Practical Location

[Ben Lund]

I’ve been doing some studying lately and have come across a concept that I need help understanding. Evidence and Procedures for Boundary Location (5th Edition) Section 5-6 “Evidence of Monumentsâ€￾ in the second to the last paragraph (page 86) states:

“In a minority number of states, if soon after its formation the parties to a deed erect monuments to indicate their intent by a practical location, they are bound by it….Rephrasing, the court stated that where a monument does not exist at the time a deed is made and the parties afterward erect such monument, with intent to conform to the deed, such monument will control. In most states the mutual designation of a property line by parties to the original conveyance is considered as an unwritten agreement and is called a practical location, which often controls.â€￾

My understanding is proportioning is a last resort which means other forms of locating the corner should be exhausted, one form being the concept of practical location.

What is California’s stance on practical location?

What are the basic requirements needed to establish a corner by practical location?

Cheers!
Ben

[Gromatici]

Some one records a LLA (no reference to monuments). Later in the record, you see that a Record of Survey was performed monumenting this LLA. The LLA was all done based on record and the RS performed a boundary survey and cites the document as being retraced and used to place the monuments. You do a retracement and find some of the pipes off by a few hundredths to a tenth. Your dilemma is: The deed says 100.00' S78d34'45"W but I'm measuring 99.96' S78d34'20"W. Do I accept the pipe?

I'd say yes for a couple of reasons:

1. The courts do not look at small errors in measurements like we do. (If this is getting submitted to the CS, the same argument can be made).

2. If the sale of the land happened after the RS, then you have a much stronger case that the monument was relied upon. You could even ask the owners!

3. If the sale happened before the sale of the parcels, then you argument is weaker, but it doesn't mean the owners have not relied upon those monuments for improvements. Although a RS is not "Constructive Notice" the fact is that someone paid a Surveyor to lay out the parcel and most likely has been using them in good faith. As long as they do not vary greatly from the record, they should be accepted.

The biggest key is to ponder how accepting they will affect the title down the road. Although your measurements are not exactly per the record (and they are not listed in the words of the deeds as controlling) the actions and intentions of the parties subsequent to the recording of the deeds can be held up in court as evidence of their true location. This is generally only the case if there is some ambiguity is the description, or some very strong latent evidence. If you’re talking hundredths, it's really a non-issue, especially to owners and Judges. Calling a pipe off 0.04’ only fortifies in the mind of property owners than we charge too much money.

However, it gets stickier when there are feet involved. Was there simply an error? Is there now occupation to support the location of the monuments? Did the original owner and subsequent owners know the location of the monuments? I did a survey where the RS was 4’ different than a PM recorded earlier. I retraced the parent parcels, found the senior line and found that the PM was within 0.3’ of that location so I accepted it because it had been recorded for over 35 years. 0.3’ is relatively small compared to the real issue: 4.0’ feet blunder. The case that the PM was 0.3’ is weak since a PM is constructive notice, and small errors (yes 0.3’ is a small error) is simply not enough justification to disregard long accepted and relied upon monuments.

[btaylor]

I do not know in terms of case law, but I can tell you that is how I often resolve those types of boundaries. Many times I feel I have no reason to call off a monument that I feel is set at the time the parties had the deed first surveyed. Sometimes I think we tend to adhere much too strongly on the concept of perfect deed measurements trumping an old monument simply because that monument is not specifically called out.

[PLS7393]

Good explanation Eric, and I wish others (typically not on the forum) would read this). How many maps have we all seen where the new surveyor set his point 0.1' or 0.2' (even hundredths) away from a found record monument.

Hey, my set point is better than yours! That's what is being said by these porcupine points (multiple points). I wish more surveyors would (and could understand) what they find, instead of just surveying numbers (The corner has to be set here, thats what the calcs show).

[E_Page]

Where practical location begins to get fuzzy is when you are looking at a fence or some other indication of possession limits.

You need to find out whether that possession limiting feature was placed with the intention of marking the boundary. Monuments aren't just pipes, pins, stones, and other such that we commonly think of as "monuments".

[Gromatici]

Too many big fingers typing away! I'll fix it later. Let's just say that the deed had a Typo.

[RAM]

A few tenth's? I have accepted monuments where I had a measurement difference of feet. Sometimes many feet. What was the intent of the deed? When was the monument set? What type of survey was performed? Did the surveyor meet the standard at the time of survey? Very seldom do I set an additional monument alongside another.

[dmi]

FRENCH V BRINKMAN

I would consider just about everything else before I would consider establishment by practical location. People have a tendancy to become upset when they do not get, what roughly approximates what is in their deed.

Generally, action taken by the owner of land on one side of the line, acquiesced to by the owner on the other side of the line.

[Ben Lund]

Evan, that's exactly where I wanted to go with my question. Fences (erected monuments) built at the time of conveyance.

[goodgps]

OK,

These questions are answered during a thorough boundary survey invstigation. We as surveyors should be conversing with property owners (particularly long standing owners, who know the land)

I totally disagree with KWilson, about property owners doing poorly at determining their boundaries.
Recently an 82 year old man, pointed to an area where he thought his corner was and we found it within the +_ 6 foot circle he motioned.

I do agree with the fact that if we measure a point with first order static gps adjusted with a least square program and authorized by the Governor, the President and your Wife's best friend, it still does not superceede the olde tyme original monument set by the surveyor du joir, using the acceptable methods of the day. [in court they call it industry standards]

[help with the French please Mr. Frame]

Be careful of the text books, they are written as a guide, not an absolute.
Be also careful of all the edjumacation gotten at Fresno State. Its for mind exercise. Retracement is the determination of true intent, NOT for determing YOUR perfect position to the nearest .0001'

We also must be careful of "monuments" erroneously set by a good intending relative during a saturday BBQ. This is NOT a monument.

"Good"

[E_Page]

[Just finished typing and realized it's long - sorry]


I also disagree with kwilson. If all we do is stake the deed and then send our clients running to lawyers to work it out, then what we are telling them, loud and clear, is that as surveyors, we are not really professionals but merely technicians. Although there is several hundred years worth of law, and over 150 years worth specific to CA, we are totally incompetent to decipher it, we can only read deed descriptions. “Mr. Client, I'm going to send you to a real professional to sort this out for you.”

The reasoning that I most often hear from surveyors who support the stance of "stake what the record says the client owns and send them to a lawyer if there are possession issues" is that it is not our place to act as judge and jury.

I've got news for those of you who haven't figured it out: Wherever you put your monuments, and wherever you draw the dark line on your map, you are acting as judge and jury in the first court of (supposedly) competent jurisdiction.

Whatever you may think, perhaps that you are merely staking title lines and that it takes a judge to inform people of what they actually own, the general public thinks that we are determining lines of ownership. Most will proceed on that belief and accept whatever you have staked. Most will never appeal your decision in a court of law.

Where the problems occur is where we determine boundaries in locations that landowners do not expect them to be. My experience is that landowners are more likely to be upset when told that their lines according to a strict reading of their description are somewhere other than along a well established and long standing line of occupation. Most boundary fights start when the surveyor states as his or her final conclusion that the line is "here" when the client and his adjoiner had always assumed that it was "over there", or at least in the general vicinity of "there".

If the title lines and the occupation do not agree, investigate why that is so. If you only identify the discrepancy, or worse yet, ignore it, and try to pass the buck to an attorney, you have not served your client well. What you have done is come in, stir up trouble where it did not previously exist, and set up the circumstances where the neighbors are likely to spend several thousand, probably tens of thousands each, and several months or years in legal battle over a piece of land which is most likely worth less than the legal fees paid by either party. Plus you will have been the party responsible for allowing a situation to come about where otherwise amicable neighbors become enemies.

Overblown? Am I assigning too much responsibility to the surveyor? I don't think so considering the several avenues in which a surveyor could help to avoid the fight and all the costs and strife that goes with it.

First of all, this thread started with a question about practical location. You have found either that you cannot definitively determine, from the terms of the deed where the line is, or by the math of the deed, have determined it to be in a location other than a fence, old stone wall, edge of maintained landscaping, or whatever obvious demarcation of possession may be present.

Your duty, not your option, not something that maybe would be a good idea if you have time, YOUR DUTY, is to investigate why the landowners placed that fence, wall, whatever where they did. You may find out that it was not their intention to mark the boundary with it, or that they put it there because they thought it to be somewhere near the edge of their property. OK, no practical location.

But what if you find out that the neighbors had gotten together some time back and decided to erect the barrier along what each believed to be their common boundary? Now what do you do?

In that case, that barrier may be a valid monument and be the most valid indication of the true boundary line available. The owners have practically located their common boundary. If so, you would be remiss to not accept it as such.

If I understand kwilson correctly, and this is the practice of many surveyors, you set your monuments over "here", knowing that fence, wall, or whatever is some feet "over there", put lath by your monuments, paint them war paint orange with plenty of flagging to wave tauntingly in the breeze, and file your map, maybe showing the variance with occupation or maybe not. And when you get the call from the landowners asking why the difference, you simply tell them that the deed says it's "here" and that they need to see a lawyer to get it straightened out.

What you need to understand about this is that lawyers are not boundary experts. They are trained to be advocates, to fight for the best possible outcome for their client. They are not interested in what is technically correct (unless it supports their position), and they are not interested in what's fair. It is in their professional DNA to fight if they think they have a chance to win. And you've set it up beautifully for them to do so.

What could you have done to serve your client professionally? Most people do not want to spend tens of thousands of dollars on legal fees. Most do not want to end up hating their neighbors. (If you do get the feeling that your client is itching for such a fight, consider carefully whether you want that person as a client before beginning the job.) Most people just want to know what they OWN, no more and no less. And they firmly believe that they are paying you to provide that answer to them.

There is nothing wrong with explaining to the client what the facts are prior to completing your survey, and why the facts on the ground may be at variance with the documentary facts. You can explain how the courts have generally viewed these various facts in the past (this is knowing the law, not practicing law), and where you, as a preliminary finding, would determine the boundary to be at that time. You can and should mention that win or lose, if your client decides to fight over the issue, it will get very expensive.

You should explain the various administrative options which may be at your client’s disposal to help the landowners solve the issues without a legal fight. Depending upon what you find, if there is some room for interpretation in the deed, it may just be a matter of accepting the boundary by practical location as being the line described in the deeds, or you can clean up the ambiguities by assisting the parties to enter into a Boundary Line Agreement. If a strict reading of the deed fairly clearly puts the line somewhere other than the line of possession, you can help the parties with a Lot Line Adjustment to correct the defect or trespass. You should explain that while each of these will cost extra beyond the original cost of the survey, they are far less costly than litigating the matter and is a means by which the parties come to their own agreement as opposed to having a judge determine it for them.

Of course, your client may decide that they want to fight for one line or the other. In that case, it is your duty to determine where you believe that line will fall once fully adjudicated in a court of law. Document your work and your reasoning well.

We are licensed to know the laws sufficiently to make proper boundary determinations. That means that it is incumbent upon us to learn and know the law. The courts (appellate and higher) publish their decisions in part so that lay people (those who are not judges or lawyers) may know how to apply the law in their areas of activity or practice. If your survey goes to court, and the judge says the line is somewhere other than where you placed it, he is telling you that you did not apply the law correctly in your practice. In other words, you did not competently determine this boundary.

If it's just a matter of placing deed dimensions on the ground, any high school junior with half a grasp on geometry and trigonometry could do it. No license would be required.

There certainly are times when it is appropriate to refer a client to an attorney, times when a fight may be unavoidable or when legal documents outside of our area of expertise need to be prepared. But attorneys are not the licensed boundary experts, we are.

So, are we professionals, able to know the law as it pertains to our practice and able to apply that law competently, or are we mathemagical technicians who send our clients off to "real" professionals whenever we encounter discrepancies which cannot be adjusted out using some whiz-bang computer program?

I guess that's a choice each of us needs to make. If you're licensed, are you still operating at that "only just competent" cusp that got you over the exam cut score, afraid to look beyond the words contained in the deed document, or are you looking at and evaluating all of the relevant evidence? Are you taking time to learn what's in the law and how the courts have told us to apply it? If you find yourself referring clients to lawyers anytime a deed disagrees with a fence, do you feel a little silly doing so while still calling yourself a professional?


Ben, Good opening question and good topic. Be cautious in referring to the later editions of the Brown/Robillard/Wilson books. If you compare them to older editions, you may find that less of the principles asserted in the newer editions are supported by case cites. Those books are a good place to begin looking at a subject, but continue your study by finding relevant statute and case law here in CA. You may find that the actual principles, or rebuttable presumptions are different, or sometimes opposite of what is presented in the text books in some cases.

[E_Page]

kwilson,

I'm not sure if I'm understanding where you'r coming from or not. Can you expand on your last thought and address how you view landowner erected barriers in your practce.

I'll check back after work.

[RAM]

So what if the fence was built and nobody knew where the boundary line was supposed to be located, know 60 years later the fence builders are gone, there are no record maps. Do you hold the fence? What if the fence is off by 100 ft? What if the line is a section line? Does it make a diffence if there is, or not, federal ownership within the section or adjoining section. Most the time it is a tough sale to convince the federal Gov't they only own to the fence. But I will agree, this is a great discussion.

[Ric7308]

Even though Evan now has the record for the longest post, he still had to ask something else.

[Ben Lund]

Kwilson, thanks for the link to the article, I found it very enlightening. After posting my question I came up with some elements of practical location:

1. Deed language is doubtful, uncertain, or ambiguous (pg 190 Interpreting Land Records, Donald A. Wilson, 2006)
2. All parties participated in the construction of the monument/fence to represent the boundary line (pg 190 Wilson 2006)
3. Mutual Designation by both parties about what they believe to be the true division line (pg 368 Evidence and Procedures 5th Edition)

Great discussion!

[btaylor]

RAM your example is different. Evan (I think, as it relates to practical location) is referring to the aspect of fences being erected as a result of a survey from the deed, but there are no monuments that can be found. This is a fairly common quandary we have. The fences can be evidence of a "first" (as opposed to original) survey. Or as you point out they can be totally randomly erected, but relied upon later. This is often the task we are assigned on our work. I think your post is more about fences in general rather than a practical location argument.

Ben, as for fences erected at the time of conveyance, I would be hard pressed to ignore the fence in favor of some nice mathematics, if I felt that the fences were erected as a result of a surveyed fence from the deed. But this takes some judgment calls either way, so when it comes to this type of call, I certainly do a good amount of digging for wood remains of an old hub before having to make the call. If the fence is old and relied upon I sure like to have some good reason to call it off. Sometimes you have no reason other than a feeling it was never built in the right spot, or in a good amount of cases when fences meet in the back in a nice four way intersection and you know a builder simply assumed to go to an existing fence post when he shouldnt have, it makes it easier to make that call. Also over time, old post intersections get rotted, and over the years repair work consists of a new post sistered onto the old, or just put where it is easier to set, and the old post gets destroyed. You can find old concrete footing when this is the case with some digging around.

[RAM]

Now, Now Ric, I was being nice because I still owe his family Ice Cream from last year.

[goodgps]

KW,

It sounds like you do a pretty good job of mission planning. The threads do go off point sometimes, but often they lead to other interesting situations and anecdotes.

Many court cases have held the position that if a position of title can be found by survey, using positions of accepted monumentation, replacements of original or by reasonable industry practice, . . . .'then . . . subordinate information such as buildings, fencelines or even material that could be confused as an official survey stake, but has no recorded merit, can be removed from the boundary line equation.

So to answer RAM, a fenceline of 60 years may still be disputed if the above monumentation can be used.

This certainly does not preclude a boundary line agreement between owners.

Occaisionally there may be two possible solutions to a position.
I believe is is the prudent surveyors responsibility do discuss these solutions with his client, a public agency surveyor or other confidant. [note, it is your clients responsibility to contact his adjoining neighbor, and "their" interest should be highly considered]

A site meeting can be helpful. You can even sit in your truck with each party on their own window to discuss if necessary (i've done this)

When clients don't agree, court action may be necessary. Try to be an expert witness and not a defendant.

If I agree to give you 50 bucks (privately but un documented), then I move to brazil, is it my heirs assigns or successors responsibility to fork over the dough ?

P.S., I really hate when neighbors sue neighbors.

Allen "Good" Time

[dmi]

" Most boundary fights start when the surveyor states as his or her final conclusion that the line is "here" when the client and his adjoiner had always assumed that it was "over there", or at least in the general vicinity of "there"."

I beg to differ. It is more likely that boundary disputes begin when the owners disagree as to the location. Of the numerous cases I have read, not a one started with the phrase .... everything was fine till the surveyor showed up.

[E_Page]

Dane, even in the case you describe, at least one of the parties thought the line was "over there", while you stated it was "here".

In that case, there was a disagreement before the surveyor showed up. Did the surveyor take the time to find out why that party thought the line was "over there"? Many, perhaps most wouldn't. Instead they make their decision in a technical vacuum, making their decision based only upon documentation and math.

I've performed many boundaries for reasons other than landowners having a pre-existing disagreement. Even if hired to perform a boundary because the client wanted to know the line between his land and that of one of his adjoiners, there are several other adjoiners to the client's land and several potential opportunities to encounter the situation where deed dimensions differ significantly with lines of possession. That's where the surveyor can stir up problems that did not previously exist.

Don't get me wrong, just because there is some long standing line of possession, that doesn't automatically mean that it's superior to the line determined by terms/dimensions from the deed.

Either way, if you set the points by the deed dimensions, or if you set them by accepting the location of some old wall or fence without fully investigating that wall or fence in light of the deed and the intent and actions of the parties establishing the fence or wall, you have acted as a judge who refused to consider relevant evidence prior to issuing a ruling.

You may have never heard a landowner utter the phrase "everything was fine until the surveyor showed up", but the fact remains that many controversies would never come to light if the surveyor who does show up fully considers all of the evidence before rendering an opinion, and/or assists the neighbors in reaching a non-litigious agreement, thus quieting any controversy.

[dmi]

Evan,
Quoting you again "...the situation where deed dimensions differ significantly with lines of possession." This is a problem in and of itself, that is not of the making of the surveyor that finds this condition to exist. I do not take exception to much of what you are saying. No doubt the actions of the surveyor can make the situation worse.
I am not sure that blanket statements heaping blame on surveyors, for problems that truly are not of their making advances our cause.

[Surveyor826]

DMI wrote:
"Of the numerous cases I have read, not a one started with the phrase .... everything was fine till the surveyor showed up."

You might want read Justice Cooley's address, where he goes into some detail of the problems which surveyors can create, or the opinion stated in Brown's 5th or 6th edition, section 12.16 under "Improvements as monuments" where the court states:
"... and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be incalculable, and the visitation of the surveyor might well be set down as a great public calamity.
But no law can sanction this course. The surveyor has mistaken entirely the point to which his attention should have been directed."

You might also want to review Knerr v Mauldin and Zen Temple of America v Nelidov for the role california surveyors played in those recent cases as well.

I was recently at a Bar Continuing education course on boundaries and easements where one of the attorney presenters stated: "A boundary dispute is almost always a dispute between surveyors."
The point being that if both plaintiff's and defendant's surveyors agreed as to the boundary location there would be no basis for dispute.

Cheers.

[dmi]

Surveyor826

I have read Justice Cooley many,many,many times. I am very familiar with the ZEn Temple slander of title case and the unpuiblished Knerr case. My response was meant to be VERY limited and VERY specific to a very specific and limited comment "MOST boundary fights start..."

It was never my intention to put forth the propostion that surveyors NEVER cause problems. That is not what I said or meant. I just do not agree that MOST of the problems start with surveyors.

In fact you your cite of the Knerr case proves my point exactly. The client was not able to locate her fence, so there was a problem prior to Hughey showing up. Anyone who knows about the Box Canyon area knows it is a surveyor's graveyard.

"A boundary dispute is almost always a dispute between surveyors."
I am not willing to accept this proposition blindly and without adequate evidence. I would bet dollars to doughnuts, that the problem really started with the other side not being willing to accept a surveyor's opinion of where the line is. Because they did not accept the opinion of the first surveyor, they went and got there own surveyor and the other surveyor arrived at a different opinion because the evidence or lack thereof makes it possible in many cases for there to be more than one opinion as to the location of a particular boundary. If in fact there are competing valid principles, then neither of the surveyors has done anything wrong in expressing their opinions. The first surveyor ought to have tried to get a meeting of the minds of the landowners, but sometimes this is just not possible to do.

The Dykes case from Oregon has the elements that I am thinking.

[Surveyor826]

"I am not willing to accept this proposition blindly and without adequate evidence."

The evidence is in the record.
For each boundary dispute case you can cite in which there was no dispute between surveyors I could probably cite ten that do contain such a dispute.

Both Kerr and Zen Temple have dueling surveyors.

Its almost a requirement unless they are arguing for unwritten rights.

As far as Dykes, that absolutely proves the point that the surveyor created the situation which sent everyone to court for relief. Almost exactly what Justice Cooley was talking about over 125 years ago when he said:
"The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them."

Anyone interested in Dykes follow this link:
http://www.publications.ojd.state.or.us/A121699.htm

Anyway, enough threadjacking, I'm outta here.

[dmi]

Apparently, you missed the SIMPLE point I was trying to make. It make no sense to conclude the problem is differing surveyors, when it is most likely there was a disagreement at the heart of the matter to begin with and each side hired their own expert. This is an entirely different point and the cases you point out provide proof of the very opposite of your contention, as does the DYKES case show a prime example of competing princples, repose v state law requirement to use the current manual when the subject property was ever surveyed under federal rules.

The is quite a bit more to the iceberg, than the tip. You are free to explore the tip to your heart's content. I'll be considering the entire berg. There is something lacking in your logic...

The sky is blue
people die of lung cancer
Blue skies cause lung cancer....
Really its almost that bad....