Paul in PA, post: 359476, member: 236 wrote: Lot 10 may be using right of way and have rights of use, but since it had no original underlying fee the right of way does not revert to Lot 10. The call to the sideline is just that a call, so you might argue that lot 10 may include the slim wedge, it does not however include the roadway.
I just noticed an error on the 1909 map, that S25å¡E 139.xx should be 199.xx.
Paul in PA
I believe it is 199, the dashed line next to it is what makes it look like a 3.
What about the 64.77 on the tax map where it was once 39.77? I don't think I mentioned that deed call, but it was 37.99 from the road and then goes around. I mean I know it's only a tax map, but it feels like everything is showing the reversionary going back to lot 10.
Dan Patterson, post: 359492, member: 1179 wrote: What about the 64.77 on the tax map where it was once 39.77? I don't think I mentioned that deed call, but it was 37.99 from the road and then goes around. I mean I know it's only a tax map, but it feels like everything is showing the reversionary going back to lot 10.
While I agree that the tax map shows Lot 10 as having half of Second Avenue, that doesn't mean lot 10 is entitled to it. Once the municipality vacates a road, who gets what is based in common law. In my experience never assume that a municipal official/attorney/surveyor/engineer understands road vacations in New Jersey. I have seen towns sell roads to the adjoinor (with out vacating them), try to sell roads to third parties, split marginal roads in half, attempt to give a road all to one adjoinor or the other, the list can go on.
In my opinion the only way that Lot 10 is entitled to the 25' is:
[INDENT=1]Before the vacation:[/INDENT]
[INDENT=2]If Lot 10 acquired the triangular piece by deed from the developer or his successor, then yes he is entitled to the 25'.[/INDENT]
[INDENT=2]If Lot 10 acquired the triangular piece by adverse possession, then he is probably entitled to the 25'.[/INDENT]
[INDENT=2]If Lot 10 's boundary is the sideline of the road by agreement or other boundary location doctrine, then no he is not entitled to the 25'.[/INDENT]
[INDENT=1]After the vacation:[/INDENT]
[INDENT=2]If Lot 10 acquires the 25' strip by adverse possession (30 years).[/INDENT]
[INDENT=1]Or if Lot 10 acquired the 25' strip by deed from the developer or his successor, before or after the vacation, then yes he is entitled to the 25'.[/INDENT]
Hopefully Lot 10 is an adjoinor and not part of the parcel you are surveying.
It is part of my survey and his driveway is fully in the R/W and has been for some time I would say. The house was built in 1986.
should I have charged more than $250 for this? :'( hahah
Dan Dunn, post: 359514, member: 911 wrote: While I agree that the tax map shows Lot 10 as having half of Second Avenue, that doesn't mean lot 10 is entitled to it. Once the municipality vacates a road, who gets what is based in common law. In my experience never assume that a municipal official/attorney/surveyor/engineer understands road vacations in New Jersey. I have seen towns sell roads to the adjoinor (with out vacating them), try to sell roads to third parties, split marginal roads in half, attempt to give a road all to one adjoinor or the other, the list can go on.
In my opinion the only way that Lot 10 is entitled to the 25' is:
[INDENT=1]Before the vacation:[/INDENT]
[INDENT=2]If Lot 10 acquired the triangular piece by deed from the developer or his successor, then yes he is entitled to the 25'.[/INDENT]
[INDENT=2]If Lot 10 acquired the triangular piece by adverse possession, then he is probably entitled to the 25'.[/INDENT]
[INDENT=2]If Lot 10 's boundary is the sideline of the road by agreement or other boundary location doctrine, then no he is not entitled to the 25'.[/INDENT]
[INDENT=1]After the vacation:[/INDENT]
[INDENT=2]If Lot 10 acquires the 25' strip by adverse possession (30 years).[/INDENT]
[INDENT=1]Or if Lot 10 acquired the 25' strip by deed from the developer or his successor, before or after the vacation, then yes he is entitled to the 25'.[/INDENT]Hopefully Lot 10 is an adjoinor and not part of the parcel you are surveying.
Good post. I love reading this stuff and people's take as it really helps further my knowledge and understanding.
His deed does say it is bounded by the easterly side of the road, so wouldn't that override the distance calls that create the triangular gap therfore eliminating the gap?
Also I'm in NY and we deed the roads to the municipality so the developer no longer has title to them. In this case, one couldn't claim adverse over the vacated road since we cannot claim AP against a municipality.
Rich., post: 359526, member: 10450 wrote:
His deed does say it is bounded by the easterly side of the road, so wouldn't that override the distance calls that create the triangular gap therfore eliminating the gap?
You cant sell what you don't own. Lot 10 owned to the tract line, just because I write a description calling for the sideline of a road doesn't allow me to claim the area between the tract line and the sideline of the road. What if it was 20' instead of 2'? Its pretty clear from the Filed Map that the sideline of the road and the tract line are not contiguous.
Rich., post: 359526, member: 10450 wrote: Good post.
Also I'm in NY and we deed the roads to the municipality so the developer no longer has title to them. In this case, one couldn't claim adverse over the vacated road since we cannot claim AP against a municipality.
NYSAPLS has a good booklet "Highway Law and The Land Surveyor" . In NJ other than studying the Case Law I don't know of any book.
Dan Patterson, post: 359521, member: 1179 wrote: It is part of my survey and his driveway is fully in the R/W and has been for some time I would say. The house was built in 1986.
He may be entitled to put his driveway in the road, but still not be able to claim it. It was a paper street prior to 2013, which may have entitled him to use it by crossing the unknown owner's wedge or entry from the end. If that half of the road was vacated in 2013 putting it in unknown private ownership, he has only 3 years of adverse use and possession. He may have adverse possession of the strip.
I surmise Quiet Title action is required at a minimum.
Paul in PA
Glad I posted this, because I may have just gone with "vacated by ordinance 2013-35 per tax map" and shown the line as such. Now I'll probably end up showing some area of questionable title notation instead.
So who gets the road when it's vacated then? The town owns the lot on the other side of the street.
Dan Patterson, post: 359541, member: 1179 wrote: The town owns the lot on the other side of the street.
In that case, a quit claim from the town to your owner for half of the road might clean it up with a minimum of fuss.
"You canÛªt sell what you don't own. Lot 10 owned to the tract line, just because I write a description calling for the sideline of a road doesn't allow me to claim the area between the tract line and the sideline of the road."
Huh??
From Dan's post:
With respect to the road reverting back to lot 10 so far all I have to go by is this from lot 10's deed:
"....to a concrete monument at the northerly terminus of the westerly sideline of Second Avenue; thence South 22 degrees 34 minutes 00 seconds East and running along the westerly sideline of Second Avenue, a distance of 199.32 feet to an Old Stone found....."
As I understand the situation, just because the other surveyor had the wrong monument at the southerly end of the line (he was confused in the location of the sideline of the road) doesn't mean Lot 10 doesn't own to the sideline of the road as obviously intended. There is no gap or sliver of land between lot 10 and second street - unless there is pretty darn good evidence that the grantor intended to retain the unusable sliver.
Yes maybe I missed something but TAX LOT 10 I never knew came from the old tract line depicted on the plat. I was under the assumption that was just an old tract line shown. It is possible but that might take some investigation to find out prior to making the determination if they came from a parent tract bound by that tract line shown.
Brian Allen, post: 359545, member: 1333 wrote: There is no gap or sliver of land between lot 10 and second street - unless there is pretty darn good evidence that the grantor intended to retain the unusable sliver.
It was very common in this area at that time for developers to retain strips such as this between marginal roads and adjoining tracts to prevent the adjoinor from accessing the road. The developer had to pay to improve the road but could only sell lots on one side of the road. If you owned the adjoining tract and wanted to sell off lots using the road, I paid to improve, you would have to purchase the strip from me. I could recover the cost of improving the road from you in the sale. From a planning standpoint not a good practice and latter outlawed, but in 1909 not uncommon.
Rich., post: 359548, member: 10450 wrote: Yes maybe I missed something but TAX LOT 10 I never knew came from the old tract line depicted on the plat. I was under the assumption that was just an old tract line shown. It is possible but that might take some investigation to find out prior to making the determination if they came from a parent tract bound by that tract line shown.
Lot 10 came out of the area shown as wooded. Based on the part of the map that Dan posted the wooded area is not part of the subdivision.
I'm sure Dan has the whole map.
Rich., post: 359548, member: 10450 wrote: Yes maybe I missed something but TAX LOT 10 I never knew came from the old tract line depicted on the plat. I was under the assumption that was just an old tract line shown. It is possible but that might take some investigation to find out prior to making the determination if they came from a parent tract bound by that tract line shown.
It's an irregular shaped tract on the original filed map. Everything inside got turned into 20x100 lots and 50' streets. The little tree area is on the outside which is where lot 10 is. I do think the intent when 10 was created was for it to run along the road rather than maintain that little sliver. I'm going to try to running lot 10 back again.
I would post more stuff, but I'm in the middle of resolving it and don't want to post too much on a public site (especially if this is going to turn into a subdivision. Some of the jersey guys have probably already guessed exactly where it is....
What those who want to lock Lot 10 into the S 25 E line because it shows on a filed subdivision is that there are two major boundary components to nearly all subdivisions.
There are the interior lines and points that divide the parent tract into new, smaller parcels. For those lines and points, the subdivision is an original survey and so those lines and points are fixed as placed by that survey. If Dan's problem line were one of these interior lines, then it would simply be a matter of record bearing & distance vs measured bearing & distance, and location wouldn't be an issue.
The boundary component many either forget about or were never taught to consider is that the exterior boundary is a retracement of the existing boundary of the parent parcel, and as such, the subdivision lines and points of the exterior are not sacrosanct as are the new interior lines & points. The subdivision map and survey can be in error on the exterior boundary and thus may not reflect the true intent of the subdivider.
There can be very unique circumstances by which an actual gap might be created without the intent to have done so indicated on the subdivision map, but such circumstances are very rare and must be supported by evidence which can overcome the presumption that no gap was intended.
That the subdivision map used the S 25 E bearing instead of the S 24-09 E bearing can be readily presumed to have been a mistake upon viewing the older subdivision map and seeing what appears to be a control line (S 25 E) running adjacent to the established street line (S 24-09 E). Given those circumstances, there would need to be some evidence positively affirming the intent to have created the small useless sliver of land. Such evidence would be the graphic and/or noted indication of a reserved portion of the parent parcel on the map, title history of the parent parcel having been bounded by the S 25 E line and not the edge of the street, a RW deed for the sliver to be added to the street RW, or the like.
For the exterior boundary of the newer subdivision, the map of that subdivision carries no more weight than a RS - it's reflective of the subdividing surveyor's opinion of what that boundary is and where it is. As such, it is subject to correctable mistakes and errors. The exterior boundary as it truly existed prior to subdividing that parent parcel, and the intent of the subdivider to have either disposed of all of his land through the subdivision, or to have held back some portion are the controlling factors of that boundary. The courts in most, if not all US jurisdictions have ruled against finding an intent to reserve small useless portions of land without the clear, express indication of that intent.
Inferring that intent based upon the bearing used is not an example of having clear and express evidence of it. The current Assessor's Parcel Map is not evidence of it. Assessor's draftsmen simply draw lines on the tax maps based on the info provided them on subdivision maps. If the subdivision map contains a mistake, so does the APM. Inference is not evidence, and it is a risky thing to substitute inference for evidence. That is how the rigid rules of surveying are born and take root. Those rules do not exist in the law that actually governs boundaries and boundary location.
A surveyor writes a book, and in the chapter on subdivisions makes the general statement that once the subdivision is accepted by the local government and filed, it's lines and points are fixed. The author makes another general statement in the chapter on descriptions or on conflicting elements that for a line or object to have a controlling effect on the boundary location it must be called for in the description. In some other portion of the book, the author does state that all rules of construction are subservient to the intent of the parties to the conveyance by which a boundary was located, subject to senior rights, etc., but does not clearly include such qualifiers when presenting the general principles in other portions of the book.
Some (many or even most) surveyors study the book by looking up the portion that appears to address the specific question they have, or as college students, scan over the chapters taking note only of the portions their professor highlighted in lecture (with the professor probably having little experience or interest in boundary surveying). Studied like that, it is very easy to take statements and principles out of context. In some cases, depending upon how the book is structured, it may be somewhat difficult to put the statement or principle into full context.
And through this hunt-n-peck approach to studying secondary or tertiary sources of law, having some anecdotal 2nd or 3rd hand accounts of what happened at the trial level of a handful of local cases, and making some inferences about how the principles are to be applied, a rule of surveying develops that is loosely based on the law but ends up being largely contradictory to the law, and competes with the law in actual practice by surveyors. That rule is perpetuated by being handed down from mentor to young surveyors with their eye on becoming licensed.
The licensing exams do nothing to dispel the lore because most such rules of surveying are true for the most general application and the exams are designed to determine if the examinee is minimally competent to practice. Only simple, general case scenarios are used as the bases of exam problems.
Bottom line, there are no absolute rules that are always applied given a limited set of basic facts. There are rules that are usually applied given certain facts and there are certain presumptions the law directs us to make (inferences we must make by law given certain facts). But the full set of evidence may, and often does show the contrary to be true. When that happens, the reason for the general rule fails and the rule is not applicable.
If we rigidly apply the rules of surveying without considering, or in spite of what the full set of facts may show, then we are relegating ourselves to the role of a technician following the guidance of a generally accepted technical manual and tacitly stating that it takes a "real" professional (a lawyer or judge) to decide if the accepted technical rule should be deviated from.
Society has decided that surveying is a profession. Society in general, and the courts specifically have the right to and do regular rely on surveyors to be the experts when it comes to locating boundaries. To do that, we not only need to know how to answer the question of fact of where is the boundary, but must also be able to recognize the answer to the legal question of what is the boundary. How can we locate something if we can't 1st identify what it is.
Accordingly, the most basic practice manual we have is not something on technical processes, and it is not going to present us with clearly stated principles that are to be applied 100% of the time given a certain fact. Nor is it organized in nice neat chapters which focus on specific aspects of boundary surveying. This manual takes a lot of time to read, and is added to so constantly that it is nearly impossible to keep up with reading it all in its entirety. It has a list of hundreds, if not thousands of contributing authors from all parts of the country. It addresses nearly every set of circumstances you are likely to encounter in a full career. Once you've read a good portion of it, you find that through all these various authors from various backgrounds and various parts of the country, that on the vast majority of principles, they are pretty consistent.
This manual is comprised of the published cases of the courts of the US and the States. You do not need to be a member of the Bar to access it and are not required to have a law license to study it. It is available to anyone. The only requirement to putting it to use is that the surveyor be willing to employ a professional level of reasoning when deciding which portion(s) of the law are applicable to particular boundary questions in light of all the facts that are known about the circumstances.
Sorry for the length. I got off on tangents.
