California Surveyors Forums

David Kendall and Mikey Mueller:

Each of you have expressed an interest in long format discussion and examples. I like the direction of this conversation. I was surprised by the opportunity to pull ex-post and ex-ante perspectives out of my hat.

This thread reminded of a survey I started for another surveyor nearly 20 years ago and have not reviewed in over 10 years. See the attached map and the story below. You might find the notes on the map of use or of interest.

Mikey and David, we all have our survey war stories. The point is land surveyors have an obligation to protect and memorialize property rights when establishing boundaries. This inflexible duty is not subject to contract language or sufficient payment/budget.
Anything less is negligence.

The Setup
1. 2004 I receive a survey request for the fieldwork for another surveyor, PLS4184. Their company was doing the mapping.

2. On the ground I find surveyors are holding two concrete nails 65’ apart or two other monuments 101’ apart to establish the property lines in the subdivision. Yes, surveyors will do the darndest things. The original homes were selling and the next generation was rebuilding and remodeling in the boom of the day.

3. Meanwhile, the city hired two other surveyors for monument preservation before paving, what did they do? They tied out the concrete nails and other random nails and set four tagged ties for each. Public agencies, please do not pay surveyors to tie out concrete nails or other survey garbage. It is a great disservice.

Background and Field Survey
4. The original map was surveyed in 1946. The back line of the subdivision was in very rough terrain with a tremendous amount of brush. For context, it took me a week to search for, find and position five original monuments, approximately 550’ apart at the furthest ends, that nobody bothered to search for since being set in ’46. In my mind, I believed the original monument were likely in place due to the rough, brushy terrain. Why wouldn’t they be there? To the credit of RE1216 the monuments were within 0.2’ to 0.3’ some 70+ years after being chained in place. Another testament to the terrain, I found a mostly dead Saint Bernard too weak to stand up. He had been lost for about a week. About 6’ away, thinking he was dead, he scared the bejesus out of me when he lifted his head – Cujo flash.

5. PLS4184 surrenders his license before BPELSG takes it, and the map was never filed. I encourage folks to look up his license and read the attached file. Two monument tango masters, note losing his license for failure to find monuments (among other things).

6. 2008 I am hired to perform a lot survey in the same subdivision. I decide to memorialize my work for PLS4184 and ask the county to hold all maps in the area until I have an opportunity to complete the survey (having already surveyed the original monuments in 2004). There were several maps in progress between 2004 and 2008, but none had filed. It was a busy time for folks and compliance in OC was less than awesome at the time. Donk surveyors had continued to use the concrete nails and fake monument preservation ties to do their two monument tangos for construction.

7. I find the error of 0.5’ floating around as a result of an unfiled survey in 1954 that recorded in the notes a faulty distance between PCH monuments and an original subdivision monument. I knew there was about a 0.5’ error somewhere after positioning of the original monuments. Again, in the four years elapsed time not a single surveyor looked for the original monuments or found the 1954 error. The same could be said for the previous 50 years.

8. When I had the boundary resolution, but the map was not completed, I gave the County copies of the unfinished map to give to surveyors working in the area. At the time, most surveyors still did their research at the public counter.

9. To the point made in an earlier post, I set monuments throughout the entire tract that was made up of mostly curves. I set all points of control and POTs so that anywhere the future surveyor sets up there is a long backsight and foresight that will check within a couple of hundredths. Additionally, I remeasured all of the ties to the established points of control rather than to the bad concrete nails and lastly, removed the subsequent spike and washers that replaced the concrete nails.

10. Although we found 0.5’ (0.7’ in some instances) differences from the record. However, the found original monuments with the reestablishment of the centerline from the back corners and the 1954 field notes placed the lot lines within hundredths, in most instances, of the original 1946 maps.

The attached map secured the property lines of more than 60 properties that today range in value from $5m to $17m - more than $300 million in aggregate. Probably not the best place to hold a couple of concrete nails and not look for the 1946 original monuments.

As before, looking at this map today I see a couple of things I would have displayed or written differently. Oddly, it is also missing my standard accuracy statement. I suspect it was sacrificed due to lack of mapping real estate. When I did this survey, I had been licensed about 7-8 years, live and learn.

Again, I welcome any critiques anyone may offer.
DWoolley

Dave:
I too like written back and forths. It reminds me of my policy debate years, without the headache of having to be a fast talker/writer For the record I mostly agree with your points, but I think there are aspects of what I have seen you advocate that are essentially local problems, that should have local solutions, not state law solutions.

Quick aside: “Establish Boundary” is presumed to mean “Anytime a surveyor asserts an opinion about the location of a boundary line” based on your usage. If I am wrong please correct me. Personally I prefer “Establish” to mean the act of creation, so it is rare for a surveyor to “establish a boundary” rather we are generally retracing the boundary of some previously created document. I will use the presumed definition below.

You assert that it is negligence if a land surveyor does not meet their obligation to protect and memorialize property rights when establishing boundaries. Implicit in negligence is substandard, which relies on a standard. So this is really just a "standards" discussion. It is my experience that any change of standards in people is either imposed, or they are convinced and find a way for the market to to pay for it. By asserting things are negligent it seems to me that you are attempting either imposition or convincing. In light of how much time you dedicate to education, I believe you are mainly trying to convince and educate people to raise their standards. The push for changes to the RoS requirements feels like imposition born out of frustration?

I agree with you that surveyor holding a fence that was not called for in the deed as some sort of acquiescence based solution, absent several fairly specific conditions, is probably negligent. I agree not just because of Wattles and Brown but also the ex-post/ex-ante examples you discussed.

However, I think (wink CBarret AI thread) that as you leave high land value areas, flat areas, and areas where monuments have been set and generally last, and move into the cheap land value areas where there is rough terrain, the maps are few if any, many monuments that are found have no certain pedigree, and many of the parcels are deed creations from deed creations etc. the assertion of negligence starts to get pretty complicated, and have a lot more shades of grey.

I also think that as you leave the safety and starkness of a black/white principle, each step into the grey needs to have all controlling evidence searched for and addressed why it is not being held. Any shades of grey that are utilized should be documented.

I would bet some donuts that you agree with that statement generally, since I see on your map of Thalia that you are accepting undocumented monuments, like at at note 7, to be included in what you used to establish the centerline of Thalia. Same reason you show you alternate options. Considered and discarded.

Like most aspects of a professional discussion about negligence it all comes down to what is the “standard of care” that should be applied. Please note that I am not saying that a claim to “it’s the local standard” absolves a surveyor of responsibility. For example it seems to be common in the East Bay to do a corner record extending centerline monuments with no pedigree several blocks away to establish boundary’s of 50 foot lots. I would say that’s negligent when I am being nice, incompetent when I am being honest about what I think they can do/understand.

In my East Bay example, it is wrong because of all the reasons I listed above. Its high value land, small lots, tons of monuments exist, (even if its curbs or old buildings) lots of records exist, the durability of the curbs buildings and centerline monuments allows faith in their recoverability or declarations of SFNF. The actual work produced is not what it is assumed to be by the users of that work. Thus anyone preparing such a corner record is effectively deceiving their clients in my opinion. Thus bad.

Now consider the Cazadero area (shown the screen grab I shared earlier on the thread) and often all that you have to try and place a record map from 100+ years ago is measuring existing road beds, old houses, old fences and occasionally a pipe that might just be a retaining wall or stair stake (the rebar or pipe driven through wood to create steps). In that area I do not consider it negligence to hold all sorts of things that are not listed in a manual and would be a sign of cheap or negligent work elsewhere.

I would like to also make it clear that the reason I advocate holding those lower tiers of evidence is because I consider them like fixed works in their reason for use. IE they are the best evidence that’s left of whatever might have been originally placed in the field. The fence would have to be old, not because it’s a sign of acquiescence, but it is considered the best evidence of someone setting up a string between two redwood hubs and building their fence accordingly. We have a flowchart like process that we go through to evaluate if a fence is acceptable to consider as evidence of a boundary.

Incidentally, the use of parole evidence is actually nice (although rarely determinitive) to establish origins and intents. Normally the parole evidence is mainly used to disqualify a fence, since often the people say something along the lines of, “I built that with my neighbor were we thought the line was”, which is nice, but immediately disqualifies that fence as evidence of an old boundary. Finding impartial folks with direct knowledge of 50+ years ago is tougher and tougher.

Maps we prepare in those areas have notes explaining the limitations of the work, and I like to think that all our clients understood our efforts and proceed with the correct amount of certainty (/fingers crossed)

Now to the actual point I wanted to make about local problems getting hit with a hammer of state law solution

I think any effort to raise standards by law ( IE imposition) need to be evaluated by their real world outcomes for the entirety of the state. The rural areas that I do work in are already barely able to hire a land surveyor. This matters because the likely effect of legislatively raised standards will be to have more rural boundaries remain unsurveyed, with resultant problems compounded down the line.

I think you will agree that if something gets more expensive, less people buy it. If it gets cheaper, more people buy it. A RoS is no different. If a good boundary survey cost $100, everyone would get one. If a good boundary survey cost $100,000 very very few would get them. As the cost goes up, the primary reason to pay for a RoS is because you HAVE to as part of something else. More often than not, it is because the RoS is part of a development project, which means the costs will be passed on the end consumer. Everyone is complaining about the cost of housing, but also want to raise the standards on everything. Energy efficient windows might pay for themselves down the line in energy savings, but that’s a tough sell to the folks who can’t afford to buy them in the first place. Same with a survey. Putting the fence in the right location is nice, but when the cost of the survey is more than the fence, many people I get inquires from say they will just move the fence when its found to be wrong after hearing how much it will cost to do a survey… (see above why fences are not good boundaries ).

Local concerns about fighting with unlicensed work, or differentiating our work from a landscape architects via accuracy statements will just end up being boilerplate statements that are not actually representative of the work of that individual survey. If the idea is to be able to point to the accuracy statement as quick litmus test for planners and county folk to use as a stamp of competency, lets first get them to look for a PLS number first, and “Record of Survey” second.

The solution I see most implementable is educating local governments. The recent white paper on site plans is going in the right direction, I think, since it is that sort of paperwork that will allow us to influence planners and county policy makers. Your 10 minute surveyor videos are also great in that way. It helps people hear and think about ideas and maybe slowly raise their standards by choice.

Mikey Mueller, PLS
Sonoma County

PS, Might be a little rambling.

Quick aside: “Establish Boundary” is presumed to mean “Anytime a surveyor asserts an opinion about the location of a boundary line” based on your usage. If I am wrong please correct me. Personally I prefer “Establish” to mean the act of creation, so it is rare for a surveyor to “establish a boundary” rather we are generally retracing the boundary of some previously created document.

BPELSG (actually, BORPELS) weighed in on this in 1996 when they were still issuing Policy Resolutions. PR96-03 states, in part:

A licensed land surveyor or registered civil engineer establishes, and is subject to the record of survey filing requirements, when he or she represents beyond reasonable doubt or dispute the location, relocation, establishment, reestablishment or retracement of a boundary or property line
to another party pursuant to the provisions of Section 8762 of the (PLSA). This representation includes the act of causing a boundary or property line to be accepted or recognized, to prove or demonstrate the location of the boundary or property line, the setting, resetting or replacement of comer, reference or witness monuments or the referencing of a boundary or property line by showing dimensional ties to the line in relation to physical features or monuments located on the ground.

FWIW.

Jim Frame wrote: Thu Sep 15, 2022 7:51 pm BPELSG (actually, BORPELS) weighed in on this in 1996 when they were still issuing Policy Resolutions. PR96-03 states, in part:

A licensed land surveyor or registered civil engineer establishes, and is subject to the record of survey filing requirements, when he or she represents beyond reasonable doubt or dispute the location, relocation, establishment, reestablishment or retracement of a boundary or property line
to another party pursuant to the provisions of Section 8762 of the (PLSA). This representation includes the act of causing a boundary or property line to be accepted or recognized, to prove or demonstrate the location of the boundary or property line, the setting, resetting or replacement of comer, reference or witness monuments or the referencing of a boundary or property line by showing dimensional ties to the line in relation to physical features or monuments located on the ground.

FWIW.

Thanks, Jim.

Unfortunate choice of words when the letter stated "represents beyond a reasonable doubt" rather than "represents with a preponderance of evidence".

The balance is good information.

Thanks again,

DWoolley

Unfortunate choice of words when the letter stated "represents beyond a reasonable doubt"

I think there's an implied distinction between a survey that's based on the preponderance of the evidence -- the surveyor's opinion as to where the boundary is -- and the surveyor's document or other presentation (could even be oral) that indicates beyond a reasonable doubt where that surveyor's opinion regarding the boundary is (i.e. a certain distance from an improvement as shown on a map). In other words, I think that "beyond a reasonable doubt" in this context refers to the surveyor's representation of the boundary location rather than to the accuracy of the boundary the surveyor established.

So if a surveyor prepared a map prominently marked "not to scale," and the map shows a building and a boundary line but no dimension from the building to the boundary line, the map wouldn't represent the location of the boundary line beyond a reasonable doubt and thus wouldn't establish the boundary location. (Not sure why such a map would ever be prepared, but that's another question.) If, however, the map showed a dimension of 1.00' from the building to the boundary line, it would represent beyond a reasonable doubt the location of the boundary line as established by the surveyor.

I think.

Jim:

Thank you for the reference. Its why I love this board. The depth of knowledge is so great, as well as the effective memory.

Mikey Mueller, PLS
Sonoma County

Jim Frame wrote: Fri Sep 16, 2022 6:14 am

Unfortunate choice of words when the letter stated "represents beyond a reasonable doubt"

I think there's an implied distinction between a survey that's based on the preponderance of the evidence -- the surveyor's opinion as to where the boundary is -- and the surveyor's document or other presentation (could even be oral) that indicates beyond a reasonable doubt where that surveyor's opinion regarding the boundary is (i.e. a certain distance from an improvement as shown on a map). In other words, I think that "beyond a reasonable doubt" in this context refers to the surveyor's representation of the boundary location rather than to the accuracy of the boundary the surveyor established.

So if a surveyor prepared a map prominently marked "not to scale," and the map shows a building and a boundary line but no dimension from the building to the boundary line, the map wouldn't represent the location of the boundary line beyond a reasonable doubt and thus wouldn't establish the boundary location. (Not sure why such a map would ever be prepared, but that's another question.) If, however, the map showed a dimension of 1.00' from the building to the boundary line, it would represent beyond a reasonable doubt the location of the boundary line as established by the surveyor.

I think.

Great thread, I've been playing catchup on this because it has been fast moving and I have serious time constraints in recent week or two.

Jim, I agree with this assessment. There is a tidbit I would like to add.

I think Dave may have confused the standard of care for boundary analysis with the Burden of Proof in criminal vs. civil cases.

I believe that most of us know that In civil court cases standard of proof when a judge or jury are evaluating cases is preponderance of evidence (as opposed to criminal cases being beyond reasonable doubt) Term "Beyond reasonable doubt" being the expression illustrating the highest level of care, whereas if you were to try and express preponderance of evidence in numbers (which is a stretch) one could say it is at the minimum 51%.

In my personal case, when performing surveys and evaluating survey data and boundary evidence, I strive for the utmost level of care, as opposed to stopping at the minimum.

If they are ever challenged in court, which to date after 33 years of work, none of mine were challenged in court, my representation vs. another one would be judged based on which side has preponderance of evidence in one direction or the other.

I see a lot conversation on here about adopted standards and methods of care in reporting boundary evidence and figured it may be worth noting another source.
6-40 Cases will arise where lands have been occupied in good faith, but whose boundaries as occupied disagree with the position of the legal subdivision called for in the description. A landowner’s bona fide belief concerning the boundary location is not the same as a bona fide right within the meaning of 43 U.S.C. 772. A bona fide right within the meaning of 43 U.S.C. 772 is based on good faith reliance on evidence of the original survey. Obviously, under these facts the rule of good faith as to location cannot apply. This is not a survey issue but a title issue and relief must be sought through the process of amended entry, correction of conveyance document under 43 U.S.C. 1746, quiet title action, tentative approval relinquishment, or interim conveyance reconveyance or relinquishment to cover the legal subdivisions actually earned, rather than through an alteration of the position of established lines. This is a process of adjudication rather than one of resurvey. A case of this character should be regarded as erroneous location in precisely the same manner as if the question of resurvey were not involved. The amendment of entries is a matter for adjudication by the BLM after the resurvey has been accepted and the plats officially filed.

Bonus points if you have a 1947 manual and read Chapter 6, item 397, page 395.

Perhaps blended standard of care with preponderance of evidence is more likely.
When the math places the line here but the evidence shows it to be there... That is when the art of surveying begins.

LS_8750 wrote: Fri Sep 16, 2022 10:10 am When the math places the line here but the evidence shows it to be there... That is when the art of surveying begins.

Clark, this is not meant to be a direct personal comment, more just a general observation of word choice.

I have never really understood that sort of statement in surveying since math is just a language to demonstrate relationships. Its not "math" placing a line, it is a premise on where to start the relationship. When people say "math" I have found they are generally meaning one of two things.

1. Holding record information and placing lines as called for in a single deed or single map. I would call this "holding record".
Or.
2. Using long ties and calculated positions from a composite of sources, often spanning multiple lots or documents, and often projecting past found monuments. I think that this should more property be called "not properly demonstrating how you are holding record".

For meaning 1. It often seems to really be comments on what is the best evidence to use to establish the location of a particular boundary. For example it is generally not the width of a lot that is the issue, but where the lines are in relation to fixed works. IE from where did you start the "math" from.. So negative comments about math seem to be based on the idea of using something other than a deed distance to control a line is better. This means that a surveyor thinks there is better evidence than record information to control that line. So its either a priority of calls discussion which has been litigated quite thoroughly, and shouldn't be much of a discussion... Or its a question of what is the best available evidence to control a position, IE not math.

For meaning 2. I see it breaking into two general categories.
2A. Done horribly (generally by an RCE) that stitches together many maps and such and extends things on long projections, with a profusion of notes saying "found pipe, 0.50 from record position" being the smoking gun of "just not getting it".
2B. A complicated relationship not shown well enough on the RoS, so that following surveyors don't understand what was done. Possibly correct, but not easily understandable. I see this frequently on the older maps done by competent LSs that just didn't leave enough bread crumbs. When you pull all the maps and docs and redo everything you can see what they did and its generally right, but takes hours to prove.

Like Mr. Browns letters from the other thread, lets first find our common ground and then move to where we disagree, and it never looks professional to disagree over math :)

Mikey Mueller, PLS
Sonoma County

PS I see the irony of me writing this post about math btw :)

When the math places the line here but the evidence shows it to be there... That is when the art of surveying begins.

I interpreted Clark's words to mean . . . as slapping the math on the ground (to paraphrase Jeff Lucas) versus attempting to hold (occupational?) evidence.

If one breaks the law: #2077 of the civil code of procedures . . . one better have good reason.

2077.] Section Two Thousand and Seventy-seven. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:
One—Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.
Two—When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.
Three—Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.
Four—When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.
Five—When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance.
Six—When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.
(Amended by Code Amendments 1873-74, Ch. 383.)

Thus, as Mr. Clark, said: "that is when the art of surveying begins."

Have a good week everyone! Much needed rains are here in Sonoma County today!

Crazy Phil

hellsangle wrote: Sun Sep 18, 2022 10:10 am ...
2077.] Section Two Thousand and Seventy-seven. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:
...
Crazy Phil

"...are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:"

How does a surveyor determine "...the construction is doubtful..."?

Suppose the description is whole, but there exist monuments not referenced in the description that place the location in another place? By 0.2' or 2'? Does the delta matter? Or monuments that were relied upon for improvements, but have no reference? Always a challenge to me as to when this section applies.

DWoolley

How does a surveyor determine "...when the construction is doubtful..."? Excellent question. How full of doubt do we need to be?

To me doubt arises every time I walk up onto a site with deed and/or map in hand and find the site doesn't match the deed exactly, or near enough to shave off one thousand percent confidence that what I am looking at matches the deed/map.

"Six—When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars." ........ Ancient maps and not a single monument found, but somehow breaking down the block you find harmony, or dare I say acquiescence, in occupation. Harmonizing "the map" with "other definite and ascertained particulars" is no joke, it could be referred to as land surveying.

I think living and surveying in Orange county, and doing a lot of new subdivisions some of us don't encounter a lot of doubtful construction.

I recent couple of years I had a chance to work on easy 100 or so records of survey (on the map checking side). This included at least 50% of lot surveys in older more rural areas where people were are occupying land based on 80 year old 2x2 wooden hubs, sundry variety of concrete monuments and 'pins'. Lot of those lot survey included improvements crossing property lines because people assumed a lot of things over the years. Garages, sheds, house additions. You are still going all the way to the BLM plats and sectional breakdowns to figure out where things sit.

Another interesting challenge is trying to determine right of way locations for some of the old old streets running through downtown LA and areas of similar age. I had to map out several miles of huntingtin drive couple of years ago. Area endured a lot of fast development during 1900 to about 1920's, with tracts popping up and piggybacking one onto another like mushrooms after a good rain.

I'm sure everyone has a load of interesting stories to tell.

CBarrett wrote: Wed Sep 21, 2022 3:15 pm This included at least 50% of lot surveys in older more rural areas where people were are occupying land based on 80 year old 2x2 wooden hubs, sundry variety of concrete monuments and 'pins'. Lot of those lot survey included improvements crossing property lines because people assumed a lot of things over the years. Garages, sheds, house additions. You are still going all the way to the BLM plats and sectional breakdowns to figure out where things sit.

Another side to that coin is that for many of those rural areas it is not likely to be surveyed again for another 80 years. Makes you wonder what they will say about our horrible hard to find iron pipes with no RFIDs or radio bursts :)

Mikey Mueller, PLS
Sonoma County

Jim Frame wrote: Fri Sep 16, 2022 6:14 am I think that "beyond a reasonable doubt" in this context refers to the surveyor's representation of the boundary location rather than to the accuracy of the boundary the surveyor established.

Well said! I was thinking the same thing but couldn't describe it so clearly.

Getting back to acquiescence, I have an example for you to consider. Let's say a parcel map is filed in 1972. Sufficient monumentation is placed to identify the parcel corners and all original monuments remain today. 5 new homes are built soon after and all yards are fenced in accordance with the monuments. All the houses are sold to different individual owners that same year. In 1982 there were granny units (ADU) built at 5 feet setback from the South line (common with Joe's farm described below)

You perform a boundary survey in 2022 for Joe's farm, a large undeveloped tract adjoining the subdivision. The subject parcel has been occupied by Farmer Joe and his family for three generations. You discover a 0.5 foot overlap exists between Joe's parcel boundary and the monumented parcel map where it is apparent that the parcel map exterior boundary was in error (surveyor got it wrong - probably a CE). You determine that the monumented 1972 subdivision is essentially occupying 0.5 feet of Joe's farm.

Joe (and his father before him) has been farming up to the picket fence for 50 years now with no complaint. Do you accept the Subdivision boundary?

David Kendall wrote: Sun Sep 25, 2022 9:20 pm ...
You perform a boundary survey in 2022 for Joe's farm, a large undeveloped tract adjoining the subdivision. The subject parcel has been occupied by Farmer Joe and his family for three generations. You discover a 0.5 foot overlap exists between Joe's parcel boundary and the monumented parcel map where it is apparent that the parcel map exterior boundary was in error (surveyor got it wrong - probably a CE). You determine that the monumented 1972 subdivision is essentially occupying 0.5 feet of Joe's farm.

Joe (and his father before him) has been farming up to the picket fence for 50 years now with no complaint. Do you accept the Subdivision boundary?

Question: Joe (and his father before him) has been farming up to the picket fence for 50 years now with no complaint. Do you accept the Subdivision boundary?

Answer: No. Clearly, there is sufficient evidence to determine the boundary of Joe's farm, presumably the senior grant, to determine the 1972 subdivision was in error. One variation would be if Joe's farm previously owned the land for the 1972 subdivision.

Holding the senior Joe's farm when the adjacent owner monumented part of Joe's land - including the noted encroachments. Nemo dat quod non habet. The underlying owner sold land he did not own.

Holding the subdivision monuments when Joe formerly owned the 1972 subdivision. Contra proferentem.

My question back to you is, what would be the basis of accepting an incorrectly monumented junior subdivision when the land never belonged to Joe?

DWoolley

Monuments set it in 1972, out of position by 6 inches? My first question would be how long are the lines that establish this, 100 feet, 1000 feet? 1 part per 5000 is an acceptable tolerance of closure in many jurisdictions today.

LS9200 wrote: Mon Sep 26, 2022 8:11 am Monuments set it in 1972, out of position by 6 inches? My first question would be how long are the lines that establish this, 100 feet, 1000 feet? 1 part per 5000 is an acceptable tolerance of closure in many jurisdictions today.

Subdivision lots are 200 feet wide by 200 feet deep. Joe's disputed portion is 1000 feet long by 0.5 feet wide strip so 500 sq ft.

DWoolley wrote: Mon Sep 26, 2022 7:00 am Clearly, there is sufficient evidence to determine the boundary of Joe's farm, presumably the senior grant, to determine the 1972 subdivision was in error. One variation would be if Joe's farm previously owned the land for the 1972 subdivision.

Holding the senior Joe's farm when the adjacent owner monumented part of Joe's land - including the noted encroachments. Nemo dat quod non habet. The underlying owner sold land he did not own.

Holding the subdivision monuments when Joe formerly owned the 1972 subdivision. Contra proferentem.

My question back to you is, what would be the basis of accepting an incorrectly monumented junior subdivision when the land never belonged to Joe?

To be clear, the overlap land did clearly belong to Joe's grandpa. I don't want to complicate the situation with senior rights so let's say the two parcels have always been separate. The minor subdivision is in error, created by the donkey surveyor who performed the subdivision.

The short answer is that harmony exists. Joe doesn't know or probably even care about the 0.5 feet that dad apparently lost in 1972. Now it's occupied. It is common for surveyors to create a problem with a complex or impossible solution in the course of a resurvey, then ride off into the sunset. Might it be more sensible to disregard, relinquish or negotiate a compromise over the conflicted portion? Please consider that in a rural environment the cost of the professional services required to compose this forum post might exceed the value of the land.

I sense that your technically correct answer is in conflict with the practical application of the principles at hand. The best I could do here would be to document the evidence and explain the situation to Joe. If he wants to go get a lawyer and start knocking on doors then that's up to him. This probably depends on the value of the land. I would probably tell him to leave it alone and move on with the farming if there were no other more pressing reasons to try to reclaim the land. If I have to provide a setback certificate today for construction on this line then I would give a dimension to the subdivision boundary.

Mr Woolley: Can you predict what a California court might do if this situation was presented to them? In spite of the error in the subdivision boundary, would Joe ultimately end up with the 0.5 feet of land? I expect that Joe would ultimately prevail if he pressed the matter but at what cost?

David Kendall:

The Facts:

Joe’s farm boundary and the 1972 subdivision boundary is clear as to location. The subdivision overlaps Joe’s farm by 0.5’ on a lot that is 200’x200’. Joe’s farm never owned the land underlying the 1972 subdivision.

As the surveyor, Joe’s farm lot line holds. The harmony could be because nobody was aware the error existed.

The Surveyor's Role and Remedies
The surveyor’s obligation is to provide the facts to the landowner. The next step by the land surveyor is very important as to the manner of presentation to the owner. The parties are not adverse (yet) and the surveyor has the authority to provide any number of remedies to the parties. The parties can choose not to remedy the situation. The napkin math doesn’t seem to be cost prohibitive. The five 1972 subdivision landowners share the cost of a lot line adjustment estimated at $10,000 is $2,000 each. This is much cheaper than applying for variances on their encroaching structures. Depending on their homeowner and/or title insurance policies there may be some relief. Also, if the surveying company from 1972 is still around they may offer the land surveying lot line adjustment work at no cost – leaving only agency fees. Also, the land surveyor found the problem and is required to document the problem via record of survey and ultimately, without owners cooperation, that is the end of it.

Don't Do It
It is a mistake for the land surveyor to disregard the issue once discovered. The land surveyor should document the conversations – usually via email – to provide a clean record. This situation could turn to a negligence claim – either BPELSG or civil complaint - rather quickly if mishandled. A “setback certificate today for construction on this line then I would give a dimension to the subdivision boundary” would most certainly seal a negligence claim against the land surveyor. What did you know? When did you know about it? And what did you do about it? Nothing in our authority or training allows for that particular option. Acquiescence is a legal theory and the land surveyor cannot deny an owner due process and/or reallocate their property rights.

Court Prediction
I cannot predict what a court would do. There is going to be other factors that would be considered in this case. However, as presented, the land clearly belongs to Joe. Joe would not be the likely plaintiff. The plaintiffs would be the folks in the 1972 subdivision with a claim for the property they do not own. The fact there are five of them makes it a much more difficult case to get them on the same page – most folks would prefer to avoid litigation. Also, the land surveying company from 1972 - if still in existence – would be named. There is no applicable statute of limitations for land surveying. Technically, it is usually four years from the date of discovery.

A good land surveyor, with the understanding of property rights and boundaries, would work to keep these folks out of court.

Mr. Kendall, I sincerely appreciate you driving the conversation and asking questions others are likely to have on topic. A lot of good folks would not readily place themselves in a vulnerable position to seek additional information. Solid.

DWoolley

One aspect of leaving the dog sleeping on that .5 feet is liability for the homeowners.

When I explain the options in situations like this to people I generally use the following options:

1. Leave it alone, and hope its ok.
Pros= Fastest cheapest option. Keeps "harmony" in the neighborhood and might be easier on their peace of mind if they don't like confrontation.
Cons=my survey counts as "notice" and "knowledge" when dealing with future actions like selling the land. When this comes up again, it will likely be in a time sensitive matter that constrains options and makes everything more expensive. Liability is still yours for bad things that might happen on your land, that is being encroached on.

2. Easements to give the neighbors rights to enjoy the area encroached on.
Pros= Fast, Easy, cheaper, and stops most future lawsuits, however easements don't seem to be understood well, so some might still pop up.
Cons= Setbacks are not based on easements, so a 10ft backyard setback to a pool is on the boundary line, not the easement line. Liability for Farmer Joe when something bad happens, since easements don't stop homeowners insurance issues.

3. LLA to pass clean title to the folks that are encroaching. This is what I try to get folks to do as best option.
Pro= Clearly and cleanly passes title to subdivision folks. Makes setbacks/liability match occupation. Settles the issue forever for all future owners. as the 10-15 grand in costs is low in consideration of other options. It also seems easier for landowners to be amicable and approach it as a "fix the paperwork problem" that was discovered. If they wait too long, everyone in the subdivision will start thinking there is some sort of agreement to the status quo, and then any fixes are emotionally perceived as a taking. Humans hate to lose what is "theirs". https://en.wikipedia.org/wiki/Loss_aversion
Cons= Expensive, and time consuming (almost 2 years here, 6-8 months due to tax assessor issues).

4. Find a lawyer. However before they do that, they should max out their credit cards, get a 2nd mortgage and then burn all the money they have. Don't sleep for a week and then put a price on getting that land. If that total cost is more than the LLA option, please do the LLA option.


Mikey Mueller, PLS
Sonoma County

P.S. the Homeowners Insurance liability was explained and mentioned a few times by different lawyers I have worked with, but I have not verified it myself or heard it as an absolute. Also the small number of slip and fall claims I have been involved in always seem to have the land owners being at least partially responsible, even when maintenance was done by others.

LS9200 wrote: Mon Sep 26, 2022 8:11 am Monuments set it in 1972, out of position by 6 inches? My first question would be how long are the lines that establish this, 100 feet, 1000 feet? 1 part per 5000 is an acceptable tolerance of closure in many jurisdictions today.

Isn't that just a defense used by the subdividing surveyor to not be negligent/incompetent? IE precision vs accuracy debates. Would the line monumented in 1972 be extended to the limits of Farmer Joe's lands? IE possibly creating gaps with his other adjoiners along that line?

Mikey Mueller, PLS
Sonoma County