Surveying and the Law - Kentucky Association of Professional

Report
Surveying and
the Law
Tom Clayborn, PLS
2013 President of the Kentucky
Association of Professional Surveyors
What Does a Professional Land
Surveyor Do?
The Professional Land Surveyor is
the only profession that is license
to protect the property rights of
the public.
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;
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; and
i. Certification of documents;
A land Surveyor re-establishes
previously described lines.
How does the Land Surveyor reestablishes previously described
lines?
Is re-establishing previously
described line or lines just a math
problem ?
A land surveyor uses multiple
methods in determining where
boundary lines are.
Sometimes it is just a math
problem.
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.
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.
Typical legal description
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;
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;
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;
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.
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.
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.
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.
However,
Lets look at the
Law;
We need to examine the first call
in the deed.
Hensley v. Lewis
128 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;
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.
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.
Adjoining or adjacent landowner
calls in a description are viewed as
monument calls, (Brasher v. Tanner,
256 Ga. 812 SE 2d 478).
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.
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.
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.
The Professional Land surveyor
knows that the boundary line will
run between the two oak trees and
not the fence.
Phipps v. Phipps
233 SW 2d 112, 313 Ky. 592
Courses and distances as set forth
in a deed to land must give way to
established natural objects.
The Surveyor now examines the
line running along the branch.
The Professional Surveyor knows
the line will run down the middle
of the creek.
City of Hazard v. Eversole,
35 S.W. 2d 313, 237 Ky. 242
Deed calling for the meanders of a
branch includes land up to the
center of the branch.
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.
The Professional Land Surveyor
knows that the west line will run
down the center of the branch no
matter where the monuments are.
Mullins v, Hale 342 S.W. 2d 541
A 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.
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.
There is an order of importance
that a surveyor looks at in any
description.
Metropolitan Life Ins. Co. v.
Hoskins
117 S.W. 2d 180, 273 Ky. 563
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.
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.
The Professional land Surveyor
needs to know what the courts
have said about boundary
location.
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.
Per the Professional Land Surveyors
Standards of Practice
201 KAR 18:150
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
The Surveyor must know the law
and be diligent to report the facts
on his or her plat.
Clark, et al v. CSX Transportation, Inc.
No. 29A02-9902-CV-139
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.
CSX conveyed to telecommunication
companies easements along their
railroad corridor to lay their
communication lines.
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.
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.
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.
Lets look at Two different Railroad
documents.
Fee Title ?
This conveyance is a General Warranty
and appears to a Fee Title Transfer.
Railroad Grant ?
Railroad if ceases to exist reverts back
to the land owner. This is a easement
grant for the railroad.
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.
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.
Where can you find Boundary
case law for Kentucky?
Case Law for Land Boundary Issues
The Case Law Book can be
purchased from the KAPS website
found at:
http://www.kaps1.com/
for $65
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

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