Dave,
If only the definition of the word "settled" had objective certainty absent an adjudicated decision might I then abandon the silliness I continue to pursue. At least the increasing workload of topo and engineering work keep me somewhat sane.
Dave Karoly, post: 368245, member: 94 wrote: 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.
Actually, wouldn't you say that the underlying principles of establishment doctrines are simply promoting repose? What is that if not an equitable value? I see it as related to avoidance of waste by discouraging disputes. Against that would be unjust enrichment. Land is a zero sum game, after all, and sometimes the value of the repose is outweighed by the value of what is lost.
clearcut, post: 368252, member: 297 wrote: Dave,
If only the definition of the word "settled" had objective certainty absent an adjudicated decision might I then abandon the silliness I continue to pursue. At least the increasing workload of topo and engineering work keep me somewhat sane.
It is a question of evidence. Boundary location is a question of fact; that is why it is difficult to make bright line rules.
For example, if there are two potential solutions, in one all the record geometry harmonizes with the possessions of the property owners in the area and in the other they don't. [sarcasm]Naturally the good Land Surveyor picks number 2.[/sarcasm]
Say solution 1 is hung from a redwood post set in 1894 by questionable methodology while solution 2 is hung from the theoretically correct point. Courts time and again have favored solution 1 while Land Surveyors favor solution 2.
It takes a different point of view to understand why solution 1 is actually correct while not theoretically correct. It matters what those with authority to establish boundaries did or did not do. When the redwood post was set in 1894 and the Deed was delivered in 1897 and the fence just happens to measure the Deed distance from the redwood post but not the theoretically correct point then of course the Land Surveyor takes that as license to cut the property owner's tract in half.
However, it isn't just, oh here is a fence it must be the boundary. There must be a complete analysis of the title and survey history. How do they line up. Maybe the fence is just for the purpose of containing livestock inside someone's property or maybe it was built to be a boundary. Analysis is required.
Dave Karoly, post: 368306, member: 94 wrote: However, it isn't just, oh here is a fence it must be the boundary.
Actually, that is pretty much what fenceline surveying devolves to, though. Part of the reason why fences are used is to streamline the effort, shortcutting research and field investigation. This is why it is very reasonable to set standards that require a surveyor to provide a sound rationale for any boundary based only upon evidence of occupation or some substantially erroneous survey. I have seen countless messes that have only been compounded by some careless surveyor adopting a fence as if it were whatever he wanted it be.
Kent McMillan, post: 368325, member: 3 wrote: Actually, that is pretty much what fenceline surveying devolves to, though. Part of the reason why fences are used is to streamline the effort, shortcutting research and field investigation. This is why it is very reasonable to set standards that require a surveyor to provide a sound rationale for any boundary based only upon evidence of occupation or some substantially erroneous survey. I have seen countless messes that have only been compounded by some careless surveyor adopting a fence as if it were whatever he wanted it be.
That is not what I'm saying should be done.
It sounds like you are saying, "this requires thought and analysis which Texas Surveyors are incapable of doing therefore what they do do is hook onto the nearest casual fence and call it good making the mess worse."
Dave Karoly, post: 368328, member: 94 wrote: That is not what I'm saying should be done.
It sounds like you are saying, "this requires thought and analysis which Texas Surveyors are incapable of doing therefore what they do do is hook onto the nearest casual fence and call it good making the mess worse."
No, I'm pointing out that considering old fences to be "established boundaries" and erroneous surveys that go unchallenged as "settled" becomes the rationale for all sorts of mayhem and so should be carefully quarantined in surveying practice. Confusing "first surveys" with original surveys is the top of that slippery slope that ends up with boundaries changing every time a fence is rebuilt and remains in place long enough to weather a bit.
Kent McMillan, post: 368331, member: 3 wrote: No, I'm pointing out that considering old fences to be "established boundaries" and erroneous surveys that go unchallenged as "settled" becomes the rationale for all sorts of mayhem and so should be carefully quarantined in surveying practice. Confusing "first surveys" with original surveys is the top of that slippery slope that ends up with boundaries changing every time a fence is rebuilt and remains in place long enough to weather a bit.
The other side of the slippery hill is Surveys never become settled or finished therefore monuments keep moving or every time the controlling monuments disappear and then get replaced upon some theory or other all the boundaries have to shift to accommodate the new monument.
There will always be someone out there who will misconstrue rules to benefit themselves; I can't help that. Then there are the property owners that subscribe to one theory on the south side of their property (which just happens to benefit them) and to the other theory on the north side of their property (which just happens to benefit them).
Ignoring an old fence and not investigating how it came to be where it is, who put it there and why, what is known of it by current landowners, etc. and then slapping deed dimensions on the ground contrary to the old fence, other lines of occupation, the points set by other surveyors without careful analysis has caused far more problems than so-called fenceline surveyors.
I've heard of fenceline surveyors my entire career. I've actually known of very few and have seen very few surveys where lines of occupation were accepted without the surveyor having actually investigated the history of the occupation.
The term "fenceline surveyor" is often applied by surveyors who simply do not understand what their duty is according to the courts of most jurisdictions and do not understand the analysis that is required to determine if a line of occupation or the results of a previous survey qualify as the best evidence of the true boundary as intended by the original parties. They hear the other surveyor start going into an explanation of the when, who, and how of the placement of the accepted evidence and that other surveyor starts sounding to them like an adult character in a Peanuts episode.
It all sounds to them like there is so much to consider, and so much work involved in the attempt to discover the answers to all those questions, that it's just way easier to dismiss the other surveyor as a "fenceline" surveyor. Besides, most won't go to the trouble of that level of investigation and will just measure the deed dimensions in anyway. So much easier to understand math & measurement, and so much less hassle than asking questions and doing historical research. [sarcasm]Besides, everyone knows that questioning landowners and historical research isn't surveying. Surveying is all about making measurements and reporting facts. Any speculation about what the facts mean is for real professionals... uh, I mean lawyers and judges.[/sarcasm]
And as to ambulatory boundaries, it seems that Kent wants to include the non-water boundaries of any parcel that was created without the benefit of an "original" survey made prior to the description. Those boundaries are apparently supposed to shift around every time someone comes along and makes a new set of measurements. After all, if all surveys that aren't original surveys made before and called by that first conveyance are always open to collateral attack, then parcels not having such surveys can never have settled boundaries. (absurdum absurditatis ostendit)
Trying to get the thread back on track, it's not about ambulatory boundaries, not about fencelines, and not about accepting any piece of material that looks as if it could have been set by some surveyor at sometime. It's about the distinction, or lack thereof in the law between an "original" survey performed prior to an original conveyance or contemporaneously with the conveyance as part of the consideration of the conveyance, and a so-called "first" survey in which the landowner owning the parcels on each side of a line, or the affected landowners from both sides act to establish the intended boundary or commission a surveyor to do it for them at some point after the conveyance has been made.
A good portion of this thread has turned to the philosophical argument about the propriety of accepting evidence of established boundaries as the true boundary, but no one up to this point has been able to provide a cite to a case where the decision was to disregard a survey that occurred after the conveyance creating the parcel but placing the boundaries on the ground for the first time and where that decision hung solely or primarily on the fact that the survey did not occur before or as consideration of the conveyance.
In the interests of clarity and to keep the focus on the question, here are some definitions to provide the boundaries (pun fully intended after a weak attempt to come up with different wording) of the discussion:
Original Survey: A survey performed prior to or at the time of the first conveyance of a parcel which is performed for the purpose of establishing the boundaries that are intended to be described in the conveyance document. It is performed or commissioned by the grantor, or jointly by the grantor and grantee of the first conveyance of the parcel.
"First" Survey: A survey by which boundaries described in a previously executed conveyance document are placed on the ground for the first time. It is performed or commissioned jointly by the landowners from both sides of the line(s) established, or performed/commissioned by one and subsequently accepted and relied upon by both.
For purposes of this discussion, and to eliminate those reasons that might invalidate even an original survey, assume that the "first" survey...
... was a good faith attempt to identify and use the proper controlling corners,
... was free of gross errors (as would be recognized as "gross error" by the courts, which is far greater in magnitude than what is considered unreasonable error by most surveyors),
... may contain some measurement errors and mistakes that are greater than most surveyors consider to be reasonable but significantly less than courts consider to be gross,
... regardless of any mistakes made in its establishment, the boundary so established results in the parcels being of the character and of the general configuration of those described and intended in the conveyance document(s).
"First" Survey: A survey by which boundaries described in a previously executed conveyance document are placed on the ground for the first time. It is performed or commissioned jointly by the landowners from both sides of the line(s) established, or performed/commissioned by one and subsequently accepted and relied upon by both.
That would make a "first" survey a virtually non-existent entity, I'd think, considering how few surveys can be proven to have been jointly commissioned by all adjoining landowners (including those, presumably whose boundaries depend upon the position of some specific corner to be marked). Much clearer to call it just a "survey" that marked a line that may or may not have been subsequently established without conflating first and original.
Go back and read the full definition rather than just the bold parts. The point being that it was authorized and/or accepted by those with authority to define the boundary.
Evan-don't fence me in!
Sorry Dave. I was the first surveyor in this thread and I established the boundaries.
eapls2708, post: 368353, member: 589 wrote: Go back and read the full definition rather than just the bold parts. The point being that it was authorized and/or accepted by those with authority to define the boundary.
So, basically you are tossing in as a "first survey" any boundary that has been established byr either explicit or implied agreement, whether by mistake or otherwise, as long as a surveyor represented a particular line or lines as being the true boundary? Why wouldn't that be better known as the "last survey"?
Or last known as the "best survey"?
Kent McMillan, post: 368352, member: 3 wrote: That would make a "first" survey a virtually non-existent entity, I'd think, considering how few surveys can be proven to have been jointly commissioned by all adjoining landowners (including those, presumably whose boundaries depend upon the position of some specific corner to be marked). Much clearer to call it just a "survey" that marked a line that may or may not have been subsequently established without conflating first and original.
One would think it would easier, and far more productive in advancing the discussion, by merely re-reading the first paragraph in the original post.
"At times, the surveyor must determine whether he or she is retracing an "original survey" or a "first survey". Initially the surveyor must determine whether the creating surveyor actually ran the creating line and then reduced the survey to notes or the description was created on paper and then the surveyor subsequently placed that description on the ground. When a parcel or parcels are created on paper, without a survey being conducted, and the surveyor is later requested to place one of these paper-described parcels on the ground, this survey should be considered the "first" survey, in that it is the first survey to be placed on the ground after the description. The difference is that whereas the original survey controls, the first survey is nothing more than an opinion by the surveyor of where the written description should be placed. As such, it is always open to collateral attack."
But then again, how would we waste so much time?
Alright Kent, I know that you are an intelligent man which means that you do understand the point I've been trying to make. It also means that you continue to deliberately misstate it in order to keep the debate going rather than admit that you can find no case law that supports the "first" surveyor doctrine.
It's OK Kent. You don't need to try to win every argument. You can stop trying so hard by attempting to change the subject. No one will think any less of you if you were to say something like "You know, I can't recall any such case, but I'll look into it", or even if you were to say "Gee, it looks like you might be on to something here. I've looked and have been unable to find that distinction in any cases, but I'll let you know if and when I do."
You don't even need to say "I was wrong."
I promise that we'll all still be impressed by the pictures of old rock mounds and other monuments you find and by your mastery of the least squares adjustment method. In fact some, including me, would be even more impressed and appreciative if you were to actually look into the validity of the "first" surveyor doctrine and report back on what you've learned.
Thanks for the entertaining discussion.
eapls2708, post: 368384, member: 589 wrote: Alright Kent, I know that you are an intelligent man which means that you do understand the point I've been trying to make. It also means that you continue to deliberately misstate it in order to keep the debate going rather than admit that you can find no case law that supports the "first" surveyor doctrine.
[...]
Actually, what I find objectionable is the use of the term "first survey" and the conflation of that with an original survey, as if the two were functionally the same, when what one is really dealing with at best is merely an established line of local effect.
Suppose that owners of lots in a protracted subdivison hire a surveyor to mark their adjoining lots, build houses, and live happily ever after until a later survey discloses that the two lots were staked a third of a lot width out of position. Obviously, any agreement between the two adjoining landowners, express or implied, has no effect on any line other than their common boundary, so at best it merely fixed the common line between the two landowners that one or the other will be on the losing end of unless he passes on the loss to the next lot owner on the other side of him.
If one wants to hold that somehow that "first survey" by the action of equity completely reworked the entire subdivision, then where exactly is the equity in shifting two landowners' mistake onto tens or hundreds of others?
Well, yeah. It fixes the line that was established by that survey. Of course it is of local effect. How does that differ with a survey performed to prior to a conveyance to establish a boundary? Doesn't that "original" survey only have a local controlling effect on the lines established according to it?
Or are you implying that since it occurred prior to the conveyance it was performed for that it is elevated to have a controlling effect on other nearby or unrelated boundaries?
Seems to me that before you can object to how terms are used or compared, that you first have to establish that there is such a thing as a "first" survey that is something other than an original or a retracement survey. I've found no proof that this unicorn exists. Have you?
eapls2708, post: 368392, member: 589 wrote: Well, yeah. It fixes the line that was established by that survey. Of course it is of local effect. How does that differ with a survey performed to prior to a conveyance to establish a boundary? Doesn't that "original" survey only have a local controlling effect on the lines established according to it?
In a subdivision, obviously all of the parts are linterrelated. The effect of the original survey is global within the system of the subdivision in that sense rather than local in that the parties take title to lands described in relation to the original survey, not where Joe and Tom mistakenly later agreed that their common boundary was.
Seems to me that before you can object to how terms are used or compared, that you first have to establish that there is such a thing as a "first" survey that is something other than an original or a retracement survey. I've found no proof that this unicorn exists. Have you?
Strange question given that you appear to concede that they are different in the definitions you offered above. For example, in a subdivision in which land is sold in relation to a survey that the parties had in view in the form of a map or other record of the work, the various purchasers have acquired rights to lands in locations defined by that survey. These include sharing excess and shortage when present (in Texas).
In the case of a survey made to locate just the line between two lot owners, the surveyor and his clients are all strangers to the titles of the surrounding landowners, so the effect of what the adjoining landowners may by implication agree to between themselves is inconsequential to the surrounding world.
Kent McMillan, post: 368406, member: 3 wrote: In a subdivision, obviously all of the parts are linterrelated. The effect of the original survey is global within the system of the subdivision in that sense rather than local in that the parties take title to lands described in relation to the original survey, not where Joe and Tom mistakenly later agreed that their common boundary was.
The subdivision survey is controlling to those lines within the survey. How is that different if the survey is for the creation of 100 lots from the parent parcel or the creation of 2?
If there is a discrepancy (pursuant to a mistake or otherwise) between the points on the ground of the survey creating 100 lots and the map made to represent the survey, or a discrepancy between the points on the ground and the map or description of the 2 lot subdivision, how does the law treat them differently?
Kent McMillan, post: 368406, member: 3 wrote: Strange question given that you appear to concede that they are different in the definitions you offered above. For example, in a subdivision in which land is sold in relation to a survey that the parties had in view in the form of a map or other record of the work, the various purchasers have acquired rights to lands in locations defined by that survey. These include sharing excess and shortage when present (in Texas).
The only difference in the definitions is in the timing of the survey relative to the conveyance, all other particulars are pretty much equal.
Kent McMillan, post: 368406, member: 3 wrote: In the case of a survey made to locate just the line between two lot owners, the surveyor and his clients are all strangers to the titles of the surrounding landowners, so the effect of what the adjoining landowners may by implication agree to between themselves is inconsequential to the surrounding world.
No one has said anything different. Again, how is that any different in legal effect form a survey performed prior to the creation of that line. The timing of the survey gives it no more or less effect on nearby, senior or unrelated lines.
So by beating your beating around the bush in search of a cogent argument, may I infer that you have had no success finding a basis in law for the "first" surveyor doctrine?
