This thread has gotten a little too complicated! If the position of the monument is VIRTUALLY the same as where you'd calculate it to be based on other points in the area, you should probably just accept it.
My biggest area of grey is when you 'accept' a non original, non called for monument. Isn't that allowing something to control that has no control?
If a lot is 100.00 wide by deed and we find 2 different pins, non original, that are 100.9 feet apart, while they may be evidence of the location of the lot, changing the lot width would allow them to control.
This has always been my snafu.
Let me also say that around here it's rare to get a single property with 2 existing monuments of any kind on any of the corners. If some of you came here your heads would explode.
Rich., post: 392323, member: 10450 wrote: My biggest area of grey is when you 'accept' a non original, non called for monument. Isn't that allowing something to control that has no control?
If a lot is 100.00 wide by deed and we find 2 different pins, non original, that are 100.9 feet apart, while they may be evidence of the location of the lot, changing the lot width would allow them to control.
This has always been my snafu.
Let me also say that around here it's rare to get a single property with 2 existing monuments of any kind on any of the corners. If some of you came here your heads would explode.
One thing that doesn't seem to get mentioned much while most are busy berating pincushions, is the surveyor's duty to consider equity while making boundary determinations. If by accepting non original monuments in a subdivision a particular lot becomes larger at the expense of another being reduced in size, we may have it wrong.
Rich., post: 392323, member: 10450 wrote: My biggest area of grey is when you 'accept' a non original, non called for monument. Isn't that allowing something to control that has no control?
It depends. What other evidence do have that either supports or opposes the presumption that the monument is occupying the position of the corner? Have you considered all the establishment doctrines? What about reliance? By whom? Why? For how long?
What is the difference between either rejecting a monument based solely on it being "uncalled for" or "non-original" and accepting that position? There is no difference, in both cases all you are demonstrating is that you haven't gathered enough evidence to form a reasonable, professional opinion.
Rich., post: 392323, member: 10450 wrote: If a lot is 100.00 wide by deed and we find 2 different pins, non original, that are 100.9 feet apart, while they may be evidence of the location of the lot, changing the lot width would allow them to control.
If you are accepting the monuments as the lot corners, you are not "changing" the lot width - you have found the corners, you have discovered where the lot lines have been located on the ground long before you showed up. How can you change something by merely finding it?
Rich., post: 392323, member: 10450 wrote: Let me also say that around here it's rare to get a single property with 2 existing monuments of any kind on any of the corners. If some of you came here your heads would explode.
Sounds like this area. Very rarely are monument called for in descriptions, even rarer are the calls for previous surveys, and even rarer than that are previous surveys. That is why we must be proficient in gathering ALL the evidence, and very proficient in understanding and applying boundary law , because if we are neither, all we are doing is merely "slapping the math on the ground", which is NOT boundary surveying.
Rich., post: 392323, member: 10450 wrote: My biggest area of grey is when you 'accept' a non original, non called for monument. Isn't that allowing something to control that has no control?
If a lot is 100.00 wide by deed and we find 2 different pins, non original, that are 100.9 feet apart, while they may be evidence of the location of the lot, changing the lot width would allow them to control.
This has always been my snafu.
Let me also say that around here it's rare to get a single property with 2 existing monuments of any kind on any of the corners. If some of you came here your heads would explode.
The other side of that is that a licensed land surveyor who has the legal authority to judge tolerances, set non-original corner monuments may have set those for his client and his client relied on the land surveyor to show him his corners. They may have done improvements and/or setbacks based on their monumented land survey. Now you're doing the client a disservice if you are coming in and saying no no the corners over here a tenth. They can't be paying professionals and having floating-around corners every time one of us is hired.
The scenario above may not be what happened, but it's your job to decide the validity of the monument. I tend to lean on the side of "I found it", then look for reasons that it might not be the corner. The mere discrepancy of missing by 0,1' with no other evidence that the corner is "false" just doesn't tip the scales for me. (and it's even more confusing to say that the pin is 0.1' east of the "true" corner. The client should be able to rely on you determining his corner positions and leaving a monument where they fall). I agree with Tommy that if you are not going to set an existing monument you should set the correct position.
Brian Allen, post: 392369, member: 1333 wrote: It depends. What other evidence do have that either supports or opposes the presumption that the monument is occupying the position of the corner? Have you considered all the establishment doctrines? What about reliance? By whom? Why? For how long?
What is the difference between either rejecting a monument based solely on it being "uncalled for" or "non-original" and accepting that position? There is no difference, in both cases all you are demonstrating is that you haven't gathered enough evidence to form a reasonable, professional opinion.
If you are accepting the monuments as the lot corners, you are not "changing" the lot width - you have found the corners, you have discovered where the lot lines have been located on the ground long before you showed up. How can you change something by merely finding it?
Sounds like this area. Very rarely are monument called for in descriptions, even rarer are the calls for previous surveys, and even rarer than that are previous surveys. That is why we must be proficient in gathering ALL the evidence, and very proficient in understanding and applying boundary law , because if we are neither, all we are doing is merely "slapping the math on the ground", which is NOT boundary surveying.
I completely agree that the location cannot move.
And monumentation set long before you arrived should be honored.
But a pin set with yesterday's date on it doesn't exactly fit that criteria. Especially if that surveyor you know just slapped the math.
So two pins set recently within the last year, subdivision is 90 years old, no original monumentation, and the math slapped pins leave a deficiency of 7 tenths in your clients 50' lot..... accepting those is no better than slapping the math yourself imo.
Btw, I didn't mean around here there are no called for monuments. I meant there are no monuments period. NY laws really need some work. Believe me. After 100 years of not having to monument and a 50 years of math slapping, everything is all over the place.
Tom Adams, post: 392375, member: 7285 wrote: The other side of that is that a licensed land surveyor who has the legal authority to judge tolerances, set non-original corner monuments may have set those for his client and his client relied on the land surveyor to show him his corners. They may have done improvements and/or setbacks based on their monumented land survey. Now you're doing the client a disservice if you are coming in and saying no no the corners over here a tenth. They can't be paying professionals and having floating-around corners every time one of us is hired.
The scenario above may not be what happened, but it's your job to decide the validity of the monument. I tend to lean on the side of "I found it", then look for reasons that it might not be the corner. The mere discrepancy of missing by 0,1' with no other evidence that the corner is "false" just doesn't tip the scales for me. (and it's even more confusing to say that the pin is 0.1' east of the "true" corner. The client should be able to rely on you determining his corner positions and leaving a monument where they fall). I agree with Tommy that if you are not going to set an existing monument you should set the correct position.
I agree 100% a tenth to me is nothing. That pin is getting flagged and accepted. Corners are set and cannot float.
Rich., post: 392377, member: 10450 wrote: I completely agree that the location cannot move.
And monumentation set long before you arrived should be honored.
But a pin set with yesterday's date on it doesn't exactly fit that criteria. Especially if that surveyor you know just slapped the math.
So two pins set recently within the last year, subdivision is 90 years old, no original monumentation, and the math slapped pins leave a deficiency of 7 tenths in your clients 50' lot..... accepting those is no better than slapping the math yourself imo.
Btw, I didn't mean around here there are no called for monuments. I meant there are no monuments period. NY laws really need some work. Believe me. After 100 years of not having to monument and a 50 years of math slapping, everything is all over the place.
I hear you.
If you disagree with the "new" monuments, why do you disagree? Is it only the measurements that have you doubting it? Is there better evidence? Is the corner truly lost? You need to talk with the other surveyor and confirm his doesn't have better evidence than you have found. Between the two of you, you should able to solve the problem. By "solve the problem" I mean come up with a solution, that when presented to the landowners, they expressly agree with the solution(s).
I find lots of "monuments" here, but rarely are they the variety commonly set by surveyors such as stakes, iron pipes or rods. A monument can be any object occupying the location of the corner.
Brian Allen, post: 392369, member: 1333 wrote: It depends. What other evidence do have that either supports or opposes the presumption that the monument is occupying the position of the corner? Have you considered all the establishment doctrines? What about reliance? By whom? Why? For how long?
What is the difference between either rejecting a monument based solely on it being "uncalled for" or "non-original" and accepting that position? There is no difference, in both cases all you are demonstrating is that you haven't gathered enough evidence to form a reasonable, professional opinion.Very well stated Brian. Our responsibility is to apply the establishment doctrines and make a professional determination of boundary's location based on the preponderance of the evidence..
preponderance of the evidence
n. the greater weight of the evidence required in a civil (noncriminal) lawsuit for the trier of fact (jury or judge without a jury)to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probabletruth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide apreponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms mayoutweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil caseand is contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to convict in acriminal trial.The virtual pin cushion is SOP for surveyors not willing to put in the work to evaulate the preponderance of evidence.
Brian Allen said:
If you are accepting the monuments as the lot corners, you are not "changing" the lot width - you have found the corners, you have discovered where the lot lines have been located on the ground long before you showed up. How can you change something by merely finding it?
You ARE changing the lot dimensions from record. When people are buying a lot of certain dimensions, they are expecting to get all of that area. Changing these dimensions can be a concept difficult for property owners to comprehend, similarly to an explanation that a monument is here, but the true corner is a little ways over there. We should feel a pressure to give clients the dimensions called for by record, if possible. This applies particularly to small and expensive parcels.
roger_LS, post: 392388, member: 11550 wrote: When people are buying a lot of certain dimensions, they are expecting to get all of that area.
That's the biggest problem we face; people expect to get what the plat says, but their deed says lot 3 block 4. When you survey lot 3 block 4, you find that the distances on the ground do not match the plat. How do you explain to your client that his lot is not the size and shape the plat says it is?
It's easy, really, if your client thinks he's getting more; the hard part is convincing the guy who thinks he got screwed. When in reality, both of them got exactly what their deed says they bought; Lot 3, Block 4 Anytown USA.
Dougie
roger_LS, post: 392388, member: 11550 wrote: You ARE changing the lot dimensions from record. When people are buying a lot of certain dimensions, they are expecting to get all of that area.
No. A surveyor cannot change the lot dimensions, only the landowners can change the boundaries - it is their land not ours.
"Changing these dimensions can be a concept difficult for property owners to comprehend, similarly to an explanation that a monument is here, but the true corner is a little ways over there. We should feel a pressure to give clients the dimensions called for by record, if possible. This applies particularly to small and expensive parcels"
As to current measurements not matching "record", what I've seen in my years of experience, is that when these principles are properly explained to the landowners, they understand this better than surveyors - and we are supposed to be the trained professionals! Go figure.....
Here are a few more choice guiding principles:
Justice Cooley:
ÛÏWhen a man has had a training in one of the exact sciences, where every problem within its purview is supposed to be susceptible of accurate solution, he is likely to be not a little impatient when he is told that, under some circumstances, he must recognize inaccuracies, and govern his action by facts which lead him away from the results which theoretically he ought to reach. Observation warrants us in saying that this remark may frequently be made of surveyors.Û
ÛÏIt is by no means uncommon that we find men, whose theoretical education is thought to make them experts, who think that when the monuments are gone, the only thing to be done is to place new monuments where the old ones should have been, and would have been if placed correctly. This is a serious mistake. The problem is now the same that it was before: To ascertain by the best lights of which the case admits, where the original lines were.Û
ÛÏIf the original monuments are no longer discoverable, the question of location becomes one of evidence merely. It is merely idle for any State statute to direct a surveyor to locate or establish a corner, as the place of the original monument, according to some inflexible rule. The surveyor, on the other hand, must inquire into all the facts; giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned; and, second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs.Û
ÛÏÛ? and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.Û
McKinley v. Hilliard, 454 S.W.2d 67 (1970):
"As has been pointed out heretofore it is not the surveyor's responsibility to set up new lines except where he is surveying heretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the surveyor's duty is to solely locate the lines of the original survey. He cannot establish a new corner, nor can he even correct erroneous surveys of earlier surveyors. He must track the footsteps of the first."
McGhee v. Young. 606 So.2d 1215 (1992) (quoting Tyson):
ÛÏIn 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.Û
roger_LS, post: 392388, member: 11550 wrote: Brian Allen said:
If you are accepting the monuments as the lot corners, you are not "changing" the lot width - you have found the corners, you have discovered where the lot lines have been located on the ground long before you showed up. How can you change something by merely finding it?You ARE changing the lot dimensions from record. When people are buying a lot of certain dimensions, they are expecting to get all of that area. Changing these dimensions can be a concept difficult for property owners to comprehend, similarly to an explanation that a monument is here, but the true corner is a little ways over there. We should feel a pressure to give clients the dimensions called for by record, if possible. This applies particularly to small and expensive parcels.
The lot is "platted" @ 100' and it is a part of a larger subdivision. If you can't fit 10, 100' lots in 999', you must prorate. You also can't run around trying to change the world every time you do a lot survey. Pins have been set, accepted, and used by the landowners. And what is a land owner to do if he goes to his "corner" and sees two or more monuments? What is he supposed to believe and do? Hire another surveyor to add another pin to the pile? We need to be professionals and walk away from a survey giving the client clear, professional, and direct answers to the question "where is my property line?"
roger_LS, post: 392388, member: 11550 wrote: We should feel a pressure to give clients the dimensions called for by record, if possible. This applies particularly to small and expensive parcels.
No. The only "pressure" we should feel is the pressure to provide an unbiased, professional service. If we "give" every parcel what the "record" says, where does the domino effect end?
How can we "give" a client land or "give" a client "dimensions"?
We shouldn't be "giving" clients anything, except an invoice.
Brian Allen, post: 392400, member: 1333 wrote: No. The only "pressure" we should feel is the pressure to provide an unbiased, professional service. If we "give" every parcel what the "record" says, where does the domino effect end?
How can we "give" a client land or "give" a client "dimensions"?
We shouldn't be "giving" clients anything, except an invoice.
By giving, I am talking about creating a boundary construction that provides for all lots to have record dimensions. It can be done by calling a non original point off that is an outlier to a tight pattern of abundant monumentation that does agree with record where there is enough room in the block for all lots to have record dimensions. It is a principle of equity, which the courts do look to.
roger_LS, post: 392404, member: 11550 wrote: By giving, I am talking about creating a boundary construction that provides for all lots to have record dimensions. It can be done by calling a non original point off that is an outlier to a tight pattern of abundant monumentation that does agree with record where there is enough room in the block for all lots to have record dimensions. It is a principle of equity, which the courts do look to.
Yes, the courts will look at it that way, BUT ONLY, IF and AFTER they have found NO other evidence of the location of boundaries as established on the ground. In other words, the measurements (proration) is a method and principle of last resort - it is not primary in the determination of the location of boundaries.
Brian Allen, post: 392406, member: 1333 wrote: Yes, the courts will look at it that way, BUT ONLY, IF and AFTER they have found NO other evidence of the location of boundaries as established on the ground. In other words, the measurements (proration) is a method and principle of last resort - it is not primary in the determination of the location of boundaries.
This would be a situation where there is an abundance of evidence but maybe one or two outliers that fall significantly out of this pattern. You'd also have to have a case where this is enough room in the block for all to have record dimensions (no proration) and where the found points were not original.
RADAR, post: 392394, member: 413 wrote: That's the biggest problem we face; people expect to get what the plat says, but their deed says lot 3 block 4. When you survey lot 3 block 4, you find that the distances on the ground do not match the plat. How do you explain to your client that his lot is not the size and shape the plat says it is?
It's easy, really, if your client thinks he's getting more; the hard part is convincing the guy who thinks he got screwed. When in reality, both of them got exactly what their deed says they bought; Lot 3, Block 4 Anytown USA.
Dougie
This is where the Cooley's judicial functions of a land surveyor might apply. If one parcel is getting an extra 3 tenths (for a random example, fill in your own distance for the situation) by a non original monument while the neighbor is getting shorted by 3 tenths, you might, in certain situation, call off the point to make things equal.
The obsession with precision never ends.
Dave Karoly, post: 392421, member: 94 wrote: The obsession with precision never ends.
It's a hard thing to let go of. When you start out in surveying by traversing with turning multiple angles and measuring both ways and insisting on excellent closures and you take extra time to get monuments in right where your math puts them, it is a hard thing to "accept" a monument set by an apparently sloppy, not-so-great surveyor.