California Surveyors Forums

I am preparing a lot line adjustment for clients who have a fence/levee issue on the east and south line of a smaller parcel within a larger parcel.

The small parcel deeds as "the west 200 feet of the north 320 feet of the east 10 acres of the NW quarter of the NE quarter of section 23" (a standard section) The sections in this area are "big" The east 10 acre line falls short of the center quarter line by 75 feet and has been documented since the 20's

In the 60's a paper map was filed showing dimensions of this small parcel.
It also shows the 75-foot gap at the west. (from the 1/4 line)

Late 60's, a Record of survey was filed (based upon the paper map), which monumented this parcel, again showing the same 75 feet.

We find those monuments and indicate the adjustment to be made, to accomodate the opposite encroachments on the EAST and SOUTH lines.

(An EVEN land swap right to the square foot)

Following submittal, the Planning department discovered yet ANOTHER Record of survey (By the same engineer) was filed [but not indexed],which extended the small parcel west to the 1/4 line and increased the size. !! There is no mention of deed instrument, document or situs of any kind on the ROS.

The Engineers at the planning dept have made a statement that the last ROS holds as intent of ownership and the "probably" was an error in title as they see that quite often. They wish for me to include the 75 feet in the description of the small parcel.

Finding NO SUCH 275'x320' deed anywhere, AND finding no monuments on said 1/4 line from the latest ROS I object to their request. They want proof of law from the subdivision map act that a ROS by itself, doesnot convey intent of title.
I know it gets a little fuzzy when people start throwing around the "Intent"
word. My clients dont want to include this west line in their scope, and certainly don't want to pay for new legals. PS, there's williamson act involvement here. No tellin why this other ROS was filed. Engineer has long passed away.

Planning is standing behind their decision leaving the burdon of proof to Me and the Owners.

Any thoughts ?

"Good" 8~}

They are asking you to prove a negative from a portion of code which does not apply.

An RS does not imply title. You could do an RS of a portion of a legal parcel and nobody in their right mind would declare that you have created a parcel or surveyed intended property lines.

It is possible that there is extrinsic evidence which may either clarify or deviate from the intent expressed in the deed, but generally, the deed is the basis for the title.

An RS is the surveyor's opinion as to where the boundaries (or other lines surveyed) are on the ground. The RS should plainly indicate what the lines on the map are intended to represent, and the documentary or other basis for their placement.

If the RS in question (if it was not indexed, why not? Was it not considered a finished map and left unfiled for a reason? In other words, is it a valid RS?) does not reference a valid deed, I would argue that it is not a valid RS. But this is a side issue, albeit one that might work to get the engineers to abandoned their misbegotten idea. The core issue is that neither you nor the landowners are bound by any RS unless it is referenced in the deed, and/or the landowners occupied to its lines and maintained those lines.

Tell them, "As logical and intelligent professionals, you are well aware that it is not possible to prove a negative, but I would be quite open to learning something new if you could show me where in the SMA, or any other portion of State law, where it is stated that an RS is an instrument of title."

Good luck.

Looking over your description of the situation, the "Engineers" at Planning have no basis for their request.

The "unindexed" RS Map may have tried to reference additional evidence to that fact, but this may have been known to only a few at that time and the intent may not have ever ripened into fact.

Have you had a chance to review the title reports for the parcel in question and the adjoining parcel for comparison with the title company? Has the title company verified their records search?

If it helps, pass on my contact info to the Engineers regarding the role of the RS Map and I would be more than happy to discuss it with them.

Ric

"The Engineers at the planning dept have made a statement that the last ROS holds as intent of ownership"

So, if you were to file a ROS showing your opinion of the boundary, does your ROS now hold as "intent of ownership" or does it take a few years for these "rights" to ripen?

If you were to file an ROS prior to this adjustment would the County Surveyor/Engineer object to your boundary solution and note such on the map?
(I realize you don't want to go through all that, but I'm curious as to what would happen)

Do you know if the Planning Dept. Engineers have consulted with the County Surveyor/Engineer on this matter?

Is the adjoiner your client as well? (If the adjoiner is not considered a client and stands to gain from a situation like this, are we obligated to disclose the County's demands to them?)

Seems like the title company would have some concerns regarding insurability of the parcels.

To answer the multitude. . .
Yes, I have attempted to explain to the planning "engineers" that a ROS does not create fee title but rather only offers tangible surface evidence of the interpretation of a legal deed document. I have also seen records of survey filed on wrongfully placed fencelines, but that is another matter.

The Staff "feels that because this old "respectable" engineer filed this map, then there must be something that the title company has overlooked.

I have both owners deeds dating back to the mid 60's, which is when the parcels were configured. [this being a chunk of a larger parcel]

The occupation west line follows the 75-foot gap line and the monuments which were set on the "almighty" engineers first ROS. There is no conflict at this line except in the minds of planning staff. Now as to them consulting with their county surveyor . . . ??? Well I was told the position is vacant ??

Holy Cow !! SHeep without a SHepard running the SHow . . . Sounds like a lot of SH's to me.

All my clients want to do is avoid moving a levee and tearing out perfectly good trees SHeeze !!

Rick,
If I can't get anywhere with these folks, (nice folks actually), I'll send them your way.

I think this economy has gotten some people to waaay over think. As Evan the Terrible puts it . . . Trying to prove a negative.



"gooey"

Back in the 1950's and '60's, prior to the 1972 revisions to the map act, the City of San Diego, and presumably other agencies allowed an ROS to serve as the instrument of title. In San Diego, these are characterized by a declaration from the City Engineer approving the subdivision shown thereon. The City Engineer signed the ROS. The way the city did it is they would approve the minor land division through a planning department review. Once approved, the city approved and signed the ROS. Title is derived from these ROS maps. I believe the city accomnplished this by adopting an ordinance or procedure permitting this process.

Hope this helps.

Hey,

you're right ! Ive seen old ROS's "create" lots. they were older maps but they do exist even here in Central Cal.

Only problem here is there is absolutely no supportive evidence showing reckognition of the west line per this later ROS. No deed, occupation nothin.

EXCEPT, the deed describing the smaller parcel does refer to that map.

it states the called acreage and exceptions then has a line "as shown on that certain ROS filed xx in book xx etc." HOWEVER, the parcel is still only supposed to be 200 feet wide NOT 275 feet ?

If I were searching for a "negative" I might start with a drafting error on the latest map, which was not caught by anyone ????
Maybe ??

Mike:

I understand that the original question was not very specific. With that rather open ended question, under the rules of logic, a single instance where an ROS has served to establish and create title means, yes, the ROS can.

The scenario you mention in San Diego did establish title…sort of. The ROS by itself did not do the job. It was the certificate approving the subdivision…a certificate not normally allowed on an ROS.

In fact, it could be said that your example actually proves that an ROS is not an instrument of title. It required the addition of the subdivision certificate before it could establish title.

I just don’t want others to misconstrue your post into thinking that ROS can be used to establish title today.

What was it Curt used to say? “Although the alternate may be shown.”

Cheers, Mike…

Dave:

Share Wheeler v San Bernardino with the agency. Ask them to have the County Counsel review the case and what the engineer is suggesting. See if you can watch while he reads or hears the request. The wash of colors across counsel’s face should be quite interesting: from pure white to a lovely shade of dark aubergine.

Cheers, Dave...

Is it possible that this "RS" they came up with was intended to reflect a LLA that was never completed?


Another thought: If an RS is an instrument of title in that county, and RSs don't go through Planning for approval, perhaps these engineers have given you an economical route to provide to your clients for creating subdivisions, performing LLAs, etc without all the red tape!

Imagine that. No PITA conditions, no pesky fees, no fire safe regs, just map it, monument it, and your done! Only that map check fee to deal with. You can be the first in your County to do this. Since these engineers have let you in on the secret, pounce on the opportunity to jump ahead of the competition!

Edit: Darth beat me to the idea.

I love it "Evan the Terrible"! Got to remember that one.

What? I'm a nice guy! It's been months since I've fed anyone to wild dogs.

In locating the parcel from the language of the deed, it is my understanding that you would first establish the NE ¼ of Section 23 (this would give you the west and north line of the parcel). This would include establishing the center of the section.

With the westerly line of the parcel established, you can establish the easterly line of the PIQ with a line parallel with and 200’ from the westerly line. The southerly line of the parcel is parallel with and 320’ from the north section line.

I don’t understand how the east 10 acres can fall “short” of the north-south quarter line. By definition, shouldn’t the east 10 acres of the NW ¼ of the NE ¼ of the section abut the north-south ¼ line? If this isn’t true, who gets the 75’ gap? Certainly it is plausible that the parcel to the west (in section 22) could read, “The NE ¼ of Section 22”.

It seems like the paper map done in the 60’s (showing the 75’ gap) is incorrect.

If you define "imply" as meaning to "suggest", then I think in many cases that's exactly what a ROS does. Especially if the ROS appears to represent a survey of an entire parcel and is labeled with a suggestive title such as "Survey of the lands of John Q. Smith". How else would you expect a reasonable person to interpret the information that is shown on an official document prepared by a licensed professional?

I've seen examples of filed ROS's that were not in agreement with record deeds and other corroborating evidence. The parties involved, including county officials and the title company had no reason to suspect that the information shown was inaccurate.

The discrepancies appeared to have been caused by a lack of care in the research and analysis of the public records ("negligence" is how the Board described it).

Of course, we are only human, and the more complicated the descriptions, the more likely it is for mistakes to occur.

"the west 200 feet of the north 320 feet of the east 10 acres of the NW quarter of the NE quarter of section 23"

Ben,

It appears to me that the small parcel lies entirely within the the NE 1/4 of the NE 1/4 of the NW 1/4 of the NE 1/4 of section 23.

In a perfect world the "east 10 acres" would measure 5 chains in width by 20 chains in length and would be equivalent to the east 1/2 of the east 1/2 of the NW 1/4 of the NE 1/4 of section 23. In the situation given us, where the section is larger than the nominal size and likely not perfectly square, there are going to be some differences. For example, the east 10 acres is probably less than 5 chains in width due to it's length likely exceeding 20 chains. If so, that fact alone would create a gap between the west line of the smaller parcel and the dividing line between the east and west halves of the NE 1/4 of the NW 1/4 of the NE 1/4 of section 23. I also believe that the gap should be of a varying width due to said lines not being parallel with each other.

Hopefully, I've provided some helpful information.

Mr. Good,

Is it the county's position that the parent 10 acre tract was intended to be an aliquot part rather than an exact acreage? That's the only reasoning that makes sense to me since the smaller parcel cannot extend beyond the bounds of the parcel it orignated from.

I assume that the later non-indexed ROS shows the west line of both the smaller parcel and the parent parcel extending westerly the 75 feet. Was the adjoining property to the west of the 10 acre tract under different ownership at the time of the conveyance of the smaller parcel? Also, I'm curious as to what the deed for that adjoining property shows.

The 10 acres is measured from its east line and the parts are indeed very long north to south. Its very common in this particular area. (most likely due to an original "long" chain)

County counsel holds its "pretend" position that all title is wrong, "perhaps" an unconsumated LLA was intended, surveyed and recorded with no deed.

Even though the assessor indicates the parcel with the 75-foot gap and also indicates the current acreage, County counsel pretends that there is still an error in conveyance. . . . in otherwords, they have 9 very strong points and one circumstantial point. . . they are going with the circumstantial.

After much deliberation, they now, in a rare display of tokenism, have concluded that I (and the owners) may include this property in the LLA and I will write new legals for the parcels so as to conclude with the exact initial request.

So I quickly agree, . . . . application in process. The final legal descriptions will be exactly the same so no harm no foul. Except for this "principle" thing ,I just cant get over.

Why have deeds at all ? Lets all do Records of survey for all properties.

I will dig up that case law . . . but maybe after this one is recorded and put to rest.
Or maybe sic "Evan the Terrible" and his dogs on them

"good"

So much for a record of survey reflecting the opinion of the LS that prepared it.

Since the county is forcing you to accept their boundary solution, do they have an LS that's willing to stamp your survey and legal's for you?

I deleted my last post. Without having all the facts at my disposal, I'm speculating way too much on this issue. Maybe the county is justified in what they are doing. Maybe they're not.

OOPS, I now see my mistake. I was treating the legal like it read the “westerly 10 acres.” I agree that the EAST 10 acres is measured from the east line and that if the section is “big” the westerly line of the EAST 10 acres would fall short of the center ¼ line.

Waddles gives a couple examples of private subdividing of the public land system starting on page 7.25. Paraphrasing Waddles:

Wood v. Mandrilla, 167 Cal. 607 is an example where the Southwest ¼ of Section 30 showed 178.98 acres per the original government survey. A subsequent survey showed the ¼ containing 180 acres. The owner (Plaintiff) conveyed, “The East one-half of the Southwest one-quarter of Section 30…” with no acreage recited. The buyer (Defendant) took possession of 90 acres. The trial court said ½ = ½ of 180 acres and the appellate court confirmed.

Another example Waddles gives:
“The west 80 acres of the SE ¼ of Section 10…” and “The east ½ of the SE ¼ of Section 10…” does NOT say the same thing, even though the plat shows the SE ¼ of Section 10 contains 160 acres.

I seem to recall there might be a few cases where the courts treated the “80 acre” description as an aliquot part description. Is counsel citing such a case?

Where the division of land is expressed in what would be nominally an aliquot equivalent (i.e. the N 1320' of the A 1320' of ..., or the N 40 acres of the E 80 acres of ...), then strong arguments can be made either way to hold the distance or area, or to construe the intent as being an aliquot division.

But the deciding factor is not going to be found in a statute, or in the bottom line of a court ruling, and certainly not on an unfiled RS. It will be found on the ground or perhaps from the landowners themselves.

If they have themselves recognized the aliquot line, and the other evidence you've found points there, then the line referred to in the deed is at the aliquot. If the line everyone has recognized is 75' away, then that is the line.

County Counsel should realize better than most that a court ruling cannot be appreciated by the bottom line alone, but it needs to be looked at as a whole to properly discern how the various circumstances of that case affected the ruling and to compare those circumstance and the legal principles at work in that case to the situation at hand.

Many of us realize that if we were going to pull cases to figure out if an old fenceline holds over another line based upon math, or even some nearby monumentation, we could find as many cases which hold a fence as we could cases which hold an otherwise invisible line, and that just looking at the bottom line of "the fence holds" vs "the fence doesn't hold", reducing the question to one of score keeping is meaningless.

While the County Counsel might have found one or more cases which may appear to be on point, I find it highly unlikely that County Counsel, or even Planning "engineers" went out to the field to evaluate the evidence on the ground.

An RS, filed or not, may show something useful to consider when trying to conclude which line is that described in the deed, but it certainly does not represent the final authority on the subject. The exception to that might be if it were a survey ordered by a court for the purpose of settling a boundary dispute.


Hey, this thread ties right into the "Practical Location" thread! The only way this boundary can be definitively located is to determine where it had been practically located by the landowners. They apparently had deed language that can be seen as ambiguous, and at least two contradictory surveys to choose from. Which did they choose to establish their boundary?

Well said Evan.

"County Counsel should realize better than most that a court ruling cannot be appreciated by the bottom line alone, but it needs to be looked at as a whole to properly discern how the various circumstances of that case affected the ruling and to compare those circumstance and the legal principles at work in that case to the situation at hand."

I love this paragraph ! Thanks Evan. The same should go for opinions written in study books like Brown, Davis and Foote, Wattles etc. All great texts and authors, but "only the apparent is shown" during publication.

Case law, while referred to, is often independent for each case to a suite the current circumstances. In this Case, the county is very wrong, made a wrong assumption, however, is very willing to do a softshoe "over ruling" of themselves and let the project "slide"

My concern with this type of thinking, goes straight back to the previous paragraph. Case law ie "policy" is often refered to.

Will this county NOW believe all cloudy looking title is simply in error and a Pretend assumption be always assumed ? Pretty dangerous thinking I must say. Is this case, the only clouds present is a record of survey depicting land position without deed support.

If my client builds a fence 20 feet over the property line, and I monument the ends of the fence and file a ROS does that mean he now owns the 20 feet ?

According to this county he does !!!! 7702, I dont think the county is justified here unless this is socialist Germany ??


Hail County Counsel 8~|

Good

Good,

It looks like you finally convinced the county of the error of their ways. I didn't say they were justified, I said (with a hint of frustration) that "without having all the facts at my disposal, I'm speculating way too much on this issue." And I stand behind that assessment.

As you probably noticed, I asked a lot of questions. Reason being is two-fold-- so that I, and perhaps others as well, might learn something valuable, and so that my opinions (for what they're worth) are as informed as possible. And, out of respect for the "quasijudicial capacity" that I am privileged to serve in, I was trying to look at the issue from both sides, with a minimum of bias.

At first, I was eagerly assimilating the information you provided in an attempt to prepare a solid defense on your behalf. Until your third post, that is, when you revealed that the deed for the smaller parcel referred to the latter non-indexed (but filed) ROS. Regardless of whether or not that ROS shows the actual intent of the conveyance, I couldn't help but think it was a pretty significant part of the puzzle. So then, my suspicious mind being what it is, I started wondering what else you might be withholding in this matter. And then once the seed of doubt was planted, I couldn't help but think that maybe the county had a "smoking gun" of some sort that they were basing their defiant stance on... It was then that I decided that perhaps I needed to spend more time minding my business and less on yours.

I'm glad you were able to prevail and I enjoy all of your interesting posts.

Keep up the good work.