David,
Everyone has already lawyered up (didn't know that at the time of field work). As I've said if I was the first on site I'd have tried to get this settled without lawyers. All I could really do was locate the original pins, the new pins and the occupation lines and turn over my findings. At what point do people call a blunder a blunder? Would you move the line for 1', 5' or 50'? When I come across original pins that have not been disturbed but are that far off I start looking for where the problem started.
I don't want to sound like I have anything against the other two surveyors. I'd have done the same thing years ago. You do what your taught. I worked under/with 12 different surveyors at 3 differnt companies before going out on my own. It would have been treated the same way. Now that I know better it seems so clear. A couple of guys would have honored the pins because they're original. A couple would have honored the deed distances that's it. But no one would have tackled the discrepency head on. They'd have just let the chips fall where they may and told the client to hire an attorney.
J. Penry,
What do you honor? The stated distances or the called for monuments? Both appear in the deed.
I'd say overall I agree with Brian on this matter. I talked to one of the surveyors and now he agrees with me "on principal" but is standing be his survey. WTF. The other one isn't returning my calls.
Without some further evidence, that the OP contains an error, Brian Allen is spot on.
N
> Only a court of law can determine where the property line is. We can only report what we find, advise the owner and/or his representative of the case law we are aware of in this area, however, we can not go out and officially say this is or is not your property line.
I disagree. WHAT the boundary is, is a question of LAW; WHERE the boundary is, is a matter of FACT. The surveyor is the only person licensed to determine the location of property boundaries.
> There is a definite discrepancy by 200 feet between where the deed says the line is supposed to be and where the line was monumented? What caused this 200 foot discrepancy? Did the original surveyor have something incorrect in his field notes?
These are all questions to be asked and answered during the course of the surveyor's investigation.
Look so many others, I've always read the original corners govern. On the other hand, I've read the following added on to the end of the statement "except in cases of fraud and gross error". Does 200 feet count as gross error? I'd say yes.
I'm not normally the kind of surveyor to say "report the facts and let a judge settle it". But in this case, they have alreadys got lawyers involved. Thats about all you can do is let them fight it out in court.
To Brian:
Yep. This seems simple.
It will take lawyers to resolve, but hey, if surveyors could solve this sort of thing, we might make as much as lawyers. Cant have that!!!
The DEED CALL FOR MONUMENTS???
You just made it easy.
IF only every deed I staked called for a monument, and I found it. Monuments hold. The survey is what happens on the ground.
The title company has written a policy guaranteeing what the surveyor has shown on paper.
Since what is shown on paper differs from what is on the ground, the surveyor has erred.
The title company has to honor what it has written title to.
By my computations that would be 2.6± acres of land one land owner is missing and the neighbor has gained in that 200ft.
The title company does not guarantee in acres, it does however guarantee the 200ft that is missing because it has accepted the survey,
The bank wants to know where its investment is cause somebody's loan just lost 2.6 acres valued at 2,500± an acre.
Some places in Ohio, the minerals are getting to be worth plenty. They usually calculate leases by the titled acreage.
It isn't always about settling boundaries. When a landowner wants to make a claim, it is not always based upon what we the surveyor see as original or not.
Many claims are pure ego driven. In court, anyone can win with the proper legal approach to the appropriate situation.
> Look so many others, I've always read the original corners govern. On the other hand, I've read the following added on to the end of the statement "except in cases of fraud and gross error". Does 200 feet count as gross error? I'd say yes.
>
I dont think you can argue that when the boundaries were walked, and the monuments pointed out in the field, and called out in the deed.
Now...the second set of purchasers might have a claim against the people they purchased from, but again, the monuments are in the ground, called out, and there for anyone to find. I do not see any fraud. Am I wrong here?
> The title company has to honor what it has written title to.
Wouldn't that be to the called out monument?
> No, there is no problem with the title. The landowners have title to what the original surveyor marked on the ground, which is what the original grantor intended to sell, which is what the grantees intended to buy.
>
> These are the same principles as when the feds surveyed and marked sections on the ground, reported the survey in notes and on plats, the marked boundaries control. If a landowner patented an entire section of land, which was reported as being 5280' x 5280' (640 acres), are there title problems when the actual marked section only measures 5220' x 5220'? After all, the grantor represented a full 640 acres and the grantee intended to buy and actually paid for 640 acres, is the patentee entitled to a partial refund (or a title correction) when a resurvey shows he was shorted?
You are correct Brian. These GREEDY people are trying to take something that was never theirs.
> He walks the tracts with the people buying the land pointing out the pins, every body agrees to the land/price.
This is what they bought! Does not matter how many surveyors messed it up. Do not throw this farmer to the lawyers without a drawing that stands for what is right.
CHarmon, do you have an attorney you work with that you can recommend? Very important that he has the right one!
"Only a court of law can determine where the property line is. We can only report what we find, advise the owner and/or his representative of the case law we are aware of in this area, however, we can not go out and officially say this is or is not your property line."
I could not disagree more strongly. Tell the judge this and he'll throw you out of his courtroom! It's this lack of understanding that is killing our profession. Do you honestly believe that you are not the best qualified to determine the location of the property line?
Brian, I understand what you are saying, but I am not sure that comparing the position of original GLO monuments to later established land parcel monuments is a fair comparison in this instance. True, there may be an issue with the title if everyone involved thought the boundary was in a different location. However, the definition in the deed is what the owners in many instances think they purchase without ever seeing the actual monuments on the ground. What if neither party knew there were monuments on the ground and a surveyor was hired to define the boundary line and he surveyed it by deed placing monuments 200' away? We are probably talking more of an adverse possession issue here, but it sounds like neither party knew the correct location of the boundary line, so its really not hostile.
The DEED CALL FOR MONUMENTS???
I totally agree. If you find the monuments that are called for and have the original land owner that verifies that is where he/she wanted the new lots to end, then that is it. Hold the monuments called for in the deeds.
Scott
I usually recommend 2 guys if it looks like it can't be resolved amongst the adjoiners. This guys has hired a lawyer that I wouldn't recomment, nice guy but doesn't know squat about boundary law. He's this guys buddy though so he'll probably lose his case with his friend by his side.
J. Penry
Everbody knew where the pins were, all marked in one way other the other, mostly by post. The line had been honored for 23yrs by all parties involved. No questions until the new surveys showed up.
Situation: 23 yrs. ago small farm was split into 7 tracts with 20 acres being reserved for the owner behind the smaller tracts. Famous local surveyor (or infamous) does the original split, pins everything then the owners sells the tracts. He walks the tracts with the people buying the land pointing out the pins, every body agrees to the land/price.
23yrs later to of the smaller tract owners are in a p***ing match in regards to a common line. Both get surveyors on their tracts and by God both surveyors tell their clients that the original surveyor shorted them 200 feet. The lines were to be 1535 and were only 1335. They set their pins at 1535, mark the old pins and that's that. One of the owners goes out and plows up the area he was shorted.
If I'm understanding the OP, the owners of two of the small parcels were fighting about the line between them. As written, neither had a problem with the rear line (adjoining the 20 acre remainder) until their surveyors told them they were shorted 200' by the farmer.
Stephen,
You've got it exactly.
> > Only a court of law can determine where the property line is. We can only report what we find, advise the owner and/or his representative of the case law we are aware of in this area, however, we can not go out and officially say this is or is not your property line.
>
> I disagree. WHAT the boundary is, is a question of LAW; WHERE the boundary is, is a matter of FACT. The surveyor is the only person licensed to determine the location of property boundaries.
I agree (and don't). A court can, and often does, decide where a boundary line is in a discrepancy on that very subject. However, I agree that the surveyor needs to render a professional opinion. That's his job. Many times a surveyor might determine a boundary line location and it never goes to court. Also, anyone that says that only a court can determine a boundary line location, might consider that even a lower court might be overruled by a higher court. What about that? Maybe even a higher court agrees with the earlier surveyor's opinion. I agree that a surveyor does (or should) determine a boundary line location. If another surveyor, a court, or one of the owners disagrees, then we have a problem. Legal matter? even a lawyer doesn't determine a boundary line location. The only thing they do is argue the case on their client's behalf.
> Scott
>
> I usually recommend 2 guys if it looks like it can't be resolved amongst the adjoiners. This guys has hired a lawyer that I wouldn't recomment, nice guy but doesn't know squat about boundary law. He's this guys buddy though so he'll probably lose his case with his friend by his side.
You are in a tuff spot, have been there myself. I as nicely as I can tell my client they should at least talk to the lawyer I recommended. That my guy really knows land issues and the first visit is free. Then it is their hands and I can sleep at night.
Good Luck! Great post and discussions.
The DEED CALL FOR MONUMENTS???
I agree with you both. What is the problem? (okay, there is a problem since some other surveyor didn't accept the original monuments).
I have seen many a discussion on whether or not you accept an uncalled-for monument, or especially when the deed doesn't call for any monuments. But, I am surprised there is that much issue when the monuments are called for on the original deed and they still in the ground in their original location.
I say Mr. Harmon should show the property lines where they lay, and take a stand. That's his job and expertise as a land surveyor, in my opinion.
Could this be between Bremen and Logan . . . and, could the original survey have taken place about 35 years ago?
