Original Monuments and Original Surveyor

Original: occurring first; that which precedes all others. The New American Webster Handy College Dictionary

 

Survey: The process by which a parcel of land is measured and its boundaries and contents ascertained. Black's Law Dictionary, Fifth Edition

Generally, when a surveyor plats property, the required plat monuments are to be in the ground at the time of the recording of the plat, or, as in Minnesota, the surveyor has up to one year (with approval of the platting authority) before placing any of the required plat monuments. In either case, if the required monuments are not in the ground at the specified time, the surveyor is in violation of the law. But what if another surveyor placed his or her monuments at the required locations before the platting surveyor placed them? Which is the original monument and who is the original surveyor?

I believe we first need to look at some background information before attempting to answer these questions. We should review why property is monumented, the history of platting, reasons why surveys do not get monumented or why monumentation is delayed, and what it means to "survey."

Why Do We Mark our Boundaries?

By nature, humans are possessive creatures. We like to mark what we own or what we think is ours. Throughout history we find references to land boundary markers. Whether it is a marked stone, a series of stones stacked together like Hadrian's Wall or a wooden post set by the U.S. Deputy Surveyors, all of these are items placed to let the world, or your neighbor, know the limits of your claim.

There are literally hundreds of cases in which the controlling element in a boundary dispute is the location of the original monument. According to Turnbull v. Schroeder (29 Minn.49, 11 N.W. 147), "It is a settled principle in the construction of conveyances, where any uncertainty arises as to the location, boundaries, or extent of the land conveyed, that courses and distances must yield to monuments established on the land itself." This basic premise makes the whole Public Land Survey System, and private subdivisions, work. The principle is reflected in the Land Act of February 11, 1805, and the second general rule in the 1973 Manual of Surveying Instructions. The courts give physical evidence relating to the original position of a corner much greater weight than courses and distances. "The law provides that the original corners established during the process of the survey shall forever remain fixed in position, even disregarding technical errors…" 1973 Manual (p. 105).

There are several reasons for this universally accepted concept. One reason is that technical errors and differences in measurements could relocate property with every re-survey if monuments did not control boundary location. Another reason is public notice. If there is no physical evidence marking the boundaries or lines, people will not "know" where the line is. According to Thornburg v. Chase (606 SW.2d 672), "The reason why a monument or adjacent line is ordinarily given preference over courses and distances is that the parties so presumed to have examined the property have, in viewing the premises, taken note of the monument or line." If public notice were not such an important element, we would not be able to rely on the testimony of an individual who noted the location of a line or monument. Yet testimony is one of the retracement tools used to differentiate between an obliterated and a lost corner. According to Rowell v. Weinemann (119 Iowa 256), "In determining where they [government corners] were we may consider not only the testimony of those who saw and identified them when they were discernible, but evidence of practical location made at a time when they (the monuments) were presumably in existence."

These physical marks on the ground also give public notice as to the intent of the conveyance. Brown's Boundary Control and Legal Principles states, "If an owner incurs the expense of a survey and then describes lands in accordance with the lines laid out, it can only be presumed that he intended to convey to the lines delineated upon the ground and not to erroneous informative calls for bearings and distances. Measurements taken upon the ground are aids to locate where the lines are if lost; but the lines themselves, when identified upon the ground, represent the original lines intended for the conveyance and are controlling for that conveyance survey" (p. 265).

Platting History

The U.S. Deputy Surveyors surveyed Minnesota during the 1840s and continued through the early 1900s. Minnesota joined the Union as the 32nd state on May 11, 1858. Chapter 31 of the 1851 Revised Statutes (Territorial) is entitled "Of Recording Town Plots." Section 3 dictates that "at the time of surveying and laying the same, plant and fix at a corner of the public ground, or at the corner of a public lot, if any there be, and if there be none, then at the corner of some one of the in lots in the town, and at the corner of each out lot a good and sufficient stone of such size and dimensions, and in such manner as the surveyor shall direct for a corner, from which to make future surveys; and the point or points where the same may be found, shall be designated on the plot or map." (emphasis added)

This premise follows through until 1907, when the plat monumentation requirements became more specific. "At least three iron or stone monuments shall be placed at some corners in the ground, in such way that the lines between said monuments form two or more base lines from which to make future surveys."(emphasis added) The next change occurred in 1959. "Durable iron monuments shall be set at each angle and curve point on the outside boundary lines of the plat and at all block corners and at all intermediate points on the block lines indicating a change of direction in the lines. The plat shall indicate that the monuments have been set." I imagine that most states have similar platting histories.

Minnesota, however, changed its platting law in 1992 to the effect that no plat monument needs to be in the ground for up to one year after the recording of the plat.

Why not Monument?

The main reason given to delay the monumenting of a survey is that of the bulldozer. The timing for the financing, building and government approval processes for developing property rarely coincide. Many platting authorities may not allow any site improvements, like grading for streets, to occur until the plat is recorded. Unfortunately, the lath marking the monuments are seen as targets for the construction crews and not slalom flags to avoid. The possibility of the monument being disturbed or removed would be minimal if the monumenting of subdivision were delayed until the grading was completed. This would also be a cost savings to the developer because the subdivision would not have to be staked more than once. Another purported reason for the delay, at least in the northern parts of the country when cold weather restricts vigorous construction, is to keep survey crews busy placing the monuments during the winter instead of being laid off.

All of our plats and surveys have a statement that basically says, "I hereby certify that I have surveyed this property." According to the definition at the beginning of this article, that means that the property was somehow measured. Is the property, the real estate, being measured if its legal description dimensions are just drawn to scale on a piece of paper? Does it imply that a person physically stood on the corners of the property and used some kind of tool to determine the distance and direction between them?

According to Turnbull v. Schroeder, supra., "The actual survey on the land, so far as it relates to the size and locality of the lots, is the principal thing, and the plat simply a delineation of it on paper; and if in making such survey, stakes are fixed at the corners of the lots, they become monuments…the grant of a lot according to a plat so purporting to be a delineation of a survey, indicates a reference to the monuments fixed in making the survey … the words ‘as surveyed by me' in the surveyor's certificate, indicate a reference to the monuments fixed by him in making the survey." This case implies that a surveyor has not actually surveyed a property until he or she has set the monuments or marked the lines.

Court case after court case declare that in a resurvey, the surveyor's primary goal is to "follow the footsteps of the original surveyor." In other words, resurveys must reestablish the lines run by the original surveyor by using the notes and other writings to locate what was marked on the ground. "The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them" (Wacker v. Price, No. 5114 Supreme Court of Arizona. 216 P.2d 707). This is an important concept because monuments rank higher in the evidentiary ladder than courses and distances and are better proof of the intent of the conveyance. "[The] description and [the] plat is a symbolic representation of something which has been physically marked out on the surface of the earth. The actual physical markings and location by monument or otherwise is the primary thing. It locates the land. The map or plat is secondary to this purporting to symbolically represent that which has been physically located" (Sellman v. Schaaf, 269 N.E.2d 60, 26 Ohio App.2d 35).

Back to the Question

In metropolitan areas, many platting authorities require a certificate of survey showing the boundary and the proposed building location on the lot before construction begins. It is getting to be a rare case when the platting surveyor stakes all the buildings in a development. Generally, there are numerous builders within a development, and generally, each builder has a survey firm with whom it likes to work.

Suppose for a minute that, for whatever reason, the recorded survey is not monumented—there are no monuments set within or along the plat boundary from the platting surveyor. You are hired to stake a building within the subdivision. You are not the platting surveyor. You have several options to consider. If the platting surveyor is in violation of the law, you are obligated to report the situation. But that does not get the building staked today. So, I believe, you have basically four options.

1. Advise your client that there is no monumentation and to call the platting surveyor to stake the lot and building because he or she has knowledge of the survey control in the area.

2. Call the platting surveyor and ask him or her to come out and stake the lot so you can stake the building. His or her time schedule may or may not fit into your time schedule. (How efficient is it for the platting surveyor to send a crew out to a subdivision of let's say 20 lots, even 10 different times to stake individual lots for building stakings? Add the drive time, set-up time, and staking time together, multiply by the crew charge, and multiply by 10. How cost effective is that for the developer?)

3. Call the platting surveyor and get some of his or her control within or near the plat. Typically, the preferred method to collect features or stake lot corners is to use points in a highly visible area to collect or stake as much information as possible using as few set-ups as possible. Generally, these do not coincide with lot corners. However, if you base your survey on these radial control points rather than a monument indicated on the plat and your survey is contested, you cannot say that you established your survey from found record monuments. This may not hold as much weight in court against other evidence. This option ties into option four.

4. Reestablish the boundary of the plat from the description on the plat and work your way to the particular lot and set your own monuments with your identification on it. Now, I believe, you are the original surveyor. Remember the definition of original: "occurring first; that which precedes all others." You are not the platting surveyor, but you are the first one surveying and marking boundaries in the lot. You are not resurveying the platting surveyor's survey because he or she never left any monuments "from which to make future surveys," and according to Turnbull v. Schroeder, he or she has not surveyed the property. There is no physical evidence of an original line marked because you are the first one marking the line.

If you choose either option three or four and set your own monuments, and the platting surveyor comes in at a later date to stake the plat and finds your monuments, by law he or she cannot remove them. If perchance your monuments are not within tolerance of where the platting surveyor would have put the monuments, does he or she have to use your monuments as control for the surrounding lots? He or she may be the platting surveyor but not the original surveyor. Now the platting surveyor has to deal with found monumentation, to which courses and distances must yield.

Hubs or Lath as Monuments

What if the platting surveyor chooses to place hubs or lath at the intended monument location until the grading is complete? Today, the hub or lath would be questioned at the statutory level because it might not be considered "durable," and it probably would not have the surveyor's identification on it—both of which are required elements of plat monuments. Because of this, I do not believe that hubs or laths could be considered found monuments. (Is the developer saving any money by having the surveyor first set hubs and then come back to set monuments? Maybe in material costs but probably not in crew time. The crew is still staking the lot more than once.)

Imagine your quandary if the platting surveyor did not monument any of the subdivision before other surveyors came and staked individual lots, and you come in to stake a lot and things are not fitting. Are you going to have to find out who was the first surveyor in the subdivision before you can start piecing things together? Improvements probably have already been made to the properties based on the erroneously placed monuments. Do the platting surveyor's monuments have more evidentiary weight even if they came in after other surveyors' monuments?

I have just provided some issues to ponder when you sign a plat certification stating that you have surveyed the property but you have not set any monuments. Ultimately, the questions raised in this article will be decided in court. Are you ready?


Lisa Skipton is a registered surveyor in Minnesota. She can be reached via e-mail at skipton@pro-ns.net

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