California Surveyors Forums

I read some statements by Evan and Ian in the “More on 8771â€￾ post which have caused me to think.

Ch 5 “Other Evidenceâ€￾ of Brown’s Evidence and Procedures (5th edition) Principle 3 (pg 84) talks about uncalled for monuments. The second paragraph states:

“A deed that calls for bearing and distance but does not call for a monument directly, indirectly, or by reference and is not required by law cannot be altered by giving control to a monument found in the vicinity of the bearing and distance termination.â€￾

Brown then gives examples of monuments of questionable pedigree that were NOT held.

The question then is, When CAN you use monuments of no record to establish boundary corners?

Cheers,
Ben

Ben, there's a lot to consider in that small post.

First, the 5th edition of that tome was NOT written by Mr. Brown. There have been some statements and concepts that have crept into the work from outside sources that do not necessarily reflect the opinions of the original author.

Second, there is no cook book which can cover any but the broadest of "recipes" for boundary surveying.

As I have said, boundary surveying is a matter of finding and analyzing evidence. Math often has very little to do with it.

"No record" monuments can be relied upon whenever the other evidence suggests that they are the prefered method for establishing the true boundary.

What edition of Evidence and Procedures in not corrupted?

P.S. My original post gave the example of a block with found original CL monuments and no other lot mons called for. Do I:

A. Find the "no record" monuments that are pretty close to record dimensions and show them as held for corner
B. Disregard "no record" monuments and do a block breakdown by proration
C. Start with block breakdown by proration and accept "no record" mons that happen to fall within your tolerance

Mr. Robillard (the primary author associated with the later versions of the "Brown" books) has a penchant for presenting the general rebuttable presumptions as hard and fast rules.

In this case of uncalled for monuments, the rebuttable presumption is that they do not control the boundaries. But the contrary may be shown.

You will also find that this reference considers any monument not called for in the conveyance as not of record for the purposes of accepting or rejecting.

So, if you have an RS that purports to have marked certain corners that you have been tasked with verifying or resetting, that RS was performed by a reputable surveyor with transit and tape in the early 60s, but your shiny new RTK unit and dazzling CAD program says that his monuments fall a few hundredths to 0.5' from any given calculated corner.

You gonna call them off? Are you going to assert that in your professional opinion, they do not occupy the corners? Are you going to then go and tell your client and his neighbors that their fences are all 0.4' on the wrong side of each respective line?

Or, will you take the time to analyze these points, taking into account the methods and expected accuracies of the day, the reliance (or non-reliance) on the points by the affected landowners. Were they set in good faith and without gross error to perpetuate the points mentioned in the conveyance, and have they been recognized as such?

You asked this question at the end of the More on 8771 thread: "Is it in the surveyor's license to hold the "no record" monument because the neighbors relied on it?"

No, it is not. That would be a cookbook direction, and you won't find anything like that in the licensing laws aside from what basic notes your are to put on your drawings. It is not the purpose of the licensing laws to direct you how to apply professional judgment. That's why it is called judgment.

What is "in" your license is assurance from the state, to the best of their ability to measure it, that you have demonstrated you are capable of applying professional judgment to complex surveying problems according to a determined minimum standard.

There is also an implied duty for the professional to continue to gain knowledge in their licensed activity throughout their career. The test is one of minimal competence. If you don't progess past that, you will never be more than minimally competent. If you treat it as a hurdle to clear to "get your ticket", then you will rapidly become incompetent.

Keep digging into questions like this and you will not fall into either of those latter categories.

There are applications of surveying in which the mathematics and ability to measure with great precision are of paramount importance. Not so with boundary surveying.

As Ian said, the boundary surveyors primary functions are to thoroughly investigate the relevant evidence of boundary location, and then to apply the established law as interpreted by the courts to the facts (evidence) at hand. These functions are supported by the math. Many make the math paramount with boundaries because it's the easiest thing to do.

Evan, I appreciate your advice. In the case of the block breakdown, I’ve seen a surveyor hold a “no record” mon and the next one rejecting it. When I asked Paul about my particular example, he said to use the original centerline monuments to establish the block and prorate for the lots.

In my case, I found monuments of no record that come within a couple tenths of the proration solution, but I don’t feel comfortable accepting monuments of no record without the kind of evidence that Ian has spoke on.

Thanks,
Ben

Without knowing the particular facts of either example, it's impossible to either agree or disagree with the surveyor's decisions.

In the 1st, the surveyor may have thoroughly investigated each point and had very valid reasons for accepting one and rejecting the other. On the other hand, he may have flipped a coin, one came up heads, the other, tails.

In your case, if you have thoroughly searched out the evidence both supporting and contrary to the non-record point(s), and are not satisfied that they were set in good faith, without gross error, or it is not clear that they were set to mark the points that they are near, then you are probably right to reject them. If you are unsure, take your notes and calcs to a trusted colleague with more boundary experience and get some informed feedback.

I do that fairly often (there are a lot of non-record monuments in this area - can't reject them all without reinventing the county) and it gives me some comfort just knowing that another knowledgeable surveyor has looked it over and given me some ideas for consideration.

I have had reservations about the latter editions of Brown. But being an of low morals and generally not held in any repute,at least than can be mentioned in polite company, by the survey community in general. I decided just to keep those ideas to myself.

Lets take a look at the quote below. I think it is entirely true, but I believe the source of trouble comes from the fact that the meaning may not be fully understood.

What the statement means is that physical evidence cannot alter the WRITTEN record or evidence by itself alone. Context is very important. The author is trying to place in context how surveyors are to view various types of evidence in relation to each other. The written intentions of the parties are paramount. And the deed being the written evidence of those intention is controlling. The deed controls everything, except when it does not control. Brown gives one endless examples of rules and the many exception to those rules. What is the highest element in the order of elements to consider- it is unwritten rights.
In fact, Brown is clear that uncalled for monments ARE not controlling over the intentions of the parties expressed by the deed BUT the uncalled for monuments may represent an unwritten right . One cannot sell what they do not own.

Looking at the quote again, I want to mention that bearing and distance in a deed may not be controlling, if that call would defeat the intention of the parties.

So what is it that a surveyor does

Gather the evidence both physical and written and all other types of evidence as needed for evalution by the surveyor to arrive at a sound professional opinion. The opinion being based upon the evidence and a knowledge of applicable law may indeed result in holding no record monuments over other evidence and legal principals,where the professional has arrived at that opinion.

“A deed that calls for bearing and distance but does not call for a monument directly, indirectly, or by reference and is not required by law cannot be altered by giving control to a monument found in the vicinity of the bearing and distance termination.”

"The deed controls everything, except when it does not control."

And, paradoxically, Dane, is a perfectly logical statement that fits well in the boundary surveyor's world.

Nicely said, Dane!

I need to thank Evan for turning me on to 6-28 of the 1973 Manual. I think one of the keys of accepting monuments of no record is in the last sentence of the first paragraph after it talks about accepting monuments of unknown origin:

"However, he cannot abandon the record of the original survey in favor of an indiscriminate adoption of points not reconcilable with it.”

I obviously am lacking in my know how in regards to what to deal with monuments of unknown origin. What I take from 6-28 is that if the “no record” monument is close to your proration solution, and all affected landowners have relied on the monument, the monument may be the best remaining evidence of the position of the original corner.

Holding the “no record” monument and letting your proration solution yield seems reasonable if the monument is within error tolerances of the proration solution.

Are there other resources that speak of how to handle monuments of no record?

Any help would be much appreciated!

So in holding a “no record” monument, is that saying that, in your opinion, it is an original monument (meeting all the criteria of the definition of an original monument)?

Section 5-9 Sufficiency, Amount, and kind of Evidence to Prove Original Corner Monuments of Evidence and Procedures lists the type of evidence that can be used to prove original corner monuments:

1. the physical characteristics of the monument itself
2. probability or possibility of being disturbed or moved;
3. public an other records, maps, notes, and documents that prove historical sequence;
4. witness evidence;
5. hearsay evidence, as permitted by the rules of evidence;
6. common rapport;
7. measurements to prove proximity to record measurements; and
8. other evidence, such as witness monuments, old fences, and old lines of possession

Section 10-7 says, “A found monument without a background history of who set it and how it got there is of little vale as evidence.”

Wasn't there a case where a "no record" monument was used as a section corner, then subsequent subdivisions were created based on the assumed section corner only later did a surveyor find the original monument 20+ feet away. Can anyone direct me to that particular case?

Ben:

Keep in mind that the BLM Manual only has value when dealing with sectionalized lands, and only then when it applies. If one owner possessed the entirety of Section 6 (chosen because it is often most irregular in the township), they are perfectly within their rights to disregard the government survey and the location of the quarter corners and sell off the land in aliquot quarters or even by diagonally established quarters.

Having said that, temper your studies by reading §5-1. The purpose is not to “correct” the original survey by determining where a new or exact running of the line would locate a particular corner, but rather to determine where the corner was established in the beginning.

In other words, proration is an absolute last resort in any case where there are developed lands. We do not want to establish the point at the perfect MATHEMATICAL solution, but rather at the place where it has been considered to have been based on local evidence of all types and kinds.

As to your question regarding cases based on “re-appearing” corners, I don’t recall any references to such cases.

Remember a few things about lawsuits.

First, the only lawsuits we read about are those that are reported in the court reporters and digests. The only cases that make it to those volumes are the cases that are heard on appeal. Cases that are not appealed or that the appeal is denied do not get reported. The appellate cases are recorded so that they can create a source of decisions that have been “peer reviewed” by a higher court.

Second, it is expensive to mount a lawsuit and then carry on an appeal.

Third, the first level of courts in California, the Superior Court, often base boundary lawsuit judgment on equity rather than the principles of boundary law. Boundary law is simply a minor backwater of jurisprudence that receives little of no attention by most attorneys. Even students specializing in Real Estate Law often get exposed to boundary law during a single lecture during their entire law school career, if they are lucky! For this reason, it is common for the location of the fences and other improvements to prevail over the location of even an undisturbed, original monument. On appeal, the court will hear arguments based on survey principles and boundary law.

If I remember the paper correctly, a study of boundary cases brought in California during 1996 resulted in appeals being heard for only 2% of the cases. However, on appeal, 98% of those cases were overturned or sent back to the lower court with instructions. The conclusion of the paper was that in most cases, equity was a valid solution to the problem but that in a few, equity was a poor solution. The corollary is that if you have a case with a rather complex line of argument, your client may well need to be prepared to foot the bill for the initial lawsuit and the subsequent appeal before they have a chance at a valid judgment.

Again, there is no “cookbook” that provides perfect answers to boundary survey situations. One size does NOT fit all. Every situation is unique and must be dealt with separately.

Ed:

Unfortunately, I don't. It was on a hard drive three or four generations back. I don't even remember where I found the article. I just remember the staggering statistic and the perfect mirror image of the numbers.

BTW - Has anyone seen the article by Jeff Lucas in the July POB? Often, I find myself at odds with his comments. This time, however, not only do I agree whole-heartedly with him but it is so on point to this discussion that I found myself wondering is Ben had an pre-publication copy of Lucas' article!

Ben I will add my .02$ as well.

You are asking good internal questions:

Is the non-record monument a replacement of something even older, like an original lot corner hub?

Is the non-record monument simply bogus and set by a neighbor because he wanted his fence to look correct?

Is the non-record monument set "sloppy", and should you just "ignore" it?

I guess the main internal dialogue I use is, "how well do I feel I am walking in the footsteps of the original survey"? This depends of course mainly on if you are measuring to his monuments, or you are merely splitting improvements. You know better for your situation.

Another question to ask yourself is how well do you feel telling someone that these monuments are incorrectly set. Is there a 50 year old fence line that lines right up with it? Hard to ignore it then.

And another question to ask is if the nonrecord monument may be the result of the "first" survey of a lot. Yes of course this is not the same as "original", but you would still be hard pressed to simply ignore it because you measure better now. That old monument may better represent the accuracy of the original guy.

At any rate, it always boils down to your favorite phrase "it depends".

Be careful on the concept of one owner within a section, as the section corners also affect the adjoining sections.

RAM: the point I was making with the one owner scenario was that once the land has passed into private ownership, the jurisdiction of the BLM Manual is over. Just because the land was divided into quarts and lots does not mean that the land has to be sold that way. The owner can divide an irregular section into quarters that are equal in area.

If you're in Fresno, take a look at the section bordered by Chesnut on the west and Herndon on the north.

Anytime you survey any land, the corners of your clients parcel are also the corners of the adjoiners parcels...unless yor client abuts the great abyss.

“b”,
You took the thoughts right out of my head.

In my particular situation, at the original subdivision of the block, only centerline monuments were set. Subsequently, the block lots were subdivided, some by deed, others by parcel map. My particular lot is a deed lot that reads, “the westerly 104’ of Lot 2 excepting the southerly 150’.” The question I posed to Paul was, do I need to survey the centerline monuments because they were the only original monuments set for the block subdivision? Or can I use found monuments of no record and or monuments of record done by other surveyors that share Lot 2 boundary lines.

In this case, I think the right thing to do is to establish Lot 2 by the original monuments rather than relying on adjoining surveys. Now if the adjoining survey monuments of record are close to my solution, obviously I would not throw them out just because I feel like I can measure better. On the other hand, I would not “hold” the adjoining survey monuments without checking in with the original monuments that established Lot 2.

With that said, these are some of my thoughts pertaining to unknown origin monuments in general.

The found “no record” monument is either:

1. An original uncalled for monument
2. A replacement monument of the original
3. The first monument set by the first retracing surveyor, because there was never an original monument set
4. A monument set replacing any number of previous set monuments
5. A monument set for control (not necessarily to monument the corner)
6. A bogus monument either set by a home owner, contractor, or incompetent surveyor

If there is evidence that the “no record” monument is either of cases 1-4 above, I don’t have any problems holding it. My question is how many of the types of evidence (or what value of evidence) do you need to accept the monument of unknown origin?

Maybe some examples of “no record” monuments you all have held and the evidence used would help. I know some examples have already been given.

Thanks for the advice!

112 in Fresno yesterday, I avoid the place as much as possible. However they have great Baseball team.

Ian,
I found the example I mentioned about a surveyor finding stone and used it as a sectional monument, later a "more curious" surveyor found the correct monument. Page 8.10 of Wattles "Writing Legal Descriptions" starting with "In another instance...."

I've read this example somewhere else also, and I can't find the case or what the verdict was. Regarding the case Wattles says,

“The old question of ‘doesn’t occupation hold?” hinges on the statement long held by courts: ‘facts that a correct survey will show.’ Here would be shown the true line developed from the marked stone and the relationship of the fence line to it.”

The next paragraph is Wattles gives a situation of when two thirty to forty year old monuments could not be proved to have been set by the subdivider’s engineer nor for the plaintiff’s deed. This quote from Wattles (pg 8.11) reflects what Ian was saying:

“It again brings into focus many facts substantiated by other cases which point to the one superior fact that strict application of the deed description surpasses and is paramount against the use of any monument which does not have background, character, recognition, and acceptance in conformity with that description.”

I’m not quite there yet, but I feel I’m getting closer….

Ah Ben, this is a very different question!

The question that you seem to have posed to Paul was whether or not you could forego locating the original centerline monuments since you had these other, non-original and non-record monuments that appear to occupy the block corners. That makes a blanket statement from Mr. Cuomo as an answer much more believable.

The answer to that question is "Certainly Not!"

You must locate ALL evidence pertinent to the boundaries you are surveying. The original record centerline monuments are unquestioningly pertinent. The no-record block corners MAY be pertinent. Whether or not the block corners will now override the centerline monuments in importance in your survey is a question that you cannot answer until you have gathered all physical, documentary, and perhaps parol evidence and carefully considered it all.

Many surveyors do not carefully consider all of the evidence as a whole, determining how each bit of info affects all the others. Too many look at court cases as a numbers game.

This court case held the no-record iron, that one didn't, did, didn't, did, didn't, she loves me, loves me not, loves me... and so on. They want to only keep score on the bottom line of the question they think they are asking.

Essentially, they are looking for the cookbook or flowchart answer that doesn't exist. A boundary surveyor needs to learn to weight the facts of each case together with the other facts of each case and see how they affect each other with respect to the law.

Accept or reject, know why you are doing so beyond whether or not it is of record. That reasoning alone is insufficient.