The manual actually discusses this in chapter six, the gist of it is that: "The local record in these cases, when available, may furnish evidence of the original survey."
This of course is a survey that creates interior lines subsequent to the "original" sectional survey. In this sense the manual is clearly stating that the rules and mathematical solutions don't hold over well defined lines including fences and timber cut lines which are clearly listed,,,,,,,,
So the question becomes when you find a 1/16th line or corner "off" from the perfect math solution do you hold it or set other monuments and lines in conflict with the existing "first" or "original" survey.
eapls2708, post: 368409, member: 589 wrote: 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?
Well, obviously we aren't communicating if you consider an original survey of a subdivision by reference to which lots are sold to purchasers as equivalent to a survey that mistakenly attempts to locate two isolated lots within the subdivision long afterwards that the two adjoining landowners recognize as fixing their common boundary.
Naturally, none of the surrounding lot owners are parties to this implied agreement that may be held to establish the line between the two.
MightyMoe, post: 368413, member: 700 wrote: So the question becomes when you find a 1/16th line or corner "off" from the perfect math solution do you hold it or set other monuments and lines in conflict with the existing "first" or "original" survey.
Well, basically it boils down to this question of equity: "Would such mistake as exists be more expensive to fix than any benefit that would flow from it?"
There mistakes and there are mistakes. Wanting to equate any survey that two adjoining landowners have accepted as the same as if the marks of that survey were placed by the original goverment survey and therefore controlling other property boundaries as well, falls apart when the mistakes injure landowners who weren't a party to the two adjoiners agreement.
Kent, although I qualified it as containing no gross error, you keep wanting to stick in the idea of some mistake that needs to be fixed. You also want to keep bringing in the fictional effect on the senior or unrelated lines of other boundaries.
Apparently we are not communicating because I can't make it any more clear. This is really feeling like wrestling with a pig. You really enjoy discussions that go nowhere, don't you? In fact, I'm pretty certain that the more you're able to mire it down by creating the appearance of related issues by introducing irrelevant facts or principles, and the more you can circle back to those things, the more enjoyment you get out of it.
Since you've failed to come up with a single case that disregards a survey simply based on the timing relative to the conveyance, I think we'll have to leave this with me surveying boundaries as I see fit and you ambulating boundaries as your measurements lead you to do.
It's been fun.
eapls2708, post: 368422, member: 589 wrote: Kent, although I qualified it as containing no gross error, you keep wanting to stick in the idea of some mistake that needs to be fixed.
Well, you've been unwilling to distinguish been original surveys and surveys that are merely established by recognition and acquiescence and the topic of error is exactly one important point. By your definition of "gross error", the boundary in question must be litigated to have a court decide whether the error is gross or not. Almost certainly other factors that amount to what would be lost for what gain enter into that judgment. None of this uncertainty is present when one is dealing with original surveys.
Kent McMillan, post: 368415, member: 3 wrote: Well, basically it boils down to this question of equity: "Would such mistake as exists be more expensive to fix than any benefit that would flow from it?"
There mistakes and there are mistakes. Wanting to equate any survey that two adjoining landowners have accepted as the same as if the marks of that survey were placed by the original goverment survey and therefore controlling other property boundaries as well, falls apart when the mistakes injure landowners who weren't a party to the two adjoiners agreement.
Don't have the book here, but I'm pretty sure that equity isn't in there. They do say the burden is on the person who wants to reject an original survey.
The PLS is elegant, we have established that patents are fixed regarding acreage, now we see that entry man do original surveys which establish the patent lines so there is no question of equity. And these lines are fixed, as are the descriptions and areas, unchangeable.
MightyMoe, post: 368428, member: 700 wrote: Don't have the book here, but I'm pretty sure that equity isn't in there. They do say the burden is on the person who wants to reject an original survey.
The PLS is elegant, we have established that patents are fixed regarding acreage, now we see that entry man do original surveys which establish the patent lines so there is no question of equity. And these lines are fixed, as are the descriptions and areas, unchangeable.
Well, equity is present if the cookbook is proposing a rule that favors preserving some status quo just because it's the status quo. Why? Because in general the costs of the disputes over small losses and gains outweigh the benefits. So equity acts against allowing disputes to endlessly arise over small matters. On the other hand, when the cost of fixing mistakes greatly outweighs the losses suffered from maintaining the mistake, that is almost in itself the definition of a gross mistake.
Uh, make that:
On the other hand, when the cost of fixing mistakes is greatly outweighed by the losses suffered from maintaining the mistake, that is almost in itself the definition of a gross mistake.
This is interesting...O'Farrel v. Harney, 51 Cal. 125 (1875) refers to the first survey, their words. Not the original survey.
at 127:
The line found in that mode is three feet and six inches to the east of the eastern line of the lot ascertained by measuring twenty-six feet and eight inches--the width of the lot--from the point where the stake was placed at the first survey for the northwest corner of the block and lot.
and at 127 & 128:
The question is, where are the boundaries of the lot conveyed by Taylor to Moran? The map was intended as a representation of the survey actually made on the ground--the position of the blocks and lots as indicated by the lines as run and the stakes driven at the corners. A map which, by reference to monuments established, or by some other mode, refers to a survey, is presumed to correctly represent the survey as actually made; but if there is a discrepancy between the map and the survey, the survey must prevail, *128 if the position of the points and lines established by the survey can be proved. It must be so held, upon the principle that the monuments, whether natural or artificial, must prevail over the courses and distances. But it is urged that the official map does not mention a stake at the northwest corner of block 13, and that the admission of evidence showing that such stake had been set at the first survey, is in violation of the rule which prohibits the admission of parol evidence to vary, add to, or contradict a deed. The objection is not tenable. The map was intended, as has already been said, as a representation of the actual survey, and the evidence only proves the position of the lines as run--locates the calls mentioned in the map.
Judgment and order affirmed.
The case occurred in the Town of Washington, Yolo County, now West Sacramento (Broderick neighborhood).
It isn't clear though from the quotes you've extracted whether the issue was the correct location of a line shown upon a subdivsion plat or not. If it was in relation to the plat, the observation that in the event of a discrepancy between a map and a survey as actually made, the actual survey must prevail only makes sense in the context of any actual survey that the map was based upon, not something made later. Is this case avaialable on line?
clearcut, post: 368692, member: 297 wrote: It can be found here:
Thanks. In the full context of the decision "first survey" refers to the original survey, namely:
"The town of Washington was laid off and surveyed into lots, blocks and streets in the year 1850; an initial-point was established, stakes were set at the corners of the blocks, and a map was made, which was intended to represent the survey. The initial-point was subsequently lost, and in 1853 two iron bars were set at the northeast and southeast corners of block No. 3, in the place of the stakes which had been set when the survey was made, and the bars still remain. In 1864 the county surveyor made a map of the town, which was a traced copy of the first map, and on it were represented the two iron bars at the corners of block No. 3, and the sizes of the lots and blocks and the width of the streets, and the map was adopted as the official map of the town."
The case was about a stake placed by the original survey controlling the location of a lot corner. That may have been novel in 1875, but hopefully not too novel today.
Searching reports of all published California court decisions using the term "first survey" discloses that the special meaning of "first survey" in California law appears to be [...wait for it...] the survey that was made before the second survey. :>
Kent McMillan, post: 368695, member: 3 wrote: Searching reports of all published California court decisions using the term "first survey" discloses that the special meaning of "first survey" in California law appears to be [...wait for it...] the survey that was made before the second survey. :>
Which came first, the chicken or the egg?
O'Farrel, along with several other California cases, really stands for the proposition that stakes not called for on the Plat can be accepted as evidence of the first or original survey. This has been objected to as violating the Parol evidence rule but the courts have responded that the parol evidence rule doesn't apply to location.
eapls2708, post: 367996, member: 589 wrote: "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."
This first appeared in the 3rd Edition of Evidence and Procedures for Boundary Location, but the author(s) do not offer any direct support for this idea either in the form of case law, citations to statutes, or citations to other authoritative writings. I think that it is somewhat interesting that this appeared in the first edition that Curt Brown was not involved in.
I believe that this concept only holds true where the "first" survey was commissioned unilaterally by one affected party and the results of the survey are not accepted by another affected party. If a common boundary is established by both affected landowners jointly commissioning the survey, or if the subsequent actions of the party not involved in hiring the surveyor shows that they accepted the results as correctly marking the common line (i.e. they build a house at the minimum setback as measured from that line), then this "first" surveyor doctrine does not hold.
If one party causes the survey to be made, represents the resulting points as marking the property line to his adjoiner, who then builds a house at the minimum setback in reliance on that, the party hiring the surveyor would be estopped from being able to later claim that the true line was somewhere else. How would the law have two such incompatible doctrines for a nearly identical set of circumstances?
From what I've found, and I believe John Stahl has given this subject a deeper look and IIRC, has a presentation on it, there is no such distinction in law as a "first" survey or a "first" surveyor separate from that of an "original" survey or surveyor.
American Jurisprudence, Boundaries, å¤51 says:
In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, the surveyor has the right to use the field notes of the original survey.
The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located. This rule is based on the premise that the stability of boundary lines is more important than minor inaccuracies or mistakes.
A resurvey not shown to have been based upon the original survey is inconclusive in determining boundaries and will ordinarily yield to a resurvey based upon known monuments and boundaries of the original survey. However, where it is shown that there are gross errors and mistakes in an older survey which render it unreliable, a more recent survey may be used.Unlike the introduction of the "first" surveyor doctrine in EPBL where the "first" surveyor is distinguished from the "original" surveyor, Am Jur cites to a case for every statement made. The paragraph above (å¤51) has 8 sentences and footnotes to 7 cites.
The 2009 BLM Manual explains it a bit more clearly (å¤3-137, p. 74, 2nd column at end of 3rd paragraph):
The protracted position of the legal subdivision corner on the survey plat is merely the first step in fixing the position of a corner. The corner position is fixed by the running and marking of the lines.
This is in terms of the PLSS, but can easily be translated to read...
The described position of the parcel corner in the deed description is merely the first step in fixing the position of a corner. The corner position is fixed by the running and marking of the lines.
The principle holds true whether or not in the PLSS. Note also that the Manual states that it is normally the task of the local surveyor to subdivide the sections. But there are those, ignorant of the full discussion of the subdivision of sections who will take no notice of these principles, re-divide an already divided section and dispute the location of previously established corners. Similarly, being ignorant of the law that we are obliged to follow when re-establishing boundaries, they will determine where the corner "should be" according to dimensions in a deed description and either declare the evidence of the originally established boundary as wrong or they will take no notice of such evidence at all if it doesn't happen to be in the form of an iron pipe, stake, or some other object set by a surveyor.
When surveyors recognize and reject the boundaries established by a so-called "first" surveyor, they justify it because the description did not call for the survey and/or because the survey was performed after the description was written. The jurisdiction that I work in, and most others that I've looked at, don't reject the locations of boundaries identified by a survey on either of these facts alone, or even both together unless there are other circumstances to indicate that it was a unilateral establishment by one landowner and that there was never an acceptance of and/or reliance on the results by the other affected landowners.
Can anyone point me toward one or more cases where this distinction of "first" surveyor from "original" surveyor has been given any credibility or where the principle was the only or a major factor in support of the final decision?
The landmark court case, which drew it's inference from Gammel's Laws, is Stafford v. King in 1865 in Texas. Gammel's Laws, or the horn books, were the guide until stare decisis fixed the decision.
Dave Karoly, post: 368726, member: 94 wrote: O'Farrel, along with several other California cases, really stands for the proposition that stakes not called for on the Plat can be accepted as evidence of the
first ororiginal survey. This has been objected to as violating the Parol evidence rule but the courts have responded that the parol evidence rule doesn't apply to location.
What was at issue in the O'Farrel Case appears to me to have been more simply a question of the control of a map referenced in a conveyance. In other words, the recognized "official map" was one based upon a resurvey that did show stakes set after the original survey, and that map was referenced in the deeds to the properties in dispute.
Both owners of Lots 29 and 30 traced their titles back to Taylor as common grantor with the deed to Lot 30 having been made in reference to "the official map" of the town at a time when the 1862 map made by the County Surveyor showing certain stakes he had placed as marking block corners was recognized as "the official map" of the town. The owner of Lot 30 evidently wanted to claim that "the official map" was not what had been recognized as such, but the earlier 1850 map that did not show the stakes that the County Surveyor later placed.
Assuming that the County Surveyor's iron stake at the NW corner of the block was an essentially correct replacement of the original stake placed in 1850, the dispute boiled down essentially to how an excess in the block was to be dealt with.
From the decision:
"It is found that the distance from the northeast corner of block No. 3 to the east line of lot 30 in block 13, measuring along Ann street, according to the distances marked on the map, is nine hundred and thirty-three feet and four inches. The line found in that mode is three feet and six inches to the east of the eastern line of the lot ascertained by measuring twenty-six feet and eight inches--the width of the lot--from the point where the stake was placed at the first survey for the northwest corner of the block and lot."
One party wanted to locate the common lot line by measuring from a stake more than 900 ft. distant and the other wanted to rely upon a replacement of the original block corner stake made by the County Surveyor less than 30 ft. away, when the original stake was not found to exist. The evidence admitted by the court amounted to how the original survey was perpetuated by the work of a county surveyor 14 years after the original survey.
It wouldn't surprise me if that wasn't basically an argument between two Irish saloon owners.
Kent McMillan, post: 368736, member: 3 wrote: It wouldn't surprise me if that wasn't basically an argument between two Irish saloon owners.
Some guy measured 900 feet from the east in order to claim 3+ feet of his neighbor's lot. It's really just another story of the American dream...how can I steal my neighbor's land?
These old cases are interesting because they give you a glimpse into how they did things. They set stakes but didn't show them on the map but we know that. Those old maps were just diagrams.
Note the Appellant's (plaintiff) "brief":
Armstrong & Hinkson, for the Appellant.
There is but one question in the case; it is this: Where is the east line of lot thirty, in block thirteen, in the town of Washington? To answer this question another question arises: Could the court resort to any other monuments than those mentioned in the title deeds? We claim that the court was bound by the calls of the title deed, and that as the title deeds called for the official map of the town of Washington for a description, that no evidence was admissible of any other monuments than those called for on the map. (Murdock v. Chapman, 9 Gray, 158; Fore v. Vance, 24 Cal. 444; Seaward v. Malotte, 15 Cal. 306; Farris v. Coover, 10 Cal. 622; Noonan v. Lee, 2 Black, 504; Lunt v. Holland, 14 Mass. 149; Magourn v. Lapham, 21 Pick. 135.)
The Court obviously disagreed with that but it highlights the legal arguments being made and rejected.
Dave Karoly, post: 368753, member: 94 wrote: Note the Appellant's (plaintiff) "brief":
The Court obviously disagreed with that but it highlights the legal arguments being made and rejected.
The court's statement was:
"In 1864 the county surveyor made a map of the town, which was a traced copy of the first map, and on it were represented the two iron bars at the corners of block No. 3, and the sizes of the lots and blocks and the width of the streets, and the map was adopted as the official map of the town."
In other words, the "official map" did show the iron bar marking the NW corner of the block and Lot 30 was originally conveyed by Taylor, the predecessor in title of both parties, as land described as :
"all those certain lots of land situated in the town of Washington, Yolo County, and State of California, and known and described on the official map of Washington as lots".
That reference to the official map that did show the iron bar set in 1862 was what the Court held to fix the line between Lots 20 and 30 when both parties held title under descriptions referring to the "official map". The court did not have to look beyond the writings of the deeds, apparently.
RE: Official Maps, in my experience they aren't just a compilation of subdivision maps and deeds but often include re-survey efforts to "square things up" and resolve issues. Even if deeds don't call to the official map you really need to take it into account. California codes apparently authorize such a re-survey in preparation of an Official Map:
"The engineer or surveyor, under the direction and with the approval of the city council or board of supervisors, may compile the map from maps on file, or may resurvey or renumber the blocks, or renumber or reletter the lots in the blocks, or change the names of streets." - See more at: http://codes.findlaw.com/ca/government-code/gov-sect-66499-53.html#sthash.cDZA2vSU.dpuf
