Land Surveyors look at what the other Land Surveyors did and use sometimes arbitrary standards for evaluating the validity of the physical evidence.
The Courts, on the other hand, look into what the property owners, said, did, agreed to (either expressed or implied), in order to establish their boundaries. Both parties should have participated and the correct parties should have participated. Sequence is important; did an adjoiner set a monument on a line between original monuments? Who set up the monument and did they have authority to do so? Notice is important. Although the property owner didn't know the monument was "back there," they were under notice that it existed and they should look for it if they want to know where their boundary is located.
Legal scholars have divided boundary law into two categories. The first category is Deed Descriptions and rules of construction. These are the familiar rules found in most surveying text books the most famous being called for monuments control over distance and direction. These rules are not rules of property and are merely an aid to the Judge to determine the intentions of the parties. Any superior evidence of the intentions of the parties would control over the rules of construction. Nothing is absolutely black and white; even the Statute of Frauds is not applicable in every case (unwritten conveyances have been upheld in some circumstances). Cases come about because two people had a dispute which they could not resolve themselves. Which rule is used is somewhat dependent on how the Lawyers present the case; e.g. legal procedure. If the parties can't agree on what the Deed conveys then the Courts will use this half of boundary law to help resolve the dispute.
The second category is establishment. This is acquiescence, agreement, and estoppel among other things. If the parties have a dispute strictly about location (often which appears to be out of substantial compliance with the Deeds) then the Courts may apply these rules if the Lawyers plead them. For some reason this category has often been ignored by Surveying texts although Cooley pointed it out as early as 1875. So, for example, the Deed says the north half and the parties mutually established their dividing line (I found one case where the boundary established by the original parties was 500' off) agreeing that they are establishing the boundary then by their acts of ownership, each staying on his side of the line then the erroneous line becomes the line, in other words, it is no longer erroneous.
It appears that if the Deed calls for no monument but the parties establish a monument immediately after the Deed is delivered then you have an established monument.
[USER=94]@Dave Karoly[/USER]
Hear hear, well put. And thanks for putting the "rules of construction" in its place.
Dave Karoly, post: 392421, member: 94 wrote: The obsession with precision never ends.
It can be that the property owners are more concerned with precision than we are in cases, and especially when they've paid a million plus dollars for a tiny parcel.
roger_LS, post: 392437, member: 11550 wrote: It can be that the property owners are more concerned with precision than we are in cases, and especially when they've paid a million plus dollars for a tiny parcel.
Like Duane has said, those who choose to participate in the U.S. System of land ownership agree to things like original monuments. If they have a beef with anyone, it is with their grantor or possibly the original surveyor who failed to set the monuments with sufficient precision.
Tom Adams, post: 392425, member: 7285 wrote: 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.
Exactly.
2 things.
1. You have to distinguish between 'sloppy not so great' original surveyor and 'sloppy not so great' retracting surveyor. The original surveyor holds whether sloppy or not. The second holds within reason. Blatantly retracting improperly and coming to a wrong location shouldn't be accepted. What if you find much better evidence? What if that evidence was in the open just the button pusher used the numbers? Do we ignore our evidence and use his pin bc someone used his pin to build a fence? Serious question there not being facetious.
2. Certain areas certainly have different local surveying customs. You may see them as right or wrong. Even if you are correct, if no other surveyor will agree with your location, isn't that just as bad? Now the homeowner will never have peace. And even if you are true and will win in court, would it be professional to always bang everything to court bc you are right and 3 other local surveyors do not agree by 3 feet while they are all agreeing within 2 tenths? (Putting numbers as an example and referring to small city lot)
There are many factors to be within this discussion.
Btw.... I absolutely love this message board.
Coming up on my one year anniversary of licensure. Like most say, that's when learning really begins. In my opinion over the last year I have become a much better surveyor. The questions above I would never have even imagined 2 years ago.
Dave Karoly, post: 392440, member: 94 wrote: Like Duane has said, those who choose to participate in the U.S. System of land ownership agree to things like original monuments. If they have a beef with anyone, it is with their grantor or possibly the original surveyor who failed to set the monuments with sufficient precision.
That could be, but I don't know that they've agreed to have some buried, ignored, uncalled for and unsubstantiated piece of metal diminish the size of their lot while the neighbor is getting all of this excess.
The other component of looking at equity with boundary resolution is that it helps to keep folks out of court, which we should consider a duty as surveyors.
roger_LS, post: 392465, member: 11550 wrote: That could be, but I don't know that they've agreed to have some buried, ignored, uncalled for and unsubstantiated piece of metal diminish the size of their lot while the neighbor is getting all of this excess.
The other component of looking at equity with boundary resolution is that it helps to keep folks out of court, which we should consider a duty as surveyors.
If they have notice of an original monument (whether expressed or implied) then they are bound by it whether they understand boundary law or not (ignorance of the law is no excuse). However, I agree that if they have no notice of a buried, uncalled for monument then it is likely they are not bound by it. Some notice is generally required.
Dave Karoly, post: 392474, member: 94 wrote: If they have notice of an original monument (whether expressed or implied) then they are bound by it whether they understand boundary law or not (ignorance of the law is no excuse). However, I agree that if they have no notice of a buried, uncalled for monument then it is likely they are not bound by it. Some notice is generally required.
Interesting....
I just dug up an old pipe obviously set as a corner. No idea if original or not, most likely not but set somewhere in the 30s-50s. Lot is old. No old survey plat shows the pipe and I doubt either owners even know it's there. Do I know for sure? No.
Original or not, known or not, it's my best evidence of where that corner is.... so far (current project)
Rich., post: 392475, member: 10450 wrote: Interesting....
I just dug up an old pipe obviously set as a corner. No idea if original or not, most likely not but set somewhere in the 30s-50s. Lot is old. No old survey plat shows the pipe and I doubt either owners even know it's there. Do I know for sure? No.
Original or not, known or not, it's my best evidence of where that corner is.... so far (current project)
Like you I am inclined to hold a monument rather than reject it, especially one that has been there since my Mother was in diapers. Someone ordered that Survey. Our psychology is we can do better than that guy but I think it's better to quit constantly changing the answer if at all possible. The worst havoc I have seen is where some modern surveyor suddenly starts substantially changing all the settled boundaries in the neighborhood based on an overly rigid and technical application of legal rules.
Dave Karoly, post: 392480, member: 94 wrote: Like you I am inclined to hold a monument rather than reject it, especially one that has been there since my Mother was in diapers. Someone ordered that Survey. Our psychology is we can do better than that guy but I think it's better to quit constantly changing the answer if at all possible. The worst havoc I have seen is where some modern surveyor suddenly starts substantially changing all the settled boundaries in the neighborhood based on an overly rigid and technical application of legal rules.
Very true.
Unfortunately I feel many attorneys think we are changing the answer if the numbers change on a paper by 0.01.
Rich., post: 392501, member: 10450 wrote: Very true.
Unfortunately I feel many attorneys think we are changing the answer if the numbers change on a paper by 0.01.
Not just attorneys, most everyone who is not a practicing land surveyor thinks that. They are uneducated in our field, and need to be taught.
I did this subdivision lot yesterday where I found the adjoining survey showing a couple concrete monuments at the block corner off by .4' and a 1" pin as well. It had be scratching my head as to what better evidence could have controlled the subdivision. I also found some 1" pins at a couple block corners in addition to the monuments. The original subdivision map didn't state whether monuments were set. I did some digging and came across a map from 1935 (post original subd. map) that showed a surveyor had set "iron pin in concrete" along that particular road at the block corners. The other block corners were labeled "pin" and noted as original pins. After locating a 1" pin on the other end of the block at I found that my measurement was 1039.6' vs. 1040 record. Oh I see, you just take the .4' from the street to get the perfect lot measurement! I didn't find a single survey in the block that prorated any lot distances, maybe because it would only be .02' or so a lot which eventually adds up.
I just thought of a situation where I've created a virtual pin-cushion. (maybe a similar one was mentioned above - not sure).
Street line was established by layout and found monuments, which nailed it down pretty conclusively. One found lot corner was about 0.3' short of the the street line, and the other about 0.5'.
I didn't set additional monuments here - not going to physically pin-cushion, don't see the need. And I wasn't going to lift anyone else's monuments so I could set my own. So, my drawing has a couple virtual pin-cushions, and I don't see anything wrong with it, but maybe some of you, (Tommy), probably do.
But it also makes me wonder at what point, I would set a new monument. 10' from the corner, sure. 5', yes. 1', 0.8', probably, I don't know.
I revisited a 3/4 inch sucker rod that was set in the r/w of FM Highway in 1978.
First tied it in around 1990 and it was still on the r/w line.
A few years later with the change of xtie to power pole fence corner it moved 0.62ft north of the r/w.
About 10yrs ago with the setting of a taller power pole for a winery sign it had moved back toward the original location and has stayed at 0.28ft north of the r/w.
Now I have to identify that corner and it will go something like "...... to the north r/w line of FM Highway at Southwests corner of community center and Southeast Corner of Winery - 3/4 inch iron rod found North 0.28ft".
These virtual pin cushions that I vision are the ones that are created by attempting to relocate positions that are not monumented at all and have no physical reference to go by either.
They are a mere coordinate value or latitude and longitude and perhaps elevation that every surveyor gets close too, yet never arrives at the same physical location.
Without any physical object for location or reference, it has never been found in my opinion.
:8ball:
Without disrespect I would question that when the fence builder, wall builder or foundation staker shows up which location do you suppose they will use the determine the line? How can we expect others to grasp that some survey monuments represent the property corners and others are just nearby. How many observers of the monument are going to have the survey plat in hand?
Rich., post: 392501, member: 10450 wrote: Very true.
Unfortunately I feel many attorneys think we are changing the answer if the numbers change on a paper by 0.01.
There are very few attorneys who know anything about boundaries. It is our job to educate them when we can.
We all know that a proffesional surveyor is much more than an expert measurer, but being an expert measurer remains part of our job. If you use a number to represent a measurement you preformed, it should be what you belive is the most likely value for that distance, bearing, or area. Why would you stamp a plat showing a measured distance you know is not correct? Isn't there a statement on most plats claiming that it is a representation of a survey you preformed?
I don't feel pressure to give or take. A surveyor is not authorized to give and take. Retracement is determining where the boundary exists without giving or taking.
I can't read all of this thread right now but I feel like we're going down a road I've seen before. Some states require monumentation, many do not. Where I am in NY (just north of NYC) we are lucky to find any calls in deeds. Subdivision stakes are set after approval of the plat in most cases. 90% of our work is re-tracing parcels that have existed for 100-200 years. The idea of finding an "original" monument is a bit of a joke. Especially considering that many subdivisons were done in the early 1700's and that many surveyors did not set anything (even to this day). Many subdivisions prior to the 60's were deeded not mapped. It's not required to set corners in NY and I would suspect that the vast majority of surveys do not include setting corners.
A map may call for a 50' ROW and for all the lots to be 100' wide. No calls in deeds or on any maps (more often the case than not in my area). Say I find a pipe at one end of the block and a rebar on the other end that work well between each other mathematically. I then find 4 rebar along the ROW. Three of them are generally along that straight line and once is 0.4' off (either in or out from the ROW). I'm not going to change the ROW because of one rebar that I have no idea who set, when it was set, if it was disturbed, etc. A statute or platted right of way does not change based on a rebar I know nothing about. Say 3 of the rebar fell reasonably close to the 100' lot corners and the 4th was 0.3' off making one lot 99.70 and the other 100.30. I'm not going to change the dimensions of a platted, deeded, lot based on a rebar that I know nothing about when I have other things that fit the mathematics (also evidence) better. I can't tell you how many times I've watched landscapers rip out a corner then re-set it after mowing, or how many homeowners have come out and said "yeah I put that rebar there".
I don't have a problem calling out a tie between an uncalled piece of evidence and a computed corner when necessary...the key thing to remember here is that our determination is supposed to be a preponderance of all the avaliable evidence.
One thing i am seeing in this discussion is a lot of people are concerned with making the client happy. On a boundary survey it is not my job to make the client happy it is my job to tell them the truth. If i am surveying a lot that is supposed to be 50' wide and i find pins that are 49.9' apart I am going to hold them unless there is clear evidence that they are disturbed.
