California Surveyors Forums

This one is not as sarcastic or disrespectful to a surveyor or a group of us like he has in the past. Just the facts. He makes some good points. One thing I've struggled with is with monuments set by an improper method. If a "long" time has passed and people have acted upon them do they hold? What if it a “shortâ€￾ time and no one has “actedâ€￾ on them? Lucas cites a case in Oregon where the courts wisely noted that the method was improper but the surveyor is still the "first" or "original" surveyor and the monuments do hold over using the proper method. These lands where privately held, so according to CA law, you can subdivide them as you see fit.

Although though the case was in OR, I'm sure we in CA can cite it. I'd like to know under what presumption we can do that, however.

He does turn around and show another case where the intent shows that the sections lines where supposed to be used to subdivide and the “originalâ€￾ monuments erroneously set and even relied upon were not valid. Goes to show you that surveying is a profession and not a technical field where rules and techniques can be strictly adhered to but judgment and a clear understanding of the principles and intent of the law


http://www.pobonline.com/CDA/Articles/C ... 0000209340

There is no cookbook available with a foolproof receipe on how to provide a sound professional opinion. This is troubling to some folks because they want to collect the variables and them plug that data in to the boundary resolution formula and Voila boundary survey done! In my mind the most important step to understand is that boundary location is based upon evidence. What the FACTS are in relation to what the courts view of the law is, is what explains why in one case the monuments hold and in another case they do not. Over time case law and statute law change. But the fact that the deed calls for iron pipes and they were set and you found them to be where they were claimed to have been set (relatively speaking), these are facts and they do not change.

What is the general pricincpal that applies to the subject boundary? Do I find evidence that supports that principal?
Do I find evidence that defeats that principal? What evidence is available to me to use to arrive at a SOUND professional opinion?

Maybe this horse is dead, but the concept between an Original Surveyor and the First Surveyor seems like a discussion we should have. If you read my post above, what do you feel is the timing or circumstances that would lead you to accept an erroneously surveyed lot or section? Would you ever do that?

Eric,
I agree that there needs to be more discussion on the issue. What has been beaten to death is all the chest thumping ( generally counterproductive behavior).

There is just no cookbook answer for the situation. Each boundary is dependant upon the evidence.

Some monuments set in the wrong place become controlling as to location of property rights because the evidence supports that conclusion. Some monuments are called for orginal monuments and they do not control because the evidence supports that conclusion.

Monuments set by the "first surveyor" to monument corners(corners established by prior record,deed or protracted subdivision map) may become controlling, but it depends on the EVIDENCE. The "first surveyor" sets what may be called "opinion monuments". These monuments and the survey that set them are always subject to collateral attack, at least according to Brown.

that as well, but the land owner wants to know where his land lines(boundaries) are and what is his(ownership). If the land owners on both sides of the line agree with me that the lines and stakes/pipes that I set "is it", then why must the courts be brought into this stuff.

"George, this here is where the surveyor says is our boundary line. You own on that side and I own on this side. Okay?" "Sure Fred it's okay with me but I didn't know that surveyors could stake ownership. Looks like you spent a bunch of money for nuthin'."

I know where your comming from Sean, but there have been discussions before on this topic. I want the landowners and me to stay out of the courts. Sometimes it is a pipe dream, but most of the time -a lot of times- the landowners aquiese(spelling) to my staking and go on with life with each one of them owning to their side of the line that I staked.

well said Bruce

to reiterate:
only landowners can establish ownership. ONLY LANDOWNERS

a judge gets his authority as arbitrator from the landowners....

Long time no contact. Hope all is well.
call of e-mail some time. Frank lehmann
530-241-2596
lehmannconsulting@sbcglobal.net

really the big key there is "a new and proper document in the recorders office". I don't think that it really is a good idea to hold some agreed upon line that isn't based FIRST based upon the record. If it isn't let's create a record.
The survey that I did for Fred and George, everything worked out okay. I didn't fit the fence perfect, in fact there wasn't a fence there when I did the survey. But the line was "easily" ascertainable and I marked it on the ground.
As far as I can see, if BOTH parties want to claim to some fence, when it fact the dividing line is somewhere else, why can't they? It's their land. (it would be nice if this agreed upon line was of record at the courthouse or a survey was recorded on this "new" line so that down the road when someone dies, this line don't die with them)
The problems occur when only ONE party wants to hold the fence and the other guy wants to hold the deed, and I can't talk them out of fighting about it. I screwed up at least once in this regard already, probably more.

"As a summary of the discussion presented, the following is offered:

(1) The surveyor in finding an encroachment on his client's land must fully inform the client of its significance; further, the information must be presented in such a manner that third parties also understand the significance of any encroachment.

(2) Nothing in the law prevents the surveyor from deciding who has ownership to encroachments, and he may monument ownership lines rather than written title lines.

(3) In some circumstances the surveyor may be justified in monumenting the line that he believes to represent true ownership line. In my experience, this occurs when (1) the client has color of title, (2) the client has paid taxes on the land described with color of title, (3) and the client has had possession by an enclosure for a time more than the statute of limitations. In cases involving adverse relationships (adverse possession), estoppel, or recognition and acquiescence, the surveyor is probably foolish to try to establish ownership.

(4) Since, to avoid liability the surveyor must fully disclose the significance of encroachments, surveyors must have knowledge of how and when unwritten conveyances occur. It is my recommendation that all surveyors should be required to understand the subject.

A practice that would save the land surveyor harmless is the practice of drafting "Property Line Agreements." This is supported by the policy of the American Congress on Surveying and Mapping that all written deeds should be brought into conformance with the possession of the land. This is accomplished by causing the client and all adjoiners to sign a map stating that they agree that the lines shown thereon are their common property lines. This is a good way to resolve the problem under discussion and all land surveyors should attempt to settle their boundary disputes in this way."

Curtis Brown


http://www.californiasurveyors.org/file ... sliab.html



It may be old hat but it still works for me.

Getting back to Lucas’ article. His contention that the “original surveyorâ€￾ and “first surveyorâ€￾ (being the “nextâ€￾ surveyor after the original surveyor) are synonymous terms is problematic. Maybe we should agree to avoid using the term first surveyor. What benefit does it serve? If the original surveyor leaves some evidence behind, the next surveyor or the tenth surveyor to follow needs to find that evidence. If the next surveyor (that Lucas refers to as the first surveyor) is incompetent and fails to adequately follow the original surveyor, and the 3rd or 7th surveyor does, can you fault the current surveyor from going with the 3rd or 7th guy?

Of course there are exceptions when the “nextâ€￾ surveyor should be held even though having laid out some points or lines incompetently. Maybe his survey can be proven to have been relied upon by others and actions taken by landowners over the course of several years that now take precedence over lines as originally run. Or maybe he has the best chance to find “freshâ€￾ evidence of the original survey if the later surveyors follow considerably later. But there’s nothing that elevates him to any greater status than others by the mere fact of his place in line. In any case, I don’t call him a first surveyor. There’s only one of those.

An underlying issue that this discussion seems to never directly address is the idea of standards. I’m not talking about past standards. We can’t improve the capabilities of dead surveyors. We have to deal with those on a daily basis, but we can take a stance that standards henceforth do exist and we will refuse to honor the work of those who repeatedly memorialize their sub-standard work in the public records. If one works in area with no system for filing surveys in the public records, he may have no choice but to honor any pipe he trips over or any fence he bumps into. But we have a filing system here in California that has been in place since 1907. There’s a reason that system exists. By its very nature, it tends to elevate the level of practice.

When discussing this in a national forum (POB), it seems one should take into consideration the varying systems and practices that occur state to state, each with its pros and cons. My observation would be California has more pros than cons. In other words, we generally work to a pretty high standard and enjoy a community of professional surveyors who are generally highly competent. Again, just my view.

I’m bothered by attorneys or expert surveyors who enter court advising judges (or juries) in a manner that lowers the standard of practice, an effect I fear may be occurring.


Dewardkb said:

"This is accomplished by causing the client and all adjoiners to sign a map stating that they agree that the lines shown thereon are their common property lines. This is a good way to resolve the problem under discussion and all land surveyors should attempt to settle their boundary disputes in this way."

A good idea as part of the solution, but filing a survey with owners signing it has no effect as a transfer of property, nor are successors bound by it. An instrument of conveyance is required.

Dave Ryan
Arcata, Ca.

Please accept my apology for not making it clear above that those words were not my own but those of Curtis Brown.

The issue in my opinion is not one of reliance nor some obligation to determine equity between parties. The issue is one of evidence and disclosure.

Forming an opinion before the facts are known is the definition of a bias opinion and is the death knell for a professional surveyor's credibility. In order to be a professional land surveyor one must be willing to change one's opinion as the facts become known. I am reminded of a quote of Curtis Brown's from his first edition, Boundary Control & Legal Principles text.

"To William C. Wattles, an authority and dean of title matters, is my dedication for his oft-repeated sage counsel-to most legal principles the statement "the contrary may be shown" should be added."


This painful but nonetheless true fact must be kept in mind by the professional land surveyor when performing a survey. As a professional land surveyor you must be able to reverse your position if facts become available that would lead to different conclusions. Professional land surveying is not a political endeavor nor is it an exercise of advocacy or ego. Professional land surveying is the art and science of evaluating evidence as the concerned parties and the law would evaluate it. This is what makes our practice a profession. Much to my chagrin I have seen far too many examples of the former mind set in some surveyors philosophy and practice.

If you wish to practice as a professional be aware that you must be willing to make exhaustive searches for evidence to the satisfaction that your conclusions can be supported. The risk of coming to a conclusion and giving an opinion is that this will never prevent other evidence and facts from being found and your conclusions rendered irrelevant or untenable. This is simply a function of the science and art that is our profession. The true professional can change their opinion and often do, a politician, advocate or egotist often can't.

If you read Mr. Brown's article in this light I believe you will begin to understand what he meant.

The surveyor has no power to compel anyone by subpoena nor compel anyone to provide sworn testimony. Having some experience in this matter I have seen that what people say in sworn testimony is often quite different than what they say to you in private. A surveyor typically has no access to facts like one of the concerned parties past mental disorders or military service as examples. The answer to these questions and knowing those facts may greatly influence certain conclusions of law regarding cases involving adverse relationships.

We all survey with the best available evidence we can find. Not disclosing conflicting evidence, ignoring conflicting evidence or not searching for conflicting evidence is a ridiculous notion and a practice one should avoid as a professional surveyor.

I confess I have not read the article in question, however if a surveyor is a judge, jury and prosecutor then I would suggest that I have become an advocate and therefore dead as professional land surveyor.

Anyway,

Even though we have this recording system here what happened in the Knerr v. Moulin case was interesting. Huey's Map had not recorded yet so the lower court cited the fact that the older south cost map was recorded and had more weight. CLSA had the opposite view, because the map was under review for one, but the Huey method followed the normal rules of Land Surveying we all know and are familiar with based on long standing court cases.

The court however, found the opposite. The south coast map was found to be in the correct position.

The south coast map found a couple of monuments (from a previous survey) found some other monuments, called them all off; set their monuments are record distances with no ties across the tract or even streets. The courts accepted this survey. I don't feel it was the proper method to set those lot corners, but the court sure did.

Here is why I brought up the Lucus article:

When does an improper survey become the true boundary (and yes I mean boundary and not property) line? We can all see from the record the survey that was done, but what if people have relied upon that survey and even accepted it as the boundary lines for decades?

There are a lot of improperly surveyed lands out there, but the courts don't always look at the rules of survey methodology, they also look at other factors such as bona fide rights, common reports and mostly the law of equity.

There are some older surveys around here where the former County Survey FFF, accepted a fence line as the best evidence of a section line. Was he supposed to do a DP or SP for that corner? 75 years later there is subdivision after subdivision based on that farmers fence line. Do I do a DP based on monuments 1.5 miles away, or do I accept the monuments he set?

The Knerr vs. Moulin case, is unusual I think because it sounds like the one company had done work in that area for a long time and basically had created their own local customs regarding surveying in that tract that is outside the norm for most surveys in CA. Maybe that case is one of "letting sleeping dogs lie".

Is that the only lesson, or is there a lesson about how even a poor survey can ripen into a legitimate boundary line, section line, whatever with the passage of time, common report, and reliance of parties involved. Sometime a fence is to keep the cattle out, and sometimes it's the best evidence of where the section line was. In 1909 the farmer tells the former County Surveyor he built the fence on the section line his grandpa showed him. In 1909, was he going to traverse up a mile and down a mile, then east and west to do a DP. NO! We have to face, that today it's different, and we have the luxury of being diligent. I think 75 years ago, it came down to what the surveyor thought would be the best answer - accepting a fence or triangulating over 4 miles and being plus or minus 10 feet?

Today, with GPS and Total Stations it's a plus or minus 2 cm or 0.2' depending on if we use a TS or GPS. However, do we reinvent the wheel because of the push button technology we have? We all know, if we have experience, that if there is no occupation, no entryman, no other evidence than we can use the rules of our profession. However, if there is occupation, other evidence such a testimony and if the monuments have been relied upon, then our professional judgment has to come into play.

Santa Barbara has some interesting mapping. I've worked on Tract Maps where all the deeds start 1300' feet at a POC then to a POB and all or written as deeds and not Lot 1 of MB XX-XX. Is it a simultaneous conveyance or sequential. To find the answer you actually need to talk to some of the older surveyor and title people. On the other hand, in the City of Santa Barbara, all the blocks where conveyed by deed, in sequence. There are gaps and overlaps. Sometime 4 feet, but many time as small as a foot. Does that belong to the original grantor (The Pueblo of Santa Barbara)? Here is SB, the answer is yes whereas a block somewhere else, owned by a granter where there is only one junior and one senior deed, the 1 foot gap would go to the “juniorâ€￾ deed because the senior gets his full description and the junior gets what is left over.

I think some jobs can't be done solely on paper, but require that extra bit of footwork to really understand what really happened. One principal of our work is that intent can only be viewed by the written words of the grant, but in reality the courts often seem to go outside the words of the deed itself to find an equitable resolution to a boundary dispute.

Calling it like a professional, beyond what I see with my eyes but using my experience, judgment and knowledge of statutory laws and common laws.

A surveyor is never the judge of equity. A matter of equity is not one even for the jury, it is one for a chancellor (now a judge in most places). Equity is not a matter of fact nor is it a matter of law, it is those and more.

If examples of equity are what you seek in case law then is the decision in Knerr vs. Mauldin one you would advocate as a mandate for
surveyors to judge matters of equity with?

The South Bay survey results in existing homes being located in the street. The Hughey survey does not. Which one do you think is more equitable? Or does this matter at all?

Trying to change the record in the form of a recording a land survey performed has nothing to do with the integrity of the original record. It is simply a record of your opinion and without the weight of a recorded agreement between the concerned parties behind this record of survey nothing you can do will change this fact. The court may have confused the terms "record monument" and the monuments shown on a "record of survey" but that does not mean that surveyors have placed meanings on these terms of their own notion.

The South Bay survey was not how I would have surveyed that lot, but they did win the court case. That should cause a professional to ponder why and what he could learn from it, even if he disagrees with the judgement. Since most of what we do is based on common law codified into staute law, then examining the case will prove useful in any furture retracement we do where there is long-standing monumentation that has been used and relied upon. Believe me, I'd much rather see the Huey's of surveying, but as has been pointed out, there are a lot of crappy surveys out there where the proper methods were not used for whatever reason.

As a surveyor, we are then faced with the question of weather we hold it or disregard it. There are simply some boundary problems that will always have 2 or 3 difference answers depending on who you talk to, their experience, and even their views of past case law and boundary laws.

Am I going to accept all long standing monuments? No. In some cases, yes. That's the great part of surveying. It not just measuring, it is a profession.

Good perspective, Eric.

Although, on its face, Hughey's survey appeared to be more comprehensive, and reportedly showed the intent of adhering to the math of the protraction of the interior lots according to the original subdivision lot,the court rejected it in favor of the South Bay survey.

As a surveyor, you can approach it one of two (or possibly more) ways.

You can rage against the ruling, devoting many hours and much emotional energy pontificating that it is wrong because it does not line up with our orderly and mathmagically correct sense of survey boundary establishment procedures.

Or, you can do as you suggest, and examine rulings to identify the issues that might overrule our technical set of survey rules.

In the latter, you are trying to better yourself as a professional by stretching your knowledge base and going beyond the technical.

In the former, you are fighting a battle to limit yourself professionally to the role of skilled technician.

Some seem to think that if you do anything other than apply the mathematical principles to the evidence to come up with the mathmagically perfect location of one or more corners, no matter how sketchy the physical evidence used, that you are acting as "judge, jury, and executioner".

What these folks seem to be missing is that the actions and understandings of all affected landowners is part of the evidence that must be considered. And that, together with the other physical evidence and the legal principles at work, the surveyor attempts to re-establish the boundaries as they were originally established on the ground. This may or may not be as they were protracted on a map.

Our findings and the opinion that we map and monument is exactly that in regards to retracement, an opinion. It is not binding upon he affected landowners until and unless they agree to abide by it. It is the landowners who are "judge, jury, and executioner", not the surveyor.

It is also the surveyor who attempts to impose his or her mathmagical sensibilities to a situation where the original establishment was clearly contrary to our common survey practice or principle who attempts to take on the role of "judge, jury, and executioner".

BTW, for anyone who insists that hughey relied heavily upon the original subdivision survey, go back and review his surveys and see how much original evidence is actually used. I may have missed something, but I recall one position accepted as a perpetuation of an original position, several thousand feet away, and .... no other "original" points or lines. Hughey's previous survey, which this one built off from, re-established nearly every other exterior corner by holding record direction and distance. How is that superior?

Eric,

I finally got a chance to read the artcle that is the source of this thread. I think it is important to be careful and read critically the type of material put forth by Lucas and others in his position. He is writing think pieces design to provoke thought and discussion. The article in question is eppered with the phrase "I believe..."

I wholeheartedly disagree with his proposition that the original surveyor and the first surveyor are the same. They simply are not. If you set a center of section, you do not have the full force of the ACT of 1805 behind you. If the center of section was set by a government surveyor, they are performing a federal authority survey and they come under the ACT of 1805. I am sorry like it or not the federal authority corner is going to carry more weight than the corner you set. It is silly to pretend for the sake of arguement that the situation is otherwise.

In my mind, the logic just does not work in many other areas in the article. But, I do have to say that I am an avid reader of Lucas. I do take him with a grain of ( a pound or two) of salt.

I don't know where you read that I am faulting Hughey for tying to S10. I merely pointed out that that the S10 was the only original monument (or traceable perpetuation) used.

Neither did I make any assertion that South Bay did not cite record dimensions or that it was somehow a superior survey.

But this horse is beyond dead. It wasn't my intent to open that debate again. I'm sorry I mentioned it in my comment.

Evan,

I decided to remove my comment directed toward you. Perhaps a better choice of words ,on my part, would have been in order.
I think your comments are balanced and they are critical, as I read them. By critical, I mean that you are not just accepting without thoughful challenge the evidence as presented. Hughey is not the first surveyor to come upshort when adhering only to limited evidence to support his professioanl opinion.

Please excuse me, if you took my comments as attacks. I did not mean them to be taken as such and I did not mean to do any typing for you.

I believe that the subject will be dead as far as discussion, when people no longer wish to engage in the discussion about the particular subject. Will the discussion be fruitful? I think that remains to be seen. There can be plenty of discussion about rules of survey, case law, and the surveyor's role and there ought to be this discussion.
This is productive and helpful especially to younger and/or surveyors with not a great of experience in the arena of boundary surveying.

I think we can all agree, that we can do without the chest thumping and name calling that is rampant on some discussion boards. I do not see these problems here often.