Point of Beginning - April 2010 - (Page 34)
opinion | BY KRISTOPHER M. KLINE, PLS
Don’t abandon principles when surveying subdivisions.
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 moremodern 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 pro-
Kris Kline is president of 2Point Inc. (www.2point.net), Alexander, N.C. He can be reached at kkline@ buncombe.main.nc.us. 34
APRIL 2010 | Point of Beginning | www.pobonline.com
Table of Contents for the Digital Edition of Point of Beginning - April 2010
Point of Beginning - April 2010
A Grand Re-Entrance
A Model Community
Tough Work in a Tight Spot
Show Me the Data
BIM in a Box
Traversing the Law
New & Notable
Point of Beginning - April 2010