The Monument the Client Wants Forgotten
You are retracing Parcel B for a sale closing in ten days. At the northwest corner you recover a 1904 concrete monument with a legible 'B' and, 1.2 feet east of it, a 1996 iron pipe set by a licensed surveyor whose recorded map shows the same corner. The owner's fence runs to the 1996 pipe. Your client, the seller, tells you the 1904 monument 'was probably dragged there' and asks you to (a) omit it from the map, (b) set your new corner at the fence and sign a plat showing the fence as the boundary, and (c) later testify as an expert that the fence is the true line. He also asks whether the 1.2-foot strip can be conveyed to the neighbor before closing to 'clean it up.'
1. You find the 1904 monument and the fence. How do you answer the client on points (a), (b), and (c)?
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(a) No. Found monuments are evidence, and the surveyor's obligation is to depict the evidence found, including monuments that undercut your client's position. 'Probably dragged' is speculation; the 1904 monument is conclusive only of where it is, but its recency, character, and scribing make it the best evidence of the original corner. If the 1996 pipe also bears on the corner, both appear on the map with their relation stated.
(b) No. The fence is a line of occupation. Setting a monument at the fence would effect a boundary by agreement, which requires both owners, in writing, and typically recording. Signing a plat that labels the fence 'the boundary' would be a false certification.
(c) Not as an advocate. You may testify to observed facts and give an objective opinion, but you cannot be a partisan for a line the evidence contradicts, and you must disclose the 1904 monument. You cannot accept an engagement whose purpose is to misrepresent. If the client insists, withdraw - but first confirm your statutory filing obligation, which the client cannot waive.
2. What must the record of survey show, and when must it be filed?
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Filing is triggered by establishing a corner, by the discrepancy between the 1904 and 1996 monuments, and by the conflict between both and the line of occupation. File within the statutory period regardless of the closing date; a pending sale is not an excuse.
The map should show:
- the 1904 concrete monument, its character, condition, and ties;
- the 1996 iron pipe, its cap, and its position 1.2 ft easterly;
- the fence with measured offsets from each monument;
- record dimensions versus measured dimensions, with the basis of any corner you set;
- a clear statement that which monument fixes the boundary - absent agreement or adjudication - is a legal question, not a survey finding.
Copies go to the client and the county, and the client should be told in writing, at the outset, that the map will not favor him.
3. Can the 1.2-foot strip be conveyed to the neighbor before closing?
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Not as a casual quitclaim on the eve of closing. Transferring a sliver of land between adjoining owners is a boundary line adjustment or lot line change, and in most jurisdictions it requires:
- a written agreement signed by both owners, supported by a survey;
- approval or recording under the local subdivision/land use ordinance, which exists precisely to stop the creation of substandard or nonconforming parcels;
- confirmation that the shift does not create a lot below minimum area, width, or setback, or violate zoning;
- recordation before the adjustment takes effect.
A 1.2-foot quitclaim may create an illegal lot, and it may not resolve anything if the 1996 pipe turns out to be the correct corner. Ten days is ample time to do it right if the parties agree; it is not a reason to shortcut. Where the dispute is genuinely a monument-versus-monument question, a recorded boundary line agreement is the better instrument, and both owners need counsel independent of yours.