Shoddy Survey: 46 Years of Problems, and Counting.....

[Lee Hixson]

I need to vent.

From my other post, recently, you may remember the survey I agreed to take on, dealing with the problems created by three different quarter corners…clouds on title, angry land owners, repeated attempts to clean things up by the county (didn’t work), etc. In short, a half century of trouble and anguish caused by a surveyor who chose proration rather than taking the time to consult the GLO notes.

1965: Surveyor #1 (a moonlighter) prorates the S ¼ Corner; sets brass disc.
1972: Surveyor #2 does a new, better, proration; sets 2nd monument 10’ south.
1976: Surveyor #3 does it right, bothers to get GLO notes and uses a call to a creek to set a 3rd pipe 204’ east of the 2nd one.

Followed by a decades long trail of boundary flotsam in the wake of these 3 conflicting corners.

With most of the field work completed I am in the middle of collecting evidence and testimony from the surrounding land owners. So I show up at the office of an adjoiner yesterday, seeking this couples input on the issue. Right out of the gate they are defensive, agitated, angry, and adversarial. They could care less about the maps and docs that I wanted to share with them. Way to irate for that. Accused me of trying to “take their land.” Claimed the 3rd surveyor was only out to cause havoc, that he didn’t even bother to record his map. When I said he did, they shot back, “So you’re calling me a liar?”

Afraid that things would get even uglier, I rolled up my maps and thanked them for their time.

But, during the antagonistic exchanges, they did manage to tell me that they had commissioned a new survey of their parcel just last year and they had total confidence that things were settled in their favor. They gave me his name and phone number, which was good since I had not uncovered any maps or Corner Records of said survey.

I remembered this guy’s name from somewhere. Turns out he’s a grandfathered civil who used to be the Public Works Director, and now “does a little surveying.” I asked for a copy of his map. “Sorry, there isn’t one.” “So what did you do out there?” “I set their SE corner.” “OK, what’s your number so I can recognize your points when I find them?” “Oh, you won’t find my number anywhere out there.”

How sad, and so very ironic. I catch the heat from two extremely frustrated owners, tired of struggling with all the conflicts caused by a 46-year old incompetent survey, who then go out and get a retired civil to “fix things.” What do you bet that he charged them next to nothing? What are the odds that his analysis, not to mention his field work, is no less shoddy than Surveyor #1?

Some people won’t learn. To save a buck, history repeats itself. Something tells me that the repercussions of that old survey will never go away.

[Lee Hixson]

I can't help but wonder about unlicensed moonlighters and insufficiently educated/aware licensees...how many console themselves by imagining that it's not really that difficult, what could go "that" wrong, etc. I just hope that some of them will stumble across this forum and realize the tremendous consequences that flow from doing "a little surveying" now and again. Some will not be dissuaded by such guilt; others might. We can only hope.

[Lee Hixson]

Woodcutter...

I'm not. My goal is simply to get the affected owners to all agree to the older line via a Boundary Line Agreement, so actually, I'm "hanging my hat" on the '65 line. It's not so much debating the merits and demerits of the '76 line as it is finding a solution to the troubles it caused.

pls5528...

Which one are you talking about? The '65 surveyor has long departed us. The 2010 guy is a well-connected, ex-County Public Works Director.

[Lee Hixson]

I'll take your word for it, that one needs to be as cautious about topo calls as any other secondary evidence. (By secondary, I mean when the monument itself has disappeared.)

You're right, it would make for a great, separate thread.

As for the case at hand, the '76 surveyor has enjoyed a strong reputation over the years. I've tied into his work dozens, if not hundreds of times and almost always I've agreed with him. So my hunch is that he didn't treat the call lightly, nor the impact it would have.

The reputation of the '65 surveyor, on the other hand, is probably the worst in the local area. I know that even a scoundrel can be right, but still, given the polar opposites of these two practitioners, my gut tells me to stand behind the '76 LS.

[btaylor]

I agree that the surveyors are a problem, but what goes unmentioned as problems for us are people who are incapable of critical, rational thought, and inherently demand answers that suit their perceptions. Quite a few situations I see are people who just want an answer a certain way and will shop around until they get it. In this case, this is what is happening, but yes, it does take two to tango.

I think after about 12 years of this I have my radar tuned into the type of client that wants the answer they want regardless of what I am going to tell them, and I am not interested in surveying for them. I finally got most of a payment from who I hope is the last client I deal with who has this personality. I definitely have learned to appreciate people who can handle a bit of "bad news" after spending all that money.

[Lee Hixson]

Met yesterday morning with one of the owners to the south, trying to get him on board with the Boundary Line Agreement. He was very knowledgeable about the issue, having struggled with them over the past 10 years that he's owned his 80-acre parcel. He recently started building a new, good fence along one of the disputed lines. With $3,500 invested already, he's not very happy, or interested, in the prospect of moving it.

He already realized that two of his lines were impacted--his east line by over 200 feet. I had to break the news to him that his west line is vulnerable as well, as the 1/16 corner shifts over 100 feet depending on which 1/4 you honor. He was visibly dejected at this new realization. Three out of his four lines are in dispute and he can't fully occupy what he feels is his full parcel.

I explained that the BLA is the best solution; it's either that, or everyone has to continue to live under the cloud of doubt and bad feelings that continue to fester over the multiple, conflicting lines and corners that plague this beautiful neighborhood in the foothills.

He was aware of the retired CE that his neighbor hired and wasted his money on--the irate couple I dealt with on Thursday. He said their misdirected anger at me was unfortunate, and no doubt stemmed from the many confrontations he has had with them.

Looks like only 2 of the 3 lines of my client will get repaired. What a sad situation. A wound that won't heal.

P.S. I estimate that there are 20 parcels that have been dragged into this hellish swamp of uncertainty. Remember that movie from last year? "Drag me to Hell"? That's what happens when surveys go wrong.

[Lee Hixson]

Dave....

I've sunk my teeth into this one--no letting go now.

As for, "I set those monuments before the law changed,â€￾ I heard that time and again back when I first started surveying in California. It was always rather vague, but the intent was clear: "The whole profession only started filing maps recently; cut us some slack."

You'd think that retired Public Works Directors would know better.

[Lee Hixson]

That strikes me as being the very definition of uncertainty. Which line is it? There's evidence and history for each one. Ask any of the 20 affected property owners if there's any uncertainty going on up there. It's unanimous. Don't you think the average judge would consider the location of the point/lines to be uncertain?

I'm open to another opinion, but why doesn't this qualify as a case of uncertainty?

[Lee Hixson]

So if I were to just go ahead and "make a determination," then what?

"Defensible" from a surveyor's reasoned judgement? Let's say that means choosing the '76 monument. This creates a line that virtually eliminates 3 parcels in Section 14 and significantly invades (by over 200 feet) a number of parcels in Section 23.

What then? The end product is supposed to be a tract map. So I should show the line cutting wildly through the 3 parcels and just let the chips fall where they may? How would that be assisting these land owners?

What we have here is a poorly determined line that's been occupied up to for 46 years. Then, 204' away there's another line of record that's conflicted with the other line for 36 years; there is no evidence of occupation, BUT, it was more correctly set than the first one.

An argument could be made to hold the '76 line. But what then?

[Lee Hixson]

The GLO survey was performed in 1867.
The surveyor was E. Dyer.
The call to "the creek" was to the nearest link; bank not mentioned.
Creek has remained in place, so far as anyone I've talked to knows.
I've pulled 20 recorded maps so far in the general area; no original corners have been found.

But.......isn't all of that functionally irrelevant if the goal is to exchange Quit Claim Deeds to reflect the '65 line, which is the line matching up with occupation?

The goal is to recognize a common line that will eliminate the lingering questions. I think I've vetted the '75 topo call sufficient for the purpose at hand. Finely parsing that call...isn't that "how many angels on a pin"? What does it really matter? There's been 4 decades of fighting over two different lines.

What is the professional to do in this situation? Increase the bill to the client by bringing in outside experts to parse a question that's irrelevant to the action at hand? Or cut to the chase and exchange deeds to the line of occupation, reflect it in a Record of Survey, and thus pave the way for the tract map to record?

Seems to me, Woodcutter, you are bringing a cannon to a gun fight. It's not that your diligence and knowledge in topo call interpretation isn't valuable, because it is. But does the tool fit the problem at hand?

[Lee Hixson]

"I'm not convinced that the question is irrelevant to the action at hand. If evidence proves the topo call is not as supportable as the '75 surveyor's reputation is purported, then problem solved. No BLA or quitclaims necessary."

Really? Based on my blessing, all the clouds on title would just disappear?

[hellsangle]

If the original corners have not been found . . . everything subsequent to them is an "opinion". Therefore, BLA/Quitclaims "fix" a problem. Recording another opinion, as Lee indicated . . . does nothing.

Eye on the ball = see the "big picture".

My two cents.

Phil - Sonoma

[Dave Karoly, PLS]

I will throw my 2 cents in.

From what Lee has posted it appears that each property owner has good title to their respective parcels whatever and wherever they may be located. Each owner has a Deed.

Technically there is a dispute over boundary location, not Title. No one is contending the other doesn't have Title to their property.

It is possible that you could contend for one or the other of the two choices.

If we assume the preponderance of the evidence favors the 1965 line then Woodcutter is correct; there is no Title issue. The Statute of Frauds does not allow for unwritten transfers outside of AP and usually in California this is where the Courts trip up when they attempt to use AP to clear up a boundary dispute.

However there is an active dispute over the Boundary location. Therefore Lee is correct to say that he can't unilaterally resolve it himself. Either the property owners have to agree to settle the boundary themselves or if they can't do that then they can submit it to our wonderfully inexpensive and efficient Court system (that was sarcasm) to do it for them. Once either the property owners agree or a Court rules (in the appropriate forms etc) then Lee can finalize his Survey. Finalizing the Survey either way without an appropriate agreement is worse than useless. 1976 may have been the best Surveyor in the world but setting another monument in the face of existing monuments and occupation was not a good way to handle this problem in 1976, unfortunately.

from Ernie v. Trinity Lutheran Church , 51 Cal.2d 702:
"[10] Under the foregoing circumstances the line so agreed upon became in legal effect the true line. In Young v. Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect [51 Cal.2d 709] the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy ... that 'the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed,' and that if more is thus given to one than the calls of his deed actually requires, he 'holds the excess by the same tenure that he holds the main body of his lands.' " [11] Each coterminous owner is deemed to have paid the taxes according to his deed. (Price v. De Reyes, supra, 161 Cal. 484, 489-490; Caballero v. Balamotis, 144 Cal.App.2d 58, 61-62 [300 P.2d 363]; Carr v. Schomberg, 104 Cal.App.2d 850, 860 [232 P.2d 597].) It is therefore not material to the defendant's claim of title by agreed boundary that the plaintiff paid the taxes assessed upon the land according to her deed."

In other words, once the agreed upon line is fixed in place the property owner's respective Deeds carry up to this line. The elements may have already been met but I'm not sure about that. If there is an uncertainty as to the location of the true line (two lines equals uncertainty in my opinion) then the property owners can settle their dispute and their Deeds will carry up to the settled line. But the property owners have to do it; the Land Surveyor can only assist in the process.

[Lee Hixson]

As to Woodcutter's comments as to when BLAs are appropriate, I found this on the thread he recommended:

"The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. [Citations.] The doctrine requires that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position. It is not required that the true location be absolutely unascertainable [citation]; that an accurate survey from the calls in the deed is [im]possible [citation], or that the uncertainty should appear from the deeds [citation]. The line may be founded on a mistake.â€￾ (Bryant v. Blevins)

Seems apropos. Thanks.

[Jim Langone]

If you can get everyone on board as far as agreeing to "occupation" then an LLA (or multiple LLA's as the case maybe) would be the easiest, quickest, and most pleasent solution. The problem is getting EVERYONE on board, and somehow making sure that every last document gets recorded.
One hold out, or one over-looked transfer/agreement document, can screw up the whole thing.