I recently completed a survey on a parcel that I did proportionate distances on the record. A short time later, another Surveyor came out and surveyed the adjoining parcel and did not proportion the distance. He said he thought it was not legal to do so.

 

I this area, The current record is still from the 1870's. The Section is recorded as being 80 chains x 80 chains. A quarter of a section being 40 x 40 chains. All or most deeds and records created to date have been done in accordance to this old record by Title compaies and others.

 

A farmer owned the Southwest Quarter of the Southwest Quarter of the Northwest Quarter of the Section. over time, he divided this up and sold it. This was done without surveys and was based upon the old record. Meets and bounds descriptions were written as well as over the same period of time the parcel owners North of this had done the same. The old timers knew of discrepencies in the old section lines, so when they measured to place a fence, they would come from both directions and split the difference.

 

The old record distance for the quarter described above was 660'. The meets and bounds descriptions made reference to this distance of North 660' both on the point of beginning and another course of South 660'. 

 

When the Section Corners were located and surveyed, the Section was determined to be larger than record. This Quarter was large by about 36 feet. The occupation lines were surveyed and compared with record and the actual surveyed aloquot portion lines of the Section. Occupation matched with the aloquot portion of the Section of which made the distance of 660', to about 669'. Therefore, all descriptions that had distance of 660 feet were proportioned to match actual 1/4 1/4 1/4 aloquot part of the section.

 

The other surveyor kept record distance of 660 feet and is in conflict with the occupation. Now the owner to the North wants the other surveyors client to buy the property to the fence that I believe he does not own based on my survey. He is my client.

 

So the question is, "When do you proportion or not proportion a distance?"

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Intent is indeed a "dangerous" word and central to the discussion. In the "old" days, intent was "what the words say". Now in these "modern" days of civil decisions based on deeper thought; the concept is more fuzzy.

 

I noticed 25 years ago that many Surveyors want to have their cake and eat it too in these matters. As an expert witness, I can tell you something many don't want to hear. We are NOT just fact finders, we are walking, talking arbiters whether we want that mantle or not. When you set an iron in the ground, you have just told a man what he owns whether you like it, agree or disagree with the concept or not. Here in Florida we have had to identify the irons with caps with our names and License #'s for over 25 years now. Now go into court and try not to stand behind that interpretation (via your drawing) of the description and start explaining the concept of "deed" corners versus "ownership" corners and you are not going to get very far with the Judge. "It's not my job" doesn't fly well in a Civil Courtroom.

There is a basic tenant in all professions, written or not, to "do no harm". Like a couple of you were discussing...I've seen many surveyors just accept "the north 660 of the East 660" as an excuse to do no research, lower their price and go do "an easy one" without the required "proper" research and analysis and relying on some nebulous thought process to throw this into the purvey of the courts if there is ever a "problem".

 

MANY MANY legal descriptions through the years have been written by Attorneys and I am one of a militant group here in FLorida that is trying to get them out of that business without them proving they have taken additional specialized training to competently do so. The BAR is far to strong for us to succeed so far, but one day we might get a hearing so as to illustrate why, in the name of Public Safety, that Surveyors should be the sole proprietors of "new" legal descriptions.

 

It has been proven and accepted in FLorida case law that Attorneys and others like "gasp" Title Company employees who write legal descriptions until turned into the State for engaging in regulated practices outside their sphere have "always" used 660 x 660, many times intending to sell all the land in that 10 acres without creating gaps, gores, overlays or hiatuses. They were just too ignorant at the time they performed the "service" to do it correctly.

 

Why give MORE weight to a metes & bounds description? It came from someone, somewhere based on a survey...ok...but was the survey correct? I would argue if it is based on faulty work (interpretation), the legal description is faulty and you HAVE to go back thru the Chain of Title and see when/where the conundrum was started and to determine actual intent. I've been "required" many times to write a "new" legal description and I always try to talk the parties out of it. If you have a deed that you can interpret and lay out on the ground; why change it to "fit your numbers"?

 

660 x 660 is not always 660 x 660. How about when it is followed by the words "10 acres more or less"? Well that right there is intent to divide as per aliquot. What about when you have a deficiency instead of excess? Are you going to "take" your 660 x 660 without regards to Jr/Sr rights? If you look at the long term implications of your professional actions, I almost ALWAYS come to the conclusion that you should hold the technique of aliquot division and stay strong and ready to defend your actions in court. Remember...you have already staked it out so you have very little choice. Explain your actions or tell the court that you are too incompetent to "know" or "believe" that you are correct. This is NOT TO SAY that some stronger evidence can be found that would change your mind later on.

 

Remember this work you do will be the precursor for future work in the area. It is my belief and I stand behind it 100 percent that a Surveyor's real job is, 1) retrace the fading footsteps of previous surveyors 2) MONUMENT and show the DEFENSIBLE BOUNDARY LINES on your drawing. No if's and's or buts. Our pressure valve that might or might not "save" us later in Civil Court is that most certifications still state "to the best of my knowledge and/or belief" which allows us a way out or to "change our mind) if new evidence is found.

 

If I have one of these that is questionable, and the deeds are equally split between perfect and aliquot breakdowns, I physically stake the most conservative line as I can look the man in the eye and say " I KNOW you own up to here, no problem". This is your DEFENSIBLE BOUNDARY LINE. Then I describe carefully and quantify any additional area that he may have a claim upon.

 

I don't believe that it is good survey practice to go out and create gaps and hiatuses because of "what the words say". No one in their right mind ( and a requirement for a contract is " a right mind" ) would "intend" on creating a gap or overlap. Especially with the fence agreeing closely with you, I believe you are on firm ground with your intepretation. An unmonumented fence is a strong recognizor in court, especially an old one. You already have statements from owners who "split the difference" so it is a known among the adjacent landowners. It IS a statement of ownership. One thing many surveyors ignore is the reputation and field practices of the original government surveyors. Some were MUCH better than others. They were REQUIRED (MOST of the time) to "close out" their township surveys. Did they? or just leave their notes at 40 chains and NOT DO THE WORK? Most who really really did the job correctly without taking some bloody OBVIOUS shortcuts ended up and changed their notes (after closure) to 40.05 or 39.96 chains etc etc etc. If the Gov't survey notes SAY 40 chains to the quarter and a lawyer writes a deed to fit that, how can you say without doubt what the intent was? It is a logical argument that the "intent" was indeed the aliquot parcel!!!!!!

 

Monumentation AND Occupation are critical here. If you find that fence at 660, and the deed is Sr., run with it....but my cases are usually never that cut and dried upon careful inspection of adjacent deeds. Just a couple of salient points that I have experienced.

Thanks Wayne,

I do not agree with you in this case. The original owners intent was sell all of the ground in the 10 acre parcel. He had no other record than what was in the County and it called his original 10 at 660'x660' when the meets and bounds descriptions were created. The occupation of his parcel matched the proration of the 10 Acre parcel. In this case, you should prorate.
Looks like you have all the textbook advise. That's what needs to be done and yes be very careful when prorating. You can look at all places and still not find existing corners if you don't know exactly were to look as in the case of an adjoining survey that you don't have access to. I've surveyed a tract before and after making my decision the owner comes up with a previous survey that he had forgotten that he even had. There are plenty of variables involved and the bottom line usually winds up being the dollar amount. Who wants to pay $10,000 to have a $100,000 parcel surveyed? We are stuck with having to bid on work to get the contract and unfortunately there are too many unemployed surveyors right now who have to bid low to stay in business. It makes me wonder if the public is getting a quality product when a lowballer has to cut corners to make a buck. I guess all that is a different subject. If you can follow all that excellent advise and still make a profit then you are doing well. Good luck.

Hello Daryl! I fully agree with your actions in this survey. First of all the original survey establishing the section lines of that section

are fixed and cannot be changed by a surveyor. While the original field notes normally prevail, if the undisputable field evidence

of section line location indicates a difference, then the field evidence prevails--thus proration--ie aloquot part.

I believe you are right on Daryl.

 

Just an 'ole surveyor

Don Best

 

PS Abit of humor for you: My boss is an RLS and he was trying to "move" the State boundary the other day. HA!

Sorry my last post went to reply to a post not at the end of the posts. Also, I misspoke about the original surveyor changing his notes....some would strike thru as when they came in from west going east (here in Florida), they usually set a corner at 40 chains, then coming back thru from usually south to north and "closing"...SOME would calc a closure, strike thru the 40 and put a new # in. In many instances, you have field notes that say one thing, but a "scrivener" would change the numbers on the "township map" of the survey based on office calcs....so there is a LOT to look at deciphering these old texts and maps. As with many things, it is NOT simple.

You also have to remember these "surveyors" were not out to set absolutely perfect 1/2 mile posts....they were basically tasked with quantifying the country after the Lousiana Purchase for a couple or 3 bucks/mile. The Country back then didn't look like it does today. Because the whole country was rural, no one EVER put out a wild fire so the underbrush wasn't like it is today in most places. They were practically running across the country. It was a really hard life. If you think working for "the government" now is hard waiting to get paid...these guys had to feed and cloth themselves, keep their equipment repaired and in good working order, manufacture 6" x 8" x 3-4 foot long litewood posts for every 1/2 mile, fight indians and disease, and measure/monument a few THOUSAND square miles per job and couldn't get paid for a year or 2 (or 3) after a job was done. When the sun went down, you ate and went BACK to work cleaning and "crimping" the gunters chain back to 66.0 feet, hewing more section corners, and the head surveyor (the recorder as they were known) would set up a transit around midnight and shoot polaris for an hour or so..........

 

Learning to read these field notes and apply them into the township map is a really interesting study and is very relevant to what we do today especially in rural areas with few plats etc......

Timothy,

Thanks for the great response to my discusion!

 

I have spent many hours over the years retracing old government section surveys. Reading and desifering old notes and maps, determining the calls to physical features such as topography, old roads, ditches, buildings, etc., to locate the original section corner.  Researching chain of title and determining deed description lines. All to determin the location of one small parcel of ground.

 

I have never found a quarter section yet that is exactly 2640.00 feet as the old record indicates. These old surveys are still what is being used as the official County Record. The majority of the old and new deed descriptions that have been created have been based on this old record survey.

 

So, New Senerio. If a land owner has quarter of a quarter of a quarter of a section and wishes to sell the East portion of this, he or the Title Co., or an Attorney, writes a description based on what is on record. This would be at 660.0', North to South, according to record (a fraction of the section). He intends to sell all of what he has title to. He and the other land owners have measured the ground on their own to determine fences in the past to save on cost and to show they can can measure. The title still reflects he owned a quarter of a quarter of a quarter regardless of fenceline line locations. The actual surveyed quarter, quarter, quarter section size does not match the record (short 7'). The fence line on the North does not match the aliquot part of the section by 5' ± but is close to the record of 660'.  

What does a surveyor do now?

Hey Daryl. Seems to me you've spent a lot of time and given this quite a bit of thought and I think all you have is 2 options. Number one, set the corners per your proration and show the fences and other improvements relationship to the property corners and lines. Option two, if all adjoiners are in agreement with the fence and or fences you might be able to get them together and explain the situation and hopefully get them to sign a document or even the field book stating they agee to the fence as being the line. That would be an easy way out as far as your liability, it would seem to me anyway. You might want to consult with an attorney familiar with real estate law in your area to see if he agrees. Heck 5 or 7 feet doesn't seem that bad to me compared to some instances I have witnessed. Of course some people can squabble over an inch but if you have an agreement that satisfies everyone I don't see how that could cause problems especially if it could be recorded in the public records as such. I dunno, just a thought you may want to consider.

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