Deed Distance vs Found Monuments

[charlie8297]

I am preparing a Parcel Map. The subject property's description is the West 185 feet. The subdivision map adjacent to the property on the east (within the same original lot) has a meets and bounds description, but then excepts out the West 185 feet. The subdivision map adjacent to the west is in the next lot and does not show how it established the original lot, but sets a monument at the SE corner of the map and calls it out as being the SE corner of that original lot, the SW corner of the subject property original lot. Neither map does or ties to a map showing a block breakdown. While doing the field survey, the monuments on the 2 recorded subdivision maps end up being 189 feet apart. The SE block corner has 2 monuments set that are 2+ feet apart. The maps in the area use one or the other of the monuments and do not always show both monuments at this corner.

My question, I am being told by the CS that the subject property is entitled to this additional 4 feet created by these two subdivision maps because the monuments hold, not the deed calls of the West 185. Am I missing something? I was taught that if your Deed says the West 185, then you are entitled to the West 185, especially if the the adjoining Deed excepts out the West 185.

If I am mistaken, please feel free to let me know. I know the information about the boundary above is vague, but I wanted to keep the post as short as possible.

Thank you for any advise.

[E_Page]

Dimensions recited in deeds are, in almost all cases, merely indicators of where the corners should be. You need to take a very close look at the monuments. You said there are monuments 2' apart at the SE corner but only associated one of those with one of the maps you have. Where did the other come from?

Try to determine if one or the other appear to reflect original boundaries better. And by that, I mean the boundaries as originally established on the ground, not simply if one or the other brings you closer to 185'.

Dimensions in deeds are controlling only if 1) the boundary has never been actually established on the ground, and 2) there is no reliable evidence indicating an intended location that does not match your 185' measurement.

Bear in mind that measuring is far from an exact science. Depending upon who determined 185' in the first place for the deed, how or even if that was based on an actual measurement, the equipment, methods and training of the original measurer, it may well be that the 185' as mentioned in the deed is equal to 189' as measured with your modern equipment and methods.

If the title history does not clearly show an intention to leave a gap anywhere, then all of the boundaries are contiguous - no gaps. Don't take it upon yourself to create an additional line that never existed. The exercise is one of finding where the common boundaries between your subject parcel and the adjacent ones are, whether those be at or within a few hundredths of the distance recited in the deed or several feet different than the called for distance.

If all else is equal and there is no indication that you can find of a location of original boundaries better supported by evidence, then your CS is probably giving you good advice. The monuments, although not original to the underlying parent parcel, may now be the best evidence of the original locations of the boundaries of that parcel.

[charlie8297]

Evan,
"You said there are monuments 2' apart at the SE corner but only associated one of those with one of the maps you have. Where did the other come from?"
During my research on these two monuments, both were set by the same surveyor, three years apart. The 3/4" pipe was set in '75 and the PK (2' east) was set in '78. To complicate the monuments here even more, the surveyor who set both monuments, has filed multiple maps in the area using either one of the monuments. He did use the 3/4" pipe more than the PK, but flopped between monuments on maps within the block. None of his maps showed both monuments. As far as other maps by other surveyors filed in the area, they too only show the one monument that they held.

I established my boundary based on a Parcel Map that was filed for record in '88 which called out both monuments, but held the 3/4" pipe. By doing this, it happen to split the difference between the two filed subdivision maps on each side of the subject property. This Parcel Map shows the best (used loosely) block breakdown in the area and I found multiple monuments per this map to hold this block. This map also fits the lines of occupation on the west and south sides of the subject property. There are no fences along the southeast side and the fences along the east side at the adjacent subdivision map do not fit the subdivision map. The fences along the map boundary seem to be pulled in up to 2'+ east of the subdivision's west line. I have done some additional surveying for the subdivision on the west, and found that the existing fence lines are 4 feet south of the monumentation for this subdivision. The houses along this line were also built to the fence line and not the monuments.

I agree about the instrumentation used now vs. then. I also agree that there is never an intention to create a gap or overlap. In what I have been taught through the years, this should be a clear cut boundary. Subject property is the West 185 and the adjacent property to the east excepts out the West 185. The adjacent property to the east is entitled to any excess or deficiency in the original lot.

I do not see how I can hold monuments that are not clearly identified as to how they were set. The two maps are not tied together in any way and neither shows how they established the boundaries. The CS wants me to hold these monuments, adding width to the subject property, but if, or when, I am called to the table for doing this, my defense will not be because the CS told me to. If I can defend this position, then I have no problem doing it, but as of right now, the evidence I am finding and from what I have been taught for the last almost 20 years, I cannot defend what he is asking.

[LS_8750]

Be mindful that you are identifying the iron pipe and pk as "monuments", and those "monuments" represent something.
How defensible is not holding a "monument"?

[charlie8297]

I am referring to them as monuments because they were set by record maps and held by subsequent maps. My issue is that both of these monuments are referenced as the same original lot corner, and were set by the same surveyor on two separate maps, three years apart.

[E_Page]

I misread. Went back to see the 2 mons were at the SE Block corner rather than the SE parcel corner.

I'm sure that you were taught that when the deed calls out the W 185' and the deed to the E says [the parent parcel] "excepting therefrom the W 185 ft", that the common line between them must be set at 185.00' E of the W line of the parcel, no ifs, ands, or buts. We all were. That was my belief until I started looking into boundary case law and found, where boundaries that have been previously established on the ground are concerned, that "rule" is actually the exception. It's a prime example of a rule that we have drilled into us as surveyors without adequate training regarding the exceptions to the rule and when they're applicable.

With regard to identifying the existing location of previously established boundaries, the courts have been pretty consistent in stating that measurements (record dimensions) are considered to be very unreliable.

In fact, the "rule" that says we must hold the deed dimension, including that from an "of" description is far less reliable within the context of retracement than the less formal rule that says if the retracement survey appears to be straight forward and fairly simple, it will end up being one of the more complicated of your career.

With the particular "rule" of holding the distance of an "of" description, for most of us, the exceptions are far more often applicable. Sometimes the magnitude of the differences are small enough that we take them in stride without thinking about it, attributing it to "reasonable" differences in measurements. If you were coming up with a distance within 2 or 3 tenths of 185' between the PM monuments, you likely wouldn't be having much heartburn over it.

What I've learned since completing my formal education and my first 20 or 25 years of surveying experience is that when it comes to identifying the location of previously established boundaries, the surveyor's idea of the magnitude of what constitutes a "reasonable" difference needs to be significantly adjusted based upon several, mostly historical factors. Depending upon the factors, where we might typically have a comfort level for found evidence fitting together with differences in the 1:3000 range, we may need to adjust that idea of "reasonable" to something more like 1:1000, or sometimes maybe even 1:50 or greater. Often, the most significant factors have to do with how the distance was determined (based on measurements or based on someone's calculations from previous records available to them) than it does with the methods and care of the original measurer.

Maybe one of the previous surveyors was working with an improperly spliced tape or a stretched out rag tape. Maybe the distance was first marked off by a landowner who thought he knew how to pace. If the underlying parcel was created in the 1800s or early 1900s (pre-WWII), then an discrepancy of this magnitude when dealing with the last remaining piece to be mapped and marked by a more recent survey isn't all that uncommon.

A couple of ideas based on your most recent post:

1) Have you looked into the history of the fence placements? If the fence locations pre-date the PMs, they might better represent the originally established boundary locations. It sounds like the fence along the E side of the subject parcel may have been placed relative to the PK even though the PM there was surveyed relative to the 3/4" IP. That's just a guess based on what you've described.

2) have you spoken to the surveyors of the nearby surveys to see if they can shed any light on their decisions to hold either the 3/4" IP or the PK? Particularly, the surveyor who seemed to not be able to make up his mind between them. (if any are still around)

3) If the parent parcel is a lot of an old subdivision, have you thoroughly searched in the vicinity of the fence corners for remains of redwood hubs/stakes? In many parts of the State, on old subdivision maps there may have been no indication that lot corners were set, but in practice were very often marked with redwood hubs. The remains might show up as anything from a very localized discoloration in the soil (being the decomposed redwood itself) to a nearly fully intact hub. Depending upon various environmental conditions, these hubs can be recognizable well more than 100 years after having been set.

4) What are the landowners along these lines recognizing as their true boundaries? If the lots have existed for 35 or 40 years and the landowners have all recognized the monuments set by and identified on the PMs by the surveyors of the PMs, then they most likely have effectively become the true corners, whether their locations were established correctly or not at the time. This would especially be true if you can't find any other evidence of the original lot boundaries being in locations other than as identified in the PMs.


"I do not see how I can hold monuments that are not clearly identified as to how they were set. The two maps are not tied together in any way and neither shows how they established the boundaries. The CS wants me to hold these monuments, adding width to the subject property, but if, or when, I am called to the table for doing this, my defense will not be because the CS told me to. If I can defend this position, then I have no problem doing it, but as of right now, the evidence I am finding and from what I have been taught for the last almost 20 years, I cannot defend what he is asking."

If you consider the records surveyors had to work from (and that they created) several decades back, you'll recognize that they had mostly records that showed no basis for establishment and would as often as not, find such discrepancies when they got on the ground. Resolving discrepancies, and often seemingly large ones was a regular part of the job, and remains so in many areas. The job is one of investigation as to where the boundaries were originally established and the reporting those locations, regardless of the differences between those locations and record dimensions.

Unless you can find reliable evidence that the boundaries of the underlying parcel are in different locations than as identified by the surveyors of the PMs, or very clear evidence that a gap was known to have been created by the PM to the E, then holding the 185' distance and identifying a parcel that was never created (which is what a gap is) would be far less defensible than holding the monuments from surveys for which the maps are less than clear about how the boundaries were established in those surveys.

Remember that subdivision maps, unlike records of surveys, do impart constructive notice. If there is no indication on the PM to the E of an intent to have left a gap, and in speaking to the surveyor and/or looking into the county surveyor's review file (if either are still available), there is no indication of having knowingly made a gap, then the subdivider of the PM's underlying parcel intended to fully divest themselves of that land and identified their full parcel as being encompassed by the exterior boundary marked and mapped.

The present owners of the lots of that PM bought parcels as depicted on the PM and as marked on the ground. Unless there can be found some record that the surveyor of the PM to the E or his client knew that they were leaving more than 185' in the W part of the parcel, then what you have is a case where 185' as measured by some unknown person in the distant past equals 189' by your recent measurement. Between the two, in terms of the location of the true boundaries that coincide with the actual title, the original measurement by persons unknown is the one that counts and yours, mine, or any made by any other surveyor now is meaningless. Present measurements are only to report the spatial relationships of what was previously established. We have no power to correct previous faulty measurements. A retracement survey is an as-built survey of what someone already constructed, it is not a plan layout for something new to be established.

I know from experience, that after 20 years of surveying, having been taught particular "rules" without ever having been taught when they don't apply, all of this can be very difficult to wrap your mind around. I started looking into the case law that applies boundary principles after being challenged in my thinking on a similar boundary question, except that I had the nerve to tell the other guy in the discussion that I thought he was wrong. He challenged me to prove it through research. After several weeks, and many hours of having pored through all of my reference texts (and reading some of what I had previously "learned" in college and on the job in full context for the first time), I had to admit to him that he was right.

A very important lesson I got from that experience is that much of what most of us "learned" as boundary principles, we learned by having them presented to us in a class or training of some kind in very limited context which becomes different when you go back and read them in full context of the book or chapter they're presented in, and sometimes much different when viewed in the context of the case law that the author pulled the principle from and the broader body of case law that puts the principle to application.

Another important lesson that came out of that for me was something I kind of already knew, but never gave much thought to, is that ALL boundary location principles have been defined and refined through case law. Even though the authors of the texts surveyors commonly refer to usually cite case law as supporting authority for the principles they present, we are reading those principles through the filter of the author's understanding of what the law says, and sometimes what the author thinks the law should reflect.

Sorry for going off on a tangent there, but I do that to encourage others to do some of their own legal research when they come up across situations like this one where there seems to be no viable solution that will fit with the "rules" that we learned.

The situation you are describing is one of those that will not comply neatly with the rules surveyors are taught and will be highly dependent upon the extrinsic facts you can uncover to help explain where the true boundaries lie. I'm not trying to tell you that there is no way that the subject parcel should be 185.00' according to competently made modern measurements. But given the circumstances you have described, I can confidently tell you that it seems the least likely possibility. I can also tell you that whatever conclusion you draw, you can and very well may be second guessed by someone.

If your answer is well reasoned (and putting the width at 185.00 b/c the deed says 185' and creating a gap is not likely to be seen as more or less well reasoned than holding all the monuments b/c the CS suggested it) and reasonable, it is likely to withstand a court challenge. In most cases, a solution which is least likely to upset recognized, established boundaries is also going to be the one that lends itself to the strongest reasoning.

To get to that reasoning, you need to go beyond bumper sticker principles like "the deed and the adjoining deed both said 185 ft" or "you're supposed to hold established monuments over distances" and be able to explain why one of those principles (or another you might later find more appropriate) is superior to others in context of the facts currently or previously existing regarding these boundaries. The best way to do that is to become familiar with a few cases where similar sets of facts were considered by the court.

Hope I didn't come off as to "preachy" and that some of this is helpful to you.

[RAM]

What does the title say? What was the intent? What will the Title insure? So what if there is a gap?

[E_Page]

Title officers are insurance agents, not expert boundary locators.

If there was no intent to create a diminimus parcel, then one does not exist. The title company has no authority to create one and the surveyor should not abdicate the responsibility that only he or she is licensed to perform by letting an insurance actuary determine the boundary location based upon there extremely limited understanding of boundary principles.

Too many surveyors are ready to abdicate their duty for the decisions only they are licensed to make rather than educating the non-boundary-expert insurance professional why the well-reasoned location is the most defensible.

Just because a title officer decides which line they feel more comfortable with, either because the surveyor foists the decision on them or because the insurance person believes they are the boundary location expert able to determine the location without having performed the investigation and analysis they aren't trained to make, doesn't absolve the surveyor from the responsibility under their license (8726-c).

In fact, if you are in court, the answer "because that's what the title company said they'd insure" will not be a very convincing statement to show the surveyor exercised care in in coming to a well-reasoned conclusion. It only means that the insurance company is, given the lack of a thoroughly researched and analyzed boundary location, they are willing to bet that another, more competent and diligent surveyor won't come along and find a different location as a result of a more careful survey. They are playing the odds of that happening, not considering the facts that speak tot the true location of this particular boundary location.

The insurance person can be wrong. For him or her, that means the title company may have to eventually make good on a claim. But the title officer has no personal or professional responsibility to have made a well-reasoned decision based on the facts available for the specific case. There is no statutory equivalent to 8726(c) for an insurance actuary. In fact, relying on a survey by a duly licensed surveyor would be meeting the standard of care for that person.

If the title company loses on the boundary case, they haven't yet necessarily lost on the insurance liability case. Their next line of defense will be that they put reasonable reliance on the survey. At that point, the surveyor who thought they were protected by putting the boundary location question on the title officer will find themselves suddenly in the position of being sued by the party he or she naively thought would shield him or her from liability. And at that point, the surveyor will have no defense because he or she will have, rather than done the work to arrive at a well-reasoned conclusion, have instead abdicated the decision to an unlicensed insurance employee.

The title company's role is to insure the quality of title, not to ensure the correctness of it. Although the two words are often used interchangeably, there is a big difference between the two.

With the duty to insure, there's only money on the line.

With the duty to ensure, there's not only money, but reputation and professional license on the line.

Two critical parts of being able to ensure are 1) possessing the expertise to recognize and understand the boundary principles involved, and 2) being able to articulate one's reasoning well enough to make the complex understandable for non-experts.

Only the surveyor is licensed to determine whether the facts on the ground, together with the facts in the record, show whether this is a title Quality or a title Location matter. That determination cannot be made from the record alone.

But, if you don't want to put further effort into finding the true boundary locations, learning the principles and law that would guide you to find the true location, would rather bet that because it's a gap rather than an overlap there is less chance of a fight over it, bet that a more careful and knowledgeable surveyor won't be hired and then indicate a different location within the remainder of your career or lifetime, and bet that no landowner, even if inclined to challenge, will have the resources for a sustained legal battle, that's a pretty safe bet. Your odds of avoiding later being found negligent for not trying to find the true boundary are pretty good. Those are the odds the title company would play. Those odds are built on more factors than the correctness of the survey, and also stack the deck to shift the loss to the surveyor.

You need to decide whether you want to be able to ensure, for yourself and your client, that you have determined the most likely original position of the true boundary through expertise and diligence, or just be an extension of the actuarial model, which relies more on the lack of resources of the landowners and lack of expertise and diligence of other surveyors as defense against liability.

[Proud7191]

Great job Evan.

I especially like the following lines.

"With the duty to insure, there's only money on the line.

With the duty to ensure, there's not only money, but reputation and professional license on the line."

I tend to run those definitions together but as you point out there is a big difference.

I also like: "The exercise is one of finding where the common boundaries between your subject parcel and the adjacent ones are, whether those be at or within a few hundredths of the distance recited in the deed or several feet different than the called for distance." A.C.Mulford said that back in 1912 with "it is far more important to have a somewhat faulty measurement of the spot where the line truly exists than it is to have an extremely accurate measurement of the place where the line does not exist at all.".

I think this post is good for 1 PDH and maybe two before it is over :). Thanks, Jp

[Dave Karoly, PLS]

I will comment on this thread because there has been a lot of confusion on these issues.

According to my research it appears to me that the traditional boundary text books have confused questions of law with questions of fact. What is a tract of land is a question of law; the west 185 feet is the west 185 feet, it is 185 feet wide in law. The location of the boundaries of the west 185 feet, however, is a question of fact and they may, in fact, be more or less than 185 feet apart. In law they are 185 feet apart; in fact they may be some other distance apart. This applies to acreage too; the acreages returned in the original surveys are held to be correct by Federal Statute even though they may be inaccurate.

Most Land Surveyors understand this with respect to original boundaries. The GLO deputy states in the official field notes that the section corner monuments are 80 chains apart but in reality they are some other distance apart. The legal mechanism which allows for reality to control over the often inaccurate record is fact (reality) versus law (record). The reason behind this is no boundary would ever become finally settled if no allowance was made for inaccuracy in measurements and uncertainty over where exactly the inaccurate measurement should be made from.

The law requires that the intended tract to be conveyed be determined solely from the written Deed (although there are numerous exceptions to the rule). Once the tract to be conveyed is determined then the question turns to where is this tract located and how big is it really? If the Deed conveys the West 100 feet of Lot 101 then the Grantee will not be allowed to say that it was really intended that all of Lot 101 be conveyed (generally with numerous exceptions). Once it is determined what was intended to be conveyed the next task is to figure out where the boundaries of the west 100 feet were physically established. I am a strictly logical person so it can be hard to convince myself that 100 feet is really 105 feet like some kind of new math but the Courts have done pretty much that in books full of published appellate opinions.