Lawsuit in the news

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.

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(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

Boundary dispute in the News

This is a story that tends to show how little the public understands about the profession of Land Surveying.



This particular matter revolves around a misunderstanding by the public as to how record boundaries are established and perpetuated. This misunderstanding has led to statements and questions from various parties which are patently absurd but continue to be repeated.



From the story in the Union Leader....

Another Spruce Street resident, Cindy Seneca, said she wants Chelsea to pay
for a survey of her property.

She said the Chelsea surveyor only made use of two markers, despite the
presence of 16 or so iron pipe boundary markers. She said the surveyor should
have measured 11 feet from the edge of the street.

Guy Praria said he ask the Chelsea's surveyor why he wasn't using the metal
pipes.

"They told us "We're doing it the way they want us to do it." Praria
said.

Later from the Naushatelegraph this comment.....

Normally the town holds an easement to the front property line and does'nt
own the 11 feet.

Above is a survey map of the situation. This survey was performed in 1996 and filed in the record. Now I don't know much about this situation but from just viewing this survey a number of things come to mind. The stone bounds (sb) shown on this map are more than likely the original monuments defining the recorded subdivision map. Subdivision maps are filed for the purpose of defining the boundaries within the subdivision by simultaneous conveyance.

The iron pipes shown on this survey which are more than 9 feet beyond the boundary of the subdivision were subsequently set (after the stone bounds) by surveyors who were apparently in error. No doubt the pipes were set to purportedly mark the boundaries of the lots within the subdivision but they failed to be set at the record location of the boundaries in question. These subsequent marks (the iron pipes) have no bearing on the record location of these lots which the surveyor is charged with locating.

The iron pipes in question may be evidence of possession and could possibly be evidence to bolster the argument that some of the owners of lots within the subdivision believed these iron pipes marked their boundary. However the surveyor has no power or authority to resolve the conflict between the record loction of the boundary and the boundary of possession. Adverse possession, acquiescence and other unwritten rights are perfected in only two ways.

1) The concerned parties all agree that the land in question is owned by one or the other and they record a document for public record acknowledging this agreement (quit claim deed, boundary line agreement, warranty deed, etc.).

2) The court awards the property to one or the other of the concerned parties as a result of legal action.

The Professional Land Surveyor has no right to adjudicate these matters nor do they have the power or authority to change the record descriptions of the properties in question to "force" the concerned parties to somehow agree on a new boundary between them.

The only competent statement I can find in this entire mess is the quotes from the lawyer in the above story. The lot owners within the subdivision may have a valid claim of adverse possession or some other legal operation suggesting they have acquired the land in dispute. But these matters are settled between the concerned parties or through legal action and are not within the preview of the Land Surveyor to grant.

The Land Surveyor in this case may have advised their client that they could lose a legal action because of the possibility that adverse possession or some other legal operation may have superseded the record boundary and created a new unwritten/unrecorded boundary. However the Land Surveyor's client is free to take any position they wish, after all they are the owners of the land in question, not the Land Surveyor.

All too common story (should have had it surveyed)

A common story emerges over and over again and with greater and greater frequency. A property is purchased on the basis of certain unverified claims as to it's nature. Later when a survey is performed these claims turn out to be untrue. The new owners of the property search for somebody to blame for these mistakes through the legal process but find only themselves in the end.

Should have had it surveyed!

Unfortunately the public has so many misconceptions about Land Surveyors and what they do there are few consumers who realize the benefit of a land survey before it is too late. This problem is compounded by misinformation put forth by others associated with real estate transactions who have their own partisan agenda at stake, i.e. they want the real estate transaction to close. Many of these problems are due to the business practices of Land Surveyors themselves.

The consumer in most cases is completely unaware that the Land Surveyor's role is of a character that few others associated with a real estate transaction can assert. The Land Surveyor is required to report all of the facts to all the concerned parties regardless of what the concerned parties may believe or want to be true about the property in question.

Land Surveyors who base payment of their fee on the condition that the transaction on the property in question "closes" are violating the RESPA laws . Common sense should tell the consumer that Land Surveyors who practice "no close, no pay" business can only have an opinion that is biased. Most consumers however continue to be completely unaware of these facts.

Mistake in reading Surveyor's map closes park

Gilligan's Island Park was closed indefinitely in Camden County, after it was discovered it was mistakenly built in the wrong location. The mistake was made as a result of interpreting a surveyor's map incorrectly.

A Pavilion, picnic tables and a retaining wall were constructed on a property that is not part of the park. The cost of constructing these improvements was 29,000 dollars not including labor. The popular park is now closed until the matter can be settled with the true owner of the land. The true owner of the land has been unable to market the property as a result of this mistake and is taking legal action to recoup financial losses.

Why am I doing this?

Dylan Thomas once wrote a poem entitled "Do not go gentle into that good night".

Apathy is the only sin there is if you are a human being.

Beliefs must constantly be tested, this is how faith is born.

Mere animals are comfortable within their own skins, a human being will never be.

Plato said "the price of apathy toward public affairs is to be ruled by evil men".

I choose to rage.

You can make your own choice.