could have been dug up and moved; so that "called-for" monument even should be considered).
I have difficulty with the discussions with black-or-white conclusions on whether a monument should be accepted or rejected. I think it makes a difference what is found in the field and what is called for in that particular deed.
(ie: there is a lone pin out there and an open field with no other evidence;
there is a newer pin out there with a cap and a number on it, and it matches the bearing and distance calls on the record, but there is also an old monument 1/2-a-foot away that the newer surveyor didn't appear to find or show on his drawing;
There is an old pin out there but there is an acient fence and improvements that don't match that uncalled-for pin;
There are three pins out there and no record of any of them; or
there is an original stone but all kinds of evidence don't seem to match it, and you are suspicious that it could have been moved).
You get the drift. I suspect two pins, both 4-feet out, but are good in relation to each other, might be good in relation to something else that you didn't find. two pins that are good to each other kind of indicates that the surveyor probably had a clue on how to measure.....
Sorry for the long ramblings, but just some thoughts on this general subject.
Tom