Custom and Practice Inquiry

[mpallamary]

I have a theoretical question regarding custom and practice and standard of care. The owner of Lot 1 commissions a survey in 2016. Monuments are set and a Record of Survey is filed.

In 2020, the owner of Lot 1 commissions a second survey. The second surveyor rejects the 2016 and, in the process creates an encroachment condition. The second survey files a Corner Record.

Who believes this to be a material discrepancy?

Should the second surveyor have filed a Record of Survey?

Which survey binds the owner of Lot 1?

Many thanks as always. See the attached theoretical diagram.

[CBarrett]

I started writing an answer, and went far and deep into overthinking, and looking at it from several different angles.
Is this a test type question to illustrate a principle?
Where are you going with it?

[CBarrett]

Ok, it's lunchtime, so out with my thoughts...

My understanding of material discrepancy is that it it is purposely left somewhat vague, so that it can be evaluated on case by case basis.

I suppose since the question is theoretical, saying survey 2 created an encroachment, this implies that owner 1 owns and maintains the wall.

Theoretically speaking, creating an encroachment can be seen as a material discrepancy, because it changes owners position from that of an agreement to that one of a possible conflict. While IRL, 0.08' encroachment of a wall is not likely to create significant problem when neighbors are in harmony, the act of change itself can trigger neighbors focusing on that detail, and the risk of them zeroing in on the conflicting information and creating disharmony is higher. This can cause a significant amount of time and money spent in clearing up the issue, thus making it a discrepancy of significant material value.

2nd surveyor should have taken the position of the wall into account, especially if he was to reject an accepted monument. 0.08' discrepancy is not enough to reject a previously established monument.

Neither surveys are really binding, because neither seem to be surveys which were used to originally occupy the land and build improvements (I am assuming this since it is not specified in the question). If survey 1 was original survey based on which the land was occupied, and it did not inadvertently (in error) include rights which Owner 1 did not have, it should be binding.

I am probably overthinking this, considering we are talking 2016 and 2020, I would expect previous JR/SR rights existing in the neighborhood, and hopefully both surveyors examined those.

Those are just some initial thoughts to get the conversation going.

[mpallamary]

it is a theoretical question to gather people's thoughts on a survey issue.
The owner of lot 1 does not own the wall. He/she has had two surveys performed. Should the second surveyor have recorded a Record of Survey?

[Dave Lindell]

The second surveyor should file a Record of Survey, and after it records he/she should hand in his/her license.

[CBarrett]

Ok, I was looking at it too fast (and backwards) earlier, lot 2 owns the wall.
There is absolutely no reason to be flossing the hundreds and creating an encroachment in this situation. The wall needs to be treated as a monument in itself.

I am preparing an RS right now, which is soon to go into map checking, where I am rejecting a monument set for a parcel map about 20 years ago, because it is not fitting the lines of occupation in a tract established some 80 years ago, along this tract line. Even the building lines from this new parcel map don't honor the monument, but are aligned with long established lines of occupation. Anyhow, I am rejecting this monument as evidence of original tract line. In some way it is lucky that I am not surveying the property resubdivided the map that set the odd monument.

When I reviewed how that particular map was surveyed, from some monument 3 blocks away and brought in on a single traverse leg... I am not surprised. They completely ignored well established lines of occupation, and the fact that this particular neighborhood was monumented via chiseled X's on curb lines (1890's IIRC) and since that time curb splits have been a well documented way of establishing right of way in this locality. Well, and to add, the cap is no longer on the monument, so I can't say with certainty it is the right monument, or that it has not been disturbed.

This is an old and poorly monumented neighborhood in a relatively dense and dilapidated city neighborhood, so lines of occupation are about all that's left. It is actually pretty impressive how tight the best fit line is along the lines of occupation in this tract, across about 4 blocks.

Good thing is that this RS is still going to go through couple of peer reviews before it goes into mapchecking - since it has a few oddities and (for my experience level) unusual situations.

[Peter Ehlert]

The second surveyor should file a Record of Survey, and after it records he/she should hand in his/her license.

I have mixed feelings about filing a Second RoS. ... however that Second surveyor "should" have clearly explained Why.

this is a case where the reviewing CS "should" flag it and place a note on the Corner Record.

Mike: we don't know who owns the wall, it is possible to own off site improvements. There are too many assumptions

[LS_8750]

Is there some sort of legal strategy involved?
Filing a corner record could negate disagreement between surveyors and bypass boundary line agreement route?
Was the corner record in fact based on record monuments?
Why did the first surveyor file a record of survey if a corner record was sufficient?

[mpallamary]

Lot 2 owns the wall. Lot 1 now claims ownership because of the new survey.

[CBarrett]

The more I think about this the more I am convinced...

.....more thinking out loud....
This is an example of a surveyor creating a problem where there were none to start with. We can't have myopia when it comes to refined measurements at the expense of everything else.
If we assume survey 1 was the original survey, surveyor 2 did not retrace the footsteps correctly. Basis for that assumption would be that a record of survey was filed. It could have been filed for monumentation, but lines previously not surveyed are likely as well.

I am eating my lunch over Clark on boundaries to refresh my memory... page 27, mid page: The surveyor must locate and identify the source of errors and then give an opinion as to the location AND THE POSSIBLE EFFECTS such error will have upon the survey or the description of the parcel. (emphasis mine).

To me this question leads into the ramifications of calling monuments off by a little bit, and then it creates an issue where there were non - part of the problem with pincushions. Sine second surveyor is filing a corner record, I am assuming he set a pincushion, or if the 2016 monuments are gone, a theoretical pincushion.

I am also assuming that the wall was standing prior to both surveys... and is likely the best indication of where the boundary is.

Another thing to be aware of in this example is the power which surveyor has over the owner, by giving his/her opinion about the boundary location. I would suspect no one thought of about a boundary conflict till the surveyor showed up and proceeded to 'show how he can measure better than the other guy", and now there is a conflict. While most people, even in minimum sized lot subdivisions are not likely to consider 0.08' a material difference, now that it is pointed out 'by an expert' it has set the owners up for a discordant relationship.

How is public being protected by the second survey????

[mpallamary]

Well summarized. I believe in Cooley.

[mpallamary]

Cooley.

https://archive.amerisurv.com/PDF/TheAm ... ep2015.pdf

[PLS7393]

First off, a record of survey is only a land surveyors professional opinion, and may be required under Sect. 8762 of PLS Act, or the surveyor simply wanted to do a better mapping job and file a R.O.S.? That potentially depends on how Lot 1 was originally created?

A corner record may suffice, but in my opinion, has less weight than a R.O.S., which is filed in the Clerks Office.

I would say 0.08' is not material discrepancy, and may not require a R.O.S., but if one wants to create an encroachment (0.08'), then a R.O.S. should be filed. As outlined in Sect. 8762 (a) " . . . may file with the county surveyor . . . "

Pertaining to a CR being the appropriate document, that may open up another can of worms, as some feel a record of survey should be filed for ALL maps.

Now what the heck was your original question, as I have a Guinness calling me on this here St. Patty's Day. CHEERS SUCKERS ! ! !

[Jim Frame]

I would say 0.08' is not material discrepancy, and may not require a R.O.S.

In my opinion, the second surveyor is required to file a ROS by §8762(b)(3), "[e]vidence 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..." The prior survey, evidenced both by extant monuments and the filed ROS, is prima facie evidence of an alternate position of the line, and that alternate position is material because of the wall.

[David Kendall]

that alternate position is material because of the wall.

Unless the wall is 10 feet tall and made of gold I might argue that the inch of wall is immaterial. The entire discussion is a waste of time due to the fact that there is not enough of the hypothetical BS provided to form a reasoned opinion. It's just your typical St Patrick's Day blarney

[mpallamary]

Thank you for your valued input.

Be well.

[David Kendall]

I have a theoretical question regarding custom and practice and standard of care.

I believe the evaluation of custom and practice and standard of care goes much deeper for a professional than the matter of closure error and which document to file. Please provide the following data so that this discussion can go beyond the technical minutia of small measurement error.

1. What was the purpose of the first survey?

2. What was the purpose of the second survey?

3. What is the area and value of lot 1?

4. What is the area and value of Lot 2?

5. Who built the wall?

6. When was the wall built?

7. What is the compostion and dimensions of the wall?

8. Is lot 1 occupied or vacant? What is the history of the occupation?

9. Is lot 2 occupied or vacant? What is the history of the occupation?

10. Describe the nature and history of the boundary conflict and relevant actions by both parties.

11. If you feel this 0.08' discrepancy constitutes a materially alternate position of points or lines shown on a map then explain why

[mpallamary]

Hi,

This is a theoretical scenario. For purposes of the discussion, I submit the following.

1 Unknown

2 Unknown

3 The property is in a high density urban neighborhood. Maybe $1.5M.

4 $1M.

5 Unknown

6 Unknown

7 Concrete block retaining wall, three feet high.

8 Both lots occupied with SFR

9 Dispute over the wall and location of the common line.

10 This is my question for you and anyone else who reviews this. This is the crux of my question. I have an answer already; I am seeking comments from others.

Thanks much!

[David Kendall]

I would need to see the maps in order to provide an opinion. Doesn't sound like anything worth fighting over to me. De minimis

Owner of Lot 1 is a nut for ordering a second survey of the same line that is already monumented. If I can't figure out why he did that then I probably go back and do some further research. What is he trying to do with his newfound inch of block wall anyway?

Tell him to split the difference with himself and grind off a half inch of the block wall or grant a revocable license to Lot 2. Also file a board complaint against the county surveyor for signing the corner record with no explanation of the alternate line and no monuments.

What was the methodology of the corner record line? What was the methodology of the RS line? I would look at that before I trouble myself with whether the corner record or record of survey is more meaningful as a record.... Why would it matter to you which document he filed if the methodology was sound?

[mpallamary]

Good comments all!

Many thanks.

[LS_8750]

The problem it seems with these sorts of boundary disputes, is that there is no money involved, no big insurance policies to dig into. Just squabbling over a few hundred thousand dollars about a few tenths of a foot. Unless the surveyor's E&O policy gets involved?

[CBarrett]

The bottom line is that surveyor 2 created a problem where anyone with common sense, including the owners in question didn't think of it as an issue. All because he was focused on a few hundreds.

I remember this very topic being brought up in a number of seminars too. most recent conference I went to I vividly remember two speakers discussing it. Knud Hermansen and Gary Kent. I believe Ian Wilson touched upon it as well. they were all in agreement, generally speaking don't create conflict out of few hundreds, boundary surveying is 4th order work. ALTA asks for +/- 0.07' accuracy for urban boundary locations.

For most boundary surveys, 0.08' is on the edge of precision they are working with, and in rural areas the number is greater.

When you are dealing with lay people, if you point a problem, and then proceed to explain that it is so minor that they need not worry about it, all they are going to remember is "PROBLEM".

I had a conversation with my aunt some months ago (she is a doctor) about managing patient expectations. For example, certain pre-cancerous conditions ae so common that 80% or more tend to resolve themselves. Doctors are trained to recognize when it is a problem and when it isn't, and treat it accordingly. With certain levels of conditions, they refrain from use of word cancer, or carcinoma or related, because it freaks the patient out, all they remember is cancer, and OMG I am going to die (most likely tomorrow). so in their diagnosis they have levels of certain chemicals and dysplasia etc... which tell them, and the patient where things are at, without freaking out the patient, and have them run away screaming and create more harm than good.

Yes, in real life this would be a lot more defined, probably to a point we are likely to get caught up in detail so much that we neglect to consider the result of our 'service'.

[mpallamary]

Cooley had a great deal of influence in California.

I love the statement: "the map could not locate itself on the ground."


"The testimony of the engineers was incompetent to establish the location of Fourth street, and the objection to such testimony should have been sustained; and the same may properly be said of the maps with the exception of the Ord map. This map, and the contract in pursuance of which it and the Ord survey were made, were proper evidence in the case; but the map could not locate itself on the ground.

It appeared in evidence that all the monuments of the Ord survey were lost, and no attempt was made to establish their location, either by reputation, the declarations of deceased persons, or by the testimony of witnesses having knowledge of such location; but it seems that, in the absence of any such evidence, the engineers have attempted to locate the streets by selecting the most uniform street in the oldest part of the city, and, assuming that one boundary of that street is on the Ord survey, they propose to locate the other streets of the city, by first measuring the distance required by the Ord map, and then adding to or subtracting from such distance as may be required to leave all the streets of a uniform width of 60 feet, and require the removal of as few buildings as may be. In making their measurements on the ground, they have disregarded the Ord map. They make the block in which appellants’ lot is situated 599.76 feet long, and the block immediately across Fourth street from and north of said lot they find to be 605.07 feet long, whereas the Ord map gives the blocks a uniform length of 600 feet.

They might have come nearer the map if they had given the blocks on each side of Fourth street a more nearly uniform length, by placing Fourth street 2 or 3 feet further north. The work and testimony of the engineers is only a guess at the location of Fourth street as originally established by the Ord survey."

"It may be proper, in the absence of any better evidence, to regard the line of ancient and continuous improvements as evidencing the line of Sixth street as it was run by the Ord survey; but no use of this line can be made to establish any other line in the city for two reasons: First, the engineers have demonstrated by their measurements, and their testimony is an admission, that the Ord survey must have been very inaccurate; second, the inaccuracy of the early surveys in California, as well as in other states, is a matter of such common knowledge that the courts are warranted in taking judicial cognizance of the existence of such inaccuracy, as they frequently have done.

It needs no argument to show the impossibility of locating an unknown line of an inaccurate survey by running form a known line of the same survey. In the absence of better evidence, the court might have been warranted in finding for appellants on the evidence as to the south boundary of Fourth street as it had been indicated on the ground by the line of fence and other improvements for 25 years. Diehi v. Zanger, 39 Mich. 601; Orena v. City of Santa Barbara, 91 Cal. 621, 28 Pac. 268. There was no competent evidence in the testimony or maps of the engineers to show the location of the southern boundary of Fourth street, and, therefore, the judgment of the court has nothing to support it."

[mpallamary]

The importance of a built-up boundary line. Fancy surveys and modern equipment provide a false sense of security.

Look at the line and kick the dirt.

[LS_8750]

Mr. Pallamary, can you cite the origin of that Built Up Boundaries doc?