Dave Karoly, post: 394055, member: 94 wrote: I personally believe that a lot of Surveyors have been mis-taught about a certain rule of construction which applies to disputes over exactly what a Deed conveys. This does not mean un-called for monuments don't control; it means they control under a different set of rules. Remember, the parties can modify their agreement in parol after the Deed is delivered as long as they are not moving an established line which they know exists. Lines solely described on paper are not established yet. If the monuments were established by one of the parties (the DOT) and recognized by the other party (the private owner) with the intention of marking the lines per the Deed in question then they control although years later the DOT decides it does not like its own sloppy procedures in setting them.
Monuments should be rejected for good reasons, not mere measurements but actual reasons such as they were set to mark a different line.
Mr Karoly, you word these issues so well. I have always had the same opinion, but have never been able it word it so well or put it in this perspective. I would like a first-edition of your book if you ever complete one.
Dave Karoly, post: 394055, member: 94 wrote: I personally believe that a lot of Surveyors have been mis-taught about a certain rule of construction which applies to disputes over exactly what a Deed conveys. This does not mean un-called for monuments don't control; it means they control under a different set of rules. Remember, the parties can modify their agreement in parol after the Deed is delivered as long as they are not moving an established line which they know exists. Lines solely described on paper are not established yet. If the monuments were established by one of the parties (the DOT) and recognized by the other party (the private owner) with the intention of marking the lines per the Deed in question then they control although years later the DOT decides it does not like its own sloppy procedures in setting them.
Monuments should be rejected for good reasons, not mere measurements but actual reasons such as they were set to mark a different line.
Another thing on the infamous "Rules of Construction" or "Priority of Calls". They have been misused to the extent of calling them "priority of evidence", but none of the texts I have read actually use that term. A lot of people have just interpreted it as such and put it in their seminars.
Beyond that, I think there are many many exceptions to the "Rules" even in interpreting exactly what a Deed conveys. For instance I might not hold a called bearing over area if I can find the bust in the deed and realize that if I change the bearing from NE to NW, it will suddenly have perfect closure and match the called area. I could list a lot of similar examples where I am sure most all surveyors will agree that finding the errant monument or the busted call will satisfy the deed as a whole. Anyone who would hold NE bearing producing a 100' bust, and hold "Thence to the point of beginning" and change the area to satisfy the "rules" would not make a good surveyor (in my opinion).
It's true that there is plenty of case law that has supported the "Rules" as the final decision, but I suspect that it is a situation that a surveyor, in truth, would only hold as a last resort when they absolutely, positively, can't find the errant call that can't satisfy the rest of the deed regardless of where it falls on the list of the rules of construction.
Tom Adams, post: 394079, member: 7285 wrote: Another thing on the infamous "Rules of Construction" or "Priority of Calls". They have been misused to the extent of calling them "priority of evidence", but none of the texts I have read actually use that term. A lot of people have just interpreted it as such and put it in their seminars.
Beyond that, I think there are many many exceptions to the "Rules" even in interpreting exactly what a Deed conveys. For instance I might not hold a called bearing over area if I can find the bust in the deed and realize that if I change the bearing from NE to NW, it will suddenly have perfect closure and match the called area. I could list a lot of similar examples where I am sure most all surveyors will agree that finding the errant monument or the busted call will satisfy the deed as a whole. Anyone who would hold NE bearing producing a 100' bust, and hold "Thence to the point of beginning" and change the area to satisfy the "rules" would not make a good surveyor (in my opinion).
It's true that there is plenty of case law that has supported the "Rules" as the final decision, but I suspect that it is a situation that a surveyor, in truth, would only hold as a last resort when they absolutely, positively, can't find the errant call that can't satisfy the rest of the deed regardless of where it falls on the list of the rules of construction.
The rules are largely from 19th century cases involving a dispute over what the terrible description conveyed or some major disagreement over what a term means. So they developed these rules so that when presented with two bad options at least they have a rule to fall back on to solve the case.
But when they have a choice between a rule that presents a bad answer or following some other rule or an exception to the rule of construction that fits the possession lines a lot better they generally pick the latter just out of common sense. The rationale is the rules of construction are merely an aid to determine the intentions of the parties and if there is some other relevant evidence of the true intentions of the parties (such as they mutually set monuments) then they will disregard the rule.
The legal scholars at the major legal publishing houses have divided Boundaries into two major sections: I. Deed descriptions which is where you find the rules of construction, which only apply to aid in determining the intentions of the parties and II. Establishment which are rules which aid in determining if a boundary is established or not.
Sergeant Schultz, post: 394056, member: 315 wrote: Field topo of a proposed highway reconstruction would almost certainly also involve trespass, yet it's done all the time, even before NY's ROE law was passed.
How many subdivision plans showing "set iron stakes" at the corners get filed before the "iron stakes" get set?
My point is, you can hold 'em if you want to, but here in NY, it's all about the baseline/centerline. I remember hearing of one poor SOB who held the concrete markers and had to buy a large piece of asphalt parking lot & associated $hit.
I know many who will go by the property deed dimensions and ignore tri corner concrete monuments that disagree with the clients deed measurements just bc "those monuments are wrong" not bc they don't fit the centerline stations from the taking.
There is a huge difference between a monument set with care (but maybe not the best care) by a surveyor and something set by someone who doesn't really know what is going on and merely fulfilling some crudely described task as provided by someone else who doesn't really know or care about anything but wrapping up a construction job on time. Just because it looks similar to a survey monument it may not be a survey monument at all. It may just be a chunk of concrete.
It falls into the same category as highway right-of-way fences that are intentionally not built on the right-of-way line. The specs on where to build the fence are in the plans with the intent to prevent adjoiners from attaching to it or relying on it to be a livestock controlling fence. It's merely a fence to alert highway travelers to stay on the road side of it.
Said Lot, post: 394035, member: 1296 wrote: I understand the views presented by Bryan, et al., and grant that they've got a solid argument, one I'd even consider applying if the nature of my employment changed. But I'm a pragmatist above all else, and if the state's position is that the deed controls, they get deeded width, and they're paying me, and they're willing to fight for their position... Well, I'm not going to disagree with them just for the sake of seizing the Survey High Ground.
Better go back and reread your state canon's for licensure. I'm sure it says something about he health and welfare of the public and nothing about your employer.
Linebender, are those book quotes from AC Mulford, Skelton or who? Inquisitive minds want to know.
Dave Karoly, post: 394055, member: 94 wrote: I personally believe that a lot of Surveyors have been mis-taught about a certain rule of construction which applies to disputes over exactly what a Deed conveys. This does not mean un-called for monuments don't control; it means they control under a different set of rules. Remember, the parties can modify their agreement in parol after the Deed is delivered as long as they are not moving an established line which they know exists. Lines solely described on paper are not established yet. If the monuments were established by one of the parties (the DOT) and recognized by the other party (the private owner) with the intention of marking the lines per the Deed in question then they control although years later the DOT decides it does not like its own sloppy procedures in setting them.
Monuments should be rejected for good reasons, not mere measurements but actual reasons such as they were set to mark a different line.
So why are we tested on everything except the case law that should set the standard of practice? When I got my license I could tell you everything about Photogrammetry , State Plane Coordinates, public lands, simultaneous conveyances, construction layout, proper components of a legal description....... but I only recall a 4 hour session of case law and how to brief a case. So yes I would say most of us are mis-taught! Furthermore most of us are pragmatic as 'Said Lot' stated he is, and don't get paid for telling the client "it depends". We get paid for making a decision and keeping the project going forward. I have been on both sides and it is a vicious circle. As AC Mulford said in 1912 "the false or faulty survey may pass unchallenged through the years, for few but the surveyor himself are qualified to judge it." This is what I love about this Board, it gives us the ability us to challenge each other professionally in real time. Great post, keep it going! Jp
Said Lot, post: 394035, member: 1296 wrote: Interesting discussion.
My outfit frequently does R/W retracements for our company's state DOT work. Our practice has been as follows:
1. Collect evidence to develop an equitable centerline
2. Offset the record centerline distance per deed or easement, which typically references the plans.
3. Found R/W monuments are used to control R/W breaks
4. Found monuments that are within 0.3' are considered occupying the "true" point.
5. If it's 0.3'-2', we won't set one, but will show a calculated point with a bearing and distance from the remaining R/W monument.
6. If it's greater than 2', we'll set a new one.I include a note on the plat stating the approach I use. I came up with the 0.3 and 2.0 ft. thresholds, but there's nothing sacred about them. I figure most surveyors are just as lost and confused as me and will be grateful that I wrestled with the evidence and state how I handled it.
I understand the views presented by Bryan, et al., and grant that they've got a solid argument, one I'd even consider applying if the nature of my employment changed. But I'm a pragmatist above all else, and if the state's position is that the deed controls, they get deeded width, and they're paying me, and they're willing to fight for their position... Well, I'm not going to disagree with them just for the sake of seizing the Survey High Ground.
I understand your position, but as JP pointed out, your duty as a license holder is not to the state DOT, it is to the public. I understand that the state DOT's are the 800 pound gorillas in the room, but that doesn't make them right. They do not have the authority (unless granted by the state legislatures) to declare what boundary law is or isn't, along or in the public road rights of way, nor do they have any authoritative power to dictate what the professional opinions of a licensed land surveyor shall be.
I noticed that no one has posted any authoritative sources backing up the idea that the planned distances and offsets control over the right of way monuments that were set with the intention of being relied upon by the landowners and the public.
The following is from Wood v. Starko, 197 S.W.3d 255 (2006):
In 11 C.J.S. Boundaries å¤ 3, p. 540, it is said:
"It has been declared that all the rules of law adopted for guidance in locating boundary lines have been to the end that the steps of the surveyor who originally projected the lines on the ground may be retraced as nearly as possible; further, that in determining the location of a survey, the fundamental principle is that it is to be located where the surveyor ran it. Any call, it has been said, may be disregarded, in order to ascertain the footsteps of the surveyor in establishing the boundary of the tract attempted to be marked on the land; and the conditions and circumstances surrounding the location should be taken into consideration to determine the surveyor's intent."
In Clark, Surveying and Boundaries (2d Ed.1939), it is said at page 727, Section 665:
"The original survey must govern if it can be retraced. It must not be disregarded. So, too, the places where the corners were located, right or wrong, govern, if they can be found. In that case a hedge planted on the line established by original survey stakes was better evidence of the true line than that shown by a recent survey. In making a resurvey it is the surveyor's duty to relocate the original lines and corners at the places actually established and not to run independent new lines, even though the original lines were full of errors."
In 6 Thompson, Real Property, 594, Description and Boundaries, Section 3047 (1962 replacement), the following is stated.
"The line actually run is the true boundary, provided the essential survey can be found and identified as the one called for, and prevails over maps, plats, and field notes. * * * The lines marked on the ground constitute the actual survey and where those lines are located is a matter to be determined by the jury from all the evidence. If the stakes and monuments set at the corners of the parcel in making the survey have disappeared, it is competent to show their location by parol evidence."
At page 599, Section 3049, it is further said that:
"Marked corners are conclusive and will control over courses and distances. Although stakes are monuments liable to be displaced or removed, they control so long as it is certain that they mark the corners of the original survey."
Sellman,26 Ohio App.2d 35, 269 N.E.2d 60 at 66.
Clearly encompassed in this rule is the fact that it is the monuments laid out by the original surveyor, if they can be located, which govern the boundaries, even if the actual survey used in the plat is in error.
Moreover, in ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground by his monuments, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect. Vaught, 116 Mont. at 550, 155 P.2d at 616 (citing Ayers v. Watson (1891), 137 U.S. 584, 11 S.Ct. 201, 34 L.Ed. 803; Galt v. Willingham (5th Cir. 1926), 11 F.2d 757). See also Buckley v. Laird (1972), 158 Mont. 483, 491-92, 493 P.2d 1070, 1074-75.
Olson v. Jude, 316 Mont. 438, 73 P.3d 809, 815 (2003).
In a dispute between adjacent lot owners in a platted subdivision, the Supreme Court of Washington wrestled with differing opinions of professional surveyors and ultimately affirmed the trial court judgment reasoning:
Where a plat contains substantial mathematical errors and discrepancies and with the passing of time questions arise concerning the true boundaries among its component parcels, the question to be answered is not where new and modern survey methods will place the boundaries, but where did the original plat locate them. The main purpose of a resurvey is to rediscover the boundaries according to the plat upon the best evidence obtainable and to retrace the boundary lines laid down in the plat. 12 Am.Jur.2d Boundaries å¤ 61 (1964). Effort should be made to locate the original corners. Despite discrepancies in the original plat, the known monuments and boundaries of the original plat take precedence over other evidence and are of greater weight than other evidence of the boundaries not based on the original monuments and boundaries. Clark, Surveying and Boundaries å¤ 258 (3d ed.1959).
Courts should ascertain and carry out the intention of the original platters. In case of discrepancy, however, between lines actually marked or surveyed on the ground and lines called for by plats, maps or filed notes, the lines marked by survey on the ground prevail (Stewart v. Hoffman,64 Wn.2d 37, 390 P.2d 553 (1964); 11 C.J.S. Boundaries å¤ 49c (1938)).
Staaf v. Bilder,68 Wn.2d 800, 415 P.2d 650, 652 (1966).
Yes, there are circumstances and situations where original monuments can be subordinate to other evidence, and the courts have given us guidance in determining when this is true. I certainly haven't found the magical formula for determining "how far off record is too far off".
Yes, ALL relevant evidence MUST be gathered and evaluated. However, we MUST use the relevant law in reaching our conclusions/opinions. We can't just make up convenient "rules" to govern our decisions, that isn't protecting the public.
roger_LS, post: 393428, member: 11550 wrote: Maybe it's a matter of semantics, but, like it or not, every time we either accept or reject an uncalled for monument we are the judge and jury and are either "giving" or "taking" property, so to speak, by comparison to the deed. That is, until we upset things, folks go to court, and an actual judge makes the call.
Both the deed and the subdivision plat are representations of what the parties intended to buy/sell.
The plat is never perfect.
The monumentation is never perfect.
Deeds are generally prepared with reference to a subdivision plat, GLO plat, or another survey; and as such cannot be perfect.
The deed is not a survey, the survey is not a deed. Together they provide the details of "what" the parties wished to buy/sell.
The only perfect thing in a property sale is the intent of the parties at the time of the sale. Party A intends to convey their interest/title to the property in question to Party B.
The idea that a surveyor gives/takes away land is false. The owners of the property (and perhaps the government in the case of condemnation) are the only parties with any legal authority to give or take away.
The duty of the retracing surveyor is to determine the boundaries of the property, wherever they may be.
roger_LS, post: 393428, member: 11550 wrote: Maybe it's a matter of semantics, but, like it or not, every time we either accept or reject an uncalled for monument we are the judge and jury and are either "giving" or "taking" property, so to speak, by comparison to the deed. That is, until we upset things, folks go to court, and an actual judge makes the call.
Your job is not to give nor take property. You are a professional, and should be more expert than any other profession on boundary location. More so than the court, more so than anyone. Your job is to provide to your client your professional opinion of where their property is. It is where it is. If there is a dispute that takes it to court, any good lawyer will call on a professional land survey to advise the court of his/her professional opinion as to the location of the property. Your job would be there to guide the court as to the boundary location. The worse job you do, the worse it is for your decision. Your answer should not be "wherever you say it is judge. Your the ultimate arbiter." You need to show the judge or jury where the corner is and why. If they make a wrong determination it is because of poor guidance.
You've been provided a series of cases and laws that guide where corners fall right here in this thread. There are incredible experts on this matter in this forum. I have mulled over a lot of posts here over the years, and have developed a clearer understanding on boundary.
Wow! I've hit a few nerves here, I suspected that would happen. I'm not disagreeing with anything that has been said here or advocating that math should control all lines while monuments are ignored, i'm just adding another complexity to the discussion, which is too often simplified with "hold any piece of metal you find". It's a basic fact that if you are surveying in a subdivision with small lots and an uncalled for, ignored, buried monument with no improvements built to it, no record of it's source, creates one lot to be say 1/2" long and the neighbors to be a 1/2" short, by holding the point you are constructing a boundary resolution that is not equitable, and I believe courts would take this into consideration. Now the biggest danger, in my mind, would be the possibility that someone brings out some old notes in someones old records that shows that the pipe you may consider rejecting was set through an old hub or was set based on found original monuments close by.
Computed Location.
Bears N 21å¡0519"E 5.29' from Computed location as shown on survey by XYZ Surveying, PLS xxxx. Did not accept, because it did not agree with my client's deed.
Bears N 18å¡06'21" 0.15' from Computed location as shown on survey by PDQ Surveying, PLS xxxx. Did not accept, because it did not agree with my client's deed.
roger_LS, post: 394332, member: 11550 wrote: Wow! I've hit a few nerves here, I suspected that would happen. I'm not disagreeing with anything that has been said here or advocating that math should control all lines while monuments are ignored, i'm just adding another complexity to the discussion, which is too often simplified with "hold any piece of metal you find". It's a basic fact that if you are surveying in a subdivision with small lots and an uncalled for, ignored, buried monument with no improvements built to it, no record of it's source, creates one lot to be say 1/2" long and the neighbors to be a 1/2" short, by holding the point you are constructing a boundary resolution that is not equitable, and I believe courts would take this into consideration. Now the biggest danger, in my mind, would be the possibility that someone brings out some old notes in someones old records that shows that the pipe you may consider rejecting was set through an old hub or was set based on found original monuments close by.
Woops, typo. 1/2" is a joke of an example, 0.5 feet would be more appropriate.
roger_LS, post: 394332, member: 11550 wrote: Wow! I've hit a few nerves here, I suspected that would happen....
No nerves hit here. Don't interpret disagreeing with your stance as being angry. I think the discourse has been quite civil.
Kevin Samuel, post: 394308, member: 96 wrote: Both the deed and the subdivision plat are representations of what the parties intended to buy/sell.
The only perfect thing in a property sale is the intent of the parties at the time of the sale. Party A intends to convey their interest/title to the property in question to Party B.
As we know, the best evidence of intent is original undisturbed monuments in the ground. Lacking original monumentation, we are left with what is now out there, secondary monumentation, improvements, etc. Lacking improvements or some kind of knowledge of the existing property owner of corners, or some kind of agreement between neighbors, or more modern post-subdivision mapping, we are left with a bunch of pieces of metal in the ground and the original subdivision map. When an old map shows say all 40' x 50' lots down a street, you have intent on the face of the map that these are all to be equal. This equitable principle is the logic behind the last resort method of proration and can also be the logic behind disregarding a single monument that provides more land to one parcel at the expensive of reducing the size of the adjoiner, where calling it off would make things equal.
roger_LS, post: 394392, member: 11550 wrote: ...can also be the logic behind disregarding a single monument that provides more land to one parcel at the expensive of reducing the size of the adjoiner, where calling it off would make things equal.
🙂
Sarcasm on...
Yeah, well...
[MEDIA=youtube]pWdd6_ZxX8c[/MEDIA]
...Sarcasm off.
Seriously though, I would make a much longer list of reasons to reject a monument besides making adjoining lot width dimensions match to the nearest 0.0X'.
I've got a one second gun so it's all good.
You've been provided a series of cases and laws that guide where corners fall right here in this thread.[/quote wrote:
The cases are interesting but I don't think you even need to know these cases to be a good surveyor. Common law = common sense. Period.
Tennessee DOT does not accept the position of the concrete right-of-way monuments if they are in conflict with the plans. Is it wrong? Most probably. However, that's just the way it is.
Back 15 years ago we had just finished the layout on about 15 miles of new road construction. The state went out and checked the right-of-way markers and sent a list to the contractor showing how much they were out. Some were out less than 0.2'. Others were out around a foot or so, and several were out over 50 feet. Upon further review, what happened is the right-of-way marker contractor must have been getting paid by the monument, because if they found a wood stake, they were digging a hole. It didn't matter if it was a slope stake, or a control point. If they saw wood, they were digging.
Tommy Young, post: 394484, member: 703 wrote: Tennessee DOT does not accept the position of the concrete right-of-way monuments if they are in conflict with the plans. Is it wrong? Most probably. However, that's just the way it is.
Back 15 years ago we had just finished the layout on about 15 miles of new road construction. The state went out and checked the right-of-way markers and sent a list to the contractor showing how much they were out. Some were out less than 0.2'. Others were out around a foot or so, and several were out over 50 feet. Upon further review, what happened is the right-of-way marker contractor must have been getting paid by the monument, because if they found a wood stake, they were digging a hole. It didn't matter if it was a slope stake, or a control point. If they saw wood, they were digging.
I'm sure it's the engineers that come up with these 'rules' it's the same reason we have 0.1'E offsets on found old pipes etc. The engineering mindset never fails to deliver
