Map v. monument

[Propst]

This case has been included in all six editions of "Brown's Boundary Control and Legal Principles".

"The question is, where are the boundaries of the lot conveyed by Taylor to Moran? The map was intended as a representation of the survey actually made on the ground -- the position of the blocks and lots as indicated by the lines as run and the stakes driven at the corners. A map which, by reference to monuments established or by some other mode, refers to a survey, is presumed to correctly represent the survey as actually made; but if there is a discrepancy between the map and the survey, the survey must prevail, if the position of the points and lines established by the survey can be proved."

In this case the map called for the monument. How can you disregard that?
Is it really more likely the surveyor (or his assistant) made the mistake in the field and mislocated the monument, or that the mistake was in the office, and they misreported the information from the field on the map?

One of the reasons for this rule of monuments over maps is that when the owner looks at his deed and any referenced map for information about his lot's location, he will most likely go out in search of the monuments called for, and in finding those he can have confidence he has located his bounds.

Good thing the map didn't call for deferred monumentation, Then What?!?!

Wattles' maxim still applies.

[dmi]

Is there any evidence to explain the monument's location other than the map?
Incompleteid lot line adjustment?
staking of an easement?
I assumed that you have examined all the relevant deeds and/or title reports.
What about the parent parcel deed for the parcel map?
I would consider what the evidence standard is. Is preponderance of the evidence adequate to support an opinion of the monument over the map or is it just substantial evidence? I believe more is needed than just the fact the monument and the map do not agree and therefore one is simply going to apply some general rule.
There are the...
General rules
Exceptions to the general rules
Factsets that do not fit the genral rule nor the exceptions to the general rules...

if you are in the twilight zone act accordingly....

[land butcher]

I would set something like a lath at where the map says the corner is just to be able to quickly show interested parties where the corner is.

I would file a RS showing the PM info and the location of all 4 found monuments. If there is a e-w tie to something outside the property shown on the map I would tie that in too. And show any and all encrochments.

Then let the interested parties sort it out.

Our job is to show evidence not resolve issues.

I assume the deeds are written to fit the map not the pipe. If its a meets and bounds "thence nly xx-xx-xx xx.xxft to a IP tagged xxxx then I think the pipe would hold, but again, we show evidence others solve it.

And in some cases it is never solved. I read some years back that there are 3 or 4 sliver parcels owned by the county because the ajoiners could not agree on how to divide a gap in deeds.

[Jim Frame]

"The map was intended as a representation of the survey actually made on the ground"

That was probably a good assumption in 1875, but as others have pointed out, in 21st-century California it doesn't work very well. Almost all modern-day land divisions in the Golden State are crafted on paper before any monuments get set in the field. Proposed parcel dimensions are vetted by public agencies prior to parcel creation, and the maps are usually filed before any new parcel corners get marked on the ground. The mapped parcel dimensions are relied upon by title companies, lenders, real estate agents and buyers. Whereas in 1875 the map was typically a reflection of the survey, in modern times the converse is generally the case.

Substantial reliance upon a monument set in error might reasonably result in ownership rights not indicated by the Parcel Map. However, in Steve's case it doesn't sound like there's been any significant reliance. Surveyors make mistakes -- it sounds like the one in question made a habit of it -- and innocent parties shouldn't be made to suffer damages as a result. From what I understand of the facts in this case, I don't think I'd have any trouble setting a new monument at the record position and filing a ROS showing the original surveyor's monument out of position.

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[Ben Lund]

Quote: “In this case the map called for the monument. How can you disregard that?
Is it really more likely the surveyor (or his assistant) made the mistake in the field and mislocated the monument, or that the mistake was in the office, and they misreported the information from the field on the map?”

I believe it IS more likely the surveyor made the mistake in the field. This logic comes from the way subdivisions are typically created. 1) Establish subdivision boundary, 2) Subdivide land, 3) monument subdivision. Sign certification stating monuments have been set in the location shown on the subdividing document.

The parcels are CONDITIONALLY approved as they are shown on PAPER. You cannot show and get approval for one thing and monument something different. It is the subdividing surveyor’s responsibility to monument the parcel as such on the ground and found BLUNDERS should be treated as such.

Steve, As for the shed and reliance, What did the neighbor say as to why/how he decided to build the shed where he did? As for “none of this would have happened if I didn’t check the measurements between found originals” I believe this example demonstrates WHY you have to actually measure and cannot use a hard and fast rule.

Why would any judge think the paper document was in error and that the agency approving the paper document was in error, and that the minimum lot size was meant to be violated, etc, etc.

[Jim Frame]

"Thanks for muddying the waters, Jim."

Glad to oblige. :)

Following up on Ben's comments regarding reliance, remember that the point of any adjudication process is equity -- producing an outcome that is as fair as possible to all affected parties. Absent legislation clearly expressing an intent to compel the populace to adhere to a legal principle despite its effect upon equitable results, any conflict resolution process should be aimed at balancing the rights of the parties. There are various legal theories under which an owner relying upon an erroneously-placed monument might acquire unwritten rights to land up to that monument, but the courts have generally placed the bar against one owner taking land from another pretty high.

It sounds like "reliance" in this case is represented by a shed that's been in place 8 years or less. Does that constitute substantial reliance? Does the cost to Smith of moving the shed outweigh the cost to Jones of losing some 1,000 square feet of land? I think a court would look long and hard before hitting Jones over the head like that over a shed.

My comments, of course, are based upon incomplete information. I haven't reviewed the maps, haven't been on the ground, and haven't talked to the neighbors. But I'm disinclined to let 19th-century legal principles control 21st-century conditions just because "that's the way it's always been done."

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[dmi]

The pipe represents a different interest than the parcel map. They are both correct insofar as they represent the intentions of the parties, but at different times. i doubt that someone would make a 7.5' error. Half a foot 3 feet and change but 7.50' ..... the odds are against that.....especially in the 2000's.....

You said at first that there was no reliance on the pipe and now you indicate a shed was built to the pipe.....? File a record of survey shoe the shed over the parcel map line and the 7.50 iron pipe.....if that is your opinion, notify the parties concerned that they may have evidence that would clarify the sitution and might alter your opinion..... but absent anyone bringing forth evidence to the contray the the record of survey reoresents you opinion.....make the results of your request for evidence part of your record of survey....

[Jim Frame]

"i doubt that someone would make a 7.5' error. Half a foot 3 feet and change but 7.50' ..... the odds are against that.....especially in the 2000's....."

Spoken like someone who checks his work. Someone who doesn't -- who sprays in monuments without doing any QC on the results, maybe using barely-trained field personnel to push the buttons and drive the pipes -- could easily overlook 7 feet, or 70 feet, for that matter.

In 1997 I subdivided a parcel in a Parcel Map from the 1980s in Colusa County. I found the guy's monuments anywhere from real close (tenths or hundredths) to over 3 feet out. I asked him about it, and his response was, "Yeah, we had a Beetle 1500 back then that wasn't very reliable, and my party chief didn't always notice when it would bust a meter." He didn't seem to think there was anything wrong with that.

There were no improvements on any of the 1980s parcels, so I set my own monuments at the record positions based on monuments shown on more reliable maps, and showed the 1980s monuments out of position.

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[mpallamary]

I ran into a situation years ago with Lee Hennes when he was the City Surveyor for San Diego. I was retracing a recorded parcel map wherein he (The City Surveyor) processed a Certificate of Correction by a second engineer wherein the second engineer (not the one who prepared the original map) altered the map boundaries by several feet and in essence created entirely different parcels with extraordinary dimension and area revisions. It was a whole new survey. I questioned Lee about this and I expressed concern with such a draconian measure. I asked under what authority can a second surveyor/engineer alter another surveyor/engineer's map so drastically. Lee's response was there was nothing prohibiting it, therefore it was permissible as long as he approved it.

I will try and locate the correspondence stream so I can scan it and share it.

I asked him what then would stop anyone from changing one of my maps without my consent or permission after it was recorded. His response: "Nothing."

[E_Page]

I can't argue about the modern subdivision process followed in most (nearly all) localities, and concede that in most cases, the setting of lot corners follows the preparation and approval of the map. But that's not always the case. And I don't believe that it is the current state of case law that such is the presumption.

Unless I have missed recent develoments in case law, it is still the presumption that the map is seen as intending to reflect an actual survey, and that what Mr. Propst posted is still valid.

AS AN ASIDE: If you haven't purchased the collections of cases Mr. Propst assembled to go along with the BCLP and E&P books, I can highly recommend them.

Any presumption can be overcome given sufficient evidence, but it must be overcome rather than presumed because of what makes sense to you.



"I would doubt the issue is some rock/concrete. A 7.5' offset would be odd for this."

Actually, a rock preventing a monument being placed in a particular position is not that much of an oddity in areas anywhere from the most eastern suburbs of Sacramento up into the Sierras. If an offset is set, the distance would normally be less, but a visible or subsurface boulder making such an offset necessary would not be unheard of.

If such an obstacle were there though, I'm sure Steven would have discovered it when searching for a monument at the record position.

[dmi]

When a map is recorded and then a called for monument, cannot be set at the called for location and/or of the character described by the map, isn't a certificte of correction in order? Is there a certificate of correction or amended map on file?

[Ben Lund]

I did a little research and did not find a California court case that mimics this exact situation but I did find one that describes Code of Civil Procedure 2077 as a “general rule”:

LUGINBUHL v. HAMMOND, 179 Cal.App.2d 350 (1960)

3 Cal.Rptr. 582

VIRGINIA A. LUGINBUHL, Appellant, v. STUART HAMMOND et al., Respondents.

Docket No. 9794.

Court of Appeal of California, Third District.

March 30, 1960.

QUOTE: Appellant argues that the law is clear that monuments control over courses and distances and cites section 2077, rule 2, of the Code of Civil Procedure which reads: "When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount." Appellant argues further that "in retracing a government survey, the field notes of the original surveyor must be followed, if possible, and the surveyor is not authorized to correct what the government has done."

Quote: While the general principles are no doubt as stated by appellant, we do not believe that they are determinative of the instant appeal.

Quote: While it is true that as a general rule monuments prevail over measurements "When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement" (Code Civ. Proc., § 2077, rule 2, supra), we are convinced that the record in the instant case supports the conclusion of the trial court.”

[JasonCamit]

Mike. I would love to see your correspondence with the Co Surveyor. I have posted a simuliar thread in regard to the the question of correcting someone else's map. The law does not seem to be specific. Although professional courtesy would be my first choice to allow the original PLS/RCE make the correction, if possible and if he/she choses to do so.

[E_Page]

Ben,

I didn't read the case, but the quotes you provided support the principle that the presumption is that the actual survey controls over the map, but that it is a presumption which can be overcome, as it apparently was in that case.

Good find.

[E_Page]

Steve,

It seems to me that you're working really hard to not recognize the basic presumption of law that the survey is controlling over the map. You seem to be wrestling with what wrestling between what you know, and have been shown is the basic general rule vs. what you want to do and what makes sense based upon your experience with the modern subdivision review process.

In your case, that legal presumption might not be valid. It will be far easier to find the reasoning to show that your case is an exception to the presumption than it will to find that the presumption (also in state code as provided in an earlier post) is not the presumption.

Have you checked the county to see if they still have a file on this subdivision. Somethimes you can find those and they will contain TMs or preliminary maps and coorespondence relating to the review and approval. The timelines that can be reconstructed might give you what you need to justify the outcome that you seem to want to go with.

If your lawyer friend is just researching to support his already stated position, use caution in following his advice. He is an advocate and finding case law to support his position, while downplaying cases which do not is his job. You are not an advocate and would need to view the law impartially, not with an eye to support a predetermined outcome.

[Propst]

Anderson v. Richardson 92 Cal. 623 (1892)
[you had it as "Robertson"]
That case is footnote 19 in chapter 11 of BCLP 4th-6th editions, and other chapters of the first three editions.
Hope that helps.

My post above was in response to a request for applicable case law.
While that case may be 135 years years old, it is still authoritative. CCP 2077 is even older and forces the same conclusion, i.e. mons over measures.

Someone mentioned equity.
The courts will only reach to the powers under equity when the law does not provide a just conclusion. There is an excellent discussion in Hirshfield v Schwartz 91 Cal. App.4th 749 (2001) on the courts powers under equity.
Surveyors really dont (or shouldn't) have the option of giving an equitable solution to a boundary issue. For example, I could say that the equitable solution to this apparent discrepancy in corner location would be to place the corner midway between the monument and mapped location. That seems fair, split the difference, both share the loss or gain.

But here a court would seem to have a clear question before it: Where is the boundary? What controls that location, the map or the monument. That can be answered by applying the law to the evidence.

I would like to hold the mapped location as well, but I cant find any justification in the law for such a conclusion. If you can find something in the codes or cases I'm willing to reconsider.

The Luginbuhl case referenced above really isn't to the point here. There the court rejected as controlling a call to the section corner being "100 feet more or less" from a ravine, "where the reference to the natural monument is incidental, the same as at an intermediate point, and no clear intention appears to make such calls locative." In this instant case you have a monument called for on the map.

But getting back to an earlier portion of the thread, the best, and most "equitable" solution is one which the adjoiners reach between themselves.

Good Luck!

[mpallamary]

I found the letters. I need to track down the actual COC. Once I geta copy from the recorder, I will bundle it up and send it out.

[Jim Frame]

"I would like to hold the mapped location as well, but I cant find any justification in the law for such a conclusion. If you can find something in the codes or cases I'm willing to reconsider."

I don't have a court citation handy, but for the nonce I offer the following from §4.21, BC&LP, 2nd edition:

"Superiority of monuments over distance, angle, and area is so frequently accepted by the courts in all states that the danger of applying the principle comes from a contrary intent. If numerous other inferior terms in a deed refute the call for a monument, and if the other terms taken together indicate a contrary intent, the reason for the principle is nullified."

Substitute "on a plat" for "in a deed," and the statement applies neatly to the matter under consideration.

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[btaylor]

"OK, I just talked to the neighbor. He is the original owner of Parcel B and without any prompting from me, he says he was shown the pipe as being the corner and the shed was there when he bought the place and was always intended to be on his property. "

Well that seems to clear it up. But then again he could have moved that himself and is a good liar. (cue dramatic music)

[Jim Frame]

To my mind the lot area is just one of many elements present in the Parcel Map and the deliberate -- one might even say ponderous -- public process by which it came into being. It seems to me the *only* element out of sync with the body of both record and field evidence is that one monument. We all know how easy it is to make a blunder in staking out a corner, which is the reason I hesitate to accord the monument much weight.

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[Anthony Maffia]

Intent

Holding the pipe as placed creates a substandard parcel, below zoning requirements. How could that have been the intent of the subdivider?

[Anthony Maffia]

Or the examples are of government surveys, which are correct by law.

Private surveys have a different standard, which cannot be defined in the same kind of absolute rules.

[mpallamary]

Please find the COC discused above along with my correspondence stream. Thoughts anyone?

[VANCE]

Or the examples are of government surveys, which are correct by law.

Private surveys have a different standard, which cannot be defined in the same kind of absolute rules.

LOST interior corners of a subdivision is reset by proportionate measures, same as a LOST quarter corner. So how is it a different standard?

Original "undisturbed" monuments are paramount over map distance and bearings shown on a map, (does not matter if the map was before the actual setting of the monuments) but "the contrary may be shown". I do agree (from what I have read) that the monument was set in error or it was "disturbed", we are only human, but you need to be able to defend your decision. I could be as easy as "well 10 monuments fit the record information, but one does not". I have seen surveyors in this position reset the monument in the "map position" file the required Record of Survey, and been done with it.
We had a surveyor in my area that was notorious for writing deeds calling to monuments he set. Than in the field would set "offset monuments". After getting his records we were able to prove to ourselves and others that this is what transpired.

Just remember that a call to a map/ or monument also includes all the field notes, or other information that might help you in the determination of where the "line" actual is.

Well the short of what I'm trying to type is leave no rock unturned, be certain that all information out there has been found. I would look real bad if 10 years from now some finds a deed or an agreement between the lot owners calling to the "misplaced" monument. I was once told "Treat every job like it's going to court"

[Anthony Maffia]

Brown BC&LP, 4th, p.94, 5.29 Summary of the GLO System:
"2. The original surveys, by law, are without error."