California Surveyors Forums

WHITE ET AL v. LUNING 93 U.S. 514
"In the case of conflicting monuments, the rule of law is, that the courses and distances are evidence of the true description..." Reading this as plain english is there a different meaning to be understood here?

The case under discussion we have reference to a map and the map shows monuments, and courses and distances. A survey now shows that the map agrees with the monuments, save one.
This monument one monument is in conflict with the map and other monuments.

So, it would seem that there is here a conflicting of monuments and that the "courses and distances are evidence of the true description" as shown on the map.

In a time when a retacement corresponds well the map and the physical evidence of that map on the ground, except in an area where the difference is in the amount of feet as opposed to triffling differences of no consequence, that this would meet the standard of being an absurd result.


BTW, I appreciate your effort in engaging me in this discussion. I believe that this discussion is extermely helpful to me and possibly others. So I hope you understand that my purpose is not just to argue for the sake of argument.

We’ve identified a discrepancy between the map and the monument. Case law and statue aside, who could honestly say that the map was in error?

Thanks Evan for providing light to go with the smoke and heat.

If you insist on remaining within Skelton as your primary or only reference, go to Ch 2 “Importance of Conflicting Elements”, Part II “Control of Lines Marked and Surveyed, §80 to 84 for a more full discussion of “Over Maps and Plats”; or Ch 2, Part IV “Control of Artificial Monuments”, §133 to 136.

Or this one to hopefully state it in the clearest terms as said by your primary cited authority: §142 – "There is no principle of land law more firmly settled in this and probably most of the states in respect to country lands than that where the calls of a deed or other instruments are for natural or well defined artificial monuments, both course and distance when inconsistent with such calls must give way and be disregarded. This rule is founded on the soundest reason and good sense and is equally so in its application to town lots."

The exceptions found by Dane, all cites gleaned from Skelton but apparently not analyzed for full context, were decided mostly upon other principles. Where it was held that dimensions were superior to monuments is where 1) the monument was obviously called in error, 2) where something such as a wall obviously by well established fact belonging to an adjoiner was embraced partially or in whole within the description (think of a person building a wall just inside their property and then an adjoiner mistakenly making a conveyance using that wall as a bound), and 3) where an adjacent property is mostly or in whole embraced within an erroneous description. In each case, the court was addressing errors in description, not errors in survey. In each, the survey was a retracement of a deed, and not a retracement of a survey which created the parcels.

By case law which has since evolved in the areas of acquiescence and practical location, even Ehrenreich might go the other way (but that’s speculation). If you want to look at more modern references on the subject, go to Evidence & Procedures, Clark, Interpreting Land Records, or Forensic Procedures to start with. You may find some cases cited which “seem to” support the notion that the monument should be rejected. If you do, please find the text of the case and post it. I would suspect that each case will have a very different fact set so as to be completely inapplicable to a case like this one. If not, I would be very interested in seeing it so that I can adjust the basis of my thinking.

Shipp again speaks to an absurd result. When speaking of tracts of land, and not vast expanses, a mile and a half discrepancy can be readily seen as absurd. No surveyor required to identify that discrepancy.

When assessing whether the fact set of a case renders it germane or not to a particular situation, quibbling might be “well that case refers to an OLD subdivision, not a MODERN one.” Pointing out that the principle is completely inapplicable, or the fact set so different as to have no resemblance to the case at hand is not quibbling. But I do feel that offering up such cases as supportive only to be shown that they are not, and then referring to the discussion showing why they are not as “quibbling” is a little like Oz saying “Pay no attention to the man behind the curtain!” after Toto exposes the fallacy of the apparent greatness of the Wizard.

Dane is most likely correct on the point that it would be impossible to find a case where the facts fit exactly. This is why we must be careful to evaluate the applicability of each case according to its facts. Sometimes we find a case which seems to present just the principle we think fits, but when we read it fully, we find one or two facts which then cast the whole thing in a different light.

If we are to get into a contest of listing cases supposedly in support of mons over maps (or mons over dimensions – course and distance) versus maps or dimensions over mons, I would wager that the monuments will win. But simply listing cites you think may argue your position is not necessarily helpful and is often misleading in that the fact set of the cited case renders it not germane to the discussion. Providing pertinent passages, IN CONTEXT, and with a discussion of similarities and differences of the facts of the case in order to assess relevance, would be much more helpful. Soundbite case quotes can be too easily used incorrectly, as seen in previous posts of this thread.

The fact that we now have a terribly complex SMA as compared to yesteryear has not, as of yet, changed the basic principles that have shaped boundary law over the centuries. Short of a foundational systemic change to our system, this is not going to happen. The map will always be considered by the courts to be a representation of the actual survey and it will be the actual survey that the landowner will have a right to rely on, the points and lines being the real thing which they can see and readily utilize.

Back to your very brief quote from White: EVIDENCE IS NOT PROOF. The court stated that the bearing and distance was evidence and so could not be disregarded without proper consideration. In that case, in conjunction with OTHER EVIDENCE, the course prevailed over a monument erroneously cited, not erroneously placed. Again: CONTEXT, CONTEXT, CONTEXT!!!

Dane, although I have disagreed, in some cases very much so, with many of the points and use of authority you’ve presented, your discussion has prompted me to do a lot of research to verify what I’ve already understood, and gives me a lot of practice at forming my opinions and statements. I too appreciate the opportunity.


Tom,
Don’t leave me hanging here buddy! How about some discussion on O’ Farrel v. Harney. It’s also an old case, but one more on point than those which have been presented.

Once in post 40 and again drawing analogies with the current fact set in post 279, I don't think a further flogging will produce the desired result.
Frankly, the case which would be of most use to them is one they will never use, to wit:
Miranda v. Arizona 384 U.S. 436 (1966)

Now I need a ROFLMAO emoticon!


I had to go back to recall your references. I saw that they were summarily brushed off by one of our junior surveyors as irrelevant for reasons that have no basis in law.

but, case law and statutes aside . . . .

"all the people did whatever seemed right in their own eyes."


Citing a different authority which may be applicable here.

Gene Kooper just reminded me of this CO case. The difference between it and this one is that there were 6 lots in it with 2 mons out of whack with the rest, here we have 2 lots and 1 mon. Shall we quibble?

Here is post #106 by Gene in its entirety for those who may have overlooked it: (EDIT: Drat, 287 characters too long. I'll post it in post #326)

#106:
While some may challenge the applicability of case law from another state, I did forward the following case on to Steve Gardner. He thought it may add to the discussion, esp. in light of the Colorado state Appeals Court citing the 1984 Mississippi Supreme Court case that dealt with a "unique" exception to the general rule of monuments controlling over course and distance.

The case is Morales v. CAMB, et al., a 2007 Colorado Appeals Court decision regarding a small subdivision in Winter Park, CO. The court dismissed the defendant's argument that the discovery of a field blunder should be regarded as an exception to the general rule that monuments control over course and distance.

Hypothetically yours, ;-)
Gene Kooper, CO PLS

Roque R. Morales,

Plaintiff-Appellee,

v.

CAMB, a Colorado general partnership; Max Garwood; Peterson Family, LLC, a Colorado LLC; and G&B, a Nebraska partnership individually & as members of CAMB,

Defendants-Appellants.

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JUDGMENT AFFIRMED

Division II
Opinion by: JUDGE CRISWELL*
Rothenberg and Terry, JJ., concur

Announced: March 22, 2007

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James A. Beckwith, A. R., Arvada, Colorado, for Plaintiff-Appellee

Isaacson Rosenbaum, P.C., Blain D. Myhre, Denver, Colorado, for Defendants-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2006.

In this boundary dispute litigation, defendants, CAMB, Max Garwood, Peterson Family, LLC, and G&B, a Nebraska partnership, appeal from the summary judgment entered in favor of plaintiff, Roque R. Morales (Morales). We affirm.

I.

Because the judgment below was entered in response to a motion for summary judgment, we review that judgment on a de novo basis. Grynberg v. Karlin, 134 P.3d 563 (Colo. App. 2006).

The Vasquez Village subdivision in the Town of Winter Park, Colorado was surveyed, platted, and approved in 1981. It contained eight lots. The subdivision plat as approved contained a "Surveyor's Certificate," which attested that the monuments required by Title 38, Article 51, C.R.S. 1973, had been placed on the ground.

The pertinent statute, now § 38-51-105, C.R.S. 2006, requires that the "external boundaries of platted subdivisions" are to be "monumented on the ground," that the boundaries of all blocks be monumented before any sale is made and that the boundaries of any lot be established by monuments within one year of the sale.

Section 38-51-105(1), C.R.S. 2006. The subdivision here, however, contains only eight lots; it has no lots within a block, as such. Moreover, it is undisputed that monuments were placed at the corners of each of the lots before the subdivision plat was approved.

Through various conveyances, defendant CAMB acquired title to lots 3, 4 and 5, and plaintiff obtained title to lot 6, which abuts lot 5 on its north. All of the pertinent conveyances referred only to the Vasquez Village subdivision plat for their legal descriptions.

In 2002, CAMB began planning to re-plat its three lots for development of a town home project. In re-surveying these lots, it was discovered that the monuments marking the boundary between lots 5 and 6 were inconsistent with at least one distance call shown on the Vasquez Village plat. While this distance was shown as 25 feet on the plat, the monument was placed some 38 feet from the pertinent prior point. Further, while the monument for the southeast corner of lot 6 was consistent with a distance call on the plat for that location, it is some 13 feet south of the location of the boundary line as depicted on the plat. Both monuments, therefore, exist some 13 feet south of the boundary between the two lots as shown on the plat.

As a consequence, if the monuments are determined to be the true points establishing the southern boundary of plaintiff's lot 6, that lot will have an additional strip of about 13 feet, containing about 1197 square feet, added to the lot as shown by the line on the recorded plat. But if the boundary line on the plat is determined to represent the proper boundary, this strip would be a part of lot 5.

To have a judicial determination of the proper location on the ground of this boundary line, plaintiff instituted this action. After the parties had filed cross-motions for summary judgment, the trial court granted plaintiff's motion, ruling that the monuments controlled the location of the boundary line and that they superseded any inconsistent distance call or boundary line referred to or depicted on the subdivision plat. We agree with this determination.

II.

Defendants contend that the district court erred in quieting title in favor of plaintiff because the intent of the grantors was to convey the lots by reference to the subdivision plat and not as located by the monuments. We are not persuaded.

If there appears to be a misdescription in a deed, a court must ascertain the true intent of the parties. Wallace v. Hirsch, 142 Colo. 264, 268-69, 350 P.2d 560, 562 (1960); see Lazy Dog Ranch v. Telluray ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)(in construing a deed, it is paramount to ascertain intent of parties).

However, certain rules of construction are used to disclose that intent.

First, "t is a well settled principle that when lands are granted according to an official plat of the survey of such lands, the plat itself, with all its notes, lines, descriptions and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out upon the face of the deed or grant itself." Spar Consol. Mining & Dev. Co. v. Miller, 193 Colo. 549, 552, 568 P.2d 1159, 1161-62 (1977), citing Cragin v. Powell, 128 U.S. 691 (1888).

Here, then, the deeds conveying lots 5 and 6 to the parties incorporated all of the items of information on the plat, including the surveyor's certificate attesting that appropriate monuments had been placed on the ground, as required. See Spar Consol. Mining & Dev. Co. v. Miller, supra.

Further, it is a general rule that the monuments placed by the original surveyor are conclusive on all persons owning or claiming to hold with reference to such survey. Everett v. Lantz, 126 Colo. 504, 514, 252 P.2d 103, 108 (1952). "Monuments control courses and distances, which are considered the least reliable of all calls." Jackson v. Woods, 876 P.2d 116, 118 (Colo. App. 1994). "The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by the proof of their former existence, where the marks or monuments are gone." Cullacott v. Cash Gold & Silver Mining Co., 8 Colo. 179, 183, 6 P. 211, 214 (1885)(citing Lodge v. Barnett, 46 Pa. St. 477 (Pa. 1864)); 12 Am.Jur.2d Boundaries § 74 ("Where land is disposed of by reference to an official plat, the boundary lines [as] shown on the plat control. In locating land upon the ground from the calls and descriptions in the map, plat, or field notes referred to, the same primary rules apply as exist in the locating of calls and descriptions in a deed containing no such reference, that is, the various calls are given the same order of preference. In case of conflict, monuments control plats or maps, and an actual survey controls over a plat or a map.")

In the trial court, CAMB presented an affidavit from a registered professional land surveyor who averred that, using the field notes for the Vasquez Village subdivision, the descriptions contained in those notes were consistent and allowed the exterior boundary lines of that subdivision to "close." However, CAMB’s surveyor averred that, if the locations of the monuments were used as the boundary indicators, the resulting description of the subdivision's exterior boundary would not close. Hence, this expert concluded that the discrepancy between the monuments and at least one distance call on the plat resulted from the misplacement of the monuments, or a "field blunder," and that the distance calls and boundary line as reflected on the plat, rather than the monuments, should control the location of the pertinent boundary.

The trial court rejected this ultimate conclusion, and so do we.

Even if we assume that both monuments were misplaced, the rule that monuments control over distance and course calls on the plat is nevertheless applicable and the monuments still control the boundary location. See Everett v. Lantz, supra, citing Ben Realty Co. v. Gothberg, 56 Wyo. 294, 109 P.2d 460 (1941) (monument misplacing 8th standard parallel still controls description of land in grant).

Duane v. Saltaformaggio, 455 So. 2d 753 (Miss. 1984), does not support a contrary conclusion. The exception to the general rule relied upon by the court in that case is limited to those rare instances in which the locations of monuments are themselves inconsistent, thereby creating a conflict between monuments.

Here, the parties do not dispute that the pertinent monuments are located consistently with each other. Hence, we need not decide whether the rule of the precedence of monuments has any exception under Colorado law, because the only conflict here is between the location of the monuments on the ground and the distance call and boundary line depiction on the plat.

We conclude, therefore, that the district court correctly determined the location of the disputed boundary line.

The judgment is affirmed.

JUDGE ROTHENBERG and JUDGE TERRY concur.

These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.

Now that we all agree that the monument is a blunder but we have to hold it anyways because of what the courts have said...???

Propst,
You’ve held your ground on your opinion but what if the monument was 20’ off? How about 50’? What about 100’? Is there not a line where on one side you would hold blundered monument and on the other you would reject it? I have no problem holding blundered monument as long as it doesn’t frustrate the conveyance. I think we can agree that creating a non-conforming lot by holding a blundered monument would frustrate the conveyance. On the other hand, maybe holding Map over monument would cause a shed to be relocated.

Did the parties intend to subdivide the land via a Map that shows what they want to do (and what the agency will allow them to do)? Or did they intend to subdivide the land on paper and do something different in the field?

Shouldn’t the question be: Where is the probable error given a discrepancy? Isn’t this the question the courts will try and answer?

The courts (in the past) have answered this question given a typical public lands situation (survey FIRST then PLAT) to “hold found original”.

But haven’t the courts also ruled in the negative?

And now you encounter a blundered monument 50’ off and still hold it because the courts (in some cases but not all) and statutes have held that the most likely error is in the Map?

Holding a blundered monument is a black and white approach that does not take into account a situation where a retracing surveyor believes the monument was set in SIGNIFICANT error. You say, “define significant.” You tell me. That’s what I’m trying to understand: when is the BLUNDER significant enough to reject the found original? Or does it not matter how significant the blunder is?

I’m looking big picture here. How does our current way of subdividing land, measuring, financing, administering, etc. compare with current statute that was based on survey first then plat.

The layout for the table of contents in Skelton goes a long way to provided context for the cases I have cited from that text. I selected citations from that text specifically because of the CONTEXTUAL LAYOUT ON THE CONTENT.......

Typically a boundary determination rule is a stated and then various discussion of elements of the rule so on and so forth a part of each discussion of each rule is a section on "Consideration Essential to Render the Rule Operative" as well as a section on "EXCEPTIONS".

Apparently, the author of this text is aware of the concept of a rule and an exception to the rule. The author cites cases to support the rule and the author cites cases that show the potential areas for an exception to the rule, that has just been stated. This, AGAIN, is my main contention.

The same concept is evident in recent versions of Brown and I have previously cited from that text as well.

I missed uploading this file in the previous post.


"From the facts in this case it appears that here is a rare instance where courses and distances should prevail over monuments because the monuments are incorrectly located and conflict with other primary subdivision markers. For that reason, we find that the trial court erred as a matter of law in holding that the erroneously placed monuments took precedence over the official plat of record and that the determination that there was a conflict between courses and monuments was in error because the conflict presented by the testimony in this case is one between monuments."
Duane v. Saltaformaggio, 455 So. 2d 753 (Miss. 1984), HMMM? probably out of context again....lol

Supreme Court of Mississippi.
August 15, 1984.

Probably misunderstood or cherry picked this tooooo

for bringing up Duane v. Saltaformaggio once again. I originally noted this case in post #108 and followed up with a comment in #110. It is cited in the 2007 Colorado Court of Appeals case Morales v. CAMB which I included in post #106 and Evan has reposted above in post #326.

From Morales v. CAMB,

"Duane v. Saltaformaggio, 455 So. 2d 753 (Miss. 1984), does not support a contrary conclusion. The exception to the general rule relied upon by the court in that case is limited to those rare instances in which the locations of monuments are themselves inconsistent, thereby creating a conflict between monuments. Here, the parties do not dispute that the pertinent monuments are located consistently with each other. Hence, we need not decide whether the rule of the precedence of monuments has any exception under Colorado law, because the only conflict here is between the location of the monuments on the ground and the distance call and boundary line depiction on the plat."

Cheers,
Gene Kooper, CO PLS

Gene, I read that and I think I understood that Duane was considered not relevant in the Colorado case. The Colorado court did not conclude that the Missisppi case was wrongly decided, just not relevant to their considerations. On reading the from Mississppi, some of the facts are similar to the case under discussion here. That being some monuments are in agreement with each other and the map and some monuments disagree with other monuments and the map. The Missippi Supreme court held the map over the errant mons. The Missippi court stated that their ruling was a rare and unsual ruling. The Missippi ruling is at odds with the Colorado ruling and probably most other courts.

Dane,

As I attempted and apparently failed to explain earlier, the context speaks to why there was a certain result in a court opinion. What was the fact set? Is it sufficiently similar to the case at hand to make it relevant? What was the principle(s) behind the decision? Is it (are they) applicable to the case at hand?

Where it fits into a table of contents gets you to the right area within a text to begin looking, but then you need to exercise professional judgment and often a little sense to weigh the merits of the cited case to properly understand what point the author is trying to make. Thank you for your scanned TOC of Skelton. I was looking at mine earlier today.

Skelton, or the more contemporary authors are not saying "this is the rule... except for when it's not". If that were the case, then applying case law to boundary work would simply be a matter of score keeping, with no need for analysis beyond the bottom line. "This one held the mon, that one tha map, that one the deed, oh, two more for the mon.... let's see, I found 15 that held the map or deed dimensions and 14 that held the mon, I guess I'll go with the dimensions." That's a very neophyte analysis.

You need to be much broader in your analysis of the big picture to have proper context. Your last attempt wasn't up an hour before Gene showed you the broader picture. So to your question/statement "Probably misunderstood or cherry picked this tooooo". Yes, apparently so.

With a quick read, Duane v Saltafromaggio seems to state that a plat will always control over monuments in disagreement with the plat when compared with other monuments. A careful read brings out the reason why. The court concluded that several monuments along the back lot lines were erroneous, creating an absurd result shift in the directions of sidelines. There were two very important facts supporting this line of thinking: 1) there was a double monument at one rear corner with similar monuments 6' apart, and 2) the court seemed to place some significance on the fact that the sidelines were mapped at right angles to the street. The level of error was viewed an absurdity because the lots were only 55' x 100'. A 6' cant is pretty significant on parcels that size, and is something the court felt should have been readily recognizable.

The court took note that of the 12 lots, 10 of them had the proper width between back corner mons, and two consecutive lots were each 3' wide, coming up to the corner with the double monument, then proceeding with the remaining lots of proper width when coming from the other mon at the double. That situation was seen as conclusive, or at least convincing evidence of an error in the survey. That coupled with the court's estimation of absurdity led to the rejection of the several rear corner mons in favor of the platted angles.

In the case at hand, there is no further evidence to suggest that the monument in question is in error other than the dimensions of the plat. If we had a double monumented point, as in Duane, this case might be much easier to sort out - just go with the one that fits better. If the monument placement created an absurdity, as in Duane or in Post, drastically altering the shape of the parcel from that mapped, or in Ehrenreich, encompassing an improvement or feature which was clearly intended to be on the other side of the line, or as in White, completely missing other bounding calls by honoring one which is erroneous, then it would be easy to decide to reject it. But none of those circumstances exist.

Of those we've seen presented to support plat over mon in this case, Duane comes closest, but IMO, is still a little off target because of the unique circumstances which the court acknowledges.


A word of advice as to use of published authority: Use older ones such as Skelton as secondary to more contemporary texts. Look to current and applicable statute and case law as most authoritative, and to contemporary texts on boundary surveying as primary treatises which encapsulate the principles by subject. As you are aware, the law evolves over time. Relying on old texts as primary, you risk missing changes in the law and end up citing what have often become obscure rulings. Just try to find that case from NY that you brought up earlier. Mostly, you need to glean details from other cases and texts that cite to it.

The value of a text like Skelton is to underscore the duration of certain principles, to show in conjuction with contemporary authority that a certain principle is neither new and tenuously established, nor outdated and obsolete.

I've stuck to Skelton in this discussion largely to point out that reading the other sections together with those you present actually far more strongly proves out the point opposite to that you attempt to make. His "Exceptions" sections show the very rare circumstances where the rule is inapplicable. And in this case, none of them fit our fact set.

Now, Ben:

"Now that we all agree that the monument is a blunder..."

How did you come to that conclusion? I stated that it may or may not be, and that there is no conclusive evidence either way.

You present this question to Mr. Propst, but I'll go ahead and answer it:" Is there not a line where on one side you would hold blundered monument and on the other you would reject it?"

Yes, at the point that the result becomes "absurd" (thank you Dane for the terminology). Again, an "absurd" result is one that the non-surveyor of average intelligence can look at and determine that it makes absolutely no sense. In more technical language "it's a whopper!" There is no specific distance to ascribe to it (This point has been made in this discussion over and over). It may be a few tenths if it encompasses a long standing wall clearly belonging to an adjoiner, or it may be a mile and a half if dealing with tracts of land of several hundreds or thousands of acres in a very rural setting. It depends upon the circumstances.


"I think we can agree that creating a non-conforming lot by holding a blundered monument would frustrate the conveyance."

Huh?!? Not at all. Any boundary surveyor with more than a modicum of experience has run across this many times. The boundary is where it is. Sometimes we find that the boundary of a parcel defines it as non-conforming. That in no way frustrates a conveyance. What would you do if you were surveying a parcel and found it to be smaller, narrower, non-conforming in some way, but it was created as a sequential conveyance? Or perhaps it was created as a simultaneous conveyance but by stealing land from the other side of the iron to make your lot conforming, you find that you now make the adjoining lot non-conforming? What if you find that you are in a subdivision of minimally sized lots but the land area of the entire subdivision was overstated and all of the lots are too small? "Sorry folks, I know you've all lived here for 20 years, but your lots are non-conforming and so were illegal, and so don't exist. You folks don't really have title to your lots because your conveyances are all frustrated."

Can you see the absurdity of holding to the notion that finding a parcel boundary to render it non-conforming to also renders the conveyance as frustrated?


"Did the parties intend to subdivide the land via a Map that shows what they want to do (and what the agency will allow them to do)? Or did they intend to subdivide the land on paper and do something different in the field?"

The "parties" intended to sell and buy a particular parcel of land. They expected that what was on the ground was the same as depicted on a map. They were able to see their actual boundaries on the ground because that was what was marked and that is what they took possession of (another point made several times).

Of the "parties", only the subdivider could have had the intent to make the lots the same, or different on the ground as on the map. The buyers only had the intent to buy a parcel. It is the actions of the parties to the conveyance which will be taken to clarify intent. The actions were that monuments were placed at certain locations to mark boundaries by the subdivider (or he caused his surveyor to place them), and buyers took possession of those lots to those markers (whether they clearly established a line of occupation may or may not be important, dpending upon other circumstances).


"Where is the probable error given a discrepancy? Isn’t this the question the courts will try and answer?"

Again, this question has been answered over and over again by the courts (remember Skelton stating that no principle is so firmly established as this?) that the actual survey will prevail over the map because the map is more prone to error. Since the map is a representation of the survey, it is practically definitional that if they don't agree, the map is in error. To conclude otherwise, you must prove by terms other than the map that the actual survey was in error. That necessitates considering other principles.


"The courts (in the past) have answered this question given a typical public lands situation (survey FIRST then PLAT) to “hold found original”."

The courts have also stated that it doesn't matter whether the monuments were set first or set shortly after the map was made. The map is still considered a representation of the actual survey.


"But haven’t the courts also ruled in the negative?"

Yes, but under very specific circumstances where other principles come into play. As I've previously stated, it is very important to understand the fact set and the principles the court applied to the facts to arrive at a decision. You can't simply keep score.


"And now you encounter a blundered monument 50’ off and still hold it because the courts (in some cases but not all) and statutes have held that the most likely error is in the Map?"

Be careful, your stuck in the B/W thinking again. The courts, as has been pointed out, have not said "hold the monument no matter what" as you imply some as believing with this statement. So, yes, there will be times when you should hold the monument that is 50' out of position according to the corresponding map. And, no, sometimes it will be absolutely absurd to hold the monument 50' out of position. Again, there are no absolute rules which govern (on that I think we have nearly all agreed), and there is no particular magnitude that one can point at and say "less than that I accept it, more than that I reject it". That's an engineering tech's thinking. Get away from it.


"...black and white approach... significant error..."

I can't grasp how you are coming to the conclusion that I've advocated any manner of black and white thinking on this unless you feel that performing surveys according to the rules by which the courts will consider our surveys is black and white. Yeah, OK. I guess I'm somewhat inflexible on that point.

You guys continually arguing that the monument must be rejected, and doing so in the face of applicable statute and case law, and the applicable Standard of Practice (no authority to correct an original survey), are exhibiting a remarkeble stubborness in not considering any other possibility that this iron can possibly be anything other than "blundered" and that it is your duty to correct an erroneous survey when found. That is very dangerous ground to be walking on.

What is "significant"? Go back up to my comments regarding absurd results.


"I’m looking big picture here. How does our current way of subdividing land, measuring, financing, administering, etc. compare with current statute that was based on survey first then plat."

Our current way of subdividing, measuring, financing, blah, blah, blah... matters very little to this problem. No matter how any of that has changed, people still generally possess their land much as they have for decades, centuries, or even millenia. "Show me on the ground where my land is, show me what I own." Often when a landowner commissions a survey, they don't even want a map, don't want to pay for one. They just want to see their corners. That's what's real.

The idea of subdivision maps and simultaneous conveyances is relatively new to boundary law. Why didn't the principle of law as to monuments and maps undergo a radical reversal at that point? Why did course and distance not gain new stature when angles went from being measured with a magnetic staff compass to a solar compass, and then again to a transit? Or from knotted rope to Gunter's Chain, to steel tape, to EDM? Each of those represented huge advances in technology allowing for previously unheard of accuracy and precision in measurement.

Why not when the first recording act was put in place, or the first subdivision map act? Those each radically changed the way surveys were documented and began the regulation of subdivisions. If you think the recent changes are significant, how about going to regulating a practice which had been previously unregulated?

If you think that this is the first generation of surveyors trying to place measurements higher on the list of evidence, you are sorely mistaken. Numbers have always been easier for tech geeks (and I count myself in this group) to understand than law. These same discussions have occurred for several generations. And the courts keep telling us "Sorry guys, it just isn't that easy. You're going to have to think a little harder to get it right."

Looking at distractions is not the same as looking at the big picture. You incorrectly presume that those who disagree with you do not consider these things in their practice. Like you, we do. The difference is that we consider them at times and in situations where they are relevant.

Evan, I had a feeling we were agreeing with each other on some level. That's all I was trying to point out, that for a given situation it would be absurd to hold found original. As for this thread's situation, I really don't think it would be absurd to either hold the original or not. I see the evidence pointing to either solution. Or at least at a minimum, I see other situations where it would be absurd to hold a blundered monument.

"It is the actions of the parties to the conveyance which will be taken to clarify intent. The actions were that monuments were placed at certain locations to mark boundaries by the subdivider (or he caused his surveyor to place them), and buyers took possession of those lots to those markers"

Steve may be able to clarify, but my sense from reading this thread is that the buyers (the only one that matters here is the adjoiner, since Steve's client -- the bank -- appears not to care one way or the other) may not have been aware of the pipe. As I recall, there's some question as to whether or not he knew about the pipe before Steve showed it to him.

Since we may never learn with certainty what the adjoiner in this case knew, I'll pose a hypothetical: If a corner's location is not known to the buyers, does a blundered monument control that corner's location?

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Evan, I appreciate your critical abilities, but there is no need for the name calling. We disagree, but I see no need for the dicussion to turn nasty.

You ascribe motives and actions to me that have simply not transpired. I never suggested that we count up the decisions and then pick a course of action.

You have completely and totally misrepresented or mischaracterized ,or attempted to do so, almost eveything I have posted, apparently to WIN the argument rather than further discussion.

"All rules of boundary surveying have for their purpose the ascertainment of the expressed intention of the deed, and they are to be applied OR TAKEN EXCEPTION TO, depending upon whether their application or disregard most certainly effectuates the intention. " Skelton

This is Skelton's viewpoint expressed in the 1930's and the same or simliar opinion is expressed in more recent texts and i have posted those comments elsewhere. When I studied to become a Cfeds I remember Bob Dahl speaking about the "Manual". His comment was essentially this. The manual is comprised of the general rules. These rules are meant to be applied to situations that can be identified as warranting the application of the general rules. The "Manual" also covers EXCEPTIONS to the general rules. The exceptions are applied when their application is warranted. If the circumstances FIT neither the general rules nor the EXECPTIONS to the general rules apply, then a surveyor must proceed with caution because now they no longer have the justification of following the general rule nor the exceptions as a defense of their actions.

My PROFESSIONAL opinion may be that I see an exception to the rule where you see none.

Dane, in Evan’s defense: I had the opportunity awhile back to talk to Evan over the phone about a heated discussion we were having on the forum. I saw that we were going around in circles and I felt I needed to have two way dialogue with him. After some conversation with him, he seemed to see the side I was trying to show and we had a productive discussion.

This particular discussion is going around in circles with both sides arguing the same points.

The forum sometimes is a difficult place to have these types of conversations for many reasons. I like to chalk it up to, “I can’t fully explain my position well enough via random posts over days and days intermixed with other posts and conversations I’m having outside of the forum.” and “It is sometimes difficult to speak about generalities, facts, opinions, etc. because every case is unique.”

I see the frustration mounting from both sides of the argument.

I am not frustated in the least. I just do not appreciate putting in a lot of effort to engage in a discussion, only to have my effort met with comments of cherry picking or being called an advocate or it being implied that I am adopting a neoyphte pointview or unprofessional. Evan is welcome to hold any opinion of me he choses, but expressing that type of opinion in a discussion where there is a sincere effort being made to look a the rules we use on daily basis, it simply does not advance the discussion, it is hurtful and counter productive. In the Duane case, different surveyors held different opinions and I do recall reading comments that one view or the other was unprofessional.

While following this thread I was hoping someone would ask the question about the location of the original monument in the context of creating an additional parcel on the Parcel Map(PM). The original monument is 7.5 feet in one direction from the map location and 0.3’ foot from the boundary of the PM. If you hold the monument as the lot corner between the two lots doesn’t that create a new unintended triangular shaped parcel that wasn’t shown on the PM?

As I understand the situation the original monument was not an interior lot corner, but was in fact supposed to be on the boundary of the Parcel Map. If holding the original monument defines the common lot corner, then those two lots end at the monument and there would be remnant parcel between the lot corners and the boundary. I think that the intent of the PM has to be considered and the monument be considered a “blunder.â€￾
If the blundered monument is held there would be a “sliverâ€￾ parcel created that would still be owned by the PM subdivider. Seems to me common sense has to come into the equation at some point.

In an earlier post someone pointed out that if the original monument was 7.5 feet outside of the boundary then it would be considered a blunder and senior rights would take precedence. If the magnitude of the apparent is irrelevant and the original monument holds over the map we have just created an new parcel that previously didn’t exist.

post by Gardner, the monument was on the Parcel Map boundary but was along the exterior parcel map line at an interior parcel corner, not at the terminus of the exterior parcel map line or exterior angle point of the Parcel Map.

If I am wrong, someone let me know, but in a nice way.