Dave Karoly, post: 368173, member: 94 wrote: I figured out what happened in the Aborigine Case. I have the Surveys but they are TIFF files so can't upload them.
You can convert them to PDFs and export details of them as JPG files, though.
eapls2708, post: 368176, member: 589 wrote: Kent, you've brought up some good situations where a "first" survey would not hold, but as I read the situations you describe, there is some other basic problem that is of equal or greater importance. The surveyor didn't have the authority to establish the boundary; The surveyor didn't tie his survey to the controlling corners of the parent parcel; there was gross error involved; or the land on each side of the line was occupied and one of the landowners had some reason to believe the line as marked was incorrect - no mutual acceptance.
It's generally true that the principles of equity won't be expected to hold if the result is obviously inequitable. In Dave's case, the result was an error of 100 ft. in a distance of nominally 1320 ft., if I understood what he described. Twenty years later, the question would appear to be one of balancing of equities.
The "first" survey to run the division line should have been corrigible by either of the parties to the original transaction. The fact that a line had been incorrectly run didn't determine anything. However, as time passes and others take title to land that has a recognized boundary, there is equity in "caveat emptor".
Possibly it's different in TX, but I doubt it. Conveyance instruments create parcels, but the act of marking the intended limits of the parcels on the ground for the first time by someone with authority to do so creates the boundaries.
"Authority" would to me mean someone acting for the adjoining landowners and authorized by them to run their common line, not just some surveyor who happened to be driving past and decided to set a few stakes on a line.
There is an element of acquiescence, or more accurately, acquiescence in the boundaries marked is an element of every established boundary, original, "first", or otherwise.
Yes, but the test would be whether the line as run can be corrected or not. Upon discovery, the original owners should have been able to have the erroneous line corrected. It's not as if either would be bound simply because some surveyor had run a line. However, the equities that flow from passage of time and mutual reliance are in a different category than some surveyor merely running a line.
Many, if not most of the early surveyors were either ones who had worked on the GLO surveys of the mid & late 1800s, or were the landowners (entrymen) themselves. There are numerous instances where discrepancies between the GLO record and the actual locations of the established corners are well in excess of 100'. When Congress passed the law in 1805 (or was it 1803?) that declared that the corners exist where they were set and are legally without error in location, they were merely codifying a principle that was already recognized in common law. I don't know of any states that have a parallel statute for corners established by local surveyors, but most, if not all jurisdictions in the US recognize establishment doctrines to one extent or another.
The courts have long recognized measurements as being among the poorest or least reliable elements of descriptions because experience shows that even skilled surveyors cannot always reliably reproduce the measurements of an earlier skilled surveyor. Moreover, they have long recognized that it was often not skilled surveyors making some or all of the measurements. So they typically give pretty wide latitude where differences can be attributed to differences in measurement.
In Aborigine, the parties mutually established or caused the establishment of their common boundary. There was approximately 100' of error, but the results appeared reasonable to both parties, so they accepted the line. The magnitude of the measurement errors wasn't discovered until sometime later, but it hadn't been enough to alert or alarm the original parties and they each executed actions of ownership in reliance on the marked line. Their actions subsequent to the conveyances by which they took possession testified to their interpretation of the conveyances and the boundary intended. Because of those facts, approximately half was close enough to half. Given the history of typical discrepancies in the PLSS system, 100 feet did not and in similar circumstances may still not constitute gross error.
Any time a parcel is described as a portion of a larger division, by distance, or by quantity, the boundary locations must be determined by measurement and/or calculations based on those measurements. Measurements are recognized as being unreliable, but that works against the recognition of the importance of stability of boundaries. Boundary stability has been deemed of higher importance, so courts are very hesitant to reject established boundaries and must have a better reason, or more reasons than that the original line was placed according to poor measurements. When those other reasons cannot be found, poorly measured boundaries, even if first placed on the ground decades after the first conveyance, will stand with the same dignity as if it had been made prior to the conveyance and the conveyance called for the survey.
Dave's map references are attached.
JBrinkworth,
The basic principles that came out of the Rivers case that are often cited are sound, but some of the others have problems that are contradictory to other statute and/or case law.
These principles are (mostly) sound:
In working for a client, a surveyor basically performs two distinctly different roles or functions: First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the "original surveyor" and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line.
Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he "traces the footsteps" of the "original surveyor" in locating existing boundaries. Correctly stated, this is a "retracement" survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a "following" or "tracing" surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it.
The only problem I have here is where the court says "Correctly stated, this is a "retracement" survey, not a resurvey". In fact, in a retracement survey, no corners are re-established, it is only for finding the evidence of the original survey that still exists. In a dependent resurvey, the surveyor uses that evidence to re-establish missing corners to best harmonize with the remaining evidence of the original survey. But that's more a matter of semantics here than it is material.
The problem comes later when the court conflates the line established by Moorhead for Rizzo (described as 400' South of and Parallel with the North Section line) with the retracement of the original government survey. We aren't told how, or by what evidence the BLM re-established the original corners along the North line of the section. I've found by following many BLM surveys from around that time period that the cadastral surveyors tended to re-establish corner positions only from the GLO record, sometimes recreating those corner positions on the thinnest and highly questionable evidence while summarily rejecting monuments set by local surveyors without any meaningful investigation as to how those local surveyors had determined the positions.
The court likens a deed to a contract but then goes on to opine that the intentions or beliefs of one party to that contract (the grantee) don't matter at all. Well, an absolutely essential part of a contract is a concept known as "meeting of the minds", meaning that for the contract to be valid, both parties must have had the same or nearly the same understandings of the terms and especially of the intent where the subject matter and the consideration are concerned. Unless the contrary can be shown, the grantor is presumed to have been in control of preparing the deed, so where there is some ambiguity that can't be clarified by relevant evidence, it is normally resolved in favor of the grantee. But the grantee is not totally without control. To complete the transaction, the grantee must accept the deed and take possession of the land. You may have seen particular transactions, typical in settlements but sometimes used in other transactions where a check is provided with a statement that cashing the check indicates the recipient agrees that the terms of the agreement have been satisfied. Or, a contract to deliver goods where the invoice or receiving slip indicates that by signing and by receiving delivery of the goods, they agree that the agreement to buy/sell the goods has been satisfactorily concluded. Those statements imply a duty of the recipient to exercise due care to inspect the amount of money or the goods received before officially taking possession. To a certain extent, that duty of reasonable inspection is incumbent upon the grantee in a land conveyance.
When it comes down to a question of stated intent, the grantor gets the benefit of the interpretation being limited to the terms in the deed. When it comes to the interpretation of ambiguous terms in the deed, the grantee gets the benefit of interpretation where other evidence doesn't clarify the terms.
The court also, after having described the two distinct roles of the surveyor so well earlier, conflates Moorhead's establishment (at Rizzo's direction) of the subdivision lines interior to Rizzo's parcel, a function that by the court's own definition is clearly that of "original" surveyor, with his retracement of the North line of the section.
The trial court tried to split the difference, which may have seemed equitable to them but has no basis in law. They were obviously confused by the expert testimony. A lot of it most likely seemed to make sense when listening to an explanation of particular principles on their own, and was certainly delivered in a manner that would have sounded authoritative, but was also most likely contradictory when one considered the interpretation of various principles in context with each other as applied to the facts of the case. The Appellate Court seemed to have been only slightly less confused, but still confused nonetheless.
By the definitions of the two roles of the surveyor and by the fact that Rizzo owned the full parcel when the line at question, along with other lines to be used in subdividing his property were established by Moorehead at Rizzo's request, they clearly should have held the position of line established by Moorehead between what was, at the time of the controversy the Rivers/Lozeau line. Had they been ruling on the Lozeau North line, assuming that the BLM re-established the line on adequate evidence, the court should have held the BLM line, with the end result being that Lozeau would have ended up with exactly what they originally thought was the extent of their parcel on the south, adjoining rivers, but would have lost 29' on the North, adjoining the USFS.
But then again, that case does not articulate the "first" surveyor doctrine either by name or by description of the law and circumstances. The conveyance from Rizzo to Brown occurred after Rizzo had Moorhead perform the survey, and Rizzo had shown Brown the Moorehead monuments, representing them as the corners of the described property. By both the Court's and by Robillard's definition in EPBL, the Moorehead survey does not fit the definition of a "first" survey as it did not occur after the conveyance to Brown.
A lot of good discussion from all of you in this thread, but I'm still at the point where I'm not aware of any case that supports the so-called "first" surveyor doctrine. It appears to me that it is a concept invented by Mr. Robillard reflecting the way he believes the law should exist and be interpreted rather than how it does exist and is interpreted.
Kent McMillan, post: 368178, member: 3 wrote: "Authority" would to me mean someone acting for the adjoining landowners and authorized by them to run their common line, not just some surveyor who happened to be driving past and decided to set a few stakes on a line.
Yes, that's an essential element to the establishment of a boundary. That premise should be part of the context for this entire discussion.
Kent McMillan, post: 368178, member: 3 wrote: Yes, but the test would be whether the line as run can be corrected or not. Upon discovery, the original owners should have been able to have the erroneous line corrected. It's not as if either would be bound simply because some surveyor had run a line. However, the equities that flow from passage of time and mutual reliance are in a different category than some surveyor merely running a line.
The landowners who first established or caused the establishment of the common boundary could later mutually reject it for the purpose of more accurately establishing it. If successor landowners (not the original parties) mutually rejected the previously established line in order to more accurately establish the line, it would be a Lot Line Adjustment as they each presumably would have purchased and took possession of the property by the representation of the marked line being the true property line. the officials in a particular jurisdiction might be persuaded that since they are merely "correcting an erroneous line" that it is a Boundary Line Agreement, but technically, they are changing the location of the true boundary. The reason why they are changing it is really immaterial.
Deeds create parcels, not boundaries. The deed includes a description which is either an attempt to describe lines and points established prior to the first conveyance, or is a plan to be followed by the parties when they subsequently establish the boundaries for the first time. It is generally of little or no consequence, legally that the scrivener described previously established boundaries imperfectly or that the parties subsequently establishing the boundaries from the plan provided did not follow the plan perfectly. The consequential fact is whether the parties considered the description of existing boundaries, or the physical establishment of boundaries subsequent to the description to each adequately reflect their intent of the boundary location.
eapls2708, post: 368194, member: 589 wrote: The landowners who first established or caused the establishment of the common boundary could later mutually reject it for the purpose of more accurately establishing it.
Yes, that's the point. The fact of a survey having been made is secondary to the acts of the landowners that may or may not later prevent any errors in the survey from being corrected. Conflating "original survey" and "first survey" blurs that critical distinction.
Deeds create parcels, not boundaries. The deed includes a description which is either an attempt to describe lines and points established prior to the first conveyance, or is a plan to be followed by the parties when they subsequently establish the boundaries for the first time. It is generally of little or no consequence, legally that the scrivener described previously established boundaries imperfectly or that the parties subsequently establishing the boundaries from the plan provided did not follow the plan perfectly. The consequential fact is whether the parties considered the description of existing boundaries, or the physical establishment of boundaries subsequent to the description to each adequately reflect their intent of the boundary location.
Naturally deeds create boundaries. Prior to some conveyance and the right of posseession that followed from it, no boundary existed. The material fact in assessing the merits of an attempt to find the boundary on the ground is simply whether it is in essential agreement with the boundary as created or obviously so discrepant as to require correction. Did the survey locate the various elements of the description? Did it properly reconcile discrepancies?
Boundaries are the limits of a parcel of land. Land is a tangible thing and so are their boundaries. The deed does not create boundaries. It either includes a description of already created lines or it contains a plan for the creation of boundaries.
eapls2708, post: 368200, member: 589 wrote: Boundaries are the limits of a parcel of land. Land is a tangible thing and so are their boundaries.
As used in land surveying, a boundary is the limit of a real property estate. If there has never been any division of that estate, there is no boundary, so clearly the instrument that created the division of ownership is what created the boundary. The idea that boundaries are tangible things is odd. The monuments that mark boundaries are tangible, but the limits of the estates are not. For example, the level of Mean Higher High Tide is a boundary in Texas, but to say that it is tangible does not describe experience.
The deed does not create boundaries. It either includes a description of already created lines or it contains a plan for the creation of boundaries.
I suppose that if you want to claim that any line a surveyor runs or draws in CAD is a "boundary", that might be true. But if you require some change in real property estate for there to be a boundary, the means by which that new estate was created is what created the boundary.
Kent McMillan, post: 368204, member: 3 wrote: As used in land surveying, a boundary is the limit of a real property estate. If there has never been any division of that estate, there is no boundary, so clearly the instrument that created the division of ownership is what created the boundary.
The conveyance of a portion of an existing estate creates a new estate. The parcel is legally in existence. As long as the description is adequate to identify a parcel, the deed will be valid. The description does not necessarily need to describe the boundaries with such detail that there need be no interpretation, either as to the meaning of terms or by measurement and/or calculation in order to be valid.
Ideally a description should be written well enough to eliminate, or at least minimize the need for interpretation, but the fact is that most are not written with such completeness or thoroughness. A good portion of existing valid deeds require some amount of interpretation as to the terms and the vast majority require interpretation by measurement and/or calculation.
Many may not have considered measurement as being a form of interpretation, but it is. Given the unlikelihood that one surveyor's measurements will be recreated exactly by a later surveyor, the high likelihood that if the surveys were performed many years apart, that there will be several significant measurement differences on a surveyed parcel, and that the measurer's results are affected by both systematic factors that (theoretically) are within the surveyor's control to limit and account for, and by random errors beyond the surveyor's control, dimensions can never be absolute, inflexible, black or white facts.
A description written to describe previously placed lines & points (monuments) is an interpretation of the established locations attempted to be reduced to words. Boundaries established on the ground after the deed is written and in an attempt to place the intended locations as described on the ground is an interpretation of the words translated to physical features. No matter which way it's done, interpretation is required to get from paper to ground or from ground to paper.
Kent McMillan, post: 368204, member: 3 wrote: The idea that boundaries are tangible things is odd. The monuments that mark boundaries are tangible, but the limits of the estates are not. For example, the level of Mean Higher High Tide is a boundary in Texas, but to say that it is tangible does not describe experience.
OK. You got me there. I used language somewhat carelessly. The marks left to identify the boundary locations are tangible things. The point is, a merely described boundary is a completely abstract thing that can't be visualized or comprehended by the average person while boundaries marked on the ground can be much more easily understood. Where a corner position is established & monumented on the ground, the landowner can walk up to it, touch it, and understand that their property corner is at that spot. If they are able to see from that location to the next corner or mark, they can visualize their boundary location by means of reference to tangible things on the ground. The courts generally recognize this as being of great significance to the common landowner which is why they always hold an original survey performed prior to or as part of the consideration of the original conveyance as conclusive and why they normally give wide latitude in terms of measurement errors, and often methods or procedures to authorized first time on-the-ground placement of boundaries after the conveyance.
A water boundary doesn't really translate well to this discussion because by definition as an ambulatory boundary, it is required to be recreated for any particular point in time when a party wants an idea of where it is (subject to continual movements of beach materials).
Kent McMillan, post: 368204, member: 3 wrote: I suppose that if you want to claim that any line a surveyor runs or draws in CAD is a "boundary", that might be true. But if you require some change in real property estate for there to be a boundary, the means by which that new estate was created is what created the boundary.
I thought we cleared this part up a couple posts back. We're not talking about any line that any surveyor decides to mark on the ground. We're talking about placement by those with the authority to define the boundary location, or placement done according to a commission by those with that authority.
The conveyance document does not create the boundary. It creates the legal right to establish a boundary (or recognize previously placed lines and points as a boundary) and provides a descriptive set of guidelines for the placement of the boundaries to be created.
A sales agreement for a new vehicle is not the car itself. It is an agreement of terms to meet to put you in possession of the car.
A title slip for the vehicle does not define the vehicle. It is evidence that you own the vehicle referenced on the document. The condition, color, etc. of the vehicle is whatever it is. If the title slip says the car is blue, but in reality it's green, you do not need to paint the car blue to make the title valid, nor are you required to change the title to indicate the car is green to make it valid.
A map and set of directions is not a road trip. it is merely the plan to get you from point A to point B.
A reservations, a picture and a brochure of a resort destination is not a stay at the resort. It is an agreement to hold a room for you for certain dates. The specific room and the specifics of how that room is appointed are not defined.
Each of those are documents representing an agreement or plan to put you in possession of or get you to a thing, they are not the thing itself.
Similarly, a deed represents the thing to which the grantee conveyed title. The deed is not the thing itself, nor is title the thing itself. Title is the right to own the thing and a deed the evidence of title.
eapls2708, post: 368214, member: 589 wrote: The conveyance of a portion of an existing estate creates a new estate.
Yes, and that conveyance is what creates the boundary. For example consider the most fundamental boundaries, those between nations. The US and the King of Spain were able to create boundaries between their respective possessions mostly as parallels of latitude. The boundary between the US and Mexico was created by an instrument of writing (a treaty). The surveys of both came afterwards and were agreed to, but the boundary existed before the surveys.
Similarly in mundane property transactions. A surveyor goes out and stakes out some lots. Are there boundaries created? No. There are stakes that can be used to mark boundaries and that do so when the boundaries are created by either platting or conveyance, depending upon the customs of the jurisdiction. The stake may have been hammered into the ground with the object of marking some future boundary, but that's about it.
Plat gets vacated before any lots are sold. Are there boundaries? Nope. There are just a bunch of stakes driven into the ground.
Where a corner position is established & monumented on the ground, the landowner can walk up to it, touch it, and understand that their property corner is at that spot.
[...]
The courts generally recognize this as being of great significance to the common landowner which is why they always hold an original survey performed prior to or as part of the consideration of the original conveyance as conclusive and why they normally give wide latitude in terms of measurement errors, and often methods or procedures to authorized first time on-the-ground placement of boundaries after the conveyance.
A simpler way of saying that is that stakes and other monuments in place at the time of a transaction are interpreted as a part of the contract of conveyance if they are referenced in that contract or can be connected to it in a way that isn't contrary to other superior elements of the contract.
A water boundary doesn't really translate well to this discussion because by definition as an ambulatory boundary, it is required to be recreated for any particular point in time when a party wants an idea of where it is (subject to continual movements of beach materials).
Actually, water boundaries perfectly demonstrate my point that the boundary exists because the change in real property estates exists. It doesn't matter whether Joe Doak Surveying can find the level of Mean Higher High Water on the beach or that it changes over time from month to month. The boundary exists because of the rights that began before the surveyors arrived, not because someone got around to mapping it.
Kent McMillan, post: 368222, member: 3 wrote: Yes, and that conveyance is what creates the boundary. For example consider the most fundamental boundaries, those between nations. The US and the King of Spain were able to create boundaries between their respective possessions mostly as parallels of latitude. The boundary between the US and Mexico was created by an instrument of writing (a treaty). The surveys of both came afterwards and were agreed to, but the boundary existed before the surveys.
The treaties you refer to were agreements recognizing the valid existence of the others' territories and an agreement as to where or how the boundary would be established. The treaties did not create the boundary. Let me fix the last sentence of your first paragraph for you. The surveys performed to establish the boundaries of both came afterwards and were subsequently agreed to, thus establishing the boundary locations, but the plan for that boundary location existed before the surveys.
Kent McMillan, post: 368222, member: 3 wrote: Similarly in mundane property transactions. A surveyor goes out and stakes out some lots. Are there boundaries created? No. There are stakes that can be used to mark boundaries and that do so when the boundaries are created by either platting or conveyance, depending upon the customs of the jurisdiction. The stake may have been hammered into the ground with the object of marking some future boundary, but that's about it.
Plat gets vacated before any lots are sold. Are there boundaries? Nope. There are just a bunch of stakes driven into the ground.
Whether or not boundaries have been created depends upon, as you point out, the custom, or laws of the jurisdiction. In a few jurisdictions, even if the parent parcel is surveyed pursuant to a subdivision plan, no boundaries are created until lots are conveyed. In most jurisdictions, there is a statutory subdivision process and the lots are considered created at the moment the subdivision is filed. If the corners per the filed map have been set, then the filing recognizes the points placed according to the actual survey, as represented by the subdivision map as the true corner locations. Often, lot corners are not set until shortly after the map is filed, and in many cases, after some lots are sold. In those instances, the filing of the subdivision creates the lots and indicates the plan of how the boundaries are to be established, and yet the monuments set after the filing and after the sale of some lots define the true boundary locations as represented by the map.
If the subdivider vacates the subdivision, either by merger or by a resubdivision, then he has undone established boundaries before they were used to separate estates of different ownership and may, depending upon local laws, resubdivide and convey lots of a different configuration. Most often, that will involve the requirement to remove the previously set mons and place new ones to represent the new configuration.
Whatever process occurs, it has no bearing on this "first" surveyor doctrine.
Kent McMillan, post: 368222, member: 3 wrote: A simpler way of saying that is that stakes and other monuments in place at the time of a transaction are interpreted as a part of the contract of conveyance if they are referenced in that contract or can be connected to it in a way that isn't contrary to other superior elements of the contract.
Yes. But again, you are talking about a survey performed in contemplation of creating a new boundary, not one performed to establish boundaries of already conveyed parcels for the first time. Nobody is arguing whether such surveys fit the definition of an "original" survey.
Kent McMillan, post: 368222, member: 3 wrote: Actually, water boundaries perfectly demonstrate my point that the boundary exists because the change in real property estates exists. It doesn't matter whether Joe Doak Surveying can find the level of Mean Higher High Water on the beach or that it changes over time from month to month. The boundary exists because of the rights that began before the surveyors arrived, not because someone got around to mapping it.
If you want to go that route, then they perfectly demonstrate my point in that the call for a water boundary in a deed states what the boundary is, but does not define where the boundary is. In essence, each successive survey of the MHTL (or in TX, the MHHTL) is an original survey of that location for a particular point in time. Each survey occurs after the conveyance, and each defines where the boundary actually was at the time of the survey.
However, since we are talking about the continued recognition of boundary locations first established after the first conveyance, a boundary that by definition cannot have a particular location that is continued to be recognized as defining the boundary because by definition, the location is in constant movement, I maintain that it's not germane to the discussion of original surveys vs "first" surveys.
Nice try Kent. You had me starting to follow you down tangential discussions that don't pertain to the original question.
eapls2708, post: 368233, member: 589 wrote: The treaties you refer to were agreements recognizing the valid existence of the others' territories and an agreement as to where or how the boundary would be established. The treaties did not create the boundary. Let me fix the last sentence of your first paragraph for you. The surveys performed to establish the boundaries of both came afterwards and were subsequently agreed to, thus establishing the boundary locations, but the plan for that boundary location existed before the surveys
No, here is what Article V of the Treaty of Guadalupe Hidalgo actually provides:
"The boundary line between the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or Opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean."
That upon its face created a boundary by agreement in advance of the Boundary Commission's survey. I assume that you don't believe that the Boundary Commission chained out into the Gulf of Mexico for three league from land to "establish" the point of beginning. The boundary commission merely found the boundary as described. They didn't move the deepest channel of the Rio Grande, but merely mapped it. The boundary had already been created when the surveyors arrived.
eapls2708, post: 368233, member: 589 wrote: If you want to go that route, then they perfectly demonstrate my point in that the call for a water boundary in a deed states what the boundary is, but does not define where the boundary is.
Actually, your contention above was that boundaries are CREATED by surveys. I've merely provided an example of a boundary that EXISTED prior to any survey and AFTER any survey. It wasn't created by a survey. It was created by the instruments that created the separate real property estates that define the boundary.
What your point really amounts to is that, if not created by surveys, SOME boundaries are LOCATED by surveys. Yes, that's true.
I think of this as Kent has suggested. A Deed which cuts a tract out of a larger tract legally creates the new boundary. The function of the description is to identify the subject matter and provide a means to ascertain its boundaries. The means may be very imprecise or very precise or anywhere in between.
If the description describes a new boundary by a distance from an established corner then the only means to ascertain the new boundary location is to measure the required distance from the established corner. Once this is done then the boundary becomes established if the parties accept or at least do not dispute the new location.
Land Surveyors are licensed so that the public can turn to a trained, experienced, and competent professional to establish the boundary accurately for them. If the Surveyor does a poor job then the recourse is to the licensing board for complaint and possible discipline. The other, less well understood function is to find and precisely measure boundaries that are already established. Obviously, if the Deed calls for a monument then everyone agrees one of the first tasks is to go find that monument. If no monuments are called for but monuments are found near the expected boundary location, at the very least investigation is called for.
The rule that monuments control course and distance may be disregarded if it leads to an absurd result, as all the rules of construction. The point is nothing is absolute in real property law, not even title itself.
Dave Karoly, post: 368236, member: 94 wrote: I think of this as Kent has suggested. A Deed which cuts a tract out of a larger tract legally creates the new boundary. The function of the description is to identify the subject matter and provide a means to ascertain its boundaries. The means may be very imprecise or very precise or anywhere in between.
If the description describes a new boundary by a distance from an established corner then the only means to ascertain the new boundary location is to measure the required distance from the established corner. Once this is done then the boundary becomes established if the parties accept or at least do not dispute the new location.
Establishment is, of course, a doctrine of equity. I suspect that there are plenty of cases where recognition and acquiescence are trumped by some superior equity that flows from a specific set of facts.
I have, on regular occasion, been the 'first surveyor in'.
I would likely have agonized much less over my decisions if I beleved the monuments I set for those particular surveys enjoyed anywhere near the same status as the monuments I've set for interior lot corners on my land divisions.
Even considering the volumes of case law and writings I've enjoyed of many surveyors, lawyers and various pontifiers (is that a real word) have not dissuaded me from spending great consideration as to when I hang my hat on the monument of another.
I still haven't enjoyed performing a survey that was just like another. Everyone of them has had some unique twist.
Kent McMillan, post: 368238, member: 3 wrote: Establishment is, of course, a doctrine of equity. I suspect that there are plenty of cases where recognition and acquiescence are trumped by some superior equity that flows from a specific set of facts.
There are establishment doctrines but they are not necessarily equitable. The Agreed Boundary Doctrine is definitely a legal doctrine as it is operated by the Courts in California.
Establishment can occur outside the so-called establishment doctrines.
Considering this and all boundary related discussions, I'm beginning to wonder how we can come up with a licensing exam on boundary surveying. For just about every principle can be argued to the contrary.
clearcut, post: 368243, member: 297 wrote: I have, on regular occasion, been the 'first surveyor in'.
I would likely have agonized much less over my decisions if I beleved the monuments I set for those particular surveys enjoyed anywhere near the same status as the monuments I've set for interior lot corners on my land divisions.
Even considering the volumes of case law and writings I've enjoyed of many surveyors, lawyers and various pontifiers (is that a real word) have not dissuaded me from spending great consideration as to when I hang my hat on the monument of another.
I still haven't enjoyed performing a survey that was just like another. Everyone of them has had some unique twist.
Don't be silly, no one is saying you can or should do otherwise.
Likewise you have no authority to disturb settled boundaries that have been settled in one location for decades.
