As a ret. DOT ROW surveyor let me say this about that. There is a document that precedes that plat that grants 50 ft. of ROW. I am curious if that document has any language in it restricting it to use for highway ROW purposes. The only reason I ask is because the statement was made that you would need to go 17 ft. "into the woods" to look for the 50 foot line. So the used ROW has never been more than the original 33' even though there was a grant for 50? Is that the case up and down the road or just where the plat is? If the state hasn't used the 17 ft. there might be a thread of hope for the lot owner base on the language in the grant but not much. The only hope is that it can be proven that the ROW grant is an easement for road use and the road hasn't used it. We do have a court case where the road ROW easement as used controlled over the record ROW width. If I can find it I'll post it. Otherwise, you have a plat with a 17 ft. error in it that needs corrected. You either have a 50 ft ROW that is 33 or you have a lot dimension that is 17 ft long. Because you have a document that says the ROW is 50 AND the plat agrees that supports the lot dimension being platted 17 ft. longer than measured. The original subdivision surveyor either found or set?ÿ the pins in error (or fraud) at 33 and measured back what is on the plat to create the one acre lot. I'd be hard pressed not to use 50 ft. Setting pins at 33 when the documented ROW is more not not an unheard of mistake.?ÿ
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DOT determined the width required from each lot as an improvement to the highway passing through a small city.?ÿ The City then did a condemnation to take all the partial?ÿ lots required.?ÿ Then the DOT revised their ROW needs and showed this on their Highway Plans.?ÿ This left gaps of a bit less than a foot to over ten feet between the ROW limit and the edges of the partial lots condemned.?ÿ Guess the City technically owns the the series of little wedges separating the highway from the private land.?ÿ This was about 1939.
Deeds for highway purposes in another location show a taking of a total of 25 feet either side of the section center line.?ÿ The Highway Plans show 30 feet either side of the section center line.?ÿ No ROW markers anywhere.?ÿ This was about 1928.
As a ret. DOT ROW surveyor let me say this about that. There is a document that precedes that plat that grants 50 ft. of ROW. I am curious if that document has any language in it restricting it to use for highway ROW purposes. The only reason I ask is because the statement was made that you would need to go 17 ft. "into the woods" to look for the 50 foot line. So the used ROW has never been more than the original 33' even though there was a grant for 50? Is that the case up and down the road or just where the plat is? If the state hasn't used the 17 ft. there might be a thread of hope for the lot owner base on the language in the grant but not much. The only hope is that it can be proven that the ROW grant is an easement for road use and the road hasn't used it. We do have a court case where the road ROW easement as used controlled over the record ROW width. If I can find it I'll post it. Otherwise, you have a plat with a 17 ft. error in it that needs corrected. You either have a 50 ft ROW that is 33 or you have a lot dimension that is 17 ft long. Because you have a document that says the ROW is 50 AND the plat agrees that supports the lot dimension being platted 17 ft. longer than measured. The original subdivision surveyor either found or set?ÿ the pins in error (or fraud) at 33 and measured back what is on the plat to create the one acre lot. I'd be hard pressed not to use 50 ft. Setting pins at 33 when the documented ROW is more not not an unheard of mistake.?ÿ
The crux of the matter for me isn't so much the ROW's width. The existing road is within 33' of each side of the 1/16 line and the power poles run more or less down that 33' offset with an additional 10-15' of clearing for the power line. The issue for me is the location of the utility easement that the plat created on the outside of the 50', well 'back into the woods'. Typically when a utility goes to considerable expense to bury fiber or copper, client wants and is usually required to be permitted to be in that utility easement because, otherwise it is 'at risk'. Meaning that if the line is cut, damaged or needs to be moved as part of a road improvement project, the costs associated with that are on the utility whereas if the line is where it is permitted, those costs are on whoever damaged the line or is funding the capitol project. In the event the permit requires the client to be in that utility easement, a very significant swath of large mature trees will need to be cleared and many of the residents will lose the screening between them and the road, more often than not people will clear right up to that utility easement and after it's cleared, well now you have some rather unhappy folks who are going to point to their property pins and say that we are in error and have taken their land and trees and in my experience, I can reason with them all day until blue in the face and it will make no difference. The final call on what to do is above my pay grade. I can only give them an accurate assessment of where everything really is so an informed decision can be made. In the somewhat unlikely event that it leads to a law suit being filed, I'd prefer to be on the right side of the law. It's been my observation that no matter how many years I have of my getting it right, I will most likely only be remembered for that one I got wrong.?ÿ
I hear you. We all want to get it right however we do our best and a higher authority can either agree or disagree if it goes that way. A survey is a professional opinion as the first line of legal defense. An opinion is neither right or wrong. It's just how we see it.?ÿ
I hear you. We all want to get it right however we do our best and a higher authority can either agree or disagree if it goes that way. A survey is a professional opinion as the first line of legal defense. An opinion is neither right or wrong. It's just how we see it.?ÿ
I very much appreciate everyone taking the time to share their thoughts on this. What makes this forum such a valuable resource.
The existing road is within 33' of each side of the 1/16 line and the power poles run more or less down that 33' offset with an additional 10-15' of clearing for the power line... a very significant swath of large mature trees will need to be cleared and many of the residents will lose the screening between them and the road, more often than not people will clear right up to that utility easement and after it's cleared, well now you have some rather unhappy folks who are going to point to their property pins and say that we are in error and have taken their land and trees and in my experience, I can reason with them all day until blue in the face and it will make no difference. The final call on what to do is above my pay grade. I can only give them an accurate assessment of where everything really is so an informed decision can be made. In the somewhat unlikely event that it leads to a law suit being filed, I'd prefer to be on the right side of the law. It's been my observation that no matter how many years I have of my getting it right, I will most likely only be remembered for that one I got wrong.?ÿ
I was previously under the impression that the road was unopened and the tracts were not developed. If occupied, we must presume that the pins have been relied on. In this case there is certainly ambiguity, and it is not ambiguity that a surveyor can resolve. Ideally, some sort of friendly quiet title action that includes the dot, the owners, and the utility can resolve the issue and place the whole thing on solid ground.?ÿ
Not a lawyer, but it does seem as if someone's interests will be affected no matter what.
I agree that the excuse is not an excuse.?ÿ If the DOT is allowing those not in responsible charge to set boundary marks, then they should be held liable. The position of the monument is all that matters to me.
The survey crew I ran for DOT used contractors for setting monuments. They were not unsupervised.
We set four perpendicular offsets for the contractors to dig and place the monument. Then, the positions were checked with the survey instrument and a drill hole, lead plug and brass pin was made.
On some projects there were 200-300 monuments to set. Is anyone here prepared to dig holes for that many monuments? They were granite stone posts 0.5 feet square at the top and about 5 feet long.?ÿ
I've done it, those fricking things weigh 90lbs per. Although I haven't seen a 5' long one, ours were concrete square posts with 3" brass inserts, 3' long.
We hire out a guy to punch the holes with a skidsteer.?ÿ
It's good work, but it's backbreaking.?ÿ
I agree, all the DOT's I've worked with had PE's and LS's on staff, if they don't use them to supervise the setting of boundary monuments, that's not the landowners problem. We did the same thing you did, strap off the monument location and the holes got punched as we followed along.?ÿ
@northernsurveyor It is a general principle that boundary location is a question of fact, not law.?ÿ The task is to locate the boundary, not try the title.
You could find evidence superior to the concrete posts, in that case it may be reasonable to disregard the posts.?ÿ How the posts were set was completely in the control of the agency setting them so I do not see that as a good reason to disregard them later.?ÿ In the O.P.s case it appears that the monuments were set on a different line so they would not control the right-of-way boundary for that reason.
??[T]he question presented to the court in a boundary dispute is not that of making a resurvey but one of determining
as a question of fact from the preponderance of expert and nonexpert evidence (as in all other civil cases) the actual
location of the monuments, corners or lines as actually laid out on the ground by the official surveyor.? (Chandler v.
Hibberd (1958) 165 Cal.App.2d 39, 55, 332 P.2d 133.)
??The questions where the line run by a survey lies on the ground, and whether any particular tract is on one side or the other of
that line, are questions of fact. Russell v. Land??Grant Co., 158 U.S. 253, 259, 15 S.Ct. 827, 39 L.Ed. 971 [ (1895) ].? (U.S.
v. State Inv Co (1924) 264 U.S. 206, 211, 44 S.Ct. 289, 68 L.Ed. 639.)
The above cited in Bloxham v. Saldinger, 228 Cal.App.4th 729 (2014) at page 737.
When bedrock is encountered we are instructed by regulations to set a shorter monument in concrete. If you are setting an offset then it should be noted and made part of some publicly available record.?ÿ
As an example: If a building occupies the corner to be set then an offset monument is appropriate. However some record must be made that the corner set was an offset, otherwise the surveyor is not "protecting the public" and is creating a problem.
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Are there two discussions going on here? Why are we talking about DOT concrete posts when he found 1/2" rebar? Probably not set by state.?ÿ
Are there two discussions going on here? Why are we talking about DOT concrete posts when he found 1/2" rebar? Probably not set by state.?ÿ
Yes, there is. That tends to happen on page 4.
When certain people at MDOT are asked about court cases regarding how they hold dimensions over monuments they spit out the case of Whol vs. City of Missoula....I will let you all read it to gather your own opinion.?ÿ
Over the weekend I took some time to read Wohl v. City of Missoula. The opinion cites several out of state cases, which suggests a shortage of local cases to cite. So it isn't exactly long settled law. The court cites Brown's BC&LP (6th Edition) extensively and its ruling is completely consistent with the textbook.?ÿ So we can look there. As it happens, I am the proud owner of 4 of the 7 editions of that book, included the first, the most recent (7th), and the 6th. The relevant sections are almost unchanged from the beginning.?ÿ
In short, called for monuments are to be held. If called for monuments cannot be found, the RW gets the full quoted width and excess or deficiency goes into the lots and blocks.?ÿ
In Wohl the excess was more than 30 feet. In the OPs case it seems that the monuments he initially found were not called for.?ÿ ?ÿ?ÿ
I'm quite comfortable with holding called for right of way monuments over quoted width. Furthermore, I consider any good faith restoration of a called for monument to be as good as the original. Plus I'm willing to consider the work of any "first surveyor" filling in the unfinished work of a protracted plat to be "called-for" monuments. It is just that in right of way recoveries of my experience I've rarely found enough such monuments to clearly develop both sides of the road.?ÿ In most cases many of the monuments I find were set to subdivide parcels and not to mark right of way even though more or less effort to put monuments on the RW line may have been made.?ÿ In the cases of highways, in this state at least, rights of way takings are generally described by widths off a centerline with no reference to any monuments on the RW, although such monuments are commonly set.
?ÿMy point is that we can't just apply a simple one size fits all rule to this problem.?ÿ
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Finally figured out what was going on. In a nutshell the original subdivider owned both sides of the road, east and west of that 1/16th line. Whether the original surveyor intended to make the centerline the 1/16 or not, I'll never know. He didn't state specifically that it was the 1/16 line he intended to be the centerline of his ROW dedication on his plat. Why or how the original surveyor was unaware that his client had four years prior signed a public use easement to the State for highway purposes, 50' either side of the 1/16th line, again I will never know. But what I have are two centerlines for a 100' right of way, 17' apart and my utility easement is underneath the State's public use easement. I very nearly got this wrong and the original corners are correct, per the plat, just not in agreement with the state acquired right of way and I very narrowly avoided placing the platted utility easement 17' back onto private property based on the state's easement. Feels a little like I dodged a bullet. What a convoluted enigma shrouded business this can be at times where often things are not as they at first appear. What I have here, is 117' of right of way via two different instruments and a mild headache. Thank you and carry on.?ÿ?ÿ
