California Surveyors Forums

It's one thing when you begin a survey and discover later on that there's a major discrepancy. But what do you do when you know in advance?

Basic facts. There appears to be no dispute about any of this:

1965: Surveyor A doesn't find S 1/4 Corner. Prorates it in--thereby creating a pie-shaped strip between the west line of the SE 1/4 and an existing dirt road (225' wide at the S 1/4 Corner). This surveyor is widely known (among local engineers, surveyor, and title people) to have done sloppy, sometimes fraudulent work, moonlighting from his county public works job.

Subsequently, owner of pie-shaped strip divides it into 3 parcels. (See attachment.)

1976: Surveyor B, from reputable, long-established engineering firm (surveying the section to the south) pulls GLO notes and follows topo calls, finding a called-for stream. Sets new 1/4 corner monument 204' east of the prorated corner.

Local title people, surveyors, engineers try to work with public works department to take some sort of action (quiet title, etc.) to solve the problem, but nothing ever gets done.

2011: Client who owns land to the west wants to subdivide, asks surveyor C (me) for a quote. I discover the above history.
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My first reaction is: get another surveyor. I don't have time for this one.

Second reaction: advise client that, should I accept this daunting task, there will be a ton of research and investigation required--way more than normal--in order for me to fully asses the situation: age and acceptance of occupational evidence, knowledge of the discrepancy of nearby owners, nature of older deeds, etc.

Major Question: how can you make a defensible, safe decision under this scenario? Accepting the 1965 line doesn't disrupt very long held occupation, but in so doing you would be ignoring the good, correct work of the 1976 surveyor.

Seems like a minefield where no sane surveyor dare wander.

1. Would you even take this job?

2. Assuming the above situation, what line would you hold?

Are the pie parcels occupied? were they occupied prior to 1976? Are the same improvements in place?

What does the title company say?

I would take the job. There are no simple surveys anymore.

Yes, there are homes & fences on the 3 lots, but I don't know when they were built, etc. That would be part of the extensive research.

You're braver than I am, my man.

not realy, just need work

I would take it no problem, just to help straighten it out.

Assuming the 1976 surveyor ran the northerly line of Section 23 per the GLO notes, held the topo call to the center of the creek (also assuming the geology through which the creek cuts does not allow it to meander like it might in a more alluvial case), I would be more inclined to question the location of the Center corner of 14. How was that set?

I recently had to survey a whole section just to gain the confidence that a ridiculous looking old weathered down post with a few strands of old barbed wire leading to it from the east was in fact the center quarter corner. All evidence pointed to this post at the end of my worn out spent survey.

I need the work too.

I would take the job, but not on a fixed fee. Hourly only due to the problems you've found just in preliminary research. Be careful with your proposal and consider phasing the job and estimating for each phase, but explain that the estimates could change depending on findings that ocur in each phase.

I like the phased T&M approach, and I like the concern over how the Center of the Section was set.

But I get hung up on what the final outcome would be. This appears to be a classic rock-and-hard-place situation.

Let's assume:

1. that houses and fences were installed after '65 and prior to '76;

2. that Surveyor A did incompetent work and that Surveyor B did good work;

3. that a new survey would reaffirm the '76 corner as being properly set.

What then? Given that the improvements are 40 years old and that a court would most likely rule in favor of not disrupting such long-standing occupation, do you just wire your tag around the '65 corner and declare it (with "judge & jury" finality) to be good, despite having been wrong from the get-go?

Or would one have to go back in time, find the heirs to the land on either side of the section line prior to the first survey, then execute Quit Claim deeds to clear things up, all prior to submitting a tentative map?

Or something else....

In all my 30+ years I've never had to deal with something like this. I just don't feel confident about the mechanics of how one would, to use the words of LS 8750, "help straighten things out."

Even if your propective client's east line is called out as the N-S centerline of section, and even if you can prove out the 1976 point as the most supportable location for the S 1/4, no title company is going to insure title against the 3 lots since created between the 1965 line and the road. They are there and they ain't going away.

So your first issue isn't necessarily to go out and find the original S 1/4 Corner and cause confusion and consternation in the neighborhood, but how to rectify title for your client's property so that it unambiguously calls out the 1965 line.

This is actually an easy one as far as your client is concerned. He thought all along that his property goes up to the west side of those 3 skinny lots fronting the road. Now you are contemplating telling him that he may really own a wedge taking in almost all of those 3 lots. Depending upon the client's temperment, that may cause him to spend money on a legal battle he is highly unlikely to win by trying to regain those lost lands.

On the other hand, without yet knowing for sure where the true location for the S 1/4 Corner is (you have more confidence in one record point over the other based upon surveyor reputation and reported methodology, but you don't know at this point), you can give your client the basic facts, that there are two surveyors' opinions currently on record and that puts a cloud on his title that is likely to stop his planned subdivision project until he gets it cleaned up. He can clean it up by issuing QCDs for any portions East of the 1965 line to the lot owners of the already developed, occupied, and highly likely to prevail in any legal fight over the land owners of those lots.

With just a little luck and a sensible outlook by your client, he says "I never thought I owned that anyway and I don't want to throw money after something I never thought was mine. Clean it up Mr. Hixon and get moving on the subdivision."

With a little less luck, he isn't quite ready to write it off, but after talking to a lawyer who is experienced and knowledgeable in boundary and title issues who you have recommended to him, and being told by the lawyer that his chances of ever regaining title to sold and developed lots is about nil, he will decide to start listening about methods to clean up the title issue.

Don't initially figure on having to fully and precisely define some arcane underlying base title location issue if all the landowners have already satisfactorily settled it in practical terms. As you have foreseen, that can get very expensive very quickly. Instead, recognize the potential problem, be able to explain it to your client in basic terms, have one or more solutions ready if all they want to do is make the written title match the physical status quo, and most of all, figure out what your client's goals are before embarking on a lot of work toward a goal the client neither needs nor wants.

Hmmm...

I'd love to take that on.

Of course, I'd do so with a good title company and Titel Officer behind me. You're going to need a lot of title work on this.

Bottowm line: the houses will probably stay; the lots will probably be recognized.

Evan,

Excellent post.

Lee, you wrote: "I just don't feel confident about the mechanics of how one would, to use the words of LS 8750, "help straighten things out.""


I suggest that's because you are looking at it as a technical survey problem of finding the original lines title was based on rather than a title issue with several potential solutions which may or may not have anything to do with the original lines.

Look at it first as a neighbor and land use issue. Written title may not (probably doesn't) match up with the occupied title, existing use, and understandings among the neighbors. The first order of business is to make the written title of your client's parcel and the use match up and ensure that the affected landowners understand where the boundaries are once that part of the project is done.

Don't even consider the technical survey problem until and unless your client clearly states that's what he is interested in. If he has any sense, he won't want you to open that can of worms. If he does, it will be problematic for all involved.

Good stuff to chew on. I love this forum.

Yes, an excellent explanation Evan.

Evan, thank you very much for the in depth response. You are correct, I've been too focused on the trees to get any good views of the forest. I will absorb the advice as I get ready for the next meeting.

From the Manual but also applies to private lands, "Protect the Bona Fide Rights"

Show the 1/4 corner and show the "established localy accepted for occupation 1/4 corner.

End run is house will stay, do not creat conflict were no conflict is due.

As a side note, most of our projects today involve more and more complex situations. "There are no easy Surveys anymore"

Woodcutter wrote:Sorry to get off subject, but just to be clear, the GLO call likely wasn't to the center of the creek.

OK. I give. Why?

Dave,

That is the principle if it becomes important to determine the true location of the 1/4 corner. I don't think that anyone said anything about accepting either monument as the 1/4 by common report though.

My understanding is that properties have long since been conveyed in reliance (mistaken or otherwise) on the 1965 monument and that the use and occupation, now long in existence, will have most likely ripened into valid title and that if the true 1/4 were found to be at the 1976 monument or even at some other location, a legal fight to reclaim any lost title to that true position would very likely be fruitless.

So then, rather than having the client pay you for an exercise which may be professionally rewarding, but of absolutely no use to the client if making a claim to some other line is impractical, then just offer to help them make written title conform to facts long established on the ground.

No need to acknowledge the 1965 monument as the 1/4, but only as a monument marking the southeast corner of the client's property. The south line would probably need similar cleanup. Hopefully any occupation along that line also closely follows monumented lines.



EDIT: I see Dave's comment was in response to Russ. He's right, Russ. It's one thing calling a monument as "purportedly marking the 1/4 corner per RS XX/YYY", and quite another to say that you accept it as the 1/4. In the first, as the surveyor making the statement, I'm saying "that RCE in 1965 said this is the 1/4. I'm not saying it is or it isn't, and I don't care because we are rendering it unimportant with the new conveyances." But by stating that you accept it, you imply that you have done enough work to have either verified it, or as Dave stated, to show that the true position cannot be otherwise positively identified. Saying "Well RCE XXXX said so, and I'll take him at his word cause I don't see anything better" without having looked for better evidence won't absolve you of having to look for that evidence. But I think you know that.

Bona Fide Rights must be established by a good faith effort to have located them according to the original corners. If a corner was established incorrectly where adequate evidence still existed to more accurately locate the corner, bona fide rights cannot accrue to the incorrect corner.

This is not a bona fide rights problem.

Yes I would take the project.

No I would not do it for a fixed price.

Start with a kitchen table meeting with the client. If the client is not comfortable with me as a professional then maybe it would be better to let them find someone else.

The more I do boundary surveying (not the same as Engineering Firm record boundary cogo) the more I find that it cannot be rushed. It's like cooking a fine cut of beef, the slower you cook it the better the final result will be.

Sometimes the final answer does not fit our cherished Land Surveyor ideals but the main goal is to find the true boundary between the two properties.