The Garfunkel Subdivision

I have just finished reading the Lucas article on his Garfunkel Subdivision and have to say that it is very good.  Does not seem like there is a problem with identifying the boundaries.

The deed stakers will of course disagree!

Seems to me to be an example of land surveying 101.

Keith

101 it is. I have always found the term "deed staker" misleading, because in a case like this, the correct (red line) solution, although at odds with the measurements, IS the "deeded" solution.The deed (or the plat it references) calls the wooden "stobs," which were, as we're virtually certain by the end of the article, at the red line corners. So this is not a case of occupation that truly varies from the deeded boundaries; it's simply a case of conflicting evidence as to where the deeded boundaries lie on the face of the earth. The record measurements provide some evidence; but there is, as we learn from the article, better evidence to be had (in this case). So something like "measurement stakers" might be the more precise term for the proponents of the black lines.

The fact remains it was incompetently staked from the get-go. So a 20 year old mistake becomes a 20 year old fact. Doesn't say a lot for our profession. 
But consider doing an ALTA survey on a lot in there. Every one of these I've done, they want the deed description on the survey verbatim. No other description can carry the header "Legal Description".  And they want the deed lines shown. The lines of occupation too, but the lawyers are going to call these "lines of occupation", not  lines of ownership. And they're going to insure the smallest area. The area inside the the lines of occupation or deed, whichever  is closest the house, or the house area, so to speak. The owner is going to get screwed on all sides. Except maybe the road side. They need corrective deeds on every lot in the subdivision. It ain't about deed staking. It's about deed reading, and deed insuring. 

But ALTA requirements can't change boundary lines. In this case, the lines of occupation ARE the "deed lines," as I said above. It's simply a case of imprecise measurements. Sometimes a note explaining this in layman's terms will placate bewildered attorneys and others (sometimes not).

Hmmmm, did not know that lawyers have survey authority?

Keith

The ALTA requirements do not require you to locate "deed" lines which are not the boundary lines.  An ALTA is a boundary survey, not a mathmagical exercise of ignoring evidence of the true boundary in favor of what a scrivener believed the lines to measure.  The lenders, lawyers, and many title people may not understand why the boundaries shown on the survey do not match, to the hundredth and to the second what is stated in a m&b description, but that does not give them the authority to require the surveyor to incorrectly identify the boundary.

The title company can make their own decision to insure the actual correct boundary or insure a legal description with inaccuractly recited measurements.  But if you, as the surveyor, decide to show what you know is an inaccurate or incorrect boundary in order to avoid questions or objections from professionals who may not understand why the differences legitamately exist, you are malpracticing. 

It may be that these other people have a hard time understanding you, or may be less than fully open to the idea that the actual dimensions of the boundary differ from those in a description, but that does not alleviate your duty to explain it to them.

If it goes to court over a boundary issue, would you want to be telling the court "I just staked the deed dimensions because that's what the title company wants" while a competent surveyor is showing the court how he held the monuments and why the actual boundary cannot follow the inaccurate deed dimensions?  How will you feel when the title company reminds you that you are the boundary expert and that they relied on your survey for this case they just lost?  Would your E&O carrier feel more or less comfortable insuring you if they understood that you were reporting boundaries you felt were incorrect because you wanted to avoid objections from those who are not licensed as boundary experts?

I think we'd all do pretty much the same thing here. Hold the field positions. Show both the field and record dimensions. Let the chips fall where they may.  I'm just saying, the client is getting screwed by a bad (original) survey. That makes us all look bad. 

Given the facts presented there is no question but that the fences are the plat lines. But usually the surveyor has to do without a Garfunkel. You have fences that don't agree with the plat dimensions and no more. And you have to make your decisions. Without Garfunkel, do you put your monuments on the fence lines?

Mark,

Your statements:  I think we'd all do pretty much the same thing here. Hold the field positions. Show both the field and record dimensions. Let the chips fall where they may.  I'm just saying, the client is getting screwed by a bad (original) survey. That makes us all look bad.  are what I am trying to understand.

Simpy put, if you are not making the decision on where the boundary is and you let the chips fall where they may; who is making your survey decisions?

Do you really show two lines as possible boundary lines and let the attorneys or title people decide where the boundary is?

Just asking.

Keith

I solve this by showing my interpretation of the boundary.  And then showing the deed if there is a substantial discrepancy.  Sort of my take on Record versus measured.  That scenario is fairly common here.  By showing both and noting my boundary determination it tends to answer the "Why" question.  If there becomes a court issue it is easier to explain.

Our job is to determine/show the boundary. I show that with a heavy black line on my survey drawing. And with monuments in the field. I also show conflicts, so that a response can be given as to why I made whatever particular determination I made. And sometimes, a fence is just a fence, and sometimes a wall is encroaching.  I put enough information on my drawing so that ten years later I can have thing shoved in my face and respond with "Yea, I showed what you're saying, and I showed the right thing too." 
I not only don't do what the lawyers tell me to do, I get a kick out of telling them no. But don't repeat that to anyone. 

Hey guys,

Do you show your plat to your clients and tell them to take their pick as to what they want for their boundaries?

Seems simple to me that there is one boundary line and the surveyor is hired to find it!!

NO?

Keith

Mark,

What does this mean:   "Hold the field positions. Show both the field and record dimensions. Let the chips fall where they may."

Keith

I really don't get it!!!

There is one boundary line on the ground, so why confuse your client and your lawyer that there posibly are two, as shown on your survey plat.

If the fence lines in this subdivision are the boundaries......there ain't another boundary to show.

I am understanding Lucas more all the time.

Keith

Maybe I'm saying this all wrong. 
Start with the description: In Florida where I practice, one in a platted subdivision will typically read:
Lot 1, Block 1, "The Garfunkel Subdivision" according to the plat thereof, as recorded in plat book 1, page 1 of the public records, etc. 
A very important phrase is according to the plat thereof. 
That means that everything on the plat relevant to the lot has to be shown on the drawing. It doesn't mean I have to hold the plat, only that I have to explain why I didn't, if I didn't. That's Florida law. I still have to determine the corners, and show the corners, and sometimes they're not where the plat shows them. 

So let me ask you this: 
Are you really saying you would take a legally recorded public document, referenced to in the deed, and just ignore it? Wouldn't that be a whole lot harder to defend in court than my saying "yes I showed it, and disagreed with it." ? 

And the chips falling where they may refers to some lots being bigger than others, some smaller, while the tax man appraises everyone equally by going off the plat. That sort of thing. 

There is one boundary on the ground, and it is not the boundary that your client's lawyer expects. This is part of what you're being hired to tell the lawyer.  

my goodness!

I agree Norm!

Keith

Dang I never saw this coming.  There is only ONE boundary on the ground.  Specifically speaking; Dad and I dependently retraced the Nutrioso Townsite.  Mixed bag of houses, roads, occupation.  All in place.  Here is rub.  The townsite boundary was described as the E1/2 of the NE1/4.  The Townsite was laid out in square blocks with 4, 1 acre lots, to each block and 99 foot streets.  NO, monumentation.  We broke the section down and and calculated the lots and blocks and streets.  Then we compared that to the occupation.  It was all over the place.  Houses in platted county roads, a real mess.  We sh owned the occupation in relation to plat so the land owners could begin to clean up (by deed) the issues.  The county vacated several rights-of-way in order to address the homes that were in platted streets.  

There is a place for showing both.  Boundaries and deed lines are about as synonymous as monuments and corners 

That's what I mean!

I find this story line mildly hallucinogenic.

"Garfunkel was working on the cheap and hired the cheapest surveyor he could find--Sam Smith, who was already well past his prime--to lay out the lots and prepare a plat. Smith didn’t have helpers or equipment. Working with a boy-scout compass for line and pacing for distance, Smith had Garfunkel follow him around with a sack of 3 inch by 3 inch wooden “stobs.” Every time Smith stopped and pointed to a spot on the ground with the toe of his boot, Garfunkel would drive in a stob at a lot corner and douse it with paint. After all of the corners were set, Smith and Garfunkel chopped out each lot line and painted the blazes in the trees. Smith told Garfunkel the measurements weren’t as important as the monuments (stobs) and the blazed lines. Smith also told Garfunkel that every time he sold a lot, he was to walk each perspective lot owner down the lot’s lines and show them the blazes in the trees and the stobs at the corners.

Garfunkel told Wilson he did that with each lot purchaser over a 10-year period until all of the lots were sold, with the exception being Lot 9, which didn’t sell until 2008, to an out-of-state buyer. After all of the lots were staked and blazed, Garfunkel told Wilson, Smith finished the survey map, and Garfunkel recorded it. As the subsequent lot owners moved in and built houses, Garfunkel told Wilson they all built their perimeter improvements right down the lines that Garfunkel had shown them. The reason Wilson wasn’t able to find the stobs is because the vast majority of them were either buried or replaced with fence posts. Garfunkel told Wilson that when he put his fence posts in, he removed the stobs, dug the hole for his post and then dropped the stob down in the bottom of the hole in case he ever needed to “prove” his corner, but in the 36 years since the subdivision had been created nobody had ever questioned the boundaries. Based on this new evidence, where is the property line for Lot 9, red or black?"

Unless of course, you need to draw the extreme example to make your point.

I would also listen to the argument that this perpetuated a fraud by Garfunkel and his surveyor in providing a mathematical plat not a fence line plat.

Mike Falk:

I would also listen to the argument that this perpetuated a fraud by Garfunkel and his surveyor in providing a mathematical plat not a fence line plat.

That's a good point, Mike.  But if the court didn't decide it was fraudulent, then as a surveyor coming along later, we wouldn't have the luxury of deciding otherwise.  And if coming along before it went to court, unless aware of Smith's methods, we would have no basis for labelling the preparation of the plat a fraudulent act.  Poorly measured, yes, fraudulent, no.

It was locally known among the occupants that the corners and lines were marked and what constituted the marks.  Those were/are the corners.


Mark,

"According to the plat thereof" does not only refer to dimensions.  If the monuments were also shown or called on the plat, then showing boundaries per the monuments is every bit as much, actually more so "according to the plat thereof".  Record dimensions are just and only that, a record of someone else's measurements.  If we are lucky, they left evidence of what they measured to, and those points are all that really count in the end.

Nothing personal, just my opinion on a discussion forum;
If testimony from around the neighborhood is that the line of occupation has been used asthe property line for as long as memory serves this is the highest evidence of where it was originally located. This testimony can be silent because of the age of the occupation and acts of the owners when there is nothing else to consider. The numbers on the plat yeild. It's not an acquiescence issue or an adverse possession issue. The surveyor is retracing the established original line based on best evidence. The lot lines never moved. Lot x is where it always was as long as memory serves. The same thing holds true for subdivisional section lines. No correction is needed to the deed. It's still lot x. The SE 1/4 is still the SE 1/4. As Keith said, survey 101. I find it interesting that surveyors chastise GIS mapping for drawing property lines in strage looking places while at the same time monumenting property lines in strange looking places. They are delivering the same product using the same reasoning. If GIS can deliver the product why are surveyors needed? To monument the GIS line for the lawyers I presume. Nice job of protecting the public.

FRAUD??

I would suggest that this Garfunkel example is closer to the real world and how some surveys have been executed.  It is a monumented survey that served the lot owners as they identified their boundaries on the ground to build their fences and houses.

The problem does not exist until a deed staker/measurement expert comes along and cannot accept the fact that his/her expert measurements do not fit the occupation lines.

I agree that the monuments are not galvanized pipe with brass caps and placed with control survey accuracy, but were set and lines between the monuments marked on the trees.  Thereby, the lines can be retraced in the footsteps of the original surveyor.

Some act like this is impossible to happen!  If I had rejected all survey monuments (Federal or Private) that did not fit my measured distances; I would have created problems in most cases where no problem existed before I got there.

The most troubling concept about this and other discussions is the fact that some actually believe that the protracted section subdivision lines exist in their exact mathematical position; therefor have to be placed on the ground in those exact mathematical positions and ignore all previous attempts of surveying them on the ground.  This concept pops up all the time in different threads and clearly shows the mentality of measurement experts.

For crying out loud, do we have to start over again and do it all with control survey accuracy and the hell with boundaries that have been established and happily used for extended periods of time?

Only surveyors that do not appreciate land tenure would advocate that.

Lucas has presented a real life situation and is sitting back and seeing that his opinion of some is accurate.

My opinion anyway, for what it is worth.

Keith

I would argue that Garfunkel's surveyor committed far less a "fraud" than some of the surveyors from around here in the '60's & '70's who routinely "surveyed" subdivisions like Garfunkel's by surveying the perimeter and then showing protracted lots on paper without any monumentation or markings in the field whatsoever. I'd take the Garfunkel subdivision in a heartbeat!

This is for those who actually believe that the protracted section subdivision lines can only be surveyed on the ground by using the original survey procedures as provided in chapter 3 of the 1973 Manual.  You know who you are and some are even BLM land surveyors.

You have been taught and believe that the original lines of the PLSS as surveyed on the ground, are not movable, are used in place no matter how bad the measurements might be.  Right?

These lines hardly ever conform exactly in measurements to the section lines as shown on the original GLO/BLM survey plat; yet you will agree to not move them to their exact positions as shown on the official survey plat.  Rationale: because they are original government lines and the law states to accept them in place.

Now, move to the concept of section subd. lines.  In the case where they have been surveyed on the ground, they will seldom ever conform to the exact measurements as protracted on the official GLO/BLM survey plat.  Yet some of you refuse to accept this fact and actually believe that those section subd. lines have to be surveyed with control survey accuracy to accurately place them on the ground. Why is that?

The rationale for each of the above examples is the same, in my opinion, and accepts previously surveyed lines, unless there is gross error or fraud involved.

Some of you actually believe that only the lines that were established by the GLO/BLM are set in place and cannot be changed; so does that mean that only the GLO/BLM can survey section subd. lines?  I know some of you do believe that.

If that concept is true, then all of you who actually subdivide sections for the first time are committing an illegal act!  Think about that for a minute.

On the other hand and in accordance with procedures and advice from the Manual, you can survey these lines for the first time and your survey should have the same legal standing as the GLO/BLM original surveys of the section lines.

So with this explanation of survey requirements, how do you come to the thought process that the section subd. lines can only be at the EXACT measurements as shown on the original GLO/BLM survey plat?

Is it because you believe that only the BLM surveyors can establish these sec. subd. lines?  Or is it simply the fact that they were not established by the GLO/BLM surveyors and were established by private surveyors?

Some of you really have to sit down and rethink your rationale!  Maybe the real world surveying in your view is not how you have been led to believe?

When Lucas is right, he is right!  Even though he has not backed off his asinine statement about the Manual being irrelevant !

Just some thoughts to ponder and think about seriously.

Keith