subdivision retracement question

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Elias French
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subdivision retracement question

Postby Elias French » Tue Jan 12, 2021 2:59 pm

Academic and real-life question - how to re-establish subdivision boundary line?

Rectangular block with the long mid-block line being the boundary between two subdivisions, one 1956 and one 1962. 1956 map establishes and monuments street "A", creates a row of lots fronting said street, and monuments its exterior subdivision boundary, being the rear line of these lots. 1962 map by same engineer depicts monuments found in position on street "A" and on subdivision boundary, now the mid-block line, in perfect position of course, and creates new street "B" and a new row of lots fronting street "B", the rear lines of which are the subdivision boundary/mid-block line.

Modern survey recovers only street monuments and finds a surplus in the depth of the block between Street "A" and "B" of say 0.5'-1.0'. Do you 1) establish mid-block line by measurement from monuments of 1956 map, leaving entire surplus to later subdivision, 2) Split the difference and pro-rate the line and thus surplus between the two subdivisions, or 3) Establish the mid-block line by measurement from the monuments of the 1962 map, leaving surplus to the older subdivision? Why?

No evidence of possession or junior/senior title issues. Curious to hear what others think - leaning towards either holding record from older survey (monuments of first survey control), or pro-rating (second survey tied all monuments, surveys 'near' in time, by same engineer, possible 'long tape' of original survey). What say you and what principle controls?

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Dave Lindell
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Re: subdivision retracement question

Postby Dave Lindell » Tue Jan 12, 2021 6:00 pm

I think "indexing" to the original tape measure is defensible.

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btaylor
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Re: subdivision retracement question

Postby btaylor » Tue Jan 12, 2021 9:42 pm

Do you know the origin of the street monuments? Unclear if you are saying they were puportedly set by original surveyor. I would want to get a feel for the origin of those street monuments prior to forming an opinion.

Either way, the street improvements need to be measured in relation to those street monuments.

I know this is a hypothetical but in general there would be lines of occupation by now (I am in an area where there is no space left, so the idea of no occupation after all this time does not compute), and if there was no occupation, then I'd expect the original rear monuments to be found. If not I am digging around for hubs based on the calcs before I come to any conclusion.

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DWoolley
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Re: subdivision retracement question

Postby DWoolley » Wed Jan 13, 2021 10:50 am

The facts as I understand them based on the information provided:

There are two subdivisions that have abutting back lines. The maps are separated by six years filing dates. The street monuments, A Street created in 1956 and B Street created in 1962, connecting the blocks are longer than the combined map record by 0.50’ to 1.0’.

Applicable legal maxims:

1. Junior rights yield to senior rights.

2. Monuments hold over map dimensions (unless they encroach onto a senior right).

3. Unsubdivided property belongs to the original underlying owner.

Elias French stated:

Modern survey recovers only street monuments and finds a surplus in the depth of the block between Street "A" and "B" of say 0.5'-1.0'. Do you 1) establish mid-block line by measurement from monuments of 1956 map, leaving entire surplus to later subdivision, 2) Split the difference and pro-rate the line and thus surplus between the two subdivisions, or 3) Establish the mid-block line by measurement from the monuments of the 1962 map, leaving surplus to the older subdivision? Why?”

Answer:

None of the above. Hold the 1956 line and the 1962 line – leaving a gap between the subdivisions. Ask your client if they are interested in acquiring title to the gap property. If the client is not interested in acquiring title, document the gap and move on. Neither party has title to the gap property – each party would have equal claim to the gap property. In the event you choose to cowboy in a boundary solution the least liability is to distribute the excess by proporation - not recommended. If you choose to "steal" the property for your client explain in writing that setbacks, improvements etc should be placed relative to the title line (subdivision line) not the gap line (and run!). This is no incentive to incur this liability. Any correct solution will necessarily involved a change in title.

Questions:

1. Are the monuments found original or minimally, an authentic perpetuation of the original monuments?

2. Is there any explanation i.e. terrain as to why a 1.0’ delta exists between the found monuments? What is the distance between the monuments on A Street to B Street?

3. What would you do if the gap between subdivisions was 10’ or 20’? Same answer as a 1’ gap? Why or why not?

4. Do you have a citation that says, “senior right gets full measure and the junior get the balance when there exists excess land”?
Or, alternatively, does that particular maxim apply to only shortages? Before you knock yourself out looking, it only applies when there is a shortage.

5. Look are the owner's certificate on the subdivision maps. Are they the same owner?

The maxim is the property in the gap remains with the original subdivider. A review of any old PLS exam, a test for minimum competency, will provide the same answer as the correct solution. Close the gap on the test and you fail the problem. Why is that? Rhetorical question.

DWoolley

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steffan
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Re: subdivision retracement question

Postby steffan » Wed Jan 13, 2021 11:33 am

One surveyor, two adjacent surveys separated by a relatively small amount if time. Would seem easier to support the premise that only one common boundary was intended and established and restoration would be at an indexed position.

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DWoolley
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Re: subdivision retracement question

Postby DWoolley » Wed Jan 13, 2021 12:13 pm

“No surveyor or court has the authority to alter or modify a boundary line once it is created. It can interpret only from the evidence of where that boundary is located. Retracing surveyors will encounter a minority of surveyors who believe it is their responsibility to “correct” the error…these surveyors have no concept that once the lines have been created, no subsequent surveyor has the authority to recreate original lines….By law they are free from error, even though, in fact, we do realize that the creating surveyor made mistakes. It is not the job…to correct the originals. It is their [surveyors] job to report any discrepancies found.

Brown, Curtis M., Walter G. Robillard, Donald A. Wilson, Brown’s Boundary Control and Legal Principles (5th ed. 2003), pg. 37

The other side this perspective has been researched and presented very well by Evan Page.

DWoolley

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btaylor
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Re: subdivision retracement question

Postby btaylor » Wed Jan 13, 2021 1:14 pm

There's definitely some point in which monumenting/showing a gap is necessary over prorating this out and eliminating the gap. I can't say when that happens in terms of gap distance. If the gap is a tenth, I would find it silly to show that. If the gap is 10 feet, then obviously seems silly to close that gap unilaterally as well.

Fortunately, at least in this area, I have found my predecessors were quite adept at keeping these errors to a minumum unless we are talking longer distances and steep terrain.

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DWoolley
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Re: subdivision retracement question

Postby DWoolley » Wed Jan 13, 2021 3:31 pm

btaylor wrote:.... If the gap is a tenth, I would find it silly to show that. If the gap is 10 feet, then obviously seems silly to close that gap unilaterally as well.


In the event you find a one tenth gap, where do you distribute the excess (i.e. junior or senior property)? Why?

DWoolley

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steffan
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Re: subdivision retracement question

Postby steffan » Wed Jan 13, 2021 3:33 pm

I recall a Chuck Karayan presentation where he stated something to the effect that no two surveys he had encountered were the same. With that in mind, I don’t believe we have anywhere close enough information to give any definitive resolution advice. However, although I do very much adhere to the school of belief that title gaps do result from substandard survey procedures, and I also don’t believe that such created gaps between established boundaries are resolved simply by a latter surveyor opining to that effect, I will offer that from the information given that the sole surveyor appears to have established one common boundary between subsequent surveys and the task appears to be one of placing the error where it occurred. I don’t believe this to be a situation where you would assume the former survey was more (or less) accurate than the latter.

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dedkad
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Re: subdivision retracement question

Postby dedkad » Wed Jan 13, 2021 3:39 pm

DWoolley wrote:“No surveyor or court has the authority to alter or modify a boundary line once it is created. It can interpret only from the evidence of where that boundary is located. Retracing surveyors will encounter a minority of surveyors who believe it is their responsibility to “correct” the error…these surveyors have no concept that once the lines have been created, no subsequent surveyor has the authority to recreate original lines….By law they are free from error, even though, in fact, we do realize that the creating surveyor made mistakes. It is not the job…to correct the originals. It is their [surveyors] job to report any discrepancies found.

Brown, Curtis M., Walter G. Robillard, Donald A. Wilson, Brown’s Boundary Control and Legal Principles (5th ed. 2003), pg. 37

The other side this perspective has been researched and presented very well by Evan Page.

DWoolley


Why is it assumed that the creating surveyor made a mistake? If someone comes back in to measure one of your subdivisions years from now with new equipment and comes up with a different number, does that mean you made a mistake? I always think it is arrogant of us to assume that we are better measurers than those who preceded us. That attitude is why we have problems with pincushion monuments.

I would look at both solution #2 and solution #3 and see which fits better with lines of occupation. If it's the same subdivider for both, then that helps your argument. I'd also be curious to know if the street monuments were the same monuments set by the original surveyor.

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btaylor
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Re: subdivision retracement question

Postby btaylor » Wed Jan 13, 2021 3:51 pm

DWoolley wrote:
btaylor wrote:.... If the gap is a tenth, I would find it silly to show that. If the gap is 10 feet, then obviously seems silly to close that gap unilaterally as well.


In the event you find a one tenth gap, where do you distribute the excess (i.e. junior or senior property)? Why?

DWoolley


I would need to assess the evidence I laid out previously before forming an opinion.

A tenth gap is not something I am going to tell a client to contact an attorney about.

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Elias French
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Re: subdivision retracement question

Postby Elias French » Wed Jan 13, 2021 4:29 pm

Thanks all sincerely for the feedback, and Happy New Year. To answer a couple questions...

btaylor:
Origin of streets, and street monuments, is the original surveys of 1956 and 1962, mons appear to be as described. Lines of occupation in rear of PIQ are gone because they were demolished.

DWoolley:
Facts are as you describe. Monuments found are original and as described, no explanation as to why delta exists, 260' A Street to B Street, can't say as to what to do if 10 or 20 foot gap as haven't ever encountered bust of that magnitude in this vintage of subdivision so difficult to speculate.

As to citations supporting 'senior gets full measure and junior gets the balance', I believe plenty of those can be found in Clark and elsewhere although in all honesty I wasn't intending to revive the gap/Jr. Sr. discussions of this thread viewtopic.php?f=6&t=8079 . Although in retrospect and after further consideration it is obvious a gap could be created/found, either intentionally and explicitly or inadvertently by successive surveys of lots in each subdivision coming only off the mons fronting the respective lots.

Both subdivisions had same owner.

As the rear line was monumented by the 1956 subdivision, and those monuments were shown as found on the 1962 subdivision, and the 1962 subdivision was mapped as adjacent to the 1956 subdivision, and showed connections to its lines and monuments, I hadn't really considered that a gap should be 'opened' in this instance given the magnitude and all things considered, and was viewing it as a question solely of how to establish the common subdivision boundary in the absence of monuments found on it.

I presume that if the monuments along the common subdivision boundary were recovered, it would be correct to hold them and establish the one common line shown on both maps? But if no monuments found, then two lines exist? This would seem to contradict common sense and the quote from Brown given: "No surveyor or court has the authority to alter or modify a boundary line once it is created." The making of two lines and a new sliver parcel out of one mapped and monumented line would seem to be the very definition of "modifying" to this one at least.

Additional info aka not adjusted for hypothetical forum purposes aka would your answer be different if:
The surplus is actually 0.0'-0.3' and is due to Street B being rotated 'away' from Street A as compared to its record relative position. Street A also continues on far past the end of the Street B (a cul-de-sac) and the 1962 subdivision entire, such that if pro-ration were used to split the surplus where the two subdivisions touch, an angle point would be created in the common line where the tier of lots fronting Street A extends past the end of the 1962 subdivision. This was what was leading to thoughts of first establishing the exterior line of the older subdivision, from its mons, then leaving any discrepant amount, surplus or deficiency, in the later subdvision. The same principles seem to apply in either case however...

Cheers all

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David Kendall
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Re: subdivision retracement question

Postby David Kendall » Wed Jan 13, 2021 4:58 pm

I choose 1 or 2. Leaning more towards 2 as it is an equitable distribution and therefore more legally defensible. Indexing sounds about the same as 2 to me. I expect there to be a similar excess in the length of the block as there is in the width in order to support an index correction.

I would feel confident in saying on the map that I found an excess in measurements between the found street monuments that the same surveyor set for the two original subdivisions which were under common ownership at the time of subdivision and distributed it equally between the two subdivisions in the absence of better evidence. Split the difference, make it easy on everybody going forward

If it was ten or twenty feet then I might do the same, I'd have to consider the current ownership and whether it was material

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DWoolley
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Re: subdivision retracement question

Postby DWoolley » Wed Jan 13, 2021 6:05 pm

Elias French and others:

Same fact set.

A Street monuments are the best evidence of the senior tract line. Set the senior tract line, presumably parallel and X distance, from the A Street monuments. It has been suggested this senior line is also the junior tract line - as mapped and argued here as the "intent".

Why wouldn't a surveyor hold the record junior lot dimensions from the common senior tract line and place the excess land in the right of way by holding the junior B Street monuments as the centerline? Yes, it creates a wider than record right of way width that varies. No gap.

Applying the logic of others, why wouldn't this be a solution?

DWoolley

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PLS7393
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Re: subdivision retracement question

Postby PLS7393 » Thu Jan 14, 2021 10:29 am

DWoolley wrote:
A Street monuments are the best evidence of the senior tract line. Set the senior tract line, presumably parallel and X distance, from the A Street monuments. It has been suggested this senior line is also the junior tract line - as mapped and argued here as the "intent".

Why wouldn't a surveyor hold the record junior lot dimensions from the common senior tract line and place the excess land in the right of way by holding the junior B Street monuments as the centerline? Yes, it creates a wider than record right of way width that varies. No gap.

Applying the logic of others, why wouldn't this be a solution?

DWoolley


Dave,
This solution makes no sense to me, but who am I anyways to say right or wrong.
The key in my interpretation of this as I have seen this multiple times is the original "Intent" as addressed with Senior/Junior Rights.
I would follow the original solution #1, to give the Senior Tract it's due dimensions of land from the existing/found street monuments.
In this case, the Junior Tract had an intent to establish a street (with monuments) that abuts the rear tract line, so holding found original street monuments and the street gets it's full dimensions, leaves the excess with the Junior Tract lots. File a record of survey and move on to your next project.

Note: This is my five minute boundary analysis and if I found, or someone pointed out additional data that may have a potential alternate solution, I would consider it.
Keith Nofield, Professional Land Surveying
PLS 7393

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DWoolley
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Re: subdivision retracement question

Postby DWoolley » Fri Jan 15, 2021 8:46 am

Elias French wrote: I presume that if the monuments along the common subdivision boundary were recovered, it would be correct to hold them and establish the one common line shown on both maps? But if no monuments found, then two lines exist? This would seem to contradict common sense and the quote from Brown given: "No surveyor or court has the authority to alter or modify a boundary line once it is created." The making of two lines and a new sliver parcel out of one mapped and monumented line would seem to be the very definition of "modifying" to this one at least.



Q: I presume that if the monuments along the common subdivision boundary were recovered, it would be correct to hold them and establish the one common line shown on both maps?

A: Yes. Monuments hold over the map dimensions [assuming they are original or a perpetuation of originals and do not encroach onto a senior right]. The map, generally, serves as a reference to the monuments.

Q: But if no monuments found, then two lines exist?

A: Yes. In the absence of monuments or evidence of the monuments (i.e. improvements that support the original lines) the next best available evidence is the map and more particularly, the map dimensions.

As for the Brown citation, wouldn't adding a 1.0' (or 0.5', or 0.2') to the map dimension be a "modification" of the record? There is no reason to dispense of the excess land. Why not leave it where you found it? There is no trouble to be found in doing so - textbook solution. On the contrary, closing gaps in title is not easy to defend (think minimum competence testing and no citations to authority).

BTaylor, we are on the same page. I would not send a client to an attorney for 0.1'. The land does not support the cost and process. The question becomes whether or not 0.1' is de minimis, as in de minimis non curat lex, and at which point it is no longer de minimis. Arguably, 0.1' is noise in measurement.

DWoolley

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Olin Edmundson
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Re: subdivision retracement question

Postby Olin Edmundson » Fri Jan 15, 2021 1:10 pm

You don't need to know ultimate answer to gap question to be able to determine the appropriate course of action / guidance to client. In this case, anything beyond full record measurement coming from respective streets creates possibility for damages to both your client and yourself. You can call that line the worst case line, cal it the property line, call it whatever you want, but as fact, that line defines the limit of risk. Introducing the potential for conflict/damages/risk can't fall within the proper standard of care. Potentials for conflict and problems can’t be denied. Proof is right in front of our face on this forum. Both sides should be using same exact approach no matter what side of gap/no gap camp you're in.


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