I agree, a lot of it depends on how the lines are occupied. I'm always in favor of using monuments, but in this case, I think a lot of people are discounting what the deed says. I'm not saying the deed should govern, but it sure is an important thing to ignore.
AP could apply
In one SENSE. The grantor AP's against the Grantee. That is, the description granted more acres than the survey. So, IF they try to TAKE the extra acres, then the GRANTEE will say that it is HIS land. So, some of the ideas or principles that AP is built on could apply.
N
The biggest problem I see in the whole
situation is this:
"Nobody had contacted him to tell him their was a problem. I tell him that most surveyors in the area wouldn't, they'd leave it up to their clients to contact him and work it out."
If the other surveyors had contacted the adjoiner, they might have gotten the evidence you were presented by the farmer. It should not be a matter of contacting the neighbor only if there is a problem, but also before beginning work in order to collect all the information you possibly can. If they would choose to rely on that evidence is a different matter, but they would have at least been aware of it.
From your post, it appears that you have satisfied yourself that the marks found short of the deed call are the original monuments set by the original subdividing surveyor in their original location and that those marks were known to the original grantor and grantee. As a matter of fact, it seems you have done so by both evidence from the farmer and measurements to other markers. Can't ask for much more than that.
Since you are the most recent surveyor (after a couple of others created issues without trying to speak with everyone involved in their decisions), that makes it more difficult. But I would still go about this in the same manner as any other survey. Courthouse research, calls to inform all adjoiners I am surveying in the area and find out what they know, field work to measure everything (even the new stuff), drawing showing my opinion and any differences with what is out there, call adjoiners again and meet with them to explain the information about the original markers.
Even if the adjoiners did not already know about the 200 feet, when I spoke with them at finalizing the survey - they would know then. Do I tell them "you only own back to these old markers and no further"? No, because I do not have the authority to tell them what they do or do not own, but I would explain in detail WHY I was honoring the original markers although the measurements were not perfect. They always have the choice of deciding that they own the deed distance back. Heck, even if everything fit perfectly with measurements and record data, they could claim something other than what was presented. At that point it can only be settled by agreement of the neighbors or a judges decision.
I always find that these type of problems are more amiably resolved if the surveyor contacts everyone and is upfront about what he is doing and why. That may not be the case with everyone, but it has been for me in every case of conflicting information I have been involved in.
Based on the original poster's statements:
- "My client tells me that the pins were placed where he told the surveyor to put them"
- "He wanted them there because of some existing features that made farming past the point impractical."
- "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."
- "What do you honor? The stated distances or the called for monuments? Both appear in the deed."
- "Everybody 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."
- "Farmer goes out to mow his CAUV land and sh*ts his pants"
You have the original owner's statement as to where the pins were set and why they were set there. The purchasers of the tracts are shown the corners and boundaries of the land they are purchasing. The deed is filed calling for the pins shown by the seller. For 23 years everyone accepts this as the boundary, the owner of the 20 acre tract even seems to be mowing his side of the accepted line.
You have the intent of the seller, the acceptance of the buyer, notice of the pins in the deeds, the acceptance of 23 years of the line and possibly even the use of the land up to the accepted line. The only ambiguity is the distance stated in the deed.
I don't see any evidence to disregard a called for monument in favor of a deed distance.
Interesting scenario and extremely interesting replies. I took a quick talley and it seems that there are 12 who feel that there is no discrepancy, that the course of action to take is clear, hold the original monuments, and there are 9 who feel that there is a big problem, hold the deed, call a lawyer or title company, etc.
Brian Allen most strongly articulated the position backed up my the vast majority of case law, which is what we should be using as our guiding lights. As Brian said, referring to the walking of the bounds by the new co-terminous owners and the viewing of the original monuments, "it doesn't get any plainer than this."
As JB Stahl alluded to in a post a couple of days back, anyone who doesn't see it this way has forgotten to take up one of the two roles possible for a property boundary land surveyor, that of the original surveyor or that of the retraceing surveyor. In this case the original surveyor did his work many years ago. That only leaves one option.
I love it as much as the next guy when the numbers in a deed description match closely to what is found out on the ground. But there is no legal requirement for it to be that way, and I often wonder why do so many surveyors feel that there is. What is the source of this misconception?
12 to 9. Not tood bad. In the 15 odd years that I've been coming to this board a lot has changed. I think that back when I started coming (shortly after it's birth), the majority would have gone the other way. So, things are improving, I guess.
Stephen
Stephen
Thanks Stephen, years ago I would have argued the other way. Why? Because, like many others - that is what I was taught!!
You have brought up an issue that absolutely needs to be discussed, maybe another thread?
> What is the source of this misconception?
I would say it is because for many decades, as technology advanced, surveyors/engineers focused almost exclusively on measurements. I can remember way back to my college days, I took the "Introduction to Surveying" course. Yep, it was offered in - you guessed it - the college of engineering. What did it stress? Correctamundo - math and formulas. What else would you find in the college of engineering?
Fast forward to studying for the fundamentals of surveying test - yepper, once again nearly exclusively math and formulas. A few years later I took the PS test. It wasn't nearly as heavy with math and formulas, but was extremely light on boundary law. The majority of the "legal" concepts that was covered was proportioning as I remember. While the tests and what they emphasize today may be slightly different, I doubt they are 80% boundary law and 20% math/proportions/formulas.
Take a look at the current AS/BS programs in surveying. What are they called? Not land boundary majors, that is for sure. Check the classes offered, one program I know of has very few credits in boundary law and descriptions.
Probably one of the biggest causes of where we are today is our licensing boards. How many state boards are soley filled with Land Surveyors? Very dang few. Our board, by statute, has four engineers and one surveyor. Sure one of the engineers in a dual license, but that is still a far cry from where we need to be. From my research, in Idaho, Land Surveyors are the ONLY profession that is overseen by a board that is comprised mostly of persons who do not hold a license to practice the profession. What is even more shocking (sad) is that our state society has absolutely no say on up to four of the five names that get submitted to our Governor for appointment. I'd bet a large portion of the other 49 states are similar to ours. Until we are able and willing to start having a say in what the licensing requirements are, what is being taught in the colleges and universities, and how our profession is overseen, this travesty will continue. However, the bright spot is that online forums such as this great site have saved many a landowner from being harmed. For that I am thankful.
Stephen
I've said for years that the Land Surveyors need to be a separate board with those appointed being land surveyors and not a bunch of other disciplines making the rules and governing the profession. I think that there are only two states that are that way, but I have lost track.
Does the acreage match the plat or does the acreage match the legal description?
In instances like this, I often have certain personal situations come to mind from many years of experience. I am remembering a time when a surveyor was setting a back corner from a distant traverse point. In figuring the deflection angle to turn, he got his bearing mixed up from S xx° W to S xx° E. This then doubled the angle he turned to set the corner. It went unnoticed for years. Did that wrongly set monument establish the boundary despite the deed and the intent?
> Based on the original poster's statements:
>
>
>
- >
- "My client tells me that the pins were placed where he told the surveyor to put them"
> - "He wanted them there because of some existing features that made farming past the point impractical."
> - "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."
> - "What do you honor? The stated distances or the called for monuments? Both appear in the deed."
> - "Everybody 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."
> - "Farmer goes out to mow his CAUV land and sh*ts his pants"
>
>
> You have the original owner's statement as to where the pins were set and why they were set there. The purchasers of the tracts are shown the corners and boundaries of the land they are purchasing. The deed is filed calling for the pins shown by the seller. For 23 years everyone accepts this as the boundary, the owner of the 20 acre tract even seems to be mowing his side of the accepted line.
>
> You have the intent of the seller, the acceptance of the buyer, notice of the pins in the deeds, the acceptance of 23 years of the line and possibly even the use of the land up to the accepted line. The only ambiguity is the distance stated in the deed.
>
> I don't see any evidence to disregard a called for monument in favor of a deed distance.
:good: :good: :good: :good:
You summed it up very well. To me, the monuments control. Slam dunk.
> ...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.
The way I see it, they intended the deed to accurately describe what they placed on the ground, not the other way around. That view disagrees with over 200 years of case law.
As for the negligence comments, something needs to be done about these jackleg surveyors (I use the term surveyor loosely here) causing problems where there was none previously. Maybe if some boards jerked some of these guys' licenses, or at least reprimanded them in some way, or better yet, if the affected landowners sued them, others would wise up and at least read a court case or two in their state.
How many surveyors do you know who can't even recite one decision issued by the courts in their state in the last 10 years?
> I agree, a lot of it depends on how the lines are occupied. I'm always in favor of using monuments, but in this case, I think a lot of people are discounting what the deed says. I'm not saying the deed should govern, but it sure is an important thing to ignore.
The deed calls to the pins from what I read. If the deed rules the pins rule. If the deed didn't call to the pins, that would be a deed vs. (uncalled for) pins issue.
The deed alone would sastisfy the pin locations, coupled with whatever testimony that the grantor walked the property and expressed where he wanted the p0ins, and that the grantees also walked the property. I can't see a different solution.
> The way I see it, they intended the deed to accurately describe what they placed on the ground, not the other way around. That view disagrees with over 200 years of case law.
The Contrary from Section 90 of Skelton:
“The mere fact that lines and corners are known to have been run and marked or are found where the courses and distances of a deed run is not conclusive that they are the lines and courses of the land referred to in the deed, and where there is no approximation to the calls in the deed, they may be disregarded.” (Western Min. Mfg. Co. v. Peyton Cannel Coal Co., 8 W. Va. 406)
> How many surveyors do you know who can't even recite one decision issued by the courts in their state in the last 10 years?
None.
In that particular case, if I am not mistaken, the deed was reformed to accurately reflect the agreement of the parties. The evidence presented in the OP supports the reformation of the deed to reflect what they all agreed was the intent.
Stephen...
"I love it as much as the next guy when the numbers in a deed description match closely to what is found out on the ground. But there is no legal requirement for it to be that way, and I often wonder why do so many surveyors feel that there is. What is the source of this misconception?"
Because so many State Boards have granted licenses to measuring technicians who know little if anything about boundary law.
I don't know if this particular thread can be used as an indicator that there is any change in the usual opinions expressed.
The situation described by the original poster is much different than what is often presented.
Usually what starts the whole "scrap metal / sacred monument" debate is a post about an iron object found with no reliance, local knowledge of, or call for the object that falls in the vicinity (relative term) of where a corner is supposed to fall.
This particular case, as presented, is much more cut and dry than what is usually debated for weeks.
> Does the acreage match the plat or does the acreage match the legal description?
>
Acreage is very small potatoes in the line of evidence that points to the boundary line. In fact it usually is last in line.
> In instances like this, I often have certain personal situations come to mind from many years of experience. I am remembering a time when a surveyor was setting a back corner from a distant traverse point. In figuring the deflection angle to turn, he got his bearing mixed up from S xx° W to S xx° E. This then doubled the angle he turned to set the corner. It went unnoticed for years. Did that wrongly set monument establish the boundary despite the deed and the intent?
What about the acceptance and reliance of the landowers? How long did the error go "un-noticed"? What are the laws in your state, etc. etc. etc.? When you change the facts, the solution will probably change.
If the parties had marked it out themselves, then measured it themselves or asked the surveyor to merely locate and describe the stakes they set, then I might agree. Does not sound like that is what happened in this case.
Surveyors are tasked with forming a professional opinion and communicating it to the client. Differences of opinion are okay as long as they are based on the level of research and analysis commonly used by others in the profession.
There is an existing problem when it is discovered that a subdivision performed in the early 1990's has a difference between record and measured of 200 feet. It would be negligent not to show that discrepancy in some way. It is not negligent to form an opinion on which line to hold. I personally would not simply stake the line and leave, but I'm not sure we even have enough evidence to say that is what happened. And, I'm not saying I would go with the deed distance in this case, only that it's possible that is the correct decision.
There is no binding agreement for acquiesence in this case because both parties apparently thought the staked line was the true line. There's no AP for the same reason, and arguments that flow from those facts.
There may well be equitable or legal relief through the contract though. Could be by way of interpretation of intent, or estoppel, or specific performance, or abatement. Reformation would require agreement that the contract is wrong and that obviously is not the case in the original post.
Just as there's more to it than deed plots, there's also more to it than original monuments. Every time a decision comes down from the courts, that goes against the rules of construction, surveyors gasp with horror and claim 100's of years of precendent have just been overturned. Nothing could be further from the truth. The courts have regularly stated those rules of evidence are merely guides and can and should be strayed from when the evidence indicates intent would not be found by applying them. Except of course in Maine, where surveyors are required to follow them but courts are not:)
If I recall, there is also some good treatment of this topic (the surveyor part, interpretation of intent against the rules of construction) in "interpreting land records" by Donald Wilson?.
I notice the same resistance to move off an original monument as there is to move off a deed recital. I think surveyors naturally want a solid rule to follow and defend because it lends predictability and safety to decisions. But, the reality to me, is if we were ever made to follow such a system it would eliminate the need for the surveyor and would lead to injustice for landowners. All situations are unique and need analysis and opinion based on the facts and law available at the time. That's why surveyors get the big bucks and are all rich:)
> The Contrary from Section 90 of Skelton:
>
> “The mere fact that lines and corners are known to have been run and marked or are found where the courses and distances of a deed run is not conclusive that they are the lines and courses of the land referred to in the deed, and where there is no approximation to the calls in the deed, they may be disregarded.” (Western Min. Mfg. Co. v. Peyton Cannel Coal Co., 8 W. Va. 406)
>
I'm not reading this as contrary, apparently in this case, they threw out BOTH the lines run and marked AND the courses and distances in the deed calls. Again, it depends on the facts.
As for how many surveyors can name a recent court decision, how many know where to find recent court decisions??
I've had one of these that the original monument was close to 200ft off on a 28ac tract. What convinced me that it was the original monument was not the monument itself.
There was supporting evidence to the monument in the way of two witness trees to the monument that were there.
Also to support the monument were the three hacked and blazed trees leading to and from the monument from three different directions.
"Acreage is very small potatoes in the line of evidence that points to the boundary line. In fact it usually is last in line."
You missed my point. The acreage might very well be the main factor that determines whether there was an error made on the ground or if there was an error in the deed. I don't doubt your arguments, but situations like this generally do not have a "one size fits all" solution. As a surveyor you should report the facts and should probably leave the solution to someone else in this particular instance.
