With the markers called for in the deed and found on the ground then the mistake is the distance in the deed. The parcels are bounded by the monuments called for. Also for at least 20 years the boundaries relied upon are the markers in the ground. You could go to extrinsic evidence outside the deed to show that.
It might help if the deed where posted for a more close inspection but either way I'd say the markers probably hold the boundary line considering the evidence reported in the OP.
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.
That walk around and being shown the locations of the pins, which are original and trumps it all, to much time has passed to correct any error.
It is the actions of the owners over time that changes the surveyors opinion to the ownership boundary when there was doubt prior to the survey. The owners, not the surveyor choose to rely on set monuments or not, they have every right to reject the surveyors opinion.
jud
If the farmer walked the site with the buyers and pointed out the pins, and the farmer said that is what you are buying, then that is what they bought (up to the limit of what he could sell). Doesn't matter if it the famous 0.04', or a foot, or ten feet, or 200 feet. They had a meeting of the minds and that is it.
It's time to include a report with your drawing. State what you did, and in detail what you are holding (the original called for monuments) and why. Include references to relevant case law to point the attorney(s) in the right direction. Do not assume that any of the attorneys involved have any knowledge or understanding of boundary law.
My experience has been that an attorney with no knowledge of boundary law will just view it as contract law. With the deed being the contract, and argue that the contract calls for 1535 feet, going against over 200 years of common law.
The surveying is the easy part. Now is the hard part, educating everyone involved (attorneys, owners & the other surveyors) in the correct application of the the law to determine the location of a boundary on the ground.
I think there's a good chance a court would grant the 200 missing feet. Given that both parties thought the original surveyor was doing one thing, and in fact did another. If the original grantor still owns the farm, they stand to make the contract whole by way of estoppel. So, I wouldn't criticize the current surveyors too much. It is really the original surveyors fault.
> This is not a title problem. The questions is what was sold by the grantor to the grantees.
Nope. There is no question that the grantor sold what was monumented by the original surveyor and shown to the grantees, which agreed to what was sold/purchased. The only questions that remain are 1) who is gonna pay for the surveyor created problem (unfortunately, probably the poor landowners), and 2) who is gonna repair the damage to the surveying profession as a whole?
According to the evidence presented, the only error is the distance listed in the deed. The original grantor testified that the monuments are where he told the original surveyor to place them and where the grantees were shown when they purchased the property. The grantee didn't even exercise any control over that 200' strip until after the expert measurement technician recently placed pins where there were none before.
One thing we don't know is the original smaller lot owners the current owners? How do we know who walked the lot lines when? Is it hearsay?
> The title company has written a policy guaranteeing what the surveyor has shown on paper.
>
Only if the an extended policy was written.
> Since what is shown on paper differs from what is on the ground, the surveyor has erred.
>
There is no error in the original survey if accepted and relied upon by the landowners.
> 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,
Better check and see what was insured. The title co. accepted the survey? I doubt they did without an extended policy.
>
> The bank wants to know where its investment is cause somebody's loan just lost 2.6 acres valued at 2,500± an acre.
>
The bank's investment (collateral) is the same as what the landowners own = what was staked, accepted, and relied upon. If the bank was that worried, it would/should have required a current, properly performed survey before loaning the money.
> Some places in Ohio, the minerals are getting to be worth plenty. They usually calculate leases by the titled acreage.
>
The value of the land doesn't (at least as far as I have found) change property boundary law.
> 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.
>
Isn't that what a surveyors job is, is to find the boundaries?
> Many claims are pure ego driven. In court, anyone can win with the proper legal approach to the appropriate situation.
Generally, the one who wins is the one with the best evidence arguing the correct legal doctrines (got to have a properly trained lawyer).
> One thing we don't know is the original smaller lot owners the current owners? How do we know who walked the lot lines when? Is it hearsay?
I'm not sure if/why that matters too much. (Of course responses would be presuming all the stated facts are true). But regardless, if an original owner walked the property and were shown what they were buying and they accepted it as their property, then turned around and sold it, they can't really sell more than they owned, can they?
Also, if it is only hearsay, and the actual walking of the property lines didn't happen, I would still sway toward the original, called-for monuments if they are in their original position. The homeowners had plenty of years to walk and look at the properties.
> One thing we don't know is the original smaller lot owners the current owners? How do we know who walked the lot lines when? Is it hearsay?
When a person buys a piece of property, the grantor is presumed to know the boundaries of what he is selling, likewise, the grantee is presumed to know the boundaries of what he is buying (contract law ie, a meeting of the minds). Subsequent buyers are bound by the actions of those that went before them.
One would have to find enough evidence to overcome the presumptions.
"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 absolutely agree with you Jim on this and the statement above is as stupid as they get.
Whoever believes that, should not be on the ground surveying.....period.
Keith
In going through most of the posts (fairly quickly), I don't recall of seeing the term Adverse Possession being tossed out. Or could it even apply in this case?
OK, let's do it Q&A style
Who made a mistake? The Surveyor?
Who else made mistakes? The Grantor, and the grantee, based on the surveyor's error.
Who was hurt by the mistake? The grantee. The grantor was PAID for X acres, but sold only X acres. The Grantee BOUGHT x acres, but paid for X acres.
So, who should be sued?
The surveyor. But he's dead. So what? Did he leave an estate in the billions?
No, they had to borrow money, from X relative to bury him.
So, who we gonna chew up, to make it right? Well, the Grantor could refund some cash, to the Grantee. OR, he could fix the acres, as in GIVE the acres to the grantee. Now, the Grantee will feel good.
Well, Who is gonna lose this one? the grantees, and grantors.
Who is gonna win? The lawyers!
Ok, drive on, to the next crash!
🙂
N
The surveyors opinion of where he believes the ownership line is only an opinion based on knowledge and experience. The surveyor cannot enforce his opinion on anyone but himself, he does not own the land. The owners may or may not accept the line as monumented by the surveyor and life goes on for all. The acceptance or rejection of the line as surveyed by a surveyor is what gives that line legal standing or it becomes just another pin cushion waiting for an agreement or a court ruling. Surveyors do not pick and choose ownership lines, directly they provide evidence and often a record of where the surveyor believes the supporting evidence places the line but it means nothing and is not binding on anyone, it is the actions of the owners following the completion of the survey that determines the standing of the results of the survey. Original surveys have status at the completion of the work, retracements require acceptance by those with the right to do so.
jud
OK, let's do it Q&A style
Don't believe the original surveyor made a mistake, the monumented line accomplished what the grantor intended to do who inspected the monuments as set, then later walked the ground with the buyer and pointed out the monuments, also it was said that the locations were clearly visible because of a post accessory which made the location visible from a distance. A mistake on the description, has the chain of title been traced bask the 23 years? No one has said what the result is when all those distanced add up to along the total length of the line, that would be the first thing I checked.
jud
No AP doesn't apply. The boundary line is where it was originally staked and agreed upon by the grantor & grantees. Title and location are in harmony, there are no encroachments/gaps/overlaps/hostile possession, etc., the only thing out of harmony is the retracing surveyor's expectation of precision, which admittedly is rather large in this case, however the law is the law based on the evidence found.
jud
Again, a great post,
However, Courts and Lawyers have no authority to be on the ground to determine boundaries. That is an exclusive right of land surveyors and are licensed to do that.
I get really tired of reading statements about all we can do is show the landowner where everything is and let the court decide. Bogus!
What do you think the surveyor was hired to do?
Every move you or I make is subject to a court hearing, if somebody chooses to go that route. Same with a surveyor, all judgement decisions are subject to a court hearing.
Do you think a land owner who hired a land surveyor and paying him big bucks is satisfied with an answer......well gee whiz, here is one monument, there is another monument and over there is a fence corner and the center of the road is about there....but you have to hire a lawyer to tell you which is the real corner.
That lawyer does not have any authority to do that.
Keith
> I've run across this situation before and know what I'm going to do ....
Are the pins called for in the deeds? That would make it a slam dunk. Without that all you have is the farmers word that all these other things happened - walk the lines, point out corners, etc. Have the (old) monumented lines been well occupied? That would make a practical location.
Actually there is no error mentioned at all.
The Farmer actually testified to a fact that be in his/her interest at this point? I'm pretty sure that's how most memories are going to work out, one way or another.
Fact is: Farmer signed name to deed and by doing so granted a certain parcel. If there was a problem that resulted in the grantee not getting all of it, then the grantor will be made to fulfill the bargain if possible.
Farmer still owns the original parcel. I'm betting the judge puts the "property" line where the deed distance and the new surveys show it.
Monuments control when they are the best evidence of the intent of the contract. Here, the parties had no way of knowing the monuments were not where the deed said they were. The parties intended the conveyance to match the deed description and thought that the monuments were placed accordingly. Because the monuments were mistakenly put elsewhere, they are not a controlling factor in determining the intent of the parties.
There's exceptions to most rules, and it looks to me like one them in these circumstances. No way to know really without being the one looking at all the evidence. But, lots of comments about negligence, so I'm just throwing real possibilities out there. I think surveyors are too quick to judge others in the ranks in a bad way. And that reflects poorly on us.
