California Surveyors Forums

Steve, what "stability" are you destroying by calling the blunder a blunder? The neighbor has to move his shed? That doesn't seem too critical compared to the havoc of holding a blunder.

PS, what you posted in #169 might be where the miscommunication is. Dane is not saying the corner “moves” depending on your measurement accuracy. In fact, the corner is established based on the relative precision of measurement at the time and cannot be moved. I believe he is talking about a blunder that has nothing to do with measurement accuracy. Also, you are exactly right, it was harder to measure then and hence one reason for the general rule.

“Monuments are things that property owners can see and feel.” Then why measure at all! Why not find the original monument charge a couple hundred bucks for your site visit and research and call it a day? That’s what case law says to do right?

Steve, I have been impressed by your logical approach and truly believe (in this particular case) it probably doesn't matter what you do as long as you file a Record of Survey showing what you decided.

As for your sense of neatness and precision, I don’t know if that should be the main driving force. The main driving force should be the intention of the deed, that references the map, that shows the owners what they own and pay taxes on and have all of the rights associated with this ownership. What court of equity would force the land owners to own up to a blundered monument when all they new is they owned Parcel 1 and one owner thought the monument represented the line. I have not seen a case that holds a blundered monument unless there is also a substantial amount of reliance, statute of limitations, acquiescence, occupation, improvements, etc. Similary, if both owners thought the fence was the boundary line, I don’t think either of them is stopped in claiming to the true line.

We’ve had the best of the best weigh in on this one and I’ve learned a lot from what has been posted.

"Monuments control" is a rebuttal presumption, at least according to Brown.
But I am glad not to have to been in Steve's shoe on this one.

Steve, I'm not sure what the answer to #1 is. It is easy for all of us to say it is your decision and obligation as a professional to state the facts as you understand them and to form your professional opinion. Like I said though, I’m not sure how much it matters whether you hold the mon, throw it out, or show both solutions on a record of survey. What would you feel more comfortable defending?

#2 I have yet to find a case that holds a blunder or disregards one. I have posted two cases where they did not hold found original.

#3 I hear you! Critical thinking and evidence analysis are our two main tools. The courts have shown they know how to contradict themselves with the best of them. Maybe it’s true that each case is different and that’s where the professional judgment comes into play.

What to do with an original monument that was blundered...accept or reject???

I provided a recent court decision from the Colorado Appeals Court (Morales vs. CAMB, et al., 2007) where they ruled that a field blunder does NOT matter. The original, undisturbed monuments hold, regardless of whether a field blunder occurred or not!

I asked a few pages back whether the California courts should rule as Colorado has. Well, should they? If not, what legal principle(s) support rejecting monuments set in error. I keep reading in this thread that the parcel map should hold because it expresses the intent of the parties. REALLY? If that is the case, then why bother with monuments at all. If that were the case each parcel map, subdivision map, and plat only needs to reference one monument. To paraphrase from the movie classic, Treasure of the Sierra Madre, "We don't need no stinkin' monuments!"

I was involved in a case very similar to Morales v. CAMB. A mountain subdivision of 40 lots where the original surveyor had a contract survey crew set the corners. Supposedly, the pins were set using RTK GPS with blunders as large as 14 feet. The surveyor blamed the survey crew for the errors, stating that they were inexperienced with using GPS in mountainous terrain. The county wanted to "fix" the problem by resetting all the pins at their record positions, with the lot owners left to negotiate lot line adjustments and reciprocal quit claim deeds to tidy everything up. Fortunately, only two lot owners had decided to "reset" their boundaries by this method. I posted a paper earlier in this thread that shows the complete absurdity that can occur when maps are held over monuments.

If any of you think that Steve's problem is somehow unique, you have a lot of surprises ahead when you retrace surveys done since the late 1970s. Subdivisions were not laid out by actually running the lines. Corners were sprayed in from a high point using a Wild T-16 and Beetle. Not much different that modern surveys using RTK GPS without redundant checks.

I hear the same arguments made by Colorado surveyors. They cast about searching for ANY reason to reject a blundered monument. They too cling to arguments like the plat came first, therefore the boundary is fixed by paper rather than the survey run on the ground. Erroneously set monuments, once relied upon fix the boundary. Evan has articulated the principle far better than I. Reliance is the key principle.

Steve,

Accept the monument, show the conflicting evidence between the monument and the record line, and file the RS. I believe it really is that simple (at least from a Colorado surveyor's point of view)!

Best Regards, ;-)
Gene

The answer I posted was Skelton..... comments on monuments inadvertently inserted.... do not control
How about Justice Cooley"The Quasi Judicial Function of Surveyors"....

"The duty of the surveyor
From the forgoing, it will appear that the duty of the surveyor where boundaries are in dispute must be varied by circumstances.

1. He is to search for original monuments or for the places where they were originally located, and allow these to control if he finds them,UNLESS he has reason to to believe that agreements of the parties,express or IMPLIED, have rendered them unimportant.

... always keeping in mind, that neither his opinion nor his survey can be conclusive upon the parties concerned,and, second, that courts and juries may be required to follow after the surveyor over the same ground,and, that it is exceedingly desirable that he govern his actions by the SAME LIGHTS AND RULES THAT WILL THEIRS."

RESPECTFULLY SUBMITTED

And I am trying to confront the question head on rather than a round about path. In my opinion, the Colorado court got it right. Original monuments relied upon by the parties fixes the boundary regardless of any error or blunder in the original survey. My argument is not in conflict with Cooley's statement that, "always keeping in mind, that neither his opinion nor his survey can be conclusive upon the parties concerned". The parties in Steve's case are free to enter into a boundary line agreement to rectify the problem arising from the blundered position. I presume that California is similar to Colorado where a BLA is appropriate when the position of the line is ambiguous or in dispute. Steve has tried to steer his client towards a BLA, but the bank declined.

I see Steve's fundamental question as being what is the proper course of action when a field blunder is discovered during the course of a retracement? The principle that monuments control over course and distance is one of the most basic tenets of boundary law. In my opinion, a valid exception to this general rule is very rare. The retracement surveyor's main duty is to retrace the boundary lines as run on the ground by the original surveyor, not to fix his/her screw-ups.

Respectfully,
Gene Kooper, CO PLS

"Reliance is the key principle."

I agree, if that reliance is substantial. If it's not -- and in Steve's case it sure doesn't sound like it to me -- then I don't believe that accepting the monument in the face of a considerable body of evidence in favor of another position is wise.

I'd venture to say that most, if not all, of the cases cited in support of holding a blundered monument made it to the appellate level because there was a lot of money at stake. (Can you find the 2 inadvertent puns in that sentence?) For each of those cases, how many instances do you suppose there have been in which the surveyor said, "that monument's way too far out of position to honor, I'm going to hold the corner at its record position," and none of the affected owners got sufficiently bent out of shape to file suit, let alone pursue a loss to the appellate level.

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Just to add a little to what Jim said above… A search for all California case law that cites “monuments are paramount” from Civil Procedure 2077 yields 17 results. Of the 17 it looks like 15 hold the general rule and 2 contradict it. The earliest case is 1958 and none deal with modern subdivisions.

Under the circumstances, Steve, I think your choice has become easy. You hold the monument. However, you may still want to show a lighter set of lines to the record position just to bring added notice to the discrepancy. Also include a note or narrative stating that each party was in agreement to live by the monument. Having signed affidavits or statements from each party would also be useful.

IMO, you stated the reason for monuments being at the top of the list was spot on. Landowners can look at a map, see a symbol at the corners of their property as depicted on the map and see a survey iron in the ground. "There it is, my corner, just like the map says." They have no idea if it is 200.00' to the next corner as the map says, or if it is really 192.5'. But they can see and touch that iron, know where it is relative to a tree, a fence, a shed, or a house. To them, it is their corner. Their intent, as many are here are so intent (pun intended - oops, did it again) on divining, is in most cases, to honor both the map and the monuments. To anyone other than those who are skilled to measure between them and find mathematical irritations, it is one and the same.

When a mathemagician pretending to be a surveyor comes around, determines that one of these monuments is not in the "right" place, and sets a new one, what do the landowners think? Do they say "The surveyor corrected the point to agree with our map"? No! That's what mathemagician's say!

The landowners say "The surveyor moved the corner." Depending upon whether it was to their benefit or not, they may say "The surveyor moved the corner to the right spot." The qualifier comes as a matter of perspective depending upon which side of the line they are on. But the basic perception is the same either way, that the surveyor moved the corner.

No one other than surveyors understand the distinction between monuments and corners. The law does. But the law also understands that most people view the monuments as the corners they were intended to mark. That's why there is and should be a very high bar for rejecting them.


For any who think that any here have advocated holding a found monument "no matter what", I think that you must have been reading a different set of comments than those included here.

Also, if you think that boundary cases are decided in a court of equity rather than a court of law, you are sorely underinformed. The two types of court are distinctly different and boundary cases are decided in a court of law.


Jim, please enumerate the "considerable" body of evidence supporting rejection of the monument. So far, we know that the monument position does not match the position reported on the corresponding record map. We have made a reasonable speculation that the map may have been approved prior to the monument being set, but we don't know that. We have speculated that it was set in it's position by mistake, but we don't know that - there are other, albeit less likely explanations why it is where it is. Unless I've missed some other evidence, that doesn't rise to the level of "considerable", IMO.



Ben, when looking at cases, you cannot boil it down to keeping score: "15 held the mon, 2 didn't", "X cases hold the fence, Y don't". It is not a matter of the courts contradicting themselves. At the appellate level and above, the courts are pretty consistent in boundary cases. You need to look at each case to ask yourself "Why did they or didn't they hold the monument?"

It is about critical thinking and it does not stop simply at accepting your own logic, because it is not your logic that a potential boundary case would be decided upon, it is the logic embodied in case and statute law. Understand the principles there, and the apparent contradictions decrease in number and the decisions become less mysterious.

Evan, "To them, it is their corner." I can't accept this line of reasoning, otherwise we wouldn't have to measure at all.

"In recent years, though, I hear more and more property owners trying to cite adverse possession or some such principle to proclaim the fence as the boundary even if there is little or no ambiguity in the documented line."

I've heard a few owners make similar claims, but they've all lost the notion pretty quickly when they learned what it was going to cost them to pursue that claim in court.

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"Jim, please enumerate the "considerable" body of evidence supporting rejection of the monument."

1. The long, deliberative and public process by which the PM came into being and which makes clear the subdivider's intent to create parcels with particular dimensions.

2. The monuments set by the original surveyor that comport with the dimensions shown on the map, thus locating the subdivision on the ground.

3. The conveyance by deed describing the parcel by reference to the PM, indicating the intent of the parties to convey a parcel in substantial compliance with the dimensions shown thereon.

As opposed to a shed.

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Ben Lund wrote:Evan, "To them, it is their corner." I can't accept this line of reasoning, otherwise we wouldn't have to measure at all.

Then I suggest that you have little idea why it is we are licensed. Measuring is a supporting function of a boundary surveyor, not the primary one. We measure in order to make maps to attempt to accurately portray the relationships of points, lines, and features to one another. It sounds to me as if you believe that it is our job to precisely show boundaries, start to finish.

To be sure, we should strive for at least adequate precision when reporting our measurements, but if you do not properly identify existing boundaries, you have thrown accuracy right out the window.

If you cannot (will not is probably more accurate) accept that line of reasoning, or any other that cites law or basic boundary (as opposed to measurement) principle to support acceptance of monuments in positions other than as a record map reports them to be, then do us, your clients, and yourself a favor and do not use your license under your own direction until you have gained several more years experience under a more experienced boundary surveyor.

Sorry to be so blunt, but you seem to be selectively reading the posts, and reading many in a light they are not presented in. You keep coming back to the charge of "those who would accept a monument no matter what." It's demagogic in that it characterizes the statements of those who disagree with you as an absurd extreme by simplifying them to an absolute which was at no time stated or advocated.

If you are too inflexible to look beyond your own reasoning, and try to figure out why UNDER EXISTING LAW, a monument may or may not be accepted, then you have not developed the judgement and problem solving skills required of a boundary surveyor working under the authority of one's own license. For boundary work, it is an almost entirely different skill set from engineering.

An engineer finds a mistake and rightly asks "How do I fix this?" A surveyor finds a mistake and the first question he must ask himself is "Should I fix this?" Each is appropriate for a different kind of problem. Recognize that boundary is not an engineering problem and that it follows the more abstract rules of law rather than the rigid rules of physics.

Jim,

1. OK, good supporting evidence if you have a more substantial body of evidence, but I know of no case that holds the administrative process over an existing monument noticed by the landowners.

2. Not all of them. That's why this discussion is happening.

3. And if you carry that one more step, the map references the monuments, indicating the intent of the parties to convey the property bounded by the tangible points they can physically find, see, and touch.


OK, all decent supporting evidence, but not enough. Do you have any evidence that the landowners had previously rejected this or any other monument? Did they realize its position was in disagreement with the map? Got anything stronger?

We can express our opinions in a filed map,but we cannot fix the problem. Evan's outlines a course of proper action. He falls into the camp that holds that there is not sufficent evidence to overturn the presmption that monuments control.His map will look different than the one filed by someone in the camp in whose opinion the EVIDENCE(NOT DIVINING) leads them to believe there is enough evidence to reject the monument. No matter what side you come down on, the problem is a matterr that only the landowners can fix. They need to agree to the monument or reject the monument and there is a considerable amount of work to do to get all of this stuff on record.

Evan, it is too bad that all you can do is resort to demeaning posts, but moving on. What I read from your posts is, if you find the original monument set per (not by) the map (physical description is matching perfectly) you hold that monument. Is this or is this not your stance? A yes or no would suffice (please check your emotions at the door).

Dane,

that's about right.



Ben,

I'm not out to demean you, but in my frustration of not being able to convey my arguments in a manner that you can or will understand, I'm giving you some blunt but honest advice. If you think it is your job as the surveyor to fix boundaries and move monuments based upon math, work under a more experienced surveyor for several years until you understand boundaries. Seriously.

You are still simplifying my general opinion on the subject, but you are closer. First, I gotta get nit-picky and point out that never has a map ever set a point. Most often, the same surveyor who set the points also prepared the map depicting those points. In some rare cases, the map may overcome a monument which appears to be in disagreement. Each case has its own set of evidence to consider. But most often, the monument, even if set in a location by mistake, would and should prevail.

The problem that you run into when you base that decision on math rather than law, is that you need to define some positional tolerance that you are willing to accept for each found monument. How do you empirically or legally define that limit? Is it an absolute value such as, "I reject any monument that is out of position by more than 0.2' in an urban setting, 0.5' in a suburban or semi-rural setting" and so on, or is it expressed as 1 part in 10,000, or will you define an error ellipse?

If you define a math limit, how do you justify that limit against standard practice? There is nothing in statute that addresses magnitude of error (meas vs record), and I can recall no case for which the decision hinged upon the distance to a found point from a calculated search location based upon record. There certainly is no guidance in case law that you can hang your hat on for a math limit. Neither will you get a consensus of the surveyors in your local CLSA chapter.

The variance between position of a found point and its expected location can often be a flag for you, prompting you to investigate why there is a greater than normal (or expected) discrepancy, but by itself, is rarely or never a reason for rejecting a monument.

Sorry, the question is too complicated to be answered as succintly as you would like me to.

"But most often, the monument, even if set in a location by mistake, would and should prevail." Evan, two words…I agree. "Most often" is the key phrase and I believe most agree also. Out of curiosity, when would you disregard found original?

My head hurts. Start a new thread in a few days.

Evan, Fair enough. BTW, as for what standard you would use, I believe all of us are asking the question: "Is the monument in a place within a very large tolerance of the precision the original surveyor was working with?" But, then again why even ask this question! You also mention that your measurements can be a flag. I'm not sure what the flag would say besides, "hold found original."

"Do you have any evidence that the landowners had previously rejected this or any other monument? Did they realize its position was in disagreement with the map? Got anything stronger?"

Of course not -- Steve is the only one of us who's had boots on the ground in the matter, so for the rest of us it's merely an intellectual exercise.

However, I have yet to read of any substantial reliance on the monument in question. Steve has described a shed that apparently predates the subdivision and is slightly over the record line. He's told us that the adjoiner, who now claims that the monument was represented to him (by persons unidentified) as the corner, earlier responded to news that the line was to be surveyed by saying "Oh, good, then we'll know where it is." The same adjoiner erected a fence that's about 17 feet west of the monument.

Pretty thin soup, if you ask me. Under the circumstances, I find more weight in the intent as expressed by the PM than in the wildly misplaced monument.

.

Does anyone know of a court case that supports holding blundered monument? I can't find one for modern subdivisions (1990s and newer) that at all resemble this situation, yet it has been purported that piles and piles of cases support holding blundered monument.

Jim,

Sorry, I didn't mean you personally. Sheesh! I meant as presented in this thread or that Steven might bring up.

You are using significant reliance at this point to justify the mon. What needs to be shown is that the landowners rejected it.

What I read, is that Steven has a direct statement from the neighbor that he knew of the mon's existence and recognized it as the corner, and a 2nd hand statement via the realtor that indicates that possibly he did not.

The direct statement may be suspect, but the other is hearsay and I wouldn't base any part of my decision on a 2nd hand statement.

As I recall about the shed (I'm not going to go looking now - Steven can verify), it may or may not have predated the PM. That could be an important bit of info. If it did predate, then the PM surveyor may have set the iron where he did intentionally. Then you have a new investigation of intent. Was it intended to be an offset or was there an intention to reconfigure the lots slightly to accommodate the shed. If the irons were placed before the shed, even though a small portion of it encroaches slightly, it could be seen as an attempt to place it near the back corner of the property and as probable reliance on the iron.

Yes, the whole thing is pretty thin soup to prove either way. Unfortunately for our sense of cadastral and mathematical orderliness, the burden is to prove that the monument is not in its original position and to prove that it should be rejected, not to prove that it should be accepted.

The real world is not made up of lines, symbols, and numbers on stacks of paper. It is made up of homes, driveways, fences, sheds, pets, and people. Most people look to physical things to rely on. It is physical things which are best understood. That is why we set monuments rather than just filing maps and listing coordinates. The common homeowner cannot build a fence to an imaginary line on the ground or to imaginary coordinates without a physical indication of where they are. That is why existing monuments are at the top
of the heap, why they float to the top, no matter how thin the soup is.


As to cases, I would have to do some research to find any pertaining specifically to "modern" subdivisions that either hold or reject a corner deemed to be located by mistake.

Dykes v Arnold however held that a surveyor creating a modern subdivision should not have rejected a C 1/4 set by improper procedures. The magnitude of that discrepancy was 71'. Since the parcel at the center of that controversy was not the subdivision itself, the case does not speak directly to the disposition of that property. But it does place the blame for the confusion and discrepancies on that surveyor and reiterates that it is not the retracement surveyors duty, nor his prerogative to fix points long established on the ground.

Going back to the big landmark case, Diehl v Zanger was about a very poorly surveyed subdivision, which was laid out exceedingly poorly even for its day. One could credibly argue that virtually very point set in that subdivision was blundered. In many instances, many of the cabins in that sub would have been entirely on the neighboring lot in the "corrected" subdivision. The bottom line: It is not the retracing surveyor's place to move that which has been established.

I have not seen, nor do I expect to see in my lifetime, any significant boundary case that elevates the administrative process of a local government to a higher position than the physical things of a survey or of a recognized boundary. I do expect to see it come into play at some point, but with its place in the hierarchy of evidence being somewhere between that of area and that of coordinates stated in a conveyance.

Until that happens, arguing that a mapped position should hold over an actual existing one with your strongest argument being that the intent of the administrative process was not adhered to doesn't quite rise to the level of arguing that the monument should be moved because it is not at the location indicated by the State Plane Coordinates listed in the conveyance, or that the resultant area is at variance with that stated on a map or deed.

Find a case that places any of these things above an existing original monument in its originally set position, blunder involved or not, and you may be on to the start of finding a legal basis to give the numbers on the map the weight you want to give them.

You may use measurements and math to correct construction stakes to match a design (prior to the physical thing being built from them). You may use measurements and math to correct a map to accurately reflect existing features.

You cannot use math and measurements alone to alter an established boundary to match the numbers on a map or in a deed. You can only use them in support of a legal principle which allows you to make the changes you desire to make. Find the legal principle first.

First of all the presumption is not MONUMENTS CONTROL. The presumption is that monuments control UNLESS there is reason to believe that the monument is not controlling. When the monument would interefer with a senior right or DEFEATS the intention of the parties it does not control.When a monument is inadvertently inserted and it has not be relied upon it does not control. When a monument is not in harmony with other monuments, it does not control. I think it has been shown here that the subject monument is NOT in harmony.

We are talking about a line between 2 parcels and this different than the factset of the 2 case you cite. In both of those cases, great harm and confusion would result in the community if the monuments were to be overturned. Entire communities relied on the positions of those monuments and in this case it is not certain that anyone ever know,except the surveyor, that the monument existed. maybe they did kind of sort of. I do not believe that such a clamity would arise here as in the 2 cases cited. Is anyone claiming detrimental reliance on this one monument?

I do not contend that adminsitrative process trumps the location of the monument. My position is that evidence of the demands of the administrative process shed light on what the intention of the sudivider was. The intention of the subdivider was to subdivide their property legally and thereby create compliant and legal lots. The pipe's location is antithetical to that intent.

Apparently, there is no corner record showing the pipe, the pipe does not appear in that location on the subdivision map, there is no written evidence of a boundary line agreement, there is no recorded document of any kind supporting a intent contrary to the map, there is no parol evidence of the parties that support their intentions contrary to the map. IS THERE AN AMENDED MAP? No evidence was presented that an amended map exists.

I have 2 questions. Can a third party,acting as an agent, make a claim to a boundary location that is binding on the parties to the agreement?

What is your basis for claiming that there must be evidence that the monumnet was rejected by the parties? Is there a cite for this?