I am surveying an 8.37 acre tract which is one of five tracts from a recorded subdivision done in 1958. This is in the country, no improvements on any of the tracts. The mother left this 33+/- acre piece to her five children and called out how each tract in her Will, dated in 1934. I cannot find a survey prior to her Will but each tract is described, not with bearing and distance but with general directions, corner descriptions, adjoiners names and which child gets which lot. She passed away in 1950. The property was surveyed in 1958 by a surveyor who I have followed several times and his work leaves alot to be desired. He is no longer living.
My problem is this, the 8.37 acre tract I am surveying does not match the description from the Will. What would hold in this situation?
The 1958 survey of the 8.37 acre tract does not match the Will descriptions I meant to say.
It seems to me that the original conveyance (the will) would hold. Look for her calls to monuments and adjoiners. Hopefully some good evidence can be found.
Of course, I can't address whether any of the heirs have relied on the other surveyor's subdivision. That puts a huge kink in the situation. It would be good to resolve all you can and get all the interested parties to agree to it. If they all were to agree with the other surveyor's subdivision work that would be a good solution as well.
It might be worth having a sit-down with all the interested parties and discuss solutions and possible costs associated with the different solutions. (?)
(The above is my progression of thought on the matter. I think you need to look at a lot of factors on this).
Does the 1958 survey match any physical evidence or occupation?
The intent of the parties is what is holds.
What is the extent of the discrepancy?
This particular tract is roughly 250' x 2000' with 250' fronting a road on one end. The road it fronts was relocated in the 60's. One long line runs with an adjoiner, (not part of subdivision) and was surveyed in the 90's. I will hold that. The other long line has no evidence other than it is to end in a hollow known as Ice Pond Hollow. One other kicker, my client appears to have logged his tract and the 8.21 acres tract beside it. Not my problem but will add to the drama.
Well, unless he's just bad bad bad wrong, I'd probably use what the surveyor in the 50's was working with. However, he is not the original surveyor. The will is and that is how the tract is described. If you find those points, then you've found the tract. If it's in conflict with the 58 survey, then it's in conflict.
If that's the case, then you need to then evaluate who, and for how long, the conflicting lines have been relied on and then consult your local statutes and laws on what to do next.
If all the kids are still living, and the entire 33 acres is jacked up, then you can get them all together, explain it, and fix it for their kids so it's not jacked up.
> However, he is not the original surveyor. The will is and that is how the tract is described.
How is the Will the original surveyor? It may be the original document but it is a far cry from an original survey. The original monuments hold regardless of error. The lines are as layed out and marked in the field.
That said, if there are discrepancies maybe get the entire family involved and get the lines resolved and surveyed and agreed upon.
> > However, he is not the original surveyor. The will is and that is how the tract is described.
>
> How is the Will the original surveyor? It may be the original document but it is a far cry from an original survey. The original monuments hold regardless of error. The lines are as layed out and marked in the field.
>
> That said, if there are discrepancies maybe get the entire family involved and get the lines resolved and surveyed and agreed upon.
Sorry, that dog won't hunt. The document defined the lines originally. Anyone who goes out there to monument it is simply retracing the document, and may or may not have gotten it right.
I would hold the original monuments from the Will. I assume you found some of them and that's how you know there is discrepancy. The description (from the Will) you post was pretty vague to determine a discrepancy without monuments.
No, that dog won't hunt unless you let him do what he was trained to do.
I'm working on a survey where an 80 acre parcel was under contact to be bought in two separate transactions back in the early 80's. The house and 4 acres was first transferred using a description they drew up themselves. About a year later the S1/2NW1/4, excepting the home 4 acres was transferred. It was a two part sale due to taxes and financing purposes only. The 4 acres were never marked on the ground.
Fast forward to last year, the old farmer deeded the S1/2NW1/4 excepting the 4 ac house parcel to his grandson (of course, that was the cheap way to do it). A few months ago the farmer died and the rest of the estate (worth millions, including the 4 acres) was split up between his many kids. Now the kids want to sell the house and asked me to survey the 4 acres. Well, the "record" lines run thru corrals, pastures, etc., and cut off an important access to the 76 acres. With all the tensions between the family members, what to do? Well, I certainly didn't show them the chaos that would happen if I just slapped the math on the ground, and said "the deed made me do it, now go call your lawyers".
In short, I explained to both parties that the boundaries of the 4 acres have never been established on the ground, and this would be the first establishment of the boundaries, therefore they need to agree on the location of the lines. The conveyance did not create the boundaries on the ground!!! That part was left undone 30 years ago and wasn't done when the grandson bought the 76 acres (I obtained this fact from the grandson BEFORE even going on site).
After thoroughly explaining this principle to them, and telling them I wasn't going to be the one creating the next fight for the family, they have now agreed on lines that will work for everyone. All that is left to do is to prepare the necessary documents and collect my fee (well, and to move on to several other parts of the large estate).
Years ago, before understanding these principles, I could have really screwed this up...........
Boundary established or not established. Critical determination when doing a survey!
Great job!
> With all the tensions between the family members, what to do? Well, I certainly didn't show them the chaos that would happen if I just slapped the math on the ground, and said "the deed made me do it, now go call your lawyers".
>
> In short, I explained to both parties that the boundaries of the 4 acres have never been established on the ground, and this would be the first establishment of the boundaries, therefore they need to agree on the location of the lines. The conveyance did not create the boundaries on the ground!!!
First statement: I never insinuated that one should slap the math on the ground and have them call the lawyers, like, ever, and stuff. If you can't find a problem, and a solution, then you don't need the title of "Professional" after your name.
Second Statement: You're wrong. The original document defines where the lines are on the ground. The fact that it's not where they thought it was is no great mystery or something we don't see on a regular basis in our profession.
Short answer, you are still not the original surveyor. Follow up short answer, you did what I would have done, except, I would have recommended that a correction document have been drawn up "redefining" the 4 acres that was described in error and effectively preserving the chain of title and showing how it was and what it should have been and have that filed, prior to the conveyance. Our final answers would have been the same, but mine would have "shown the math in the problem" instead of actually just being a member of the "agree team".
This is the one area where Kent and I are nearly in lock step.
> Boundary established or not established. Critical determination when doing a survey!
>
> Great job!
I don't disagree with the "agree team" that boundaries can be established and moved without any surveying at all. The issue is to correct the record, which the "agree team" typically agrees with. The issue that the rest of us have is "preserving the chain" along with "correcting the record". Sometimes, you need correction documents prior to conveyances, just so the dumbest title attorney, 100 years from now, can follow along.
>
> Short answer, you are still not the original surveyor.
Maybe things work differently in Texas but the mere conveyance of a deed does not make the executor of said deed the original surveyor. Tens of thousands of deeds in this area have been prepared without actual surveys and we run across them all the time. If you're the first surveyor to set the monuments YOU are the original surveyor.
Sure, there are exceptions and every situation is different but if the lines have never been ran they haven't been surveyed.
:good:
What would be done is correct the record to the established boundaries on the ground. Might be a boundary line adjustment, boundary line agreement, quit claim deeds. Brian stated all that was left was preparing the documents.
In this case there wasn't established boundaries, so they would be established by the same sort of documents where they where worked out between the parties. A survey alone can't do that, there needs to be recorded conveyance or boundary agreement documents.
> >
> > Short answer, you are still not the original surveyor.
>
> Maybe things work differently in Texas but the mere conveyance of a deed does not make the executor of said deed the original surveyor. Tens of thousands of deeds in this area have been prepared without actual surveys and we run across them all the time. If you're the first surveyor to set the monuments YOU are the original surveyor.
>
> Sure, there are exceptions and every situation is different but if the lines have never been ran they haven't been surveyed.
Sorry, but unless the document actually accompanies real monuments set on the ground as a result, then the first person to come along is simply doing a retracement. It's absolutely no different than going to a tract that WAS surveyed on the ground, and someone pulled all the corners.
It's a chicken and egg thing.
If the boundary has never been established how do you retrace what doesn't exist?
I'd say you are not a retracement surveyor, first surveyor or original surveyor. You are a professional there that can help them establish the boundaries and prepare the documentation for the landowners (both sides of boundary) to record to accomplish that. Anything else and as a surveyor you are going beyond your authority.
Of coarse you could go ahead and stake it on the ground. Then the establishment process would begin via common law. In Utah if the landowners treated your survey marks as a boundary for twenty years it would become the established boundary. Of coarse they could treat some other visible manifestation of the line as a boundary and that would establish the boundary also. It may have been established in this manor before the surveyor arrived. But, that's the law in Utah. Probably doesn't apply at all in Texas.
Best to get the landowners to solve the problem and establish the boundary via recorded documents and a filed survey referenced in. The worst thing that can happen is litigation via the courts.
> If the boundary has never been established how do you retrace what doesn't exist?
I tend to lean toward Kris's theory on this one. I would distinguish between "first surveyor" and "original surveyor". My distinction would be this:
If you went out and staked an original property that has never been established before and you wrote a description calling to your monuments, you would be the "original surveyor" and any blunder in the calls would generally default to the monuments in the field. Calls to monuments are a higher order of seniority than distance and bearing calls.
If a deed is run with no calls to monuments (or just several calls but not for the whole boundary), the bearings and distances would be senior to uncalled-for monuments. I would argue that the (uncalled-for) monuments you find out there in this circumstance should meet a more precise order of matching to the calls. The first grantee has some kind or reasonable expectation that the deed written is what s/he is being granted.
If you sold me (the first grantee) 10 acres, and "the first" surveyor set monuments per the deed that created a 5-acre tract, I would be saying no: Hey, I bought 10 acres, and there is nothing in your deed that infers anything different.
If you sold me (the first grantee) a tract of land that was from that tree over there, to that river, along the river and to that pincap and back to the tree, totalling 10 acres more or less, I am beholden to hold the calls to those monument over that estimated 10 acres.
That's how I read the priority of calls rule in a deed. (Sorry, kind of wordy and on second thought I think everyone probably understands this logic, but some might just disagree with it).