Dave Karoly, post: 369192, member: 94 wrote: This is really the most brilliant way of explaining the issue.
Yes, but Evan's definition of "first survey" was a survey that:
"was free of gross errors (as would be recognized as 'gross error' by the courts ...)".
In other words, a "first survey" is one that by definition would not be held by a court to have been grossly erroneous. Unless you know of an objective standard, isn't the only way to determine whether a court would find a survey to have been grossly erroneous or not to ... go to a court and those above it?
If one considers litigation a very expensive means of determining whether a survey is "free of gross errors", then some practical test must apply if "gross error" is to be a meaningful criterion, and that is surely one of the equitable consideration of cost of remedies vs. cost of unremedied loss by accepting errors. I'd think that the outcome of that test will vary from situation to situation, that there is no universal standard.
Kent McMillan, post: 369202, member: 3 wrote: Yes, but Evan's definition of "first survey" was a survey that:
"was free of gross errors (as would be recognized as 'gross error' by the courts ...)".
In other words, a "first survey" is one that by definition would not be held by a court to have been grossly erroneous. Unless you know of an objective standard, isn't the only way to determine whether a court would find a survey to have been grossly erroneous or not to ... go to a court and those above it?
If one considers litigation a very expensive means of determining whether a survey is "free of gross errors", then some practical test must apply if "gross error" is to be a meaningful criterion, and that is surely one of the equitable consideration of cost of remedies vs. cost of unremedied loss by accepting errors. I'd think that the outcome of that test will vary from situation to situation, that there is no universal standard.
Hint...the property owners can agree to a solution. They only go to a Judge if they can't settle their dispute themselves. The Court has no authority in a civil matter until one of the parties submits the case to it.
Dave Karoly, post: 369259, member: 94 wrote: Hint...the property owners can agree to a solution. They only go to a Judge if they can't settle their dispute themselves. The Court has no authority in a civil matter until one of the parties submits the case to it.
Isn't the typical situation, though, where time has passed and a mistake has surfaced that went unknown? So, a surveyor is hired by one of the parties to make a survey of the part he owns or expects to own as successor in title to some prior owner. There are lien holders involved, so any written agreement would necessarily involve them. How is a surveyor to determine whether there has been gross error by any means other than simply estimating what the loss has been to one of the parties from some prior mistaken survey, what the cost of attempting to correct the mistake might be, and whether the difference between the two makes correcting the mistake obviously unfeasible.
The question really boils down to, what is the proper weight to give to a prior survey?
DANEMINCE@YAHOO.COM, post: 369321, member: 296 wrote: The question really boils down to, what is the proper weight to give to a prior survey?
Yes, and one can deal with it on the most elementary level of boundary markers that were restored from accessories, too, since an analogous question would be: "When is a corner restoration from accessories acceptable and when is it not?"
I'd say that various solutions can be divided into two categories:
1) Corner restoration cannot be definitely shown to be incorrect and
2) Corner restoration can be shown to be incorrect.
The majority of cases familiar to me would be Category 1, but Category 2 does exist.
Gross Error - Use it as a search term in your favorite search method of court decisions. What I'm sure you will find is that 1) there is very little objective definition or guidance as to when an error is or is not gross; 2) that the finding of gross error occurs only when the basic configuration of the parcel is significantly different than what appears to be described, when the basic character of the parcel on the ground is different from that indicated in the deed; 3) when one call in the description places several others in doubt where those other calls would not be in doubt if the erroneous call is disregarded.
In terms of parcel area, the absolute least amount as compared to the entire parcel was 1/3 of the overall area. A distance error like that in Aborigine would cause an area discrepancy of less than 10%. The resulting parcels are still of the basic configuration and character of the described parcels and the area discrepancy is no where near that of any of the gross error cases I've been able to find.
If you have trouble breaking out of a measurement technician mindset in order to understand the concept, then go ahead and justify it in equitable terms of cost to fix vs cost to leave as is if it makes it easier to accept. The problem is, the principle can't be reduced to mathematical terms or a specific magnitude of discrepancy and you won't have learned the underlying reasoning and won't be able to reliably recognize when it applies to other specific circumstances.
eapls2708, post: 369352, member: 589 wrote: Gross Error - Use it as a search term in your favorite search method of court decisions. What I'm sure you will find is that 1) there is very little objective definition or guidance as to when an error is or is not gross; 2) that the finding of gross error occurs only when the basic configuration of the parcel is significantly different than what appears to be described, when the basic character of the parcel on the ground is different from that indicated in the deed; 3) when one call in the description places several others in doubt where those other calls would not be in doubt if the erroneous call is disregarded.
In terms of parcel area, the absolute least amount as compared to the entire parcel was 1/3 of the overall area. A distance error like that in Aborigine would cause an area discrepancy of less than 10%. The resulting parcels are still of the basic configuration and character of the described parcels and the area discrepancy is no where near that of any of the gross error cases I've been able to find.
If you have trouble breaking out of a measurement technician mindset in order to understand the concept, then go ahead and justify it in equitable terms of cost to fix vs cost to leave as is if it makes it easier to accept. The problem is, the principle can't be reduced to mathematical terms or a specific magnitude of discrepancy and you won't have learned the underlying reasoning and won't be able to reliably recognize when it applies to other specific circumstances.
The idea of equity, mathematical solutions, reliance, possession, and so on with respect to the PLSS can so often be avoid by a good retracement of either the original sectional survey or the entryman survey (call it original if you wish, the book does). By accepting an interior survey as THE survey of the lines, you wash away all the court cases and such.....Kinda what (Keith egads!!!) had harped (I think that is a fair description) on.
Now you have a 1/16th line (set 60+ years ago) running 30' from the math solution splitting up the N2 and S2 of a NE4, trees have been marked, line has clearly been run, the only issue is was it "original" or not. If it is, then there is no conflict, no one "lost" anything. The question is do you accept it or not. It's the big question for all us retracement surveyors.
MightyMoe, post: 369354, member: 700 wrote: Now you have a 1/16th line (set 60+ years ago) running 30' from the math solution splitting up the N2 and S2 of a NE4, trees have been marked, line has clearly been run, the only issue is was it "original" or not. If it is, then there is no conflict, no one "lost" anything. The question is do you accept it or not. It's the big question for all us retracement surveyors.
Except don't you also have the landowners who were NOT parties to the events that spilt the NE 1/4 with their own rights? You aren't asserting that the 16th corner established for the NE 1/4 also necessarily fixes a similar split of the NW 1/4 between other landowners, are you?
That's why it makes no particular sense to call some established line "original" in that it confuses the line with a line that actually was originally run in the course of the government survey to which the patents refer.
eapls2708, post: 369352, member: 589 wrote: Gross Error - Use it as a search term in your favorite search method of court decisions. What I'm sure you will find is that 1) there is very little objective definition or guidance as to when an error is or is not gross [...]
If you have trouble breaking out of a measurement technician mindset in order to understand the concept, then go ahead and justify it in equitable terms of cost to fix vs cost to leave as is if it makes it easier to accept. The problem is, the principle can't be reduced to mathematical terms or a specific magnitude of discrepancy and you won't have learned the underlying reasoning and won't be able to reliably recognize when it applies to other specific circumstances.
Well, you just posted that there is no objective test of what constitutes a gross error. So, either judges consider the concept to be meaningless and merely use the phrase to cover some decision that they've reached by other means or there is some underlying test. I'd say that the equitable test is more generally useful, i.e. weighing of costs and benefits of repose vs. costs and benefits of correction of mistakes. You may not like to think of equity, but that is what forms the basis of all doctrines of establishment in the absence of black letter law.
In most cases, there are obvious bad solutions in which the costs to implement far outweigh the benefits to be realized. However, each situation has its own distinct features.
100% spot on Moe. But there are those who don't seem to be able to accept that an original survey can be performed once the description has been written, or they believe that an original survey is subject to correction if it contains more dimensional discrepancy than most surveyors are comfortable with finding.
Just for the sake of ending the circular arguments, I'm giving Kent permission to justify the outcome in past cases anyway he must to accept the result. At this point, there's been a lot of good discussion, but I don't think that continuing will add anything new of value unless someone can post the justification of the "first" surveyor doctrine in a case. It doesn't look like that's going to happen so it's devolved to Kent trying to redefine unacceptable error for the courts and others of us making fruitless efforts to help him understand that which he has no desire to understand, trying to focus back on the original question, and often just repeating what we've already explained.
I enjoy debate so long as it's civil and productive. Kent appears to enjoy debate regardless of whether it stays on point, is productive in providing new info, or simply circles endlessly back to previously answered points as if no answers had been given. This one has remained civil, to the credit of all involved, but has, IMO, become unproductive.
Thanks to all who contributed.
Kent McMillan, post: 369368, member: 3 wrote: Except don't you also have the landowners who were NOT parties to the events that spilt the NE 1/4 with their own rights? You aren't asserting that the 16th corner established for the NE 1/4 also necessarily fixes a similar split of the NW 1/4 between other landowners, are you?
That's why it makes no particular sense to call some established line "original" in that it confuses the line with a line that actually was originally run in the course of the government survey to which the patents refer.
Yes, of course I do, if it's the 1/16th line then it is fixed for everyone as federal law states.
MightyMoe, post: 369371, member: 700 wrote: Yes, of course I do, if it's the 1/16th line then it is fixed for everyone as federal law states.
So, by your theory, a surveyor can fix a boundary between landowners with whom he had no contractual relationship and even without their knowledge? That's novel, to say the least.
That's why they license us. When I set a 1/16th corner, even in the middle of nowherr, there may be hundreds of people tied to it,,,,,,,,,including the feds. But only one of them pay me,,,,,,,wish they all did
MightyMoe, post: 369373, member: 700 wrote: That's why they license us. When I set a 1/16th corner, even in the middle of nowherr, there may be hundreds of people tied to it,,,,,,,,,including the feds. But only one of them pay me,,,,,,,wish they all did
So, if you can't prove that the corner WASN'T set by a licensed surveyor, it has no control on adjoining PLSS parts? How long has surveying been a licensed profession in your state? At some point (like immediately) your theory amounts to an unconstitutional taking of interest in private property, doesn't it, if you are claiming to be able to in effect adjudicate land boundaries between adjoining landowners unbeknownst to them?
Kent McMillan, post: 369380, member: 3 wrote: So, if you can't prove that the corner WASN'T set by a licensed surveyor, it has no control on adjoining PLSS parts? How long has surveying been a licensed profession in your state? At some point (like immediately) your theory amounts to an unconstitutional taking of interest in private property, doesn't it, if you are claiming to be able to in effect adjudicate land boundaries between adjoining landowners unbeknownst to them?
You have me thinking, we should charge everyone who has an interest in the corner a portion of the cost, the neighbors, the state, the feds, the county, the mineral owners, a great source of revenue.;-)
As far as licensed, aren't we discussing a line over 70 years old, before there were licenses, I didn't set it, I just stated if it's the 1/16th line, then it's fixed and not subject to change by law.
unconstitutional taking? Whaaaaaaattttttttt?
You seem to be hung up on equity, measurement, all the things the PLSS is clearly not.
But again, do you except the line 30' off and if not why, remember the law states that the line is presumed to be the line and the burden of proof is on you to disprove it.
Like I say it's been ruled to favor the line as run.
MightyMoe, post: 369384, member: 700 wrote: As far as licensed, aren't we discussing a line over 70 years old, before there were licenses, I didn't set it, I just stated if it's the 1/16th line, then it's fixed and not subject to change by law.
So, essentially, what you're saying is that a corner that has been fixed by establishment following certain acts of adjoining landowners also fixes the boundaries of other landowners who weren't a party to that implied agreement because it was a line that was surveyed by someone under unknown circumstances at a time before there were any licensed surveyors?
While it may be *inconvenient* to think of the arbitrary adoption of erroneously surveyed lines as depriving someone of their vested property rights, how would you describe relieving them of 10% (to use Evan's number) of their acreage without even questioning whether it was a taking of property without due process of law?
I want to turn to the Oregon case. Dykes v Arnold. In that case the "first surveyor" was the county surveyor. The county surveyor stubbed in the center quarter. Many decades later, the surveyor who followed behind the county surveyor followed state law which required that he use the current manual to retrace a subdivision which had been previously subdivided under federal rules. This subsequent surveyor failed to consider the fact that a dependent resurvey cannot interfere with bona fide rights and he proceeded to set the center quarter at the intersection of lines drawn from opposite quarter corners, the method mandated by law as the legal center of section. The court agreed that the county surveyor's center quarter was established via an improper method. If I recall correctly the difference between the two positions was a considerable and it might have even reached some people's idea of what amounts to gross error. But the county surveyor's corner had been in the ground so long and so many people had relied upon it that it would have been foolish to over turn the first survey. This is the kind of balancing act that Kent has referred to.
I do not see that Kent is making a survey technician's boundary argument. At the same no one else is talking about the arbitrary adoption of erroneously placed lines or lines that are the result of a mistake.
I am confident that no matter how one weights the evidence, that there will be some piece(s) of evidence that the surveyor's opinion is in conflict with and that this fact does not in and of itself amount to an unconstitutional taking. I do agree that the boundary surveyor ought to be very careful and have a high regard for the rights of property owners and for this reason it is critical that the boundary surveyor understand that the acts of property owners as well as other surveyors, can dramatically alter how the terms of the deed, or the BLM procedures are translated to a location on the ground.
DANEMINCE@YAHOO.COM, post: 369431, member: 296 wrote: I want to turn to the Oregon case. Dykes v Arnold. In that case the "first surveyor" was the county surveyor.
This is the key fact of Dykes v. Arnold upon which the court almost certainly decided the case:
"As Nyhus testified, Denison's center, if legally controlling, would result in a kind of boundary ÛÏchaosÛ throughout the area. Ûâ If the Denison center were used for every deed and easement that had, over the years, made a specific call to the center of the section, the legal boundaries for property throughout the area would not coincide with the lines of occupation. Ûâ Tomjack Road would not be where it should be, based on the deeds conveying the property to the county. Fences that had long been treated as running on boundary lines between parcels would be well off of those boundary lines. Ûâ Driveways would be out of place. Ûâ Tomjack Road would be in the wrong place. Ûâ And at least one property owner's house would no longer be on his lot, but would sit in the middle of where Tomjack Road should be located."
http://caselaw.findlaw.com/or-court-of-appeals/1259427.html#sthash.mh9hOzrl.dpuf
In other words, the cost of the remedy hugely exceeded any benefit to be gained by attempting to correct a 70 ft. mistake in an early survey made by a faulty method.
I think the bottom line w/ all of this is that if you have monuments in the ground that are at significant odds with the deed (whatever that may mean to you given the situation) and you have no idea if these monuments were set as part of the original transaction then there is a problem. And, it's not a problem that you as a surveyor can solve. Push for a Line of Agreement or Lot Line Adjustment, if they won't go for it, back off.
My comments have not been directed to "solving" any problem. My comments are directed at the formation of a professional opinion. This is a stumbling block for many surveyors,myself included. If one starts from an inflexible position based upon a limited notion of what a surveyor can or cannot do, then they will have a closed mind as to the proper evaluation of entire classes of evidence. The proper formation of a professional opinion is based upon an entirety of the relevant evidence to the question and is not "fixing the problem", giving away land to another or the usurpation of civil liberties. The properly formed opinion concerns itself with gathering evidence to answer the question of WHERE the boundary is.
