Presentation Transcript

1. Surveying and the Law

2. Tom Clayborn, PLS

   2013 President of the Kentucky Association of Professional Surveyors
3. What Does a Professional Land Surveyor Do?
4. The Professional Land Surveyor is the only profession that is license to protect the property rights of the public.
5. KRS 322.010 reads:(a) "Land surveying" shall include but not be limited to the following:1. Measuring and locating, establishing, or reestablishing lines, angles, elevations, natural and man-made features in the air, on the surface and immediate subsurface of the earth, within underground workings, and on the beds or surfaces of bodies of water involving the: a. Determination or establishment of the facts of size, shape, topography, and acreage; b. Establishment of photogrammetric and geodetic control that is published and used for the determination, monumentation, or description of property boundaries;c. Subdivision, division, and consolidation of lands;
6. d. Measurement of existing improvements, including condominiums, after construction and the preparation of plans depicting existing improvements, if the improvements are shown in relation to property boundaries;e. Layout of proposed improvements, if those improvements are to be referenced to property boundaries;f. Preparation of subdivision record plats;g. Determination of existing grades and elevations of roads and land; h. Creation and perpetuation of alignments related to maps, record plats, field note records, reports, property descriptions, and plans and drawings that represent them; andi. Certification of documents;
7. A land Surveyor re-establishes previously described lines.
8. How does the Land Surveyor re-establishes previously described lines?
9. Is re-establishing previously described line or lines just a math problem ?
10. A land surveyor uses multiple methods in determining where boundary lines are.Sometimes it is just a math problem.
11. Most of the time it is not a math solution the land surveyor uses to determine where a boundary line is.The land surveyor applies the law in most cases to determine his or her opinion on where the boundary line is located.
12. The Professional Land Surveyor duty is to follow in the footsteps of the original Land Surveyor and to re-trace the lines of the original land surveyor. The Re-tracement Land Surveyor is NOT there to fix the original survey, he is their to find the lines the original surveyor set in the field.
13. Typical legal description
14. Beginning at an iron on the right of way of Mercers public highway on the line of Timothy Bater’s line as described in Deed Book 163, page 205 and recorded in the Clerk’s Office of Johnson County, Kentucky;
15. Thence South 62 degrees 45 minutes 22 seconds East, a distance of 182.14 feet to an iron in a fence line of Sam Bell’s real estate; thence along said Bell’s line, South 12 degrees 18 minutes 48 seconds West a distance of 482.63 feet to a chestnut oak tree on Caylen’s branch;
16. Thence along the meander’s of the said branch North 75 degrees 20 minutes 15 seconds West a distance of 320.66 feet to a thorn tree on Andrew Ford’s line; thence along Ford’s line along a drain, North 37 degrees 32 minutes 18 seconds East a distance of 256.32 feet to an iron on the edge of the drain;
17. thence North 17 degrees 05 minutes 58 seconds West a distance of 206.19 feet to an iron on Mercer public highway; thence North 64 degrees 43 minutes 01 seconds a distance of 172.23 feet along the said highway to the Point of Beginning; containing 3.036 acres.
18. Now the Surveyor is hired to run the lines because the property owner wants to sell his property and needs a survey to show the buyer where the property lines are.
19. The surveyor finds 1-1/2inch iron pipes at points A, B, and E and he or she finds a 28” black locust tree at point D; the surveyor does his or her research finds that the property was split off from Timothy Bater’s property 25 years ago and was sold to Bater’s son, who then sold to our client 5 years ago and was originally surveyed by John Doe Surveys, Inc.
20. This should be a simple little survey, we have enough monuments we can re-establish all of the lines by doing a simple math solution.
21. However,Lets look at the Law;We need to examine the first call in the deed.
22. Hensley v. Lewis128 SW 2d 917 Ky. 510, 123 A.L.R. 537 Generally, the conveyance of land bordering on a public highway conveys title to the center of the highway subject to its use by the public, whether it is so expressed in the deed or not;
23. So by this the Professional Land Surveyor, does his or her research and can not find any conveyance document for the highway, the surveyor knows that the property should go to the center Mercer’s Public Highway, subject to the public rights to use the road.
24. The surveyor finds a 1-1/2” iron pipe on a barb wire fence that is strung along trees that runs to the creek. He gets a copy of Sam Bell’s deed and finds that his line calls to run along a line from a Pin Oak South 14 degrees West 30 poles to a black oak on the bank of a creek.
25. Adjoining or adjacent landowner calls in a description are viewed as monument calls, (Brasher v. Tanner, 256 Ga. 812 SE 2d 478).
26. A surveyor should examine all of the adjoining landowners deed descriptions to see if any gaps overlaps or uncertainties exist with the adjacent property owners, As well as junior and senior rights of the descriptions.
27. The surveyor finds a 36” pin oak with blaze marks on the west side of it 5 feet west of the iron on point B and the surveyor finds a black oak 15 feet west of the fence line with blaze marks on it on the bank of the creek.
28. The surveyor goes and knocks on the door of the neighbor, he tells the surveyor he bought the property from Samuel Bell 40 years ago and that the barb fence line was set by Mr. Bell to keep his cows in the field and that Mr. Bell told him he set the fence where it was convenient for him to string it on his property.
29. The Professional Land surveyor knows that the boundary line will run between the two oak trees and not the fence.
30. Phipps v. Phipps233 SW 2d 112, 313 Ky. 592Courses and distances as set forth in a deed to land must give way to established natural objects.
31. The Surveyor now examines the line running along the branch.The Professional Surveyor knows the line will run down the middle of the creek.
32. City of Hazard v. Eversole, 35 S.W. 2d 313, 237 Ky. 242Deed calling for the meanders of a branch includes land up to the center of the branch.
33. The land surveyor has done his or her research and has acquired the west adjoiners deed, the property is in the name of Andrew Ford Jr. who acquired the property from his Father Andrew Ford Sr. the description has never changed and the description calls for the line to run down a drain to a Branch.
34. The Professional Land Surveyor knows that the west line will run down the center of the branch no matter where the monuments are.
35. Mullins v, Hale 342 S.W. 2d 541A boundary described as at a tree on the lower side of a named branch, thence down the branch to the county road, must be taken as following meanders of branch and not as on a straight line from tree to road.
36. The Professional Surveyor finds that the property actually contains 3.31 acres not 3.036 acres called for in the deed. Should the surveyor be concerned.
37. There is an order of importance that a surveyor looks at in any description.
38. Metropolitan Life Ins. Co. v. Hoskins117 S.W. 2d 180, 273 Ky. 563
39. Generally, in determining boundaries natural and permanent monuments are the most satisfactory evidence and control all other means of description, and artificial marks, courses, distances, and area follow in order named, area being the weakest off all means of description.
40. The Professional Land Surveyor should inform and make a note on his or her plat that the lines running along the branch and ditch are not fixed boundary lines; these lines will move with the accretion and reliction of the water.
41. The Professional land Surveyor needs to know what the courts have said about boundary location.
42. He or She needs to know the Law and how it is applied.The Professional Land Surveyor is offering a Professional opinion as to where the boundary line is.A Professional land Surveyor can never determine what his or her client owns or the rights.
43. Per the Professional Land Surveyors Standards of Practice 201 KAR 18:150
44. Section 3 reads:(2) A Professional land surveyor shall not represent that:(a) A boundary survey determines land ownership; or(b) A boundary survey provides more than evidence of rights in land; or(c) Land ownership can be established by any survey
45. The Surveyor must know the law and be diligent to report the facts on his or her plat.
46. Clark, et al v. CSX Transportation, Inc.No. 29A02-9902-CV-139
47. What rights does the railroad have in the land they operate their railroad on.Understanding Conveyance documents and their rights is part of the duty that the surveyor should report.
48. CSX conveyed to telecommunication companies easements along their railroad corridor to lay their communication lines.
49. The problem is that CSX railroad refused to acknowledge the extinguishment of abandoned right-of ways, easements, grants or lesser interest along these old railroad corridors.
50. The court had ruled that the grant to the railroad was for an easement only and that the adjacent land owners contained the fee title to the land.The owner of an easement on real property can not grant another easement on top of their easement in most cases.
51. The Professional Land Surveyor should report what type of documents are used in the conveyance of lands.The Land Surveyor can not give a title opinion but can show the facts on the survey plat.
52. Lets look at Two different Railroad documents.
53. Fee Title ?
54. This conveyance is a General Warranty and appears to a Fee Title Transfer.
55. Railroad Grant ?
56. Railroad if ceases to exist reverts back to the land owner. This is a easement grant for the railroad.
57. The courts ruled that CSX did not have the right to convey easements along their railroad corridors that they did not have fee title to.
58. Rights and Title to land are of the up most importance to the public.The Professional Land Surveyor needs to be aware of the Courts decisions on property issues and apply them on their surveys.
59. Where can you find Boundary case law for Kentucky?
60. Case Law for Land Boundary Issues
61. The Case Law Book can be purchased from the KAPS website found at:http://www.kaps1.com/for $65
62. The Professional Land Surveyor examines many forms of evidence when determining their opinion on the boundary line location and the rights associated with real property and most of their decisions are based upon Case Law decisions and how it is applied.THANK YOU