Uncalled-for monuments are the bane of retracement surveyors everywhere. "Who placed this here and what did they know that I don’t?" The fact that there are probably more uncalled-for monuments in the ground than those called for is of little comfort to the surveyor forced to honor one because of the lack of alternative evidence.
But one species of "uncalled-for" monument deserves special discussion, for it is central to our practice, and yet largely overlooked in retracement discussions: our own traverse. I must note that when I write here of "called-for" monuments, I am using the term in its most narrow sense, that is, monuments expressly mentioned in a controlling grant. A somewhat less restrictive use of the term would be to include objects mentioned in writings other than the controlling grant, for instance junior grants or even the unrecorded writings of subsequent surveyors.
Subdivision Plats
A call for a plat is an implied call for the survey that resulted in that plat. In other words, without the underlying survey, the plat would be impotent, for as we discussed in the last installment, paper representations of physical positions depend on physical objects for reference and orientation. Someone wrote recently, "Monuments are the evidentiary link between theory (the record legal title) and reality (physical location)." Well put. But do our traverse stations qualify for the distinction?
Consider the following situation: surveyor A conducts a boundary survey in preparation for subdividing a tract of land. He traverses around the apparent perimeter of the site, locates the evidence available to him, and, in general, does a credible job in determining the location of the tract boundary. He then prepares and files for record a subdivision plat that creates 15 new lots. Perhaps on the plat he should call for the found monuments along the tract boundary, but he does not. (Perhaps the reviewing jurisdiction does not allow it.) In any event, the plat contains no reference to any monuments.
Some months later, the developer requests him to set the corners of Lot 7 as laid out on the plat. The question is, is he entitled to use his original traverse in that effort, or has retracement doctrine somehow superceded common custom?
The Correct Place
Some courts have ruled that uncalled-for monuments can be honored if they are found in the "correct" place. In a true retracement situation, of course, this proviso is of little use. One does not need to "honor" objects if one knows independently where the "correct place" is. However, the tenet does provide clues as to the standing of traverse stations. Mustn’t our traverse be in the "correct" place with respect to the new subdivision? If the subsequent work on the project was based on that control, as is typically the case, then the control must be an indispensable part of it.
The qualitative difference between the traverse and the subsequent measurements on the project essentially reinforces the value of primary measurements over secondary ones. All surveyors intuitively know that and accord deference to the traverse as a result. With few exceptions, the traverse is the most precise set of measurements on every project. It becomes the "mathematical skeleton" upon which the rest of the project is draped. Subdivisions are no exception. Therefore, the relationship between the traverse and the lot lines created as a result of it must be direct and irrevocable. It obviously qualifies, then, as competent evidence of the lot corner location.
Assume that some perimeter monuments are called for on the plat. Does that alter the traverse’s supremacy? I think not. In fact—and this will probably start a few arguments— one can argue that, with respect to interior subdivision lines only, our traverse stations constitute better evidence than perimeter monuments called as being found on the plat. Why? Because the position of found monuments (that is, their relation to the rest of the subdivision) depends on secondary measurements from our traverse—not the other way around. In contrast, with respect to the subdivision itself, our traverse was its basis and thus could not have any error of position. One need only reflect on common custom to verify the validity of the theory. When you are asked to stake a lot in one of your subdivisions, isn’t your first question, "Gee, I wonder if any of our traverse is left?"
There is a distinction between the subdivision boundary and the interior lot lines; correct retracement of the tract boundary must account for senior and junior rights, monuments called in earlier controlling grants and so forth. Thus, the monuments found along the perimeter of the tract may in fact be controlling for the tract outline. The distinction I draw here addresses the retracement of the interior subdivision lines only. For these younger lines, the most compelling evidence of where the "original footsteps" were must be the footsteps themselves—in other words, the traverse itself, whether called for on the plat or not.
Suppose next that Surveyor B is asked to set the corners of Lot 2. If Surveyor A would be correct in using his traverse for the effort, what must we conclude would be the best evidence for Surveyor B? Surveyor A’s traverse, of course. The best evidence is by definition the best, no matter who would be using it.
The Exception
Would the traverse take precedence over called-for monuments set at the lot corners? I don’t believe so. Explicit mention of a monument must be given deference because obviously it, too, would qualify as an original "footstep." Not so, however, for monuments at lot corners set by someone other than Surveyor A. In that case, the second surveyor conducts what is fundamentally a retracement—and as such, to the extent it deviates from the original survey, it must fail.
The subtleties that weave throughout retracement doctrine, such as the one discussed here, provide the spice that surveyors find so irresistible about the practice. We’ll discuss monuments further in columns to come.
Copyright © 1999 By Joel M. Leininger, LS