We are in for a special treat this month. Our case takes us to Section 2, Township 10, Range 7 of old T-Jeff’s original s.w.a.g. at peddling simultaneous title tiles. Yeah, “that” Range Seven as in the First Seven Ranges. Now before you “PLSSers” get too puppy humpy here, I gotta put on the daddy pants and spoil the party. There’s nothing rectangular about these parcels. In fact, they are indiscriminate metes and bounds tracts. But wait, that’s not all! The manual of instructions adopted by the court was neither blue nor federal. It is the Minimum Standards for Boundary Surveys provided by the Ohio State Board of Registration for Professional Engineers and Surveyors and encompassed in Ohio Administrative Code Chapter 4733-37. So now I quote with tongue in cheek from last month’s trip to Colorado in Gaines v. Sterling “that no state can make any rule or law providing for apportionment contrary to Acts of The Congress… except where Steelers and Bengals fans commingle, then all bets are off, per T-Jeff.”
First things first. We are reading an appellate level case. I believe there’s still one more step up to the Ohio Supreme Court. So don’t banty this thing around the chicken yard until you understand the difference.
I think the defendant started to offer a good test of law. He was first in line at the recorder’s desk and the description does not appear to have any patent errors. I’ll break his argument down with some color commentary from yours truly. “(Cochran) argued the court should only consider the most senior conveyance from the parent parcel in order to fix the boundary…” Solid gold baby and we all know senior rights are senior, right? You can stop right there Cochran, we get your point. Oh, wait, you have something to add? Continue on please “…and should not consider an iron pin placed by Neitzelt…” Well, I guess we might not if your senior right controls and the pin was set with the junior survey, but carry on anyway “…as monuments should only be relied upon when deeds have been analyzed and do not resolve the conflict.” Ummmm, would the defense consul care to climb back into its flying saucer and return to whatever the hell planet you came from? Honestly, I am not qualified to say if that legally helps or hurts but it sure does sound a little buck toothed and bow legged to be the prom queen at my high school. The argument is rounded out with Cochran urging the court “…to adopt the “senior rights theory” adopted in other states, including Michigan, Kentucky, and Maryland.” Really? Ohio houses twelve cadastral systems that are dependent on both sequential and simultaneous conveyances. I find it mystifying that from 1803 until 2016 there was no judicial recognition of a “senior rights” theory in Ohio. Especially considering that a large chunk of the state was indiscriminately subdivided by Virginians in colonial fashion. I’m not sure why Cochran felt the need to go “outa state” to prove his point but he did, so que sera sera. Here’s what the court threw back at the appellant and mind you I’ve rolled these all up into one bundle and used a triple asterisk as a delimiter. “As stated by the Ohio Supreme Court, it is well settled that monuments are of prime importance in settling boundary disputes…***Further, generally, in determining boundaries, natural and permanent monuments are the most satisfactory evidence and control all other means of description, in the absence of which the following calls are resorted to, and generally in the order stated: first, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance…***In Sellman, the (court) held that where (a survey) has been made by a certified surveyor and a plat is made and duly recorded, the boundary lines determined by original monuments will determine the boundaries of the respective lots irrespective of deviation from the course or distance as set forth in the plat…holding where a survey of a parcel of land has been made by a certified surveyor and a plat is made and duly recorded, the monuments placed or ascertained, and boundary lines established by such monuments in the survey, are thereafter controlling…***In making a resurvey it is the surveyor’s duty to relocate the original lines and corners at the places actually established and not to run independent new lines, even though the original lines were full of errors.” Oh, okay now I see why one might creatively look outside the box and play the millennial’s “Yeah but we’re special” card. And another thing, Michigan? C’mon, really? You know Chief Justice Cooley and Bo Schembechler are lurking in a corn field just north of Toledo waiting to kick this argument’s ass back across the state line.
Okay the devil is in the details here and both the common pleas/appellate courts did a fantastic job sorting out the actual boundary. The bottom line is that the original survey was for both parcels and conducted by the same surveyor at the same time under the authority of the same grantor. Physical evidence of the original grantor’s intent was readily identified by the same original monumentation. The court observed “In this case, the Neitzelt survey, made by a certified surveyor, established the boundaries of the properties via an original monument, an iron pin. The parties do not dispute the iron pin was placed on the boundary line by Neitzelt or that these boundaries have been followed since Neitzelt’s original survey. Thus, the boundary lines determined by the original monument, the iron pin, will determine the boundaries of the respective lots and it is the duty of a re-surveyor to relocate the original lines and corners at the places actually established and not to run independent new lines. Both the Taylor and Hamilton (1996) resurveys are in line with Ohio Administrative Code Section 4733-37-02, the well-established Ohio case law. “
Jack Hamilton P.S. retraced these descriptions a mere four years (1996) after the original Neitzelt 1992 survey. Apparently Hamilton readily surveyed through the deed ambiguity between adjoining descriptions and held the original Neitzelt monument. Taylor revisited the scene a decade plus later in 2008 and did the same. Life’s all green and groovy from that side of the fence. Sailing did his survey for Cochran in 2016. Sailing fully disclosed the original Neitzelt line and called out both Hamilton’s and Taylor’s reliance on that line. He also held the deed description which reflects the conflict at hand. In contrast Taylor showed no conflict with Cochran’s deed description despite his call for the adjoining deed on the plat. Hamilton did call out the 200’ discrepancy between measured and record in 1996, so there was no secret about it when Taylor showed up. Honestly, let’s assign blame where the blame lies. Neitzelt simply had a bad day in 1992 and pushed some bum paper to his client. His field work stood but unfortunately his written bust was promulgated all the way through a recorded conveyance which was supported by his closure and matching acreage.
I don’t agree with Sailing’s opinion but I do respect his obligation to support his client’s otherwise valid deed. It’s apparent that Sailing had both prior retracement surveys. He was fully aware of the discrepancy in 2016 and wasn’t just blindly deed staking by the numbers. Unfortunately the recordation of Neitzelt’s blunder in 1992 created a legacy of ambiguity on Cochran’s side of the line and raised some really good questions. Why didn’t Neitzelt call out the iron pin in the senior deed? Why wasn’t a corrective deed recorded if there was an error found in 1996? Cochran is holding a senior deed that closes on its calls with an area that matches exactly. Best I can tell nobody reached out to Cochran’s predecessor’s at discovery to resolve the conflict. Hamilton barely noted it and Taylor ignored it whereas both were employed by the opposing interest. In hindsight those circumstances look very lopsided and are ripe for the common pleas court of Guernsey County to settle the confusion.
There’s a necessary role with a surveyor supporting Cochran’s claim and I’m getting a vibe that the court confused the minimum standards with a difference of professional opinion. Sailing showed the monuments, recorded surveys, deeds, and further went on to clarify the disputed area. His work seemed to effectively convey the evidence in court. If it was flawed shouldn’t it have been barred from evidence? Hmmmm? According to my tally Sailing’s map is the only one that defines the extent of the conflict. So I’m not sure why the court felt compelled to knock the snot of him over his opinion. There was a genuine ambiguity here and the authoritative evidence led him to an alternate conclusion. Interestingly the court cited Ohio Administrative Code 4733-37-02(B), “after all necessary written documents have been analyzed, the survey shall be based on a field investigation of the property. The surveyor shall make a thorough search for physical monuments, analyze evidence of occupation and confer with the owner(s) of the property being surveyed. In addition, the surveyor shall, when necessary, confer with the owner(s) of the adjoining property and take statements.” I saw no evidence of Hamilton conferring with Cochran’s predecessor when the error was discovered in 1996. I don’t see evidence of Taylor tripping over this conflict in his research on his map either. On the contrary Sailing’s survey reflects both owners’ interests in the conflict. This storm was brewing since 1992 and the owners found the opportunity to get it settled in 2016. Everybody needed Sailing’s survey to iron things out.
What about the attorneys who defended Cochran’s platform in court? Yeah, I was pretty cynical earlier but there’s not a peep from the court about any sort of substandard defense is there? Of course not and that’s out of respect for the defendant’s rights and the process. That’s why this case is intriguing. The defendant’s surveyor did a complete survey and followed the evidence through a reasonable but alternate construction. The historic evidence was shown and considered on his map. The ambiguity was subjectively identified in previous surveys but the owners were apparently not included in a formal agreement or remedy. The defendant’s survey was the first to detail the defendant’s long overlooked concern. Despite the court’s implications regarding Sailing’s effort I am affording him the same respect as those attorneys get in recognition of due process. Feel free to contact me at email@example.com with your thoughts and opinions.