Since when did I say we were?
"After 80 years of monumentation and occupation you don’t think they own it?"
A portion from, "A Surveyor’s Responsibility and Possession Boundaries" by Knud E. Hermansen
Given these reasons and others, it is often hard for some surveyors to accept that a surveyor is without authority and may be liable for failing to disclose where the lines of occupation differ from the location of the boundary as established by the operative records. The surveyor must understand that in these cases the procedure and who applies the law is just as important as the facts and circumstances used in establishing the boundary. Courts often quote “where the boundaries are is a question of fact, what are the boundaries is a question of law.” It is the distinction between fact and law that requires lines of occupation be litigated in order to be recognized as the boundaries.3 The surveyor, as a fact finder, ought not to and can not decide questions of law. Stated in other words, a surveyor is well within their purview in sifting the facts and applying rules of construction to opine the record boundary is at a certain location and the occupation line at another location — but the surveyor should avoid deciding the ownership boundary is at the occupation boundary or that certain improvements across the building set-back line or boundary are there by parol license or may be maintained by some equitable doctrine.4 (It should be made clear that an attorney, well versed in the law, is in no better a position to decide on their own motion when the occupation lines are to be treated as the boundary.)
The full paper can be found here: https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://umaine.edu/svt/wp-content/uploads/sites/105/2012/11/PossBoundary.pdf&ved=2ahUKEwia1JPFh62IAxV1FlkFHassCZcQFnoECEIQAQ&usg=AOvVaw15Bz2mfqj8-PIi3va9zrGg
This is something that I have been stressing. We are the finders of facts and do not have the authority to decide the differences between tile and ownership lines. Several among us feel that it is their obligation to make legal calls.
We are the finders of facts, we note discrepancies observed and document them but are not empowered, by any means, to make a call on ownership. Some will argue that we are Quasi-Judicial representatives of the court and that is just wrong by every means.
"I always begin from the position that humans create boundaries then use maps as a proxy."
In fact, the Court has recognized for centuries that monuments were set first and the map is a record of what was done in the field! In the eyes of the law a map is a record of work performed, not a "plan" of what is meant to be done. This is why monuments control in almost all cases, not the map or plat.
This is why monuments control in almost all cases, not the map or plat.
I thought I read at one point that monuments carry more weight because it's less likely a landowner set a stone where they didn't intend for it to be than a scrivener making a mistake.
".... monuments carry more weight because it’s less likely a landowner set a stone where they didn’t intend for it to be than a scrivener making a mistake ...."
This is true - historically. But I wonder if it remains true in the setting of a modern tract subdivision. In my area the subdivision plats are very thoroughly checked for mathematical correctness by the county surveyor before recording. And county crews retie and check the monumentation set by the surveyor. So the plat dimensions are pretty much golden. But then the construction and landscaping bats the monuments all over the place. If I find a tract subdivision monument disagreeing with plat dimensions it is a sure bet that said monument is no longer in its original and undisturbed position.
It could be that the courts position on monuments in such circumstances may evolve, going forward. I'm not currently aware of any case law to this effect but I've got my eye out.
I agree with that guy. Even if I had the power to move boundaries around according to longstanding occupation I'd rather not do that anyway because all it would do is invite accusations of bias and lawsuits. I think we have it pretty good that neighbors usually sue each other first before they come after us.
If anybody is suing anybody over a boundary issue, rest assured that if you had anything to do with making the determination, you will be brought into the suit immediately.
As an expert witness maybe sure, but I'd rather be on that end of things than being the target of the suit.
There would likely be an expert witness but you would still be on the hook as a defendant to defend your work. Your insurance company may likely engage an expert witness but the plaintiff will as well.
So when a surveyor sees the fact pattern has been met and the boundary has been established in a certain place, it is your opinion he should not report so on his survey? I find no such instruction in the laws or rules governing our profession.
I'll say it again. Boundaries are established when the actions of the owners meet the required fact pattern. No Judge, no surveyor. Facts.
I see holding that we cannot report those facts as avoiding our responsibility. We have a further responsibility to bring the owners to the table and correct the record, but even failing that the facts rule and the boundary is fixed. The courts are only involved when one or more surveyors or owners fails.
I have been in modern subdivisions where everything hits a 10th or 2 and then I find a surveyor cap driven right next to another because why, the math wasn't perfect. And, on the other hand I have been in old subdivions where I'm finding corners and fence line that's OLD and doesn't hit by feet and i hold them. Every situation is unique and there is an infinite amount of local knowledge that comes into play. All the big questions we learned to ask in elementary school come into play; who, what, when, and where. Jurisprudence aside, we are investigators, and in the words of Adam-12, "Just the facts ma'am." I had a presenter at a local meeting present that unless you have the original tract boundary monuments of the subdivision you can't set any internal corners and said he would toss any corner monuments that dont fit those boundary monuments. I enjoy the varying opinions and methods presented in forums such as this.
My inexperienced first thought would be that we 'merely' provide evidence and don't change what's on the ground or on record unless we find ourselves in the rarish circumstance to do so (like resetting lost corners). My understanding of this without having read everything yet is that lot monument may have been set offline of the subdivision boundary it's bounded by. Unless otherwise found to conflict in title or record the lot corners would be junior to the sub bdy and 'may' be simultaneous with adjacent lots. So my thought would be that you keep the sub bdy as is and place the lot corners where they fall, calling them out as 'potentially offline' or some other probably better verbiage. I know with site features I've never called a building, fence or wall that encroaches an 'encroachment', but have shown them where they fall and labeled them as " potential encroachment of 0'-3.7' ", leaving it to others to distinguish it's true nature due to the possibility of unwritten rights n such.
In my area the subdivision plats are very thoroughly checked for mathematical correctness by the county surveyor before recording. And county crews retie and check the monumentation set by the surveyor.
Is this for real? The first part sure, but that your jurisdiction actually sends a crew (at public expense?!) to confirm monuments set are where the new record purports them to be? Asking genuinely, this sounds utopian. A subdivision I am in progress on has 150+ new monuments, what public entity has the resources to field check all that?
For several decades we've been mulling over the existence of various lines that could be present on a property survey. There was once only one concern and one line to determine and survey. The property line. The certification I am required to use states I made the property line determination in accordance with the laws of my state. If surveyors can't find the location of the property line the public has no need of their services. Judge Cooley said surveyors have a quasi judicial function. If that isn't true you would think a judge would be the last person to say it.
Norman - To the best of my knowledge County Surveyors perform none of those tasks in this State. Some cities require the submission of mathematical boundary closures for each lot, but I know for a fact that they are not really reviewed intently in several jurisdictions.
....the words of Adam-12, “Just the facts ma’am.”
A small correction: these immortal words were spoken by Joe Friday in Dragnet.
Thanks for the correction. . . 😀
Faulty research, LOL
It seems that we’ve established that holding the senior line and showing gaps and overlaps on dozens of abutting parcels has the potential to cloud the title of numerous parties thus providing the impetus for as many lawsuits as there are affected landowners. Conversely, holding the imprecisely placed junior monuments and corresponding occupations creates the potential for a lawsuit from the owner of the senior tract. We’ve fleshed out enough opposing points of view to comfortably assume that the courts may differ in their rulings. Likely the PLS who documents the stages of his decision making will not be thought grossly negligent for supporting either the senior or occupation lines. The argument is then less about junior and senior monuments and more about the limits of a PLSs responsibilities.
It seems like everyone except the PLS wants the PLS to solve boundary issues. Showing gaps and overlaps may be what we attorneys want us to do, but is it what we want to do? Professions evolve, and we need to push hard against limitations in the application of our hard-won knowledge. Would the public be worse off if it was unacceptable for a PLS to certify a plat showing a gap or overlap or any ambiguity regarding the boundary between two parcels?