Tulare area/county survey question, mon description?

[CBarrett]

I am looking at a map,recorded in 2016
SE corner of section 32, T17DS R26E calls for found "CTR NAIL W/ PATCH & O/S"

What does this mean, none of us here in southern california offices know.
Older maps call for a 2" IP's in these locations. So far SFN.

[Jim Frame]

I don't work in that area, but if I were to guess I'd say it means "found [center?] nail in a roadway patch with straddler offsets," as though someone dug up the IP, tied it out with the straddlers, patched the hole and set some sort of a nail at the horizontal position of the buried IP. Maybe "CTR NAIL" is a nail with a center dimple, like a mag or PK. (Unless it says "CRT nail," which might be "concrete nail.")

But I'm just guessing.

[Rob Abrahamian]

I'm guessing too but with more familiarity with the area.

The description is a little lacking in clarity, but I would assume based on local practices, that he found a nail in the center of an asphalt patch with 2-foot offsets, which were set as surface references for a previous recovery of the buried pipe. The nail sub-type may not have been specified. He likely verified with ties on file or by some other means not specified.

If you have any research or other questions in Tulare County, feel free to contact me RAbrahamian@tularecounty.ca.gov

[proud]

2016 is not that long ago (with average age of surveyors, maybe it is a very long time ago :)) contact the surveyor. Jp

[CBarrett]

I'm guessing too but with more familiarity with the area.

The description is a little lacking in clarity, but I would assume based on local practices, that he found a nail in the center of an asphalt patch with 2-foot offsets, which were set as surface references for a previous recovery of the buried pipe. The nail sub-type may not have been specified. He likely verified with ties on file or by some other means not specified.

If you have any research or other questions in Tulare County, feel free to contact me RAbrahamian@tularecounty.ca.gov

Rob, Thank You so much for the offer, I may do just that as we don't commonly practice in this area, and I want to be sure we do it right.
I am wrapping up my additional research and getting the crew ready to go back out there on Wednesday (maybe thursday). I will have questions before we go back out to get additional monumentation.

[DWoolley]

...
The description is a little lacking in clarity...

Understatement of 2023.

Few things are more important than accurate monument descriptions. Arguably, more important than measurements.

Why do land surveyor's abbreviate to the point of being nonsensical? Why does the surveyor abbreviate most anything? There is a lot of mapping real estate on an 18x26 with a .08 font. Why simply state "spike" when there are no less than five types of spikes? Why state "washer" when there are bronze/brass, aluminum and steel washers? If the tag become illegible the material becomes important. A 1" iron pipe, is that inside diameter - as steel pipe in measured - or outside diameter? How about the classic "SSM"? Standard survey monument. Which standard? There are usually several different standards. Most everything you would need to know about a land surveyor's individual practice can be determined by the quality of the monument descriptions.

Business and Professions Code 8764 (a) was written to codify the minimum standard for monument descriptions. Anything less is negligence. Technically, it is negligence per se.

DWoolley

[PLS7393]

...
The description is a little lacking in clarity...

Understatement of 2023.

Few things are more important than accurate monument descriptions. Arguably, more important than measurements.

Why do land surveyor's abbreviate to the point of being nonsensical? Why does the surveyor abbreviate most anything? There is a lot of mapping real estate on an 18x26 with a .08 font. Why simply state "spike" when there are no less than five types of spikes? Why state "washer" when there are bronze/brass, aluminum and steel washers? If the tag become illegible the material becomes important. A 1" iron pipe, is that inside diameter - as steel pipe in measured - or outside diameter? How about the classic "SSM"? Standard survey monument. Which standard? There are usually several different standards. Most everything you would need to know about a land surveyor's individual practice can be determined by the quality of the monument descriptions.

Business and Professions Code 8764 (a) was written to codify the minimum standard for monument descriptions. Anything less is negligence. Technically, it is negligence per se.

DWoolley

I was reading but didn't have my decoder pen to understand the abbreviations, and was thinking the same thing Dave. The only additional food for thought, and to be technically correct is when one calls a monument "Standard City/County Monument", that agency has to have it defined in their standards. If they don't document it through their standards process, then it technically can not be called "Standard Monument". Some cities (San Jose for example) use to set one type of street monument, but through surveying evolution, now set street monuments of a different character. Alameda County is in a similar situation, as they originally set "1/8" Pin Monument in concrete, or 2.5" diameter brass disk with nipple, and now brass disk with punch.

Now back to our regularly scheduled programming!!!

[CBarrett]

It's quite possible that the road for which I am trying to locate the ROW is owned by prescription - it is a Caltrans road, that may have originated as a county road which seems to have existed since before 1850's.

Much seems to be happening by lines of occupation in this area, at least what I can tell so far.

Still digging (field and office)

[DWoolley]

It's quite possible that the road for which I am trying to locate the ROW is owned by prescription...

If true, the court case determining a prescriptive easement will turn up in title. No case, no prescriptive rights.

DWoolley

[Jim Frame]

If true, the court case determining a prescriptive easement will turn up in title. No case, no prescriptive rights.

Unless it's never been adjudicated. The rights exist when the conditions create them; the court merely acknowledges their existence.

[DWoolley]

If true, the court case determining a prescriptive easement will turn up in title. No case, no prescriptive rights.

Unless it's never been adjudicated. The rights exist when the conditions create them; the court merely acknowledges their existence.

Prescription is a form of adverse possession with a high standard of proof, clear and convincing. Clear and convincing is second only to beyond a reasonable doubt. Unless adjudicated the rights do not exist, only evidence thereof. Every person is entitled to due process before a court - including a taking of property rights. Surveyors have no authority to reallocate property rights in an adverse condition, including estoppel, laches, acquiescence, adverse possession and/or prescription etc. Each are legal theories that must be adjudicated.

A few years back I was checking legal descriptions. The land surveyor included on the plats an annotated dirt road "access by prescription". The gall in doing so is appalling. I requested a copy of the case, none existed. I suggested the surveyor research slander of title. If a land surveyor wrote "access by prescription" on your property- reallocating your property rights - and recorded it with a plat that will show up in title you are damaged. There is nothing automatic in property rights because the elements exist.

DWoolley

[DWoolley]

Slander of title:

Person A said or wrote a false statement disparaging Person B’s title to real or personal property, which could mean that Person A did something that casts doubts about Person B’s ownership of the property;
[labeling a prescriptive right on a legal description plat]

Person A made the statement to a third person (which may include recording a lis pendens or deed in the public record);
[labeling a "prescriptive easement" on a plat connected to a legal description and recording it. California created additional laws after the 2008 financial crisis criminalizing the recording of false title information.]

Person A made this statement with express or implied malice, i.e., Person A knew the statement was false or recklessly made the statement without knowing whether or not the statement was true;
[recklessly labeled a prescriptive right on work product and denying a land owner due process]

Person A lacked a privilege to make the statement; and
[land surveyors have no authority to adjudicate adverse claims and/or to reallocate property rights connected to an adverse claim]

Person B suffered financial harm as a direct and natural consequence of Person A’s false statement.
[A loss of rights is a loss of value. How is impacting title, especially without compensation, not financial harm?]

Slander of title is something every land surveyor think about in the execution of a project. In my mind's eye, after reviewing the elements, it would be easier to determine slander of title than a prescriptive easement, as a land surveyor, do you want me to determine that for you?

DWoolley

[Jim Frame]

Unless adjudicated the rights do not exist, only evidence thereof. Every person is entitled to due process before a court.

I agree with the latter clause; I don't agree with the former. I contend that the rights exist as a matter of common law; once recognized by a court they become enforceable. One might regard them as latent rights. I agree that land surveyor lacks the authority to provide enforceable recognition.

[Warren Smith]

Good synopsis Jim. A defense against an allegation of slander of title is that the statement was not false. A careful wording acknowledging the existence of a ripened prescriptive right, rather than an authoritative statement of its ultimate consummation would not reasonably lead to reliance and damages as a consequence.
Dave is right - determining slander of title would likely be easier than determining elements of prescriptive use. Words matter and, as land surveyors, we make determinations based on evidence constantly. That is Justice Cooley's dictum about our quasi-judicial role.

[Jim Frame]

A defense against an allegation of slander of title is that the statement was not false.

Another avenue of protection from a slander of title charge is expert witness status. If you believe, by virtue of competent evidence analysis, that an unwritten right has ripened and you aren't able to get the parties to agree, wait until a suit is filed and you are retained as an expert, at which time you can assert your belief under the protections afforded to expert witnesses. You still need to stand on solid ground, but your analysis need only be reasonable, not necessarily bulletproof.

[DWoolley]

...
A careful wording acknowledging the existence of a ripened prescriptive right, rather than an authoritative statement of its ultimate consummation would not reasonably lead to reliance and damages as a consequence.
...
That is Justice Cooley's dictum about our quasi-judicial role.

Back to the original post, the expectation is to provide "careful wording" when an accurate monument description is illusive? My thought is showing the improvements relative to the property lines and stating "no record title documents exist according to...title report...". It would be wildly inappropriate for me to write "prescriptive" anywhere on the work product.

In California, the granting of a prescriptive easement is the vast minority of outcomes. I suspect it is the same in other states. I have only been involved in a handful cases involving prescriptive easements, all but one failed (even though from a surveyor's eye the legal elements were there). In my experience, the attorneys representing a plaintiff claiming the right know it to be a nearly impossible task. This is as it should be. The taking of private property rights should be no easy task.

The litigation is complex and the arguments on each side far exceed the knowledge of a land surveyor and frankly, most attorneys. The attorneys that practice in this area are highly specialized - never have they asked me for legal advice or my determination of the ultimate question. Any land surveyor that field adjudicates a prescriptive easement deserves to be sued, tarred and feathered and ultimately, beaten about the head and shoulders.

Also, are we counting on a functionally illiterate field survey crew that opened a gate that had a sign stating "access is by permission only" according to [insert civil code citation]? Do we know the owner didn't give someone a key and permission? What does a surveyor know about an easement of necessity? Marketability of title? The list could go on for days. Wait, there was five years of use, hostile, sorry Mr. Landowner, you just lost your rights based on my land surveyor's license and my third edition of Brown. Pleeease.

Are you guys messing with me? If so, you got me! Good one.

Always true, the land surveyor can remedy almost every land title issue when the parties are not adverse. In the instant example, the land surveyor can document the road location, write the legal descriptions, prepare the deed jackets and coordinate with the parties to facilitate an easement.

DWoolley

[CBarrett]

It was caltrans that said that they think they probably own the ROW by prescription when I asked for additional ROW information. I am not rendering that as an opinion, relax people.
The ROW map itself calls for "declared 60' road 11/17/1872 vol 3, p 116 of board of supervisors minutes", and county records prior to that show it as a stick figure on a letter sized paper, all 30,000 linear feet of it running between two towns (diagonally to section lines, so not following PLSS).
Caltrans ROW map (from 1960's) and my findings today, between two well documented corners (not the one i asked about) have some 30 odd feet of disagreement.

This is not a finished project, so I don't have any outcomes to discuss yet.

[Jim Frame]

There's a big difference between a prescriptive right to a road where no color of title exists, and a prescriptive location of a road that has color of title describing a different location.

I recall a Parcel Map I did about 20 years ago in which a gravel county road as constructed deviated by as much as 80 feet (though mostly much less) from the 1888 description prepared by the viewers. Most of the deviation was the result of building the road on curves rather than running only tangents per the description. The road generally ran along the low alignment between very steep hills, and would have been impractical (as well as foolish) to build otherwise. Apparently original wood-and-wire fences -- likely 100+ years old -- lined the road for the entire 4,000-ish feet that pertained to my project. The road centerline (in some areas the road ROW) formed a portion of the subdivision boundary.

I showed the as-built location of the road as the boundary and identified the road centerline. I didn't make any statements about prescription, I just presented the location as fact. I don't expect anyone to dispute the location, but I reckon I can defend it without much difficulty in the unlikely event I ever have to.

[CBarrett]

In this particular case, I will probably have to file an RS to document material discrepancies, if additional fieldwork I'm having done confirms them.

(Additional information deleted in case it came too close to disclosing the project details)

[CBarrett]

It's quite possible that the road for which I am trying to locate the ROW is owned by prescription...

If true, the court case determining a prescriptive easement will turn up in title. No case, no prescriptive rights.

DWoolley

My client's attorney and Caltrans attorney's will have to hash that out. Both are large quasi-public agencies with property management offices and land attorneys on staff. I'm not taking on that liability for them.

[DWoolley]

...
I have only been involved in a handful cases involving prescriptive easements, all but one failed (even though from a surveyor's eye the legal elements were there).
...
DWoolley

I was reflecting on one particular case I was involved with 2005-06.

Facts:

Prospective land owner is considering buying a multimillion-dollar vacant property. Almost wisely, he hires a surveyor to survey the property before buying the property. Surveyor doesn't think to verify the traveled road is within the easement. Spoiler alert, the road wasn't in the easement. The guy purchases the property to build his dream home overlooking the ocean from his sprawling hilltop property. While walking the property with the architect the neighbor comes out to meet with them. He casually mentions the traveled road is on his property and that the road easement is through the ravine to the north. To construct a road with proper drainage in the easement was about $150k+.

Off to court they go, aerial photography showing the road had been used for over 5 decades. Blah, blah, blah all of the elements were there. Clear cut case for a prescriptive easement. They lose. Now the attorneys find me, sue the surveyor, max his policy - in fairness, he had another paid claim that year. His max policy wasn't available, they offered the limit. The most interesting thing was they settled it in front of me, literally, at the conclusion of my deposition. The insurance attorney could have saved $90k by offering less money to settle (my client had a number in mind that was $90k less, but wasn't going to say no). I think she was in shock their insured was so exposed by offering his legal opinions on prescriptive rights (overstatement, added for flare). She was horrified her client didn't verify the road was in the easement.

Front row seat. A lot of lessons in that case.

1. Never send a signed contract to a client. Let them sign, sign it and then, send it back. The surveyor signed the contract and began work. The owner crossed off the record pf survey from the scope of work. The law is once you begin work you have accepted the terms of the contract. Record of survey was on the house after that.

2. Verify the traveled roads are within the easement. Especially when hired for a pre-sale due diligence survey.

3. In the mountains and canyons the traveled roads are not always in the easements. Everyone knows this, right?

4. Do not get friendly with attorney clients, having lunch and drinking their coffee. When they sue you they have a distinct advantage over you while they are having lunch with me (tongue in cheek).

Plenty more another time.

DWoolley

[DWoolley]

...and then the BPELSG took a whack at him.

Bottom line, everyone agrees, be careful when evaluating and documenting boundary evidence. Words matter, a lot.

Look at the amount of discussion over one poorly described monument. That bad monument description will be in the record forever. A surveyor in 2123, long after we're all gone, will be wondering what that description means and how it ever got through the system or even came to be in existence.

Great discussion, thank you.

DWoolley

[Jim Frame]

be careful when evaluating and documenting boundary evidence. Words matter, a lot.

No argument there.

But I have to wonder, after reading your description of the facts of the case, why the claim of a prescriptive easement failed. Did the plaintiff's attorney blow it? Are there additional elements of the matter that we haven't seen that overcame the easement claim? (It seems to me that there must have been some glaring facts that the surveyor missed or ignored, since there was a successful damage claim against him.)

Do tell!

[DWoolley]

be careful when evaluating and documenting boundary evidence. Words matter, a lot.

No argument there.

But I have to wonder, after reading your description of the facts of the case, why the claim of a prescriptive easement failed. Did the plaintiff's attorney blow it? Are there additional elements of the matter that we haven't seen that overcame the easement claim? (It seems to me that there must have been some glaring facts that the surveyor missed or ignored, since there was a successful damage claim against him.)

Do tell!

This morning I am pressed for time, but the weekend is almost here. I have a couple of cases I will provide the facts to compliment the case detailed above.

The elements are almost always there, but most of these cases rightfully fail. It is a taking of another person's property rights.

Elements of a Prescriptive Easement

In California, a user of land may establish a prescriptive easement by proving that his or her use of another’s land was: (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile.

Again, just because the elements exists does not mean the rights exists. In fact, the rights do not exist until a court has made a ruling.

The Outcome

The case detailed above was in Los Angeles County.

The second case is in Riverside County. Imagine a public right of way with two lots stacked, Lot 1 and Lot 2. They are large, 3-5 acre lots. Lot 1 fronts the public right of way. Lot 2 has an easement over the westerly 30 feet of Lot 1. However, the road has always been over the easterly 30' (roughly). The westerly 30' has boulders the size of cars, ravines, really rough country. Lot 1 owner has watched Lot 2 owner use the road for almost 20 years. Contemporary aerial photography confirms this existence of the road for over 20 years. The neighbors have a falling out. Lot 1 tells Lot 2 he has to buy the easement or quit using it. They are off to the races.

What do you think happened?

The outcome of the two cases were the same. The judge ruled "You have an easement, use it." It was of no consequence the development of the easements was a large financial burden or that a traveled road had existed for decades. In case one, the owner paid an engineer and contractor to develop the road within the easement. In case two, the Lot 2 paid Lot 1 for an easement. Of course, Lot 2 WAY overpaid when you figure the cost of going to court and losing.

There were no glaring errors by anyone involved, besides the land surveyor's negligence in failing to show the road relative to the easement when he had been hired as part of a pre-sale due diligence. I will look for the BPELSG citation to confirm the details as I recall it.

The one case that actually prevailed was largely due to the fact the judge did not like the defendant. He granted an "equitable easement" with a limited time attached. The attorney representing the defendant is one of the best in Southern California with these cases. In fact, from a land surveyor's perspective, the attorney's in all three cases were top notch in this practice area.

A claim for a prescriptive easement is unlikely to prevail.

Later, I will add one more case in Imperial County. The Artichoke King and the Table Grape Farmer.

DWoolley

[Warren Smith]

I suspect that cases which prevail are in equity. That is, a finding that - yes, the elements exist - and that the fee owner has "slept on his rights". That is the common law origin for adverse possession for fee title transfer.
Procedurally, the existence of the elements makes the right inchoate. Adjudication is the due process proceeding (including testimony from both parties) to consummate that right and, of course, recording the judgment provides constructive notice.