MDNY, I'm not familiar with the situation under your rules (your governing laws and precedents) but do be careful regarding surveys. If you were in my area you would be smart to let the surveyor know up front that you wanted the results of the survey recorded at the county courthouse (can increase their diligence among other benefits). I am currently being tossed on the horns of a dilemma because of two non-congruent surveys. In my case a 1.2 acre parcel was cut out of my land due to the previous owners divorce prior to my purchase. There is therefore a "less and except" description of that 150x350 ft parcel as part of my abstract of deed. There are pins in the ground at the four corners. Sounds pretty straight forward so far, right? The pins are in fact at the corners of a 350x150 rectangle to a fair degree of precision, goody goody for the original surveyor, but wait, there's more.
I hired a good surveyor with late model GPS equipment and plenty of experience and he determined that the first surveyor had made an erroneous assumption and all 4 pins are about 5 1/2 feet west of where they should be and where fences and posts are, on two sides of the parcel (other side not fenced yet. It seems that not all sections (in theory 640 acres-one mile square) are created equal and my quarter section (1/2 mi x 1/2 mi) is a quarter of a larger than standard section. So when following the description as set forth in the "less and except" wording AND you assume a perfect section you are in error. In this case it turned out to be about 5 1/2 feet. The area of the parcel is the same but the boundaries are off. My gun crazy nutso neighbor does not want a fence put around him and both he and his wife have flatly stated that they will not allow it.
My quandary is that if I use the original pins and make use of the existing pipe fence, it could easily be shown that I am placing the boundary in the "WRONG" place and since this guy essentially has made his living, since retireing as a SWAT cop, suing people I don't think that is a prudent action. On the other hand, if I use the "new" survey he would likely have me in court arguing for grandfathering the original survey. He has lived there now almost 3 years and we only recently found the error after I noticed he had put an ornamental fence across his frontage that extended over 10 feet west past the "old" markers. When I told him it seemed to go too far he threw a tantrum and hired a surveyor who found the old pins and confirmed that they described a 350 x 150 parcel BUT they issued no report nor recorded the survey nor discovered the original survey error.
That is why I said be careful. Just hiring a surveyor and sticking some pins in the ground isn't always a simple thing with clear cut results. One of the benefits of recording the results of the survey is that it documents your "defense" of your borders and would weigh heavily in an adverse possession type situation. Sometimes you may find that a neighbor with no ulterior motives or designs might participate in funding a survey, especially if they are also issued an official report that is recordable should they chose. Could save them or their estate money in the future by going in with you. Maybe that opportunity has passed for you. Oh, well.
I hope your situation never gets as tangled as mine. I'm going to try to preempt any legal hassle with my neighbor by trying to get a county judge to essentially rule in advance on which pins to use rather than picking one and having the neighbor fight me on it. I had my lawyer send the guy a letter telling him, among other things, he had 20 days to say which pins he prefered I use or I would pick but he did not answer which led me to believe he was waiting to complain no matter which way I went. Yet another stonewalling manuever since he doesn't want me to put up a fence. He will go ballistic when I start putting up the 7-8 ft rock (bullet proof) wall around him.
Patrick
