Can monuments be reset in a different position

[Ian Wilson]

Evan:

I don't thinbk anyone has advocated giving authority to ther land owners to remove monuments. What has been advocated is that surveyors who find their own monuments to be in error have the authority to remove them as long as there has been no reliance on those monuments.

[E_Page]

I don't think I've read any posts as having advocated that other landowners could come in to disturb someone's monuments.

But I have read (unless I've misinterpreted) that landowners do not have the right to disturb their own monuments because they are owned by "the public".

[Ben Lund]

California Civil Code 841 “Maintenance of Monuments and Fences” reads:
“Coterminous owners are mutually bound equally to maintain:
1. The boundaries and monuments between them;...”

Streets and Highways Code 732 states, “Any person who willfully injures, defaces, breaks down or removes any monument or stake placed, erected or used by the department or designate any point in the boundary or survey of any State highway or proposed State highway is guilty of a misdemeanor.”

California Penal Code Section 605
“Every person who either:
1. Maliciously removes any monument erected for the purpose of
designating any point in the boundary of any lot or tract of land, or
a place where a subaqueous telegraph cable lies; or,
2. Maliciously defaces or alters the marks upon any such monument;
or,
3. Maliciously cuts down or removes any tree upon which any such
marks have been made for such purpose, with intent to destroy such
marks;
--Is guilty of a misdemeanor.”

[E_Page]

In 841, the general public, being me, you, and all CA citizens, have an interest in the monuments that fall under that category. It's specific to State owned RWs and boundaries.

In the 2nd, malicious intent must be shown. You would be hard pressed to show that regarding 2 neighbors who got together and jointly decided to pull the iron between them in order to put a fence post in it's place.

605 still does not speak to ownership or control of the monument. It more or less paraphrases Deuteronomy 19:14 "Thou shalt not remove thy neighbour's landmark, which they of old time have set in thine inheritance, which thou shalt inherit in the land that the LORD thy God giveth thee to possess it." and Deuteronomy 27:17 "Cursed be he that removeth his neighbour's landmark. And all the people shall say, Amen. "

The Lord is pretty clear on property rights and who owns the monuments, or landmarks. But then again, he doesn't seem to be too keen on anyone removing them.

[Ric7308]

Evan,

Please point out to me where it says that Civil Code 841 is specific to State owned RWs and boundaries. I can't seem to find that.

Ric

[E_Page]

OK, Ric, I read too fast. I was referring to 732 with that comment.

841 actually confirms the mutual ownership by the adjoining landowners. If they choose to maintain the boundary and monument between them by replacing a chincy little rebar with a 2" galvanized fence post with chain link attached, what law have they violated?




As a surveyor, I am irritated each time I find a monument disturbed or destroyed when I go to locate it. Sometimes I'm almost enraged, such as when we were working really hard to place them just right in the rocky soil of the hills just above the aptly named Rocklin, just to watch the fence builders come right behind us, see the boss' little plastic cap and pull the whole thing to auger a hole and place a wood fence post right there.

Some monuments do belong to the broader public, and certain others, while they may be useful to us as reference points from which to re-establish other positions, do not in themselves have those interests attached.

A controlling street mon is missing, but we have an RS that shows its relationship to a couple of back corners or side line angle points to a nearby lot. We may want to and be able to locate and use those monuments as reference mons to re-establish the location of the missing controlling mon, but that was not the intent of their placement.

A RS or a CR may show ties to a nail in a power pole or to a fence post. Does that mean that those objects now have the interests of the greater "public" attached to them and the people who think they own them no longer have the right to disturb or replace them? This argument can move around in the gray and get ridiculous pretty quick.

The point is, you may wish it were otherwise, but if a monument is not for some public boundary or set by a public agency for some other intended public use, if its position is not controlling the position of other properties, then those owners whose line it marks have the mutual right and responsibility to maintain it. Nobody else has that right, responsibility, or authority unless invited (hired) to do so. If they mutually agree to maintain that boundary with a mow strip, that's their choice.

Conversely, once we have set a monument, correctly or otherwise, and once the affected landowners have had the opportunity to have relied on it, it is no longer our decision to make on our own what to do with that monument. And I would venture to say that would include coming in and placing another monument nearby in the correct position. Placing one and leaving the other sets up the probability of future confusion and is in no way serving the client or the public.

The client, in fact ALL AFFECTED LANDOWNERS, must be brought in to the decision. Like it or not, it is now their decision whether our mistake remains memorialized or they allow us to clean up our mess.

If they don't want you to move the monuments, file a Certificate of Correction to reflect the actual placement of the monuments. That IS public record and does belong to "the public". That's as far as our authority as surveyors extends.

[Jim Frame]

"841 actually confirms the mutual ownership by the adjoining landowners."

As I read 841 it doesn't address ownership of boundary control monuments at all. It does state that the coterminous owners are bound to maintain them, but that's very different from awarding ownership.


"If they mutually agree to maintain that boundary with a mow strip, that's their choice."

I agree. However, as with Civil Code §841, the right to remove a monument isn't the same as ownership of it. Ownership implies exclusive right of disposition, and I contend that coterminous owners share at least a limited right of disposition with the professional land surveying community. That is, wherever a boundary control monument exists, land surveyors have not just access to it (CPC §602.8, CCC §846.5, BPC §8774), but also the right and responsibility to ensure that its character and location do not confuse the representation of title line locations.

Going back to the original subject of this thread, I believe that this right permits a licensed land surveyor to move a monument that he placed in error to its correct location, subject to reliance issues addressed above. It also permits him to rehabilitate and/or replace an insubstantial monument with one more substantial. The landowners may be able to remove the monument entirely, but as long as it's in place their right of control over it is subordinate to some degree to that of licensed land surveyors.

[goodgps]

Would the Deuteronomy law and Civil code 841 all be referring to the "correct position of the land owners/neighbord monument" ?

If one is speaking Bible, then there is scripture that says something about an ignorant fellow sees himself i the mirror (with perhaps a bad hair day) but doesnt do anyhting to correct the problem.

I believe the opening thread was a question of surveyor morality. Should we correct an error when we find it, and if it is ours, can it be corrected on the down-low. Or should our souls be bared to the public in the form of a cert of corr. or other documents.

There have been many opinions shown as well as laws stated.

1. I'm for the idea that if there is no victim,then there is no crime. ie; monuments no acknoledged by anyone so far.

2. Correct the position with a corner record (remove the errant one) When property owners have acknoledged the position but have not acted on it.

3. File an amended map or LLA when owners/others have used the errant position for improvements.

These suggestions are only pertinant to the original surveyor and his monuments.

If you find the "other guys" monuments to be off. you can call him, call him wrong, call the board, call his Mother I dont care, just do so in a mannor that you would wish to be treated in the same situation.

Just remenber. If we truely are trying to upgrade the profession it is imperative that we tidy these things up without much ado.

When you tie one surveyor to the public stockade, the entire profession is on display.


"good" H

[Ian Wilson]

[D]o so in a mannor that you would wish to be treated in the same situation.

When you tie one surveyor to the public stockade, the entire profession is on display.

That. sir. is something that should be embaloned on a wall in every survey office in the state, if not country.

Game, set, match to Mr. Good....

[Ric7308]

Now that I have had some time to think about this, I can start to put down in writing what I believe my thoughts are on this subject.

I believe that Civil Code Section 841 bestows upon land owners the inherent responsibility to jointly protect the existence, and/or any evidence, of common boundary monuments (and assessories) . The historical idea of why a boundary is physically marked in the first place is to serve as open notification to the limits of individual ownership. When another party acquires ownership of land, the responsibility is inherited as with the previous owner.

I believe that through the uniqueness of training, education and knowledge, Land Surveyors are, and have historically been, bestowed the inherent responsibility of maintaining any and all physical markers serving as notification to the public of limits of ownership. Similar to a utility district whereas the district has the responsibility to maintain the utility system or "assets" for the benefit of the public, we are the "stewards" tasked with maintaining the monument "assets" for the public. I believe this is spelled out and/or implied in B&P Code, Sections 8726(c) & (e), 8760(b), 8765(d), 8771, 8772, 8773, and 8773.3.

I believe it is a joint responsibility between property owners and Land Surveyors to coordinate these responsibilities in an effort to preserve that open notification on where the limits of ownership boundaries exist.

Based on these basic principles, I believe that no one "owns" the monuments, and I believe that everyone "owns" the monuments...in common.

Ric

[Ric7308]

I believe the question presented to us was "Can a Land Surveyor pull his/her own monuments?"

B&P Code Section 8725 states "...It is unlawful for any person to...set, reset, replace or remove any survey monument on land in which he or she has no legal interest, unless he or she has been licensed...under this chapter."

B&P Code Section 8726(e) states "...determines the position for any monument or reference point which marks a property line, boundary, or corner, or sets, resets, or replaces any such monument or reference point."

B&P Code Section 8764(a) states that a Record of Survey shall show, among other requirements, "All monuments found, set, reset, replaced, or removed,..."

First, just to get it out there and out of the way, I believe that if a Land Surveyor does not have the right to set another Land Surveyor's monument, then a Land Surveyor does not have the right to remove another Land Surveyor's monument.

In regards to the question presented, I believe that all conditions (passage of time, reliance, etc.) need to be considered thoroughly when confronted with the situation where a Land Surveyor discovers that he/she (or subordinates) set a monument incorrectly. Removing a monument may have just as much impact, if not more, as setting a monument.

Staying in context with my previous post on monument ownership, it is imperative that whatever action takes places, that property owners and Land Surveyors jointly have the responsibility to perpetuate historical existence of markers serving as open notification to limits of ownership...regardless of whether a marker was set correctly or incorrectly. A property owner has no way to determine how much in error a specific monument is in marking the true location and may rely on the position of the incorrect monument...along with adjoining property owners. Only a Land Surveyor can determine the quantity of that error. Sometimes, it takes more than one Land Surveyor! Property owners look to the Land Surveyor for properly maintaining the integrity of the monument "assets", as discussed before.

Removing ones own monument should be addressed on a case by case basis. Which, the possibility exists, that when all things are considered in each case, the result is that no monuments are removed.

Ric

[Ben Lund]

Well said Ric. I feel like I have a better understanding now of the code and also the correct interpretation of the code.

[Ric7308]

Skip, good addition and pertinent.

Ric

[Gromatici]

People may "act" upon the monuments we set in error without our knowledge. Because of that I think the proper procedure for "correcting" monuments "you" set to their "correct" position is to file an RS showing or "tying out" the position of the "wrong" or incorrectly set monuments and then show the corrected monuments as set and perform a Lot Line Adjustment. Of course you'll need the owners consent. This is because there is a "material discrepancy" and it could very well be that another survey wrote an easement based upon the incorrectly set monuments or any other type of scenario and the principle as outlined below.

Addressing only interior lot lines:

Some have argued that when the crew goes out and stakes 20's and 80's and sets 1x2 for grading that they are the original surveyor and if those where set out of position and later "corrected" with the final monumentation that the "owner" i.e. subdivider has a valid claim to sue since the original line and thus legal line is where the first monuments where set. The intent of the subdivider is shown by patent or latent evidence and not parole evidence. You can see the intent from the deed and his actions - setting of monuments, steel or otherwise. This principal cannot be severed by the character or mathematical misplacement of the monuments.

Please see sec. 12.9 of Brown's Boundary Control and Legal Principles 5th ed. which discusses "original surveyor" and retracing surveyors trying to correct "errors" of the original surveyor. The only question in my mind is: If I do a subdivision and monument a common line a couple feet off in 2008 and come back in 2010 while "retracing" myself am I still the "original" surveyor or the "retracing" surveyor? If I'm the latter, I cannot alter the boundaries but must file a Record of Survey. Only if parties involved want it to be in the "correct" position can I alter it and file and RS and .............. perform a Lot Line Adjustment (4 or fewer Parcels - Final Map if you really screwed-up on 5 or more); As I understand it.

Another good question is: How much time must go by before the monuments set or "unalterable" except by re-subdivision? What if you came out the next day- no problem. What if you came out 6 months later and there is a brand new shinny retaining wall? Too late!

[E_Page]

It seems that after much discussion and some disagreement on the side issue of monument ownership, we are basically in agreement on the original question.

If it's your own monument set in error, you may correct it if there has been no actual reliance, and with the knowledge and consent of the landowner. (any dissent on that statement?) If there has been reliance, your options are more limited. As Eric stated, if the landowners have relied on the errant monuments and wish to keep the line as it exists in the real world, do a BLA to make the record match the real world and validate your mistake that way. Of course I expect most of us agree, we'd do it at our own cost.

What if it's another surveyor's mistake. Some have touched on that saying that they would leave the monument as is, tie it out and show it relative to your new one in the proper location (let's assume that it has only been a couple of years to dispose of the idea of rights having ripened through the passage of time).

That's probably the best way to handle it if the surveyor is deceased or retired. But what if he's still active? Do you bring it to his attention and give him the opportunity to address it, or do you just go ahead and document in the public record the mistake that he monumented?

[Ian Wilson]

Some have argued that when the crew goes out and stakes 20's and 80's and sets 1x2 for grading that they are the original surveyor and if those where set out of position and later "corrected" with the final monumentation that the "owner" i.e. subdivider has a valid claim to sue since the original line and thus legal line is where the first monuments where set.

For those unfamiliar with the term “20s and 80s”, it refers to the practice of setting hubs or rebars on the property lines in subdivisions at 20 feet from the front corner and 80 from the front corner. The foundation lay-out guys use these points to layout the house using double taping to locate house corners. Typically the houses are smack up against the side setbacks. Also typically, these points do not survive the construction phase.

Hubs set for grading and spikes or rebar set for “20s and 80s” would not likely be considered as permanent monuments that would be relied upon for control of boundary lines.

While I agree that the subdivider definitely has grounds for a lawsuit, it would be over staking errors causing huge back charges for regarding, rebuilding foundations or flat out lot line adjustments to correct the problems.

I understand what you are trying to say with your post, Eric, but the 20s and 80s and rough grading hubs are not likely to be the main players in a subdivisional boundary fracas.

As far as the time period involved, I think that fits with a case-by-case basis.

Bottom line: what works best to meet your client’s needs and those of the adjoiners?

As far as moving someone else’s points…no how, no way, never!!! Unless, of course, you are perfect and have NEVE made a mistake and have the ability to walk ON water. In which case, feel free to move any point you find…including mine!

If the “offending” surveyor is still alive and kicking, for Pete’s sake, CALL THEM AND ASK!!! Wouldn’t you feel silly if the surveyor points out an error in your work! Perhaps there is a reason for the offset or displaced monument.

In one recent case, I found one of my own monuments more than two feet from where I thought it should have been when I retraced my own survey two years later. Upon rechecking back in the office, I determined that it had been moved by the adjoining property owner so that it fit better with where he thought it should have been set in the first place!

And, with all due respect to the subsequent authors who have contributed, taken over for Curt Brown since the 3rd edition, please reference works by California surveyors, cases filed in California Courts and California statutes. The later pair are what we are bound by.

[Ben Lund]

I appreciate what Ian is saying about the references, but I find value in all citation, even those from books, articles, board opinions, manuals, etc.

[Ric7308]

Evan,

"If it's your own monument set in error, you may correct it if there has been no actual reliance, and with the knowledge and consent of the landowner. (any dissent on that statement?)"

I still believe that the most difficult thing to prove is that there has been no reliance on the position of the monument. While it is possible, I find it highly improbable that one will ever know for sure whether a monument has been relied upon. That is why I stated that when all things are considered, other actions will prove to be more prudent rather than removing the monument.

Ric

[Ian Wilson]

Ben...the current collaborators on BC&LP, while fine gentlemen and surveyors in their own right, are not California surveyors. Reference BC&LP 5th ed all you want. In a California Court, §8762 of the California B&P Code will trump it every time. We are charged with upholding California statutes, and, by extension, the Court's interpretation of them. We are not charged with upholding the principles espoused in BC&LP.

All I am trying to point out is that these reference tomes, while worthy books, are not the final authority, particularly in our state. As some of the "old timers" will agree, some of the newer statements are stretching credulity a bit.

[goodgps]

I still don't know If I was a criminal for moving that point 16 years ago, following the wrongly turned angle.

Perhaps instead of "ownership of the monument" being into play, it should be "ownership of the position" This is what deeds do. Then, we have statutes which call for the monuments found on parcel maps and subdivisions, to be paramount. Than the tax assessor taxes on a map. SO, does the monument position belong to the owner? or the map/deed position hold ?
Also, with due respect, most land owners do not understand witness corners or "AM"s When a monument is out there with your tag on it, you are responsible for its position. Is'pose the judge will side along if a survey is file, but who will pay your lawyer fee. If the situation can be corrected painlessly. . . .. well . . .

PS
remember, just like this thread of multiple opinions, Books are written by men with opinions.

[Ben Lund]

So you discover that your monument (One you have previously set) that defines a line of Lot 1 (hypothetical) was placed incorrectly and you would like to rectify this. From what I’ve read, one of your options is to file a Record of Survey.

So you place a new monument (in the correct location) and show it as well as the old monument in relationship to other monuments and record data.

The deed still reads “All of Lot 1 per Map XXXXX.” Is the deed broke and thus needs a fixin? This relates to the “Constructive Notice” thread.

[E_Page]

If the landowners are still occupying the lots per Map XXXXX, what's to fix?

[Ben Lund]

Evan, It seems the owners are no longer occupying the Lot 1 as defined by Map XXXXX because when the original monument was set in the wrong location they built a fence and now with a correction to the monument they moved their fence. They are no longer occupying the land based on the Map but now based on the ROS that was filed to correct the error.

What about doing a certificate of correction and saying that the original monument (set in error) is actually set to an offset distance (to get to the correct location)?

Ben

[E_Page]

If you are putting the monument in the correct location according to your previously filed map, and that's what the owners are then going to occupy to, then they are conforming to the map and the lot per that map. What's to correct?

If it's your monument, and the landowners are moving their occupation to your corrected monument, then we are back to the original question of the thread. Why would you leave the "incorrect" monument in place? Your previously filed map shows it to be in the location of your recently set corrected monument, the owners are willing to forego their previous reliance on the incorrect monument, and if no other surveys have utilized this monument, then it's meaningless. Get rid of it. Your new monument now conforms with your previously filed map, everybody's happy. Call it a job (finally) well done and move on with life. In this case, there is nothing to file, least of all a corrected deed that states that the landowner bought Lot X, was actually occupying Lot X and a small portion of Lot Y, but is now completely on Lot X, so nevermind.

I'm having trouble understanding why you might think any kind of deed correction would be needed in the scenario you described.

If the landowners decided to remain in occupation to the mistakenly set monument, a deed correction might be one possible solution.

[Ian Wilson]

Ben:

I think you're mistaking a survey monument set incorrectly per a map already recorded or in the process of being recorded and a monument placed at the position shown by a map which is in error.

In the first case, its a field survey blunder. The description of the parcel does not change. The map does not change. Although future surveyors would likely accept the monument, changing the dimensions as shown on the map, the description of the parcel would still remain Parcel X of Map Y.

In the later case, the map error memorialized by a monument placed at the mapped intersection, a correctory map would be required. The description of the parcel would still remain the same; Parcel X of Map Y.

Note that in neither case would correctory deeds be necessary.