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Water Situation Continues to Boil
Author Bart Crattie writes: "Hopefully about 14 minutes and 58 seconds into my Warhol 15 minutes have now elapsed. My article that appeared in the January 2008 issue of The American Surveyor was originally published on the opinion page of the Atlanta Journal Constitution in October of 2007. At that time, there was little response. That all changed in early February of when a group of Georgia senators introduced legislation forming a new boundary commission in hopes of moving the current State Line some 1 mile north into Tennessee to the called-for 35th degree of latitude. The floodgates opened. It was rather amusing each night, when upon my arrival at home, the first question my wife would ask was, "Who called today?" It became serious when the Associated Press and the Los Angeles Times both called on the same day. Then it became a national story. Robert Cagle and I endured four hours of filming and interviewing by NBC Nightly News in mid-February. I also met with a crew from the Weather Channel, for a segment that aired with them. Far exceeding the positive ego stroke is the fact that the spotlight is on our profession. A land surveyor’s words are being heard in a positive way. The "expert" is the surveyor, not the lawyer or politician. Each and every person that called said that their primary source had been The American Surveyor. One woman with NBC News even stated that TAS was now her and many of her colleague’s favorite magazine. I advise all surveyors to please study any boundaries in your area that have apparent discrepancies and make the public aware. Use this type of information to educate the public and promote our profession.
C. Bart Crattie, LS
Kinks in the Chain of Title
Gary Kent’s "When to Write a New Metes and Bounds Description" [Jan 2008] points to a common problem encountered in performing ALTA/ACSM surveys. The frequency of lenders’ (and their counsels’) requests for a new metes and bounds legal description to accompany an ALTA survey made me wonder if any other surveyors object to this request. I was glad to see that at least one other surveyor recognizes the dangers with providing such descriptions to the chain of title. In response to these requests, I explain to the client (usually to their legal counsel) that property descriptions should not be altered unless defective, and not always in that case. Their requests to replace a Lot and Block description with a metes and bounds description is an invitation to create gaps and overlaps in the title chain. Yes, a professional surveyor should know how to write metes and bounds descriptions that avoid these problems, but there is no need to confuse the chain of title with a new type of description. In 90% of the cases I have seen, the client agrees to drop the request. When they insist, I add a line to the description that states it is not to be used for any conveyance or for creation of any interest (trust deed) that could ripen into a fee.
Dave Laverty, LS
Via the Internet
Kent Replies: I lecture surveyors all over the country at my seminars to avoid or flatly refuse to prepare these types of descriptions. Ultimately, the problem is that someone in the lender’s office has a checklist that says the courses on the survey have to match the courses in the description. And, of course, the description has no courses in it! So their solution is to ignorantly order up a description with courses in it so they can check that item off their checklist. I also tell surveyors to enlist the title companythey don’t want to mess up the chain of title with ridiculous descriptions; and if anyone in the process has an ounce of sense, it won’t get used in a deed anyway! Surveyors recognize such requests are ridiculous, but I’m not sure how many are actually buffaloed by the lender into doing it.—G.K.
Sources of Consternation
Lathrop’s article [Jan 2008] about legality and justice was very interesting to me, and her example of the guy wanting to claim "his portion" of the 9/11 event was certainly appropriate. When I was surveying in Arkansas in the early 60s, the adverse possession rule was really hard to interpret (at least it was to the legal profession). To me, the statement, "…obvious, aggressive, without permission…" etc. would indicate that a mistakenly located fence that no one knew about would not indicate "adverse" property ownership, even if it had stood for many more than the seven-year statutory requirement. The legal community has been able to get this to be "understood" so that if a guy should deliberately build a fence across someone else’s property, he could claim it as his. During my surveying years I came across situations where fence lines had been generally accepted as a "the property line" even though the survey indicated that it was encroaching by many feet. These created many sources of consternation for me, particularly when I established a true property line that was encroaching on the adjacent property owner. Oh, well. I don’t have to worry about that any more. I’m now retired, but I enjoy Wendy’s articles.
Jerry Lavender, LS
Via the Internet
Lathrop Replies: Thanks for your message—it’s nice to hear when someone reads and thinks about the latest situation that has been bothering me to the point of wanting to write about it. The adverse possession rule is applied very differently in the different states, and I am aware that in some states mistakes actually can ripen into rights, although fraud cannot. I’m glad not to practice in such a climate, where subjectivity enters the equation. Surveying is difficult enough without having to gather evidence of human fallibility.—W.L.
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A 116Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE