8762 Question

[Mike Mueller]

While discussing Record of Survey triggers with a tech, I was asked what falls under the first trigger, and I couldn't really give a solid example.

8762 currently has 5 triggers for a RoS,
1) 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 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.
Example: Maybe a monument appearing where there should not be one? Or is that change per 8765(d) below? Possibly reliction/accretion situations? Not really sure.

2) A material discrepancy with the information contained in any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder or the county surveying department, or any map or survey record maintained by the Bureau of Land Management of the United 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.
Example: Differences in measurements from a previous map that are "big enough". Aside from debate over what is material its lemon squeezy.

(3) Evidence that, by reasonable analysis, might result in materially alternate positions of lines or points, shown on any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder or the county surveying department, or any map or survey record maintained by the Bureau of Land Management of the United States.
Example: Finding original pipes missed by a previous surveyor.

(4) The location, relocation, establishment, reestablishment, or retracement of one or more points or lines not shown on any subdivision map, official map, or record of survey, the positions of which are not ascertainable from an inspection of the subdivision map, official map, or record of survey.
Example: Making a topo map from field work of a parcel of land that was created by deed and has no map filed showing its boundaries.

(5) The points or lines set during the performance of a field survey of any parcel described in any deed or other instrument of title recorded in the county recorder’s office are not shown on any subdivision map, official map, or record of survey.
Example: Staking the boundary of land that was created by a deed and has no survey on record.

The RoS exemption in 8765(d) removes character changes in monuments from consideration.
(d) When the survey is a retracement of lines shown on a subdivision map, official map,
or a record of survey, where no material discrepancies with those records are found and
sufficient monumentation is found to establish the precise location of property corners thereon,
provided that a corner record is filed for any property corners which are set or reset or found to
be of a different character than indicated by prior records. For purposes of this subdivision, a
“material discrepancy” is limited to a material discrepancy in the position of points or lines, or in
dimensions. (bolding mine)

That trigger is present in similar language in the 1941 PLSA, copied below, so its been around for a while:
(a) Material evidence, which in whole or in part does not appear on any map or record previously recorded or filed in the office of the county recorder, county clerk, municipal or county surveying department or in the records of the Bureau of Land Management of the United States.

So bringing it back to the original question: What is a situation that would be a trigger for 8762(b)(1) that isn't covered by the other triggers?
Does anyone know the history of these changes and the stories behind the changes?

Mikey Mueller, PLS 9076
Sonoma County

[Ian Wilson]

! example:

No monuments left. Have to split curbs to establish centerlines around the block.

The curbs are not shown on the original maps. They are now material evidence you're using to re-establish the boundary.

That's the reason why splitting curbs is for a Record of Survey and not a Corner record.

[Mike Mueller]

/Puts on Devil's Advocate Hat:

But how is that not just an alternate position trigger in the sense that splitting curbs is used when other "better" solutions are not available. The surveyor has evaluated the situation and in their opinion the curbs are the best available evidence perpetuating the original monuments, and because it required evaluation and an assertion of a "next best" solution it triggers (3) and then they do a RoS that documents their reasoning and evidence.

Alternatively couldn't you argue that the curbs are really just like a reference point for the original monuments, similar to PLSS monuments being obliterated but not lost? So splitting the curb is really just updating the character of the monuments that control the position?

Along those lines, does the definition of "different character" in 8765(d) relate to existence? IE Is it ok to use a CR to update the character of the monument when you find a 1/2" Iron pipe LS 1234 vs the record 3/4" iron pipe RCE 1234 at a lot corner? If that is a yes, then what is the difference between that situation and finding a 1/2" iron pipe tagged 1234 at a lot corner that was never shown to have a monument on the original subdivision map?
/Take off Hat:

This is what I was struggling with when discussing this with my tech. All the other triggers have clear cut, easy to explain situations that don't bleed into the other triggers, at least in my mind :)

For what its worth, our general office standard is that only one document should be used as the basis for a corner record, if it takes evidence from another source, it goes into the RoS path as it likely falls into the alternate solutions trigger. So if we don't find monuments from a map, its not acceptable to use that map on a CR.

Mikey Mueller, PLS 9076
Sonoma County

P.S. Thanks for the response, it prompted another round of discussion in the office :)

PS Edited to fix the hat :)

[hellsangle]

Alternatively couldn't you argue that the curbs are really just like a reference point for the original monuments, similar to PLSS monuments being obliterated but not lost? So splitting the curb is really just updating the character of the monuments that control the position?

As Ian pointed out . . . the curbs were not shown on the original map. Besides, curbs are replaced all the time. Many ancient subdivisions had wood curbs, cobblestone curbs or no curbs at all. There is no provenance/pedigree relating the curbs to original monuments. (An attorney could make minced meat of one's leap from original mons to curbs.)

If curbs were not shown on subdivision map and tied to original monuments - then a Record of Survey of one's opinion is in order!

Crazy Phil's two cents

[CBarrett]

Material evidence or a physical change not evidenced on another map... Recently I checked a map where a house and all kinds of improvements popped up in, let's say unexpected places, and lead to the boundary dispute. All the original monuments were in places you expected them to be, but the three houses and site accessories that popped up subsequently did not match up.
Eventually someone decided to do a survey and see where the PL's really are.

It happens frequently enough in more rural or less regulated places.

[Mike Mueller]

All the original monuments were in places you expected them to be, but the three houses and site accessories that popped up subsequently did not match up.

The house and site accessories in a situation like that are not evidence of anything except lazyiness, ignorance, or malice. As they do not relate to the boundary in any way, how are they a trigger for the RoS? I would bet that in the above described example the submitting surveyor was helping a lawyer get the encroachments documented in a fashion that is useful for the lawyer, and the submitting surveyor wasn't thinking of 8762(b)(1).

Part of the justification of my thinking is that the trigger for material evidence and change is that if its not shown on maps that are only boundary related. The law says "subdivision map, official map, or record of survey" and none of these regularly shown all the site features of a property. They might show some features, but generally only those that pertain to a boundary, or a boundary dispute. This is what leads me to believe that its evidence as related to boundary information, since its only boundary maps that are referenced.

If new houses on a lot in a subdivision were a trigger for a RoS then I have been breaking the rules with every topographic map we did for a remodel...
If its that they are over the line, I still don't see how they are boundary evidence, since its already determined they they don't control the line or they couldn't be over it... encroachment is not mentioned as a trigger for a RoS.

Mikey Mueller, PLS 9076
Sonoma County

PS I don't mean to discourage the examples, rather just thinking through the ramifications of a theory.

[Ian Wilson]

Mikey,

Re read CBS post. I'll think she was pointing to the fact that you need to be careful of extrinsic evidence from maps, particularly when the original monuments are in place.


BTW, Mike Pallamary successfully argued a boundary dispute in La Jolla based on foot prints of houses when no original monuments were found.

[Mike Mueller]

Footprints of houses may be all that is left in some areas, or as best evidence of deeded lots when houses predated the boundary that was created between them. I am a firm believer in the contrary can always be shown :) However the more contrary it is, the more common sense and evidence you need on your side.

In that example I thought that since all the mons were in the right places it meant that there wasn't a boundary location issue, but rather that folks built without regard to those lines and are now having a problem with where the boundaries are located. IE nothing to trigger a "shall file RoS" but rather a "may file RoS" as a way to document something for legal purposes.

Mikey Mueller, PLS 9076
Sonoma County

[D Ryan]

Mike,

It's a good question and I'm glad you didn't just pull an answer out of left field(like I might have done), rather being an example for your co-worker that we have to parse the wording of the codes that govern us, and analyze them in order to understand the intent. Citing the 1941 Act is useful in showing an attempt at following the evolution of the codes. I was unable to find the 1941 Act on this website, but just looking at the wording from the 1980's shows that the two sections in question don't exactly match what they look like today. This part below which is also in no. (1) doesn't exist in the 1982 version for no. (3). It came a few years later.

"shown on any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder or the county surveying department, or any map or survey record maintained by the Bureau of Land Management of the United States."

If we try to take the current wording and compare them side by side without understanding they have evolved, we risk assuming they were created by the same minds at the same time under similar circumstances. In fact they may have no direct correlation to each other, but simply appear under 8762 with the appearance they have equal standing and were logically created to exist side by side.

Has this analysis brought me to more clearly understanding the intent or given me the ability to come up with a good example? Not yet. But maybe it could help prevent veering off track from the question you posed.

Did they add (3) later thinking they were clarifying (1)? If so, why didn't they just replace (1) with (3)? Since (3) didn't initially mention "as shown on the other records(paraphrased)", why did they add it later copying the wording from (1) verbatim?

I'm coming to believe that (3) encompasses everything said within (1), and (1) becomes redundant or moot. But let me sleep on it, and I could change my mind...

Relevant sections pasted here again to prevent the need for scrolling up and down:

1) 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 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.

3) Evidence that, by reasonable analysis, might result in materially alternate positions of lines or points, shown on any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder or the county surveying department, or any map or survey record maintained by the Bureau of Land Management of the United States.


Dave Ryan
Arcata

[hellsangle]

encroachment is not mentioned as a trigger for a RoS.

Survey title. Show occupation.

Does an improvement such as a house, pool, etc. not be be subject to property taxes?

I try to caution consumers that when they order a boundary survey - "be careful what you wish for . . . "

In matters of opining a boundary, always be in contract with the owner(s) . . . because a Record of Survey could affect salability, financing etc.

Very thoughtful writing, (as usual), Mr. Ryan! (I hope all is well with you.)

Have a good weekend, all.

Crazy Phil

[Ric7308]

Good question to make a surveyor think. Personally, I don't believe there are any issues with, or overlaps between, paragraphs 1 and 3. But, that's after 14+ years at the Board and having to think about it on a almost daily basis, both from a land surveyor perspective and from a legislative perspective. Someone in my role without the benefit of land surveying perspective might not look at it the same way. Likewise, if I hadn't had the benefit of working at the Board, I may also have a different perspective.

I also agree that the advent of 8765(d) has had some impact on the volume of RS maps being required pursuant to paragraph 1 since that language was inserted into statute. The language in 8765(d) was formerly in regulation prior to that. This action alleviated the need to file a new RS simply due to character of monument change for property corners provided no other event was triggered.

Additionally, notice that while 8765(d) uses the term "property corners", paragraphs 1-5 under 8762 generally uses the term "points or lines". There is a reason for that. This was not just an oversight.

One suggestion that really helped me in seeing through these paragraphs (and maybe the intent thereof) is to stop thinking "parcels" and think "property" or "boundary lines/corners". Too many times, and maybe because they are so involved in a subdivision or LLA mindset, the surveyor is focused too much on the parcel aspect (i.e., is it legal, is it buildable, is it large enough, etc.) when the underlying aspect as far as this section of law is concerned, is the location of property lines and property corners. Not parcels. While I realize that the client may be focused more on the parcel, you cannot have a parcel without the location of the lines/corners being determined first. Boundary location first, parcel considerations second.

[David Kendall]

Please explain the distinction you are making in this statement, I do not understand

Additionally, notice that while 8765(d) uses the term "property corners", paragraphs 1-5 under 8762 generally uses the term "points or lines". There is a reason for that. This was not just an oversight.

8765. A record of survey is not required of any survey:

(d) When the survey is a retracement of lines shown on a subdivision map, official map, or a record of survey, where no material discrepancies with those records are found and sufficient monumentation is found to establish the precise location of property corners thereon, provided that a corner record is filed for any property corners which are set or reset or found to be of a different character than indicated by prior records. For purposes of this subdivision, a "material discrepancy" is limited to a material discrepancy in the position of points or lines, or in dimensions.

[CBarrett]

All the original monuments were in places you expected them to be, but the three houses and site accessories that popped up subsequently did not match up.

The house and site accessories in a situation like that are not evidence of anything except lazyiness, ignorance, or malice. As they do not relate to the boundary in any way, how are they a trigger for the RoS? I would bet that in the above described example the submitting surveyor was helping a lawyer get the encroachments documented in a fashion that is useful for the lawyer, and the submitting surveyor wasn't thinking of 8762(b)(1).

Part of the justification of my thinking is that the trigger for material evidence and change is that if its not shown on maps that are only boundary related. The law says "subdivision map, official map, or record of survey" and none of these regularly shown all the site features of a property. They might show some features, but generally only those that pertain to a boundary, or a boundary dispute. This is what leads me to believe that its evidence as related to boundary information, since its only boundary maps that are referenced.

If new houses on a lot in a subdivision were a trigger for a RoS then I have been breaking the rules with every topographic map we did for a remodel...
If its that they are over the line, I still don't see how they are boundary evidence, since its already determined they they don't control the line or they couldn't be over it... encroachment is not mentioned as a trigger for a RoS.

Mikey Mueller, PLS 9076
Sonoma County

PS I don't mean to discourage the examples, rather just thinking through the ramifications of a theory.

I think I didnt explain the example well enough. Houses were straddling the PL's, as in, I maybe have title to the land my bedroom is in, but likely the kitchen. Long used driveways had no easements and crossed properties they had no business crossing. Fences and walls and garages meandering every which way but following the PL's.

There was a massive discord between boundary evidence, and long standing lines of occupation. Large three way boundary dispute. If you do everything by the book, and ignore lines of occupation, there was no reason for a dispute or the RS.

Lately, more and more when checking for different counties we are asked to pose a question on the RS if lines of occupation were reviewed during the evidence gathering and analysis.

Lines of occupation could have some effect on the title, when we discover a material discrepancy, we need to document it.

In my original example, the surveyor of record was resisting showing a house sitting across the PL. The county surveyor himself explained that house was his entire reason for the RS, and it needs to be documented. House dated back to about 1960's.

I dont have all the info lined up neatly, be cause it's 11:30 pm and I'm trying to fall asleep. It's been about a year since this one, I should find some time to poke around and see what the final outcomes were.

Part of the reason we give original monuments so much weight because they are supposed to be indicative of original land occupation. What if you are finding strong evidence of the contrary, and it may need to be adjudicated? I would think it is of public benefit for this new evidence, which may affect title to be entered in public record.

Surveyor is to be objective and equally conscientious regarding interests of both sides of a line they are surveying. Not disclosing a house straddling a PL, one is lying by omission, not alerting the 'public's of a potential material discrepancy affecting their... what are we protecting? Orderly title matters and land values.

[Ric7308]

Please explain the distinction you are making in this statement, I do not understand

Additionally, notice that while 8765(d) uses the term "property corners", paragraphs 1-5 under 8762 generally uses the term "points or lines". There is a reason for that. This was not just an oversight.

8765. A record of survey is not required of any survey:

(d) When the survey is a retracement of lines shown on a subdivision map, official map, or a record of survey, where no material discrepancies with those records are found and sufficient monumentation is found to establish the precise location of property corners thereon, provided that a corner record is filed for any property corners which are set or reset or found to be of a different character than indicated by prior records. For purposes of this subdivision, a "material discrepancy" is limited to a material discrepancy in the position of points or lines, or in dimensions.

The distinction that I've noticed is that 8765(d) only pertains to property corners which have previously been established. Surveys documented pursuant to 8762(b) are not limited to just corners.

[Chiara]

The distinction that I've noticed is that 8765(d) only pertains to property corners which have previously been established. Surveys documented pursuant to 8762(b) are not limited to just corners.

Hi Ric,

My viewpoint has been that 'points, lines and dimensions' are not the same as "monuments". Further, the position of "property corners" may not be the same as the position of "monuments", if the monuments are not original and are found in a location that doesn't fit with corroborating monumentation of a higher pedigree. In other words, monuments set during a retracement survey and later found in an unexpected position that don't fit the record and that don't lend themselves to a 'reasonably' alternate analysis of the boundary are not an RoS trigger, instead if a CR is sufficient in the surveyor's opinion, then go right ahead and submit a CR.

I'm curious what your opinion is - this actually is a scenario on a current project I'm working on wherein I was wondering what your thoughts might be. I suppose seeing this thread & your participation in it was the springboard I needed to ask.

Thanks,

Michael Chiara

[Ric7308]

Hi Ric,

My viewpoint has been that 'points, lines and dimensions' are not the same as "monuments". Further, the position of "property corners" may not be the same as the position of "monuments", if the monuments are not original and are found in a location that doesn't fit with corroborating monumentation of a higher pedigree. In other words, monuments set during a retracement survey and later found in an unexpected position that don't fit the record and that don't lend themselves to a 'reasonably' alternate analysis of the boundary are not an RoS trigger, instead if a CR is sufficient in the surveyor's opinion, then go right ahead and submit a CR.

I'm curious what your opinion is - this actually is a scenario on a current project I'm working on wherein I was wondering what your thoughts might be. I suppose seeing this thread & your participation in it was the springboard I needed to ask.

Thanks,

Michael Chiara

I believe I was following your logic at the beginning of what you wrote, but then I became lost when you said "...and that don't lend themselves to a 'reasonably' alternate analysis of the boundary are not a RoS trigger..." My first thoughts (if I'm reading this right) would be "well, what do the landowners think of those "monuments" and what they represent? Is there any evidence to suggest that the locations of those monuments been relied upon by the land owners?" Answers to those questions could easily lead to alternate positions of points or lines which if different than record would trigger the filing of a RoS. But maybe I'm just not understanding the situation. Feel free to email me the map if you think that might help.

[Chiara]

Thanks, Ric - my thought's about monuments that don't lend themselves to a reasonably alternate analysis stem from 8762(b)(3) - monuments that may have been set during a retracement survey, but for whatever reason were apparently set erroneously. In such a case, it may not be reasonable to say the monuments should be held.

I'll email a copy of my draft CR your way. Thanks for being interested.

Michael

[Mike Mueller]

First off, anything you say I assume is your opinion Ric, and I should not take it as an official statement by any organization :) I appreciate your involvement with this forum and providing your pretty unique perspective.

I also agree that the advent of 8765(d) has had some impact on the volume of RS maps being required pursuant to paragraph 1 since that language was inserted into statute. The language in 8765(d) was formerly in regulation prior to that. This action alleviated the need to file a new RS simply due to character of monument change for property corners provided no other event was triggered.

This would imply that you consider finding unrecorded monuments at a corner to be "material evidence" or "physical change" pursuant to 8762(b)(1)? If so which?

Follow up question: Does "character" as used in 8756(d) relate to the position of the corner, or the monument representing it? For example:

Situation A:
A lot was created by parcel map that never had monuments at the lot corner. No recorded document has ever been filed that shows a monument being at the lot corners. I perform a field survey and find an untagged pipe at all corners that fit perfectly (for the sake of the example) with the record location. Am I obligated to file a RoS or a CR? (my guess is you will say RoS)

Situation B:
A lot is created by parcel map and that parcel map shows rebars being at all the corners. I perform a field survey and find an untagged pipe at all corners that fit perfectly (for the sake of the example) with the record location. Am I obligated to file a RoS or a CR? (my guess is you will say CR)

I personally do not see much of a difference between those situations, since both involve a surveyor setting monuments based on a map and not filing anything for me to review. However if 8765(d) relates to the monument, then A needs a RoS and B doesn't. But if 8765(d) relates to the position then both just need a CR.

A piece of evidence on the "position" side is BR 464(e) which implies that offset monuments to the property corner are ok, which is making a distinction between the monument being set and the "property corner" that is being filed on.

Additionally, notice that while 8765(d) uses the term "property corners", paragraphs 1-5 under 8762 generally uses the term "points or lines". There is a reason for that. This was not just an oversight.

I have been thinking about this one a bit, as it conflicts with the maxim I was taught:
"Surveyors locate title boundaries, courts determine ownership of property"

Following that maxim is why I try not to assert ownership on a RoS, rather I document the existence of things in relation to a boundary and punt on who owns it since that is a complicated legal matter that is outside my license. So if a CR filed under 8765 (d) is implicitly asserting that the monuments are at property corners, are we stepping outside our license every time we file a CR? (perhaps I am over thinking it?)

Mikey Mueller, PLS 9076
Sonoma County

[David Kendall]

Situation A:
A lot was created by parcel map that never had monuments at the lot corner. No recorded document has ever been filed that shows a monument being at the lot corners. I perform a field survey and find an untagged pipe at all corners that fit perfectly (for the sake of the example) with the record location. Am I obligated to file a RoS or a CR? (my guess is you will say RoS)

If there are no monuments on the parcel map then how do you know the untagged pipes fit perfectly?

My take is that if there were enough monuments shown on the map to determine the new lines created by the PM and sufficient monumentation is found to establish the precise location of property corners thereon then it is a corner record in most cases.

If you are exercising professional judgment in the course of your boundary resolution then you are probably in the record of survey realm.

A true record data parcel map is most likely going to call for a record of survey unless the boundary was established by a prior record and everything fits

I don't interpret the monuments being originally established by the subdivision map to be a deciding factor. It is more about how the points and lines fit the other evidence