Brian Allen, post: 391844, member: 1333 wrote: I've read hundreds of court cases from across the country and have yet to find one that would agree with your reasoning to reject the original monument.
Once again, putting aside that the errant pin in question puts a bend in a senior line and was rejected for that reason (my client adjoins the subdivision in question) lets continue on with the discussion. Am I correct in understanding you to say that in all those cases you read there was no talk of rejecting corners that were the result of a "blunder"? To me, a blunder is a pin not in conformance with other pins set at the same time by the same surveyor and within the tolerance shown by the surveyors other pins. Lets say the errant pin (blunder) is two miles away from where it is shown on the plat is it still good? a mile? a foot?
Brian Allen, post: 391844, member: 1333 wrote: Once again, the "record" isn't the manifestation of controlling intent. What was done on the ground, and accepted by the parties is usually controlling.
Yes back in the day corners were set in the field at the time of the original survey and the plat was drawn AFTER the field work was done and the corners controlled regardless of the math shown on the plat.
Generally speaking, subdivisions today are created in the office and staked out after the plat is created.
As to "acceptance and parties" what parties?, nobody "accepted" this corner, certainly not my client, he didn't even know it was there. I was probably the first to see it since it was set in the 1990's. If anything was "accepted" it would have been the plat not the corner we are talking about. The corner was set to match the plat not the plat to match the corner.
Brian Allen, post: 391844, member: 1333 wrote: Where did this erroneous notion that the "corners are controlled by the plat" come from?
Scenario: Landowner hires a surveyor to create a subdivision, surveyor does a perimeter survey and divides the property up on the computer and produces a plat. Plat is "accepted" by the municipality, landowner etc. and recorded. A year or two later the surveyor gets back around to staking out the house on the lot in question and sets the corner pins. His "intent" is to set the pins in the location as shown on the recorded plat. For four of the corners he does this satisfactorily, For reasons unkown to us today the fifth corner is set wrong by 1.5' (a blunder). In no way shape or form am I under any obligation to hold this pin. No improvements have been erected to this pin, it simply resides all by itself out in the woods 500' or so from the house.
Respectfully,
Jim Vianna
Interesting thread! This place should be accredited.
Don't you think we've misunderstood our commission? A corner calls for one position. When we leave two possibilities either physical representations or implied on paper we do a disservice. If a monument cannot be accepted for what it seems to represent the problem should be addressed and resolved before finishing the survey. If you are not surveying a property for the very first time your duty is to retrace not too add another location. As our old friend KW would say "Think about it for a minute". IMO if surveyors were forced to do their job and resolve these discrepancies before taking the money and running there would be a lot less pin cushioning either actual or virtual. If you can't finish a survey because in your opinion the corner does not belong on an existing monument then do the work necessary to fix the problem so the record shows one corner and one monument when you are done.
Just working on a survey today where a surveyor in 1985 called off a pipe by 2.5' based on a couple of found original hubs that were a few lots away, then set his own pipe. The pipe he found was not original, but now I'm digging into things and find there is quite a bit of evidence showing that this pipe he called off works better with the pattern of the original subdivision. There is an existing fence standing which is in conformance with the pipe he called off, not the one he set. To complicate things further, a map has just recorded a few months ago accepting the subdivision configuration in part by the 1985 survey. At this point, the only thing I know for sure is that I am way over budget on the job!
OK, I will bite.
Just surveyed two lots in riverbay, a large land courted subdivision with many known problems. It is a shining example of why surveyors of the 60s should not have been allowed to use curves.
8 monuments. 6 agreed well to the record math. 2 were a foot off the record math but agreed with each other.
A survey to fix the subdivision needs to be substantially larger and go through land court. Who would pay for that? I held a good meridian, detailed the monuments that were out by more than 0.05' and showed the two bounds out by a foot.
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James,
Once again, putting aside that the errant pin in question puts a bend in a senior line and was rejected for that reason (my client adjoins the subdivision in question) lets continue on with the discussion.
You are bringing up several different scenarios and each one has its own laws and reasoning. There have been many discussions on this board about ÛÏbending senior linesÛ, search and read thru them. I think you will find that in many circumstances it is fully acceptable to ÛÏbendÛ senior lines.
Am I correct in understanding you to say that in all those cases you read there was no talk of rejecting corners that were the result of a "blunder"? To me, a blunder is a pin not in conformance with other pins set at the same time by the same surveyor and within the tolerance shown by the surveyors other pins. Lets say the errant pin (blunder) is two miles away from where it is shown on the plat is it still good? a mile? a foot?
Yes, blunders, fraud, etc. can be reasons to reject incorrect monuments. But, once again, it is not solely based on some made-up arbitrary expectation of precision. You will need to properly gather relevant evidence, usually evidence that will either point to or away from reliance and repose. In cases where you find it is likely that blunders, fraud, etc., are in play, you still do not have the power to unilaterally force a solution on the unsuspecting landowners. We can (and should) help them fix a problem, but as surveyors we do not have the authority to do it for them ÛÒ it is their land, not ours. I doubt you will find any relevant case law or authoritative source that says ÛÏa blunder is a pin not in conformance with other pins set at the same time by the same surveyor and within the tolerance shown by the surveyors other pins.Û Have you found any source? If so, please share.
There are no hard and fast rules that cover any and every possible fact set encountered, that is why we are guided by laws and principles that have been laid out (repeatedly) by authoritative sources such as the courts. As professionals, we are expected to follow these laws and guiding principles, not make up our own. See my next post.
James, the following lengthy content is taken from Tyson v. Edwards, 433 So.2d 549 (1983):
When there is a discrepancy as to the location of the boundary of a surveyed lot of land between the monuments placed on the ground by the original surveyor and the written plat of that survey, which controls? More simply put the question is:
In the event of a discrepancy as to subdivided land lot lines, do you go with what the original surveyor intended to do as shown by the plat or do you go with what the original surveyor did by way of laying out and monumenting his survey on the ground?
Surprisingly, because of surveying principles based on established surveying practices, the correct answer is that what the original surveyor actually did by way of monumenting his survey on the ground takes precedence over what he intended to do as shown by his written plat of survey.
The difficulty with the problem is that the role and practice of the surveyor and his function in solving a surveying problem of the type in this case is misunderstood. Lawyers, architects and design engineers are accustomed to achieving objectives by first conceiving of abstract ideas or plans, then reducing those ideas (intentions) to paper, and then using the written document from which to construct a physical object or otherwise tangibly achieve the original goal as written. When this is done, the written document is always considered authoritative and any deviation or discrepancy between it and what is actually done pursuant to it is resolved by considering the deviations and discrepancies as being defects or errors in the execution of the original plan to be corrected by changing the physical to conform to the intention evidenced by the writing. In only one situation does the surveyor play a similar role and that is when he, in the first instance, lays out boundaries in the original division of a tract which has theretofore existed as a single unit. Thereafter the surveyor's function radically changes. It is not the surveyor's right or responsibility to set up new points and lines establishing boundaries except when he is surveying theretofore unplatted land or subdividing a new tract.
Where title to land has been established under a previous survey, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey. Later surveyors must only track and "trace the footsteps" of the original surveyor in locating existing boundaries. They cannot establish a new corner or line nor can they correct erroneous surveys of earlier surveyors, even when the earlier surveyor obviously erred in following some apparent original "over-all design" or objective.
The reason for this lies in the historic development of the concept of land boundaries and of the profession of surveying. Man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and running lines ("metes and bounds"), and the paper "survey" or plat of survey is intended only as a map of what is on the ground. The surveying method is to establish boundaries by running lines and fixing monuments on the ground while making field notes of such acts. From the field notes, plats of survey or "maps" are later drawn to depict that which was done on the ground.
In establishing the original boundary on the ground the original surveyor is conclusively presumed to have been correct and if later surveyors find there is error in the locations, measurements or otherwise, such error is the error of the last surveyor. Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan. Written plats are not construction plans to be followed to correctly reestablish monuments and boundaries. They are "as built" drawings of what has already occurred on the ground and are properly used only to the extent they are helpful in finding and retracing the original survey which they are intended to describe; and to the extent that the original surveyor's lines and monuments on the ground are established by other evidence and are inconsistent with the lines on the plat of survey, the plat is to be disregarded. When evidence establishes a discrepancy between the location on the ground of the original boundary survey and the written plat of that survey the discrepancy is always resolved against the plat.
In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines.
This case does not involve boundaries established or affected by adverse possession (the statute of limitations), agreement or acquiescence. Neither does this case involve the entirely different and distinct surveying problem of properly apportioning an excess or deficiency of certain lines or tracts shown by recent measurements as compared with the original measurements.
In a case such as this, the overall legal problem may be to establish and fix the legal boundary between two parcels of land, but the surveying problem is only to locate the boundary established on the ground by the original surveyor and is not to either establish a new boundary line where the plat shows one or to determine if the original surveyor erred in carrying out his work. Since as to contracts, wills, construction plans, etc., the writing is evidence of some preexisting human intent, and legal work largely concerned with the original intention of the scrivener, it is sometimes difficult for the legally trained mind to think otherwise as to plats and to understand the surveying problem and the proper surveying approach to, and solution of, it.
The result of all of this is that most boundary disputes essentially present a surveying problem and the surveying profession has its own rules, methods and practices for resolving its problems. Neither the legal nor surveying problem in a boundary dispute involves a question of what the original subdivider or surveyor intended or where, on the ground, a boundary should now be established to conform to the plat. The question is where on the ground the original surveyor did in fact fix the particular boundary and not where he intended, or should have, fixed it.
Perhaps surveyors of the 10's should not be allowed to use RTK and cogo. [SARCASM][/SARCASM] If the problem is big enough for a land court resolution why do surveyors keep enabling the land owners to perpetuate conflict? Perhaps the problem could be addressed incrementally for less cost although not cheap by any means. Surveyors provide the solution. If the cost is too high the survey should not be completed.
Brian Allen, post: 391950, member: 1333 wrote: There have been many discussions on this board about ÛÏbending senior linesÛ, search and read thru them.
What can I say... It's all in my name.
This is very common here in Washington State, I would go as far to say; most surveyors consider this as common practice.
This is generally what you will find: I don't think that the surveyor is saying the FOUND BRASS MON is off by 0.05'; I think he's just reporting what his measurements find as the position for it.
In the same respect; he might be saying that the FOUND BRASS MON, at the other end of the arc IS off by 0.28'. I mean, after all, 0.28' in 450' is a little bit more than an acceptable tolerance for urban surveying.
All he's saying is that his calculated position differs from his location of points he found on the ground...
It's my opinion that surveyors that report like this are avoiding responsibility, by leaving it open to interpretation.
Just because it's widely accepted; does it make it right?
Dougie
Brian Allen, post: 391951, member: 1333 wrote: James, the following lengthy content is taken from Tyson v. Edwards, 433 So.2d 549 (1983):
.
Brian,
I agree with what you copied for older subdivisions not most modern ones. A blunder is a gross error and in no way is the senior line going to be bent by the errant pin. That is just plain wrong. I may be over simplifying your position here but the way I understand what your are saying is that you hold every original pin you find irregardless of how far out. If it is mile away do you hold it? of course not. At what point do you personally cease to hold an original pin??
Let's try this, using the scenario from
my previous post, let's say it was you who set the original points 15 years ago, you are now back surveying for the adjoiner. You discover the errant pin, no improvements have been made to it. Do you pull your pin and set it where you had intended it to go the first time or leave it there and say it's original so it is good and give away a sliver of your current clients land to cover your error?
Respectfully,
Jim Vianna
James Vianna, post: 391932, member: 120 wrote: His "intent" is to set the pins in the location as shown on the recorded plat. For four of the corners he does this satisfactorily, For reasons unkown to us today the fifth corner is set wrong by 1.5' (a blunder). In no way shape or form am I under any obligation to hold this pin. No improvements have been erected to this pin, it simply resides all by itself out in the woods 500' or so from the house.
I agree with your reason to correct a blunder made by modern surveyors using modern equipment and techniques that bring repeatable measurements day after day.
In modern times blunders are easily found and in most states one as large as 1.5ft out of position is enough for possible sanction by their BOR.
Finding an ancient monument out of position by 1.5 foot and much more can be an every day event.
Today I found a blunder in the paperwork on a survey made around 1970.
A distance was noted as 357 feet was actually only 240 feet. The course was down a road and was the distance of the call for the outside of the parent tract. A division corner had been made along that course at 240 feet and never quoted on the drawing and subsequently or apparently the office tech placed 357 feet on the description and found its way to the deed.
The other boundaries were within 3 feet of call and the survey was made with a 1min transit and 100ft babbitt tape on a rather hilly called 11.841 acres that is more likely 12.06 acres.
Tomorrow I will return to locate or set two missing monuments, one at an angle corner and the other in the margin of the road as reference (destroyed by utilities, phone and water).
Paper blunders can be very entertaining. Especially as they can exist for many years before some brilliant surveyor comes along and wakes up everyone.
Went looking for a specific document last week at the courthouse. The index reported it was in book 225, page 1 yet a second similar document filed less than a month later was reported to be in book 255, page 450. There was no way they had filled 30 deed books in a month's time. Turned out the first one was really in book 255 like the second one but on page 118. So, both the book and the page were wrong. Recorded incorrectly forty years ago in 1976.
Blunders happen in many different ways to trip us up as we go merrily along our way in search of great wealth.
James Vianna, post: 391965, member: 120 wrote: Brian,
I agree with what you copied for older subdivisions not most modern ones. A blunder is a gross error and in no way is the senior line going to be bent by the errant pin. That is just plain wrong. I may be over simplifying your position here but the way I understand what your are saying is that you hold every original pin you find irregardless of how far out. If it is mile away do you hold it? of course not. At what point do you personally cease to hold an original pin??
A mile? Really? Please, lets keep the conversation near the professional level. If you can provide any authoritative source that defines just how far too far off is, I'd be happy to read it.
Apparently you haven't read my posts. I've been rather clear in my position.
Did the Tyson court (or any other court) give us a number of how far off is too far off? Why not?
Do you even believe that we should be following the guidance and direction of the courts or are we allowed to just make up "rules" however we want?
I'd love to read where it was ruled that the principles outlined in Tyson are applicable in "older" subdivisions, but are not applicable in "modern" subdivisions.
Exactly, what is the cut-off date between "older" and "modern"?
Do the applicable boundary location principles/laws change depending upon whether the original surveyor used a compass and chain, EDM, total station, or GPS?
As professionals, we really shouldn't be making up our own rules concerning the location of boundaries. It could really be embarrassing on a witness stand or in front of a licensing board.
James Vianna, post: 391965, member: 120 wrote:
Let's try this, using the scenario from
my previous post, let's say it was you who set the original points 15 years ago, you are now back surveying for the adjoiner. You discover the errant pin, no improvements have been made to it. Do you pull your pin and set it where you had intended it to go the first time or leave it there and say it's original so it is good and give away a sliver of your current clients land to cover your error?
How can I, or you, "give away" another persons land?
Did you even read the previous posts and the cited court case?
Just for the record, exactly how far "off" does a pin have to be to be legally classified as "errant" or a "blunder"? Is there a chart somewhere that defines the magic distance for each potential situation that may be encountered?
How could someone possibly know that a monument is off 0.3 X 0.1 from the true corner? In relation to what? to a point of beginning and a true bearing from another point/monument? Are you sure that your "point of beginning" isn't off 0.3 X 0.1 and you found the only "true corner" and called it off? It's an impossible scenario. You look @ all of the evidence. Everything; including bearings and distances. Then you start to put it together. You show the deed call and what you measured between the existing monuments that you accepted. It is much more clear that you are calling the monument to be one and the same as the "corner" and your measured vs. record is supporting evidence that you are at the same point.
If you're looking at PLSSia corners, same thing. the 1/4 corner was set on a straight line between the adjacent section corners. That was the original intent. Do you go moving the 1/4 corner to be on line and half way? NO. How do you know it's that 1/4 corner that needs moving and not one of the section corners? HOw about a 1/16th corner? Do you move it? NO. How do you know it wasn't set on line to the original adjacent corners and someone came along and reset one of the "senior" corners. That 1/16th you found might more correctly reference the original adjacent corners before they were upgraded.
Excellent article on the subject by Mr. Kline in POB .
http://www.pobonline.com/blogs/14-point-of-beginning-blog/post/94587-opinion-dont-abandon-principles-when-surveying-subdivisions
Excellent post! Keep it going. I especially like this quote from the Tyson case It helps explain the desire of the surveyor to use the math over the monuments. Especially when the engineers control much of the world we work within.
Brian Allen, post: 391951, member: 1333 wrote: The difficulty with the problem is that the role and practice of the surveyor and his function in solving a surveying problem of the type in this case is misunderstood. Lawyers, architects and design engineers are accustomed to achieving objectives by first conceiving of abstract ideas or plans, then reducing those ideas (intentions) to paper, and then using the written document from which to construct a physical object or otherwise tangibly achieve the original goal as written. When this is done, the written document is always considered authoritative and any deviation or discrepancy between it and what is actually done pursuant to it is resolved by considering the deviations and discrepancies as being defects or errors in the execution of the original plan to be corrected by changing the physical to conform to the intention evidenced by the writing. In only one situation does the surveyor play a similar role and that is when he, in the first instance, lays out boundaries in the original division of a tract which has theretofore existed as a single unit. Thereafter the surveyor's function radically changes. It is not the surveyor's right or responsibility to set up new points and lines establishing boundaries except when he is surveying theretofore unplatted land or subdividing a new tract.
Jp
KScott, post: 391391, member: 1455 wrote: So, it is still a pin cushion right? The found monument is not accepted but no monument is set at the "true" position. Why is this any better than setting a new monument at the position you think is correct?
We all rant about the pin cushion but the real issue is the failure to accept the efforts of those preceding us without good cause. The virtual pin cushion is usually just obscuring the fact that a surveyor has let the measurements over ride the footsteps of the prior surveyors.
I think it is important that we distinguish between 'prior' and 'original' surveyor.
We (in the PLSS states) have talked about the stubbed in center of section. Just because that surveyor set what he thinks is the COS does not mean I have to hold it.
You can't make a wedding cake out of a pile of crap. 😉
Thanks Jp,
Your referenced article is spot on. In consideration of this thread, I especially like this:
"It is quite common in our profession to create a digital model of the plat in question, fit the model on the two or three rebar in the subdivision that best match our model (or on two control monuments), and ignore the rest of the corner monuments as being ÛÏin error.Û Although this approach may be useful as a search technique during the early stages of a project, a proposed adjustment of original corner monument location by this premise is really nothing more than a variation on proportioning, which should never be applied to move an original monument."
Far too often, in retracement situations, too many of us think and act like we are professional cogo technicians instead of professional land surveyors.
ppm, post: 392052, member: 6808 wrote: Just because that surveyor set what he thinks is the COS does not mean I have to hold it.
No, you don't have to hold it, but I certainly wouldn't reject it without fully understanding and considering the principles laid out in the Dykes v Arnold case, for example.
Let's not reopen the center of section can of worms in this thread.
The key topic here applies to those cases where the plat shows specific monuments as not being at whatever the signing surveyor has determined to be the true corner. There are cases where this makes sense and other cases where it does not.
