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Monument Protection GA 44-1-15
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11/5/2014 at 9:41:44 PM GMT
Posts: 16
Monument Protection GA 44-1-15

I just got back from a pre-warrant hearing here in Monroe County.  My purpose was to take a criminal warrant against two people who I witnessed pulling up a corner pin that I had just set a few minutes earlier.  The Magistrate judge issued the warrant and the two were arrested on the spot, booked, and released on their own recognizance.  I don't know whether the two defendants will plead or fight it in superior court, and that will be several months away.

The defense attorney I was up against told the court that he could find no other cases where anyone was charged with OCGA 44-1-15.  I agreed with him that I had never heard of a case but there is one right here.

Does anyone have any experience with this in court?  If anyone is interested I'll post the details.



11/8/2014 at 12:01:39 AM GMT
Posts: 8
Awesome! Thanks for posting. I am intrested in the case.
Josh Lewis 4

Josh Lewis 4


11/14/2014 at 10:02:26 PM GMT
Posts: 16
Several of you have asked for the details of my case, so I thought I would post the info here.
My client was having trouble with his neighbor on his easterly side and wanted to put up a privacy fence. The easterly side of his 4.5 acre tract runs in a northerly direction from a pin on the right of way of the street to a point about even with his house then turns in a northwesterly direction to the back property line. The original surveyor did not set a pin at the dogleg corner for some reason so we had to do enough field work to prepare a boundary survey so I would have the info I needed to set the dogleg corner and stake both easterly property lines. I met my client and did the initial recon and then I sent my two man crew to do the traverse and as they were searching around the dogleg corner with the metal detector to make sure there wasn't a pin there already, the neighbor came out of the house raising hell that we were trespassing, that since the original surveyor did not set a pin there I couldn't either, etc, etc. She and her cousin were very vulgar and rude to my crew but thankfully they had about finished with the traverse when the neighbor showed up. My crew chief, who's been with me for 18 years, asked me to go with them when I sent them back to set the dogleg corner and set the line stakes. We went back to set the missing dogleg corner and set the line stakes and had almost finished with our last stake when she and her cousin came of of the house again raising hell. We happened to be standing near the dogleg pin we just set when she caught up with us. She said that my pin was invalid and she was going to pull it up. I immediately advised her, calmly, that if she did so within my sight that I would take a warrant against her for doing so. She reached down and broke off the stake witnessing our flush set pin (it hit at the edge of a driveway) and threw it at my rodman, who had to duck to keep from getting hit in the head with the stake. She commenced to try to pull up the pin with her bare hands and I told her again that she would be breaking the law and not to pull it up. She restated her intention of pulling it up, so I told her that if she is ready to go to jail to get a pipe wrench and twist it out of the ground. She and her cousin did exactly that but still couldn't get it up. My two guys and I are standing there watching and videoing her efforts the whole time. Her cousin retrieved a motorized post hole auger and they both held on to it trying to dig the pin up. In their doing so, I told her that just disturbing the pin was enough for the warrant. They managed to move our pin by about 0.30' or so. They continued to cuss and threaten us and our client, so I told my crew to go back to the truck and get away from the neighbors while my client and I called 911. The deputy showed up in a few minutes, we told our story, and he went over to the neighbors and told them to stop trying to pull up the pin but by then they had succeeded in getting it up. I advised the deputy that I would handle taking the warrant, and my client would handle trying to recover the damages in civil court. The magistrate judge set a court date for the next day in order to compel the neighbors not to pull up the next set of stakes and pin that we had to re-set the following day. A few weeks pass and my pre-warrant hearing comes up, which brings us to my first post. This case is not over, as my client still has to go to court to recover the expense of having his stakes and pin reset, and the criminal case will take several months to get on the docket in Superior Court.

Thank you for your interest and please let me know if you've had similar experiences.


11/20/2014 at 11:54:13 PM GMT
Posts: 20

          In my opinion, it is unprofessional for a surveyor to set corners or even to perform a preliminary survey on the ground when he/she knows ahead of time there is a boundary dispute, without first discussing the matter with all the landowners affected.  This is so even if the surveyor is confident there is no ambiguity as to the location of the boundaries based on the record evidence and evidence on the ground, and the only problem is an adjoining landowner is disputing what, in the surveyor’s opinion, is the correct location of the lines.  In addition, there is the very practical aspect that in cases in which there is a dispute or potential dispute, it usually makes things a whole lot easier and likely leads to an amicable solution if, after thoroughly searching the records in the courthouse, the surveyor sits down with the adjoining landowners, and has a discussion to try to come to a preliminary resolution before proceeding with the field work; and allowing both or all landowners involved to be present while the field work is being performed.  This is the way a professional would approach such situations.  Finally, and I’ve had this experience, adjoining landowners sometime have knowledge or evidence about the boundaries that the surveyor and client do not know about.

          You begin by saying “My client was having trouble with his neighbor….” Did you know before you began the work that there was a dispute about the boundary?  You state “I met my client and did the initial recon and then I sent my two man crew to do the traverse and as they were searching around the dogleg corner … the neighbor came out of the house raising hell that we were trespassing.”  You further state “thankfully” the field crew “had about finished with the traverse when the neighbor showed up” and that later “We went back to set the missing dogleg corner and set the line stakes and had almost finished with our last stake when she and her cousin came out of the house again raising hell.”  It sounds as if you did not so much as inform the neighbor about your survey, let alone have a discussion with the neighbor, to find out what their position was and the basis of that position.  You state “She and her cousin were very vulgar and rude” and yet you use vulgar terms in describing the situation.  You state that after setting the pin, the neighbor claimed it “was invalid and she was going to pull it up” and that you “immediately advised her, calmly, that if she did so within my sight that I would take a warrant against her for doing so.”  Further, you “told her that if she is ready to go to jail to get a pipe wrench and twist it out of the ground.”  Why did you (even at that belated point in time) not ask her what the basis was of her objection to the location of the corner as you determined it?  If the neighbor was in such a state of emotion at that time that you felt it would not be productive to hold discussions, you could have handed the neighbor your business card, dispensed with the work, and informed her that you would like to discuss the matter at a later time that was convenient to her.  Instead, your actions and statements were arrogant and unprofessional and could only inflame the situation and make it much more difficult to resolve.

          I’ve surveyed a number of tracts of land in which, as it turned out, adjoining landowners had essential evidence that was not available otherwise.  Sometimes an adjoining landowner had an unrecorded plat or other instrument.  The situation that sticks out most in my mind went like this.  About 1980 we surveyed a large tract of rural land.  I researched the tract we were to survey and each of the adjoining tracts back fifty or sixty years in the courthouse.  A medium-size creek constituted much of the boundary.  At a certain point, the creek divided and then came back together so as to form an island of several acres between the two runs.  We had the deeds, a plat of the land we were surveying, and a plat of the adjoining tract that was across the creek.  One of the plats was made in 1918 and the other was made in the 1920s.  These were the only plats I found for that area in the courthouse.  They both indicated the island and unambiguously indicated the far run was the boundary of the tract we were surveying, so that the island was part of our tract.  As we were surveying that part, the adjoining landowner, whose name was Julian G. Anderson, approached us and asked what we were doing “way over here on my land.”  We explained the situation and showed him the deeds and plats.  Mr. Anderson said “Yes, but back in 1930 we had a court suit over this island and the court ruled it belongs to me.”  Mr. Anderson had owned the adjoining tract since the 1920s.  The tract we were surveying had changed hands several times since the 1930s and the current owner had only recently acquired it.  Mr. Anderson couldn’t tell us anything else about the nature of the suit.

          I went back to the courthouse and checked the superior court files under Mr. Anderson’s name and the name of the person who had owned the tract in 1930 that we were surveying.  Sure enough, there had been a suit.  The court had ruled that Mr. Anderson owned the island as a result of adverse possession.  There was an elaborate plat made for the purpose of the suit in the case file.  This plat was otherwise not recorded and I had not found it in my initial research.  Whenever there’s a court decree about title to or a boundary of a piece of land, the attorneys should record a copy of the judgment in the deed records to put people on notice about it, but they sometimes fail to do this, and they did not do it in this case.

          Under OCGA § 44-1-15, the actions by the neighbor that you describe are, at most, a misdemeanor.  Misdemeanors are initially tried in state court, nor superior court.  There are no Georgia appellate cases dealing with OCGA § 44-1-15.  If the state court solicitor decides to prosecute this case, and the defendant(s) contest, its going to cost the taxpayers several thousand dollars.  Often, a solicitor will consider such issues more a civil matter than a criminal matter, will refuse to prosecute, and will recommend that the aggrieved party file a civil action for damages and a restraining order.  If your client sues the adjoining landowner, the cost of the suit will probably exceed whatever amount is recovered.  If you and the client have conducted yourselves as you seem to describe, the client is unlikely to be awarded punitive damages.  Whatever the outcome, there will be permanent ill-feelings between these two neighbors.  All this may have been avoided if, in the beginning, you had had discussions with all the parties about the matter to see what they had to say, and to point out the advantages to each by coming to some sort of agreement as to the location of the line and about allowing you to set the corners.

   

Farris Cadle


11/24/2014 at 12:42:49 AM GMT
Posts: 8
Thanks for sharing your point and your experiences Farris. I commiserate with Steven and his situation, yet at the end of the day we are just trying to gather evidence to best retrace the footsteps of the original surveyor. Talking with all parties is a gateway to more information, and INFORMATION is the elixir to our duty as surveyors.
IT is just hard dealing with crazy people.
Josh 4

Josh Lewis 4


1/2/2015 at 9:58:16 PM GMT
Posts: 16
If a layperson read Mr. Cadle's response to my post, they would certainly believe that I was an unprofessional, vulgar, fumbling, bumbling idiot who was gong to cost the taxpayers several thousands of dollars.

When writing my original post, I was speaking to my fellow land surveyors. I knew most of you had similar experiences and may like to hear a brief synopsis of mine. I did not take the time or space to detail the entire situation. I feel Mr. Cadle made some unwarranted assumptions about me, my professionalism, character, common sense, etc.

I will not defend myself to Mr. Cadle,, but ask that if you question my abilities or professionalism, to inquire as to my reputation with my peers and the public. I don't want to come across as arrogant, but isn't ones reputation over time a better judge of ones professionalism and character? I have worked hard to build a good reputation and I feel it is unfair and unprofessional to judge me so harshly by one hastily put together post.


1/7/2015 at 7:11:58 PM GMT

STEVE COLEMAN

We, as surveyors, have a responsibility to our clients. We represent that client exclusively, as does an attorney. When found to be legitimate, it is our client’s argument that must be the anchor for our devotion. I assure you that Steve Coleman knew from research (a) the location where he should set the “dogleg” corner; and (b) that setting the corner was proper and was his duty for his client.

I would wager that the majority of readers are interested in Mr. Coleman’s well thought and professional remedy of pursuing statutory resolution by involving law enforcement, not to mention his extraordinary confidence. I commend Mr. Coleman for his resourceful response for his client who, I am sure, would have had no interest in paying for a quest to quell the argument of the hostile neighbor.

In Steve Coleman, we have a fellow surveyor that can think “outside the box” of indentured role playing and instead, find a solution within the law. As with Mr. Cowherd’s problem in Baldwin County, it is the enforcement of our laws that provides resolution. The land surveyor must be allowed the enjoyment of equal protection under the law. The law is the law! The surveyor too, may rely upon it.

We operate within the confines of budget. We rely upon our studied understanding of each job prior to quoting. Mr. Cowherd’s plans for recovery of his loss due to the unexpected, non-enforcement of existing law is but one more example of the necessary extremes requiring the attention of law enforcement. I wish him success.

In the totality of useful rhetoric that finds its way to this forum, Steve Coleman’s sharing of his very unique surveying problem is, in my opinion, the most refreshing and vitally important infusion into the logical application of land surveying principles that has emerged in quite some time.

Steve Coleman’s reputation and his professionalism around Monroe County is unassailable. I am sure that this distinction can be attributed to this very type of confident service to his clients.

Terry M. Scarborough


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