California Surveyors Forums

Anthony Maffia wrote:Brown BC&LP, 4th, p.94, 5.29 Summary of the GLO System:
"2. The original surveys, by law, are without error."

How is it different? Or are we just saying the same thing?

I understand that rule to apply ONLY to GLO/PLSS surveys, based on federal law.

The rule we're talking about (for private surveys) sounds the same (hold the mons) but comes from a different place, judicial decisions if I'm not mistaken.

I think we are talking the same...

"OK, I just talked to the neighbor. He is the original owner of Parcel B and without any prompting from me, he says he was shown the pipe as being the corner"

Shown by whom? The real estate agent?

I haven't read many "shown the monument" cases, but I'd venture to guess that when reliance on a monument is based upon it being pointed out as marking the corner, the courts probably require the "pointer-outer" to be the seller or someone who has genuine knowledge of the seller's intent. I doubt that the garden-variety real estate agent would qualify.

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Jim Frame wrote:"OK, I just talked to the neighbor. He is the original owner of Parcel B and without any prompting from me, he says he was shown the pipe as being the corner"

Shown by whom? The real estate agent?

I haven't read many "shown the monument" cases, but I'd venture to guess that when reliance on a monument is based upon it being pointed out as marking the corner, the courts probably require the "pointer-outer" to be the seller or someone who has genuine knowledge of the seller's intent. I doubt that the garden-variety real estate agent would qualify.

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If I only had a dollar for every time I hear "the real estate agent told me my property line was here", I would be able to retire at age 31.

SteveGardner wrote:I know what you're saying about real estate agents pointing out property lines, and I didn't ask whether it was the agent or seller or surveyor or who showed him the pipe. This is not like the typical situation where the agent points to a fence and says it's the property line without knowing what they're talking about, though. If the neighbor is being truthful, he was shown an original tagged pipe in its original position. If that is what happened, I think the agent, seller, buyer, whoever, was within his/her rights to rely on the pipe as the corner that was set a few months earlier, without hiring another surveyor, weren't they?

I was just commenting on the real estate agent. Owners are allowed to rely on anything that they believe is their "property line", not our problem. Us as surveyors just simply show the facts. It's not up to us to determine who owns what, nor should we care. Let the courts (if it goes that far) make the rulings. You got a call for this job for a reason.

SteveGardner wrote:Well, that's one school of thought. Sometimes just showing the facts and letting the property owners fight it out is all we can do, but in most cases, we should be able to apply the law as we know it to those facts and express our opinion of who owns what. Or, provide suggestions about ways to resolve ambiguity. That's what the public expects us to do and in our "quasi-judicial" function that is usually what we end up doing.

The reason they hired me to do this job was that the neighbor put up a fence that is obviously not on the property line. They didn't hire me to answer the question "Where is the fence?" or "Where is the pipe?" but "Where is the property line?" In this case I'm having a hard time giving them a straightforward answer to what they think is a straightforward question.

That's dangerous ground to walk on. One should not practice law or even give advise (in fact it is same as a person practicing land surveying without a license or representing oneself as one) , unless they are attorney. You can give an opinion based upon the facts you find in the field or in your research.

I understand your position (I think everyone has either been in your situation or will be sometime in their careers), sometimes the straightforward questions are the hardest to answer. If you can come to the conclusion that the monument was set in error (you'll need the ammo to back it up) than that's your professional opinion, nothing more. Another surveyor can come out and total disagree with your work (yes this happens, ha ha) and all that would be is his/hers professional opinion. Both sides can come up with court cases, standard of practice, ect.., to back their opinions, but when that's all said and done the only "ultimate" decision made by a judge in a court of law.

What I would do is see who has the surveyor's records. If unable to find them than look at the county's file for the map check. Hopefully there are closure calculations, Topography, map corrections, and even the title sheet of the parcel map that has a Surveyor's Statement (our county does) stating that "monuments shown hereon are set in the locations indicated on Sheet __" or anything that can help satisfy your opinion that the monument was set in error.

Once again good luck.

Well if your lucky you can have both owners Quite Claim to the map line.

Why do you think that determining the location of the boundary line is the practice of law as opposed to the practice of land surveying, Vance?

Which profession is THE ONLY profession authorized to locate boundaries? Which profession is THE ONLY one presumed to have the requisite training and is licensed to do so?

On a boundary retracement survey, it is the surveyor's place to render an opinion as to the most likely location of an existent boundary based upon the application of current law to the available evidence.

The application of law is not the same as the practice of law as an attorney would do. If the surveyor seeks to advocate to the advantage of a party, then he is practicing law as is reserved for attorneys.

Perhaps next time you get stopped for speeding, you might try telling the officer "You can't give me a speeding ticket. You would first need to deem me guilty of breaking the law, and you can't do that because only a judge can determine guilt or innocence. You can't practice law!"

Applying the law and using it to guide your professional decisions is what you are licensed to do. Measurement and mapping skills are incidental to that function. You cannot determine a boundary without applying the law. You may not recognize that because in most instances, the law as applied to the survey situation is so straightforward that you hardly have to give it a thought.

A map/deed says that a particular line is 250' long. You measure it to be 250.32' and accept the record monument. Straightforward, but you have just applied the law in the same manner as you would accepting a monument at variance from record by some greater amount.

Just because the magnitude of the discrepancy is greater does not mean that you kick the problem to a profession not trained to deal with it. It simply means that you may have more factors which need to be considered before rendering an opinion.

If you are a licensed surveyor, and you survey boundaries, you apply the law. It's part of the job, accept it.

E_Page wrote:Why do you think that determining the location of the boundary line is the practice of law as opposed to the practice of land surveying, Vance? What I was referring to is giving legal advise, not the actual practice of Land Surveying

Which profession is THE ONLY profession authorized to locate boundaries? Which profession is THE ONLY one presumed to have the requisite training and is licensed to do so? Agreed, we are experts in this field and allowed to be called on as expert witness, not giving out legal adive and deteriming who owns what.

On a boundary retracement survey, it is the surveyor's place to render an opinion as to the most likely location of an existent boundary based upon the application of current law to the available evidence.

The application of law is not the same as the practice of law as an attorney would do. If the surveyor seeks to advocate to the advantage of a party, then he is practicing law as is reserved for attorneys.

Perhaps next time you get stopped for speeding, you might try telling the officer "You can't give me a speeding ticket. You would first need to deem me guilty of breaking the law, and you can't do that because only a judge can determine guilt or innocence. You can't practice law!"

Applying the law and using it to guide your professional decisions is what you are licensed to do. Measurement and mapping skills are incidental to that function. You cannot determine a boundary without applying the law. You may not recognize that because in most instances, the law as applied to the survey situation is so straightforward that you hardly have to give it a thought.

A map/deed says that a particular line is 250' long. You measure it to be 250.32' and accept the record monument. Straightforward, but you have just applied the law in the same manner as you would accepting a monument at variance from record by some greater amount.

Just because the magnitude of the discrepancy is greater does not mean that you kick the problem to a profession not trained to deal with it. It simply means that you may have more factors which need to be considered before rendering an opinion.

If you are a licensed surveyor, and you survey boundaries, you apply the law. It's part of the job, accept it.

Well I guess I was totally not clear on what I was trying to type, I was only referring to giving out legal advise only.

I view it the same as practicing land surveying without a license.

Measures that are in place to protect the public.

So do you mean the part about "the agent, seller, buyer, whoever, was within his/her rights to rely on the pipe as the corner that was set a few months earlier, without hiring another surveyor"?

If presented that way to an agent, seller, buyer, whoever, then I agree with you. Treading the dangerous ground of advocacy. But I took that as Steven more thinking out loud (or in type) toward an analysis of the situation and reasoning supporting one possible decision.

A better way to express that, when analyzing, would be "Was it reasonable for the landowners, being aware of the monument, to rely on it?", and then to come up with an answer of "Yes, it was. Why, having no apparent reason to question an existing survey monument, would a landowner commission another survey to verify the older one?"

Weighing whether or not an act already taken was one a reasonable person would do is very different from asserting the existence of a right to do that act.

"Have I disclosed a material discrepancy? Yeah."

I don't see any way around §8762(b)(2) and/or (b)(3) and the "shall file" verbiage. It seems to me that you're on the hook for a Record of Survey.


"Have I completed a survey? Not really, where do I put my heavy line?"

If you aren't able to commit to the parcel line being in one place or the other -- and I appreciate the circumstances that make the decision a difficult one -- then show both lines and explain the ambiguities raised by the competing evidence. The record (or near-record) line would be shown as supported by the intent of the parcel map as approved, filed and otherwise marked on the ground. The monument-to-monument line would be supported by some instances of case law, statute law and surveying practice. Place a note on the map stating that the intent of the ROS is to disclose the discrepancies shown, and that definitive establishment of the ownership line cannot be accomplished absent action on the part of the owners to quiet title.

It's not a perfect solution, but then it's not a perfect situation, either.

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Steve,

Write a letter to the CS asking for an extension and state that your professional opinion is that a LLA is the best mechanism to resolve the conflict between the map vs. monument dilema and that there is currently resistance to your recommendation, but that you believe eventually both parties will come around. Once agreement is reached, you will file the ROS conforming to the LLA. At least that way, the CS has knowledge of the issue and can advise others doing survey work on adjacent property that could be impacted. Agree to keep the CS updated every 3 months till the matter is settled.

I guess I am not familiar with your county, but why a boundary line adjustment?


Couldn't a boundary line agreement or quite claim work in this situation?

Spelling Police: It's "Quit Claim", as in the person issuing it is quitting their claim on the property in the description, not "Quite Claim", as in "that's quite a claim you have there".


OK, I feel better now. Carry on.

Damn spel (ha ha) chick, faild agin

There is no need to decide which line is correct. That will be for a court to decide. Just show the evidence, don't call one line or the other true or correct, or any other qualitative description.

Show both lines, label one "per map" and the other "pipe to pipe" or something. Don't calculate areas, no matter what the county asks for. Show the shed, take photos for your files, submit the ROS.

Then sleep better.

you haven't completed the field survey, the 90 days have not started. It sounds to me that you have completed the "field survey". So I think that you are on the clock, unless talking to the neighbors and the banks and whomever else you want to talk to, is still part of the "field survey".

Write a letter to the CS stating what you got and you intend to file, just don't know when or something along those lines, I guess, this way getting an extension so that everyone can figure out what to do.

As to not showing the area as was suggested earlier, I don't know why not. Is this a secret or something? Showing the area MAY show evidence as to why one line should prevail over the other.

Boundary Line Agreement is only when the Boundary get not be determined. It is not a metheod to resolve conflict. Only when there is insufficant evidence to determine a boundary. I would think if there has been a previous map, there is sufficant evidence to determine a boundary, it just take more work than a client is willing to pay for. Just because a client does not have the funds, does not give us the easy out. In very few cases is a Boundary Line agreement valid.

RAM said: "Just because a client does not have the funds, does not give us the easy out."

If the bank and the neighbor agree that the pipe is the corner, then there is no conflict there (yet.) Steve shouldn't have to answer a question that no one is asking. To me, this is an example of when a court should determine the boundaries, not the surveyor.

Show the facts, let a future lawyer interpret.

I'll stop hounding now. I hope my rants help you come to a decision. If not, then I'll owe you a beer. :)

This is an example of where the property owners should decide, not the courts.

It is also a unique situation where the landowners could agree to either location and not have to do a formal agreement or an LLA. Basic presumption is that the monunment controls. Therefore, lacking sufficient evidence to overcome that, Steven could file an RS showing dark line to the monument with record and measured dimensions along the lines.

On the other hand, if both landowners wanted to agree that the iron was probably set in error, and instead honor the plat dimensions, they could direct Steven to replace the monument at the corner according to those dimensions. File an RS showing what you did.

Only if the landowners cannot come to agreement, and only if one of them takes it to the court, can or should the court decide which set of lines to hold.

Only if the client wants to ignore the situation altogether should the surveyor back off into Seargant Friday mode (Just the facts, ma,am. Just the facts.) and draw attention to an ambiguous situation, and perhaps show no dark lines as affected by the corner mon in question.

Even then, if it were me, and I did not have sufficient convincing data to overcome the presumption of the monument controlling, I would put my dark lines to the monument, dashed lines along the record courses, and have copious notes on the RS to explain the situation. IMHO, if you are hired to determine a boundary, unless you cannot determine its location from the evidence in light of current law, you need to make a call. You can qualify it as necessary, noting potential alternate positions, but you need to make a call. That's why we are licensed. Not so that we can kick it over to a different professional to offer a survey opinion we are afraid to make.

At some point "just the facts" becomes an excuse to not make a decision when the facts are complex.


Mr. Maffia, be aware that someday when you are taking the PLS exam, you may be presented with a set of conflicting facts (not likely this complex, but professional level), and be asked what the correct solution is. It will be highly unlikely that an acceptable answer would be "send the client to a lawyer" or "let the judge decide".

Mr. Page: We have here over 100 posts by qualified surveyors, without a definitive conclusion. Perhaps we're really into new territory.

A successor owner of the bank property may dispute the location of the lot line, and if it goes to court, the resolution will be a legal question.

Concern, yes. Surrender and subsequent abdication of our responsibility as surveyors to another profession, no.

(I counted them) there are 19 different posters regarding this thread.

So far I like Propst comments as well as those of Page the most. .(I don't know if that is good or bad for you two, but that is my take on it.) Wolleys stuff ain't bad either. If I left out your name, plese don't feel left out, this is just me thinking on my typewriter/keyboard.

If it were my survey, I would have to, sooner or later, draw the line somewhere(hopefully where the existing landowners want it to be) and let the chips fall where they may.

GFL

While some may challenge the applicability of case law from another state, I did forward the following case on to Steve Gardner. He thought it may add to the discussion, esp. in light of the Colorado state Appeals Court citing the 1984 Mississippi Supreme Court case that dealt with a "unique" exception to the general rule of monuments controlling over course and distance.

The case is Morales v. CAMB, et al., a 2007 Colorado Appeals Court decision regarding a small subdivision in Winter Park, CO. The court dismissed the defendant's argument that the discovery of a field blunder should be regarded as an exception to the general rule that monuments control over course and distance.

Hypothetically yours, ;-)
Gene Kooper, CO PLS

Roque R. Morales,

Plaintiff-Appellee,

v.

CAMB, a Colorado general partnership; Max Garwood; Peterson Family, LLC, a Colorado LLC; and G&B, a Nebraska partnership individually & as members of CAMB,

Defendants-Appellants.

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JUDGMENT AFFIRMED

Division II
Opinion by: JUDGE CRISWELL*
Rothenberg and Terry, JJ., concur

Announced: March 22, 2007

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James A. Beckwith, A. R., Arvada, Colorado, for Plaintiff-Appellee

Isaacson Rosenbaum, P.C., Blain D. Myhre, Denver, Colorado, for Defendants-Appellants

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2006.

In this boundary dispute litigation, defendants, CAMB, Max Garwood, Peterson Family, LLC, and G&B, a Nebraska partnership, appeal from the summary judgment entered in favor of plaintiff, Roque R. Morales (Morales). We affirm.

I.

Because the judgment below was entered in response to a motion for summary judgment, we review that judgment on a de novo basis. Grynberg v. Karlin, 134 P.3d 563 (Colo. App. 2006).

The Vasquez Village subdivision in the Town of Winter Park, Colorado was surveyed, platted, and approved in 1981. It contained eight lots. The subdivision plat as approved contained a "Surveyor's Certificate," which attested that the monuments required by Title 38, Article 51, C.R.S. 1973, had been placed on the ground.

The pertinent statute, now § 38-51-105, C.R.S. 2006, requires that the "external boundaries of platted subdivisions" are to be "monumented on the ground," that the boundaries of all blocks be monumented before any sale is made and that the boundaries of any lot be established by monuments within one year of the sale.

Section 38-51-105(1), C.R.S. 2006. The subdivision here, however, contains only eight lots; it has no lots within a block, as such. Moreover, it is undisputed that monuments were placed at the corners of each of the lots before the subdivision plat was approved.

Through various conveyances, defendant CAMB acquired title to lots 3, 4 and 5, and plaintiff obtained title to lot 6, which abuts lot 5 on its north. All of the pertinent conveyances referred only to the Vasquez Village subdivision plat for their legal descriptions.

In 2002, CAMB began planning to re-plat its three lots for development of a town home project. In re-surveying these lots, it was discovered that the monuments marking the boundary between lots 5 and 6 were inconsistent with at least one distance call shown on the Vasquez Village plat. While this distance was shown as 25 feet on the plat, the monument was placed some 38 feet from the pertinent prior point. Further, while the monument for the southeast corner of lot 6 was consistent with a distance call on the plat for that location, it is some 13 feet south of the location of the boundary line as depicted on the plat. Both monuments, therefore, exist some 13 feet south of the boundary between the two lots as shown on the plat.

As a consequence, if the monuments are determined to be the true points establishing the southern boundary of plaintiff's lot 6, that lot will have an additional strip of about 13 feet, containing about 1197 square feet, added to the lot as shown by the line on the recorded plat. But if the boundary line on the plat is determined to represent the proper boundary, this strip would be a part of lot 5.

To have a judicial determination of the proper location on the ground of this boundary line, plaintiff instituted this action. After the parties had filed cross-motions for summary judgment, the trial court granted plaintiff's motion, ruling that the monuments controlled the location of the boundary line and that they superseded any inconsistent distance call or boundary line referred to or depicted on the subdivision plat. We agree with this determination.

II.

Defendants contend that the district court erred in quieting title in favor of plaintiff because the intent of the grantors was to convey the lots by reference to the subdivision plat and not as located by the monuments. We are not persuaded.

If there appears to be a misdescription in a deed, a court must ascertain the true intent of the parties. Wallace v. Hirsch, 142 Colo. 264, 268-69, 350 P.2d 560, 562 (1960); see Lazy Dog Ranch v. Telluray ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)(in construing a deed, it is paramount to ascertain intent of parties).

However, certain rules of construction are used to disclose that intent.

First, "t is a well settled principle that when lands are granted according to an official plat of the survey of such lands, the plat itself, with all its notes, lines, descriptions and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out upon the face of the deed or grant itself." Spar Consol. Mining & Dev. Co. v. Miller, 193 Colo. 549, 552, 568 P.2d 1159, 1161-62 (1977), citing Cragin v. Powell, 128 U.S. 691 (1888).

Here, then, the deeds conveying lots 5 and 6 to the parties incorporated all of the items of information on the plat, including the surveyor's certificate attesting that appropriate monuments had been placed on the ground, as required. See Spar Consol. Mining & Dev. Co. v. Miller, supra.

Further, it is a general rule that the monuments placed by the original surveyor are conclusive on all persons owning or claiming to hold with reference to such survey. Everett v. Lantz, 126 Colo. 504, 514, 252 P.2d 103, 108 (1952). "Monuments control courses and distances, which are considered the least reliable of all calls." Jackson v. Woods, 876 P.2d 116, 118 (Colo. App. 1994). "The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by the proof of their former existence, where the marks or monuments are gone." Cullacott v. Cash Gold & Silver Mining Co., 8 Colo. 179, 183, 6 P. 211, 214 (1885)(citing Lodge v. Barnett, 46 Pa. St. 477 (Pa. 1864)); 12 Am.Jur.2d Boundaries § 74 ("Where land is disposed of by reference to an official plat, the boundary lines [as] shown on the plat control. In locating land upon the ground from the calls and descriptions in the map, plat, or field notes referred to, the same primary rules apply as exist in the locating of calls and descriptions in a deed containing no such reference, that is, the various calls are given the same order of preference. In case of conflict, monuments control plats or maps, and an actual survey controls over a plat or a map.")

In the trial court, CAMB presented an affidavit from a registered professional land surveyor who averred that, using the field notes for the Vasquez Village subdivision, the descriptions contained in those notes were consistent and allowed the exterior boundary lines of that subdivision to "close." However, CAMB’s surveyor averred that, if the locations of the monuments were used as the boundary indicators, the resulting description of the subdivision's exterior boundary would not close. Hence, this expert concluded that the discrepancy between the monuments and at least one distance call on the plat resulted from the misplacement of the monuments, or a "field blunder," and that the distance calls and boundary line as reflected on the plat, rather than the monuments, should control the location of the pertinent boundary.

The trial court rejected this ultimate conclusion, and so do we.

Even if we assume that both monuments were misplaced, the rule that monuments control over distance and course calls on the plat is nevertheless applicable and the monuments still control the boundary location. See Everett v. Lantz, supra, citing Ben Realty Co. v. Gothberg, 56 Wyo. 294, 109 P.2d 460 (1941) (monument misplacing 8th standard parallel still controls description of land in grant).

Duane v. Saltaformaggio, 455 So. 2d 753 (Miss. 1984), does not support a contrary conclusion. The exception to the general rule relied upon by the court in that case is limited to those rare instances in which the locations of monuments are themselves inconsistent, thereby creating a conflict between monuments.

Here, the parties do not dispute that the pertinent monuments are located consistently with each other. Hence, we need not decide whether the rule of the precedence of monuments has any exception under Colorado law, because the only conflict here is between the location of the monuments on the ground and the distance call and boundary line depiction on the plat.

We conclude, therefore, that the district court correctly determined the location of the disputed boundary line.

The judgment is affirmed.

JUDGE ROTHENBERG and JUDGE TERRY concur.

These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. Changes to or modifications of these opinions resulting from any action taken by the Court of Appeals or the Supreme Court are not incorporated here.

deal that Kooper sent in the preceeding post three times. The monuments marked the position of the dividing line between Lots 5 and 6, even thought they were in the "wrong" place.

Am I reading this correctly, or do I need "A New Pair of Glasses"?