Real Estate - The Surveyor's Relation To Real Estate
( Originally Published 1911 )
Necessity for accurate survey.—When dealing with land as the subject of commercial transactions or as an article of use it is important that the extent of the land be ascertained with minute accuracy, as well as the relation to the land of the structures upon it and surrounding it. This is the subject of a separate profession—the profession of the surveyor. A surveyor has nothing to do with the question as to whether the title be good or bad, and it is an assumption on his part when he attempts to give his opinion as to market-ability of title.
The survey.—Having been provided with a description of the property concerning which he is employed, the surveyor makes his return upon a diagram. These diagrams are horizontal projections of all structures and encroachments that are found upon or bounding the premises. There are two elements to be taken into consideration in determining the result of a survey, first, the property owned by the person whose land is being surveyed; and, second, the relation of the structures and encroachments to the land thus owned. Having in mind the extent of ownership of the person whose land is being surveyed, the first and most important thing to consider, is, are the structures entirely within the bounds? Every time they are not, an important question of marketability of title arises, and in order to solve the question of marketability of title, a person must be familiar with the principles of law applicable to the situation.
Encroachment upon highway, etc.—An important consideration always is not only to find out whether the building encroaches upon a neighbor's land, but whether it keeps off the public highway. The public streets of cities are often owned in fee by the city, but charged with the public use. In country communities they may be owned in fee by public authorities, or the public authorities may have acquired, on behalf of the public, an easement to use the highway for travel, the title to the land remaining in the original owners or their grantees or successors in title. In either case, except with the authority of the legislature, no person has a right to obstruct the highway, especially with a permanent structure, and appropriate it to his own use. The fact that a person may be liable to pay damage for an encroachment, or the fact that he is liable to have his building removed from a neighbor's ground, makes his property not as useful as it would otherwise be; and may make it a different thing essentially and commercially from what it was represented to be when the con-tract was made. A purchaser is not compelled to take a title unless he gets upon the property those structures which were the subject-matter of his bargain, with a good right to maintain them.
Beam rights and party walls.—If a building has three walls and a good beam right in an adjoining wall to maintain the fourth, that three-walled structure would be a good delivery, and a marketable title. In the same manner if a house is supported by party walls, and a person purchased the building with a good party wall right, it is a good delivery and the title is market-able with respect to that. It need not be specifically set forth in the contract, but it is usual to be fair and mention it.
A good party wall right may arise either by special agreement between the owners of the two neighboring structures, or because the builder of the houses described his line as running through a party wall. A party wall must remain so long as it will naturally stand and either party wishes it to remain for support of his structure. If it be destroyed by natural means, unless there be special agreement to that effect, neither party has a right to have it restored. If one owner remove his building he must leave the entire wall for the support of the remaining building; and if he wants to put a new structure on his land, he must either incorporate it or build around the party wall.
Encroachment by neighbor.—A building may be entirely within its bounds and somebody else may be encroaching with his structure upon it. In such a case the title to what remains unencroached upon is not affected by the fact that another wall comes over upon the lot. When considering a survey where property is encroached upon, the question is not so much a question of marketability of title, as it then becomes a commercial question, and the courts will so consider it. If the court finds that the encroachment by the neighbor's structure does not materially diminish the property purchased, so as to make it substantially different in value from the subject of negotiation, the purchaser will be compelled to take. If the court does find that it is substantially different, the purchaser will not be compelled to take, or will be given an allowance for the difference in area, depending upon the facts of the case.
What a survey should show.—In rural communities or residential streets of cities, it is often important that houses shall set back from the street lines, and that there shall be restrictions as to the character of the encroachments. The information to determine these things should be upon the survey.
In cities there are various encroachments upon public streets which are not clearly authorized, such as bay-windows, porches and porticos, and a survey should show all encroachments of this character.
Another important subject which should be shown by a survey is the relation of the premises with regard to street changes. Village communities are laid out either by selling lots along a road or street or having a map made by a surveyor who simply takes a field and cuts it up into such number of lots as seems to him advisable. He seldom locates his streets accurately, or monuments them in any way. As a city grows, it takes in these village communities, and imposes its accurate street system upon these inaccurate street and lot lines, and it is important that a survey should show the relation of the present or projected street system to the former layout of the lots and streets.
A modern sub-division survey.—ln making a survey of a tract to be subdivided the surveyor gives the meridian to which he refers his line, and the distances of the salient corners of the property from a definite assumed point. He locates a definite street, or road and the perimeter of his tract; then he is prepared to cut it up. There is not only a definite piece of land to be cut up and shown in its divisions, but the places from which to measure in order to find any subdivision of any piece of land are shown and can be identified on the ground by monuments.
Builder's surveys.—Another important function of surveyors is to furnish to persons intending to erect structures, information as to how and where to locate those structures. A person may own a lot, and think he knows just where it is, but if he were directed to put a wall around the perimeter of that lot, he might not be able to pace it off. It is the duty of a surveyor to make marks on the ground indicating where structures may be put with relation to the ownership of which he has been informed, and also indicating the perimeter of the lot. He furnishes a diagram showing where those marks are, and gives information as to where the highest point in the curb is opposite the property, and also gives the grade. Very often the entire lay-out of the building is importantly influenced by the depth of sewer level. Having a proper survey an owner can do two things: he can instruct the architect what kind of building he wants; and can send the builder there to strain his line from the marks on the curb to the back of the lot, and start his foundation work.
It is not wise to assume when negotiating for a building operation, that having gotten a building mark from a surveyor, that is the end of the survey. After the builder has put in his foundation, it is the part of prudence to call the surveyor in again and test the lines before starting the brick work.