8762(b) Material Evidence & Discrepancy

[Ben Lund]

This thread is meant to clarify some issues that were brought up in the “Solving Boundary Disputesâ€￾ thread.

Susie has recently hired you to locate her boundary line, her deed reads “the westerly 104 feet of Lot 1,â€￾ Your field survey shows she has built her fence at the 100 foot mark. Your client wants you to monument her boundary line. After some surveying research and measuring you believe the fence that Susie built is just a fence. Her deed has never been surveyed before.

Is the language in the deed considered “material evidence?â€￾ In other words, because the 104 foot line does not “appear on any subdivision map, official map, or record of surveyâ€￾ make 8762(b)(1) apply? Ian, you say NO.

Ian, I'll have to differ to you regarding 8762. I know you have much more knowledge and experience than I probably ever will have. Even though I don't agree with some of what you've said, I have to think that I am in the wrong, and need to adjust my thinking.

It sounds like you take “materialâ€￾ to mean something physical. Your examples use a fence, a shed, and monuments. Regarding “material discrepancyâ€￾ you specifically exclude the situation where you find “a 1â€￾ IP tagged LS abcd when the map calls for a 1-1/4â€￾ IP tagged RCE abcde.â€￾

Do I need to replace “materialâ€￾ with “physical?â€￾ to understand 8762(b)(1) and (2) correctly?

Cheers,
Ben

[dmi]

Material and physical are words with different meanings and therefore not interchangable. Any material discrepancy will be physical in nature, but if there is a physical discrepancy, this discrepancy may not always be material.
Your example does not descibe a material discrepancy. Where the fence is in relationship to the record line makes not difference until someone tries to claim to the line of occupation, where that line is not coincident with the record title line.
My understanding of the term material discrepancy is that it is a meaningful difference that is directly related to the issue of the record boundary location. The lots on the tract map show iron pipes and tags set along 50' frontages and you find the called monuments all at 48' apart.This is a discrepancy that is important and makes a significant difference. The lots on the tract map show iron pipes and tags set along 50' frontages and you find the monuments at varing distances, say 49.97' and 50.03'. This in my opinion is NOT a material discrepancy.

[Ian Wilson]

Ben:

Look at it from the legislative point of view. There are five triggers in §8762 that force filing of a Record of Survey. The reason that there are five triggers is that each if the circumstances which require a separate trigger are separate issues. The triggers could have been limited to sub-paragraph 4, but they were not. The additional four triggers were considered significant and important enough to legislate them into existence.

The five triggers are:
1) material evidence not shown on a record map;
2) a material discrepancy between the record and the field;
3) evidence of a possible alternate location for a line;
4) establishing any point or line in the field EVEN THOUGH NO MONUMENT IS SET; and,
5) setting monuments for marking corners not already shown on a record map.

Let’s say that “Susie” has just called you and discussed the situation. You jump on line, pull down the Assessor’s Map the appropriate record maps and grab a copy of her deed. You haven’t even been to the field, although you might look at an aerial photo or check things out on Google Earth.

Immediately, you realize that there isn’t a record map showing the deed parcel. You’re being asked to perform a boundary survey. You’re going to set monuments at the corners of Susie’s parcel. Without a second’s more thought, without a visit to the field, without knowing anything about the location of the fence you see on Google Earth, you know that, because of §8762(b)(5), you’re going to have to file a Record of Survey. Game over.

The filing of an RS is a binary condition. You do or you don’t. There is no provision on §8762 that states “if two or more of the following are met, you must file an RS”. All it takes is one.

Since this thread is mostly about sub-paragraph 1, which reads:

Material evidence or physical change, which in whole or in part does not appear on any subdivision map, official map, or record of survey previously recorded or properly filed in the office of the county recorder or county surveying department, or map or survey record maintained by the Bureau of Land Management of the United States.

how do you interpret that? What does material evidence or physical change mean to you?

As far as your question about replacing “material” with “physical”, can you provide examples of material survey evidence that would not be physical?

The last sentence of sub-paragraph 2 states, “For purposes of this subdivision, a "material discrepancy" is limited to a material discrepancy in the position of points or lines, or in dimensions.”

[goodgps]

Lets not forget that the fenceline is material evidence. I assume this fenceline represents a line of occupation.

Also the deed is truely material evidence, however, as asked before, What does the neighbors deed read ? Are there any jr-sr rights involved ?

Lets assume not. This fenceline albeit an "act" of an owner becomes evidence representing that "act" and in the surveyors eyes, "evidence" of sort. The deed and the words thereon, truely are evidence, as it represents "real" property. Susies misplaced fence cannot unsurp this "evidence"

Ian is absolutely correct about filing a record of survey. One should not even leave the office thinking otherwise in this situation. (Assuming you have not found an previous record of survey for the 104 feet)

No corner record can suffice in this instance.

On the human side of these situations, It is so discouraging when clients purposly "hold" their fences in 6" to 4 feet to keep from going over the line Then want to reclaim their title later. placing us as the mediator.
Its like some goofball purposely stabbing himself then wanting the Doctor to fix it as if the wound never occured.

I wish they would hire us first. . . but then Record of surveys are expensive ??

[Gromatici]

Ben,

No one is saying that your point isn't valid: A fence 4' from the record boundary distance is a problem, and you could certainly file an RS is you wanted.

The point is that if Ian or I were to propose on this parcel the first thing we would conclude is that her parcel is not shown on any "subdivision map, official map, or record of survey previously recorded or properly filed in the office of the county recorder or county surveying department, or map or survey record maintained by the Bureau of Land Management of the United States" and that we would have to do a Record of Survey irregardless of where the fence is.

[E_Page]

Although, as Ian says, filing of the RS is binary, only 1 of the 5 triggers need be pulled, I'm in the habit of addressing each trigger that is hit in my narrative. So if (1), (2), & (5) apply, I have notes that address each, but if only (5) applies, that's the only one I address. But I'm in the minority by even having a narrative on my RSs. The law doesn't require it or even require you to explain which trigger is applicable and why.


Good,

In this scenario, it has been previously determined that the fence is a fence of convenience and not recognized by current or past landowners as marking the boundary. So, in this case it is not material to the boundary for purposes of 8762. But of course, being the competent and conscientious surveyors that we all are, we would show it on our RS with a notation as to its lack of material relevance to the boundary.

I've always been rather pleased when landowners keep their fence a few inches on their side of the line. It tells me that that likely knew where the corner monuments were and made an attempt to not disturb them. I think it unlikely that such a fence would cause them to lose any ground over time as long as it could be readily shown that the fence parallels the line and was built reasonably close to the line but off just enough to avoid disturbing the monuments.

That's in most of the reasonable world anyway. In places where people get into heated conflict over a few inches, like some of our metropolitan areas, that might be different.

But I'm right there with you on the frustration of people building there fence, wall, whatever first and then getting the survey later only when they are forced into it.

[dmi]

The problem statement does not include any evidence to support the location of the fence as being a position that is being CLAIMED by ANYONE as the boundary.People put improvements all over their property as the see fit and this is no evidence of where their boundary is or where they think their boundary is. I maintain that there is a problem only if somone wants to claim the land between the fence and the record title boundary, other than the grantee listed on the deed granting the parcel to the current owner. The problem statement includes no evidence that anyone is claiming this land other than said owner. Your are hired to stake their boundary and you do so and file a map showing a fence 4 feet away from your boundary markers.

If you want to talk about a French v Brinkman scenario, that evidence is not included in the problem statement.

I will say that one is put on notice by the fence (inquiry notice). So ask the owner about how the fence got there. When she tells you that she built the fence back from where she thought the line might be because she wants to plant an oleander screen, then you can rest easy and sleep at night after staking the wly 104 of the lot. There are OTHER ISSUES but I am just focusing on the fence for the purpose of this discussion. Standards of boundary resolutions apply.

[D Ryan]

Evan,

Take a look at 8764g. I think that's the one that requires some statement as to what provisions of 8762 are being triggered, i.e why the survey is being filed. But it also gives the option of stating it or showing it graphically. I've had many argue that showing 4 newly set monuments at the corners of a 4 sided figure enclosed with bold lines satisfies this "graphic" representation. I really can't argue with that, but I like your choice to already be doing this, and with a statement.

Dave Ryan

[dmi]

What you said in your first paragraph is just excellent. Some states require a survey narative . Some jurisdictions in CA make you state the reason for your record by citing a specific section of the PLS act. But to take this one step further to state why in your opinion that section of the act triggers the filing of this particular record of survey is in my view an example of providing a high quality first rate service, that ought to be the norm, rather than the exception.

PS Dave is correct. But the finer points are not always enforced.

[Ben Lund]

Dave Ryan,
You hit my head right on the nail (or something like that). I’m not struggling on whether to file an RS or not. I do not completely understand the different triggers. Here is a copy of what I said in the “Solving Boundary Disputes” thread:

8762(b)(1) I do not know the definition of “material evidence.” I can only presume Ian’s interpretation is correct and thus (1) does NOT apply. If “material evidence” includes the language in the deed then (1) DOES apply.

8762(b)(2) If there is a discrepancy between the “position of points or lines, or in dimensions” of the boundary solution and any records, then it looks like I file an RS. Unless I can establish that Lot 1 is exactly how it is shown on all recorded and filed surveys previous to mine and my solution matches all of them, (2) DOES apply.

8762(b)(3) I’ll be honest, this one really confuses me. Does this mean that if Lot 1 is shown differently on different surveys, then my solution is going to be different then a previous survey and thus I file a RS? Bottom line, it could be argued that (3) DOES apply.

8762(b)(4) My deed lines do not show on any previous survey, therefore (4) DOES apply.

8762(b)(5) For the reason in (4), (5) DOES apply.

Thanks!
Ben