Easements

[Gromatici]

Do you need to file a Record of Survey if you stake out an easement?
What if you set a pipe with you tag for easements?

Just asking!

[Peter Ehlert]

I would consider an Easement line the same as a Lot Line... for construction staking no RoS required unless one of the "triggers" are there, not on a record map, material, etc.

Pipe with a tag is just a pipe with a tag... no RoS trigger on just that count, unless you are marking a boundary, then perhaps a simple CR would do.
I have used them for traverse points and photo control when it was a help to the situation, and not as reference to a boundary... and just to be clear, I never set them near a line or corner that a reasonable person would think it was a boundary marker of any kind.

more facts, different answer!

[D Ryan]

I would address this question in 2 parts:

Is an easement considered a "land boundary or property line" as used in section 8762 (b) of the PLS Act?

Is that pipe you set a "point or line..of any parcel described in any deed or other instrument of title", as used in 8762(b)(5)?

The answer to part 2 seems easy enough to me. As to part 1, that's a little more complicated. I've heard arguments both ways.

Dave Ryan,
Eureka, Ca.

[Gromatici]

So if there is an existing easement shown on a parcel map for sewer purposes and the client wants it staked out and I set hubs at corners and pol's I need to file a CR?

Is this one of those things were if you interpret the law to the letter the answer is yes but the spirit of the law was intended for property lines only?

What if your creating a view corridor easement and are going to set pipes to define the view corridor? Do you need an RS?

[Ric7308]

Gromatici,

"What if your creating a view corridor easement and are going to set pipes to define the view corridor? Do you need an RS?"

By pipes, I assume you mean tagged? Is there a specific reason why you would consider setting tagged pipes?

"Is this one of those things were if you interpret the law to the letter the answer is yes but the spirit of the law was intended for property lines only?"

I don't know if one can interpret the law as intended soley for property line purposes. I would suggest reading Section 8771(b) as this references monuments that control or are "...set to mark the limiting lines of...,easement lines..."

[Gromatici]

Many clients don't want to pay the surveyor to come out and set the limits of the view corridor every year during tree trimming time. So, if you set durable monuments (with elevations too and tags) then they save money but doing there own fills to the bottom of the view plane.

I was leaning towards the argument that easements are covered by the requirements of Section 8771(b) in the scenario I cited, but wanted to see if I was reading it right. What if you're setting a couple "benchmarks" for this easement? It will be the local control for the vertical limit of the easement. Do you need to file a RS? It's not directly establishing a line but rather a plane (I know you need at least three points).

[Ric7308]

Referring to the markers as vertical control, I would still consider how 8771(b) would apply since that is referenced also.

Since the markers are not referencing any boundaries, but are intended to be used on a regular basis to control the physical location of the easement, I would think that filing a Corner Record would be a prudent effort on your part.

Both, to be used by the landowner(s) as marking the limits for maintainence of their easement and to alert future land surveyors that markers are there and not intended to reference a boundary.

[mpallamary]

Hello my good friend,

What of SMA?

66424. "Subdivision" means the division, by any subdivider, of any
unit or units of improved or unimproved land, or any portion thereof,
shown on the latest equalized county assessment roll as a unit or as
contiguous units, for the purpose of sale, lease or financing,
whether immediate or future. Property shall be considered as
contiguous units, even if it is separated by roads, streets, utility
easement or railroad rights-of-way. "Subdivision" includes a
condominium project, as defined in subdivision (f) of Section 1351 of
the Civil Code, a community apartment project, as defined in
subdivision (d) of Section 1351 of the Civil Code, or the conversion
of five or more existing dwelling units to a stock cooperative, as
defined in subdivision (m) of Section 1351 of the Civil Code.

[mpallamary]

Check out what our organization says about easements on the attached.

Good luck.

[Ian Wilson]

Mike:

I'm not sure what you're pointing to with the CLSA pamphlet. Can you explain, please?

Dave: §66412 and §66412.1 ?

.

[Jim Frame]

I recall posing this same question to Howard Brunner years ago, and my recollection is that he cited the §8762(b) phrase "land boundaries or property lines" in stating that a ROS is not required when staking an easement. The nature of the stakes (pipes, hubs, flagging) would be irrelevant in that case.

However, if marking the easement location means coincidentally establishing a boundary line or corner that meets one of the §8762 items, then I believe a ROS is required.

.

[mpallamary]

Hi Ian,

Our organization seems to define a survey of an easement as a “Boundary Survey.â€￾ I did not work on the brochure but suspect some thought went into these definitions. They are a bit at odds with decisions of the Board but overall, I think they are good. According to the brochure:

Boundary Survey

A survey for the purpose of locating the corners, boundary lines
and/or easements of a given parcel of land. This involves record
and field research, measurements, and computations to establish
boundary lines in conformance with the Professional Land
Surveyors Act.

Question

How will I be shown what has been surveyed?

Corners of the property will be marked with stakes, pipes, or
other such monuments with the Professional Land Surveyor's
license number indicated thereon. The corners on the parcel will
be pointed out to you, if requested. A record of survey or corner
record will be filed when these monuments are set, indicating
dimensions of property lines, monuments, and other relative data
as required by the Land Surveyors Act, the client, or others.

Question

Why are there conflicting boundary and easement lines?

It is often true that boundary disputes and overlaps are a result
of legal descriptions which were originally written and recorded
without the benefit of the services of a Professional Land
Surveyor. It is important to have these lines properly described
and surveyed, if necessary, when property or easement lines are
created or changed.

**********

It seems an easement survey is a boundary line survey and if the question is approached in those terms, i.e. how do you survey a boundary line?, the solution may be more evident. An easement survey should be treated the same way as a boundary survey and the same rules and laws apply. Is it shown on a map? If shown on a recorded map, a CR would be permissible. Are there any material discrepancies? If only noted in a deed and not a map of record, an ROS is required, etc.

I hope this is a helpful observation. At the moment, the brochure seems to be a bit of authority. As a general rule, you are usually safe with an ROS. This is a good dialogue and the forum members should be polled perhaps. What is the consensus and does that help fix a standard of practice? Although the Board can issue an opinion, it is merely that.

[Ian Wilson]

Jim: I remember having the same conversation with the same result.

It would be interesting to hear Ric's take on this.


Mike: While I understand your construal of the CLSA pamphlet language, I disagree with the outcome. CLSA is a respectable organization, but it does not necessarily interpret law. The standard of practice issue would come to bear heavily in such a case.

The bottom line would be how this would affect the health and welfare of property owners in California. Marking of the boundary and filing a record map vastly improves the delineation of property boundaries. Does the marking and separate mapping of easements do the same? My opinion: no.

[mpallamary]

Sounds interesting.

I guess the question is, does an easement demarcate limits of interest or ownership. If I have time, I will see if I can find some case law.

As always, dialogue is encouraged and welcomed.
:)

[Ben Lund]

I agree with Ian. On the other hand, 8762 (b) states: “…after making a field survey in CONFORMITY WITH THE PRACTICE OF LAND SURVEYING, the licensed land surveyor or licensed civil engineer shall file with the county surveyor in the county in which the field survey was made a record of the survey RELATING TO LAND BOUNDARIES OR PROPERTY LINES, if the field survey discloses any of the following:” (All caps to signify emphasis)

I think this could be interpreted to say that an easement line that is coincident with (or maybe even related to) a boundary line would be treated like a boundary line for the ROS triggers. I don’t agree with this interpretation although I do see the logic.

It’s a similar logic when arguing what a PE can survey (i.e. fixed works, topography, etc. as long as it does NOT relate to boundaries).

[mpallamary]

'Tis but thy name that is my enemy;
Thou art thyself, though not a Montague.
What's Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part
Belonging to a man. O, be some other name!
What's in a name? that which we call a rose
By any other name would smell as sweet;
So Romeo would, were he not Romeo call'd,
Retain that dear perfection which he owes
Without that title. Romeo, doff thy name,
And for that name which is no part of thee
Take all myself.

- Shakespeare: Romeo and Juliet

[E_Page]

Ben brings up a good point... "maybe even related to a boundary line"... that we should consider.

Agreed, an easement boundary rarely reaches the importance or significance of a property boundary (a RW easement boundary being a possible exception), but if you have set monuments on the easement, and show its relationship to one or more boundaries, have you not established that boundary and created a means by which someone (perhaps a landowner) could measure back to re-establish that boundary?

When some unlicensed person goes out and , using survey equipment, measures up various features on a property, then draws up a plot plan showing a tie from an existing building to a boundary line, are not most of us among the first and most adamant in saying "THAT'S SURVEYING! And it needs to be stopped."?

Is there a reasonable possibility that a landowner might mistake a monument set as an easement corner as their property boundary corner? Few surveyors mark their monuments with anything more than their LS# and the year set anymore, and fewer still landowners ever think to read the markings on a cap.

I'm not necessarily arguing that an RS is required, or advocating one way or the other whether it should be or shouldn't be. I'm just tossing out comments for consideration.

[mpallamary]

One last thought - I have to run:

Is an easement comprised of lines or points and is a recorded easement deed, an instrument of title?

LSA 8762. (a) Except as provided in subdivision (b), after making a field survey in conformity with the practice of land surveying, the licensed surveyor or licensed civil engineer may file with the county surveyor in the county in which the field survey was made, a record of the survey. . . (5) The points or lines set during the performance of a field survey of any parcel described in any deed or other instrument of title recorded in the county recorder's office are not shown on any subdivision map, official map, or record of survey.

[Anthony Maffia]

A lease doesn't subdivide land, and it is limited by but has no effect on the property boundary. It doesn't create any ownership rights, only contractual rights and obligations. I don't think a ROS is warranted in the case of locating features to write a lease description.

[Ian Wilson]

Ah, Michael! Drop a clanger and run!

Of course an easement demarks a limit of interest. The right to enter and use land and the right to exclude others (save the titled owner – except in certain cases - Blackmore v. Powell, 59 Cal.Rptr.3d 527, 150 Cal.App.4th 1593) are two of the “sticks” in the “bundle” that are the interests wrapped up in the land. Just about any case discussing the quality of “ownership” of an easement will bear this out.

Act 2, Scene 2…Romeo and Juliet…I often think of that when I am dancing around the name and pushing it one way in one case and another in yet another case. Glad you do, too.

Is an easement comprised of lines or points? Of course it is. So is a road. Do we require RS for road surveys or construction surveys?

How about the line between two tax rates? A temporary construction easement? How about staking a view easement or the corners of an avigation easement?

And, yes, Mike, an easement (at least one that is properly granted on paper) is an instrument of title. It is a written document and that makes it an instrument in the broad legal sense. It can affect title. So…it is an instrument of title.

Hmmm…sounds as though we might have to do something about the language of §8762 if we want to prevent wholesale interpretation by the Superior Courts.

Howzat, Michael? I pulled the pin out…DUCK!

[7702]

Do lessee's in California pay the property taxes for the land they're leasing, like they do in some states?

If so, that might provide more evidence for the argument of a "quasi-ownership" capacity.

Mr. Woolley,

Nice looking lease documents you've prepared. I especially like the explanation and use of the "Grant Boundary Establishment".

[E_Page]

I was focusing on two things:

1) If you have set monuments

and

2) If you have related those points in any way to one or more property boundaries.


Answering Ian's question: Do you file an RS for a road survey or a construction survey?

For a construction survey, rarely, if ever. For a road survey? Well, that depends on what that road survey entails. We need to be more specific.

If the road survey is a survey of new RW line, which we monument, then yes, an RS is filed. If it is a gov't agency preparing performing the survey, they aren't required to file an RS, but they must still prepare a map that meets all of the requirements of an RS and file it with the County Surveyor.

Again, if you are relating permanent objects (natural, or set or found artificail monuments of any kind) which delineate the easement to any lines or points of the boundary, you must first have had to establish the boundary.

Haven't most of us agreed in the past that making a tie of a parmanent object to a boundary line constitutes establishing that line? How is setting monuments for an easement and relating them to a boundary different?

[Ben Lund]

I for one would like to see the language in 8762(b)(5) be revised. What was the intent of the language stating "or other instrument of title"? Was it meant to include easements and other title rights? If so, leave the language as it is. If not, the language needs revising.

[Gromatici]

Leases: (High jacked, but good subject). Actually leases ARE subdivisions of land, that's why there is an EXCEPTION for them in the subdivision Map Act. I've seen RS for leases, if your going to set monuments for them.

Back to the thread: Easements:

There is a lot of talk about "construction" staking. So if your staking a sewer easement for the construction crew to stay within it, it's O.K. but if you stake out the sewer easement for the owner so he can know where it's at you should file an RS? What if you set steel pipes and a Tag? What if you set hubs, no tag? What’s the difference? There is no material discrepancy.

I'm trying to figure this one out myself because sometimes people are smart and they want more permanent monuments. Does it matter? A stake can be "permanent" too. Why is construction viewed so differently? "I'm just building a fence, can't you just put hubs at the property corners" is an argument I hear all the time.

If I go out and set pipes for a view easement, or even at the cl of an access easement (private) do I need to file an RS? Let me give you a rare situation:

I write an easement in CCS83. Because it's in difficult area performed by the Benson syndicate, I tie into NGS monuments and write the whole ingress/egress easement in CCS83 with a beginning coordinate and ending coordinate and then throw in a habeas clause "Said easement is to be lengthened or shortened to terminate at the westerly line of Section 30 ........ at the east and lengthened or shortened to terminate at the westerly boundary of Section ...... on the west". If I attempted to tie into the boundary, I would have been required to do an RS since I would have had to use monument 1 mile away, and proportion to get this line tied down.

Since the NGS points are miles away I want to make it easier to retrace the easement so for this story I put a monuments at the beginning and end of the easement. They aren't related to the boundaries of the property since I did not make ties to them; only as qualifying calls.

Do I need to file an RS?

I realize that this is not the normal way to write an easement, but the circumstances called for it.

[E_Page]

Dave,

I remember a couple of surveys where commercial lease lines were tied to boundaries (which did show on record maps), and were defined by fixed works. That was my 1st year as a licensee.

I probably should have filed an RS, but didn't even think about it at the time.

And no, I'm not saying where those surveys were. I'll keep my skeletons in my closet as long as they will stay there, and do my best not to let any others in.


Edit: I did not set any monuments for those lease lines, if that makes a difference.