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Opinion: Don't abandon principles when surveying subdivisions.

April 1, 2010
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Few problems faced by surveyors are as common as the discovery of one or more additional iron rods, pipes or rebar in the immediate vicinity of an original subdivision lot corner. 



Few problems faced by surveyors are as common as the discovery of one or more additional iron rods, pipes or rebar in the immediate vicinity of an original subdivision lot corner.


This problem is certainly not new. David R. Knowles addressed similar issues in a 1990 article, stating: “There seems to be a growing practice in the profession of indiscriminately yielding to uncalled-for monuments that happen to be in the general vicinity of the presumed corner location. In some cases, the deed calls for, either directly or indirectly, original monuments of a different type. In other cases the deed calls for no monuments whatsoever – the description is pure metes with only dimensions given. Yielding to an uncalled-for monument without predetermined justification may lead to embarrassment in court.”[1] It seems apparent that many of the problems observed by Knowles remain today.

The principles upon which Knowles bases his statements were included in the U.S. legal system at a very early stage of our nation’s history. The Act of February 11, 1805, now codified in Title 43 of the United States Code, includes the provisions that “original corners control” and “boundaries as run and marked cannot be changed.” These principles have been promulgated throughout the land surveying profession and reappear as a part of the rules of construction.[2]

Consider the following situation: A boundary description for a parcel reads (in part), “to a white oak; thence North 45 degrees East 12 Poles to a black oak.” Given that a pole in this case is equivalent to 16.5 feet, we would expect the two trees to be 198 feet apart. On the ground, we observe two large blazed oaks of the correct species connected by an old wire fence; supporting evidence indicates that these two trees are, indeed, the trees called for in the original deed description. Given that the original survey was measured in poles (with no fractional dimensions in the description), it would not be surprising to find that the trees are actually only 194.5 feet apart. Most surveyors given this scenario would quickly conclude that the two oaks represent the property corners in question while reporting the actual surveyed dimension between the trees.

The rules of construction (also called the priorities) may be considered guidelines to determine the intent of the parties; they are the basis for the decision to hold the original trees, guiding us to hold an original, undisturbed monument on the ground as called for in the original deed in apparent defiance of the measurements also included in the same description. Unfortunately, when we attempt to apply this principle in a more-modern survey situation, such as a recorded subdivision plat, there appears to be a sudden abandonment of this principle. The procedures and problems described below illustrate how various issues (both past and current) facing our profession can mislead us.

Monuments Over Calls

Regardless of type, a modern monument found in good condition and called for by an original description (assuming that the description is based on an original survey creating the boundary lines in question) is just as significant as the ancient oak trees in our first example and will (in most cases) supersede mere measurements or a call for area. We must also remember that a call for a plat is also a call for all monuments shown on that plat. As noted by Wilson, “The rules are clear: With private surveys, courses and distances may be used in the absence of monuments, but since they are among the most unreliable calls, they may be used only when there is a total and complete failure of finding the established corner.”[3]

I have heard occasional comments from surveyors who say that their “intent was to create the dimensions shown on the plat, and therefore the dimensions should control.” It is important to consider that when we speak of “the intent of the parties,” ultimately we refer to the intentions of the grantor and grantee, and it is the responsibility of the surveyor to express the will of the buyer and seller.

According to Robillard and Bouman, “Because of sound surveying principles based on established surveying practices, the correct answer is that what the original surveyor actually did by placing monuments and running lines on the ground will take precedence over what he intended to do.”[4]

Justice Thomas Cooley notes: “If now the disputing parties call in a surveyor, it is not likely that any one summoned would doubt or question that his duty was to find, if possible, the place of the original stakes which determined the boundary line between the proprietors. However erroneous may have been the original survey, the monuments that were set must nevertheless govern.”[5] It is also frequently the case that after the surveyor finishes his work setting corners and recording the plat, the developer of the property walks the client to the lot to be purchased and points out either the actual corner monuments or wooden stakes planted to flag those monuments; thus the intent of the parties is expressed by the physical location of the corners set on the ground.

Original corner: A scribed “X” found on a stone slab (circa 1875) in Sandymush Township, N.C., recovered from under 3 feet of fill.

Goliath vs. David

There is a definite tendency within our profession to prefer more massive corner monuments over smaller ones. This is not completely without basis, since the rules of construction tend to progress from more permanent and certain (natural monuments) to less certain (measurements, area). However, a larger uncalled-for monument does not control over a small original corner monument.

Adding to this confusion is the wealth of state and municipal regulations that require the setting of and/or tying to some type of control monument. In North Carolina, for example, G.S. 39-32 not only mandates the setting of control corners within a subdivision but also specifies the legal significance of those monuments in a later retracement. Other examples are Oregon Statute Chapter 209; Subdivision Control Ordinance 01-06 (Lake in the Hills, Ill.); and the list goes on. However, nothing in these regulations should in any way direct the surveyor to ignore original corner monuments properly set and recovered in good condition. The surveyor should not assume that an original called-for concrete monument is more important than an original undisturbed rebar.

Over-Reliance on Software

Surveyors should not fall into the trap of replacing the rules of construction and other established surveying principles with pure mathematics or with drafting and coordinate geometry software. While computer software has vastly improved many aspects of our profession, our reliance on drafting software may have fueled our desire to see every survey result appear a triumph of mathematical perfection.

It is quite common in our profession to create a digital model of the plat in question, fit the model on the two or three rebar in the subdivision that best match our model (or on two control monuments), and ignore the rest of the corner monuments as being “in error.” Although this approach may be useful as a search technique during the early stages of a project, a proposed adjustment of original corner monument location by this premise is really nothing more than a variation on proportioning, which should never be applied to move an original monument.

As Brown, Robillard and Wilson pointed out, “All original corners have equal weight in location of the parcel. Each corner monument called for has just as much control as any other monument called for; all are to be given control, if possible.”[6]

Too Many Rules?

With the increase in property development in many areas of the country, various state, city and municipal governments have enacted new or additional ordinances controlling land development. This leads, with ever greater frequency, to variations of the following scenario: “The building codes for this part of the city require 20,000 square feet in order to obtain a building permit, and if I show 19,700 square feet, the client will not be allowed a building permit for his house.”

Part of this problem arises not from any lack of skill on the surveyor’s part, but from a lack of understanding by those who write the various ordinances. This is a very legitimate problem for all parties involved. But if the original lot as surveyed and monumented is not of the prerequisite size according to zoning restrictions, it is certainly not our job to collaborate with the client to cover up the problem or to apply the “lot stretcher technique” in order to accommodate any municipal or county development ordinances.

Always bear in mind that any shifting of monumentation that seems to cause one lot to conform to municipal standards will likely work to the detriment of other nearby lots. Justice Cooley’s comments on this issue are succinct and to the point: “It is by no means uncommon that we find men whose theoretical education is thought to make them experts, who think that when the monuments are gone the only thing to be done is to place new monuments where the old ones should have been, and would have been if placed correctly. This is a serious mistake.”[7] One could conclude from this statement that it is also incorrect to set a new monument when the original still exists.

Additional Considerations

The surveyor must consider standards and methods prevalent at the time the corners were set by the original surveyor when the subdivision in question was created. For example, in many subdivisions, the rear corners are set early in the process of the subdivision survey work, while the front corners are only roughly represented by wooden stakes during the preliminary road and utility construction phases. After the infrastructure is built, the surveyor returns, runs and balances a new traverse loop, and sets the front corners along the roads from a separate traverse loop. In this situation, only diligent field procedures will prevent discrepancies between front and rear corners. It is also quite possible that the original surveyor used remaining control from the first traverse loop to establish a second group of control, remaining control from the second loop to establish the third, and so on.

In many older subdivisions that were created when land values were lower, it is certainly not uncommon to observe a lower standard of care in the accuracy with which original corners were set; the nearest foot or so may have been considered quite sufficient by the original surveyor. Consider the statement in the preface of “Geodaesia,” published in 1687, that states, “I have taken example from Mr. Holwell to make the Table of Sines and Tangents but to every fifth minute, that being nigh enough in all sense and reason for the Surveyor’s Use, and there is no Man, with the best instrument that was ever yet made, can take an angle in the field nigher, if so nigh, as to five Minutes.”[8]

This statement illustrates how technological developments and changes in prevailing standards of field practice over the years can result in apparent discrepancies between measurements recorded on the original plat as opposed to those measured with careful field procedures and modern equipment, even when all corners are shown to be original and undisturbed.

Certainly it is possible that the monument in question is not original or has been disturbed. This can be a major dilemma when utility and road construction have shifted or destroyed some original corners, but this uncertainty should not be used as an excuse to justify the dreaded “pincushion” of iron rods surrounding a legitimate corner. Where there is legitimate reason to believe that a monument has been moved, the surveyor should be prepared to produce any evidence to that effect (such as photographs of the tire tracks running up the side of a leaning concrete monument). One could conclude that if yielding to an uncalled-for monument is a bad idea, then setting one is even worse.

The situations discussed here represent only a partial list of the many problems that might influence a member of the surveying profession to make decisions contrary to good surveying practice. Complaints about municipal regulations apparently requiring surveyors to exceed their authority are so commonplace as to seem ludicrous, and clients will continue to demand results that run counter to good surveying practice. In these situations, the surveyor’s only defense is an unswerving dedication to our duty as professionals and a thorough understanding of the principles that guide us.

References

1. Knowles, David R., “Uncalled-For Monuments,” Law and Ethics, ACSM Bulletin, August 1990, p. 56.
2. White, C. Albert, “A History of the Rectangular Survey System,” U.S. Dept. of the Interior, Bureau of Land Management.
3. Wilson, Donald A., “Forensic Procedures for Boundary and Title Investigation,” 2008, John Wiley & Sons Inc.
4. Robillard, Walter G. and Bouman, Lane J., “Clark on Surveying and Boundaries, Seventh Edition,”1997, Lexis Law Publishing, p. 369.
5. Cooley, Thomas M., “The Judicial Function of Surveyors,” 1864-1865.
6. Brown, Curtis M., Robillard, Walter G., Wilson, Donald A., “Evidence and Procedures for Boundary Location, Third Edition,” 1994, John Wiley and Sons Inc., p. 185.
7. Ibid, ref. 6.
8. Love, John. “Geodaesia,” London, 1687.
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Thanks!

murph
April 3, 2010
Very insightful and useful column -- much appeciated!

Great Article

Brian
April 5, 2010
Thanks!

Hits Home

R Church
April 6, 2010
I have seen plenty of the pin cushions and cut corners, all to keep physical survey costs to their 1980 prices. Great article.

Spot On

Tony
April 6, 2010
Surveyors! Do your job and please do it correctly.

Good Article but....

D Gerard
April 7, 2010
I commend the author as these types of things need to be discussed more within our profession. However, at what point do the monuments govern? Strict adherence to Cooley would suggest always - in his day, it was the only solution really. However, now we can retrace modern surveys to easily within an inch or better. I feel that following the authors suggestions could change a modern survey boundary by 0.05'. In my opinion, that would be ludacris, even though it would make surveying much easier. Surveyors need to look at the specific instance as I feel that in a modern subdivision a misplaced marker is simply that - misplaced. Obviously, if the markers were respected for some time by the land owners then we would be in a different scenario, but remember, we are talking about modern surveys. Lastly, "pincushioning" is crazy! It does nothing for the public except cause discord. If you have a "smoking gun" for evidence then maybe. But coming across 3 or 4 bars is crazy. Thanks for the article :)

Above Board Surveying

Sharon Clark
April 12, 2010
Consciencious surveying should be timeless. Thanks Chris

Above Board Surveying

Sharon Clark
April 12, 2010
Consciencious surveying should be timeless. Thanks Chris

Caution in applying Cooley's opinion

K Carey
April 22, 2010
Good article, but it must be remembered that Cooley's dissertation related primarily to retracement of the land patents created by government surveyors for the disposal of the public lands. It was never intended to imply that every "original" survey created is never wrong; only the original GLO (BLM) surveys of public lands are. Simple example; if a surveyor is the first to physically survey some aliquot division for a grantor, if he errors in placement of monuments by way of excess, it would fall into the grantor attempting to grant property that she does not own; in this case these "original" monuments would clearly be in error, and would never be upheld by any court.

Bravo !

D. Sperduto
April 23, 2010
Thank you for a great article. A couple of the above commenters suggest that Cooley is not always relevant today. Those cases are much fewer and far between than the cases where surveyors "make it fit". In general, an original, undisturbed, found monument should hold unless clearly the wrong monument was called. For example, when distances fit another monument of that vintage. Otherwise, modern technology has nothing to do with it. In fact "monuments hold" is the perfect antidote to the crude measurements of bygone days.

Original Monuments

Ken Mills
April 27, 2010
Great article Kris. There are court cases in metes and bounds states which confirm the original surveyor's corner marker as the controling factor in the location of the property corner. When surveying a parcel of land we should look at when the deed was originally written. Many times the description can be traced back to the late 1800's or eariler where metal corner markers were not used. Even in the GLO states many Section corners were made of bottles, stone piles or charcoal pits. Proper research and field searching needs to be followed.

Pincushions

Daniel Anderson
April 28, 2010
Kris has given this lecture before the prep seminars for North Carolina land surveyors. It is timely today too. Thanks for setting me straight, Kris

Don't abandon principles

Richard Schaut
April 28, 2010
Priority of evidence lists begin with 'Right of possession' or, as C. Brown said in a 1979 talk to the Arizona Society of Surveyors: ... In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years there have been cases, and one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. The purpose of this paper is to re-examine what a surveyor should do in the event title has been altered by a legal transfer of title by prolonged possession. ..." "Order of importance of conflicting title elements" 1. Right of Possession 2. Junior/Senior Rights 3. Written Intentions of Parties a. Call for a survey b. Call for a Monument i. Natural ii. Artificial iii.Record c. Distance or Direction d. Area e. Coordinates The 'prolonged possession' refered to above is a short as 5 yrs by law in many states, (CA & TX are only two). Surveyors seem to think our responsiblity is to perpetuate the original survey, that is wrong. The owner has that obligation and also the right to alter their record boundaries. The surveyor's responsiblity is to determine the location of the legal boundary using the record description to define the search area and the found physical evidence to determine the boundary location. Then the surveyor compares the location of the found legal boundary with the description to determine if the inherent error in the record is in need of correction. See the two paragraphs after the subheading 'Background' in the July 2007 issue of ALTA/ACSM accuracy standards for the duty of a land surveyor 'on any survey'. "Background The lines and corners on any property survey have uncertainty in location which is the result of (1) availability and condition of reference monuments, (2) occupation or possession lines as they may differ from record lines, (3) clarity or ambiguity of the record descriptions or plats of the surveyed tracts and its adjoiners and (4) Relative Positional Accuracy. The first three sources of uncertainty must be weighed as evidence in the determination of where, in the professional surveyor's opinion, the boundary lines and corners should be placed." Richard Schaut

Title Companies

Cory Haynes
May 12, 2010
The Title Companies should read this article! Their general rule of thumb seems to be find the most recent legal description and hold that as absolute. If your survey deviates from that in any way, it throws them for a loop.

"original" monument

Mike Ulrich
May 28, 2010
If YOU were retracing a plat with called for monuments at every corner which stated "the setting of monuments as required has been complied with" then you found NO monuments set by that company, but rather, a bunch of + 0.1' monuments set by various OTHER companies, and 4 of MY capped bars set at - 0.1', I HOPE YOU DISAGREE WITH ME. Even if it were the case that the platting company hired me to set "original" monuments and markers, but I only completed 1 lot.

survey info.

ginger
June 20, 2010
very impressive!!..

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