sworn statement on record of survey
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dmi
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sworn statement on record of survey
I am trying to find an example of best practices for a sworn statement on a record of survey as it relates to parole evidence. Thanks for your help
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PLS7393
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An example would be nice, but if you put words together explaining what your trying to convey, you should be good to go Dane. Maybe yours will become that good example your looking for.
Edited) Told you Dane, Dave Woolley would probably post an example! Thanks!
Edited) Told you Dane, Dave Woolley would probably post an example! Thanks!
Keith Nofield, Professional Land Surveying
PLS 7393
PLS 7393
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pls7809
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I'll post this for the forum to see. I sent this to Dane already via email.
I worked on this project as CAD tech and Jeremy Evans was the signer. I was not involved in the oath part of it and I don't know exactly how that part of it is done, (over the phone since the guy is in Omaha, raise your right hand and place left hand on the bible???). This is a sample of what was put on the map referring to the oath that was taken.
I worked on this project as CAD tech and Jeremy Evans was the signer. I was not involved in the oath part of it and I don't know exactly how that part of it is done, (over the phone since the guy is in Omaha, raise your right hand and place left hand on the bible???). This is a sample of what was put on the map referring to the oath that was taken.
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Ryan Versteeg, PLS, CFedS
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mpallamary
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Oaths
Howdy guys,
Coincidentally I was in a deposition today dealing with this issue. I have been in the process of preparing a paper and suggested language to be used to develop a statement. I also met with the County Surveyor to discuss this in more detail.
I would point out that the oath is not required to go on the map and this is a minor sticking point in my litigated matter. Section 8760 of the LS Act says:
"A record of oaths shall be preserved as part of the field notes of the survey and a memorandum of them shall be made on the record of survey filed under this article."
In my case, we are developing a means of documenting the oath and it has been determined that the LS Act does not require that they be placed on ths survey; one is to be "preserved as part of the field notes of the survey..."
I have been researching the nature of an oath. The LSA also says:
Every licensed land surveyor or registered civil engineer may administer and "certify" oaths.
The LSA states:
8770.6. Use of “certify†or “certificationâ€
The use of the word “certify†or “certification†by a licensed land surveyor or registered civil engineer in the practice of professional engineering or land surveying or the preparation of maps, plats, reports, descriptions, or other surveying documents only constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied.
This from an Internet resource, seems good as any:
OATH - A declaration made according to law, before a competent tribunal or officer, to tell the truth; or it is the act of one who, when lawfully required to tell the truth, takes God to witness that what he says is true. It is a religious act by which the party invokes God not only to witness the truth and sincerity of his promise but also to avenge his imposture or violated faith, or in other words to punish his perjury if he shall be guilty of it.
It is proper to distinguish two things in oaths; 1. The invocation by which the God of truth, who knows all things, is taken to witness. 2. The imprecation by which he is asked as a just and all-powerful being, to punish perjury.
The commencement of an oath is made by the party taking hold of the book, after being required by the officer to do so, and ends generally with the words,"so help you God," and kissing the book, when the form used is that of swearing on the Evangelists.
Oaths are taken in various forms; the most usual is upon the Gospel by taking the book in the hand; the words commonly used are, "You do swear that, " etc. "so help you God," and then kissing the book. The origin of this oath may be traced to the Roman law, and the kissing the book is said to be an imitation of the priest's kissing the ritual as a sign of reverence, before he reads it to the people. Rees, Cycl.
Another form is by the witness or party promising holding up his right hand while the officer repeats to him,"You do swear by Almighty God, the searcher of hearts, that," etc., "And this as you shall answer to God at the great day."
In another form of attestation commonly called an affirmation, the officer repeats, "You do solemnly, sincerely, and truly declare and affirm, that," etc.
The oath, however, may be varied in any other form, in order to conform to the religious opinions of the person who takes it.
Oaths may conveniently be divided into promissory, assertory, judicial and extra judicial.
Among promissory oaths may be classed all those taken by public officers on entering into office, to support the constitution of the United States, and to perform the duties of the office.
Custom-house oaths and others required by law, not in judicial proceedings, nor from officers entering into office, may be classed among the assertory oaths, when the party merely asserts the fact to be true.
Judicial oaths, or those administered in judicial proceedings.
Extra-judicial oaths are those taken without authority of law, which, though binding in foro conscientiae, do not render the persons who take them liable to the punishment of perjury, when false.
Hope this helps!
Coincidentally I was in a deposition today dealing with this issue. I have been in the process of preparing a paper and suggested language to be used to develop a statement. I also met with the County Surveyor to discuss this in more detail.
I would point out that the oath is not required to go on the map and this is a minor sticking point in my litigated matter. Section 8760 of the LS Act says:
"A record of oaths shall be preserved as part of the field notes of the survey and a memorandum of them shall be made on the record of survey filed under this article."
In my case, we are developing a means of documenting the oath and it has been determined that the LS Act does not require that they be placed on ths survey; one is to be "preserved as part of the field notes of the survey..."
I have been researching the nature of an oath. The LSA also says:
Every licensed land surveyor or registered civil engineer may administer and "certify" oaths.
The LSA states:
8770.6. Use of “certify†or “certificationâ€
The use of the word “certify†or “certification†by a licensed land surveyor or registered civil engineer in the practice of professional engineering or land surveying or the preparation of maps, plats, reports, descriptions, or other surveying documents only constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied.
This from an Internet resource, seems good as any:
OATH - A declaration made according to law, before a competent tribunal or officer, to tell the truth; or it is the act of one who, when lawfully required to tell the truth, takes God to witness that what he says is true. It is a religious act by which the party invokes God not only to witness the truth and sincerity of his promise but also to avenge his imposture or violated faith, or in other words to punish his perjury if he shall be guilty of it.
It is proper to distinguish two things in oaths; 1. The invocation by which the God of truth, who knows all things, is taken to witness. 2. The imprecation by which he is asked as a just and all-powerful being, to punish perjury.
The commencement of an oath is made by the party taking hold of the book, after being required by the officer to do so, and ends generally with the words,"so help you God," and kissing the book, when the form used is that of swearing on the Evangelists.
Oaths are taken in various forms; the most usual is upon the Gospel by taking the book in the hand; the words commonly used are, "You do swear that, " etc. "so help you God," and then kissing the book. The origin of this oath may be traced to the Roman law, and the kissing the book is said to be an imitation of the priest's kissing the ritual as a sign of reverence, before he reads it to the people. Rees, Cycl.
Another form is by the witness or party promising holding up his right hand while the officer repeats to him,"You do swear by Almighty God, the searcher of hearts, that," etc., "And this as you shall answer to God at the great day."
In another form of attestation commonly called an affirmation, the officer repeats, "You do solemnly, sincerely, and truly declare and affirm, that," etc.
The oath, however, may be varied in any other form, in order to conform to the religious opinions of the person who takes it.
Oaths may conveniently be divided into promissory, assertory, judicial and extra judicial.
Among promissory oaths may be classed all those taken by public officers on entering into office, to support the constitution of the United States, and to perform the duties of the office.
Custom-house oaths and others required by law, not in judicial proceedings, nor from officers entering into office, may be classed among the assertory oaths, when the party merely asserts the fact to be true.
Judicial oaths, or those administered in judicial proceedings.
Extra-judicial oaths are those taken without authority of law, which, though binding in foro conscientiae, do not render the persons who take them liable to the punishment of perjury, when false.
Hope this helps!
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dmi
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THANK YOU FOR THE BACKGROUND INFO
PROFESSIONAL LAND SURVEYORS' ACT (Business and Professions Code §§ 8700 - 8805)
INCLUDES AMENDMENTS MADE DURING THE 2009 LEGISLATIVE SESSION (Effective January 1,2010, unless otherwise noted)
CHAPTER 15. LAND SURVEYORS
8760. Administration of oaths
Every licensed land surveyor or registered civil engineer may administer and certify
oaths:
(a) When it becomes necessary to take testimony for the identification or establishment of old, lost or obliterated corners.
(b) When a corner or monument is found in a perishable condition, and it appears desirable that evidence concerning it be perpetuated.
(c) When the importance of the survey makes it desirable, to administer an oath to his assistants for the faithful performance of their duty.
A record of oaths shall be preserved as part of the field notes of the survey and a memorandum of them shall be made on the record of survey filed under this article.
Evidence and Procedures For Boundary Location
(fourth edition) page 281 Robillard,Wilson,Brown
9-6 Oaths and Witness Evidence
In the event that an original comer monument is obliterated and there are reliable witnesses to testify about the former location of the monument, the surveyor should be authorized to swear in witnesses and record their testimony under oath. Witnesses -do not live forever; it is highly desirable to perpetuate the evidence of witnesses while they are available.
In the event that the state does not permit the surveyor to administer an oath, then the surveyor could become a Notary Public and have the witness sign a notarized statement or affidavit.
Although affidavits- relative to land and surveys in and of themselves cannot be used as evidence, the law of Georgia provides that an affidavit concerning real property can be submitted as evidence if it is filed on record pursuant to the requirements of the law.
Although some governmental offices still require that officials administer oaths to surveyors before they undertake a survey, it has been held that a failure of a surveyor to take such an oath is not fatal to the work performed.
Manual of Surveying Instructions 1973 Department of Interior Bureau of Land Management
5-11. The testimony of individuals may relate to the original monument or the accessories, prior to their destruction, or to any other marks fixing the locus of the original survey. Weight will be given such testimony according to its completeness, its agreement with the original field notes, and the steps taken to preserve the original marks. Such evidence must be tested by relating it to known original corners and other calls of the original field notes, particularly to line trees, blazed lines, and items of topography.
There is no clearly defined rule for the acceptance or non-acceptance of the testimony of individuals. It may be based upon unaided memory over a long period or upon definite notes and private marks. The witness may have come by his knowledge casually, or he may have had a specific reason for remembering. Corroborative evidence becomes necessary in direct proportion to the uncertainty of the statements advanced. The surveyor should bear in mind that conflicting statements and contrary views of interested parties are fruitful of boundary disputes.
The surveyor will show in the field notes, or in the report of a field examination, the weight given testimony in determining the true point for an original corner. (Section 8-18.) The following points will serve as a guide:
(1) The witness (or record evidence) should be duly qualified: The knowledge or information should be firsthand, not hearsay; it should be complete; it should not be merely personal opinion.
(2) The testimony (or record statement) should be such as can stand an appropriate test of its bona fide character.
(3) The testimony (or the record) must be sufficiently accurate, within a reasonable limit, for what is required in normal surveying practice.
INCLUDES AMENDMENTS MADE DURING THE 2009 LEGISLATIVE SESSION (Effective January 1,2010, unless otherwise noted)
CHAPTER 15. LAND SURVEYORS
8760. Administration of oaths
Every licensed land surveyor or registered civil engineer may administer and certify
oaths:
(a) When it becomes necessary to take testimony for the identification or establishment of old, lost or obliterated corners.
(b) When a corner or monument is found in a perishable condition, and it appears desirable that evidence concerning it be perpetuated.
(c) When the importance of the survey makes it desirable, to administer an oath to his assistants for the faithful performance of their duty.
A record of oaths shall be preserved as part of the field notes of the survey and a memorandum of them shall be made on the record of survey filed under this article.
Evidence and Procedures For Boundary Location
(fourth edition) page 281 Robillard,Wilson,Brown
9-6 Oaths and Witness Evidence
In the event that an original comer monument is obliterated and there are reliable witnesses to testify about the former location of the monument, the surveyor should be authorized to swear in witnesses and record their testimony under oath. Witnesses -do not live forever; it is highly desirable to perpetuate the evidence of witnesses while they are available.
In the event that the state does not permit the surveyor to administer an oath, then the surveyor could become a Notary Public and have the witness sign a notarized statement or affidavit.
Although affidavits- relative to land and surveys in and of themselves cannot be used as evidence, the law of Georgia provides that an affidavit concerning real property can be submitted as evidence if it is filed on record pursuant to the requirements of the law.
Although some governmental offices still require that officials administer oaths to surveyors before they undertake a survey, it has been held that a failure of a surveyor to take such an oath is not fatal to the work performed.
Manual of Surveying Instructions 1973 Department of Interior Bureau of Land Management
5-11. The testimony of individuals may relate to the original monument or the accessories, prior to their destruction, or to any other marks fixing the locus of the original survey. Weight will be given such testimony according to its completeness, its agreement with the original field notes, and the steps taken to preserve the original marks. Such evidence must be tested by relating it to known original corners and other calls of the original field notes, particularly to line trees, blazed lines, and items of topography.
There is no clearly defined rule for the acceptance or non-acceptance of the testimony of individuals. It may be based upon unaided memory over a long period or upon definite notes and private marks. The witness may have come by his knowledge casually, or he may have had a specific reason for remembering. Corroborative evidence becomes necessary in direct proportion to the uncertainty of the statements advanced. The surveyor should bear in mind that conflicting statements and contrary views of interested parties are fruitful of boundary disputes.
The surveyor will show in the field notes, or in the report of a field examination, the weight given testimony in determining the true point for an original corner. (Section 8-18.) The following points will serve as a guide:
(1) The witness (or record evidence) should be duly qualified: The knowledge or information should be firsthand, not hearsay; it should be complete; it should not be merely personal opinion.
(2) The testimony (or record statement) should be such as can stand an appropriate test of its bona fide character.
(3) The testimony (or the record) must be sufficiently accurate, within a reasonable limit, for what is required in normal surveying practice.
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Ian Wilson
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A number of years ago, during a boundary survey, I had Laura come to the field to take an oath (she was a Notary Public) regarding knowledge of a Quarter Section Corner being moved. Incredibly, the duties of the County Recorder enumerated under §27201 et seq. do not include the recording of such oaths and statements.
Although a note of the oath and the information was placed on the map, the actual statement and oath do not exist in the public record for others to access. In a hundred years or so, this significant piece of information may well be lost.
I have suggested that an addition be made to the types of documents that the Record is to record. It would be a simple thing to add written records of oaths given by licensed land surveyors and statements made under that oath. The recording information for the statement and oath could be placed on the map allowing proper cross reference to the public record.
Although the suggestion has met with a chilly response, perhaps this thread is an indicator as to how important it may be.
If there are others with similar cases regarding such statements and oaths, please let me know as soon as possible. The CLSA Legislative Committee meets this Saturday. I’d like to present the cases and examples, if you don’t mind.
.
Although a note of the oath and the information was placed on the map, the actual statement and oath do not exist in the public record for others to access. In a hundred years or so, this significant piece of information may well be lost.
I have suggested that an addition be made to the types of documents that the Record is to record. It would be a simple thing to add written records of oaths given by licensed land surveyors and statements made under that oath. The recording information for the statement and oath could be placed on the map allowing proper cross reference to the public record.
Although the suggestion has met with a chilly response, perhaps this thread is an indicator as to how important it may be.
If there are others with similar cases regarding such statements and oaths, please let me know as soon as possible. The CLSA Legislative Committee meets this Saturday. I’d like to present the cases and examples, if you don’t mind.
.
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
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dmi
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- Location: San Francisco
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sample suggestion for R/S
PURSUANT TO THE STATE OF CALIFORNIA BUSNIESS AND PROFESSIONS CODE SECTION8760 (a) AN OATH WAS ADMINISTERED AND IS HEREBY CERTIFIED BY CLEM CLUMPERSON, A PROFESSIONAL LICENSED SURVEYOR IN AND FOR THE STATE OF CALIFONRIA. A RECORD OF THIS OATH IS PRESERVED AS PART OF THE FIELD NOTES, UNDER PROJECT NUMBER 1234 IN THE CORPORATE OFFICES OF CLUMPERSON AND ASSOCIATES,INC.,1234 MILL STREET, MISTY MOUNTAIN,CA. 99999, AND A MEMORANDUM OF THE OATH IS ATTACHED HEREON AND MADE A PART OF THIS RECORD OF SURVEY FILED UNDER THIS ARTICLE.
ON FEBUARY 30, 2010, MABEL MONARCH, BEING A LONG TIME RESIDENT OF MSITY MOUNTAIN AND HAVING FIRSTHAND KNOWLEDGE ATTESTS TO THE FOLLOWING:
MY GRANPA OWNED A BUNCH OF LAND AROUND HERE AND ONE SUMMER WHEN I VISITED THEY HAD A BIG DRILLING RIG OUT BY THE BARN. I ASKED WHAT ALL THE FUSS WAS ABOUT. GRANPA TOLD ME THEY WERE BUILDING A NEW FENCE AND THEY NEEDED TO DRILL A BUNCH OF POST HOLES. HE SHOWED ME A BIG PIECE OF GRANITE, THAT HAD A 1 AND SLASH AND 4 ON TOP AND SOME NOTCHES ON THE SIDES. I HAD SEEN THAT ROCK IN THE GROUND SURROUNDED BY A PILE OF OTHER ROCK ON OTHER SUMMER VISITS AND IT DID NOT PAY TO MUCH ATTENTION TO IT, UNTIL MY GRANPA POINTED OUT IT WAS A GVOERNMENT CORNER AND IT HAD TO BE PULLED OUT BECAUSE THAT WAS THE EXACT SPOT WHERE THEY HAD TO PUT A FENCE POST. THEY USED A REALLY BIG PIPE FOR THE FENCE AT THAT CORNER. THE LAST TIME I VISITED THE RANCH THE FENCE WAS STILL THERE.
THIS STATEMENT IS EXCUTED BEFORE A NOTARY. A NOTARY JURAT AND SIGNATURE LINE FOR THE WITNESS ARE A PART OF THE RECORD OF SURVEY.
ON FEBUARY 30, 2010, MABEL MONARCH, BEING A LONG TIME RESIDENT OF MSITY MOUNTAIN AND HAVING FIRSTHAND KNOWLEDGE ATTESTS TO THE FOLLOWING:
MY GRANPA OWNED A BUNCH OF LAND AROUND HERE AND ONE SUMMER WHEN I VISITED THEY HAD A BIG DRILLING RIG OUT BY THE BARN. I ASKED WHAT ALL THE FUSS WAS ABOUT. GRANPA TOLD ME THEY WERE BUILDING A NEW FENCE AND THEY NEEDED TO DRILL A BUNCH OF POST HOLES. HE SHOWED ME A BIG PIECE OF GRANITE, THAT HAD A 1 AND SLASH AND 4 ON TOP AND SOME NOTCHES ON THE SIDES. I HAD SEEN THAT ROCK IN THE GROUND SURROUNDED BY A PILE OF OTHER ROCK ON OTHER SUMMER VISITS AND IT DID NOT PAY TO MUCH ATTENTION TO IT, UNTIL MY GRANPA POINTED OUT IT WAS A GVOERNMENT CORNER AND IT HAD TO BE PULLED OUT BECAUSE THAT WAS THE EXACT SPOT WHERE THEY HAD TO PUT A FENCE POST. THEY USED A REALLY BIG PIPE FOR THE FENCE AT THAT CORNER. THE LAST TIME I VISITED THE RANCH THE FENCE WAS STILL THERE.
THIS STATEMENT IS EXCUTED BEFORE A NOTARY. A NOTARY JURAT AND SIGNATURE LINE FOR THE WITNESS ARE A PART OF THE RECORD OF SURVEY.
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dmi
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- Location: San Francisco
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Ian-suggestion
Perhaps under 8764,this section relates to technical requirements for the R/S, form and content could be addressed for the Memorandum of oaths.
In my view, we have 2 issues here:
1. What is required for the purpose of filing a record of survey?
2. What is the best practice for collection and preserving Parol Evidence?
If we can beef up the R/S so that it is a better vehicle for the preservation of parol evidence, then that would be a good thing.
So my suggestion is the following:
Allow the testimony taken as parol evidence to be put on the map.
Allow the person ,providing the testimony, to execute their signature on the record of survey before a notary and a notary jurat be place on the map for the notary to acknowledge the signature.
Allow for a standard affidavit,that is recordable statewide, and that affidavit is to be referenced on the R/s. Recording an affidavit would be in used in place of placing the statement on the R/S, or both could be done.
Thanks for your help
In my view, we have 2 issues here:
1. What is required for the purpose of filing a record of survey?
2. What is the best practice for collection and preserving Parol Evidence?
If we can beef up the R/S so that it is a better vehicle for the preservation of parol evidence, then that would be a good thing.
So my suggestion is the following:
Allow the testimony taken as parol evidence to be put on the map.
Allow the person ,providing the testimony, to execute their signature on the record of survey before a notary and a notary jurat be place on the map for the notary to acknowledge the signature.
Allow for a standard affidavit,that is recordable statewide, and that affidavit is to be referenced on the R/s. Recording an affidavit would be in used in place of placing the statement on the R/S, or both could be done.
Thanks for your help