California Surveyors Forums

bruce hall wrote:(circa 1970-80) and also to Daniel Moynihan who said the same thing in the 90's regarding opinions and facts.

John Adams stated something similar when he daclared facts to be "stubborn things".

I don't mean to stir a hornets nest by changing the flavor of the original thread, but I wonder how Steve' situation would be changed if this was not an internal lot corner (granted it was on the parcel map boundary, but not an exterior corner).

What if the the monument in question was an exterior subdivision boundary corner and was placed 7.5 feet outside the distinctive border of the subdivision on land owned by another party. How does the principal of record monuments, relied upon, (without more superior evidence to the contrary) control the location of the lot line apply. Where does the principal that you cannot subdivide land you don't own rank with respect to the governing legal principle that has predominated this thread. Just curious.

Reference: Principle 28 - Establishment of lots overlapping the true subdivision boundary (page 387 5th Edition, Brown's BC&LP)

Steve, I'm not labeling you with B/W thinking. You have repeatedly made the point that you are not advocating one position over the other, and I accept that. There are a handful of others in this thread who are reading the map as the end all, be all expression of intent (or so it seems), and/or arguing the map on the basis of modern typical subdivision approval processes. I might go so far as to charaterize their point of view as "Hold the map, no matter what" when they find an original monument beyond the edge of their mathematical comfort zone. ;-) (emoticon for Dane and Ben ;^D)

My point exactly was that it doesn't matter whether the map occurred first or the field survey.

"On Parcel Maps, the map is the plan and we stick to it as precisely as possible." Yep, almost always. Just like with an approved improvement plan for typical fixed works. Then again, things don't always get built according to plan, and the thing is where it is, and as-builts or amended maps don't always get prepared and submitted. Oops! Stuff happens.


Dennis, In your presented twist, a senior right generally controls over a monument. You present a case where the senior boundary is "distinct". In such a case, I would certainly expect the senior line to control.

There you go, Ben! Another example of when a surveyor would not hold the monument as controlling.

"Always hold the [best evidence], no matter what."

As long as the “hold found original” crowd allows for a found original to be called a blunder then I think we agree.

Looking at Dennis’s example, Evan wouldn’t hold found original based upon its location (being offsite).

Yet it seems the “hold found original” crowd would probably hold it for line no matter what its location (i.e. 7.5’ blunder off line not just off property).

It depends, Ben. Just like the case in Steve's survey, you need to look at all the evidence surrounding it. You may or may not be able to completely discount the monument.

How was it set? Was it set from somewhere along or very near the line that it was intended to mark the end of? Is the map in error, mapping a boundary that is encroaching upon a distinct senior right? Does the iron show any signs of having been disturbed?

If we go back to Steve's particular case, if the iron had not been essentially on the exterior boundary as it sat, then it might be more clear that it is indeed set incorrectly or that it was moved from its original location. In most circumstances, that's enough to completely reject it. There are instances where an obviously mistakenly set monument still controls and instances where it won't. Even if you can prove it was set in error, if you also find that it is in its original (albeit incorrect) location, use caution in attempting to correct the survey (go back to my previously and repeatedly stated reasons based in law). If you can determine that it was moved, then in almost all cases, it's now worthless.


You keep speaking of this mythical "hold found original [no matter what]" crowd. Who are they? Who's in this group? I have been unsuccesful in identifying any in this thread.

You misunderstand or misstate my reasons for rejecting the monument in Dennis' example. My decision would not be based upon position, but upon a previously established and apparently maintained, or at least identifiable senior right. In the law, a senior right generally trumps a field survey of a junior parcel at odds with that senior right.

It's law, not mathematics.

Are you really not getting this or are you just yanking my chain now?

Thanks Evan, that is what I was expecting to hear.

Would you agree that a Certificate of Correction or Amending Map would be an appropriate vehicle to change the character of the subdivision monument from a boundary corner to an offset witness monument at the appropriate B&D from the point on the senior line . In addition, possibly filing a CR to set one or more accessory tie monuments on the PLs to aid in resetting the boundary corner in the future.

Math comfort zone has nothing to do with my view. You keep trying to box me into things I never said and/or postions I never maintained. Keep trying maybe it will stick, but I doubt it.....

If filing an amending map or a CoC, couldn't you also show a new mon at the corner location and any additional accessories there, alleviating any need for a CR?

But let me back up. As a retracing surveyor, can you file an Amending Map?

Teflon Dane! ;-D (joshing emoticon)

I don't know if you gave me a clear answer as to what the criteria was that you used to reject the monument? I recall reading something about it not being in harmony with the other mons, but by what standard? The map as a guide, and what as a measure? Please clarify.

Accepting this particular monument, would defeat the intentions of the parties.....start with.....

The found original would defeat the intentions of the parties (all that are involved). Thank you Dane, I don’t think you could say it any clearer.

Evan, I think we're getting closer in our opinions. I'm trying to understand where we agree and where we disagree. I have agreed with most if not all of your recent posts (hopefully that can put you at ease versus on the offensive).

Going back to the monument set outside the subdivision boundary:

You would not hold it for location (Northing and Easting) as the property corner because of senior rights, etc. I think all of us on this forum agree there. Would you TEND to hold it for line even if it was 7.5 feet OFF line (because of the hold found original concepts)?

Evan asked: "As a retracing surveyor, can you file an Amending Map?"

I prepared an amending map and my former employer signed it, in Santa Clara County. So, I don't think state law prohibits the process.

However, no lots had been sold. An amending map can't affect anyone's vested interests, so I don't think it would help here.

OK, back to intent. The courts have ruled repeatedly that the actual survey as evidenced by the points and lines marked on the ground is a better indicator of actual intent than the map prepared which is merely a representation of the actual survey.

You need more than the fact that the map and monument do not agree. You need some indication that the parties knew of a discrepancy and rejected this particular point.

If there had been some mapped natural feature in relation to the line, it could be considered a natural monument, and could be used to defeat the monument. If you had some statement from the landowners or their predecessors in title (other than the map) that this line was marked incorrectly and expressing some intent to reject it, that could be used to defeat the monument. You cannot simply look at the map and infer that it is the ultimate expression of intent. At least not without defying well established law on the matter.


With respect to Dennis' fictional monument, there is simply not enough particulars given in that what-if scenario to say what I would "tend" to do. I would certainly look at the possibility that it might be used to control the direction of the interior line, but that's far from a decision to hold it as such.


Good example Anthony. I was thinking about parcels where interests had vested in someone other than the subdivider. In either case, the surveyor needs to be given the authority by whoever holds the vested interest in the parcels to do anything affecting those parcels. That may be the original subdivider, developer, or subsequent buyers.

Maybe the only "right" answer is to solve the problem (like Mr. Woolley suggested) because in some ways there is no right answer. In other words, whichever way you choose someone could argue an alternate solution and win in court.

QUOTE "but I don't think it would be impossible for a good lawyer to convince a court that the monument did not reflect the intent of the parties in something like the subject case."

But you stated earlier that both adjoiners and their agents agree to the monument as controlling.

I dont think that their agreement is necessary for the monument to control, but in this case their agreement would be conclusive.

I can imagine a persistent advocate prevailing at the trial court, but that decision would be doomed to fail on appeal, where its conflict with well established law would be the issue.

I completely disagree that "there is no right answer" in this situation.

"Evan - I agree that it would be an uphill battle to defeat the monument but I don't think it would be impossible for a good lawyer to convince a court that the monument did not reflect the intent of the parties in something like the subject case. If the distinction between a map that approximates the actions in the field and a mis-placed monument intended to occupy a point shown on a map could be clearly described, if I was Judge Gardner I think I could understand that distinction."

The biggest, perhaps only real problem in making this distinction is that you found the iron essentially on the outer boundary, not at some random location. That makes the distinction that it is blundered vs deliberately set for some undocumented reason decidedly less distinct.





"Of course, even if that point was made that the monument did not reflect the intent of the subdivider, the court could say it doesn't care because the grantees had a right to rely on the misplaced monument. And, if the subdivider represented the parcels being sold as being defined by the misplaced monument and everybody saw it, that would probably lead to a finding that the subdivider had a right to rely on it and it really did express his intent, mistaken as it might be."

This is at the core of why the actual survey generally prevails. The actual survey, the points and lines actually marked on the ground are real. They are substance. The map is abstract. The average land owner has no possible way of projecting the abstract dimensions on the map upon the ground to make them real, and can only rely on what the surveyor has placed there. It is an undue burden upon the landowner to be held to a boundary he cannot project from the abstract over one he can in reality see.




"The good lawyer could make the case that the deeds describe "Parcel X as shown on the parcel map recorded in Bk X, Pg. X" and the other good lawyer would argue that the parcel map shows a pipe with a tag at that corner so the pipe defines the corner as shown on the map. It might depend on what color tie each lawyer is wearing that day."

At the trial level, many things are possible. The attorney with airtight evidence may be too incompetent or too arrogant to fully present it and/or argue it properly. The attorney with crap for evidence may have a silver tongue or may regularly have the judge's family over for Sunday dinner. Or the jury may just prefer one lawyer's tie over the other's. But published decisions at the appeals and supreme levels are consistent for the most part. Trial courts are supposed to hold to these precedents. At the stage where we are performing surveys, there is no way to second guess how an attorney may argue it.

My wife told me of an instructor from her law school who would call on a student to argue a legal point in front of the class. The student would step up and make an effective argument for their client, "A", then the professor would say "Oh, I forgot to tell you, your client is B". The same student would then proceed to make an equally effective argument for the opposing view. Don't worry at this early stage how an attorney may argue it. Be concerned with how you would present it. Personally, I would want to make a presentation where I could point to several published authorities rather than only upon my assumptions and what might make sense to me.

I would be interested in knowing what your attorney friend is basing his opinion on. I know enough attorneys to know that they are capable, and sometimes prone to tossing about opinions based upon their "feel" for the law rather than upon solid research. You stated early on that your friend began some research and then didn't want to talk about it anymore. That seems like a sign that he was not finding the answer he wanted to support his opinion.

If the law were foggy on this point, I might be more inclined to allow your friend's opinion to give me pause in mine.

Ask your friend what his opinion is based on.

'The reason why monuments as a general thing, in the determination of boundaries control courses and distances is that they are less liable to mistakes, but the rule ceases with the reason for it. If they are inconsistent with the calls for other monuments, and it is apparent from all other particulars that they were inadvertently inserted, the reason for retaining them no longer exists, and they will be rejected as false and repugnant' (White v. Luning, 93 U.S.514, 23 L. ed. 938 )

'Where the control of an artificial monument over a course and distance would defeat the evident intention of the deed, an exception must be made, (Ehrenreich v. Froment, 73 App. Div. 213, 76 N.Y.S. 861) and likewise where their adoption is so manifestly wrong as to lead to an absurd result,such as embracing the land of a third party, the monuments yeild to course and distance, and even quantity.'(Post v. Wilkes-Barre Connecting R. Co., 286 Pa. 273, 133 Alt. 377)


Not just my feeling.....
My argument would be based upon the judicial reasoning as represented by the cases quote above......

In addition to all of the obivious, long held and oft stated reasons for holding found monuments, the long line of decisions also have other facts that are in common, that are simply not present here.

Each of those cases speak of frustrating the conveyance and either leaving out exorbitantly large portions land either intended to be included (White) within the conveyance, or embracing exorbitantly large portions land clearly encompassed in adjacent properties.

They were errors which would tend to frustrate the conveyance. In each of those, there were other clear factors pointing to a differing intent. None were decided purely on a weighting of deed (or map) dimensions vs an existent monument. In fact Post qualifies that if the monuments were erected to conform to the deed, even if in error, then they will control.

The cases say what they say and they were quoted, I am sure ,by the author of the text where I found them to illustrate the need for caution in the application of various rules in boundary determination. Since that text was written and those cases decided many other texts have been written and many cases have been decided. Even in recent versions of Brown, the very same point is made. I have previously quoted Brown on this point.

THERE ARE RULES AND THEN THERE ARE EXCEPTIONS TO THE RULES. I think that is is my essential point.

The law in Ca. has changed in certain areas quite a bit since some the cases have been decided. In 1893, we had the first subdivision act and it it has been updated over time to the point where most subdivisions must now occur with reference to a MAP,that has been approved by a local agency. This is completely different than the rules of the game in the 19th century, where most subdivision occured by metes and bounds or reference to Public lands.

What is the impact of this on any 2 property owners, who in days gone by could just settle on a line between themselves?

My understanding is that owners may subdivide their property in any manner they choose, so long as it is legal. Well, if the local agency has decided what the legal subdivision of 2 parcels is to be, can the property owners now adopt a configuration at odds with what has been approved?

What about the bank? What are they going to forclose on? Do you suppose they will accept an errant pipe, just because it is there, or are they going to want the full measure of what they have lent on, the mapped description?

Any trust deed, I have seen indicates that the property cannot be altered in any important way without permission by the bank.... to wit dedications on final maps.... So can I as an owner agree to give away something that I have not fully paid for yet?


Imagine several decades from now and the errant pipe is gone. In all likelyhood, a retracing surveyor staking the line will resort to proration and the corner will wind up pretty close to the MAPPED POSITION......

If we’re going around in circles right now it’s mainly because one side says, “When the reasons for the rule no longer exist so does the rule.” and the other side says, “California statute as well as a whole slew of court cases say to hold found original.” As one of my colleagues pointed out, “This thread will never die!”

Dane, you have brought up many more new and convincing arguments.

Evan, your last post (#310) hits the nail on the head, especially where you say, “None were decided purely on a weighting of deed (or map) dimensions vs an existent monument.”

WHITE ET AL v. LUNING 93 U.S. 514
In the case of conflicting monuments, the rule of law is, that the courses and distances are evidence of the true description; and where it appears from the deed that a monument is erroneously inserted, it will be rejected. Shipp v. Miller, 2 Wheat. 316; Barclay v. Howell, 6 Pet. 511; Atkinson v. Cummins, 9 How. 485; Noonan v. Lee, 2 Black, 504; Davis v. Rainsford, 17 Mass. 207; Thatcher v. Howland, 2 Met. (Mass.) 41; Park v. Loomis, 6 Gray (Mass.), 472; Bosworth v. Shutsvort, 2 Cush. (Mass.) 393; Hamilton v. Foster, 45 Me. 40; Evans v. Greene, 21 Mo. 481; Gibson v. Bogy, 28 id. 481; Bass v. Mitchell, 22 Texas, 285; Browning v. Atkinson, 37 id. 633; Bagley v. Morrill, 46 Vt. 99.

One should note that there are a scad of cases cited to support the courts opinion "... where it appears from the deed that a monument is erroneously inserted, it will be rejected."

The reference to erroneous insertion of the monument in White does not refer to the physical misplacement of a survey monument intended to mark a corner. In White, there several courses called along a fence, the last being N 47 1/2 E, 127 chains to the North boundary of Rancho Sal Si Puedes.

As it turned out, the fence from the beginning of this last course ran roughly perpendicular to the stated course and nearly parallel to the next stated bound of the North line of the rancho. If the fence was followed, none of the other calls following in the description worked. It was found that if the bearing was followed and the fence left at the beginning of this course, then one would arrive at the next called natural monument, being the summit of a particular ridge and the North line of the rancho, and then the rest of the description came together. It became obvious that of the conflicting calls, this portion of the fence was in the description by mistake. Once the retracement survey was performed, it became obvious that the scrivener should have included a "thence leaving said fence" at the beginning of the course in question.


The erroneous insertion was a reference to an improper call to an object which should not have been included in the first place. It was not that the fence was somewhat out of place, but that following it frustrated the entire conveyance. It lead in a completely different direction from the next stated natural monument.

In following a rancho description, I can guarantee, and anyone having even a little experience retracing or studying rancho descriptions and surveys can attest, that there will be many places where stated courses would miss called for monuments by several feet, or not in rare instances, several hundred feet. Yet those monuments, when found, are not lightly or often discarded in favor of the dimensions. In the course in question in White. I very much doubt that the survey held an exact distance of 127 chains. The course brought the surveyor in the general vicinity of the North line of Rancho Sal Si Puedes and then he went to that.

In the case at hand, the courses lead approximately to the called for monument. It is there. It is as described. It is in a location that opens a question as to whether it was set by mistake, or the map was not properly amended. It's location is not conclusive proof of either possibility.

Monument erroneously inserted into a description - Monument (possibly) erroneously inserted into the ground.

Completely different context.

White v Luning is not at all relevant to this situation.

Ehrenreich v. Froment was a case where one side wanted a party wall recognized as a monument and the other side didn't. The court held, similar to the ruling in Smyth v McCool, that the wall was not called out properly as a monument in the deed and was therefore not considered to even be a monument.

The Smyth court even considered, except in dissenting opinions, that the wall was a monument in the description, and so did not consider there to be conflict between distance and called for monument. The Ehrenreich court pointed to "absurd" results. Absurd in this context refers to something which is obvious to the average person without the assistance of the surveyor.

In the case at hand, there is a map (not so in either Ehrenreich or in Smyth). The map shows the monuments, thus the monuments are properly called for and are monuments of the description. One cannot walk out, observe the monuments and see that they are obviously in the wrong location. Thus they are not absurd.

Ehrenreich is not at all relevant.

Shipp v. Miller refers to a call for a buffalo road a mile and a half away. The court held in that case the call for the monument did not hold, a citation in White. We can make any quibbling arguments we can think of to dismiss any case cited on one side or the other of the argument, but this does not change the fact that there are rules for boundary determination and there are exceptions to those rules.

Frankly NONE OF THE CITATION HERE HAVE FIT WELL THE FACTSET UNDER DISCUSSION, but nonetheless we look to those cases for guidance with respect for general rules that MAY apply to this factset. The cases are all stale being from the 19th century and mainly dealing with prolems arising from deed construction and the proper manner to construe the deed. These problems were the main reason for the invention of the Public Land system.

We now have a subdivision map act in place, that provides the framework for the creation of legal subdivision and the design of those subdivisions. Many more conveyances are made today via reference to a MAP, than in the days gone by. The ditth of case law relating to conveyances via reference to Map, maybe an indication this is method is an improvement over a metes and bounds description method.