Original Monuments....That Aren't
Opinions plz....situation is this: A city block was created with the four external block corners set. Internal corners would be set over time. As we all know, those block corners are "without error" (assuming no blunder).
Fast forward to today. One of the block corners is now a capped rebar (obviously not what could have originally been used). It fits beautifully. My question is not whether to use it or not. My question is this: do you personally consider it to be "without error". (1) What is your opinion? (2) What does the law in your say (state your legal standing if you can)?
While it'd make me feel better if I had some evidence of when and who set it, I'd still assume it represents better evidence than the infinite hypotheticals swirling around in my mind.
Murphy....forget the hypotheticals and that every rule has an exception. Whatever you need to convince you that it is in the original location, you have it. I'll even concede that it should be used by all available occupation.. Does that new monument carry the same weight of what the original did?
I don't view "without error" as relavent outside of philosophical discussion. It's a non falsifiable assertion, so best not to even bring it up. Describe the found monument, reference evidence supporting its pedigree if any exists, and leave it to others to prove a negative.
A good faith restoration of an original plat monument has all the dignity of the original, once accepted, IMO.
From Wattles Writing Legal Descriptions
I think we tend to take the concept that the original survey is without error a little to literally. The phrase has been used by the courts to make a point, and the context of those cases should be taken into account.
Also, a blunder doesn't necessarily negate the "without error". An original stubbed out 1/4 with a dropped chain or two and a 20 degree angle bust is definitely a blunder, but it is still "without error". Depending on the circumstances the same could apply to a private subdivision corner.
As for your question. If the rebar is a diligent and faithful restoration of an original corner the corner is still "without error", but you could be in error in concluding that that the rebar is a diligent and faithful restoration. In other words it all hinges on your determination of whether the corner is lost or obliterated, and that decision is not necessarily "without error".
Murphy, like your application...probably what we will all do.
Norman, great citation. Wattles no less....not Brown, Robillard, Cooley...though those guys aren't bad either. 🤣
The default position is to hold the monument, much like Norman's quote says. The burden is on the rejector.
There are several such references in Brown. In my 1st edition of BC & LP is found:
Principle. In a lot and block description, subdivision monuments called for on the plat, or monuments set by others to perpetuate the position of the original monuments called for, if properly identified and undisturbed, control the position of the original lot lines.
This principle remains in the seventh edition, unchanged, as section 12.11.
I agree, I go with the presumption that a found monument is good until proven otherwise. I don't just go about rejecting monuments just because they're not called for in the deed or original plat
Yes, and there needs to be a very compelling reason to reject a monument. Not that I won't or haven't done it. We cleaned up a property a couple of months ago, there was all kinds of irons out there that needed to go. But I'm lucky I guess that is rare here as are multiple monuments at a corner.
Yes - like Brown's interpretation and therefore practical application for surveyors needing to stake corners when all is said and done.
Would you agree that a strict legal interpretation would say, "Wait, that corner is suspect because it is not original!"....to which I would say something like, "Yes, you are right. So I did some checking and I'm using it (or maybe rejecting it if I found something wrong)!".
The whole point of my query is to investigate everyone's understanding of a legal interpretation of an original monument.
It frequently happens that we do not have a well documented paper trail. No biggie. So the surveyor must make measurements to the various other monuments and improvements he (or she) finds and evaluate evidence. If it all, or at least most of it, fits it is fair to assume that some reasonable thought and effort went into its placement. The standard is "clear and convincing evidence".