Share:
Notifications
Clear all

What controls?

Page 2 / 4
MightyMoe
(@mightymoe)
5,000+ posts Supporter

50', if the plat dedicated 50 feet and you are sure that the 1/16th line is the boundary and you know where the 1/16th line is, then 50 feet off that line. The monuments become reference monuments or WC's. Much like the crosses in some local subdivisions set on the BOC for line. 

I'm with Nate on this one, there was an attempt possibly to make a 66' wide road and they couldn't come to an agreement with the neighbor and made it 50' off the boundary line at the last minute in the platting process. The monuments weren't moved over. Guessing of course, but I've seen similar FUBARs.

I don't see going over the dedication, I wouldn't go to the DOT or anyone else, my experience with DOT's/county/city is that they will go after the dedicated ROW if they are involved. 

ReplyQuote
Posted : December 1, 2021 7:05 am
Norman Oklahoma
(@norman-oklahoma)
5,000+ posts Member

A couple years back I engaged in a debate, principally with a certain Montana DOT Surveyor (now retired form gov't service), about whether to hold the monuments along a right of way line or the full quoted width of the right of way. In the circumstance then at hand the difference between monuments and quoted width was well under a foot. 

I argued then that the public gets the full width quoted, that the monuments on both sides of the road should be used to develop a centerline, from which right of way lines are offset. It is a universal principle that the public cannot be adversely possessed against because the public can't be expected to be conscious of the location of individual monuments. It is not the placing of monuments by the surveyor that gives them the controlling dignity. It is what the adjoining landowners and other interested parties think about them and do in reliance upon them that make them what they are.        

ReplyQuote
Posted : December 1, 2021 8:54 am
Williwaw
(@williwaw)
1,000+ posts Member

I have more digging to do both figuratively and literally. Need to take a look at the date of entry to see if the original parent parcel was subject to a PLO that would dictate a width for the right of way and search 17' back into the woods behind the corners I tied. One small detail that I initially glossed over was the original surveyor noted on the plat that he set 5/8" rebar for corners. What I located were 1/2", which initially made me confident they were originals since that would be consistent with what was typically set back in the 70's. I best get to it because in another month or two the snow will be 5' deep around there. Clearing the utility easement back in there is going to piss some people off so I'd best not leap to any conclusions without something solid to rest my case on. Thanks everyone for your thoughts on the matter. They don't pay me the big bucks to get things wrong.

ReplyQuote
Topic starter Posted : December 1, 2021 9:12 am

aliquot
(@aliquot)
1,000+ posts Member
Posted by: @norman-oklahoma

A couple years back I engaged in a debate, principally with a certain Montana DOT Surveyor (now retired form gov't service), about whether to hold the monuments along a right of way line or the full quoted width of the right of way. In the circumstance then at hand the difference between monuments and quoted width was well under a foot. 

I argued then that the public gets the full width quoted, that the monuments on both sides of the road should be used to develop a centerline, from which right of way lines are offset. It is a universal principle that the public cannot be adversely possessed against because the public can't be expected to be conscious of the location of individual monuments. It is not the placing of monuments by the surveyor that gives them the controlling dignity. It is what the adjoining landowners and other interested parties think about them and do in reliance upon them that make them what they are.        

Every time this subject comes up someone claims that DOT gets the full width rearrdless of monuments, and everytime the proponent of that idea fails to come up with a convincing legal president that would treat a goverment interest in land for ROW purposes any different in than a government interest in land for any other purpose.

The monuments hold just like they do for any other boundary. 

And just like any other boundary there are exceptions, like gross error (perhaps applicable to the OP). 

The principle of holding monuntation is not the same as the theory of adverse possession. Monumnets hold either because they are original, or through the idea of bona fide rights , or related theories. If it were based on adverse possesion, monuments on the boundary of any goverment land would be meaningless. 

Land owners who own land bound by ROWs have just as much right to depend on the mountings they see as those who own land bound by public land. 

This post was modified 2 months ago by aliquot
ReplyQuote
Posted : December 1, 2021 10:16 am
Williwaw
(@williwaw)
1,000+ posts Member

@aliquot And there you have it. The chicken or the egg. Protect the plat or honor the monuments. Intent verses what was actually done. I'm absolutely confident that I've pinpointed the math error in the plat dimension that led to the corners in question. The platted dimensions match the recovered corners within .1', but instead of being 50' off the 1/16 line,  they were computed to 33' off the 1/16 line, meaning the platted east west lot lines are 17' long. Was this an accident, a math error or actually intentional. Curiously this 17' provided the developer with the exact number to provide the area of each lot to be ... 43,560 sq ft. of usable area. I'm just suggesting that someone might have played a little numbers game to meet the minimum lot size requirement by borrowing 17' of ROW to make that magic number and squeeze out an extra lot. I suspect that this was not an error but rather a deception. 

ReplyQuote
Topic starter Posted : December 1, 2021 10:35 am
aliquot
(@aliquot)
1,000+ posts Member

@williwaw 

Sounds convincing to me. The question is, what now, and why didn't they just plat the ROW as an easement? I guess that is a "trick" that wasn't discovered till latter. 

This post was modified 2 months ago by aliquot
ReplyQuote
Posted : December 1, 2021 12:04 pm

Norman Oklahoma
(@norman-oklahoma)
5,000+ posts Member
Posted by: @aliquot

Every time this subject comes up someone claims that DOT gets the full width rearrdless of monuments, and everytime the proponent of that idea fails to come up with a convincing legal president that would treat a goverment interest in land for ROW purposes any different in than a government interest in land for any other purpose.

The monuments hold just like they do for any other boundary. 

Guilty as charged. I do not have any case law to point at. But there isn't any case law - that  I am aware of - that points to the contrary case, either. If you have something I will be pleased to read it. 

Oh! Wait! Before you get all riled up. I'm perfectly aware of loads of case law about holding monuments over dimensions, etc. etc.  It is written in my state's statute law. But right of way is an easement, not fee, and it is public interest, not private. It is different.  

Case in point - the Montana DOT surveyor I was debating with (a regular and respected poster here) was acting on his own opinion. Not the policy of the powers that be at his DOT. I'd think that if this was all settled law the DOT would have a policy on this matter, and not leave it up to the case by case decisions of their individual surveyors.    

 

ReplyQuote
Posted : December 1, 2021 4:29 pm
JPH liked
jpb
 jpb
(@jpb)
50+ posts Supporter

@norman-oklahoma 

 

It surprises me that the peticular poster you speak of says MDOT holds monuments over dimensioned ROW. It used to very from district to district within  MDOT. 

When I have time I will post plats from MDOT that shows "monuments" out oft position by .2', complete with bearing and distance from the found monument to the calculated corner which the subcontractors are required to hold. All ROW lines are required to be parallel to each other between section corner to quarter corner, or section corner to section corner.

I will not link the retracement survey which a contractor show my certificate of survey corner out of position by .02'. They clearly show the coordinates of my corner as well as the coordinate of the "correct" calculated corner. They don't monument the corner, they just show the coordinates of the "true" corner

When certain people at MDOT are asked about court cases regarding how they hold dimensions over monuments they spit out the case of Whol vs. City of Missoula....I will let you all read it to gather your own opinion. 

P.S. I enjoy reading the opinion of Whol vs. City of Missoula II and III, the court makes it clear that the city should just give up and take the loss.

 

 

ReplyQuote
Posted : December 1, 2021 8:39 pm
NorthernSurveyor
(@northernsurveyor)
500+ posts Supporter

I will respectively disagree with the view of @aliquot about the State not getting a full width of their ROW rather than acquiescing to surveys of the boundaries of the ROW done by state licensed surveyors.  I think it is a good topic, but deserves its own thread.  I do have case law from the Alaska Supreme Court backing the State's position.  I will say that it is rare that the DOT&PF monuments the limits of the ROW but rather more typically monuments  directly or by reference the centerline of the ROW and the ROW plans show and assert full width. There  is a huge lack of understanding and mis-use of the "Yellow concrete post markers" by many surveyors over the decades treating them as the same litany  as a controlling survey monument.   The record is clear that these YCPM's were set by the highway construction contractors laborers and were never intended to be a surveyed edge of ROW for the State.   This has caused great damage to landowners when later used by surveyors as controlling limits of the ROW then subsequently further on in time those relying on such surveys the inconsistencies and blunders of these YCPM set by the construction contractor laborers.

Back to the OP @williwaw inquiry, I think the discrepancy on the plat dedication ROW of 50' and the property corners set at 33' could be a common situation that exists where the first property out of federal ownership was a patent with a road reservation, which were very commonly 33' wide patent reservations (essentially  easements with a few rights of fee ownership underlying the road easement rights) and another valid easement held by the State 50' in width.   When the surveyor presented a plat to the platting authority he wanted to survey the full patent limits, created lots on the 33' patent reservation line and was requested by the PA to show and label the State's ROW interest and ripen that interest into a full fee ROW dedication.  Bad form, and obviously ambiguous as to were the new lot owner's boundary lines are.   If this is the case I would think clearly the ownership line is the 50' edge of ROW as dedications have been ruled in case law the equivalent of a fee ownership by the government entity accepting the dedication.

The Alaska Supreme Court decision in State v. The Alaska Land Title Association is a similar situation and also a bellwether decision of many ROW issues that I posted on yesterday.  Alaska v. Land Title Association

Likewise the ASC decision in Keener v. State of Alaska looks to be very similar to the issue presented here by the OP: Keener v. State of Alaska

Additionally, I have attached John F. Bennett, PLS SR/WA very good and complete white paper on ROWs in Alaska.   John introduces himself in the introduction, at the time he was Right of Way Chief for ADOT&PF Northern Region.   We were classmates and roommates back in the mid-1970s at University of Alaska and have remained good friends and peers.   I hold him as one of the most knowledgeable in ROWs of Alaska.

Peace, goodnight, end of post, hope you find references helpful  

edits: typos and hyperlinks

 

This post was modified 2 months ago 3 times by NorthernSurveyor
ReplyQuote
Posted : December 1, 2021 10:39 pm

Dave Karoly
(@dave-karoly)
10,000+ posts Member

@northernsurveyor I have heard the excuse that the concrete monuments were set by the construction contractor.

I find that excuse unpersuasive. The State certainly supervised that operation so are responsible for it.

ReplyQuote
Posted : December 2, 2021 5:30 am
Jim in AZ
(@jim-in-az)
1,000+ posts Member
Posted by: @williwaw

I’m working on a design that covers a couple of miles and the subdivision I’m working in at the moment is giving me fits. Done back in the mid 70s. The east side borders a 1/16 line and the plat says they dedicated a 50’ ROW up to the 1/16 line with a utility easement behind the ROW, which is a state maintained road. All of the original corners were set at 33’ off the 1/16 line. The original surveyor did four subdivisions out of the original parent parcel and each has proven to be a barrel of monkeys. I’m leaning towards this being a 33’ ROW but I’m fairly certain DOT would argue that they are due the full fifty, consistent with the ROW to the north and south of this subdivision and the intent of the plat. Neither scenario impacts the traveled way. Any thoughts?

I presume that you have not spoken with the original surveyor...?

ReplyQuote
Posted : December 2, 2021 6:05 am
MightyMoe
(@mightymoe)
5,000+ posts Supporter

@dave-karoly 

The state surveys the right-of-way and acquires deeds. The state then hires it staked or stakes it themselves. They then set the right-of-way monuments.

Then years later claim that the right-of-way they marked was done by them incompetently because the workers they hired were not trained correctly to do it. And of course the right-of-way, which is almost always narrow compared to the deeds, needs to be expanded. 

Quite the process. 

 

ReplyQuote
Posted : December 2, 2021 6:32 am

Dave Karoly
(@dave-karoly)
10,000+ posts Member

My opinion on this is that if monuments were set on a particular R/W line then they are presumed to control. The R/W is still at 50 feet even though the monument measures 49.86 feet, the R/W is 50 feet and at the monument (you have to think like a lawyer, not an engineer).

If the monuments were set on a different line (33 feet in this case) then they don’t control because they weren’t set to mark the 50 foot line.

The procedure often advanced to somehow restore the engineer’s centerline from inaccurately set monuments then remark the R/W is arbitrary speculation in my opinion.

ReplyQuote
Posted : December 2, 2021 6:43 am
MightyMoe liked
Williwaw
(@williwaw)
1,000+ posts Member

@jim-in-az He passed away a number of years ago. 

ReplyQuote
Topic starter Posted : December 2, 2021 7:05 am
Jim in AZ
(@jim-in-az)
1,000+ posts Member

@williwaw

I've noticed that they tend to do that...

ReplyQuote
Posted : December 2, 2021 7:17 am

Page 2 / 4
Share: