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Plat problems: Surveyor tells county about problems with subdivision’s layout

May 28th, 2018 by

Plat problems: Surveyor tells county about problems with subdivision’s layout
By Jamie Kelly editor@willistonherald.com May 16, 2018 on Williston Herald

A subdivision in Williams County might need to be re-surveyed, and it isn’t clear who will need to bear the cost of that, the Williams County Commission heard Tuesday morning.

Blake Sexton, a surveyor, told the commission that he’d been hired to lay out the property lines of a lot in the Muddy Valley subdivision, which is located off 54th Street East, when he found a problem.

“It’s apparent there’s a discrepancy between the official plat and what’s on the ground,” he said.

After discovering the issue with the boundary lines he’d been hired to survey, he looked into it further.

“The issue is not just limited to one or two lots or the one block,” he told commissioners.

The problems include the fact that the current road is not where the road should be according to the plat, and that there aren’t the right easements recorded. With homes being built there, that means people could start using property they think belongs to them but actually belongs to a neighbor.

“There’s a whole lot of issues going on here,” Sexton said.

He said he brought it before the commission because state law has a provision for a corrected plat to be issued. That requires a public hearing with notice published 10 days ahead of time and the commission would have to pass a resolution saying the plat needed to be corrected.

Commission Chairman David Montgomery asked how the error happened. Sexton said it appeared the person who originally surveyed the subdivision, who worked for Westrum’s Land Surveying Inc. and has since retired made a mistake.
Under state law, the county would have to pay for the new survey and plat, and the cost would be assessed to property owners who benefited from the change.

Montgomery said it didn’t make sense for the county to be responsible for the error when the commission accepted the plat based on the recommendation of the original surveyor.

“It should fall back on the person who messed up,” he said.

Commissioner Martin Hanson agreed, saying unless the county hired staff surveyors to follow up on the work done by others, there was no way to check for errors.

“I have a real hard time figuring out why the taxpayers of Williams County are responsible for paying to fix someone else’s mistake,” Montgomery said.

He also wondered if it might be a better option for property owners to band together in court and force the original surveyor to fix the plat.

“It’s in the county’s jurisdiction,” Commissioner Steve Kemp said.

Sexton said he wasn’t sure if all of the property owners were aware of the problem.

“Well, they’re going to find out,” Montgomery said.

County attorney Karen Prout said the commission was the only body with the authority to fix the plat problems.

The commission voted unanimously to have Prout and County Surveyor Pat Beebe to research what the county should do next. They are expected to give their recommendation at the commission’s first meeting in June, which is scheduled for 8 a.m. on June 5.

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New York’s Former Adverse Possession Law

February 15th, 2018 by

Prior to 2008, the New York rule allowed for a broad interpretation of the elements of a successful adverse possession claim. New York recognized a successful claim even if the adverse possessor knew, upon occupation, that the land was another’s. Additionally, New York’s former law allowed for a wide range of productive activities that would be considered adverse. A claimant only needed to show that the land was “usually cultivated or improved” or “protected by a substantial enclosure” under his direction for the ten-year statutory period. The courts recognized that the simple acts of mowing the lawn or building and maintaining a fence for the statutory period were sufficient for successful adverse possession claims. Even the placement of shrubs was deemed sufficient.
Many legal scholars suggest that adverse users with intent to divest their neighbors of their property should not be rewarded for their malicious purposes. However, the intended focus of adverse possession was not on the knowledge of the industrious user, but rather on the failure of the title owner to act. Even if the adverse user was using and maintaining the property with the subjective intent to gain title through adverse possession, his objective could not be realized without the failure of the current owner to either (1) put his own land into production or (2) thwart the adverse user’s actions. Therefore, the owner cannot blame the adverse user’s occupation for his loss, but rather his own failure to be a personally responsible landowner by not regularly inspecting, maintaining, and controlling his own property.
Mowing the lawn, building a fence, and planting shrubs may be considered trivial acts at first glance, but a deeper examination reveals that these actions exemplify adverse possession’s intended principles. The owner’s failure to inspect, maintain, and control his property frequently prompted the adverse user to engage in these activities. Aside from the adverse user’s knowledge (or lack thereof) of ownership of the disputed property, his actions put the otherwise untamed property into productive use. These actions serve the community by conserving the neighborhood standard and maintaining property values. Furthermore, the adverse user provides this service through his own labor and expense. Therefore, when title transfers to the adverse possessor, it rewards him for picking up the slack of the now former owner. Likewise, the prior owner is penalized for neglecting his property, which, if not for the adverse user, would have fallen into unsightly disrepair.
Lastly, the former owner cannot claim that he is overly burdened by the requirements to inspect, maintain, and control his property. In New York, the owner could accomplish this responsibility simply by walking his land once every ten years and giving permission to those engaging in activities on his property. Failure of the owner to even engage in this simple activity clearly shows his lack of personal responsibility and care for his holdings. Once again, a primary goal of adverse possession is to award land to those “who value it much more highly than . . . the record owners.”

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