Practical Location

goodgps · Post by **goodgps** » Mon Mar 09, 2009 6:27 pm

I'm not buying into the entire statement that land surveyors "cause" boundary disputes. Perhaps the "evidence" found or presented by the land surveyor causes a riff. Most dispute cases I stumble into, are already in progress. Disputes are caused by hate, ignorance or greed.
The surveyor is often the unwilling fuel for the fire. Also !!! many "clients" learn to hide their dispute until after the contract is signed. (they learn this after a few telephone rejections)

Whilst we cannot offer medical solutions to the land owners angst, we can/should be objective to all evidence.

If you find a "corner marker" at a fence but it doesn't fit deed data, the "material" found may have been placed irresponibly by an unprofessional stimulated by greed or ego. OR it may be the best evidence available.

Once again, OPEN discussion is credible !!

Please consider this example ;

"all that portion of the section beginning at a point on the west line of said section, 1200 feet south of the section corner; thence continue south along the section line, 200 feet; thence S 89 40' E, distant of 300 feet; thence north, parallel with said section line, 200 feet; thence N 89 40' W distant 300 feet to the point of beginning. "

Tell me Kind folks, how would you lay that out ??

P.S. its a real life problem with a real life dispute, happening right now.

I'd love some input *^)

"GPS"

Ben Lund · Post by **Ben Lund** » Tue Mar 10, 2009 7:57 am

Without anymore information this is what I would do:
1. Establish the section corner
2. Establish the west line of the section
3. POB is 1,200 feet south of the section corner ON the west line of the section

The rest of the courses per the deed language.

dmi · Post by **dmi** » Tue Mar 10, 2009 8:10 am

I think you would need evidence as to the basis of bearings. it is probably astronomic, run with a compass. It makes a difference and one cannot just assume. The south 1200 feet is not qualified as being on the section line as the next course is described as being along the section line. This creates a patent ambiguity. They probably meant along the section line but that is not what they said, so evidence is needed to support the assumption that we are in fact going along the section line, departing the section line and then returning to the section. line. Is this deed a junior or senior deed? You can't just run out the deed witout regard for how the surrounding properties have been developed.

Glad this is your job Good and not mine

E_Page · Post by **E_Page** » Tue Mar 10, 2009 8:19 am

No patent ambiguity. Read it again.

dmi · Post by **dmi** » Tue Mar 10, 2009 8:54 am

"1200 feet south of the section corner" This is not the same as
1200 feet south along said section line from said section corner. The rest of the description indicates that it is. Especially considering the next line does travel along the section line. I just want to be sure the first line is in fact consistent with the intent of the rest of the description. If you have ever seen descriptions written in the following form "1200 feet south and 400 east of said section", then you would want ot make sure that a course had not been left out. There are many of these types of description in San Joaquin county. I have seen descriptions used over and over again where the latest description is,well fubar, with every other line of the description missing and when you look at a prior deed all the courses are there.

It may not seem ambiguois to you, but in my opinion, there is an issue that needs to be clarified. This is just my opinion and I do not believe that there is anything wrong with backing my opinion up with evidence. Experience tells me to take an extra step here to make sure that what I think I am reading is what is actually the intent of the parties.

Ben Lund · Post by **Ben Lund** » Tue Mar 10, 2009 8:54 am

“1200 feet south of the section corner” could mean astronomic, compass, or something else. I believe this is a patent ambiguity that is resolved by the deed language of the next course, “thence continue south along the section line…”. You cannot continue “south along the section line” if you are not on the section line to begin with. “South” in both courses is the bearing of the section line.

E_Page · Post by **E_Page** » Tue Mar 10, 2009 9:08 am

Read the whole thing from the beginning. There is no patent ambiguity. The point is on the section line, 1200 feet south of the section corner.

Ben Lund · Post by **Ben Lund** » Tue Mar 10, 2009 9:14 am

Evan,
1200 feet along the section line or 1200 feet astronomic south? I believe this is the heart of what could be considered a patent ambiguity.

I think we all agree that the POB is on the west line of the section per the language, “beginning at a point on the west line of said section”.

dmi · Post by **dmi** » Tue Mar 10, 2009 9:19 am

No doubt, with just the evidence as provided, the intention appears to be to travel along the west line of section,south 1200 feet, depart the west section
line for several courses and then return to the section line. The PLSS definition of South or North is related to an astronomic basis of bearings. Is this the same basis of bearings that the deed is refering to? Does one need evdence that the parties to the deed have a similar understanding of a section line and astronomic basis of bearings as the land surveyor who later puts this description on the ground?

I brought up a mag survey because it could be difficult to retrace, if there is an issue with local variation. The bearing of the line is still a north/ south line based upon astronomic north, but you have to be aware of the variation between the 2. The variation is written on the plat based upon the running of the line at the time. So if I whip out my compass and run south from the section corner, I will be in the wrong place.

Good indicated that there is a problem surrounding this description and that folks are fighting over it. How can that be with such a simple description? Three different surveyors have read that description and come up with basically the same reading of it... so where have things gone wrong?

dmi · Post by **dmi** » Tue Mar 10, 2009 9:43 am

Evan,
I have read the deed, several times now, I pointed out a possible problem.
I gave you reasons why I think it could be a problem. I would not change my view without evidence. So respectfully, we disagree. I did not say in NO UNCERTAIN TERMS , I said taken as a whole,without other evidence, I read the deed the same way as you and Ben read it. If I were doing this job, I would take steps to satisfy myself, that I could take the deed as a whole to mean what we all think it means.

7702 · Post by **7702** » Tue Mar 10, 2009 10:08 am

"Good indicated that there is a problem surrounding this description and that folks are fighting over it. How can that be with such a simple description?"

A simple description in itself does nothing to prevent conflicts between adjoiners from developing over the years. As this thread has demonstrated, there are numerous reasons for disputes to arise.

E_Page · Post by **E_Page** » Tue Mar 10, 2009 11:15 am

Any technician can take a deed like this and stake it. It takes a real professional to complicate it as has been done here. ;-)

Dane,

There may very well be one or more latent ambiguities with such a description. But there is nothing patently wrong with the description Good provided. You can sit at your computer, and knowing nothing else, following the courses given, plot it out and it will close.

The definition of a patent ambiguity is that a surveyor will look at it and determine that there is absolutely no way to figure out what the writer intended to do or where the property is.

Here, it is plain that the intent was to go southerly along the section line. That is patently clear. All of the other directions and distances are patently clear.

The latent ambiguities which may be encountered once applying the description to the ground are what did the writer intend as a basis of bearing for each of the courses, and how were they determined.

Except from Good's implication, you don't even know that you have a latent ambiguity. It could be that you go out and find that this is the one section line in all of the US that truly does run due North and South, and that there is no other extrinsic evidence which conflicts with the terms of the description.

You guys are thinking way too hard about a problem that has not yet been defined.

You need to have the problem defined before you can determine how it came about and how to account for it.

Surveyor826 · Post by **Surveyor826** » Tue Mar 10, 2009 11:36 am

I think the thread between my first post and this would lead a REASONABLE person to conclude that the attorney was correct when he said:
"A boundary dispute is almost always a dispute between surveyors."

He didn't say surveyors cause the problem, he simply pointed out what this page discussion has proved: two different surveyors are likely to have two different opinions. And the surveyors are also likely to be very attached to their own "solution".

A rather straightforward description has us disputing everything from whether there is a patent ambiguity to the bearing base.
Heaven knows what would happen once we got on site and found conflicting evidence there!
Cheers

Surveyor826 · Post by **Surveyor826** » Tue Mar 10, 2009 11:37 am

double post deleted.
Cheers

7702 · Post by **7702** » Tue Mar 10, 2009 11:42 am

If any exist, the monuments marking the west line of the section are what controls the basis of bearings for this description. It doesn't matter what the bearing is between them as long as you maintain the angular relationship as described in the deed. Record bearing may have been North, based on a solar determination. I might retrace that same line and find it to be N 10 degrees W based on my carefully performed solar observation. So should I lay out the deed by heading south as I determine south to be? Probably not a good idea. It's the monumented section line that controls the directions and the angular relationship, whether you want to call said line astronomic south, south, true south, due south, deep south....

dmi · Post by **dmi** » Tue Mar 10, 2009 12:16 pm

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A reasonable person could conclude that when parties go to court over a boundary dispute, that both sides in order to protect their interests, are likely to hire experts to testify on their behalf. If the other side has an expert surveyor to testify,then I'd suggest you had better get one yourself. How would you hope to prevail without your own expert? So essentially the disagreement is between the parties and of course you are going to get dueling surveyors, only an idiot is going to go into court without an expert on their side.

Surveyor826 · Post by **Surveyor826** » Tue Mar 10, 2009 1:08 pm

Glad you finally agree with my original statement:

"I was recently at a Bar Continuing education course on boundaries and easements where one of the attorney presenters stated: "A boundary dispute is almost always a dispute between surveyors."
The point being that if both plaintiff's and defendant's surveyors agreed as to the boundary location there would be no basis for dispute.

Cheers."

Ben Lund · Post by **Ben Lund** » Tue Mar 10, 2009 3:15 pm

I donâ€™t know if I have convinced myself that evidence of unwritten forms of title transfer like practical location, recognition and acquiescence, unwritten agreement, and estoppel can or should be used in locating boundary corners.

It seems that we as professional land surveyors acting as judge and jury have the right and the responsibility to locate boundary corners based on these unwritten forms. Has anyone stated the legal concept they used when establishing a corner by practical location or any other unwritten transfer of ownership?

goodgps · Post by **goodgps** » Tue Mar 10, 2009 3:16 pm

There is no question as to the POB for this description. As pointed out, however, there is a conflict as to the position of the south and north lines of the described parcel.

1; Is the section line assumed "North" and the angular relationships held ?

2; Is the section line assumed "North" BUT the measured compass bearings held.

To solve this, first we obtain acceptable NW corner and West 1/4 corner of the section. Thence we place a point 1200 feet southerly from the section corner, on the section line.

The first angle we turned is to the "compass bearing" ignoring angular relationship. This line went thru an old metal building, not parallel with the building.
Second, we turned a "relationship" angle. This line fell 1-foot north of the metal building and was fairly parallel with the side of the building.

We continued southerly 200 feet and repeated the angle process.
Finding no conflict along the parcels south line, we concluded;
The original scrivener/surveyor, assumed north/zero on the section line and turned a se quadrant angle of 89*40'. Thusly he used an angular relationship rather than a compass transit.

We explained that there were two solutions to this deed layout and we could actually "use" either. The owners quickly agreed to use OUR best finding of intent.

In this particular case, perhaps a "surveyor" created the problem originally, but it took another surveyor to solve the problem.

The plaintiffs Surveyor, used one solution of "compass bearing" method, drew a line on the building and sent them a bill.

We must always be open to the possibilities of both true intent, evidence and if need be. . . the law.(as in court action) We should do our best to avoid predisposition, based upon opinions from past instruction (even text books)

NOTE, there is nothing in this case that solidifies that the metal building is actually in the correct place. But we did arrive at an agreeable solution.

Thanks !!!!
"Good"

Ben Lund · Post by **Ben Lund** » Tue Mar 10, 2009 3:31 pm

Chapter 13 of Evidence and Procedures, 1st paragraph it states:

“Surveyors always seem to be interested in how they fit into the area of unwritten rights. In reality, unwritten rights are questions of law, usually reserved for attorneys and the courts, not questions of surveying. Surveyors are vital to the unwritten right process by virtue of the fact that they collect and interpret evidence of adverse use and the location of lines of occupation.”

A year ago I probably agreed with this statement but now I'm not sure I do.

E_Page · Post by **E_Page** » Tue Mar 10, 2009 3:35 pm

A job done "Good"!

E_Page · Post by **E_Page** » Tue Mar 10, 2009 3:49 pm

Ben,

Now that you're coming to the realization that there is more to being a professional surveyor than reporting the facts, collecting the fee, and sending the client to a lawyer if you have found any problems that need fixing, set aside the Robillard books while studying the consideration of extrinsic evidence. Or at least filter the info so you recognize when he is telling you that you are merely a technician vs when the authors are actually describing how the courts have addressed various doctrines of evaluating extrinsic evidence. In general, if there is no law (statute, case, or common law principle) cited, catalog it as informational only and move on.

And don't think of any indication of the boundary line other than where description distances and bearings put it as "unwritten rights".

Practical location is not an unwritten right, but rather a form of monumentation. If you found original surveyor's monuments and your measured dimensions varied from the record dimensions, you would still hold the monuments, right? This is not a form of "unwritten rights" is it? Well, neither is practical location.

Practical location is the landowners having monumented their line to the best of their abilities and to the best of their belief of its location according to the terms of the deed they have executed. In such a case, the landowners themselves are the first surveyors of the lines.

dmi · Post by **dmi** » Tue Mar 10, 2009 5:59 pm

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decide what point you are making and then I'll decide if I agree with it, so far not convinced on either point.

Evan,
I guess I was not thinking too hard on the problem as Good reports his finding as reltating to angular relationship.....

I was not considering the deed to be void or voidable by a court. I was only considering a single course ,as being unqualified in terms of a bounds call, appearing on the face of the deed it in that sense alone in my opinion it had the potential to be a patent ambiguity.

Gromatici · Post by **Gromatici** » Tue Mar 10, 2009 9:24 pm

Does a tree make noise when it falls when no one is around to hear it?
Surveyor A goes out and places stakes to show the boundary lines between two landowners. He doesnâ€™t file a RS so the County Surveyor canâ€™t chime in and any legitimate disagreement with another surveyor never happens. The two owners like what they see, and one builds a nuclear power plant on one side and the other has a baseball stadium.

Neither one ever has a survey done ....again. There can be no disagreement because the owners donâ€™t disagree and there is not another that is hired. The actual source of disagreement IS landowners, not surveyors with some exceptions of course.

Since neither landowner contested or hired another surveyor, I'm confused how "A boundary dispute is almost always a dispute between surveyors" when it ALWAYS takes a landowner to hire another land surveyor, who may or may not disagree with the results.

I've been hired by people to confirm the results of a survey and many of them were well done and there was no disagreement. The owners didn't like it.

Disagreements are seeded by landowners and fertilized only when they find a surveyor to be their advocate or there is a legitimate professional difference as to the location of the boundary lines. If the landowner won't pay, or doesnâ€™t care, then the surveyors won't disagree because there will only be one survey they rely on.

As for Moulin vs. Knerr: I think we can all agree the first survey in there to lay out the lots was crapy at best. Typical survey for that time period is where you got it close enough. Tying into two points and throwing in everything record is done today in my county to this day. However, after a certain period of time has passed and other subdivisions and improvements have been made, you're going to have some hard decisions to make. Knerr vs. Moulin is a surveyor's graveyard (as stated above) and it sad that surveys like that exist, but they do and we will have to deal with them with the courts in mind and not how they should have been done.

PE_PLS · Post by **PE_PLS** » Wed Mar 11, 2009 5:22 am

Like Grom said, I think surveyors are merely agents in a dispute between land owners....if the disputing land owners decided to drop everything and leave the courthouse, the surveyors would probably shake hands and leave. The only reason the surveyors are there is because of the land owners. Lets not confuse being agents of those in a dispute, to being in a dispute ourselves.

California Surveyors Forums

Practical Location

Land Surveyors cause boundary disputes

Point proved

Point proved

POB is on the west section line

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