A question of conduct

[mpallamary]

I would like to solicit some input on a situation I am involved with. I am performing a survey of a high-end property and as part of my research, I came across a filed Corner Record. Thereon, a previous surveyor set two stamped monuments at the corners of the property I am working on. They look good.

Several years later, another surveyor came along and tied in two open pipes making reference to the previous Corner Record. This surveyor rejected the two "monuments" he found, referencing the previously filed Corner Record. They are sticking nine inches above the ground. He used these for his survey and he filed a second Corner Record. The two "monuments" he found are witness markers set by the gardener. The actual monuments are set on grade, and they are easily found.

I contacted the second surveyor and explained everything to him. I asked that he consider correcting his Corner Record to make sure the record is clear. I explained to him that I did not want to incur the possible burden of filing a Record of Survey. I also told him that he should have found the record monuments half a foot away as they are easily visible. I told him I was reaching out to him as a professional courtesy as I always do in such a situation.

He doesn't appear interested in dealing with this situation.

I have attached a picture of one of these monuments. It is next to the open pipe which is what the surveyor located. The disc is evident.

I am curious how others would proceed in such a situation. The properties are valued at nearly $4M each. My goal is to avoid conflict.

Thank you all for your time and consideration.

[SPMPLS]

How did you find out that the two pipes he held were set by the gardner as witness markers? Did you speak to the gardner? Did you gather parol evidence supporting that assertion?

When you say he "doesn't seem interested in dealing with this situation", what does that mean? Does it mean he thinks his survey is correct and that you and the previous surveyor are wrong? Does it mean he is too busy to take the time to deal with it? Or, does he not want to incur any cost for correcting the situation because he has no client to invoice? Some other reason?

My handling of the situation going forward would depend greatly on the answers to these questions.

[mpallamary]

Yes, I spoke to the gardener. You really didn't need to do that when you could easily see the undisturbed record monument next to the tall pipe. I asked that he consider filing a correcting corner record and he explained he did not have time to deal with it. He explained the work was done nine years ago when he worked for a different company and he doesn't remember anything. That, of course, does not relieve him of his duties.

The attached picture is looking along the lot line. The witness stake is in the foreground and the record monument is right of it by 6 inches.

From my experience, money should not be an issue, right? It never came up.

[Dave Lindell]

You might want to remind him that a little time and expense now is far, far less than the cost of a lawyer later.

[David Kendall]

Send him a draft of the record of survey including notes on the evidence and photos. If I saw something like that after I blew it that badly then I would pay you not to file it.

Or you could just email him the link to this thread....

A couple of months ago I set a tagged pipe that was up 24 inches (28 inch pipe) due to not enough drill to go through the concrete and no hacksaw in the truck. It was getting dark so i left it to mark the corner for the client and was intending to come back later and make it right.

Well it took a few weeks but another surveyor saw that and called me out for leaving behind a “lightning rod of ridicule”. I went back to clean it up pretty quickly after that, we had a good laugh over it.

Sounds to me like you may have found one too!

[mpallamary]

I love that one! A lightning rod of ridicule. Can I quote you on that? You just gave me an idea for an article!

[jonwheat]

The same principles apply to "high-end" properties as they do to every other property in the state. Why differentiate?

[mpallamary]

More expensive lawyers. I regularly work on properties that run from 5 to 15 million dollars. What that means is a one-foot discrepancy can translate in a hundred thousand dollars worth of damage. One charges accordingly and you would hope would be extra careful. That being said, and regardless of the value of the property, what would you do?

[coast]

Sounds about time for the Board to earn its keep!

[jonwheat]

More expensive lawyers. I regularly work on properties that run from 5 to 15 million dollars. What that means is a one-foot discrepancy can translate in a hundred thousand dollars worth of damage. One charges accordingly and you would hope would be extra careful. That being said, and regardless of the value of the property, what would you do?

This is a material discrepancy. I would file a record of survey showing my opinion of where the line is.

Also, I respectfully disagree that we should be extra careful based on the value of the property and the cost of associated legal fees.
Standards should be universal (at least within one's practice) regardless of property value.

[David Kendall]

This is a material discrepancy. I would file a record of survey showing my opinion of where the line is.

Also, I respectfully disagree that we should be extra careful based on the value of the property and the cost of associated legal fees.
Standards should be universal (at least within one's practice) regardless of property value.

This is certainly not a material discrepancy, just a knucklehead. That situation would be thrown out of court in a second there is nothing material about it except the negligence is remarkable. Filing a survey on top of the two corner records only compounds the ridiculousness.

Worst case file another corner record to demonstrate how well the first one still fits. No reason to make a mockery of the other guy for all we know he may have been set up by an incompetent field hand.

Land value is always a factor in my surveys. My standard of care is lower on rural areas than urban for instance. I agree that in this example the detail is not relevant

[jonwheat]

This is a material discrepancy. I would file a record of survey showing my opinion of where the line is.

Also, I respectfully disagree that we should be extra careful based on the value of the property and the cost of associated legal fees.
Standards should be universal (at least within one's practice) regardless of property value.

This is certainly not a material discrepancy, just a knucklehead. That situation would be thrown out of court in a second there is nothing material about it except the negligence is remarkable. Filing a survey on top of the two corner records only compounds the ridiculousness.

Worst case file another corner record to demonstrate how well the first one still fits. No reason to make a mockery of the other guy for all we know he may have been set up by an incompetent field hand.

Land value is always a factor in my surveys. My standard of care is lower on rural areas than urban for instance. I agree that in this example the detail is not relevant

We need to analyse it from the landowner's perspective to maintain credibility. I would never compromise standard of care for any reason other than safety.

8762 says this.
(3) Evidence that, by reasonable analysis, might result in materially alternate
positions of lines or points, shown on any subdivision map, official map, or record of
survey previously recorded or filed in the office of the county recorder or the county
surveying department, or any map or survey record maintained by the Bureau of Land
Management of the United States.

I'm not a judge. And I would not want to meet the judge who does not understand the underlying issues. A ROS is the simple solution. The "high end" property owner should not have a problem with the associated San Diego County fee.

Good topic for a post!

[David Kendall]

8762 says this.
(3) Evidence that, by reasonable analysis, might result in materially alternate
positions of lines or points, shown on any subdivision map, official map, or record of
survey previously recorded or filed in the office of the county recorder or the county
surveying department, or any map or survey record maintained by the Bureau of Land
Management of the United States.

First. It does not say corner record. If you consider the gardener's witness posts material evidence (which I do not) which differs from the original record then you might file a RS. If the found tagged pipes from the first corner record match the original subdivision map, official map or record of survey then there is no material discrepancy in my opinion.

While I don't understand how the second surveyor's corner record establishes the witness pipes as monuments (since it says that he rejected them by corner record) I don't feel that it is significant and I would choose to disregard that detail in this instance considering the evidence provied in the OP. Maybe that surveyor should have filed a record of survey if he felt strongly enough to file a corner record to reject the witness pipes as monuments.

Second. In hindsight, I'm not certain that 'standard of care' is the proper term and I am reconsidering it's significance after some discussion I observed today at the conference.

What I meant to say is that if I encountered the situation in the OP on a 40 foot by 80 foot lot in Palo Alto then I might find it significant if there were monuments 6 inches off record dimension (which there are not here in my opinion but for the sake of discussion.... If I encountered the identical situation of a 6 inch discrepancy on a survey of a quarter section in Eastern Humboldt then I wouldn't even stop to think twice about it for 5 seconds since the land value of that 6 inches is insignificant. While I do typically follow similar procedures, I don't give the second case the same consideration. If I got myself wound up over every millimeter of land I see then I'd never get anything done.

Generally speaking, my personal standard is that if I am the only one who cares about this technicality then it is probably not worth mentioning or mapping and I certainly will not file a record of survey everytime I come across a gardner's witness post next to a survey monument. If a landowner asked me to file a record of survey showing his gardner's witness posts were not representative of his property corners I would try to convince him that it would be a ridiculous mapping effort.

Land value is always a consideration in my definition of material

[bruce hall]

When I am wrong, I pay or fix it. I know you are not talking about me but if you were I would say, "thanks man, I will check it out."

Evidently he has never had to "pay" for a screw up.

more than likely a half a foot matters or is material there where these pipes are at, or we wouldn't be talking about this.

At the very least there is negligence, and the fella who was negligent doesn't care.

[mpallamary]

I have attached redacted copies of the corner records. CR1 is when the corners were set. They all line up and look good. CR2 is the filed corner record from the second surveyor. All I asked him to do was clarify the confusion as it is obvious he did not look for the record monuments.

[bruce hall]

well if that's the case, and cr2 was my cr, then I would take an few hours off and go down and dig a couple holes and make it right.and say to you " ill send you a copy when I resubmit. thanks again."

Bruce

[David Kendall]

Mr Pallamary I encourage you to submit an inquiry to your local PPC regarding this matter

[mpallamary]

Yes, thanks all. It is frustrating because this guy says he doesn't remember the job and he doesn't work for the same company anymore and he doesn't care. I told him his legal duties have nothing to do with who he is working for and I feel he has a duty to make a clear record.

[E_Page]

If it were me in the position of the most recent surveyor on the scene, after notifying the mistaken surveyor and getting nowhere, if no other RS requirement triggers had been encountered, I would file a CR, noting the guard pipes and the other surveyor's mistaken identification of them. I would also forward the matter with all useful info to the local PPC. They may be able to educate the mistaken surveyor as to his statutory responsibilities - whether he fixes it on his own dime or the company he worked for at the time pays for the work is a separate matter between them. If he is educable, then it's a simple matter resolved locally that the Board doesn't need to deal with. Otherwise, the PPC can and probably will forward the matter to BPELSG.

[Stephen Johnson]

If it were me in the position of the most recent surveyor on the scene, after notifying the mistaken surveyor and getting nowhere, if no other RS requirement triggers had been encountered, I would file a CR, noting the guard pipes and the other surveyor's mistaken identification of them. I would also forward the matter with all useful info to the local PPC. They may be able to educate the mistaken surveyor as to his statutory responsibilities - whether he fixes it on his own dime or the company he worked for at the time pays for the work is a separate matter between them. If he is educable, then it's a simple matter resolved locally that the Board doesn't need to deal with. Otherwise, the PPC can and probably will forward the matter to BPELSG.

Agree.