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This Content Originally Published by a land surveyor to Land Surveyors United Network
That's a tough one and the inevitable answer is it depends on a lot of other things, including your local state statutes and case law. A couple more questions for your consideration that may influence your decision:
- Did you find original monuments for the Senior Plat that establish its lines? Perhaps both the Sr and Jr plats are using the same location for that line, even though the descriptions say otherwise.
- Review the underlying legal descriptions for the plats. Which vesting deed for those properties is Senior, and do you find any ambiguities.
- Is there other evidence that shows occupation along the line? Fences, mow lines, hedges.
When all said and done, Surveyors just identify boundary lines, so you may have to show the overlap and consult with your client and their attorneys on whether to get a judge to define the property lines. In this case if I was you, I would not set monuments on the previously platted property until you've done more research and have contacted your client first. It could be that you set a new monument, or it could be that you call out the existing one that 0.5' away as marking the corner, depending on what you find.
I would absolutely not set new monuments. Adverse possession is a consideration depending on age. I would show a dashed line representing the adjoining property and indicate that an overlap exists. I would also place a note on the plat communicating that the survey is based on original monuments. I would not interfere with the possession lines, interjecting myself as the problem solver. Time and possession usually take care of these issues. Neighborhood tranquility is something that surveyors should keep in mind. I would inform only. If your state has a law like Tennessee's, we are obligated to contact the adjoiner any time we find a conflict. In that case, I would send a copy of my survey with an explanatory note.
I personally, would set the corners of the lot for the junior subdivision where the side lines of the lot intersect the line of the senior subdivision and then I would file a plat depicting the conditions of the overlap. The area in conflict would be called out on the plat is "overlap of junior and senior parcel". Ultimately, the court is the only entity that can make the call as to who as rights to that ground....you, as the surveyor, only convey the information as to the lines of the original surveys and occupation.
If you are being paid to mark the true line of the subdivision then you would set a new rod on the line at the correct position. On the plat you should show that corners were found but were determined to be out of position by a half foot or so and show the reset corners. 2 corners being set a half a foot out of position can be said to be a blunder. The others that are too far apart according to your results may need to be reset if they are so far apart that they could also be a blunder. "Blunder" is subjective so use your best judgement.If you are merely talking an inch or even 2 inches then you may be fine leaving them in place.One thing to remember is that surveyors and their help are humans. "Error" in property corner position is a fact of life because humans are imperfect. Perhaps one surveyor set an instrument a quarter of an inch differently than another surveyor. Perhaps your rod bubble is slightly out of level. If you ever sighted in a rifle scope for a 100 yard shot...the next person to shoot the rifle may be off target because of human differences in sight. We bring differing perspectives to the field and to the plat. The old saying is get 4 surveyors to survey the same ground and you will get 4 different results. You would expect their surveys to be in relative agreement but if they differ by a tenth or even 2...who is correct. They all are based on their individual knowledge and belief. The thing that drives me nuts is finding 4 or 5 rods or pipes that are purporting to represent the actual property corner and they are all within 2 inches of each other. Surveying is an intangible practice. The bearings and distances shown on a plat are for informational purposes only. The actual rod or pipe is what will control unless there is an obvious blunder as your statement about 2 rods being a half foot out of position and also being on another land. Don't be splitting hairs...no one could afford you.
Dear Mr. Whitlock,
The correct answer is the oldest one in the surveyor's lexicon: "It depends." In the final analysis, what you do will be expressing your professional opinion.
Questions to answer include: What are you charged to do? and Have you been asked to render a professional opinion of the boundary limits? (Title is on paper, boundaries are on the ground). Are you charged to discover evidence for a legal dispute?
Your answers to those questions will determine what you do. I don't think you want to put a new monument nearby existing ones, as a general rule, except for the purpose of creating disagreements.
Apparent overlaps may indicate the understanding of original occupiers and original situations not well described in deed descriptions. They may indicate encroachment. They may indicate a senior/junior rights situation.
In most cases, YOUR job is to discover the truth on-the-ground and relate it to YOUR interpretation (with the courts' guidance) of the deeds and titles.
All have made some good points. I have done quite a bit of rural retracements & to borrow an expression from our British friends, some have been pretty sticky. A case I am presently working on has our county "Master in Equity" as the officer in charge of the estate, (not sure of the correct legal title). Since he has a personal interest in the matter, he can't try the case but he can be and is a real jerk. There is very little evidence & much of it is conflicting. There is no way anybody can establish the lines of this property beyond doubt. Also remember that in our legal system, you don't have to be wrong to lose or right to win. Not to mention that evidence could come to light at a later date that would prove your opinion to be wrong. It is a long standing principle in all jurisdictions I know of that found original monuments called for in the deed carry the greatest weight. Typically, in most cases, we not only can't identify a monument as a found original monument, we don't even know who set it or if he was even qualified to do so. Property owners are notorious for moving monuments. I always state on the plat that the survey is based on the evidence found on the ground, the public records and existing law and standard of practice as I understand it & that I have no control or knowledge of how previous surveys were conducted. Assume you will have to defend your survey in court because, if you do enough surveying, you probably will sooner or later. Your best defense is to do the best job you can & don't skimp on research!
I believe it is a good policy to keep everybody informed of any problems or discrepancies so that problems can be resolved early on. That puts the ball in their court.
Exterior boundaries of subdivisions are existing tracts. Changing these lines equate to changing lines of ownership. The law looks at this as a conveyance of real property & is the practice of law, however, when the line is in doubt, it can usually be changed by agreement.
We have enough to worry about trying to create the best survey/solution that we can. Let the courts & the lawyers worry about the legal problems. I don't mean that we shouldn't be aware of the law & the impact it has on what we do. I remember one surveyor writing, "Ignorance of the law is not an excuse. When the best legal minds in the country come to a 4-5 decision, that is the law, that is how it always was & you should have known it. Should you advise someone of that which you are presumed to know, you are guilty of practicing law without a license.
That is not an exact quote but it is close. I don't recall the author.
This is what I would do. If you have a lot that is still empty you can push all the error into it. Otherwise, I would prorate the error, spread it around from inside to out, and call it out on the new plat. That's what i'd do.
I hope you are saying that "tongue in cheek". I believe I detect a bit of sarcasm. I try to stay out of court but the last time the surveyor for the opposing party said something like that, namely, "some surveyors think they have to survey the whole block.....", their attorney said, "we are not going to litigate this, we are going to settle".
Interior corners hold, if original. The boundary of the subdivision is disputable. Show the error on the new plat. Do not Pin cushion the corners. We are not suppose to create conflicts among the neighbors. Not sure where you are surveying so I do not know your local laws. Occupation and Adverse possession all come into play. If you move that corner .5 left or right you could cloud someones title. House is now in the 10' setback, fence is now over the line.
Yes Kate, you are right of course. Errors are most likely to be found in S/D boundaries hence the general rule is to use interior control for lots. However, nothing is cast in concrete. It is also true that the adjoining tract could have senior rights & that the fact that the S/D lots don't agree with the boundary is quite often due to the fact that the S/D was created without a proper boundary survey. Property lines are where they are, surveyors have no authority to change them. Our job is to locate them as best we can. Items like adverse possession are the domain of the courts. General rules of surveying are like a presumption of law. It is assumed to be true unless the contrary is proven. There is nothing I know of that bars a surveyor from using logic, his experience & sound judgement to establish a corner. Nobody is ever required to accept anybodies survey. Should the parties not be able to come to an agreement, we must turn to the courts.