Land Surveying weblog

[Originally published 2004-05-29 18:53]

Property owners sometimes mistakenly assume that an existing fence is the same as the property line. They are shocked to discover that the fence in question may be many feet in error when a survey is performed.

Unless the subject deed specifically refers to following a fence (which is rare) a competent land surveyor will consider the fence to be low in the evidence chain in comparison to other more favorable evidence called for in the deed. If the subject deed contains such language as "thence with a fence", "along a fence" or "following a fence" then it is a safe bet that the fence is the property line if the fence in question is the original fence called for in the conveyance. Otherwise, the surveyor must follow the explicit instructions contained in the deed while ignoring the fence, unless the fence is the only remaining evidence of the boundary.

This scenario is especially problematic when a purchaser has acquired a piece of property under the assumption that the fence is "obviously" the boundary therefore they believe no property survey is needed.

Warning: Never take the word of a real estate agent or an existing property owner about where the boundaries lie.

The former should never be giving advice relative to property boundaries in the first place. If a real estate agent describes the land boundaries to you, then it is time to find another agent. The only advice they are qualified to give is to instruct one to hire a competent professional surveyor to locate the property boundaries. I have encountered countless property owners who have exclaimed "But the real estate agent told me (fill in the blank)!" only to find out they were misled. This is very much a violation of state standards of practice issued by the Tennessee Real Estate Commission.

The existing property owner is rarely intentionally deceptive, but is often mistaken about where the boundaries lie unless they have had the property recently surveyed. Lines of occupation often differ from actual boundaries.

When purchasing real estate, a good survey should be considered essential. Unknown problems such as disputes, adverse claims or encroachments may arise months or years later. If they do, Title Insurance will not help. Title Insurance does not protect the buyer against defects that could have been found by obtaining an accurate survey.

Click here for an interesting court case where a land surveyor was found to be negligent because he surveyed to an existing fence line while ignoring the deed calls. A few pertinent quotes from the case:

"Although the fence was not mentioned in any description of record, and had a "bow" in it, it showed signs of such antiquity that [the surveyor] concluded that it had been accepted as a boundary..."

"The extension of the fence line on which [the surveyor] relied, being neither marked nor surveyed, and being unrelated to any monument described of record, fails to meet the criteria of 'artificial monuments and established lines, marked or surveyed'..."

"The recorded distance should have prevailed."

"We conclude that [the surveyor] was negligent as a matter of law..."

While it is certainly the surveyor's duty to locate and describe fences near the boundary, the two do not necessarily coincide.

*Note: Adverse possession is a special case not addressed here. Even if adverse possession is relevant to a particular case, this is a determination that cannot be made by a surveyor. The surveyor shows the location of record boundaries and lines of occupation to the best of his ability. Only courts can decide the location of actual property rights in an adverse possession dispute.

More information about adverse possession.

This writing is the opinion of the author. Nothing herein constitutes legal advice. Anyone seeking legal advice is advised to seek out a competent attorney.

The state now has the power to shut down any church of its choosing. Alarmist you say? Think again. The Supreme Court's Kelo v. New London ruling opened the door. Under the logic of the ruling - that government may seize private property and give it to private developers in order to generate greater tax revenue - every church in America applies. Churches are tax exempt, hence virtually any "use" except a church generates greater tax revenue for the government and therefore makes the property subject to seizure. See how easy that is? This power of the state is particularly alarming when one considers how politicized hostility towards particular religious groups or denominations can become. The leap from "You can't say Merry Christmas because it offends me" to "The presence of your church offends me - let's get rid of it" is not a big one. The church condemnations are happening now:

City moves to condemn SBC church using eminent domain
Mar 9, 2006
By Erin Roach
Baptist Press

LONG BEACH, Calif. (BP)--City leaders in Long Beach, Calif., have classified the Filipino Baptist Fellowship’s building as a blighted area and are forcing the congregation out in order to make way for condominiums.

The path for the case was laid when the Supreme Court ruled 5-4 last summer in Kelo v. New London, Connecticut that a city’s use of eminent domain to transfer property from one private party to another may qualify as a “public use” protected by the Constitution.

John Eastman, director of The Claremont Institute’s Center for Constitutional Jurisprudence who is defending the church, said the case -– the first involving a Baptist church -- may play a key role in reversing the high court’s eminent domain decision.

“In my view, the Supreme Court made a terrible mistake in Kelo, and I think they know that and they’re going to be looking for a way to extricate [themselves] from that case,” Eastman told Baptist Press. “It seems to me that the best challenge to the principle of that case is a church case, where there is no economic output, so any economic development could then be utilized to take out the church under the Kelo theory.

[snip]

Currently, there are eight other active cases of eminent domain abuse against churches across the country, according to the Institute for Justice, a civil liberties law firm in Arlington, Va. [Read more at (BP) News.]

Excerpt from the OC Register by Steven Greenhut [registration required]:

Shortly after a friend of mine bought her nice, new house on a half-acre yard in an outlying Virginia suburb of Washington, D.C., she declared her support for a then-proposed law in her county requiring that all new houses be built on five acres. It was about time the county took action against untrammeled suburban development and embraced a more "balanced" approach to growth, she told me.

That reminded me of an old joke: "Question: What's the difference between an environmentalist and a developer? Answer: The environmentalist already has his vacation home." My friend might not find it funny, but someone wrote that punch line about her, and the many others like her who get theirs, and then fight every proposed new development. Or at least they lobby their elected officials to make it close to impossible for "greedy" developers to build the new homes that will be enjoyed by other families.

I see it all the time in my coverage of environmental issues in Orange County. Inevitably, the leaders of the "save the Earth" society are the ones who live closest to the planned new development. This is selfish behavior. If you own a house, and you restrict the supply of other houses, then you are driving up the value of your house, making it harder for others to enjoy the lifestyle you now enjoy. [Continue to OC Register, registration required]

[Excerpt] The vote was prompted by activists angered by the Supreme Court's 5-4 decision last year in a property rights case from Connecticut. Souter sided with the majority in holding that governments can take property and turn it over to private developers.

Voters decided 1,167 to 493 in favor of [a] reworded measure that asked the Board of Selectmen not to use their power of eminent domain to take the farmhouse, and instead urged New Hampshire to adopt a law that forbids seizures of the sort sanctioned by the Supreme Court.

"It makes Souter the only person in the United States that would be given special protection against his own ruling," said Logan Darrow Clements of Los Angeles, a businessman who led the campaign to evict Souter. More...

What a shame to pass on such an appropriate comeuppance.

Due to my busy schedule, I never blogged on the Kelo v. New London decision. Many others were already commenting and doing a better job than I could. Suffice to say I was crushed by it. I really thought that the Constitution and common sense would prevail. Obviously my confidence in the Supreme Court (over this issue) was misplaced. The decision goes to show just how much damage a cadre of leftist elitists can do. Even more disturbing is the emboldening effect the decision is likely have on those intent to wrest private property from average Americans in the future.

"The right of property is the guardian of every other right, and to deprive the people of this, is in fact to deprive them of their liberty." - Arthur Lee of Virginia

For a common-sense, straightforward application of the Constitution (minus any "emanations from penumbras"*) see the dissent, written by Justice Sandra Day O'Conner (joined by Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas.) Excerpted:

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property — and thereby effectively [deletes] the words 'for public use' from the Takings Clause of the Fifth Amendment".

Control = Ownership.

"Is it not lawful for me to do what I will with mine own?" - Matthew 20:15

Ownership may be defined as the right to exert control over the uses of property to the exclusion of others. If you don't control it - you don't really own it.

Radical environmentalists have understood and applied this principle for a long time. Citizens can and have been deprived of the use of their property without compensation due to the presence of a rat (the literal, not political variety) or any number of seemingly innocuous activities deemed "dangerous" by enviroleftist nutballs.

Consider the expanding definition of "navigable waters" ...

"Navigable" now covers, or so some enviro-friendly bureaucrats believe, property standing 20 or more miles from water used for shipping and commerce. If collected rainwater drains into a gully, thence into a ditch, thence into a river, it's now deemed under government control.

Enter John Rapanos, a self-made Michigan developer cited for pulling out stumps in a cornfield and filling them with sand. Since 1989 state and federal regulators have fined Rapanos $13 million, even assigning him community service.

Get the picture? Rapanos' cornfield is 20 miles from any "navigable" water under the old, common-sensical definition. If the Justice Department prevails over Rapanos, and in a similar landmark case called Carabell v. United States, that means the feds can move in on virtually any private property.

One Michigan foe has demonized Rapanos as a "radical property rights activist with a great deal of disregard for the public trust." The characterization alone betrays the extreme radicalism held by activists. Suddenly it's "radical" to defend one's cornfield in court? [Via Yahoo News]

$13 million dollars for clearing the stumps from a cornfield! What can I say except, "Wake up America!"

*Don’t be embarrassed if you don’t know what emanations from penumbras are. Young lawyers across America had to pull out their dictionaries when reading Griswold for the first time. A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot — and it is another way to describe something unclear or uncertain. “Emanation” is a scientific term for gas made from radioactive decay — it also means “an emission.” Men in Black, by Mark Levin

Unfortunately this morning, Huddleston-Steele Engineering, Inc. of Murfreesboro,TN had a White Ford F-150 survey truck with a white topper and full equipment stolen from a work site in Lavergne, Tennessee. The two most valuable items that the thieves might try to get rid of are:

1. a Nikon "TOPGUN" AL20G (1 second ) total station

2. a TOPCON Hiper+ GPS Base Station (w/ a GB-500 controller) and Rover-also equipped with a 35-watt radio with the base.

Should anyone approach you with any of this surveying equipment or should you hear anything that might help us in apprehending the thieves, please call Bill Huddleston, Doug Vaught or Cheryl Macbeth at 615-893-4084. Any help would be appreciated.

Sorry for the extended downtime ladies and gents, but my small company website was hacked by some clueless, pubescent, probably impotent, computer geek with a Napoleon complex. Being extremely busy earning a living and serving my clients, it took me awhile to give it my full attention.

According to Canadian psychologist Marc Rogers, the average computer cracker is an obsessive middle-class white male, between 12 and 28 years old, with few social skills and a possible history of physical and sexual abuse. [1]

Yeah. Enough said.

For the professional - I ran across this handy page containing myriad formulas for horizontal regular and spiral curves. Click image to go there.

Group says she failed to pay fee; critics say incident is an example of excessive power

By ZEKE MINAYA
Copyright 2005 Houston Chronicle

Pamela Bernhardt was close to completing renovations on a house she owned and hoped to sell. She had installed a new roof, new granite tops in the kitchen and new tiles in the bathroom.

Earlier this month, she arrived at the house on the 14200 block of Swallowfield in southwest Houston and found a small, yellow note stuck to the front door.

The handwritten note said that the house had been sold at a foreclosure sale seven months earlier. The local homeowners association had sold the house, valued at about $250,000, saying Bernhardt failed to pay a $420 assessment fee.

"It was so devastating," Bernhardt said. "I was just stunned."

Bernhardt's situation was another example of the excessive power of homeowners associations and the need to reform the use of foreclosure sales to collect fees, state leaders and activists said Wednesday. More...

In an interview on the Mike Gallagher radio show, Bernhardt said she demanded to see the Association's records, was initially refused, but eventually gained access to them. The Association's records show that they sent the fee notices to the wrong mailing address - Bernhardt never received them.

The first notification Bernhardt received was a yellow Post-It(R) note on her front door from the new owner, who bought the home at a foreclosure sale.

Some homeowners associations have the power the seize property without a judicial order, or the safeguards associated with the judicial process. Critics say this scenario leads to the abuse of power.

Can Both Sides of the Sprawl Debate Find Common Ground on Property Rights?
by Ronald D. Utt, Ph. D.

One of the great myths spread by opponents of suburban development is that the land-use patterns we have today are the result of free-market forces, greedy developers, and unregulated property rights. Contrary to urban legend, gaudy strip malls and tacky subdivisions are more often a consequence of over half a century of zoning and land-use planning conducted under the guidance of professional planners in cooperation with elected officials. What repel us today are not the unintended consequences of free enterprise, but planning concepts from the 1960s that have dropped out of fashion.

Having failed us once, planners are asking for a second chance—along with more regulatory power than ever before—to impose their aesthetic sensibilities on the rest of us, the philistine masses. Instead of letting the planners have their way, communities should work to restore and strengthen individual property rights. Part of this is giving property owners and builders the freedom to construct housing that people want, not what the planners want to impose on them.

Erosion of Rights

Until the 1920s, property rights in America were seen to be nearly inviolable. The Takings Clause of the Fifth Amendment to the U.S. Constitution states, "nor shall property be taken for public use without just compensation." This was considered the literal law of the land. (The Fourteenth Amendment extended the Fifth’s protection to actions by the states.) Property rights advocates argue that the Takings Clause also covers "regulatory takings" that limit the property’s use (and thus diminish its value), such as zoning restrictions. If so, either regulatory takings would be prohibited or, at the very least, the government would have to compensate property owners for land-use regulations that reduce the value of their holdings.

The courts, however, have not held this view. More...

By CORY SCHOUTEN

cory.schouten@heraldtribune.com
MANATEE COUNTY -- Most new subdivisions get names like FoxBrook or Twin Rivers, monikers designed to evoke peaceful living in a natural setting.

But a proposed housing project in Parrish sports a name that calls to mind a different image, one of beer cans and bellies.

It's called Redneck Acres.

The man seeking approval for the single-home project is a lifelong county resident and self-proclaimed redneck. He says the name is both a smart-alecky dig at the county and his own witty foray into naming subdivisions. More...

MONTGOMERY (AP) — When the city of Alabaster wanted to buy Carrie Spence's land for a shopping mall and City Hall site, she didn't have to think long.

"It's our home, and it's paid for. You've been living here all your life and they try to take your land for a Wal-Mart or a Target or whatever. No, get out of here," Spence said.

The city filed a lawsuit against her claiming eminent domain, which lets governments acquire private land for public use, as long as the former owners receive "just compensation." The lawsuit was dropped after other families agreed to sell for a higher price. But policy-makers are grappling with just what constitutes public use and whether cities can condemn private property such as Spence's for retail developments that would increase the tax base.

A bill pending in the Alabama Legislature says they can't and would prohibit cities from using eminent domain for commercial use.

"Quite frankly, I just think it's wrong to take anyone's private property and give it to a retail establishment," said bill sponsor Rep. Jack Venable, D-Tallasssee. More...

Nevada is getting smaller.

At least the parts of it that Nevadans can call their own.

All but 8.1 percent of the state is in the hands of federal agencies, according to an inventory by the U.S. General Services Administration.

This information is not new. The 91.9 percent calculation of federal land comes from a 2003 report by GSA. However, lawmakers and state officials continue to quote a lower figure of 87 percent when talking about the amount of federal land in Nevada, and the state Department of Conservation & Natural Resources posts an even lower 86.1 percent on its Web site.

The federal inventory was discovered by Grant Gerber of Elko while he was doing research for the Private Lands Conservancy. The Elko-based group chaired by Gerber seeks to increase the amount of private land in Nevada, as well as other states. More...

The Ayn Rand Institute
By: Larry Salzman and Alex Epstein

On February 22nd, the future of property rights in America will be at stake as the Supreme Court begins oral arguments in the case of Kelo v. New London. The central question at issue is: should the government be able to use its power of eminent domain to seize property from one private party and transfer it to another?

The seven property owners on the side of Kelo are the last remaining of more than 70 families whose homes and businesses were targeted for demolition several years ago by the city of New London, Connecticut, to make room for a 90-acre private development. The story of one of the owners, Susette Kelo, is representative. Kelo, a nurse, bought and painstakingly restored a home that initially was so run-down that she needed to cut her way to the front door with a hatchet. After she had achieved her dream home, she was informed in November 2000 by the local government that her home was condemned, and ordered to vacate within 90 days. She and the other owners remain in their homes only by the grace of a court order, which prevents eviction and demolition until their appeals are exhausted.

What justifies this treatment of Kelo and the other owners, who simply want to be free to live on their own property? The seizures and transfers, the government says, are in "the public interest"--because they will lead to more jobs for New London residents and more tax dollars for the government. This type of justification was given more than 10,000 times between 1998 and 2002, and across 41 states, to use eminent domain (or its threat) to seize private property. The attitude behind these seizures was epitomized by a Lancaster, CA, city attorney explaining why a 99¢ Only store should be condemned to make way for a Costco: "99 Cents produces less than $40,000 [a year] in sales taxes, and Costco was producing more than $400,000. You tell me which was more important?"

To such government officials, the fact that an individual earns a piece of property and wants to use and enjoy it, is of no importance--all that matters is "the public." But as philosopher Ayn Rand observed, "there is no such entity as 'the public,' since the public is merely a number of individuals . . . .the idea that 'the public interest' supersedes private interests and rights can have but one meaning: that the interests and rights of some individuals take precedence over the interests and rights of others." In the context of the Kelo case, the idea that "the public interest" trumps private property rights simply means that the desires of some individuals for property they did not earn and cannot get from others voluntarily trump the rights of those who did earn it and do not want to sell it. Why are their rights trumped? Because some gang with political pull doesn't happen to like how these individuals are using their property.

This is unjust and un-American. More...

Related:

Lawsuit Challenging Eminent Domain Abuse in New London, Connecticut