Chain!

[Karl Bowles]

Chain!

I am posting this affidavit without comment, I believe it speaks for itself. The names and places have been changed to protect the innocent.


CERTIFICATE OF MERIT-AFFIDAVIT OF DEWARD KARL BOWLES

Before me, the undersigned authority, on this day personally appeared, Deward Karl Bowles, known to me personally, who being by me duly sworn, on his oath did depose and say as follows:

1. My name is Deward Karl Bowles. I, the Affiant, am over 21 years of age, of sound mind, and fully competent to make this affidavit. The Affiant has personal knowledge of all facts contained herein, which are all true and correct.

2. I am currently certified to practice as a Registered Professional Land Surveyor in the State of Texas, Texas Registered Professional Land Surveyor No. 4966.

3. I have examined copies of maps entitled "Plat of Survey" on 425 and 421 North Second Street, La Porte, Texas, signed and sealed by Jack Leg, Jr., Texas Registered Professional Land Surveyor No. 666666. At least one of these copies bore the original signature and seal of Mr. Leg. Mr. Leg's surveys indicate that the house with the address 421 North Second Street is located on Lots 26 and 27, Block 84 of the Town of La Porte, a subdivision in Harris County, Texas as recorded in Volume 57, Page 320 of the Map Records of Harris County, Texas. The surveys also indicate that the house with the address 425 North Second Street is located on Lots 28 and 29, Block 84 of the Town of La Porte, a subdivision in Harris County, Texas as recorded in Volume 57, Page 320 of the Map Records of Harris County, Texas.

4. I have personally been to the houses in question, recovered and located property corners on the lots and block the houses sit on. It is my professional opinion that the house with the address 421 North Second Street is located on Lot 24 and 25, Block 84 of the Town of La Porte and that the house with the address 425 North Second street is located on Lot 26 and 27, Block 84 of the Town of La Porte. I conclude Mr. Leg has failed to locate the homes in question on the correct lots, as shown on his surveys.

5. Further, Mr. Leg has failed to meet or exceed the Minimum Standards for Professional Surveying in the State of Texas as required by the Professional Land Surveying Practices Act at the time he produced, signed and sealed the surveys he performed on the homes and properties in question. This is evidenced by numerous and apparent errors and omissions contained on the "Plat of Survey" signed and sealed by Mr. Leg on the properties in question, which I have examined. For example, the subdivision map or plat recorded for the properties in question does no appear on Volume 57, Page 320 of the Map Records of Harris County, Texas, as there is no Page 320 in Volume 57 of the Map Records of Harris County, Texas. Another example is Mr. Leg's surveys show bearings along the perimeter of the boundary of the properties in question which are 90 degrees in conflict with the North Arrow shown on the same.

6. I am familiar with the standard of care applicable to a surveyor charged with the responsibility of surveying and staking. My review of the above documents reveals a breach in the standard of care by Jack Leg, Jr. It is further my opinion that the breach in the standard of care is a deviation from the usual and customary standard of care. Mr. Leg did not act with reasonable care and competence and apply the technical knowledge and skill, which is ordinarily applied by a reasonably prudent surveyor practicing under similar conditions and circumstances.

7. It is my opinion that Mr. Leg failed to use proper care in connection with the surveying and staking. This breach of the standard of care contributed to the loss of property and damages, resulting in the homes in question being constructed on the wrong lots or lots not owned by the developer. These homes were later sold to subsequent buyers under surveys performed by Mr. Leg resulting in the new buyers purchasing homes not occupying the land they purchased.

8. Other defects as a result of these failures may also exist.

9. I reserve the opportunity to amend or supplement my opinions as further information is made available.

Further affiant sayeth not.

___________________________
Deward Karl Bowles

Sworn to and subscribed before me by Deward Karl Bowles this ____day of February, 2009.

________________________
Notary Public

My Commission expires:______________________



Come ahead!

[Roger Hart]

Chain!

I am posting this affidavit without comment, I believe it speaks for itself. The names and places have been changed to protect the innocent.

Looks to me like you're protecting the guilty! (Though I do think it appropriate that you changed the names).

As the Cuban bandleader/surveyor Ricky Ricardo was fond of saying, "looks like someone's got some 'splaining to do."

[Karl Bowles]

Chain!

The Symposium is in the next couple of weeks. Waco is a nice town and I am looking forward to seeing many of my peers.

There is still time to sign up via fax, if you have not done so already I would suggest you sign up now.

See you in Waco.

Come ahead!

[Karl Bowles]

Chain!

We have heard many arguments from critics over the last few years berating professional land surveyors for not holding existing fences or other evidence of possession as the boundary lines of real property regardless of any other evidence such as calls in deeds describing same. The mere existence of this evidence of possession, even if of unknown nature, is enough to supersede any other evidence of the original boundary and render it irrelevant. These same critics call for “honoring” iron rods, pipes or other objects, merely because they exist and were found somewhere near the corner in question, as the boundary corner. They make these assertions even in a case where these iron rods, pipes and other objects are in direct conflict with all other evidence including the elements contained in deed calls and even if these iron rods, pipes and objects are of unknown origin. These critics hold out this type of evidence as conclusive as to location of boundaries of real property solely on basis of their mere existence or past existence.

I find these assertions specious, appealing only to those who would rather rely on a superficial and cursory attempt to locate and evaluate evidence rather than commit themselves to an exhaustive search for the facts that would support a rational and informed conclusion.First, for the purpose of confining this discussion to a local perspective, we will examine some recent cases that reached the Court of Appeals and Supreme Court level in Texas.

In the Supreme Court case (1) Minh Thu Tran v. William Macha, “Neighboring relatives shared the use of a driveway for many years, thinking it belonged to one of them when in fact it belonged to the other. The court of appeals held this mutual mistake and mutual use transferred title by adverse possession.”

The Supreme Court reversed this ruling stating that under Texas law, adverse possession requires “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person. TEX. CIV. PRAC. & REM. CODE 16.021(1). The statute requires visible appropriation; mistaken beliefs about ownership do not transfer title until someone acts on them. See, e.g., Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex. 1985). Thus, there must be adverse possession, not just adverse beliefs. The statute requires that such possession be “inconsistent with” and “hostile to” the claims of all others. Joint use is not enough, because possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant. Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (quoting Rick v. Grubbs, 214 S.W.2d 925, 927 (Tex. 1948)) (emphasis in original); McDonnold v. Weinacht, 465 S.W.2d 136, 141 (Tex. 1971). ” In this case the court of appeals held that “adverse possession” need not be intentional, so long as it is visible, open, and notorious. 176 S.W.3d at 133. The Supreme Court disagreed saying while “It is true that “hostile” use does not require an intention to dispossess the rightful owner, or even know that there is one. See Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976). But there must be an intention to claim property as one’s own to the exclusion of all others; mere occupancy of land without any intention to appropriate it will not.”

In another recent Court of Appeals case (2) Pauline Mohnke v. Wanda Greenwood, not only adverse possession but boundary by acquiescence were claimed among other things. It was asserted that a wire fence the 1967 survey was based on should be given preference in the order of dignity of calls because it was an “artificial object” and thus must be given priority over other evidence. However the Court of Appeals found, as a matter of fact, that the 1927 deed upon which the survey of 1967 relied on did not refer to the wire fence as an artificial object. The 1927 deed contained no calls for monuments, rods or artificial objects, just courses and distances. It was found in this case that the survey prepared in 1967 “did not locate any rods or monuments as the basis of it’s survey”, that “the 1967 survey set monuments or rods along the existing fence line” and that the “1967 survey was a fence survey, that is, it was based on a fence line.”

On the claim of adverse possession the court found that there was no evidence presented to suggest the wire fence was anything other than a casual fence. The Court of Appeals pointed to Rhodes v. Cahill, 802 S.W.2d 643, 646 (Tex. 1990); Orsborn v.Deep Rock Oil Corp., 267 S.W.2d 781, 785 (Tex. 1954) which said that "If the fence existed before the claimant took possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then the fence is a casual fence." Further, the Appeals Court stated that “according to Section 16.021 of the Texas Civil Practice & Remedies Code, "adverse possession" means "an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person." TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 16.021 (Vernon 1986). A showing of adverse possession is required under both the ten and twenty-five year statutes of limitations. TEX. CIV. PRAC. & REM. CODE ANN. Section(s) 16.026, 16.027 (Vernon 1986)” and that “To establish title through adverse possession, "the possession must be of such character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant." Rick v. Grubbs, 214 S.W.2d 925, 927 (1948).”

It was argued that the existence of the wire fence, the use of the land for grazing cattle and the planting of pine trees establish hostile possession as a matter of law. However, the Court of Appeals found “these factors alone are insufficient to establish title by adverse possession unless the disputed property was "designedly enclosed" for the claimants use. Rhodes v. Cahill, 802 S.W.2d at 646; McDonnold v. Weinacht, 465 S.W.2d 136, 142 (Tex. 1971); Orsborn, 153 Tex. at 287, 267 S.W.2d at 785.” The Court of Appeals stated that “limitation statutes do not contemplate that a claimant of adverse possession can derive aid, in establishing his claim, from an enclosure casually created by third persons in effecting a different purpose of their own, and who are strangers to both the claimant of adverse possession and the true owner of the enclosed land. In such a case, the enclosure, so far as our limitation statutes are concerned, has no more effect than if same had never come into existence. It is thus well-settled that the mere grazing of land incidentally enclosed by a fence created by others cannot support a claim of adverse possession. McDonnold, 465 S.W.2d at 142; Kahanek, 121 S.W.2d at 331.”

Finally as to the claim of boundary by acquiescence in this Court of Appeals case the court said “In order to establish a boundary by acquiescence; the claimant had to show that the location of the fence was agreed to as a result of a disagreement between the landowners over the boundary line of their respective properties. "The existence of uncertainty, doubt or dispute is essential to the validity of such [an] agreement." Gulf Oil Corp. v. Marathon Oil Co., 152 S.W.2d 711, 714 (Tex. 1941); McAllister v. Samuels, 857 S.W.2d at 778 (holding that without uncertainty as to the true boundary line there can be no boundary by acquiescence).” In this case no such evidence of the existence of any of these matters was presented by the claimant other than the fence itself. The Court of Appeals also said “When there is no doubt as to the true location of the boundary, mere proof of acquiescence in an erroneous line will not support a finding of boundary by agreement. Wall v. Carrell, 894 S.W.2d at 798, citing Kirby Lumber Corp. v. Lindsay, 455 S.W.2d 733 (Tex. 1970).”

The claimant in this case appeared to argue that, because the conflict in surveys performed in 1967 and a later survey that delineated different boundary lines, the "uncertainty, doubt or dispute" element is satisfied. The Court of Appeals stated that “it is fundamental that the doubt or uncertainty must be known to the landowners at the time they agree to the boundary. See, e.g., Kirby, 455 S.W.2d at 738-39; Gulf, 152 S.W.2d at 714; McAllister, 857 S.W.2d at 778.” The court also said that “A review of the record reveals no evidence of a misunderstanding or uncertainty as to the true boundary between the adjacent property owners. Without such a dispute, there can be no boundary by acquiescence.”

It is worth noting that in this Court of Appeals case, payment of attorney’s fees by the claimant was upheld.

A very recent case before the Court of Appeals, (3) Moore v. Stone, explored another claim of adverse possession and boundary by acquiescence under the 3, 5, 10 and 25 year statutes. This case involved a fence constructed some 50 years prior.

In this case the Court of Appeals reversed the judgment of the lower court who had ruled in favor of the claimant. The Court of Appeals found that there was no evidence presented to suggest for what purpose the fence in question was constructed.

The Court of Appeals pointed to the fact that “The Texas Supreme Court has said, "It is well settled that when one enters into possession of land under a deed, his possession is referable to the deed, and it is presumed to be in conformity with it, and is confined to the limits thereof." Harmon v. Overton Ref. Co., 109 S.W. 2d 457, 460, rev’d order of rendition on rehr’g in 110 S.W. 2d 555 (Tex. 1937).” The Court of Appeals went on to state “To claim adjoining land outside the limits of the described boundaries, the possessor must have actual possession of such additional land of such a character as of itself will give notice of an actual adverse possession. Southern Pine Lumber Co. v. Hart, 340 S.W.2d 775, 781 n. 2 (Tex. 1960); Osborn v. Deep Rock Oil Co., 153 Tex. 281, 267 S.W. 2d 781 (1954).” Thus, to have title or color of title, the deeds of claimant had to include the disputed property within its descriptions. The claimant had stipulated that their deed called for a creek and not the fence as the boundary and since the claimant necessarily admitted that their deeds did not include the disputed property, there was no evidence that claimant had title or color of title that would allow the submission of questions to the jury regarding the 3 year statute of limitations on adverse possession. The Court found the same was true of a claim under the 5 and 25 year statutes. The Court also found that as a matter of fact there was no evidence presented to support a claim of adverse possession under the 10 year statute either because such a claimant must demonstrate that the disputed land was “held in peaceable and adverse possession” and “cultivates, uses, or enjoys the property.”

As to the claim of boundary by acquiescence the Court of Appeals again reiterated that a boundary by acquiescence must stem from uncertainty, doubt or dispute. They concluded that there was no evidence presented in this case to suggest any of these elements existed to support the contention that such an agreement of this nature had taken place.

The Court of Appeals also said “Although acquiescence and recognition may be evidence of an agreement fixing a boundary and may support an inference or presumption that there has been such an agreement, this presumption will not apply when induced by mistake, or when the true boundary is established conclusively by undisputed evidence. Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733 (Tex. 1970); Wall, 894 S.W.2d at 798. Further, when there is no doubt as to the true location of the boundary line, mere proof of acquiescence in an erroneous line will not support a finding that such other line is the true line. Id. “

In closing, merely because irons rods, pipes and other objects exist, set by subsequent surveyors other than the original surveyor, are not proof of the location of an original boundary or any other boundary. They are only evidence of the subsequent surveyor’s opinion as to the location of a boundary.

A fence is not proof of a boundary by adverse possession or a boundary by acquiescence solely because it existed or exists.

I am not suggesting that such evidence can’t be used to determine a boundary. What I am suggesting is that relevancy of this evidence to the boundary in question must be demonstrated.

Come Ahead!

_________________________________________________________________________

(1)
http://www.tsps.org/phpBB2/viewtopic.php?t=381
(2)
http://www.jurisimprudence.com/!Documen ... al%20fence).txt
(3)
http://www.10thcoa.courts.state.tx.us/o ... ionID=8850

[Karl Bowles]

Chain!

Let us examine the term “Professional Courtesy” and how it applies to Professional Land Surveyors.

Does this term as it applies to a Professional Land Surveyor mean we should provide free services to other Professional Land Surveyors and their relatives as it might apply to a doctor? Perhaps.

Does this term as it applies to a Professional Land Surveyor mean that we should avoid making disparaging comments about other Professional Land Surveyors as it might apply to a lawyer? Perhaps.

Since Professional Land Surveyors practice in a unique profession, one that rests on information, evidence and disclosure, then maybe the term “Professional Courtesy” as it applies to us should have a unique set of implications.

I have always maintained an “open” office as this is how I was trained. I was taught that this was how Professional Land Surveyors should operate and that it was a “Professional Courtesy”.

My first real exposure to this came when I was working as a technician in New Jersey and was struggling with a difficult boundary resolution of a large property who’s most recent survey description dated to the 1850s. The description called for “X” cuts on stones and the property in question was nothing but hills made out of stones. The field crew had brought back some information that included a capped iron rod they had found on a property adjoining the one we were surveying. I was able to track down the surveyor by his License number on the cap and I called him in hopes he might have some information on the property I was surveying. He told me to come to his office anytime I would like. He said he did not recall the survey and that it had been many years since he had performed it but that I was welcome to look at anything he had in his office, including a copy of the survey he had performed on his property.

Although he did not lift a finger to help me other than to show me basically where to find information in his office, I can’t begin to tell you how much the information I found helped me out.

I remember that as I left his office he told me that if I had any problems with his survey, since I was surveying an adjoining property, to call him so that he could take a look at it. He told me he could then make a correction on his survey or maybe provide me with some information that I had not found or did not know about that would cause me to change the survey I was working on.

I was able to resolve the boundary in question, thanks to him, and find all of the “X” cuts called for in my description as a result of evidence he had found in the course of the survey he had performed on the adjoining property many years prior.

Sadly we seem to have lost this attitude in our profession over the last decade or so. Many times in recent years I have been contacted by other Professional Land Surveyors or I have contacted them with some kind of problem. I send them a copy of my survey with the assurance they will send me a copy of theirs, however I never hear back from them and I never receive their survey. I tell them that if they have some problem with what I have done to let me look at it as I might have information they do not know about or if they have information that would change my opinion then I could change my survey, but they never contact me again or respond to me.

Discovery of an error that I have made on a survey or some other surveyor may have made on their survey is painful however that pain is much less than the pain of having our clients end up with lawyers involved and litigation ensuing.

It is perfectly legitimate for Professional Land Surveyors to disagree on nuanced issues of boundary resolution and retracement, after all even the courts and judges often do not agree on these issues. On the other hand, not responding to requests for information from a Professional Land Surveyor, particularly when they have already sent you their information with assurances you would respond in kind, is not professional practice and does not demonstrate “Professional Courtesy” in my view.

Further you must be willing to share information and evidence with your fellow Professional Land Surveyors because if we are not locating land boundaries with evidence and information gleaned from other Professional Land Surveyors then what are we doing when we prepare a boundary retracement survey?

Then next time you get a call from another Professional Land Surveyor seeking information or with a problem remember “Professional Courtesy” is a two way street and if you don’t practice it you might just find that we have no profession.

Come Ahead!

[Andy Nold]

I am happy to be working in an office with decades of records and an open door policy. The only people who we don't share with are those who do not reciprocate. I only ask for a copy of the resulting story to add to the files. I think most of the other surveyors in my town are the same way. I suppose it's been that way for a long time. When Cool, RPLS #2 retired (working or life, not sure), a group of the surveyors went in together to buy the records to keep them accessible and to share.

On a side note and in contrast to the Cool collection, I now know where W.D. Twichell's records are. I hope to get to see them at some point in the not too distant future. They were purchased jointly by 6 oil companies.

[Karl Bowles]

Chain!

Who is destroying our profession, ourselves or others?

Here is a link to a series of pdfs showing a survey I performed in 1997. If you examine this survey and the attached documents I think you will be asking yourself the same question.

Update of survey performed by me in 1997....
(You will have to open a free account to view the first link on each of the lines below, the second link listed on the lines below can be viewed directly. However I do not have enough free space on that account to link them all)

Sheet 1

http://www.keepandshare.com/doc/view.ph ... 07857&da=y

http://freepdfhosting.com/e89fcf2f46.pdf

Sheet 2

http://www.keepandshare.com/doc/view.ph ... 07858&da=y

http://freepdfhosting.com/ac74557568.pdf

Attached surveyors report

http://www.keepandshare.com/doc/view.ph ... 07898&da=y

If you examine the above survey closely and pull the supporting documents listed on it you should arrive at a number of conclusions.

This problem concerning this parcel has been present in the record and on the ground since as early as 1929. Subsequent surveyors who were not the original surveyor of this subdivision have staked out all the parcels in this block, West of the subject tract, 10 feet in error. Various attempts have been made by surveyors, scriveners and title insurance firms to fix this problem and all of them have only managed to obfuscate this problem even more. I doubt any who attempted to "fix" the problem had a clue as to the true nature of it.

Writing a "metes and bounds" description attempting to move a parcel from where the record location places it has no effect on the location of the lot lines shown on the recorded subdivision map. When a "metes and bounds" description conflicts with the "lot and block" description of a recorded subdivision map generally the courts have held the "lot and block" description prevails.

Unilaterally introducing a "new" description for a parcel of land not in the chain of title of the original grantee has no effect on the record description or location of a parcel of land.

Attempting to convey a lot by describing two parts of the lot that do not add up to the total width of the lot does not shrink the lot width or change its location on the recorded map record and only creates record confusion.

It has been said that truth is an orphan and often a suicide but this is simply flabbergasting. As a Land Surveyor I have no power or authority to fix this problem properly because it requires the consent of ALL the concerned parties. All I can do is point to the true nature of this problem and how it can be fixed once and for all. If the public does not follow my advice there is nothing I can do. And lets be honest here, why should they?

Below is a partial (I removed the surveyor and firm who did it) copy of a survey performed on the same property just a few days before I performed an update on it (by the way we found none of the "set monuments" shown on it, when I did the update).

http://www.keepandshare.com/doc/view.ph ... 07919&da=y

http://freepdfhosting.com/fe5ca53628.pdf

If you closely examine the above survey a number of things should become readily apparent about it. It does not meet the minimum standards of practice for Land Surveying in the State of Texas. There is no record documents shown on it describing the land adjoining the subject tract as required. The surveyor who did this survey placed tract 2 (a 5' wide strip) on the wrong side of the subject tract as indicated by the location of the original lot line shown on it. Tract 2 comes from a title insurance policy and there is no "tract 2" in the original conveyance of the subject tract. In fact there is no record of a tract described in the location of "tract 2" that appears in any previous conveyance.

I make mistakes and will continue to do so however this is ridiculous. We only hurt ourselves if we abandon minimum standards of practice and fail to protect the public in favor of a quick buck for a meaningless 8 1/2" by 11" sheet of paper.

I plan to continue to post a series of these surveys that I have performed over the last few years along with competing surveys to get my point across even further. Sad day that it has come to this.

Come Ahead!

[Karl Bowles]

Chain!


Occasionally there are court decisions that seem contrary to common sense. Generally one of the ways that I view the quality of a court decision is if the decision tends to spur additional legal actions.

After the US Supreme Court case of Kelo v. City of New London (1), there has been a general movement across the United States to limit eminent domain powers. The backlash that has developed has spilled over well beyond the question of eminent domain.

As a general principle adverse possession, acquiescence, etc., does not operate against a governmental entity. Recently however we have seen some cases coming up across the United States that appear to try and reinterpret this general principle. A Michigan Court of Appeals case, Mason v. City of Menominee (2), is a case where a City park surrounds the plaintiff on three sides. At issue was a 60 foot wide strip on one side of the plaintiff’s land that was deeded to the City for a street. A street was never opened on the strip of land in question and the plaintiff apparently had a portion of their driveway there for more than 15 years (the statutory time period for acquiescence in Michigan).

In a published opinion regarding this case the Michigan Court of Appeals stated…

Notably, subsection (1) states that periods of limitations do not apply in actions for the recovery
of any land “where the state is a party.” Given the statute’s wording, regardless of whether a
state is the plaintiff or defendant, it does not lose its right to recover possession of its land after a
certain period of time. Subsection (2), on the other hand, applies to actions “brought by” a
municipal corporation. On its face, the plain language of the statute does not apply in situations
where the municipal corporation did not bring the action, which is the present case. While I find
that the statute, as worded, creates a rather illusory protection to municipalities, immunizing
them from periods of limitation only if they file the action for recovery of their land, it is for the
Legislature to fix a statute which is subject to only one, albeit anomalous, interpretation.

In other words the court was saying that the judgment they have rendered in this case is because of the wording of current State Code and that this wording may need to be revisited by the Legislature if it wishes to avoid unintended consequences stemming from the current State Code language.

Unfortunately since this ruling came down in February in the above case there has been no action on the Legislatures part. As a result of the ruling in the above case multiple lawsuits in Michigan are being filed. These legal actions are being brought by governmental entities who fear that if they do not bring such action they will be subject to legal action themselves.

Here is part of a story (3) that appeared in the Detroit Free Press today….

Dwight Watros is being sued -- for mowing.

For a decade, the Orion Township resident has been cutting grass from the back of his home all the way to a rickety, barbed wire fence separating his property from the Paint Creek Trail.

The problem is that a sliver of property at the rear of his backyard is part of the trail.

To protect the public land, the Paint Creek Trailways Commission has filed a lawsuit against 56 landowners neighboring the trail, saying they're encroaching.
The suit, a lawyer for the commission said, is in response to a Michigan Court of Appeals ruling in February in favor of an Upper Peninsula couple who sued the City of Menominee to take ownership of public land they'd been using near their home for years.

I certainly agree that public powers regarding private property rights need limits; however when governmental entities feel compelled to file lawsuits in mass against private individuals as a result of a court decision something has clearly gone wrong.


Come Ahead!

_______________________________________________________

(1) http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London


(2) http://www.michbar.org/opinions/appeals ... /41975.pdf


(3) http://www.freep.com/article/20090621/N ... landowners

[Karl Bowles]

Chain!

Under the (1) Texas Administrative Code, Title 22, Part 28, Chapter 663, Subchapter B, Rule 663.15 (d), we find the statement “Areas, if reported, shall be produced, recited, and/or shown only to the least significant number compatible with the precision of closure.”
Certainly area would be the least reliable product as a result of actual field measurements and we can all understand the basis for the reasoning behind such a rule. It follows that when expressing area it is prudent that it should be noted in a manner that allows the public to be able to understand the limitations of this product.

The reality of practice, however, is an entirely different matter. Often area is required to be noted on Land Surveyors products within the nearest square foot (2) by various local governmental entities. This is particularly true for urban areas where parcel sizes average in the range of 5,000 square feet. Lot coverage, building coverage and other matters make the area expression a critical issue for development of small parcels in an urban setting.
This question of how to satisfy Board Rules and the rules of local government entities is aggravated by an apparent typographical error in (3) Chapter 663.18 (2), which states the Land Surveyor “shall abide by, and conform to, the provisions of the state code and any local codes and ordinances not consistent with this Act.”

The Land Surveyor is faced with a certain dichotomy and this has resulted in various attempts to try and satisfy both the need to comply with the Board Rule and the need to comply with the local governmental entities requirements. For example, if we examine the Map Record (4) filed 3/31/2009 with the Fort Bend County Clerk’s office we find the area of the parcel expressed as 0.948 acres (41,300 square feet). In this example, where the area is expressed as a fraction of acreage, it complies with the Board Rule, where the area as expressed in square feet it does not. There are many examples of this and it is not my intention to attack the particular Land Surveyor who signed this Map Record nor am I suggesting they have done anything wrong. I am using this example simply because it was recently filed for public record and it is easy to access.

Area expressed to the nearest square foot is actually helpful in many situations from the standpoint of the Land Surveyor because it introduces an extra tool by which typographical errors in written or mapped land descriptions can be trapped. I have often been able to resolve ambiguities in written descriptions and maps as a result of having the scrivener or drafter express the area to the nearest square foot. For example, a transposition error of a number or letter can be identified and corrected by exploring the product of the ambiguity, computing the resulting areas and comparing that with the area in the description.

The problem with placing limitations on how area is expressed is compounded by the hypocrisy that there are no such limitations placed on how distance or angles are expressed. All of these elements are part of a description, why put limitations on how one element is expressed when the other elements do not have any such limitations? Are not all measurements expressed subject to similar limitations in precision?

Clearly arguments on either side of the issue of how area should be expressed by a Land Surveyor can be compelling.

My answer has been to rely on the Texas Supreme Court case of Bickler v. Bickler, 403 S.W.Wd 354 which stated that "Words ‘more or less’ when used in conveyance to qualify statements of quantity and descriptive calls for distance function to relieve exactness."
Thus a boundary survey report prepared by me always contains the statement “more or less” when it comes to the expression of area to the nearest square foot. The reasoning being that I believe a credible argument can be made that by using the term “more or less”, as defined by the Texas Supreme Court, I have complied with the intent of the Board Rule regarding area expression. This also allows me to make an equally credible argument that I have also complied with local governmental entities rules who desire area to be expressed by the Land Surveyor to the nearest square foot.

Regardless of how one views this issue, the time may have come for the individual Land Surveyor and the Texas Board of Professional Land Surveying to revisit the Board Rules mentioned above.

Come Ahead!

(1)
http://info.sos.state.tx.us/pls/pub/rea ... =663&rl=15

(2)
http://www.co.fort-bend.tx.us/upload/im ... egSec5.pdf

(3)
http://info.sos.state.tx.us/pls/pub/rea ... h=663&rl=8

(4)
http://ccweb.co.fort-bend.tx.us/RealEst ... etail.aspx

[Karl Bowles]

Chain!

The economic downturn of the last two years has been very hard on many Land Surveyors.

The rise of technological advances in how information is gathered and the increasing ease by which this information can be accessed has contributed to a decline the contributions Land Surveyors have traditionally provided.

Powerful business interests have attempted to reduce or eliminate Land Surveyors from business transactions which had historically required a Land Surveyor.

The number of Land Surveyors nationwide continues to dwindle with about 3000 practicing in Texas today.

Our featured speaker at the coming Texas Convention is none other than Jeffery Lucas. Mr. Lucas has suggested on a number of occasions in articles printed in national trade magazines that the majority of Land Surveyors are incompetent and therefore irrelevant.

I was born in Austin and my great grandfather surveyed land in Texas.

If you care about this profession I will see you in October.

Come Ahead!

[Karl Bowles]

Well I am once again here at the TSPS convention. It is in Austin this year and there is a beautiful weather. The Renaissance Hotel is a nice venue and am enjoying seeing all the surveyors that I never get to see enough of.

If you did not make it you are the one who has lost out because it has been a lot of fun so far.

I will keep up a live report as the convention wears on.

Luncheon was good and had a good speaker. The exhibits hall was full of vendors and I got a bunch of free neat junk. Saw some old buddies including my first college instructor on surveying, Roger Way. It was nice to see him still kicking. Saw old surveying buddies from all over the State.

Attended the party on the patio. Music, hamburgers and blankets.

Going to bed early because I am beat but I am looking forward to tomorrow.

Well against my better judgment I sat in on a Lucas seminar this morning. A perfect hot air demonstration.

Made it back to Houston and I failed to get together with a couple of surveyors I had gone to see. Kent and Hannibal you know who you are.

All in all it was a great show. I really enjoyed the James Noble Johnson seminar. Good material and good discussion.