Senior rights? (Land Surveying)

by Lex Mercatoria, Sunday, October 09, 2011, 21:45 (1332 days ago)

Jones owns a parcel of land one thousand foot square which has old irons at the 4 corners. Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back. The deed reads, “the eastern 500’ of Jones’ land”. In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly. In 1995 Eastman sells to Mr. NewYoung. A year later a survey is performed to erect a fence. All irons are found. The irons set in 1960 are found to be 996’ west of the east line. Where is the property line?

Senior rights?

by Brooks Cooper @, Arkadelphia, Texas, Sunday, October 09, 2011, 23:26 (1332 days ago) @ Lex Mercatoria

If I understand correctly the pins should be set 500' west of the east line per original intent.

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Senior rights?

by mattsib79 ⌂ @, Louisville KY, Monday, October 10, 2011, 02:45 (1332 days ago) @ Lex Mercatoria

Depends n occupation. If the pins have been relied upon by the adjoining owners then the pins hold over original intent. A surveyors mark even if it was set in error holds if relied upon by the adjoining owners.

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Senior rights?

by Kris Morgan ⌂ @, Rusk, Texas, Monday, October 10, 2011, 05:18 (1332 days ago) @ Lex Mercatoria

The property line is between the original monuments used to mark the original division line.

Had they never been set, it would be at 500' West of the East line as Brooks noted.

Follow the footsteps

--
"You don't have to be a good surveyor if you find all the corners."

Kris

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Senior rights?

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 05:26 (1332 days ago) @ Lex Mercatoria

Come again? When you say "The irons set in 1960 are found to be 996’ west of the east line," do you mean the irons which in fact were "old irons" in 1960? Or did the 1960 surveyor do the entire parent parcel, miss the westerly irons by 4 feet, and set (then-) new irons at 996'? Or do you mean there was some whopper of a blunder, and pins intended to be set 500 feet from the east line were actually set 996 feet from the east line?

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Senior rights?

by Newtonsapple @, Greene, Maine, Monday, October 10, 2011, 05:31 (1332 days ago) @ Cee Gee

Come again? When you say "The irons set in 1960 are found to be 996’ west of the east line," do you mean the irons which in fact were "old irons" in 1960? Or did the 1960 surveyor do the entire parent parcel, miss the westerly irons by 4 feet, and set (then-) new irons at 996'? Or do you mean there was some whopper of a blunder, and pins intended to be set 500 feet from the east line were actually set 996 feet from the east line?

You beat me to it, Cee Gee. I have exactly the same question(s).

--
Our character is what we do when we think no one is looking.
Newton K. Hartford Maine PLS 2474

Senior rights?

by Duane Frymire @, Monday, October 10, 2011, 05:53 (1332 days ago) @ Cee Gee

Yeah, that's like saying the 1960 irons were found in someones garage. No way I would believe they are in their original undisturbed location.

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Senior rights?

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 06:02 (1332 days ago) @ Cee Gee

I think he meant 496'. I have been wrong before though. ;-) The monuments found control the boundary, if they are the monuments set by the surveyor when the eastern 500' was sold off.

--
David A. Lee, PS

Senior rights?

by Lex Mercatoria, Monday, October 10, 2011, 06:37 (1332 days ago) @ Cee Gee

Oh yeah, I fubar'd that. I meant 496'.

Senior rights?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 06:59 (1332 days ago) @ Lex Mercatoria

Sounds like the West would get their 500 feet. The pins are not referenced in the deeds. Unless they could be considered the first survey. If fences were erected based on these irons, back in the 60's that would change my opinion. The east would get the remainder of the original lot less or greater than 500' based on the survey of the entire original lot. The senior rights to the west should get his 500'. If the deed said the west 500' marked by irons and described them, then the Irons would hold without question.

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Senior rights?

by Kris Morgan ⌂ @, Rusk, Texas, Monday, October 10, 2011, 07:05 (1332 days ago) @ Mapmaker151

Sorry, but senior rights only kick in when you can't find or follow the footsteps of the original surveyor. In this case, the irons are there and are notorious to the neighborhood as being original and undisturbed. The tract has 496' in it.

--
"You don't have to be a good surveyor if you find all the corners."

Kris

Senior rights?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 07:19 (1332 days ago) @ Kris Morgan

You may be right, this is a grey area for me. I was always taught "original monuments hold even if set in error, but wouldn't these be secondary monuments? If they were referenced in the deed they would hold regardless. To me they were set in error, and not the holding monuments. Once again a grey area for me since monuments hold over all other (if original). The irons of the entire lot would hold in my view.

Senior rights?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 07:30 (1332 days ago) @ Mapmaker151

If the West lot had not been surveyed, and irons were set over the line from a survey on the East lot. Senior rights would hold. The survey would be in error. example the total lot was 996, but the surveyor marked off the East as 500, taking 4' of the senior lot. Once again I go to the deed. If the West lot was the west 500, to the irons set per the 1960 survey..Then the monuments (even being secondary) would hold.

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Senior rights?

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 08:32 (1332 days ago) @ Mapmaker151

Like was mentioned before, junior/senior doesn't matter in this situation. Monuments were set where the surveyor measured 500' when the east lot was sold. The west lot sold and the buyer was shown the monuments. The monuments control the boundary line. Why would you create a problem where there wasn't one previously? What is on the ground is the survey. The measurements are just a guide to find what is on the ground.

--
David A. Lee, PS

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Senior rights?

by Dave Karoly, Sacramento, CA, Monday, October 10, 2011, 20:03 (1331 days ago) @ DavidALee

The monuments are 100% accurate.

The 500' number in the Deed has a precision of +/-4'.

Senior rights?

by Jon Payne @, Tuesday, October 11, 2011, 07:18 (1331 days ago) @ Dave Karoly

I don't believe the answer could be expressed any more succinctly yet be so correct.

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Mapmaker

by Kris Morgan ⌂ @, Rusk, Texas, Monday, October 10, 2011, 08:49 (1332 days ago) @ Mapmaker151

Many times in Texas, we are asked to survey something and our descriptions don't get used. This is the rational for my argument. We don't always know that the irons are original from the deed. However, in this example, we have to believe that the irons are original based on the information given, which was they were set when the tract was created and shown to everyone as the corners.

NOW, if you have a deed where the East 500' was conveyed and not located at the time of conveyance, then you may be right.

As always, it depends. :-)

--
"You don't have to be a good surveyor if you find all the corners."

Kris

Mapmaker

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 08:55 (1332 days ago) @ Kris Morgan

Like i mentioned in my 1st comment It's a grey area for me. I still think you fall back on the original irons of the entire lot. The irons set at 496 were set in error, they way I read this. I would consult a few senior mentors before I hung my hat on any decision. Fortunately I've worked under some great Surveyors, and would not hesitate to get their opinion. I'm testing for my license in a couple weeks, so I'm no expert. Just trying to learn a better way here.
I enjoy the different ideas and debate about these issues. I might be better suited to watch and keep comments quiet. lol. You learn more from participating though.

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Mapmaker

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 08:59 (1332 days ago) @ Mapmaker151

You do learn more from participation. Debating certain topics and providing your input on those topics is a great way to get feedback from others.

--
David A. Lee, PS

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Mapmaker

by Kris Morgan ⌂ @, Rusk, Texas, Monday, October 10, 2011, 09:24 (1332 days ago) @ Mapmaker151

We're straight dude!
:-)

--
"You don't have to be a good surveyor if you find all the corners."

Kris

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Mapmaker

by Brian Allen @, Preston, Id, Monday, October 10, 2011, 17:36 (1331 days ago) @ Mapmaker151

Mapmaker, Congratulations on sitting for your PLS exam.

I've been following your comments and input not only in this discussion but others. It seems like you are fairly open-minded and willing to learn. I'll throw in my 2 cents for its worth. Reading text books to learn about surveying laws is only a good first step. Most of the books are fairly good, I prefer Clark to any of Browns though. I would strongly recommend Lucas's new book. What you need to do is not take what they say for gospel. Research the claims and statements for yourself. Read the case-law cited, and if none is cited (which happens quite often) find case law on the specific issue at hand. There are quite a few good sources for case law: google scholar, leagal law, etc. If you have any trouble finding relavent cases, please ask this board, as you know, there are many experts that participate on here and most will be more than happy to help as would I.

Good luck

Mapmaker

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 19:19 (1331 days ago) @ Brian Allen

Thanks. I like the discussions here. Many I refrain comment as to not show ignorance. Once in awhile (like this one ) I try to participate ( possibly putting foot in mouth). I try to study several different sources. Fortunately I have a good group of mentors. Most from Wa State, but a couple here in Kansas now. I find there is a lot of knowledge on this board to learn from.
Once I pass my test, I realize I'm no expert. It just will mean I'm dangerous. Learning never ends in this field.

Senior rights?

by Duane Frymire @, Tuesday, October 11, 2011, 05:02 (1331 days ago) @ Lex Mercatoria

In that case, of course you hold the monuments. If they were not both so perfectly in precisional harmony you might question if they were actually set to monument the line. But both are exactly 4 feet off. This is evidence that they do mark the boundary and have not been disturbed. Similar to the exterior pins. If we find a bunch of pipes that all fit within 1 foot in a small subdivision from 1960, but one that is out by 5 feet, then we know that one has been stubbed in approximately somehow and is not indicating a consumation of the contract. The other certainly are. Whether they are called for or not is merely a part of the evidence. Called for monuments are more easily proved than uncalled for. But tens of thousands of monuments have been set to consumate deed contracts and never mentioned in the record. You're going to be in court and losing a lot if you reject all these original undisturbed monuments. Judges are not dumb, they generally know the history of land boundarys and surveying in the U.S..

Typical rural surveying work in 1960 would turn in precisions of 1:200 in good conditions. Throw in some woods, hills, green field crew, etc., etc.,. Four feet in 500 may seem like a lot to you now. But this is really nothing out of the ordinary. The only thing suspect is that the exterior and interior pipes match precisions within themselves so closely. Obviously this is a hypothetical rather than a real situation.

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Senior rights?

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 08:04 (1332 days ago) @ Lex Mercatoria

Jones owns a parcel of land one thousand foot square which has old irons at the 4 corners. Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back. The deed reads, “the eastern 500’ of Jones’ land”. In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly. In 1995 Eastman sells to Mr. NewYoung. A year later a survey is performed to erect a fence. All irons are found. The irons set in 1960 are found to be 996’ west of the east line. Where is the property line?

Here we go, playing number games again... You've got physical evidence of boundary lines run out and marked out on the ground 51 and 26 years ago. People don't sell numbers; they sell land. Boundaries aren't determined by Euclidean Geometry; they're determined by landowners who set monuments in good faith for the purpose of marking their boundaries. It's our job, as surveyors, to retrace the footsteps, recover the physical boundary evidence left behind to mark the boundaries. When we find them, we have no authority to "fix" them just because they aren't where we think they "should" have been.

This isn't a problem of seniority at all. You've recovered the monuments. Priority is only an issue when you are marking the boundary for the first time. The boundaries have all been established on the ground for well past the requisite period of time in any state. How many laws can you count that demand the markers be accepted as controlling the boundaries. I can count at least five (you only need one).

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBS

by Kris Morgan ⌂ @, Rusk, Texas, Monday, October 10, 2011, 08:51 (1332 days ago) @ JBStahl

I was right with you up until the "statutory time period comment". At least in Texas, while the AP may pass the instant the statue has been perfected, it still needs a district judge to bless the occurrence. So I'll disagree with you on that point.

All the rest, I'm with ya!

--
"You don't have to be a good surveyor if you find all the corners."

Kris

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Facts Indicate The Pins May Date To 1960

by Paul in PA @, Monday, October 10, 2011, 08:58 (1332 days ago) @ Kris Morgan

No facts are given that anyone relied on those pins. In 1996 a survey was done to erect a fence. That survey showed the pins were wrong. No information is available to indicate a fence was built and where.

I see a lot of assumptions on information not given". In fact there is no information given on when the question of Senior Rights arose, 1996 or 15 years later or somewhere in between.

Paul in PA

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JBS

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 08:58 (1332 days ago) @ Kris Morgan

Kris... You might want to check your sources regarding the priesthood blessing by the district judge. The boundary is fixed at the time of fulfillment of the statutory requirements, not at the time of the blessing. That makes the monuments control before any blessing is given. Only when one of the parties challenges the running of the statutory provisions is a blessing required. Before then, the blessing should be given by the surveyor.

I also left out the elements of AP, because most states don't rely on AP to establish boundaries like TX does. They've got their own unique thing going with AP in TX to make up for their lack of common law doctrines relied upon by the other states.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBS

by Kris Morgan ⌂ @, Rusk, Texas, Monday, October 10, 2011, 09:29 (1332 days ago) @ JBStahl

Kris... You might want to check your sources regarding the priesthood blessing by the district judge. The boundary is fixed at the time of fulfillment of the statutory requirements, not at the time of the blessing. That makes the monuments control before any blessing is given. Only when one of the parties challenges the running of the statutory provisions is a blessing required. Before then, the blessing should be given by the surveyor.

I also left out the elements of AP, because most states don't rely on AP to establish boundaries like TX does. They've got their own unique thing going with AP in TX to make up for their lack of common law doctrines relied upon by the other states.

JBS

Oh, I agree fully that title passes the instant that the statute is perfected, but in Texas, it's a district judge that blesses whether or not it has been perfected. Anyone else is playing with fire.

IMHO, anyone who states that it has or has not passed, without that, is looking to get sued and chastised by the district judge for usurping his power.

Several attorneys have indicated that I may even violate their constitutional rights by doing so. :-)

I've said it many times, I've learned much from you and Richard over the years, this is the attitude that I've settled in on. I'm very well versed with Chapter 16 of the Texas Civil Practices and Remedies Code, and feel confident that I can spot, identify, and advise my clients or the situations as they've presented themselves with regard to AP, mutual mistake, practical location, etc. On every one but AP, will I step out and make the decision, and only after I have interviewed the parties who erected the fence (not subsequent parties). Otherwise, it's advice and conflicts shown.

I'm a part-time member of the "agree team". :-)

--
"You don't have to be a good surveyor if you find all the corners."

Kris

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JBS

by Dave Karoly, Sacramento, CA, Monday, October 10, 2011, 20:10 (1331 days ago) @ Kris Morgan

No title passes in boundary establishment cases. The monumented boundary is the boundary between the two titles although it doesn't perfectly match the numbers in the Deeds.

Senior rights?

by Lex Mercatoria, Monday, October 10, 2011, 09:04 (1332 days ago) @ JBStahl

But I've got a legal text book that lists controlling factors in case of a conflict. They all put senior rights over monuments.

Senior rights?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 09:09 (1332 days ago) @ Lex Mercatoria

That's what I was taught. Unless the monuments a referenced in the deed. "the East 500 feet marked with, or bounded by 4 iron pins" then the monuments hold over distance calls.

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Senior rights?

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 09:25 (1332 days ago) @ Mapmaker151

That's what I was taught. Unless the monuments a referenced in the deed. "the East 500 feet marked with, or bounded by 4 iron pins" then the monuments hold over distance calls.

That's what I was taught as well. Then I read a bit further in the court cases (primary sources) and read a bit more closely in the "textbooks." What rules of law trump monuments and senior rights? Yes. That's right. The rules of law which prove that the boundary has been established by actions of the parties through doctrines of agreement and estoppel. If that weren't the case, then every surveyor rerunning the line would continue to set more and more worthless monuments that will never control. Because, face it, we still can't set monuments at precisely 500'. With that premise in mind, what landowner would ever want to buy property where they'll never know the boundaries are fixed? It's lunacy.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

Senior rights?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 09:31 (1332 days ago) @ JBStahl

A good discussion. I guess it shows why there are boundary Law cases. Still a grey area for me, but I can see all the arguments given.

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STARE DECISIS, ET NON QUIETA MOVERE

by Dan B. Robison ⌂ @, Little Rock, Arkansas, Monday, October 10, 2011, 10:13 (1332 days ago) @ JBStahl

Wallace v. Fordyce Lumber Company

In some instances judgments and court decrees, as well as accepted usage, go back to corners established by our forebearers on the basis of the best knowledge they had obtainable and we rather think that the logic which brought forth the ancient maxim STARE DECISIS, ET NON QUIETA MOVERE, which has done so much to stabilize the decisions of the courts, might well be applicable as we contemplate the effect of the change of long established lines. In these circumstances we prefer to stand by precedent and not disturb settled points.

DDSM

--
Waf gf Lpwp fmsfgywypx ncl zowyicwfot c vcyozef. Nafx af ceeydfg yx Ceucxlcl, af lwyoo lcn ayilfov cl c qcoocxw jpxkzfepe, hzw, ht waf wyif pv ayl gfcwa, ayl lsyeyw ncl hepufx.

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The Easterly 500' Has Senior Rights

by Paul in PA @, Monday, October 10, 2011, 08:11 (1332 days ago) @ Lex Mercatoria

Assuning the resuvey showed the outbounds to be at 1000'.

Jones sold Easterly the easterly 500' making it the Senior Parcel.

Jones sold Westerly the westerly 500', not the remainder. That Jones pointed to the pins is hearsay, since the deed language does not confirm that action. Jones did not sell the remainder to Westerly.

Easterly needs to bring Jones into court where his lawyer should ask, "Did you sell Easterly the easterly 500? Did you sell Westerly the westerly 500?" Then the lawyer turns to the judge, "Your honor, a correctable error has been made in staking out the easterly tract, and we thank Mr. Westerly for pointing it out to us. Mr. Jones is not a surveyor and relied upon what was told to him in the past. The record is clear as to Jone's intent, we ask for a directed verdict."

EOS

Paul in PA

The Easterly 500' Has Senior Rights

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 08:17 (1332 days ago) @ Paul in PA

That's the way I see it also.

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Above You Said Westerly Was Senior

by Paul in PA @, Monday, October 10, 2011, 08:21 (1332 days ago) @ Mapmaker151

Which are you holding?

Paul in PA

Above You Said Westerly Was Senior

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 08:32 (1332 days ago) @ Paul in PA

The East 500 feet.

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Above You Said Westerly Was Senior

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 08:34 (1332 days ago) @ Mapmaker151

So you would set 2 new pins 4' away from the pins found at 496'? Why?

--
David A. Lee, PS

Above You Said Westerly Was Senior

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 08:38 (1332 days ago) @ DavidALee

Senior rights. If fences were built to the pins I'd reconsider. If nothing has been built, deed should hold. Both parties get what they paid for. The pins were set in error, and they should be replaced.

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Above You Said Westerly Was Senior

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 08:46 (1332 days ago) @ Mapmaker151

The pins were not set in error. The pins were set at a point where the surveyor measured 500' with the tools he had available. The fact that we can measure better doesn't make his work wrong. The owners have relied on these pins for years. The monuments found should control in this situation.

--
David A. Lee, PS

Above You Said Westerly Was Senior

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 08:48 (1332 days ago) @ Paul in PA

I misspoke then I saw East as having senior rights, maybe I wasn't clear.

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The Easterly 500' Has Senior Rights

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 08:53 (1332 days ago) @ Paul in PA

Assuning the resuvey showed the outbounds to be at 1000'.

Jones sold Easterly the easterly 500' making it the Senior Parcel.
Jones sold Westerly the westerly 500', not the remainder. That Jones pointed to the pins is hearsay, since the deed language does not confirm that action. Jones did not sell the remainder to Westerly.

Easterly needs to bring Jones into court where his lawyer should ask, "Did you sell Easterly the easterly 500? Did you sell Westerly the westerly 500?" Then the lawyer turns to the judge, "Your honor, a correctable error has been made in staking out the easterly tract, and we thank Mr. Westerly for pointing it out to us. Mr. Jones is not a surveyor and relied upon what was told to him in the past. The record is clear as to Jone's intent, we ask for a directed verdict."

And the defense counsel stands up and says, "not so fast, your Honor." "We have a few questions to ask in cross-examination."

Q. Mr. Jones, Did you sell Mr. Easterly a tract of land? A. Yes. Q. "And, how wide was that tract of land?" A. 500 feet. Q. What did you do to identify the location of that tract of land? A. I hired a professional land surveyor to mark it out on the ground. Q. Did he do that? A. Yes, he did. Q. What kind of markers did the surveyor place? A. He set iron pipes at both ends of the line. Q. When you sold the property to Mr. Easterly, did you walk the boundaries and show him the markers? A. Yes. Q. When you sold the property to Mr. Westerly did you also walk the boundaries and show him the markers? A. Yes, I did. Q. Did Mr. Westerly raise any questions or doubt the locations of the markers? A. No, why should he have? They were set there by a surveyor and had been marking the boundary for over 25 years. All that time, I and Mr. Easterly knew they marked the line between us. That's what they were put there for. I couldn't sell Westerly anything beyond those markers as I didn't own it. I already sold it to Easterly. Q. When did you first question the location of the irons? A. I've never questioned them. Q. Let me rephrase that. When did you first become aware that the irons were being challenged? A. When Westerly sold his land to Mr. Jones, he hired some surveyor from the city who came out with his fancy-dancy, high-falutin, GPS survey equipment and started saying all the monuments were "off" and proceeded to set new markers where the old ones "should have been." He tells us that the old surveys are all "off" and that it was his job to "fix" all those old markers. Well, that just ain't right. We set those markers with good intentions. We set those markers so we'd know where the line was. They've marked the line for over 25 years, some of them over 50 years. Who does this surveyor think he is to come into our neighborhood and drive irons wherever he thinks they "should" be when we've got perfectly good irons that we set so we'd know where the boundaries are. It just ain't right. There's laws that protect us from surveyors like that!

You're honor, we'd like a directed verdict upholding the existing boundaries as established under the doctrines of written agreement, implied agreement, oral agreement, and estoppel as well as the rules of construction properly applied to the deeds which must be construed by taking into account the actions of the parties at or near the time of the conveyance as well as their subsequent actions made in reliance upon the knowledge and perpetuation of the boundaries as established on the ground. We also move to enjoin city surveyor to this action under the grounds of negligently performing his duty by failing to adequately gather, analyze and honor the evidence necessary to retrace the boundaries. We'd also move to amend our complaint to include claims of negligence, slander of title, and gross negligence as indicated by his willful, wanton disregard for my client's property rights.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

The Easterly 500' Has Senior Rights

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 08:58 (1332 days ago) @ JBStahl

If he walked the property with Mr. Westerly, and if everyone agreed those were the markers. That wasn't in the original post, unless I missed it. That would be more facts, and would change the result.

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The Easterly 500' Has Senior Rights

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 09:08 (1332 days ago) @ Mapmaker151

If he walked the property with Mr. Westerly, and if everyone agreed those were the markers. That wasn't in the original post, unless I missed it. That would be more facts, and would change the result.

Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back.

The landowners hired a surveyor to mark the line "at the time of the sale" in 1960. That's when they ran and established the line.

In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly.

Westerly is shown the boundary pins in 1985 during the sale. Westerly has a burden of challenging the monuments prior to his purchase, not 11 years later, after the survey markers are over 51 years old and recognized since the day they were set as marking the boundary.

Where do we surveyors get the idea that it's our job to "fix" monuments when we find them somewhere other than where we expect to find them? The law clearly rejects that idea and chides the surveyors for not retracing the lines as established by the original surveyors. Established boundaries trump senior rights.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

The Easterly 500' Has Senior Rights

by Lex Mercatoria, Monday, October 10, 2011, 09:12 (1332 days ago) @ JBStahl

Established boundaries trump senior rights.


JBS


So Established boundaries should be at the top of the list of conflicts. That's not how it is in my legal text book.

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The Easterly 500' Has Senior Rights

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 09:14 (1332 days ago) @ Lex Mercatoria

I think you may be misreading the text. That list is for re-establishing a boundary that is in conflict. This boundary wasn't in conflict until the surveyor decided he could measure better than the previous surveyor.

--
David A. Lee, PS

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The Boundary Exists At 500'

by Paul in PA @, Monday, October 10, 2011, 09:28 (1332 days ago) @ DavidALee

Since the pins are not referenced in any deed, they may in fact not represent the Boundary. Called for original monuments hold, that is not the case here.

Paul in PA

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The Boundary Exists At 500'

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 09:33 (1332 days ago) @ Paul in PA

A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back. The deed reads, “the eastern 500’ of Jones’ land”. In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly.

Both parties have relied on the pins since the 1960's. The boundary is established.

--
David A. Lee, PS

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The Boundary Exists At 500'

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 09:44 (1332 days ago) @ DavidALee

I'm not seeing the "reliance" in the original fact set. Merely knowing that some pins exist does not in itself constitute "reliance."

"If an owner ignorant of his true boundaries by mistake acquiesces in a line as a boundary, he and his grantees are not thereby precluded from afterwards claiming to the true line, and it has been held that one who has no knowledge that his adjoiner encroaches can not be held to have lost his rights by acquiescence in such occupancy no matter how long continued, for one can not waive or acquiesce in a wrong while ignorant that it has been committed...."[emphasis added]

--Skelton, Boundaries and Adjacent Properties, Sect. 324

Still, having played devil's advocate a bit here and in my response to JBS, I'd have to go with the pins at 496'. In my view, given this fact set, they were a practical location of the boundaries, of which all were aware at the time. But in the real world we would only rarely have this much reliable information about what happened so long ago and I'd be skeptical of the pins.

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The Easterly 500' Has Senior Rights

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 10:29 (1332 days ago) @ Lex Mercatoria

Established boundaries trump senior rights.

So Established boundaries should be at the top of the list of conflicts. That's not how it is in my legal text book.

You might want to re-check your "legal text book." First off, text books are secondary sources. I find a great number of misstatements in the text books I teach from. Test your textbook against the primary source.

Here's what my "text book" says.

ORDER OF IMPORTANCE CONFLICTING ELEMENTS

A. RIGHT OF POSSESSION
B. SENIOR RIGHT
C. WRITTEN INTENTIONS OF PARTIES
  1. CALL FOR A SURVEY LINES RUN (OR ACTUAL SURVEY ON WHICH CONVEYANCE IS BASED)
  2. CALL FOR MONUMENTS
   a. NATURAL
   b. ARTIFICIAL
  3. CALL FOR ADJOINERS
  4. DIRECTION & DISTANCE
  5. DIRECTION ORDISTANCE
  6. AREA
  7. COORDINATES

The "right of possession" isn't talking about "adverse possession." It's talking about the doctrines which establish boundaries. If most text books on surveying were truly taken literally, the only boundaries that would be fixed in location would be those which were 1) monumented prior to the conveyance, 2) called for in the conveyance document, and 3) remain today in their undisturbed state. That would also mean that every monument a surveyor sets on an existing boundary would be subject to challenge through eternity. The landowners will never know where their boundary lies because every subsequent survey will disturb the survey before it. Lunacy. The law is much more sane than that result.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

The Easterly 500' Has Senior Rights

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 09:16 (1332 days ago) @ JBStahl

But we don't know these monuments were shown the the buyers. They were not referenced in any documents (other than an old survey that may not have been shown). We can add many factors, but using the data of the original post. Senior rights should hold. The original 4 pins would be the boundary of both lots. Later surveys would not hold the weight of the original pins.
I can see both sides here, but the 1960 Survey seems to be in error. No occupation exists. Honoring the senior rights is not going to cause any issues ( such as tearing fences out, moving homes, etc.). If the Survey was reversed and done for the Westerly lot, and set 4 feet into the Easterly lot, then senior rights would hold and the pins would be moved. What's the difference?

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The Easterly 500' Has Senior Rights

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 09:18 (1332 days ago) @ Mapmaker151

The difference is you are creating a problem where none existed before by "fixing" those pins that were not wrong in the first place. Don't mis-use the math.

--
David A. Lee, PS

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Objection Mr. Stahl Is Testifying

by Paul in PA @, Monday, October 10, 2011, 09:21 (1332 days ago) @ JBStahl

Mr Stahl states that "we have relied on these pins". There is no evidence before the Court that reliance on the actual location has been confirmed by any action of and party. They have merely acknowledged that they were aware that the pins existed. I move that his questions, the answers and his statements be stricken.

I was in error in that this action should have been brought by Mr. NewYoung, Mr. Eastman's (not Easterly) successor.

Possession is something that must be shown by construction. Had Mr. Westerly erected a fence based on the pins location, the story would be different.

Paul in PA

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Objection Mr. Stahl Is Testifying

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 09:46 (1332 days ago) @ Paul in PA

Mr Stahl states that "we have relied on these pins". There is no evidence before the Court that reliance on the actual location has been confirmed by any action of and party. They have merely acknowledged that they were aware that the pins existed. I move that his questions, the answers and his statements be stricken.

When the seller takes the buyer onto the ground and shows them the markers, a representation is made. When the buyer subsequently goes ahead with the purchase, that is the evidence of reliance upon the representation. If there was no reliance, the buyer would have hired a surveyor or done other due diligence to confirm the representations made.

Possession is something that must be shown by construction. Had Mr. Westerly erected a fence based on the pins location, the story would be different.

That's not quite the full truth, Paul. "Possession" an be either "actual," or "constructive." Accepting the conveyance of the land, knowing at the time of conveyance the locations of the boundaries represented by the seller, qualifies as "constructive" possession. There is no evidence given in this scenario of "actual" possession.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBS:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 09:59 (1332 days ago) @ JBStahl

When the seller takes the buyer onto the ground and shows them the markers, a representation is made. When the buyer subsequently goes ahead with the purchase, that is the evidence of reliance upon the representation.

Isn't the deed stating that Eastman gets 500 feet of land also a representation upon which the buyer has relied? And in this case, isn't it the only representation upon which Eastman relied? I don't see where he was shown any pins in the original fact set.

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4' Would Not Be An Accepatble Error In 1960...

by Paul in PA @, Monday, October 10, 2011, 10:10 (1332 days ago) @ Cee Gee

...in most areas of the US.

If I found 1000.00' between the outbounds and pins at 499.82' I would show the 500.00' as the boundary on the map and the pins within 0.18' as witnesses to the corners. They cannot gain the status of original called for monuments if they have never been called for.

Also if Mr. Westerly has never revised his deed with the 504.00' to a found pin notation one can reasonably assume he has not relied upon them.

Again we have surveyors assuming they are judges in all cases.

Paul in PA

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JBS:

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 10:19 (1332 days ago) @ Cee Gee

When the seller takes the buyer onto the ground and shows them the markers, a representation is made. When the buyer subsequently goes ahead with the purchase, that is the evidence of reliance upon the representation.

Isn't the deed stating that Eastman gets 500 feet of land also a representation upon which the buyer has relied? And in this case, isn't it the only representation upon which Eastman relied?

Yes, the deed contains the written representation. The monuments imbue the physical representation made upon the ground at or near the time of the conveyance. Which is more certain? The monuments. That's why monuments control over course and distance. The monuments were intended to mark the boundaries and have been relied upon for an excess of 50 years.

I don't see where he was shown any pins in the original fact set.

Go back and re-read the original post. Not only was an original survey performed when the line was created in 1960 (Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back), the markers were pointed out to Western when he purchased the remainder from Jones (No survey is performed but the 1960 irons are pointed out to Westerly).

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

JBS:

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 10:24 (1332 days ago) @ JBStahl

Monuments do not hold if the encroach on senior rights. These are secondary monuments, and not referenced to the deed. They are represented as being set at 500'. Now if the original pins (1000 x 1000) were different then the West lot would get excess or deficient amount of land.

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 10:27 (1332 days ago) @ Mapmaker151

They are not encroaching on senior rights. They were set by a Professional Surveyor at a point where he measured 500'. They have been relied upon. The boundary has been established.

--
David A. Lee, PS

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JBS:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 10:42 (1332 days ago) @ JBStahl

Re: "Go back and re-read the original post...."

I have re-read the original post what feels like 496 times and I can see where Westerly was shown the pins in 1985 but not where Eastman was shown them in 1960, nor where he saw the survey plan, or a call for the survey. Maybe there's a subliminal recording state problem here, because it would not be at all uncommon in Maine for a buyer to be unaware of an uncalled-for, unrecorded survey plan and/or pins it depicts, and I do not believe a court here would let such pins prevail against Eastman or his heirs or assignees. Are folks assuming that Eastman knew about the pins? Why?

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JBS:

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 10:58 (1332 days ago) @ Cee Gee

Are folks assuming that Eastman knew about the pins? Why?

There are two presumptions of law which support one another: Firstly, the buyer and seller, in the process of entering their agreement, have walked the property and viewed the boundary. That presumption is overcome when Eastman testifies, "I was completely unaware of the existence of a survey or markers on the ground, and I never walked the ground prior to purchase." Then, the unilateral action of the seller (who would have been marking the remainder, not the eastern parcel, would not prevail; senior rights would prevail). Second, actions of the parties conducted "at or near the time of the conveyance which created the boundary" provide valid evidence which must be considered when applying the rules of construction to determine the "intent" of the parties. A "survey performed at the time of the sale" in 1960 which results in the placement of physical monuments intended to represent the boundary locations meets meaning of the phrase "at or near the time."

The extrinsic evidence (the iron pipes) is to be considered by the surveyor. The surveyor must gather the evidence to determine if there is enough evidence to overcome the presumption of law. The pipes were placed "at or near the time" of the original conveyance, which incorporates them into the conveyance even though the expressed words are frequently missing. Knowledge of the pipes was passes to Western when he purchased the remainder. Western's successor in interest can't blindly dismiss the pipes today just because they're "off" of the precise measurement. If Western's successor has an issue, his issue is with Western, not with Eastern.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBS:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 11:31 (1332 days ago) @ JBStahl

That presumption is overcome when Eastman testifies, "I was completely unaware of the existence of a survey or markers on the ground, and I never walked the ground prior to purchase." Then, the unilateral action of the seller (who would have been marking the remainder, not the eastern parcel, would not prevail; senior rights would prevail).

OK, good enough (assuming Maine's courts have signed on). But in my neck of the woods it would not be not at all uncommon for said presumption to be thus overcome.

The extrinsic evidence (the iron pipes) is to be considered by the surveyor.

In Maine, such evidence would only be admissible in construing an ambiguous deed, and I don't see the ambiguity in the deed language itself here.

"The practical construction given by the parties as an interpretation of the grant is never admissible to throw down language which is definite and certain...."

-- Parkman v. Freeman, 117 A. 301 (Maine, 1922)

I don't have the entire case handy but this quote suggests the pipes might not matter even if Eastman had known about them (in Maine).

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JBS:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 09:31 (1332 days ago) @ JBStahl

But what if we put other words in Jones' mouth? I've known many landowners who would insist that their intent was to sell 500 feet, NOT to sell up to some corner monument; and who would say that they pointed out the monument only because they ASSUMED that it correctly marked the 500 feet. If the monument is called in the deed, too bad; but if you plugged testimony like that ("I intended to sell him 500 feet!") into a case like this where the deed calls 500 feet and mentions neither a monument nor a survey, and there's no long-standing fence line or line of occupation, I'm not sure the 496' solution would prevail, at least not in Maine.

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 09:39 (1332 days ago) @ Cee Gee

The fact remains that a Professional Surveyor set pins at a point where he measured 500'. Those pins have been relied on for years. The boundary has been established there. If no pins were found (or any other evidence of said pins), then we resort to junior/senior rights to re-establish the boundary.

--
David A. Lee, PS

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JBS:

by MightyMoe, Monday, October 10, 2011, 09:45 (1332 days ago) @ DavidALee

So we find the pins @ 499.82'. I guess we have to set two pins 0.18' west to "get it right". And be sure to leave the older ones.

JBS:

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 09:50 (1332 days ago) @ MightyMoe

I think most will note the .18 difference on a Survey Map, but not reset the corners. Big difference from 4' to 0.18'

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 09:53 (1332 days ago) @ Mapmaker151

No there is no difference in the 4' or 0.18' in this instance...except 3.82. Also, noting the 0.18' difference on a plat of survey is going to cause as much confusion as setting pins 4' away but that is another topic.

--
David A. Lee, PS

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TDD and a Banjo

by Dan B. Robison ⌂ @, Little Rock, Arkansas, Monday, October 10, 2011, 10:06 (1332 days ago) @ DavidALee

No there is no difference in the 4' or 0.18' in this instance...except 3.82. Also, noting the 0.18' difference on a plat of survey is going to cause as much confusion as setting pins 4' away but that is another topic.


3.82'??? That rings a bell!...What is the Standard Length of a Banjo String?

"i can survey with a banjo" because i know how---tdd

;-)
(humor humor humor)

DDSM

--
Waf gf Lpwp fmsfgywypx ncl zowyicwfot c vcyozef. Nafx af ceeydfg yx Ceucxlcl, af lwyoo lcn ayilfov cl c qcoocxw jpxkzfepe, hzw, ht waf wyif pv ayl gfcwa, ayl lsyeyw ncl hepufx.

JBS:

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 10:07 (1332 days ago) @ DavidALee

Anyone finding a 1960 Survey only off 0.18' would probably say good job. Chaining over surface features, brush, etc., and being that close would be a good Survey for the time. 4' starts to look like a blunder. Misread chain, error in a correction, etc.
If I found a 2010 Survey within 2 tenths I'd accept it, but make a note of the difference on my map. I still fall back on the original 4 pins (of both lots prior to division), and the fact that these 1960 pins are not referenced in the deed. They would be "secondary monuments" and not hold the weight to trump senior rights, with the evidence in the 1st paragraph of this feed. If you add in some facts others assumed, then a different solution is required.
If the Survey had been performed by the West Parcel, and set 4' inside the East Parcel senior rights would win. I just don't see the difference. Also no where in the original post does it mention the owner showing the pins, nor them being accepted by any party involved. Just that they exist from a 1960 survey. I don't see that this Survey was tied to the sale in any evidence, except assumptions made in later posts.

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 10:10 (1332 days ago) @ Mapmaker151

Also no where in the original post does it mention the owner showing the pins, nor them being accepted by any party involved. Just that they exist from a 1960 survey. I don't see that this Survey was tied to the sale in any evidence, except assumptions made in later posts.

From original post: No survey is performed but the 1960 irons are pointed out to Westerly.

--
David A. Lee, PS

JBS:

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 10:21 (1332 days ago) @ Mapmaker151

I reread the original post. My bad the pins were shown to the buyers. I still stand by my post. They were said to represent 500'. When found to be in error and not referenced in the deed, senior rights using distance should hold.

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 10:23 (1332 days ago) @ Mapmaker151

Junior/senior rights are irrelevant in this case. In the process of performing a retracement survey (which is what this would be; you are not creating a new boundary line) you follow the footsteps of the original surveyor.

From Clark on Surveying and Boundaries..."Great caution must be used in making resurveys or retracements. Lines long accepted should not be lightly cast aside for greater conformity to recent surveys. In the case of a disputed boundary, the testimony of the original surveyor who created the original boundaries and can point out with certainty where monuments were originally placed is proper and it adds a degree of certainty and credence that is lacking in a resurvey which could place the line in a different location. If the original survey can be retraced, it will govern. It is not to be disregarded. The locations of the original corners, right or wrong, govern...In making a resurvey, it is the primary duty of the surveyor to retrace the original lines, and not to run independent new lines, even though the original lines contained errors."

--
David A. Lee, PS

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 09:51 (1332 days ago) @ MightyMoe

Apparently so.

--
David A. Lee, PS

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JBS:

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 10:11 (1332 days ago) @ Cee Gee

But what if we put other words in Jones' mouth? I've known many landowners who would insist that their intent was to sell 500 feet, NOT to sell up to some corner monument; and who would say that they pointed out the monument only because they ASSUMED that it correctly marked the 500 feet. If the monument is called in the deed, too bad; but if you plugged testimony like that ("I intended to sell him 500 feet!") into a case like this where the deed calls 500 feet and mentions neither a monument nor a survey, and there's no long-standing fence line or line of occupation, I'm not sure the 496' solution would prevail, at least not in Maine.

Q. And, how exactly, Mr. Jones, did you intend to measure that 500 feet? A. Well, anybody knows what 500 feet is. Q. That's not what I asked. I asked HOW did you intend to measure that 500 feet. A. Well, I hired a professional surveyor. They certainly know how. Q. And, did you hire a surveyor to measure the 500 feet for you? A. Yes. Q. And, did you accept his work as being faithfully performed? A. Well... I find out now that it wasn't! Q. Did you pay for the surveyor's work? A. Yes. Q. Did you pay him in good and lawful money? A. Yes. Q. Then, were you satisfied with his work at the time you paid him. A. Well, I'm not now! Q. But were you then? A. Yes. Q. Did you do anything to confirm that the surveyor had set the markers at precisely 500 feet? A. No. Q. Is it true that you've done nothing for the past 51 years to confirm the location of the markers? A. I didn't have any reason until now. Q. So, you were perfectly satisfied with the survey marks so much over the past 51 years, that you showed them to Mr. Easterly in 1960 when they were new, and you showed them to Mr. Westerly in 1985, and you represented them as marking the line during both times. A. Well, ya, but that's when I thought they were at 500 feet! Q. Would it surprise you to know that it is impossible for any surveyor, even using the most modern technology, to set those monuments at precisely 500 feet? A. Yes. Q. But, the surveyor obviously couldn't, is that right? A. Yes. Q. You are aware that the oldest monuments which you relied upon when you purchased your land are also four feet in error, correct? A. Well, ya... Q. Have you done anything to figure out which one of those markers are "off" by 4 feet? A. No. Q. Are you suggesting, perhaps, we should be fixing your neighbor's property markers, and his neighbor's markers, and his neighbor's markers? A. No. Q. Would it be better, perhaps, to limit this argument to this single boundary, which was run out on the ground by a surveyor whom you hired to mark the boundary, who set markers which you have never before doubted, which markers you relied upon for over 51 years as properly representing the boundary, markers which you yourself represented as marking the boundary to Mr's. Eastern and Western? A. Yes. ... No more questions, your Honor.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBS:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 10:28 (1332 days ago) @ JBStahl

In general I agree that, given such testimony, the pins would likely prevail. But I can't see where in the original post the pins were shown to Eastman or hinted at in his deed. Eastman now finds that the pins short him out of 4 feet of land, he's erected no fence etc. to indicate acquiescence in them, there is no evidence in the original fact set that he knew or should have known about them, and I thus can't see why, given the original fact set, they would hold. In fact I'd overlooked his "ignorance" when I conceded the 496' solution awhile back and would now probably hold the 500 foot solution.

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 10:32 (1332 days ago) @ Cee Gee

When he bought the "east 500'" a survey was completed and pins set where that surveyor measured 500'. Those pins were shown to the "west 500'" buyer. The pins have been in place for over 50 years. There is no problem until another surveyor comes in and decides he can measure better than the previous surveyor.

--
David A. Lee, PS

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David:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 10:51 (1332 days ago) @ DavidALee

When he bought the "east 500'" a survey was completed and pins set where that surveyor measured 500'. Those pins were shown to the "west 500'" buyer. The pins have been in place for over 50 years. There is no problem until another surveyor comes in and decides he can measure better than the previous surveyor.

How was Eastman supposed to know about the pins when he bought the east 500 feet? As I posted above a few minutes ago, there may be a subliminal recording state problem here. If the survey plan is neither recorded nor called in the deed, and the pins are not shown to Eastman (all of which is consistent with the original fact set), how is Eastman supposed to have known the pins even exist, much less supposed to have "relied" upon them, acquiesced in them, etc.?

David:

by Dan Rittel @, Stuart - Des Moines, Iowa, Monday, October 10, 2011, 10:59 (1332 days ago) @ Cee Gee

How was Eastman supposed to know about the pins when he bought the east 500 feet?

From original post: "Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale ..."

Are you suggesting that Mr. Jones DID NOT let Eastman know that he had or was having a survey made to determine the extents of the parcels? That's a stretch.

--
Dan Rittel
Twitter: @barefoot_LS

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Dan:

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 11:10 (1332 days ago) @ Dan Rittel

Re: "Are you suggesting that Mr. Jones DID NOT let Eastman know that he had or was having a survey made to determine the extents of the parcels? That's a stretch."

Yes I am. It's no stretch here. People buy property, sometimes site-unseen, from far away, often from out-of-state. Some realtors are lazy. I would not assume that Eastman, or any buyer, had seen anything of which s/he had not been given written notice. Obviously in a recording state the presumption might be otherwise.

There is nothing in the original fact set to indicate that Eastman has ever even set foot on this property!

Dan:

by Dan Rittel @, Stuart - Des Moines, Iowa, Monday, October 10, 2011, 11:26 (1332 days ago) @ Cee Gee

I would not assume that Eastman, or any buyer, had seen anything of which s/he had not been given written notice. Obviously in a recording state the presumption might be otherwise.

There is nothing in the original fact set to indicate that Eastman has ever even set foot on this property!

I believe that Eastman has a duty to know what he's bought and if he (or any agent of his) hasn't stepped foot on the property in the 35 years he owned it, then he's probably lucky he's only losing 4 feet.

--
Dan Rittel
Twitter: @barefoot_LS

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David:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 10:59 (1332 days ago) @ Cee Gee

From the original post, I take it that since Eastman purchased the property in 1960 and a survey was performed in 1960 for the purchase, that he would have received a copy of the survey and would have known what he was buying. I don't think the question here is whether or not either person knew about the pins, I believe they each knew about them and relied upon them. Our job as Professional Surveyors is to retrace the line as established in 1960.

--
David A. Lee, PS

Did he accept pins or what they were suppose to represent?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 11:06 (1332 days ago) @ DavidALee

The survey was said to represent 500'. When Eastman found the survey to be wrong, would he not have a complaint? Did he accept the pins, or the intent that they were set at 500'? What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.

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Did he accept pins or what they were suppose to represent?

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 11:09 (1332 days ago) @ Mapmaker151

Why would you assume that he wouldn't accept them? They were set by a Professional Surveyor and have been in place for 50+ years.

--
David A. Lee, PS

Did he accept pins or what they were suppose to represent?

by Dan Rittel @, Stuart - Des Moines, Iowa, Monday, October 10, 2011, 11:10 (1332 days ago) @ Mapmaker151

What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.

Then I would probably treat them as closing corners. Hold line between them but stop or extend to the senior north & south lines previously established.

--
Dan Rittel
Twitter: @barefoot_LS

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Did he accept pins or what they were suppose to represent?

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 11:11 (1332 days ago) @ Dan Rittel

What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.


Then I would probably treat them as closing corners. Hold line between them but stop or extend to the senior north & south lines previously established.

Agreed.

--
David A. Lee, PS

Did he accept pins or what they were suppose to represent?

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 11:16 (1332 days ago) @ DavidALee

Why not treat them as closing corners here then, extend them 4' everyone is happy.
I agree with the off line issue, just had to cause trouble. lol. Guess it's the Surveyor in me.

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Did he accept pins or what they were suppose to represent?

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 11:19 (1332 days ago) @ Mapmaker151

Why not treat them as closing corners here then, extend them 4' everyone is happy.

Everyone was happy until the expert measurer came in and told them their pins were "off" 4'.

--
David A. Lee, PS

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Did he accept pins or what they were suppose to represent?

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 11:12 (1332 days ago) @ Mapmaker151

The survey was said to represent 500'. When Eastman found the survey to be wrong, would he not have a complaint?

Yes. His complaint is against the surveyor, not the adjoining landowner. The surveyor would be the one to remedy the issue and making Eastman whole (through land acquired from Jones' remainder, or money).

Did he accept the pins, or the intent that they were set at 500'?

That's why every court recognizes rules of "repose." Repose generally runs around 20 years (it's different in a few jurisdictions), with most holding to 20 years. If Eastman (or Western) had an issue or any doubt about the survey conducted in 1960, then he needed to step up and do something about it. Rules of repose are the "you snooze; you loose" principle referred to most as the 20-year rule, the rule of "acquiescence," or the "fence line" rule. Repose lies at the foundation of all those doctrines. It's just not wise to go around kicking sleeping dogs. You might get bit.

What if they were not set online with the original 4 pins? I know throwing in a new wrinkle to the argument.

Then it's time to be asking questions of the other neighbors who might be affected by the same markers. What do they know? What have they done? Gather the evidence before you assume that the markers don't control. Remember the presumptions of law; overcome them when the evidence is sufficient.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBStahl

by jud ⌂ @, Lexington, OR 97839, Monday, October 10, 2011, 11:54 (1332 days ago) @ JBStahl

Overcome them when the evidence is sufficient and no is harm done in rejecting them I can agree to. In this case I would probably be setting new monuments primarily because the found monuments had no record, were set outside of the legislated precision at the time and had not been relied on, which could be construed to show that they were not accepted at the time by the owners as the boundary. The lack of any evidence of reliance is a strong indicator of rejection or ignorance of their existence. Correcting a problem when no harm is done, with the full knowledge of the owners is not a bad thing for a surveyor to do. There does need to be a recorded survey showing what was found, what was done along with a narrative which explains it all. Blindly holding any monument thinking you are protecting your butt so you can get on to the next job is not being a problem solver. We are not here forever and we have an obligation to make corrections where it can be done without harm, even when it may mean loosing some money on the job. Evidence of reliance of those monuments would be ample justification on holding the found pins, if it looked like a storm was brewing between the owners because of the difference in record and monument location, then speaking to the owners, then by agreement setting new monuments to represent that agreement would be worth trying. Hold and run would be a poor choice in my view, just as setting new and running would be. We are in a position to keep problems from ending up in court, but when we can't, then choose what can best be defended in those courts, that may not be holding monuments that you find where you would not expect to find them.
jud

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JBStahl

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 12:05 (1332 days ago) @ jud

In this case we are to presume that the found monuments are the original monuments set by the surveyor in 1960. That is what the evidence suggests. In that case, whether his measurements were right or wrong, we are to hold those monuments.

--
David A. Lee, PS

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Thank You Richard Schaut

by Paul in PA @, Monday, October 10, 2011, 12:17 (1332 days ago) @ DavidALee

"Title to land in the US is established by unchallenged occupation and control" which is exactly what we do not have in this case.

Paul in PA

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Thank You Richard Schaut

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 12:23 (1332 days ago) @ Paul in PA

The only challenge is by the surveyor. The last 50+ years has been in harmony. There was no problem until a new surveyor or expert measurer made a problem.

--
David A. Lee, PS

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The Elements Missing Are Occupation And Control

by Paul in PA @, Monday, October 10, 2011, 13:45 (1332 days ago) @ DavidALee

Occupation and control have to occur before they can be challenged.

It is not evident by the information that they have in fact occured.

Paul in PA

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JBStahl

by JBStahl ⌂ @, Salt Lake City, Utah, Monday, October 10, 2011, 12:25 (1332 days ago) @ jud

Overcome them when the evidence is sufficient and no is harm done in rejecting them I can agree to.

Harm done to who? By accepting the monuments, are we "taking" 4 feet from one owner? By rejecting the monuments, are we "taking" 4 feet from the other owner? This cannot and is not how boundaries are determined. Boundary locations are determined by evidence and by rules of law which govern their location. Surveyors cannot pick and choose which evidence they will gather, which they will ignore, and which rule of law they will or will not apply.

In this case I would probably be setting new monuments primarily because the found monuments had no record, were set outside of the legislated precision at the time and had not been relied on, which could be construed to show that they were not accepted at the time by the owners as the boundary. The lack of any evidence of reliance is a strong indicator of rejection or ignorance of their existence.

"Monuments [having] no record" would eliminate the overwhelming vast majority of monuments ever placed by a surveyor. If the monuments we set are meaningless, then how can a boundary ever be established with certainty? We have over a century of surveys that were conducted in my area with no "record" repository in existence. Are all those monuments worthless because there is no "record?" The evidence that always matters is what the landowners know and what they have done with that knowledge. Yet, to this day, the vast majority of surveyors shun their responsibility to gather that evidence and will, instead, make some flippant decision which directly affects both landowners.

"Legislated precision" isn't used in common law to decide boundary locations; they are used to determine if a surveyor was negligent in the work they performed. Legislated precision cannot govern boundary locations. The concepts of "how close is close enough," and "too far off" don't exist in land boundary law.

Correcting a problem when no harm is done, with the full knowledge of the owners is not a bad thing for a surveyor to do.

Yes, it's not a bad thing; it's just illegal when it violates land boundary law.

There does need to be a recorded survey showing what was found, what was done along with a narrative which explains it all.

The landowners have testified already that there is a survey that was performed in 1960 at the time the original boundary was created. We can't claim that it "doesn't matter" just because it's not in the record or called for in the written words of the conveyance.

Blindly holding any monument thinking you are protecting your butt so you can get on to the next job is not being a problem solver. We are not here forever and we have an obligation to make corrections where it can be done without harm, even when it may mean loosing some money on the job.

Agreed in part. Blindly holding the monument without evidence and blindly rejecting the monument without evidence are both wrong. The evidence must be gathered and must be considered for the facts proven. I disagree, however, that we have an "obligation to make corrections" based upon any test of "harm." We should provide a service repairing problems when they do arise and we should be charging a premium for that work, not "loosing money" on it.

Evidence of reliance of those monuments would be ample justification on holding the found pins, if it looked like a storm was brewing between the owners because of the difference in record and monument location, then speaking to the owners, then by agreement setting new monuments to represent that agreement would be worth trying.

Agreed, but only when the evidence and the law are so contradictory that the ambiguity cannot be resolved. Only then will the law allow the landowners to enter an agreement to resolve them.

Hold and run would be a poor choice in my view, just as setting new and running would be. We are in a position to keep problems from ending up in court, but when we can't, then choose what can best be defended in those courts, that may not be holding monuments that you find where you would not expect to find them.

We must always choose "what can best be defended" in court. That's the location determined by the application of the appropriate legal principle to the facts of the case. The only way to determine the facts of the case is to gather and analyze the evidence in accordance with the rules of law. That's the surveyor's duty.

JBS

--
*** May your boundaries fall in pleasant places *** Ps. 16:6
http://www.cplsinc.com/id1.html

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JBStahl

by jud ⌂ @, Lexington, OR 97839, Monday, October 10, 2011, 13:44 (1332 days ago) @ JBStahl

You failed to mention that the surveyors goal when he arrives on a project where harmony exists is to leave with that harmony intact. That means recognizing the several options for which you could find case law to support be it either holding or rejecting, inform the owners that you can either hold or reject evidence that has not been relied upon along with the lack of evidence that it has ever has been relied in the past. Nothing said about the acceptance and use of the old survey by the owners or any attempt by them to recover the evidence of that survey and make a visible claim to that line. The surveyor in this case is not limited to choosing one element of the law and using it, that denies the owners the opportunity of reaching an agreement on just what the deed documents represented, memorialize that agreement with monuments if needed or flag up the old ones and a survey in the record for all to see. The owners can then take control of their side of the line and if as you say, some would consider doing so to be less than legal, time will correct that beyond any doubt as to what is claimed as a boundary. I know most of the land owners around here, some with small acreages and some who own many sections and none except the imports from out of the area want any more or any less than what their deed documents say, then again those document use aliquot parts, government lots and sections for descriptions. No monuments can be made into a marker of ownership unless the owners make it so, many convenience fences built here with never a claim of ownership. Section lines and subdivision lines are fixed, ownership lines can get shifted by the actions or lack of action of the owners or the courts. I have also been aware of surveys done that were rejected by the owners, those monuments and a record of those surveys is still in the records, what is not in the records is the rejection of the owners of the results of that survey. Let the owners choose, using knowledge and guidance where there could be two different defensible choices. NO reliance in the survey, and the pins being lost for some time are the facts here. After the recovery of the monuments set during that survey could the actions of the owners establish that boundary, they still have the opportunity to reject the old survey, that is their right, don't deny them that right.
jud

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JBStahl

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 14:25 (1332 days ago) @ jud

They have accepted the survey in this situation though. The survey was completed in 1960 when the east lot was sold off. The fact that the purchaser went through with the purchase of the land is evidence of such. The same can also be said about the west lot, as the purchaser was made aware of the survey on the ground; he also went through with the purchase. Therefore both owners accepted the survey as it was. The surveyor's job now is to retrace the original boundary, whether mistakes were originally made or not.

--
David A. Lee, PS

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JBS:

by Dan B. Robison ⌂ @, Little Rock, Arkansas, Monday, October 10, 2011, 11:09 (1332 days ago) @ JBStahl

Q. Mr. Eastman, were you present the day of the field survey? A. Yes Q. Did you observe the Surveyor making his measurements? A. Of course I did…I was told I would get a better price if I helped…so I was a tape holder. Q. What end of the tape? A. The hind end…the Surveyor said he would be the head man. Q. Do you remember the instructions you were given? A. Yeah…to hold the plumb-gob steady at the hunnert. Q. By hunnert do you mean the one hundred foot mark? A. I guess…he was yellin’ at me for tuggin’ the tape back and forth. Q. Do you remember where you held the plumb-BOB string on the tape? A. I am certain…at the very end where the little hoop thing is...No more questions, your Honor.

DDSM

--
Waf gf Lpwp fmsfgywypx ncl zowyicwfot c vcyozef. Nafx af ceeydfg yx Ceucxlcl, af lwyoo lcn ayilfov cl c qcoocxw jpxkzfepe, hzw, ht waf wyif pv ayl gfcwa, ayl lsyeyw ncl hepufx.

JBS:

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 11:14 (1332 days ago) @ Dan B. Robison

That's creating evidence. We could invent all kinds of facts. I do believe a Surveyor is responsible for his workers. If you use a land owner and he sets a pin using a autonomous reading with the RTK, causing a 4' error, are you free from liability then?

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 11:16 (1332 days ago) @ Mapmaker151

If those pins set 4' off are held and relied on for 50+ years then I say yes, you are free from liability.

--
David A. Lee, PS

JBS:

by Mapmaker151 @, Kansas, Monday, October 10, 2011, 11:20 (1332 days ago) @ DavidALee

No one built anything to these pins though. They weren't relied on, just happened to be there. There must have been a question, or why was a survey done for a fence. If the owners agreed and built the fence, then I'm in agreement. For some reason they had a new survey done in 96 ( if I remember the dates correctly).

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JBS:

by DavidALee @, Huntington, West Virginia, Monday, October 10, 2011, 11:25 (1332 days ago) @ Mapmaker151

Maybe they were buried. Maybe there was kudzu grown up and they couldn't see them. Who knows? The fact remains that they are there and have been for a long time, right or wrong, and as a retracement surveyor you are bound by them. And no, they didn't just happen to be there. They were set by a Professional Surveyor to mark the bounds of a property.

--
David A. Lee, PS

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JBS:

by Dan B. Robison ⌂ @, Little Rock, Arkansas, Monday, October 10, 2011, 11:18 (1332 days ago) @ Mapmaker151

That's creating evidence. We could invent all kinds of facts. I do believe a Surveyor is responsible for his workers. If you use a land owner and he sets a pin using a autonomous reading with the RTK, causing a 4' error, are you free from liability then?

I didn't know Surveyor's liability was a question in the OP. And I believe that the owner and the buyer can assist the Surveyor...or establish a their common boundary without the dang Surveyor.

DDSM

--
Waf gf Lpwp fmsfgywypx ncl zowyicwfot c vcyozef. Nafx af ceeydfg yx Ceucxlcl, af lwyoo lcn ayilfov cl c qcoocxw jpxkzfepe, hzw, ht waf wyif pv ayl gfcwa, ayl lsyeyw ncl hepufx.

Senior nights?

by LRDay @, South Central Utah, Monday, October 10, 2011, 11:42 (1332 days ago) @ Lex Mercatoria

Sort of my take on the whole thread.

WHY EVER HAVE IT SURVEYED?

FUTURE SURVEYORS ARE NEVER GOING TO RETRACE IT OR ACCEPT IT.

SAVE YOUR MONEY AND AVOID THE CHAOS!!

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Senior nights?

by Cee Gee ⌂ @, central Maine, Monday, October 10, 2011, 11:48 (1332 days ago) @ LRDay

The money for the survey was well spent. The culprit here is the 1960 scrivener, who should have called the pins and the survey in the deed to Eastman. This thread would have been a lot shorter if s/he had!

Senior nights?

by LRDay @, South Central Utah, Monday, October 10, 2011, 12:14 (1332 days ago) @ Cee Gee

We all live with different situations. In the settled part of the county I live in if called for markers in the original conveyance are required you pretty much have nothing, just unmeasured bearings and distances assuming every section is 5280 x 5280, perfectly square and properly oriented to north.

So the choice is to accept reality or create total chaos when surveying. I started out as a clueless to the law schooled in engineering surveyor. But it never made sense to me when every boundary was upset by the math. So I started researching the law (applied common sense). As far as the affect on landowners (human beings with skin in the game) the law treats them better and more fairly than the math. It's a preponderance of the evidence when it comes to boundaries. Once there is a problem between the reality and the paper deed, extrinsic evidence needs to be applied. If you make a boundary survey a math type problem where every step has to be exactly right to get the one answer then there never will be a stable boundary line on the ground. If every t needs to be crossed and every i dotted then it would be impossible to survey most parcels and ever be very near the original location. If you follow the law it's actually fairly simple but you can't do it on a calculator or graph paper.

This has gone around so many times over the years on these boards I can't believe I even replied. When I first seen the original post I thought it wouldn't go anywhere but it sure did. The more things change the more they stay the same. If surveying still exists as a profession in twenty years this same debate will be going on. If surveying doesn't exist then some other group willing follow the law will have taken over. Me, I'll probably be dead or have lost my mind to the ravages of time.

Senior rights?

by Richard Schaut, Monday, October 10, 2011, 11:55 (1332 days ago) @ Lex Mercatoria

You need to understand primary reference material which is not court cases, they are secondary attempts to explain the application of primary principles.

The overriding primary principle is presented in various 'rules of evidence' like Corpus Jurist, (applicable when latin was the language of the law), Corpus Jurist Secondus, American Jurist, American Jurist 2nd, and other noted references like Wigmnore's compenduim on Evidence which was the defacto courtroom reference in Wisc. from 1923 to @1967. He says: From Wigmore;’s compendium on “Evidence”, 2nd. Edition, Vol. 5 Section 2476:
“It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted. …”

Title to land in the US is established by unchallenged occupation and control; and when statutes of repose are enacted, the time limit allowing challenge of such occupation and control can be a short a 3 or 5 years. Also, if there is proof that a 'line' was relied upon to position an improvement in accordance with zoning/building requirements, the period allowing challenge is much shorter, depending on the particulars of each situation.

Rules of priority for surveyors always start with the presumption that unwritten rights, (unchallenged occupation and control), will trump the written instrument. Lawyers and judges cannot deal with these because the determinants are on-site physical evidence which is the surveyor's responsibility as we are the only ones licensed to enter onto the land, recover and analyze this physical evidence. This is why, when the surveyor fails to do his duty, the court falls back on the only 'evidence' available to it which is the documentation, and that is the reason why court cases are not a reliable source of information for surveyors.

Richard Schaut

Senior rights?

by Big Al @, Massachusetts, Monday, October 10, 2011, 12:51 (1332 days ago) @ Lex Mercatoria

1960 is pretty long ago. Jones was probably an adult when he sold about 11.5 acres of land to Eastman. Not knowing anything else, I'd guess he was 45 years old. At the time of the re-survey, in 1996, Jones would have been 81 years old, quite likely either dead or without memory of what happened.

In a similar way, I would guess that Eastman too was 45 years old at the time of the 1960 transaction, and thus also quite likely dead or whose memory was unreliable in 1996.

This case would seem to hinge in large part upon the circumstances attendant to the 1960 transaction. It is quite possible, I admit, that my presumptions about the age of the parties in 1960 is wrong, and thus that either or both of Jones and Easterly were alive and mentally capable adults in 1996 when the re-survey occured, and when apparently the imprecision of the 1960 survey was discovered. The original post implies that the 1996 surveyor was able to determine with some certainty that there was a survey in 1960 and that the irons found at 496' were set at the time of the 1960 survey. To me, that determination would have to be made based upon statements of reliable character made by either Jones or Eastman.

I think it is far more likely that the 1996 surveyor would have found the irons at 496' during the course of his field work, but that he wouldn't have any reliable basis upon which to determine that the irons found were in fact set in 1960 and relied upon by Jones and Eastman.

It would of course be changing the terms of the original post, and therefore maybe not appropriate, but if we fast forwarded the 1996 survey to 2011, and say that Jones and Eastman are both dead, what then? Can the 2011 surveyor presume that the irons found were set in 1960, and further presume that they were relied upon by Jones and Eastman?

Great discussion by the way.

Jones owns a parcel of land one thousand foot square which has old irons at the 4 corners. Jones sells to Eastman the eastern 500’ in 1960. A survey is performed at the time of the sale and irons are set 500’ west of the east line in the front and back. The deed reads, “the eastern 500’ of Jones’ land”. In 1985 Jones sells the remainder to Westerly. The deed reads “the western 500’ of Jones’ land”. No survey is performed but the 1960 irons are pointed out to Westerly. In 1995 Eastman sells to Mr. NewYoung. A year later a survey is performed to erect a fence. All irons are found. The irons set in 1960 are found to be 996’ west of the east line. Where is the property line?

Senior rights?

by Carl Zeiss, Monday, October 10, 2011, 14:40 (1332 days ago) @ Big Al

Yes, a very interesting thread.

I have to say that I agree with JBS on all counts.

From Clark on Surveying and Boundaries Chapter 14:

"The cardinal principle guiding a surveyor who is running the lines of a previous survey is to follow in the footsteps of the previous surveyor."

"It is the extensive duty of the retracing surveyor to see what the first surveyor did, not what he should have done."

"No matter how inaccurate the original survey may have been, it will be conclusively presumed to be correct and, if there is error in the measurements or otherwise, such error is the error of the last surveyor."

"It is the responsibility of the surveyor to retrace the steps of the person who made the original survey. Therefore, the original artificial monuments control."

"The question as to boundary lines is not where an entirely accurate new survey would locate them but where the original stakes located them."

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Senior rights?

by jud ⌂ @, Lexington, OR 97839, Monday, October 10, 2011, 15:04 (1332 days ago) @ Carl Zeiss

Need to add, if the evidence of the original survey were relied upon, these monuments were not relied upon and there is no occupation evidence to show that they ever were. If the owners wish to hold them now that they have been recovered or to reject them at this time is their choice to make. The owners choice and their actions resulting from that choice will fix the boundary, all they need is to know that they have the choice along with knowledge of the location of the pins in relationship with the record. If there was separate occupation divided by a fence, crop line or other visible evidence between the pins, there would be no question as to ownership. That is not the case here.
jud

Senior rights?

by Carl Zeiss, Monday, October 10, 2011, 16:47 (1332 days ago) @ jud

"Need to add, if the evidence of the original survey were relied upon, these monuments were not relied upon and there is no occupation evidence to show that they ever were. "

The OP hasn't clarified this any further so this is just conjecture. As the original survey was ordered and paid for by someone, concurrently with the subdivision and transfer of the parcel, it can only be assumed that the survey had one, and only one purpose, and that it was to be the original survey of the parcel. The original survey of a parcel does not have to be completed and recorded in the deed or concurrently with the deed to be the valid original survey.

"If the owners wish to hold them now that they have been recovered or to reject them at this time is their choice to make. "

I agree, but that is a question solely for the owners, not the surveyor.

Senior rights?

by eapls2708 @, El Dorado Co., CA, Monday, October 10, 2011, 16:37 (1332 days ago) @ Carl Zeiss

I also agree with JBS all the way through.

Even though a lot of surveyors are getting hung up on the numbers, reliance, "if there was a fence...", and so on, they are all ignoring a more basic issue.

The 1960 survey was performed specifically for the purpose of laying out the boundaries of the east 500' and was apparently parformed in conjunction with (either just before or just after) the 1960 conveyance.

In nearly all, if not all jurisdictions in the US, if a survey was performed in conjunction with a conveyance, whether or not the conveyance document specifically calls for the survey, the monuments of the survey control over other elements. That's a basic tenet of boundary law that the surveyor ignores at his own peril.


Another basic tenet of law is that if there is any latent ambiguity in the agreement document (deed), it must be resolved in light of the circumstances surrounding the execution of the agreement (that is at the time the agreement was made).

In 1985, the parties had only the deeds and the 1960 survey to guide them. There was no new survey performed at the time of that conveyance to inform them of any additional facts. Both the survey and the grantor's deed showed the parent parcel to be 1000' wide. Both the survey and the deed to the easterly portion showed it to be 500' wide. All information available to the parties clearly indicated that the remaining portion was also 500' wide. They had no reason to suspect it was anything different, and therefore no basis to establish any other line in the vicinity of that previously established in 1960 which purported to mark the line which was both the westerly line of the easterly 500' and the easterly line of the west 500'. Possibly of even greater importance is that Jones and Westerly walked the property with Jones pointing out the monuments as the corners, giving the description tangible meaning and thus defining the terms of the description in a real way.

Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments. The surveyor in 1995 cannot reinterpret a new intent based upon extrinsic measurement evidence newly found at that time. Nor can the surveyor in 2011 redefine the intent of the parties based upon the extrinsic evidence of 1995, or even yet again by more extrinsic measurement evidence newly discovered in 2011 which would also likely conflict with the measurements of 1960 and to (probably) a lesser extent, those of 1995.

The parties themselves cannot now claim to have known all along a thing only recently discovered in order to redefine their intent. Jones cannot now say that he intended to keep a 4' strip for which there was previously no evidence to indicate its existence. Same goes for Westerly, who bought from Jones and was shown the 1960 monuments in connection with that conveyance, indicating intent by both parties to convey the remainder. Eastman likewise cannot now claim that he always knew his westerly boundary was 4' beyond the irons set in conjunction with his conveyance because he had no reason to know and he exhibited no such knowledge by his actions of ownership. Mr. Newyoung, the current buyer of Eastman's parcel can only receive what Eastman owns, and Eastman owns the easterly 500' of Jones' parcel as defined by the monuments set during the survey performed in connection with his purchase from Jones. The fact that the most recent surveyor has discovered that 500' to measure only 496' cannot be grounds to change the line, only to report a Record vs. Measured distance on his RS.

Measurements alone are very weak evidence upon which to overturn a monumented common boundary. Rather than further definite action by the parties indicating acceptance of the established line in order to support it, you would need a history of definite actions by the parties indicating an alternate establishment. Without that stronger evidence, the surveyor has no right to change the boundaries to a location he considers to be more correct than that previously established.

You cannot change an established boundary line because of an arbitrarily misapplied "survey" rule. The purpose of surveys is to either establish new boundaries, or to rediscover the location of previously established boundaries. The courst have established common law for this purpose, and indeed that is the source of all "survey" rules. The unfortuante part of that is that many surveyors, parforming the tangible investigative and marking work that the courts are not equipped to do, have lost the connection between "survey" rules and common law. They only differ when they are misapplied.

If you research the role of the surveyor in texts from Skelton, to Clark, to Brown, to the BLM Manual (and nearly any other that addresses it), you will find clear definition that the retracing surveyor has NO authority to correct previous surveys by which conveyances had been made. You don't even have to consider doctrines of acquiesence or AP. It's more basic than that.


Bottom line facts:

1. The 1960 survey was performed for the 1960 conveyance. It controls that conveyance.

2. The parties to the 1985 conveyance were informed only by the 1960 survey and the existing deeds, which were all in agreement that the parent parcel was 1000' wide and the easterly conveyance was 500' wide, leaving a 500' remainder. They also viewed the monuments of the 1960 survey as part of the conveyance, giving it tangible meaning that the court will not look beyond. Law requires interpreting intent according to the circumstances surrounding an agreement.

3. The circumstances which first indicated a latent ambiguity and a possible need to take a 2nd look at intent came in the form of measurements 10 years after the latest conveyance and 35 after the line was established. Go back to #2 for correct basic interpretation of intent.

4. A retracement surveyor has no authority to correct perceived errors of previous surveys. Lacking no other evidence than measurement, it is insufficient to overcome the basic interpretation of intent and the established line evidenced by the monuments of the survey controlling the conveyances.


I think Lex is a nom de plume for a more experienced surveyor doing a bit of research to get a feel for how many surveyors understand how the law applies and whether we know how to apply it. The OP seems designed just for the purpose of bringin forth the various opinions in this thread, and Lex popped in only a couple of other times to subtly steer the discussion toward the very limited reading most surveyors give to our survey legal texts. Lex, are you Jeff?

--
Evan A. Page, PLS

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Senior rights?

by Brian Allen @, Preston, Id, Monday, October 10, 2011, 17:21 (1332 days ago) @ eapls2708

Amen to John, Carl & Evan.

To prevent torturing everyone with my spelling and grammer, I'll leave it to a authority - the courts. I could cut and paste scores of cases, but they all basically say the same thing as this well written decision:

TYSON v. EDWARDS, 433 So.2d 549 (1983)

"The difficulty with the problem is that the role and practice of the surveyor and his function in solving a surveying problem of the type in this case is misunderstood. Lawyers, architects and design engineers are accustomed to achieving objectives by first conceiving of abstract ideas or plans, then reducing those ideas (intentions) to paper, and then using the written document from which to construct a physical object or otherwise tangibly achieve the original goal as written. When this is done, the written document is always considered authoritative and any deviation or discrepancy between it and what is actually done pursuant to it is resolved by considering the deviations and discrepancies as being defects or errors in the execution of the original plan to be corrected by changing the physical to conform to the intention evidenced by the writing. In only one situation does the surveyor play a similar role and that is when he, in the first instance, lays out boundaries in the original division of a tract which has theretofore existed as a single unit. Thereafter the surveyor's function radically changes. It is not the surveyor's right or responsibility to set up new points and lines establishing boundaries except when he is surveying theretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey. Later surveyors must only track and "trace the footsteps" of the original surveyor in locating existing boundaries. They cannot establish a new corner or line nor can they correct erroneous surveys of earlier surveyors, even when the earlier surveyor obviously erred in following some apparent original "over-all design" or objective. The reason for this lies in the historic development of the concept of land boundaries and of the profession of surveying. Man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and running lines ("metes and bounds"), and the paper "survey" or plat of survey is intended only as a map of what is on the ground. The surveying method is to establish boundaries by running lines and fixing monuments on the ground while making field notes of such acts. From the field notes, plats of survey or "maps" are later drawn to depict that which was done on the ground. In establishing the original boundary on the ground the original surveyor is conclusively presumed to have been correct and if later surveyors find there is error in the locations, measurements or otherwise, such error is the error of the last surveyor. Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan. Written plats are not construction plans to be followed to correctly reestablish monuments and boundaries. They are "as built" drawings of what has already occurred on the ground and are properly used only to the extent they are helpful in finding and retracing the original survey which they are intended to describe; and to the extent that the original surveyor's lines and monuments on the ground are established by other evidence and are inconsistent with the lines on the plat of survey, the plat is to be disregarded. When evidence establishes a discrepancy between the location on the ground of the original boundary survey and the written plat of that survey the discrepancy is always resolved against the plat.”

“The result of all of this is that most boundary disputes essentially present a surveying problem and the surveying profession has its own rules, methods and practices for resolving its problems. Neither the legal nor surveying problem in a boundary dispute involves a question of what the original subdivider or surveyor intended or where, on the ground, a boundary should now be established to conform to the plat. The question is where on the ground the original surveyor did in fact fix the particular boundary and not where he intended, or should have, fixed it.”
Bold added.

It doesn't get any plainer than that. I'll gladly read any cases wherein the opposite was held.

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Sorry Evan, You Are Wrong

by Paul in PA @, Monday, October 10, 2011, 19:11 (1331 days ago) @ eapls2708

"Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments."

The EXCEPT description covers much greater territory. Not 500', but 400' or 600', whatever it takes. If the East description included the new monuments, then the EXCEPT description does also, whether mentioned or not.

Paul in PA

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Sorry Evan, You Are Wrong

by Brian Allen @, Preston, Id, Monday, October 10, 2011, 19:28 (1331 days ago) @ Paul in PA

"Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments."

The EXCEPT description covers much greater territory. Not 500', but 400' or 600', whatever it takes. If the East description included the new monuments, then the EXCEPT description does also, whether mentioned or not.

Paul in PA

I assume you read his preceeding paragraphs.

You have to do better than that Paul

by eapls2708 @, El Dorado Co., CA, Monday, October 10, 2011, 21:54 (1331 days ago) @ Brian Allen

You say simply that I'm wrong and offer no support for that statement.

You cherry pick one small part of my post which, if you apply a general rule about description writing, you would appear to be correct. But if you take it in context and correctly apply the law, you are unable to support your flippant assessment of my post.

Try to keep up. If you have support to argue against my opinion, taken in context, then do so. I welcome the challenge of thoughtful debate. But simply echoing a portion of my post and saying "your wrong" without presenting an intellectually honest and considered argument is just... empty an a waste of forum space.

You can do better, can't you?

--
Evan A. Page, PLS

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Evan Your Statement On EXCEPT Descriptions Is Wrong

by Paul in PA @, Tuesday, October 11, 2011, 05:57 (1331 days ago) @ eapls2708

"Under those conditions, a description which described the 1000' parcel EXCEPT for the easterly 500' describes the exact same intent as a description which reads the westerly 500' of the 1000' parcel or an explicit call to the 1960 survey or its monuments."

The EXCEPT description binds the second parcel to the first parcel. The decription of the "West 500'" does not.

Jones must signify in words the "intent" to bind West to East.

Paul in PA

Paul, You are still out of context

by eapls2708 @, El Dorado Co., CA, Tuesday, October 11, 2011, 09:48 (1331 days ago) @ Paul in PA

As a general rule, you are correct that the W 500' is not the same as the original parcel except the E 500', but we rarely get to blindly apply only general rules to a situation, and this is one of them.

It is basic law that an agreement must be interpreted with respect to the facts and circumstances surrounding the agreement at the time the agreement was made. That is the context you must stay in to correctly discern the intent expressed by the terms of the agreement. If you do not, you are deliberately ignoring evidence necessary to locate the true boundary.

A surveying technician may know the general rule and can apply the general rule. A professional surveyor must know why the rule exists, when it is applicable, and what the exceptions to the rule are. The circumstances given in the OP quite clearly describe one such exception to the general rule you are so carelessly trying to apply.

If you're going to refute my statements, do so within context. Cut-n-paste of my sentence beginning with "Under these circumstances..." does not provide the context, it merely signifies that there is a particular context to consider.

You still need to do better, Paul. I know it requires more abstract thinking than an engineering problem where you look up the specs and plug them into a design, or look up a predetermined coefficient and plug it into a standard formula, but please try to keep up and to present complete arguments.

--
Evan A. Page, PLS

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Senior rights?

by Tangent, Pac NW, Monday, October 10, 2011, 17:06 (1332 days ago) @ Lex Mercatoria

We all know what happened in this example: Soon after moving in, Mr. Newyoung, who was not informed about the old survey by Eastman, proceeded to get one performed. I don't see anywhere in the text indicating that Eastman told Newyoung about that old survey so we must presume this doc was not part of this last transaction equation. Unf, Newyoung called around and hired the cheapest guy he could find on Craigslist (I know, it wasn't around in 1996- but you know the guy I'm talking about). This 'surveyor' came out and cut corners at every turn to make this work profitable. It's possible the 'surveyor' stumbled on the old pipes in the field but I'm skeptical he or his crew ventured 4' away from the coordinates on their point sheet. Once Westerly saw the fence going up on his property (yes, his) he called an attorney and here we are-trying to defend Crap-Ash surveying Co.(1996 guy). During the litigation Mr. Westerly's team hires a surveyor who is not ashamed to charge for the value of his services and who actually does real survey work; gets testimony and uncovers a copy of the old survey. Meanwhile, C-A surveyor is deflecting and shirking all the responsibility of his profession onto Mr. Newyoung and the court system. He did not perform as a professional, he acted as a technician; he did some math, turned some angles, and made a map. To point--when I, like so many of you, took my LS exam, I don't recall there being a lot of questions about math and angles. Those subjects were covered on the LSIT exam. Math and angles are a tool of our trade and like any tool, it should be engaged to help us determine a solution. It's strict construction should not usurp the solution. Had C-A surveyor performed his due diligence then there would be no lawsuit. Unless he could show that the '60 survey was fraudulent then it will likely be upheld so we should act as the court would act and give them the answer they are looking for. Argue about the facts given if you will, but we have been given enough information to justify the pipes. While it is up to the courts and land owners to establish boundaries, it is our duty to act their agents in determining them. You can do work which you think will keep you safe from legal retribution or you can do work which will be upheld by the court which will in turn keep you safe from legal retribution.

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Senior rights?

by Steve Adams @, Monday, October 10, 2011, 19:34 (1331 days ago) @ Tangent

I appreciate everyone who participated in this important discussion.

The text books can give you general principles, but they can't really discuss specifics like we can.

The learned practitioners on this Forum (and the old Forum) get down to brass tacks, and true boundary surveying can be learned.

Thanks.

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Senior rights?

by Brian Allen @, Preston, Id, Monday, October 10, 2011, 19:45 (1331 days ago) @ Lex Mercatoria

Since Texas was mentioned in a response or two, here are few quotes from a recent Texas Decision:

TH INVESTMENTS, INC. v. KIRBY INLAND MARINE, 218 S.W.3d 173 (2007)

When finding the lines of a survey, "[t]he cardinal rule is that the footsteps of the original surveyor, if they can be ascertained, should be followed." Hurr v. Hildebrand,388 S.W.2d 284, 288 (Tex. Civ.App.-Houston 1965, writ ref'd n.r.e.); see also Humble Oil & Ref. Co. v. State, 162 S.W.2d 119, 132 (Tex.Civ.App.-Austin 1942, writ ref'd) ("The primary objective in locating a survey is to `follow the footsteps of the surveyor'; by which is meant to trace on the ground the lines as he actually ran them in making the survey."). If the actual lines and corners run by the original surveyor can be found, they are controlling, even if they are inconsistent with the calls and references in that surveyor's field notes. See Wheeler v. Stanolind Oil & Gas Co., 151 Tex. 418, 252 S.W.2d 149, 151 (1952) (stating that the footsteps of the original surveyor are controlling and prevail over calls for course and distance); Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317, 318 (1907), (stating that when the actual lines run by the surveyor can be found, they constitute the true boundary and cannot be made to yield to course and distance calls); Teal v. Powell Lumber Co.,262 S.W.2d 223, 226-27 (Tex.Civ.App.-Beaumont 1953, no writ) (stating that "if the footsteps of the original surveyor can be identified and followed, they will control the location of the line or boundary in question even though they may not be in harmony with the field note calls").

When one can locate on the ground with certainty and without inconsistency the objects or monuments designated by the original surveyor "as marking the lines he actually traced . . ., the survey must be laid out from those points, and extraneous evidence cannot be admitted to contradict the assertion of the surveyor that he actually went to the points he so designated." Humble Oil, 162 S.W.2d at 132-33.

Bearings and course calls should not be used to establish the location of a survey
line if there is other reliable evidence showing where it was actually run on the ground. See Wheeler, 252 S.W.2d at 151 (footsteps of original surveyor control over calls for course and distance); Thatcher, 105 S.W. at 318 (where actual lines run can be found, they constitute the true boundary and cannot be made to yield to course and distance calls).

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Senior rights?

by Steve Adams @, Monday, October 10, 2011, 19:51 (1331 days ago) @ Brian Allen

Gosh, if I didn't know any better, it sounds like the Courts are saying that they prefer stable boundaries over exact measurements!

When are they going to wise up and start reading the texts we read?

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Senior rights?

by Brian Allen @, Preston, Id, Monday, October 10, 2011, 20:41 (1331 days ago) @ Steve Adams

Steve, My next big question is which way are the licensing boards gonna go; are they gonna go with the unsubstantiated "survey laws" as espoused in the "texts", or are they gonna go with what the courts have said the laws are? But that is whole 'nother ball of wax.

Senior rights?

by Target Locked @, Wisconsin, Tuesday, October 11, 2011, 07:58 (1331 days ago) @ Lex Mercatoria

No survey is performed but the 1960 irons are pointed out to Westerly.

Very clear to me: I would hold the irons.

Questions to all the "throw the irons out" crowd: Do you "fix" every survey and description up to today? On a lot and block in a platted subdivision, do you "check" that the subdivision exterior is correct? What if the subdivision exterior doesn't match the description? Is the whole subdivision "off"?

If not, how is this scenerio any different? What if the easterly 500 feet was subdivided into a 25 lot subdivision?

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