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Overview

The new edition of Brown's Boundary Control and Legal Principles has been updated to reflect ongoing changes in surveying technology and surveying law, notably by adding water boundary expert George Cole as a contributor to revamp information on Riparian and Littorial Boundaries. Additionally, a new appendix has been introduced containing a comprehensive list of surveying books that have been referenced in court cases and legal decisions as persuasive authority over the years. It is indispensable reading for students and practicioners studying for the Fundamentals of Land Surveying licensure exam.

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Editorial Reviews

Booknews
This reference on land boundary law, measurements, evaluation of evidence, and boundary traditions and customs covers the legal elements of determining boundary location and the federal and state laws that govern these principles. This fourth edition contains new material on the distinction between GLO creation by statute law and metes and bounds created by common law, examines Riparian boundary questions, and defines new surveying terminology. Includes b&w photos and diagrams, and a glossary. Annotation c. Book News, Inc., Portland, OR (booknews.com)
From the Publisher
"This new edition of Brown's Boundary Control and Legal Principles - the classic reference to boundary law for property surveying - has been updated and expanded to reflect ongoing changes in surveying technology and surveying law. A wealth of case studies on federal and state nonsectionalized land surveys demonstrates real-world examples of covered material." (Ontario Professional Surveyor, Summer 2009)
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Product Details

  • ISBN-13: 9781118431436
  • Publisher: Wiley
  • Publication date: 12/23/2013
  • Edition description: New Edition
  • Edition number: 7
  • Pages: 552
  • Sales rank: 742,355
  • Product dimensions: 6.00 (w) x 9.30 (h) x 1.30 (d)

Meet the Author

Walter G. Robillard is a Principal at Land Consultants, Inc.

Donald A. Wilson is a Principal at Land & Boundary Consultants, Inc.

The late Curtis M. Brown was a partner at Brown Hall in Sacramento, California.

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Read an Excerpt

Brown's Boundary Control and Legal Principles


By Walter G. Robillard Donald A. Wilson Curtis M. Brown

John Wiley & Sons

ISBN: 0-471-21598-8


Chapter One

HOW BOUNDARIES ARE CREATED

2.1 INTRODUCTION

To understand the legal fiction of boundaries, the surveyor must be able to make a distinction between the various elements of corners, monuments, boundary lines, and property lines. All of these are different and should be addressed differently by the surveyor who creates them and by the surveyor who must ultimately retrace and redescribe them and then probably will have to defend their location in court. Unfortunately, these principles are sometimes misunderstood by students, practicing boundary surveyors, attorneys, and even the courts.

Neither the student nor the surveyor should confuse the distinction between the creation of boundaries and that of changing boundaries already created and of identifying the location of a boundary that was to be retraced. The changing of boundary lines already created will be discussed later in this book, even though the principles are legal in nature.

The following principles are discussed in this chapter:

PRINCIPLE 1. A landowner may divide a parcel of land in any manner not inconsistent with the law.

PRINCIPLE 2. Once a boundary or boundaries are created, no alterations or modifications are permitted in any manner by either the landowner or any surveyor once property rights have been granted or distributed according to theboundaries created.

PRINCIPLE 3. The original surveyor creates boundaries. It is the retracing surveyor who ascertains or identifies boundaries from the original evidence.

PRINCIPLE 4. Once created and approved, the original boundaries created are legally without error and are the exact dimensions as indicated by the creating surveyor.

PRINCIPLE 5. No surveyor or court has the authority to alter or modify a boundary line once it is created. It can be interpreted only from the evidence of where that boundary is located.

PRINCIPLE 6. A retracing surveyor relates previously created and approved evidence to a current survey, being mindful that the current survey is always subject to collateral attack by other surveyors.

2.2 DEFINITIONS

There are several books in print that give academic and/or legal definitions of words that are important to the practicing surveyor. These are the definitions that should be used if one were to testify in court. But in many instances they fail to meet the everyday practitioner's requirements of definitions that are understood. In an effort to introduce a degree of practicality, the definitions given here are those that the practicing surveyor, student, and landowner can appreciate without legal or academic confusion.

Any list of definitions can be short or extensive. The definitions presented here are only those basic ones that are needed to furnish a foundation for future study. Corners, lines, monuments, property lines, and boundary lines may have several definitions. The following are those that the authors use to make distinctions.

A line in surveying and dividing grounds means, prima facie, a mathematical line [invisible] without breadth; yet this theoretic idea of a line may be explained by the facts referred to and connected with the division, to mean a wall, a ditch, a crooked fence, or a hedge, that is, a line having breadth.

Usually a corner is at the end of a boundary line or at a change in direction of a boundary line. Applying that philosophy, we see why an endpoint is also called the terminal point of a line, named after Terminus, a Greek and Roman deity. A corner may also be placed along a line where a third party may tie in or reference a senior line. To define a line there must be two corners, or termini, one at each end of the line. The corners, to be controlling over other descriptive and elements required in descriptions, must be created by the survey and should be called for in a legal document relating to the specific parcel.

Corners can be located or placed on the exterior boundaries of the parent parcel as well as inside the parcel itself. Usually, an interior corner will not control an exterior corner. To be controlling and legal, a corner does not have to be monumented. A corner has no physical dimensions of length, width, or depth. It has only a legal dimension, in that an original corner found legally identifies the point of the survey, regardless of whether or not it is monumented. This applies only if a conflict exists in a description; otherwise, it can control even if it is not called for, but this is predicated on other applications of law.

A monument is a physical manifestation set at or near a corner. To be legal and controlling, a corner does not have to be monumented; it just has to be identified and called for in the survey or document. Yet the law has set certain requirements for corners. As we will see, a call for a distance, more or less without the call for a corner or monument, is legally insufficient. Yet we can have monuments placed either on the corner point or near the corner. Surveyors and landowners have problems when a monument is not placed at the corner point but near the point where the corner is located. One of the critical requirements for a monument is that the monument recovered in a retracement or resurvey not differ appreciably from the monument set at the time of the original survey when the corner was established and a monument was set to identify that specific point.

Monuments may be classified as falling into two areas or categories: natural and artificial. Courts usually make a legal distinction between the two and hold that when there is a conflict or question between a natural monument and an artificial monument, the natural monument will control legally.

Courts have held that streams, rivers, mountains, roads, trees, and the like may constitute natural monuments. Yet if this natural monument is supposed to identify a point that represents a corner, the legal point, how then can a stream that is 20 feet wide and 600 feet long be considered a monument? This distinction cannot be explained. The reader will find that this is but one of many possible conflicts that will be encountered in retracement work by the professional surveyor. Research of early U.S. case law reveals that many of the cases called these points natural boundaries and artificial boundaries.

Artificial monuments are those monuments that usually are placed at corner points by landowners, surveyors, engineers, and others. They may be called by various terms on maps, in descriptions, and in field books. One may find them referred to as iron pins or pipes (IPs); stakes; at times, trees; concrete monuments (CMs); nails; or whatever the surveyor decided to use. Courts have made the distinction that natural monuments control over artificial monuments, because they are more certain of identification and less likely to be disturbed. This is discussed in Section 5.10.

The surveyor must make the distinction between a boundary line and a property line. Boundary lines between parcels are created in several ways, yet until written documents or legal principles attach, property lines are nonexistent. In theory, a boundary line remains fixed forever where it was located initially, but a property line may change by legal principles, including estoppel, agreement, adverse possession, or riparian rights.

When a surveyor establishes a survey line in the field to create a boundary, corners are usually identified. Lines are then marked and monuments set at the corners. By principle, each line must have two corners to be fixed in place, one on each end. Although when placed the monument becomes visible to the surveyor and landowners, the monuments that are set identify the position of the corner. The connecting line remains invisible between the corners. Yet if the creating surveyor blazed trees, or placed posts or stakes along that line, these physical objects become the identification of that once invisible line. Thus the objects marked at the time of the survey become the location and identification of the boundary line created. The recovery of any of the evidence of this survey at a later date becomes the recovery of the original line, and the lines run in the field to create the original boundary controls.

Once a boundary line is created in the field or on paper, common law and statute law permit it to be modified, changed, and altered. When a line is thus changed, altered, or modified, according to law, it becomes a property line. Because surveyors can create boundary lines and because a property line is a result of law, only the courts can certify or "sanctify" property lines or boundaries. Surveyors in the United States have not been given the authority to determine legal property lines. Usually, when two surveyors disagree on the survey location of a line, the parties resort to the legal system to make the final determination. This is usually referred to as "the battle of the surveyors."

Once a boundary line is created and identified, it maintains its legality and position even if the corners on its extremities become lost. This may be difficult to understand, but the law recognizes a boundary line as being a legal entity, and once it is created, as long as evidence of that line exists, the line is controlling.

On the other hand, although a true boundary is controlling, surveyors, in retracing these true boundaries, may consider it necessary and prudent to evaluate property boundaries. In many instances, the true boundary and the property boundary may be one and the same; that is, they are superimposed on each other. The fence line or hedge line between the two adjacent parcels is superimposed on the deed line that was surveyed on the ground. Yet common law and statute law of most states permit people to modify these deed boundaries through legal doctrines, some of which are centuries old. Although they may be referred to by different terms in different states, for the sake of identification we will call them agreement, estoppel, acquiescence, and adverse possession. These doctrines require a landowner to complete some act in order to perfect the change of the boundary. Changing a boundary through a riparian change must be through, or a result of, an act of nature.

2.3 CLASSIFICATION OF BOUNDARIES

When a surveyor or an attorney looks at a boundary or boundaries, he or she usually does not consider the magnitude of that boundary. One may be asked either to create or to retrace either a boundary of an entire parcel, a boundary of a portion of a larger parcel, or the entire boundary of a single small, minute parcel. The boundary may be composed of natural elements, artificial elements, words only, or a combination of the three.

As discussed in Chapter 1, all boundaries may be considered as either macro boundaries or micro boundaries. The distinction is not necessarily the manner in which the boundary was created, but what rights or interests were being separated and identified.

Since macro boundaries usually separate major interests, boundaries between nations, boundaries between political subdivisions of a nation, and major private or governmental and subdivisions may be placed in that category, Micro boundaries include smaller subdivisions within macro boundaries. Using this distinction, a boundary may be a macro as well as a micro boundary.

A township and range within a state may be a micro boundary within the state, but in relation to the respective sections identified within its boundaries, the township is a macro boundary for the respective sections (see Section 3.2).

The law of retracements may apply differently to township lines (macro) boundaries than it does to section lines (micro boundaries.) Then if a subdivision of homes (micro boundaries) is placed within the boundaries of the section (macro boundaries), entirely new rules of retracement apply. When there are conflicts between boundaries, the problem must be approached in an orderly and systematic manner, using logic, analysis, and experience to arrive at a possible and suitable solution.

Having classified boundaries as macro or micro, they may be classified further as to the authority for their creation into two broad categories as follows:

1. Rectangular

a. Created by federal statutes

b. Created by state statutes

c. Created by private entities

2. Metes and bounds

These categories are discussed in detail in later chapters. It will suffice at this time to recognize that the various methods of creation will give the practicing surveyor the understanding that the methods and laws by which boundaries are created affect the methods of retracement.

2.4 METHODS OF BOUNDARY CREATION

In looking at the fact that a boundary is an invisible legal division line between two interests or estates in land, one must look at both common law and statute law to determine how courts and legislative bodies have determined the various methods by which boundaries can be created. In applying the methods of boundary location, the surveyor can identify three methods by which the surveyor, the court, or a landowner can create a boundary. It should be remembered that one does not have to be a surveyor to create a boundary. Courts can adjudicate and dictate a boundary, two or more contiguous landowners can create mutual boundaries, a single landowner can create a boundary by personal actions, and surveyors can create boundaries by their actions.

For study purposes, boundaries can be determined or created as follows:

1. By action. This is the actual creation of a boundary on the ground by survey, by individuals, or by actions. Corners are created and identified, monuments established, notes made of the survey or actions; possibly, a plat will be prepared and lines marked on the ground. These actions are then incorporated into the resulting descriptions.

2. By words. Exterior and interior boundaries of tracts may be created by words. A deed describing "the south 1/4" or "the north 10 acres" creates boundaries, as does a metes and bounds description having courses (bearings and distances) and corners. A major problem is that a "south 1/4" description has no calls for monumented corners. If the description is a result of a survey, original lines are created and the surveyor is an original surveyor. If it is a result of a words-only description, there is no original surveyor, only a first surveyor who locates the lines described from the words, and as such, this survey is always subject to future collateral attack.

3. By law

a. Statute law.]

Continues...


Excerpted from Brown's Boundary Control and Legal Principles by Walter G. Robillard Donald A. Wilson Curtis M. Brown Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

PREFACE TO THE SEVENTH EDITION xvii

ACKNOWLEDGMENTS xix

CHAPTER 1 HISTORY AND CONCEPT OF BOUNDARIES 1

1.1 Introduction 1

1.2 Significance of Boundaries 3

1.3 Boundary References 4

1.4 Terminus: The God (or Goddess) of Boundaries 6

1.5 Disputes and Boundaries 7

1.6 Role of the Surveyor in Boundaries 9

1.7 What Is Being Created? What Is Being Located? 13

1.8 Original Written Title 15

1.9 Rights and Interests in Land Are Composed of a Bundle of Rights 16

1.10 Role of the Court 19

1.11 Real and Personal Property 20

1.12 What Constitutes Real Property 21

1.13 Nature of Modern Estates 24

1.14 Taxes on Land and Tax Maps 25

1.15 Easements and Licenses 25

1.16 Servitudes, Restrictions, Covenants, and Conditions 29

1.17 Actions on Boundaries and Easements 30

1.18 One Unique Parcel or Boundary 31

1.19 The Original Boundaries Are Sacred 31

1.20 Conclusions 32

CHAPTER 2 HOW BOUNDARIES ARE CREATED 35

2.1 Introduction 35

2.2 Definitions 36

2.3 Classification of Boundaries 39

2.4 Methods of Boundary Creation 40

2.5 Who May Create Boundaries? 43

2.6 Sanctity of the Original Survey 47

2.7 Original Lines Remain Fixed 47

2.8 Distinctions between the Original Boundary Survey, the Retracement Survey, and the First Survey 48

2.9 Original Technological Methods of Boundary Creation Not Relatable to Modern Methods 49

2.10 Original Lines May Be Redescribed As a Result of a Retracement 50

2.11 Conclusions 50

CHAPTER 3 OWNERSHIP, TRANSFER, AND DESCRIPTION OF REAL PROPERTY AND ACCOMPANYING RIGHTS 53

3.1 Concepts of Boundaries, Land Ownership, and Land Descriptions 53

3.2 Overview of Boundaries 55

3.3 Public and Private Lands 58

3.4 Sources of Title 59

3.5 Voluntary Transfer of Real Property 60

3.6 Chain of Title 60

3.7 Torrens Title System 61

3.8 Unwritten Rights or Title to Land 62

3.9 Methods of Voluntary Transfer of Title 63

3.10 Deed or Description 64

3.11 Title or Lien 65

3.12 Deed of Trust 65

3.13 Mortgage 65

3.14 Escrow 66

3.15 Title Assurance and Title Insurance 66

3.16 Abstractors 67

3.17 Attorney’s Opinion 68

3.18 General Land Descriptions 68

3.19 What Is in a Description? 68

3.20 Measurements 69

3.21 Magnetic Directions 74

3.22 Reference Datums 75

3.23 Elements of Land Descriptions 77

3.24 Types of Descriptions 77

3.25 Conclusions 80

CHAPTER 4 BOUNDARIES, LAW, AND RELATED PRESUMPTIONS 81

4.1 Introduction 81

4.2 Constitutional Law and the Surveyor 82

4.3 Jurisdiction 83

4.4 Federal Jurisdiction 83

4.5 Federal Government, Agency, or Officer as a Party 84

4.6 Sovereign Immunity 84

4.7 United States as a Defendant 85

4.8 Disposing of Federal Lands 85

4.9 Color of Title Act 85

4.10 Public Law 120 86

4.11 Small Tracts Act 86

4.12 Researching the Laws 86

4.13 Court Reports 87

4.14 Legal Research 88

4.15 Judicial Notice 89

4.16 Evidence 90

4.17 Presumptions 92

4.18 Common Presumptions 93

4.19 Survey Systems Present in the United States 94

4.20 Conclusions 97

CHAPTER 5 CREATION AND INTERPRETATION OF METES AND BOUNDS AND OTHER NONSECTIONALIZED DESCRIPTIONS 99

5.1 Introduction 99

5.2 Methods of Creating Metes and Bounds or Nonsectionalized Descriptions 103

5.3 Metes Descriptions 103

5.4 Bounds Descriptions 106

5.5 Combination Metes and Bounds Descriptions 107

5.6 Strip Descriptions and Stationing 108

5.7 Descriptions by Reference 109

5.8 Aliquot Descriptions 109

5.9 Other Means of Creating Boundaries in Descriptions 111

5.10 Nomenclature in Metes and Bounds Descriptions 113

5.11 Adjoiners 121

5.12 Deed Terms for Curves 121

5.13 Lines and Their Elements 123

5.14 Tax Descriptions and Abbreviated Descriptions 130

5.15 Subdivision Descriptions 132

5.16 Parcels Created by Protraction 134

5.17 Features of Platting Acts 134

5.18 Writing Land Descriptions 135

5.19 Early Surveys 135

5.20 Priority of Calls in Metes and Bounds Surveys 138

5.21 Applying Priority Calls 139

5.22 Conclusions 141

CHAPTER 6 CREATION AND RETRACEMENT OF GLO BOUNDARIES 143

6.1 Introduction 143

6.2 Original Surveys and Corrective Surveys 146

6.3 Law, Manuals, and Special Instructions 146

6.4 Effect of Manuals on Resurveys 147

6.5 History of the Public Land Survey System 148

6.6 Testing Ground: The Seven Ranges 149

6.7 Act of May 18, 1796—Clarification of 1785 154

6.8 Acts of 1800 156

6.9 1803—The System Explodes 159

6.10 Act of March 26, 1804 160

6.11 Act of February 11, 1805 160

6.12 Land Surveys after 1805 163

6.13 Survey Instructions 164

6.14 State Instructions and Statutes 169

6.15 Instruments Used 177

6.16 Field Notes 179

6.17 Nomenclature for Sections 179

6.18 Meandering 179

6.19 Resurveys and Retracements 179

6.20 Defective Boundaries Encountered in Resurveys 181

6.21 Sectionalized Surveys and Innovations 182

6.22 Irregular Original Government Subdivisions 182

6.23 Townships Other Than Regular 182

6.24 Summary of the GLO System 184

CHAPTER 7 FEDERAL AND STATE NONSECTIONALIZED LAND SURVEYS 188

7.1 Introduction 188

7.2 Early New England and Other Colonial-Era Surveys 189

7.3 Ohio Company of Associates 192

7.4 Donation Tract 193

7.5 Symmes Purchase 193

7.6 Virginia Military District 194

7.7 United States Military Tract 195

7.8 Connecticut Western Reserve and Firelands 195

7.9 Moravian Tracts 196

7.10 Florida Keys Survey 196

7.11 Donation Land Claims 197

7.12 Exchange Surveys and Their Status 197

7.13 Prior Land Grants from Foreign Governments 197

7.14 French Grants in the Louisiana Purchase 198

7.15 Mississippi Townships 202

7.16 Soldier’s Additional Homestead 203

7.17 Indian Allotment Surveys 203

7.18 National Forest Homestead Entry 203

7.19 Tennessee Townships 203

7.20 Florida: Forbes Company Purchase Surveys 205

7.21 Georgia Lot System 206

Surveys in the Noncontinental United States 210

7.22 General Comments 210

7.23 Hawaiian Land Laws 210

7.24 Puerto Rican Land Surveys 213

7.25 Federal Mineral Surveys: General Comments 216

7.26 Water and Mineral Right Laws 216

7.27 Land Open to Appropriation of Minerals 217

7.28 Veins, Lodes, or Ledges 217

7.29 Extralateral and Intralimital Rights 218

7.30 Mill Sites 220

7.31 Tunnel Locations 220

7.32 Size of Claims 220

7.33 Discovery 221

7.34 Locations 221

7.35 Possession 222

7.36 Annual Expenditures 222

7.37 Requirements for Patent 222

7.38 United States Mineral Surveyors 223

7.39 Survey of the Claim 223

7.40 Conclusions 224

CHAPTER 8 LOCATING EASEMENTS AND REVERSIONS 226

8.1 Introduction 226

8.2 Rights Granted 229

8.3 Fee Title or Easement Right 232

8.4 Three Easement Descriptions and Three Boundaries 233

8.5 Ownership of the Bed of Easements 233

8.6 Surveyor’s Responsibility as to Easements 233

8.7 Requirements for Locating Easements 234

8.8 Centerline Presumption 235

8.9 Conveyances with Private Way Boundaries 236

8.10 Use of Easements 237

8.11 Revival of Public Easements 237

8.12 Creation of Easement Boundaries 237

8.13 Dividing Private Street Ownership 240

8.14 Words Used in Centerline Conveyances 241

8.15 Apportioning Reversion Rights 241

8.16 General Principle of Reversion 242

8.17 Reversion Rights of a Lot on a Curved Street 243

8.18 Lots Adjoining Two Subdivision Boundaries 244

8.19 Lots at an Angle Point in a Road 245

8.20 Indeterminate Situations 246

8.21 Exceptions to the Rules of Apportionment 247

8.22 Describing Vacated Streets and Easements 248

8.23 Litigating Easements 250

8.24 Conclusions 250

CHAPTER 9 RIPARIAN AND LITTORAL BOUNDARIES 252

9.1 Introduction 252

9.2 Ownership of the Seas 256

9.3 Ownership of the U.S. Territorial Sea 256

9.4 Ownership of Interior Tidal Waters of the United States 258

9.5 Landward Boundary of Tidal Waters 259

9.6 Ownership of Nontidal Navigable Waters 262

9.7 Landward Boundaries of Nontidal Waters 263

9.8 Significance of Public Land Survey Meander Lines 264

9.9 Ownership of Non–Publicly Owned Submerged Lands 266

9.10 Swamp and Overflowed Lands 267

9.11 Navigational Servitude 268

9.12 Public Regulation of Riparian and Littoral Lands 268

9.13 Shoreline Changes and Water Boundaries 270

9.14 Apportionment of Riparian and Littoral Rights 272

9.15 Emergent or Omitted Islands 277

9.16 Water Boundaries other Than Sea 277

9.17 Major Recognized Areas 278

9.18 Conclusions and Recommendations 278

CHAPTER 10 RETRACING AND “RESURVEYING” SECTIONALIZED LANDS 281

10.1 Introduction 281

10.2 Areas of Authority 286

10.3 Resurvey or Retracement 287

10.4 Types of Surveys and Resurveys 288

10.5 Court of Proper Jurisdiction 290

10.6 Federal Patents 291

10.7 Intent of the Government 291

10.8 Senior Rights 291

10.9 Following the Footsteps 292

10.10 Lines Marked and Surveyed 293

10.11 Original Corners 293

10.12 Original Field Notes and Plats 294

10.13 Closing Corners 296

10.14 Identification of Corners and Lines 296

10.15 Monuments and Their Identification 297

10.16 Evidence of Corners 298

10.17 Use of Testimony in Boundaries 299

10.18 Common Usage 300

10.19 Using Recorded Information to Locate Original Lines 301

10.20 Proportioning: The Last Resort 301

10.21 Relocating Lost Corners 302

10.22 Proportionate Measure or Proration 303

10.23 Single Proportionate Measurement 304

10.24 Double Proportionate Measurement 305

10.25 Restoration of Lost Standard Corners on Standard Parallels, Correction Lines, and Baselines 306

10.26 Restoration of Lost Township Corners on Principal Meridians and Guide Meridians 307

10.27 Restoration of Lost Township and Section Corners Originally Established with Cross-Ties in Four Directions 307

10.28 Restoration of Lost Corners along Township Lines 308

10.29 Restoration of Lost Township and Section Corners Where the Line Was Not Established in One Direction 308

10.30 Restoration of Lost Corners Where the Intersecting Lines Have Been Established in Only Two Directions 309

10.31 Restoration of Quarter-Section Corners in Regular Sections 310

10.32 Restoration of Quarter-Section Corners Where Only Part of a Section Was Surveyed Originally 310

10.33 Restoration of a Closing Section Corner on a Standard Parallel 311

10.34 Restoration of a Lost North Quarter Corner in a Closing Section 312

10.35 Restoration of Lost Nonriparian Meander Corners 313

10.36 Restoration of Riparian Meander Lines 314

10.37 Restoration of Nonriparian Meander Lines 314

10.38 Restoration of Irregular Exteriors 315

10.39 Lost Corner Restoration Methods 315

10.40 Resurvey Instructions Issued in 1879 and 1883 316

10.41 Half-Mile Posts in Florida and Alabama 317

Subdivision of Sections 317

10.42 General Comments 317

10.43 Subdivision by Protraction 318

10.44 Establishing the North Quarter Corner of Closing Sections on a Standard Parallel and Other Quarter
Corners Not Originally Set 318

10.45 Establishment of Centerlines and Center Quarter Corners 320

10.46 Establishment of Quarter-Quarter Section Lines and Corners 321

10.47 Fractional Sections Centerline 322

10.48 Senior Right of Lines 322

10.49 Gross Errors and Erroneously Omitted Areas 323

10.50 Relocating Corners from Other Townships or from Interior Corners 325

10.51 Procedures for Conducting Retracements 325

10.52 Interpretation of Aliquot Descriptions 327

10.53 According to the Government Measure 329

Differences Between State and Federal Interpretations 329

10.54 Applying State Laws 329

10.55 Topography 330

10.56 Boundaries by Area 330

10.57 Establishing Corners 331

10.58 Sections Created under State Jurisdiction 332

10.59 Presumptions and Realities for GLO Surveys 333

10.60 Conclusions 335

CHAPTER 11 LOCATING SEQUENTIAL CONVEYANCES 337

11.1 Introduction 337

11.2 Definition of Sequential Conveyances 340

11.3 Simultaneous Conveyances 341

11.4 Possession 342

11.5 Sequential Patents 342

11.6 Importance of Knowledge 342

11.7 Junior and Senior Rights between Private Parties 343

11.8 Deeds Must Be in Writing and Deemed to Be Whole 344

11.9 Direction of the Survey 345

11.10 Terms of the Deed 345

11.11 Call for a Plat 346

11.12 Informative and Controlling Terms 346

Order of Importance of Conflicting Title Elements 347

11.13 General Comments 347

11.14 Senior Rights 349

11.15 Call for an Adjoiner 350

11.16 Written Intentions of the Parties to the Deed 350

11.17 Aids to Interpret the Intent of a Deed 352

11.18 Control of Unwritten Title Lines 352

11.19 Lines Marked and Surveyed 353

11.20 Corner Definitions 355

11.21 Control of Monuments 355

11.22 Control between Conflicting Monuments 357

11.23 Explanation of the Principles 358

11.24 Importance of the Word “To” 362

11.25 Dignity of Record Monuments 362

11.26 Control Point of a Monument 363

11.27 Uncalled-For Monuments 363

11.28 Error or Mistake in a Description 364

11.29 Control of Bearing and Distance 365

11.30 Control of Either Bearing or Distance 365

11.31 Distribution of Errors in Several Boundary Lines 368

11.32 Cardinal Directions 369

11.33 Unrestricted General Terms 370

11.34 Direction of Survey 371

11.35 Area or Surface 371

11.36 Point of Beginning 372

11.37 Construed Most Strongly against Grantor 372

11.38 Errors and Ambiguous Terms 373

11.39 Coordinates 374

11.40 Direct Line Measurement 374

11.41 Treatment of Curves 375

11.42 First Stated Conditions 376

11.43 Written and Character Numbers 376

11.44 Unit Implied 376

11.45 Feet and Inches 376

11.46 General and Particular Provisions 377

Basis of Bearings 378

11.47 Deflection Method versus Compass Bearings 378

11.48 Summary, Interpretation of the Principles, and Conclusion 381

CHAPTER 12 LOCATING SIMULTANEOUSLY CREATED BOUNDARIES 386

12.1 Introduction 386

12.2 Defining Subdivisions 389

Subdivision Boundaries and Corners 390

12.3 Aliquot Part Subdivision 390

12.4 Controlling Boundaries 391

12.5 Subdivision Macro Boundary Wrongly Monumented 393

12.6 Subdivision Boundaries Incorrectly Described 393

Conflicting Elements in Descriptions 394

12.7 General Comments 394

12.8 Original Method of Creating Lots 394

12.9 Intention of the Parties 394

12.10 Finality of Original Lines 395

12.11 Control of Original Monuments within Subdivision Boundaries 396

12.12 Title Monuments 398

12.13 Control of Monuments Over Plats 398

12.14 Certainty of Monument Identification 398

12.15 Record Description of Monuments 399

12.16 Principles for Presumed Control Between Conflicting Monuments within Subdivisions 399

12.17 Explaining Principles 400

12.18 Introduction to Proportioning 404

Establishment of Streets 405

12.19 General Comments 405

12.20 Establishment of Streets by Natural Monuments 405

12.21 Establishment of Streets and Alleys by Artificial Monuments and Lines Actually Run at the Time of Making the Plat 405

12.22 Establishment of Streets by Improvements 407

12.23 Establishment of Streets by the Line of a Nearby Street 408

12.24 Establishment of Streets by Plat 409

12.25 Establishment of Streets Where Width Is Not Given 410

12.26 Establishment of Streets by City Engineers’ Monuments 410

Establishment of Lots within Subdivisions 412

12.27 Effect of Mathematical Error 412

12.28 Excess or Deficiency 413

12.29 Proration: A Rule of Last Resort 413

12.30 Excess or Deficiency Confined to a Block 414

12.31 Excess or Deficiency Distribution within Blocks 415

12.32 Single Proportionate Measure 415

12.33 Single Proportionate Measure on Curves 416

12.34 Distribution of Excess and Deficiency Beyond a Monument 418

12.35 Establishment of Lots Where the End Lot Measurement Is Not Given 419

12.36 Remnant Principle 419

12.37 Establishment of Lots Where No Lot measurement Is Given 424

12.38 Establishment of Lots with Area Only Given 424

12.39 New York Rule For Establishment of Lots 424

12.40 Summary of Proration Rules 428

12.41 Establishment of Lots Adjoining Subdivision Boundaries 428

12.42 Establishment of Lots Adjoining a Subdivision Correctly Established 429

12.43 Establishment of Lots Overlapping the True Subdivision Boundaries 429

12.44 Establishment of Lots Not Touching the True Boundary of the Subdivision 430

12.45 Proration of Excess and Deficiency in Blocks Closing on Subdivision Boundaries 431

12.46 Locating Lots from Boundary Lines 432

12.47 Obliterated and Lost Subdivisions 432

Proceedings in Partition 433

12.48 General Comments 433

12.49 Establishment of Lines Determined by Proceedings in Partition 433

12.50 Establishment of Boundaries of Allottees of Wills 434

12.51 Deed Divisions 434

12.52 Comments 434

CHAPTER 13 LOCATING COMBINATION DESCRIPTIONS AND CONVEYANCES 436

13.1 Introduction 436

“Of” Descriptions 438

13.2 “Of,” “In,” and “At” Descriptions within Subdivisions and Adjoining Streets 438

13.3 “Of” Descriptions within Metes and Bounds Descriptions and Adjoining Streets 440

13.4 Direction of Measurement 443

13.5 Proportional “Of” Conveyance 444

13.6 Exception by One-Half by Area 445

13.7 Indeterminate Proportional Conveyances 445

13.8 Angular Direction of the Dividing Line in “Of” Descriptions 446

13.9 Acreage “Of” Descriptions 449

13.10 Ambiguity 450

Overlaps and Gaps 454

13.11 Calls from Two Directions 454

Establishment of Property Described by Both Metes and Bounds and Subdivision Descriptions 454

13.12 Double Descriptions 454

13.13 New York Double Descriptions 455

13.14 Natural Phenomena and Boundaries 455

13.15 Recognition of Past Events 460

CHAPTER 14 ROLE OF THE SURVEYOR 462

14.1 Introduction 462

14.2 Function of the Surveyor 464

14.3 Opinions of Fact and Applications of Law 464

14.4 Establishment of Boundaries 466

14.5 Establishment in Louisiana 467

Private Surveys 467

14.6 Responsibility and Authority of the Surveyor 467

14.7 Basis of a Boundary Survey 468

14.8 How Much Research? 469

14.9 Ownership 470

14.10 Encroachments 470

14.11 Searching for Monuments 471

14.12 Possession Marking Original Survey Lines 472

14.13 Evidence 472

14.14 Setting Monuments 473

14.15 Plats 473

14.16 Liability 474

14.17 Conclusion 475

CHAPTER 15 THE ETHICS AND MORAL RESPONSIBILITIES OF BOUNDARY CREATION AND OF RETRACEMENTS 478

15.1 Introduction 478

15.2 The Philosophy of Boundaries 479

15.3 Applying the Principles to Creating and Retracing

Boundaries 480

15.4 Final Comments 486

GLOSSARY OF TERMS 489

INDEX 515

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