California Surveyors Forums

A local surveyor called me with this question: If, while doing a survey of a line, a surveyor finds the monuments called out in the record in position but the fence along that line is a few feet off, is he required to file a Record of Survey?

I told him that the fence isn't part of the record so 'no' because the monuments agree. If he was already filing a map it would be appropriate to show the encroachment but that alone doesn't trigger a map.

He apparently has a 50/50 response ratio so I thought it would be good to come to y'all with it.

Thanks!

Section 8762 of the LS Act states when a Record of Survey "may" be filed and when it "shall" be filed. This section does not mention anything about encroachments.

I also say “no.”

Ben

Is the use and character of the fence such that it may constitute "Evidence that, by a reasonable analysis, might result in materially alternate positions of lines or points..." per 8762(b)(3)?

That doesn't mean that it need be the surveyor's opinion that the fence does represent an agreed boundary or the accrual of rights by AP or prescription, only that there is a reasonable possibility that the fence might be evidence supporting it's location as the property boundary.

How is the fence used? Is it the limit to which the client and adjoiner are utilizing the ground? Was it built with the intention of marking a boundary? Was it built just to keep a neighbor's goat out of the vegetable garden?

There is no way to answer either "yes" or "no" with just the information given. The surveyor needs to analyze the fence himself, and if he thinks that some competent authority could reasonably determine it to be the property line, he should file the RS.

If it were me, if I could not definitively rule out the fence as potentially relevant boundary evidence, I'd file an RS. If it were of a character that, with additional age, might rise to a level of significance, I'd at least show it on a CR.

If the monuments "called out in the record” are found undisturbed original monuments that are not controlled by senior rights, then they control the line (no R/S needed). I agree with Evan, the phrases "reasonable analysis" and "materially alternate" are the key.

The only time the fence would be used as an original monument is if it was called for in the deed. The fence can be used as one form of evidence in restoring lost corners.

What if the "record monuments" are from a previous RS but are not mentioned in any conveyance?

There are instances where an ancient fence may be superior evidence to a "record" monument. Granted, those instances may be few and often difficult to recognize, but they exist.

What if the descriptions are aliquot but the section was never broken down by a surveyor until well after the lines had been settled. Perhaps the settlers placed a fence intending to mark the aliquot line between them in 1880 or so, and then in 2004, a surveyor comes along and does a perfect Chapter 3 breakdown, while never considering Chapter 6? He dutifully files his RS (not showing the fence) and his irons become, in our common vernacular, "record" monuments. In this case, does the record accurately reflect the true property boundary? Did the previous surveyor actually perform a full boundary survey, or did he just go through a mathematical exercise and leave monuments that may or may not have properly marked the boundary?

Also, the fence may represent a right accrued by unwritten means. Even if the surveyor does not feel that it is his place to make definitive statements to that effect, he should recognize that some other competent authority (e.g. a court) may do so.

If there is a possibility that by reasonable analysis, such competent authority may consider the fence in such a light, then 8762(b)(3) applies, IMO.

As I stated previously, there's not enough in Gary's opening post to answer the question. It's one best answered by the surveyor initially posing the question to Gary after carefully considering the potential significance of the fence. It doesn't necessarily need to be mentioned in a conveyance to have significance. As a matter of fact, they rarely are, even when a court finds that they are controlling.

Under the scenario presented, I do not believe there have triggers that would have cause the REQUIRED filing of an RS. As others have pointed out, though, PLS §8762(a) allows the filing of an RS any time a field survey is performed.

A couple of points, if I may (and I will any way)…

One: encroachment is a legal term that requires a legal determination that is beyond the authority of the land surveyor. All that can be said is that there is an item, fence, wall, building, etc., which is on one side of the line. Until it can be determined that the person who placed the object there was not the fee title owner of the property and was not operating with the approval of the property owner, no one can say that there is an encroachment.

Two: a fence is just a fence. It CAN be evidence, with corroboration, of the location of a boundary line. It can also just be a fence erected to keep others out or something in.

Finally, to those who are arguing that the fence can ripen into ownership based on the long-held precepts of exclusion leading to ownership, I have one case cite: Blackmore v Powell (150Cal.App.4th 1593) from last May. In short…BANG!!!...150 years of judiciary thinking on exclusion leading to fee ownership set completely on its ear! According to this case, exclusion of others, even the fee owner, by means of a fence or even a locked garage do not constitute traits that necessarily ripen into ownership!

As a side note, it will; be VERY interesting to see how this decision plays out. It is no longer necessary in California to obtain a Lot Line Adjustment to build ANYTHING on your neighbor’s property. An easement is now sufficient under this appellate court ruling! (I’ll start another thread with the case available as a PDF.)

fence that ended up 15 feet west of the east 45 acres of the south east quarter of the southeast quarter of a section, or something along those lines. It was right next to the Cahuilla Indian Reservation. I surveyed the acreage bust out, set pipes, located the fence, filed the RS with the fence shown. I didn't do a good job explaining to the folks on both sides of the fence what should be done ( I was young and just barely competent to do this stuff,duh). This fence had been there forever, in fact my client's grandmother owned this land before he was born, probably since 1910 or 1920, I can't remember, anyway this fence was there a loooong time. And it was not on the west line of the east 45 acres.

I just so happened that the section was "long" north and south and the 1/16 corner was about 15 feet north of a "record" position on both sides of this quarter, quarter, or whatever it was. The "original" landowners knew that a 1/16 the corner was 1320 north of the section corner. They simply divided 45 acres by 1320 and came up with a distance to measure west from the section line. They did that and built a fence. That's what I think happened, but I got no proof except this fence that's been there for years, and like I said it wasn't on the line.

They went to court about this, I did not attend nor was I asked to. I heard from my client that the judge said that there was nothing wrong with my survey, but that he said that the fence was the line dividing the two properties and that I was to set pipes at each end of this fence line, the fence had been torn down, and I was one person who knew exactly where this thing was. And I was to charge both parties for my time in doing this. Anyway, I did that and filed a map. Didn't charge him anything though. Probably should have, but I didn't. Like I said I was young.

That's what I know about fences. There may be more, but my memory has to be jogged.

Anyway, I think you're situation is a "shall" situation.

WOW! I never thought a simple question (is there really such a thing?) could have so many iterations, each one having merit, so I called the surveyor back and got further information. He believes the fence was built on a line formed by witness monuments shown on a parcel map rather that the actual corners.

I still believe he is under no legal obligation to file a map.

In this case, I agree. I'd show it on the CR though.

Attached you'll find a letter from the board addressing fences on Corner Records. This letter was from 2004 when I was the local chapter president. Hopefully, everyone will dimension the fence to the boundary opined as required. Some surveyors tend to bridge surveys in very old subdivisions and file corner records and not show the main occupation which is subsequently removed. Of course the best available evidence of the original boundary was the ancient fence or wall that was removed.

Cindi Cristenson stated in her letter of June 4, 2004 regarding the following question: If a survey was conducted in a lot and block survey and set points in accordance with the map and found an existing fence a 1/2 foot off of the Lot Line, is a ROS Required?

The answer was no. But a Corner Record is required which shows the location of the fence. I quote her below:

"The information shown and delineated on the Corner Record would be as stated in B & P Section 8764 and 16 CCR Section 464. This would include the character of the monuments set and location of the fence in relation to the boundary, or property, lines established, or re-established, in the performance of the field survey. Since fences are considered monuments in case law and in legal principles used by surveyors to establish, or re-establish, boundary and property lines as described in books published by Curtis Brown and the other known experts on land surveying practice then they are required to be shown and delineated on the Corner Record prepared and filed to document the findings of the survey pursuant to B&P Section 8764 and 16CCR Section 464."

it may be because I had my eyes examined today and I had to have them dialated. So I guess if FENCES ARE MONUMENTS, then if my pipes don't fit the fences, then I have to show the fences on the Corner Record. Well I guess I would have to show the fences on a Record of Survey also, if one was required. And I am wondering why a RS would't be required in the case from 2004.

The fences(monuments) don't match the pipes(corners) by a half a foot. Is that a material discrepency or physical change that hasn't been shown on a previous map of record? Has the fence been shown on a previous map? Is this fence "evidence..........result in materially alternate positions of lines or points"?

It sounds to me that ALL fences shall be shown on ALL Records of Surveys and Corner Records that don't fit the corners/property lines perfect(since there is no minimum distance of encroachment necessary before a RS must be filed), at least according to the letter of June 8, 2004.

I know I am missing something. And it's because of my dialated pupils.

I am also confused....I thought a corner record was only for corners of record and monuments found or reset for which there was no material discrepancy.

"Since fences are considered monuments in case law..." That would be in SOME case law, but not as an 'across the board' interpretation and since the Blevins case of the mid 90's fences are no longer the end all, be all monuments they once were.

And what is the distance away from the corner before it doesn't have to be shown on the CR? And if that distance is far enough to be a material discrepancy, then it would have to be an R/S which was stated as not required.

The more I think about that the more confused I get.

I’m confused by this one, too, Gary. I’ve been chewing it over all evening.

In the end, I’m going to have to say that I do NOT agree with Cindi on this one. She cannot have two bites of the same apple. Either fences ARE monuments or they are not monuments.

If they are monuments, a Corner Record is NOT sufficient to show the position for the fences. They represent a material discrepancy and, under §8762 (b) (1) and (2), require the filing of a Record of Survey.

If they are NOT monuments, they are simply artifacts and do not require the filing of either a Record of Survey or a Corner Record.

In either case, a blanket statement that fences “…are considered monuments in case law and in legal principles…” is far too broad a statement to make. If this is the application of the theory, then, on every survey made wherein the parcel or portion of the parcel is bounded by a fence, documents would have to be filed. Clearly, this is NOT the intent of the statutes.

As Mitchell Williams wrote in an article in our own member’s section, sometimes a fence is just a fence. He went on to quote a letter that appeared in the same issue of “Surveying and Mapping” that contained Brown’s article “Land Surveyor's Liability to Unwritten Rights”. Williams quotes, “Fences are fences and boundaries are boundaries and the two are not necessarily the same.....”

Encroachments are something I have learned to treat as I would an angry rattlesnake. They are a sword that cuts quickly and deeply. Who says the item is encroaching?

In one case, the fence along the common line between my client and his neighbor was identical to the fences on the other three sides of the neighbor parcel and different from the fences on the three sides of my own client’s parcel. In the end, after showing the fence on the common line as an encroachment, I learned from client that his father had erected the common fence as well as the fence around the neighbor’s parcel. At one time, the same style fence surrounded both parcels. The fence surrounding the three sides of my client’s parcel had been replaced. The fence that I had assumed erected by the neighbor was not and the fence did not encroach.

Now, I merely mark the location of artifacts found near the property line. The owners can decide if there is an encroachment or not.

If the fence is to be the boundary, it cannot be an encroachment. If the fence is considered the boundary, it is on the line and does not encroach. If the fence is an encroachment, it does NOT mark the boundary nor is it an accessory to the boundary. It broaches the boundary. In either case, it is not the subject of a Corner Record. In the first case, it is an alternate location for the boundary line not shown on a record map. It requires a Record of Survey. In the later case, it is an artifact fit for a plat to be shared with your client, but is not of the caliber to trigger a Record of Survey.

I don’t think that Cindi’s response would stand up to scrutiny in court and I must strongly disagree with her response and her reasoning.

I agree with Bruce, Gary, and Ian . I don’t like Cindi’s response and frankly, this is the sort of response that seems to fuel the confusion.

Sometimes a fence is just a fence. Not all fences are monuments. An UNCALLED for fence could be used as evidence to establish an obliterated corner. Of course you would have to prove the fences origin, intention of the parties, etc in order to do this. The fact that you’re using this type of evidence to establish the corner, IMO, goes above and beyond the scope of the Corner Record and a Record of Survey is needed.

Cindi says, “The information shown and delineated on the Corner Record would be as stated in B&P Section 8764 and 16 CCR Section 464. This would include the character of the monuments set and the location of the fence in relation to the boundary, or property, lines established, or re-established, in the performance of the field survey.”

I disagree. 8764 is for Records of Survey, NOT Corner Records. Showing the location of the fence in relationship to the boundary tells me the fence has nothing to do with the establishment of the boundary.

Now, if the fence was a CALLED for monument then it should be treated like any other monument and showing it on a Corner Record or Record of Survey is mandatory.

I noticed Cindi is a PE and not an LS. Why are board engineers giving opinions on survey questions? Could you imagine if an LS gave an opinion concerning the calculation of the hydraulic grade line?

I’m sure Cindi is only trying to help but, in the process, has supported an absurd opinion.

Ben

surveyors records and having access to most of the original survey records in the area I survey in, I welcome knowing where the lines of occupation are when someone coducts a survey. Many times the best available evidence is wiped out by less than thorough surveyors. If they are required to dimension the lines of occupation, it may help me retrace the footsteps of the original surveyor.

I would rather see the profession err on the side of caution than let valuable evidence be wiped out by surveyors with a minimalists approach.

In the case of this threads original question, I would file a Corner Record and show the fence. But I would make certain that I agree with the resolve of the prior survey of record.

Does anyone have a problem with showing the location of a fence on a Corner Record? Possible unwritten rgihts may exist. I usually do show the occupation and provide the Corner Record plat to my client. It also helps the client find my monument, after the lath/stake rots away.

I discussed this with Ric at the conference and I sent him the letter when I returned. He was going to look into it?

Ben,

You summed it up pretty succinctly in your 2nd paragraph.

As to Cindi issuing the opinion, I believe that is because she is the Executive Officer, and as such, it is her role to be the "face" of the Board in all such correspondence.

If I understand the workings of BPELS correctly, although Cindi signs the opinion letter, the opinion included within it came from a surveyor. Whether or not a surveyor wrote the opinion exactly as it is in the letter, gave Cindi such a confusing explanation, or if she misinterpreted what was given to her and wrote the letter herself, I don't know.

If I could put words in the Board's mouth, I would clarify that a fence COULD be a monument under certain circumstances, and as such, accepted as the controlling element for a boundary location or not, if the nature of the fence is such that it could be considered as evidence of the line (that is, if it causes the surveyor to consider, at any point during the survey, what the fence means to the boundary), it should be shown as would a monument, accepted or rejected.

For most Surveyors, if two monuments were found in close proximity, one accepted and one rejected, there would be no question but to show both on the RS or CR. But for many surveyors, the thought of showing the relationship of a fence delineating occupation relative to the boundary line as determined (opined, if you rather) by the surveyor never enters their mind.

Similarly, many surveyors, when re-establishing a boundary per record dimensions or by proportion, and finding an established boundary fence nearby will not think of showing it on their map, much less consider it as evidence of the true boundary location.

Even when a fence is just a fence, it is often the case that one landowner or the other had thought of it as marking the line up to that time. Showing it on the map helps to demonstrate otherwise.

Evan,
I think I'm going to take your last two sentences to heart and show fences in relationship to the boundary (whether used to determine the boundary or showing that it was not used), unless someone can show me why this would be bad.

It sounds like dimensioning between the monument and the fence is good form. I would on purpose not show enough information to tie out the monument from the location of the fence; I would show the ties to the control points I’m setting.

Ben

"Does anyone have a problem with showing the location of a fence on a Corner Record?" Absolutely not. But it shouldn't be required, either.

Don't forget that the subject fence was built in error between the witness monuments shown on the subdivision map which clearly shows the correct property line.

"Does anyone have a problem with showing the location of a fence on a Corner Record?" Yes and...no.

If you are calling the fence an "...accessor(y) to a property corner...", (PLS Act §8773(c), then, no, file away with your Corner Record.

On the other hand, if you are purporting this fence to be an alternate position for a boundary line, there may be material discrepancies with the record, you will be establishing an new line and you will be memorializing evidence which "...might reult in materially alternat positions of lines or points..." Based on PLS Act §8762(b)(1), (2), (3) AND (4), you had better file a Record of Survey and leave off with the Corner Record.

I could very easily say that regarding the original question - "I found the original monuments at the corners of the lot, the distances and angles were record and measured between them. I found a fence that is 2 feet from the original lines and corners, and I am showing it on this CR. Period."

Why not? Make it easy on myself. I found the monuments, I found a fence, I filed a record(CR). It is obvious that I think that this fence is "just a fence", because I didn't do anything else with it, except show the distance from the "original corners/lines".

I guess if all this stuff was so simple "anyone" could do it. And what really gets me, sometimes, is that I am one of the folks doin it. On my RS's sometimes I show fences/walls, most of the times I don't.

Hey, Michael! Nice post.

A couple of clarifications, though.

Ric Moore is the current Staff Land Surveyor Consultant to BPELS. Howard retired after the end of his last contract with the Board.

I wholeheartedly agree with the opinion as to Scenario #2. Any survey of a line not already shown on a record map triggers an RS requirement under 8762(b)(4). I think this is the basis of the opinion for scenario #3, too.

As to scenario # 1, I would have to qualify the opinion with a statement about relative discrepancy. If the survey was of a city lot 25’ x 100’, then a .0.5’ discrepancy in on of the lines is probably significant. On the other hand, if the lot is the NE/4 of the NW/4 of Section X…, perhaps a 0.5’ “discrepancy” is not really that significant. In the former, the discrepancy if 0.5% of the depth of the lot while, in the later, the discrepancy is less than 1/10th that at 0.04% of the quarter quarter section side.

Some states have a “positional accuracy” or “positional tolerance” statute on the books. Many years ago, I asked of a Board member why California did not have such a statute. I was told that it was because we license professionals in this state, not technicians, and that it is up to the individual to determine whether the discrepancy is significant enough to be material. I know this is rather “fuzzy”, but, if you ask your self what the other surveyors in your area would think, you probably won’t go far wrong.

Cheers…

Excellent questions, Ralph!

As far as taking pot-shots at your engineer/boss, not from my deck over this issue. We speak from the same experience.

So, Ralph, who is this obviously distinguished and misnamed individual who clearly understands boundary surveying issues?

Ian