California Surveyors Forums

I am analyzing (3) different lease areas on a portion of land owned by one entity. One of the areas is leased by Company "A", and the remaining two areas are leased by Company "Z".

Company "A" began its lease agreement on September 16, 1986 to present date.

Company "Z" began its lease agreement on July 1, 1996 to present date.

One area leased by Company "Z" overlaps onto Company "A" lease area by 44.32 acres, more or less.

The question is, do I treat these lease documents like sequential conveyances, with Senior and Junior rights?

I did not find any information in Brown's Boundary Control and Legal Principles.

Once I have determine the proper procedure to resolve this overlap issue the owner of the property will have to determine how to compensate each company based on the terms of each of their lease agreements.

Fine, I'll fall victim. If the parent parcel hasn't been surveyed then a Record of Survey would be required. But, do we need to file a Record of Survey when the parent parcel is shown on a map of record and the division is a lease? I'm going to research this tonight, but instinctively, I say no.

Dave, can you assist me in my research? I read your paper, but the answer did not pop out at me.

Dave,

Other than the white paper presented, do you have an opinion that states that a Record of Survey is required specifically in the instances mentioned in the white paper?

Thanks

I agree with Ryan. If the lease parcel is shown on a map, and there are no other "triggers" from section 8762, there should be no need for a ROS. I read the white paper.

The property in question is owned by a municiple entity.

Dave, can you elaborate why this would be easier. thanks

Depends on the nature of the lease. Surface, subsurface, mineral, oil, grazing. Seems like leases could overlap as long as the uses did not conflict.

Just a thought.

There is a use conflict, as well as double rents paid on the portion of land in question.

"Title is the means whereby the OWNER of lands has the just POSSESSION of his property." (Emphasis added)

I believe that's a succinct response and answer to 1 & 2.

Easement litigation is generally due to use rather than location, e.g. Hines v. Lukes 167 Cal.App.4th 1174 (10/27/08)

The Trust Deed would grant an equitable title to the property.
Again from Black's:
"Equitable title: A right in the party to whom it belongs to have the legal title transferred to him; or the beneficial interest of person whom equity regards as the real owner, although the legal title is vested in another."

I'm not sure if 8762(b) is "differentiating" between "Property" and "land" boundaries, or equating those terms, and I'm not sure if it wouldn't be a distinction without a difference.

Property is defined and distinguished in Civil Code sections 657-658 and Land is defined in section 659.

While most of our (surveyors) experience would be with the location of easements, what I said was most "litigation" (i.e. cases going to court) are about use.

I cant get into the finer points of Ownership and Title, but I will pick up that course I bought from Roy Minnick all those years ago and peruse that, not to answer this question but because I feel I may have forgotten much of the wisdom contained therein.


Tom Propst

I won't argue with the well thought out and highly educated opinion, supported by evidence, that the public is best served by the filing of records of surveys after surveying is conducted for the purpose of establishing the location of an easement or lease.

However, I remain unconvinced as to what a court might decide with respect to legislative intent.

Had the legislature intended that surveyors file records of surveys whenever surveying is conducted to establish the location of leases and easements, this language could have been easliy included in the B&P code. Perhaps the Legislative Committee could take this up and have those triggers spelled out specifically in the code.

A famous case that many of us are aware of is "San Dieguito Partnership v. City of San Diego, 7 Cal. App. 4th 748".

After this case was decided, the lot line adjustment provisions were changed so that they would be less likely to abuse. The City maintained that the provisions were for "minor" changes,among other things, and this language was simplly not in the statute.
" '[A] court "should ascertain the intent of the Legislature so as to effectuate the purpose of the law." ' [Citations.] 'An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.' [Citations.] Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.] 'If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' [Citations.]" (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698 [170 Cal.Rptr. 817, 621 P.2d 856].â€￾

I would stress here the phrase ",the court should not ADD to or alter them to accomplish a purpose that does not appear on the face statute..."

“…the statute does not mention such things as the amount of acreage or number of parcels that may be subject to a lot line adjustment and does not contain any mention of the word "minor," it also does not carve out any special consideration or contain any provision for "environmentally sensitive" areas which the trial court mentioned twice in its statement of decision. Thus, whether particular land is "environmentally sensitive" plays no role in determining the applicability of the statute. If the trial court factored the "environmentally sensitive" aspect into its decision, it erred.â€￾

I have been told that "rights" are to be broadly construed and that regulations are to be narrowly construed.

First why so formal with the "Mr." stuff? I think the appeal court makes it point perfectly clearly in the "San Dieguito Partnership" case on the matter of how a court is to read a statute.

We agree the purpose of the act is to protect the public. If there are portions of a statute that are unclear to the average surveyor, and this lack of clarity results in harm to the public, then what should be done to remedy the problem?

Shouldn't the legislature address these problem areas specifically and to make their intent crystal clear within the black letter of the law?

The question is whether or not a court would rule that the mandtory filing provisions of the PLS act would apply to leases and easements. You make a compelling case that a court would find that indeed there is a mandatory requirement to file. I am a mere babe in the woods and have much to learn and offer only a single case that suggests, that your conclusion may not be a slam dunk.

Again, I want to stress, that in order to protect the public we ought to aim at the highest standard not the lowest. Thank you for facilitating an intelligent, educated, discussion on our conduct as a profession. I am not at odds with your aims.

I disagree.
While I appreciate your viewpoint I cannot overlook the various statutes that I know of, and others I have found in my research, which seem to contradict your positions.
The case law being so scant on this subject, I had to search the codes, which are even more authoritative anyway. Just to set the groundwork:
Civil Code
Section 22. Law is a solemn expression of the will of the supreme power of the State.
Section 22.1. The will of the supreme power is expressed:
(a) By the Constitution.
(b) By statutes.

One of the points you make early on is that 8762(b) must be read in its plain language. But when you have technical issues such as are involved there, it would be virtually impossible to write the statute without using technical jargon peculiar to the legal and surveying fields. The Legislature recognized the importance of language in 1872 with their rewrite of the laws of this state, and set the method of construing a statute in Civil Code section 13:

Section 13. Words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition. (enacted 1872)

As you can see they set the limitations and conditions under which “peculiarâ€￾ words and phrases are to be construed. There is no absolute appeal to “plain languageâ€￾.
In any event, asking what the term means would imply uncertainty of plain meaning, leading to a technical interpretation.

In post 15, you state "property lines (ownership) and boundary lines (title) are as different as corners and monuments"
I just want to point out that that's your definition, if you have a cite or authority for that please share it with us. I'm not saying that that is an incorrect interpretation, but I’m not saying it’s a correct interpretation either. In fact I suppose where you say “ownershipâ€￾ you actually mean “possessionâ€￾ because title is a means of ownership.

Blacks Law Dictionary:
"Title is the means whereby the owner of lands has the just possession of his property."

I get the distinction you're making, I'm just not sure that that is the distinction being made in 8762(b), if indeed they are making a distinction at all. I don't know, and am looking for a convincing argument.

Also in post 15 you talk about an example of title without possession. Basically that's what I was talking about when I mentioned equitable title in post 14, and gave the definition of it.

Blacks Law Dictionary (again):
"Equitable title: A right in the party to whom it belongs to have the legal title transferred to him; or the beneficial interest of person whom equity regards as the real owner, although the legal title is vested in another."

Legal possession of the property is by the holder of the legal title to the property, the holder of the equitable title has the right to possession if the legal title holder does not meet his obligations to the equitable title holder.

You say “Again, I stand on the principle title or ‘instruments of title’ are not limited to possession and/or fee title."
It seems that you would stand taller if you had a legal foundation under you. You have not provided a legal foundation as far as I can see for any of the points you present in that paragraph. You say that it is a matter of current existing law and public policy, but gave no cites to specific laws.

The trust deed is an instrument of title, but it is an instrument which deals with the equitable title to the property not the legal title. We can't ignore the fact that the trust deed is basically executed in furtherance of a loan; a loan contract, where the security is a title to the property. So long as the holder of the legal title fulfills his obligations under the deed of trust the holder of the equitable title has no rights to possession or ownership.
Generally, that’s going to be a moot point anyway, as the lines of the legal estate and the equitable estate are going to be the same. If somehow they were different (e.g. rancher gets DOT on 20 Ac of his 500 Ac ranch) and you were locating the lines as described in the DOT, you would be required to file an RS. (There are many more problems with that situation not germane to this discussion.)

An easement isn't an instrument of title as it is not ownership of the land but a burden on the land as noted in the Civil Code:

Section 801. The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements:
(list omitted)

Section 802. Section Eight Hundred and Two. The following land burdens, or servitudes upon land, may be granted and held, though not attached to land:
(list omitted)

Also, since easements are not “landâ€￾ but “land burdensâ€￾, they do not have “land boundariesâ€￾.

As to “Land Boundariesâ€￾
This unusual phrase had me scratching my head for quite a while, but if you look at the civil code sections referenced in post 14, it comes together:

Civil Code
Section 657. Property is either:
l. Real or immovable; or,
2. Personal or movable.

Section 658. Real or immovable property consists of:
l. Land;
2. That which is affixed to land;
3. That which is incidental or appurtenant to land;
4. That which is immovable by law; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.

Section 659. Land is the material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance, and includes free or occupied space for an indefinite
distance upwards as well as downwards, subject to limitations upon the use of airspace imposed, and rights in the use of airspace granted, by law.

So, as Real Property is composed of Land, I will posit that the “land boundariesâ€￾ referred to only apply to the “land elementâ€￾ of real property, not easements, not leases.

In post 16 you state:
“Read the entire opinion in context (attached hereto). The facts speak for themselves. When conducting a field survey of a deed, according to the Attorney General’s office, a record of survey is required.â€￾
The question presented to the Attorney General for his opinion was:
“If there exists no recorded map (but a recorded deed) for a particular property, and the surveyor establishes all of the corners, is a recorded map required?â€￾
Kind of a stretch to say that the response to a question about “propertyâ€￾ applies equally to easements and leases.

The second part of that paragraph in post 16 above goes:
“Now we have the question of a “deed or other instrument of title recordedâ€￾, I have put forth my perspective in a previous post. I am interested an alternate example of an 'other instrument of title'."

I would go to Civil Code Sections:

1000. Property is acquired by:
1. Occupancy;
2. Accession;
3. Transfer;
4. Will; or,
5. Succession.

1039. Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another.

1091. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.

It seems that a judicial decree in a partition or condemnation proceeding (or the like) would be one type; foreclosure procedures where the equitable title is transformed into the legal title; a will or intestate succession could be other examples of “other instruments of titleâ€￾. The vesting in the surviving Joint Tenant would be another example where an interest in title was transferred by operation of the law.

As to determining “legislative intentâ€￾ the courts are bound by the Code of Civil Procedure’s provisions:

Code of Civil Procedure:
1858. In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.

1859. In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.

Now those sections are readable in "plain language". If we apply those to sections onto themselves, I don’t see how a court could find a reference to “easementsâ€￾ in 8762, particularly as neither practitioners nor the board ever implied or implemented one. Likewise by referencing easements in 8726 its more difficult to make a case for inclusion in 8762.

( I started this prior to your last post, but more follows)

I believe we should leave the decision as to whether a Record of Survey is appropriate to the best professional judgment of the person performing the task, not make some new catch-all regulation.

I believe the vast majority of surveyors do their best day by day to serve their clients and the public with honesty and integrity, and they can be trusted to know when filing a map, while not strictly required, serves the good of the client or the general public.

I suppose that is really where we have our greatest disagreement.

Those other few bad apples wouldn’t file a map regardless.

And one more section of the civil code, for anyone who’s made it this far, particularly applicable to these posts:
Section 3537. Superfluity does not vitiate.

All the Best

Attached please find a 1998 Department of Consumer Affairs Legal Office Memorandum to Howard Bruner, who was serving as the Land Surveyor Consultant to BPELS at the time.

The question Mr. Bruner asked: Does the monumentation of an easement require the filing of a Record of Survey?

The conclusion of the DCA Legal Office: The monumentation of an easement does not require the filing of a Record of Survey.

See attachment for their analysis...

Thanks, Ryan. That's the one I was looking for...without success.

As always, 8762 (a) allows a personauthorized to practice land survey to file a Record of Survey anytime they so desire...after performing a field survey.

And if you think about it a bit, if you are going to be monumenting an easement, you most likely will need to establish some boundary lines or corners to determine POB of the easement. At that point an RS may be required.

"PS. Ryan Versteeg, I appreciate Gary Duke’s opinion, although it is no more valid than any other opinion with the noted exception it has likely causes considerable harm to the public by land surveyor’s reliance. It is a staff counsel opinion, not an AG opinion, give me $350 and I will have one of our attorneys write a contrary opinion of equal weight."

That is true and I would not rely on it to get out of filing. I agree it does cause harm to the public if used to get out of filing a map.

CEAC's guide to prepartion of records of surveys and corner records is silent on the subject of leases. At least a word search of that document, does not turn up any hits for that term. The term "easement" appears in the section relating to monument preservation, pre/post construction.

Has the board ever taken action when a surveyor failed to file a record of survey after a survey that established of an easement or lease? I am narrowly defining this to mean that there were no other triggers and or reason for the board action save the failure to file on the establishment of an easement or lease.

I didn't know that there was that many licensed surveyors in the OC, among other things.

I don't know how you can survey anything without taking a reasonable shot at determining intent which is paramount after all.

Surveyors don't open or close gaps because Surveyors don't own the land. If you declare the existence of a non-existent gap then you are declaring there are three parcels and an extra boundary where you only have two deeds with one apparent boundary between them. You are affirmatively creating something which you have no authority to create.

Dave Karoly, PLS wrote:I don't know how you can survey anything without taking a reasonable shot at determining intent which is paramount after all.

Surveyors don't open or close gaps because Surveyors don't own the land. If you declare the existence of a non-existent gap then you are declaring there are three parcels and an extra boundary where you only have two deeds with one apparent boundary between them. You are affirmatively creating something which you have no authority to create.

Not really the correct way to look at that. We do not open nor close them, correct. We do not create a gap, correct. We do bring to light those that have been created by others. Just because you only have two deeds in hand does not mean there are only two parcels. Been there, done that. about 30 years ago. Haven't found one since and I will be pleased if it never happens again.

Dave "If it wasn't intentionally created then it doesn't exist." Sorry Dave, that doesn't work. That is an oxymoron of a sentence.

It doesn't have to be intentional to exist. I know. I found one. It was real, both by deed and by physical evidence and occupancy. It was not intentional.

So if you are against cloudy skies what do you do when the sky is cloudy? "I can only state the sky is clear; if it is not clear then you need to go to Court to find out if it is cloudy.

I am not for or against gaps; I am for determining how many intentionally created parcels there are. If there are only two then there can only be one boundary.

I survey in the real world; not a fantasy land where everything is perfect and Deed descriptions never need interpretation.

Dave Wooley: I am confident you won't find case law because in order to have case law you have to have a dispute. It is unlikely a dispute would arise from an unknown and unintentional gap. The evidence will lead to the answer in any given case. Don't confuse case law with evidence.

It seems to me Surveyors often mistakenly look for particular fact scenarios in case law. This is an incorrect use of case law in my opinion. The purpose of case law is to find out what the law is; not how to handle any given fact scenario.

This is kind of a futile argument because every time you see a gap in the Deed descriptions there are two possible answers. Either the extra parcel was intentionally created (then it really isn't a gap) or it wasn't. If it wasn't intentionally created then it doesn't exist.

"If it wasn't intentionally created then it doesn't exist."

I'm aware of at least one instance to the contrary. It's in Rancho Del Paso, in Sacramento. The overview, in simplified terms:

In the '40s an owner deeded the "east 70 feet of the west 140 feet" to the occupant of the house that existed at the time, the parents of my client. I believe he meant "the east 80 feet"; call it a "scrivener's error" if you like, but "east 70 feet" is what got recorded. He then deeded "the west 60 feet of the west 140 feet" to the occupant of the other house on the parcel, leaving a 10-foot gap. I believe he then moved from the area, not realizing that he still held title to a 10-foot strip between the two parcels.

The County Assessor noticed the gap, and carried the gap parcel on the rolls until the taxes got far enough delinquent to sell to the state. The gap parcel got sold to an unrelated party, who held if for a few decades, but eventually realized that it had no value and stopped paying taxes on it. Another tax sale was arranged. My client was notified of the auction, but her lack of familiarity with parcel descriptions led her to believe it had nothing to do with her land. Her neighbor, however, saw an opportunity to expand his lot and acted on it, buying the strip. When he attempted to move his fence over 10 feet -- consuming my client's driveway and leaving only about 1.5 feet clearance between the acquired parcel and her house -- she entered the fray. Lots of lawyers, at least 3 surveyors, at least one court ruling, and a whole lot of grief has resulted in a standoff. Her neighbor owns the strip, but she has (last time I checked) kept him from moving the fence by parking cars in the driveway.

I believe the subdivider had no intention of creating a gap, but it got created and transferred at least a couple of times. It's plenty real; just ask my beleaguered client.

Footnote: I guess she's not actually my client any more. Although she signed a contract, I was never able to deliver anything of value to her, so I never billed a nickel on the job. I have about $1,700.00 in research, field work and meetings, but she's of very modest means and I saw no reason to take her money.

.

Now its popping up in two different treads,
start a new one where all the sides can be reviewed at once.
Thanks