Gulala Revisited

[Jim Frame]

In the "Simultaneous Conveyance" thread we've seen a lot of spirited discussion that boils down to two positions:

1. The 1954 subdivision line holds, and
2. The 1960 subdivision line holds.

Both positions are supported by legal references and professional principles.

Although I have a definite idea of how a court *should* rule in the matter, I can see a court going either way. The disagreement among experts makes this a good scenario upon which to base a slightly different question.

Consider the facts presented in the other thread, along with the following:

A. You have been retained by the owner of a 1960 lot to establish and mark the line between his land and that of the 1954 adjoiner.
B. The properties are in high demand, and every square foot of lot is worth hundreds of dollars.
C. You begin your survey and discover the heretofore undisclosed overlap.
D. The neighbors are in dispute, and both reject a BLA as a solution.


Do you:

1. Mark what you believe to be the correct line and file a ROS.
2. Map the situation on the ground showing the 2 possible line locations, but decline to represent either one as the ownership limit.
3. Withdraw from the project because the risk/reward ratio is too high.

Any takers?

.

[VANCE]

Option 1 - Could end you up in litigation with the neighbor who "lost" their land

Option 2 -Would be the safest scenario for the surveyor (unlikely you will make your client happy since they paid you to mark/find his/hers boundaries)

Option 3 - In this economy, if the courts side with you just think of the expert witness fees. If they do not, well hello bankruptcy.

Just trying to be somewhat funny, but very good point and thanks for all your information and help. It seems that we have a split on what should hold. Talking to surveyors' around my area I got the same split decision.

What would you do?

[Jim Frame]

"What would you do?"

1 is tempting, but I've seen too many court cases that, in my opinion, went the wrong way. Since I value solvency over stubbornness -- but just barely! -- I'd try to sell my client on 2, so that he and his attorney would have some basis upon which to decide what they want to do. If he wouldn't go there, I'd have to opt for 3.

.

[7702]

I wouldn't mind revisiting Gualala. It's a beautiful place to work.

I might learn to regret it, but I would take option number 1and file the ROS. Afterall, the ROS is just my opinion, right?

[Jim Frame]

"Afterall, the ROS is just my opinion, right?"

It's just your opinion until someone else relies upon it to his detriment, at which time it acquires the value of that reliance.

Let's say you mark the line and file a ROS, and as soon as you're done your client builds a house at the minimum 10' setback from the marked line. The neighbor sues to claim what he believes to be his 17.5 feet, and wins. Your client reasonably claims that he relied upon your line as being correct -- after all, that's why he hired you -- and seeks recovery of damages from you. I don't believe the "just an opinion" defense will get you very far in court.

I suppose you could structure a *very* clear and specific contract under which your client agrees that the marked line is merely an opinion of where his limit of ownership is, but why would he ever sign such a thing? If he wanted an opinion, he'd ask his brother-in-law. He wants his ownership line marked, and that's why he's willing to hire a licensed land surveyor at considerable expense. And even if your client signed off on the "only an opinion" thing, his neighbor might not, and he can sue you, too.

Most of the time we accept the risk of offering our opinions. When I decide to hold 2 found monuments over record bearing and distance, I'm saying, "My opinion is that the monuments represent the best available evidence of the line location, and I am liable for damages should the contrary be shown." I know the risk of being wrong is small, so I don't lose sleep over it. However, when a major title problem jumps up in front of me, I'm much less likely to stick my neck out that far. I recognize the fact that courts can be ill-informed and rule accordingly, and I don't want to be steamrolled by a bum ruling.

.

[VANCE]

"I wouldn't mind revisiting Gulala. It's a beautiful place to work."

It is a nice area if you like the coastal weather.

What would I do?

Well first I need to have a PLS, but for argument's sake lets say I do.

My client's deed reads " Lot 11 as per the Map of North Gualala, filed ........)

I would hold the lot 11 of the 1954 map's monuments as my client's boundaries. and show the overlap of lot 3. My reason being is that the map created a simultaneous conveyance at the time it was filed, and would be "senior" to the North Gualala Subdivision No. 2, recorded in 1960, regardless if the original subdivider still own all of that land.

One thing that's interesting is that the maps are only 6 years apart. I would think that the same surveyor (at least I would) would recognize the area and kinda know where he had previously set his monuments or who ever he or himself sent out into the field had a bad set up point or backside.

[Ben Lund]

I would disclose and mark what I believe to be the correct line and file a ROS. I don’t have any assets so bankruptcy isn’t that bad of an option!

[Jim Frame]

I just realized that I misspelled the name of the town in the thread title. I hate it when I do that...

.

[VANCE]

A lot of people in this area both misspell and mispronounce Gualala.

[dmi]

We have an inside track on this problem, because a material discrepancy has been brought to our attention prior to our ever having set tripod leg on the ground. When we do the survey and confirm there is a problem, we will be required by law to file a record of survey. So, while just walking away is an interesting option, we will still have to file. What is of interest to me is what others would put on their maps and why, given the fact set we have to work with here.

I am not sure what I would put on the map, but there will be lots of notes....

[E_Page]

Funny, Ben!

OK, Vance, your client is the owner of Lot 3 of the 1960 subdivision, his deed reads "Lot 3 as shown on the map...", you find all the monuments for Lot 3 and the other nearby monuments per the 1960 subdivision.

Do you stake his lot 17.5' short based upon subdivision seniority, or do you mark his lines at the full size according to the map and per the monuments you found in the field as called on that map, doing so based upon either that his deed calls for it or upon one of the principles stated in the other thread?

Remember, the guy your dealing directly with is the one now owning the nominally junior lot.

[Peter Ehlert]

these hypothetical problems are a lot of fun... all you need to do is introduce another "fact" to sway the outcome!

seriously, we do not really know enough here to make a decision either way... even to know if the line has been crossed on the discovery of a material discrepancy.

Vance (whoever he is) tells me that this is a project that a friend at another firm is working on... so something is probably missing in the fact set provided since he is not involved first hand.

This is an excellent discussion of many issues we all see on a regular basis... and the biggest issue I see is our impulsive need to "fix" things; maybe we will discover that there is nothing broken here!
Lets not all jump off and profess solutions without all the facts. If the client is not willing to pay for the research there is no reason why I would not walk away... unless?

[dmi]

I think I know what most surveyors are going to do. They will get the tract map, maybe a copy of the current vesting deed and they will go stake lot 3 of the 1960 subdivision. They will not make an attempt to resolve the line between the tracts, unless they find evidence that requires further action.

This is why I only survey in the middle of subdivisions and never take jobs that are on the exterior of a subdivision boundary....too many problems, just kidding.

The facts on the ground affect how the rules are applied to this or any case. Absent an agreement between parties, I will put the line where it is most likely to be supported by the court.

[VANCE]

Now based on what I have read in surveying books, seminars, talking with lawyers, ect.., (keep in mind not real life situation like this) I would stake Lot 3 line's 17.5 feet short (per junior map in my opinion) and advise the client to seek legal advise if he/she contested the overlap.

I know it sound well and dandy typing it here, but again I have never had to defend a surveying decision (not a PLS, but hopefully someday) in court. When and hopefully never if that happens, I would probably have a different point of view.

[VANCE]

Peter,

You are right, there are many factors that I have not brought up, but is does not effect the overall question. Who would have legal rights to the overlap?

Another question that I battle with people in my office about (I'll formally ask this later) is wiether a dominate Parcel is allowed to construct improvements, ie., curb paving, ect., on a servient's parcel?

[7702]

There was a lot of posting going on while I was typing this.

Jim, I'm pretty much in agreement with everything you said (as usual). You present many words of wisdom on your posts and lots of sound advice. I just want to say a few words to clarify my position.

"Afterall, the ROS is just my opinion, right?"

I guess it wasn't obvious, but that comment was said with a fair amount of sarcasm. I do realize how important our boundary solutions are. In fact, I consider all my boundary work to be a "boundary establishment", whether a ROS is required or not. I know my clients wouldn't understand the difference and the liability I incur is likely the same.

After checking on the limits of my errors and omissions policy, I went with option number 1 because:
1) I'm not in a position to be too choosey right now.
2) A boundary line agreement was not presented as an option.
3) It seems like all the surveys that I get involved with are high risk, low reward, at least from a financial standpoint anyway. My fee would be adjusted accordingly to reflect the level of risk involved.
4.) Because of the importance of filing a ROS to document the discrepancy.
5.) A sound principle exists in that the original subdivider owned all the property at the time the lot was conveyed to my client. This may not mean much in court, but the board might agree with it.

Of course, not all the facts are known on this situation, so it's still a bit hypothetical at best. There's no telling what a thorough records search and diligent field work might reveal. And I tend to do quite a bit of research prior to committing to a project.

In order to try and minimize my liability, I would be sure to note the possibility of an alternate solution on the map, and I would fully disclose the issue to all affected parties. I would also make sure my client was aware of the risks of placing improvements in the disputed area without the benefit of an agreement with the adjoiners. If the property changes hands, I believe my client is obligated to disclose the discrepancy to any potential buyers. As part of the public record, the ROS I prepared would also be availabe for inspection.

I don't see how option number 2 could be performed without filing an ROS to document the discrepancies.

Vance, I did some GPS observations in and near Gualala about nine years ago. It was an incredibly nice day with no wind, and no fog. Temperatures were in the 70's and the ocean was calm. I remember thinking how fortunate I was to be there. Must have been one of the nicer days, huh?

[VANCE]

In summertime a nice place to be when its 110 in Ukiah. In the winter, foggy, cold damp, smell of mold from the trees. If you could afford it, it would be a nice area for a summer home. For me, I just visit once in a while for work to be done on the Gualala River.

[D Ryan]

I did a job in Gualala many years ago. I believe they refer to it as the "banana belt", i.e. it gets a little nicer,warmer weather in the summer than is typical for the north coast. And that was my experience. Thought it was a beautiful place. I recall the data collector dying and finishing up the job in my fieldbook as the sun set into the Pacific at about 9 PM before hopping in the truck to drive the 5 hours north to Eureka. Ah, the good old days.

Off the subject, but that was easier than giving an opinion on the subject at hand...Jim, next time pick Bakersfield.

[goodgps]

Jim,

I'm dying to know how the conveyance title of each map reads.
. . "all that portion of the sw 1/4. . . "
or what ?
From the primafacy evidence, there was a discrepency in deeded land prior to 1954.
I'm certain that before you've done anything (other than investigation survey), youve suggested a title search to isolate jr, sr. rights.

This isnt a matter of what you do as far as the 1,2,3. its probably the steps you'd take to arrive at which 1,2,3, you want to do.

I'm simply not buying a statement of "fact" that each survey was performed using best legal principles and proceedures. CLEARLY there was a problem in 1960, that went unaddressed. Current OCCUPATION may govern in this case if evidence supports no resistence by occupying parties. This is not my USUAL opinion but there is the beauty of our profession.

"Good luck"

[Anthony Maffia]

I would hold the lot 11 of the 1954 map's monuments as my client's boundaries. and show the overlap of lot 3. My reason being is that the map created a simultaneous conveyance at the time it was filed, and would be "senior" to the North Gualala Subdivision No. 2, recorded in 1960, regardless if the original subdivider still own all of that land.

Interior lot lines of a map qualifies as being simultaneously created, the boundary does not.

If the owner/subdividers of the 1954 & 1960 maps were different, then the dividing line would be located per the underlying deeds. If an it is aliquot line, then break down the section.

Because each subdivided parcel was owned by the same person, the affect on the line of the 1960 map is determined by state and local laws in effect at that time, and needs to be referred to a local land attorney.

E.g., perhaps there was a requirement that LLAs or Parcel Maps be processed to be valid.

The overlap question becomes one of law, circa 1960, and is beyond a surveyor's expertise to resolve, unless one is also a local land attorney.

To state one or the other line is the true boundary is a breach of ethics.

[E_Page]

There is no breach of ethics to state an opinion based upon the information given. And local laws have nothing to do with it. It is a matter of State and/or common law.

WE ARE THE ONLY PROFESSIONALS LICENSED TO IDENTIFY BOUNDARIES. How can we possibly breach professional ethics by stating an opinion as to where the true boundary is as long as we do so having diligently uncovering the relevant facts and having a proper understanding of the principles set in play by those facts?

If you believe that interpreting and applying law to a boundary resolution is beyond the professional perview of the PLS, then you either need to re-examine your belief on that or stick to construction staking (no sarcasm intended). Every time a surveyor makes a boundary determination, he has applied law to the problem. In the vast majority of boundary decisions, the law is so settled, or the issue so straightforward that you may not recognize that you are applying law, but that's what you're doing.

When you take the PLS exam, what is one of your primary reference materials? It's a collection of CA laws governing the practice of surveying, the PLSA, the SMA, the PRC, etc. Are you being tested to practice law, to breach professional ethics? Of course not.

Why do surveyors so often discuss court cases involving boundaries? Why do so many professional development courses revolve around such discussion? Why do so many of our well known survey texts include case studies and/or cites to cases? Is it so that we might hope to have some slight understanding of how an attorney will determine a boundary when it's over our head?

OK, there's a grain of one purpose for studying cases in that last question. We study cases so that we have an understanding of how an attorney should approach a particular case. Remember that you, as a surveyor, will possibly have a better understanding of boundary case law than many attorneys who will take a boundary case even though their primary training is in family law, criminal law, tax law, etc. (is that a breach of ethics on the attorney's part?).

Case law is published and publicly available so that we may follow the guidance of the courts in the application of law. The courts interpret the intent of the law for us and show us how we are to apply the law to particular sets of facts. IMO, we are practicing negligently when we refuse to apply the law as guided by the courts because we fear that in doing so, we are acting as "judge and jury".

When a surveyor takes that stance, what that really means is that the problem at hand is beyond his (personal) expertise as a surveyor and he does not have the integrity to tell the client that there may be other surveyors with more experience and expertise pertaining to the problem. Instead, the surveyor stretches the truth (to put it mildly), and states that a judge is the only one who can determine that boundary. Is not having the integrity to admit your own professional limitations to your client, not informing him that there may be others with the appropriate expertise, not a breach of ethics?

What you have just told the client is that he has no choice but to go to court (an very expensive proposition), and that he will have to do so with an expert with little expertise to the problem if he chooses to retain you as his expert. The judge will rely on expert testimony on the facts and on the expert's opinion regarding those facts in making his own interpretions. If you go to court with that attitude, you had better hope that the other side has an expert with a similar lack of confidence.


"Interior lot lines of a map qualifies as being simultaneously created, the boundary does not." -- This is one of the core issues. The interior lot lines of neither subd is at question, the exterior boundary is.

The owner filed a map in 1954 showing the lots he intended to convey, but did not convey before 1960. Prior to selling those lots, he filed another map showing other lots that he intended to convey.

One set of lots was created (but not conveyed) in 1954, another set was created and conveyed in 1960, prior to conveyance of any of the 1954 lots.

The concept that "you can't sell what you don't own" does not apply as the original owner still owned all the property at issue. He did own what he sold even though he had previously filed a map showing an intended lot configuration which was in conflict with the land he 1st sold.

When we talk about simultaneous conveyance, we assume that all lots will be sold, and being simultaneously created, they are on equal footing (speaking of the interior lines). So if Lot 9 of the 1954 subdivision is sold prior to Lot 10 of the same subdivision, and it is sold as Lot 9 of the subdivision, it does not have seniority over Lot 10.

Under the given set of facts, the lots of the 1954 subdivision were never conveyed, but continued to be held by the original subdivider. That same subdivider files a map in 1960 on his remaining property, and intentionally or not, a portion of his property which had been shown in the 1954 subdivision, effectively being a partial resubdivision.

What if that subdivider knew that there was some overlap, but needed that portion to make minimum lot sizes in the 1960 map, and fraudulently used that land to meet the minimums? Should the buyers of the 1960 lots get shorted? How do you prove, 49 years later, whether or not there was fraud or if it was an honest mistake? Even if it was a mistake, should the buyers of the 1960 lots have to pay for the subdivider's mistake while he remians whole and, in effect unharmed by his mistake?

No. This goes back to one of the most basic rules of construing conveyances. Where there is ambiguity which can be construed either against the grantee or the grantor, the intent will be most strongly construed against the grantor as he is presumed to know what he is selling. In this case, the subdivider would have been presumed to know that he sold lots which utilized portions of lots he continued to own, and since he did own them, he was not precluded from selling that land.

Of course, in a real world situation (which this discussion may be based upon), there will likely be extrinsic evidence that will guide the surveyor and the court further as to where the parties believed the boundary to be. There may be other documentary evidence shedding more light on the intent. And it may be that the particular set of facts may bring legal principles into play that seem to contradict each other (not unlike seniority of creation vs seniority of conveyance).


Getting back to the ethics question, I'll agree with Anthony to an extent, modified thusly: To state one or the other line is the true boundary, if you have not diligently researched the record and other relevant facts, and do not have a firm grasp on the law and principles involved, is a breach of ethics.


If you have a good understanding of the application of law to the facts, and (just as importantly) a firm understanding of the limits of your knowledge of the principles at play, you can issue a useful opinion properly reflecting your understanding of the principles applied to the facts and identifying your limitations by a judicious use of caveats and qualifying statements. If you are aware of a surveyor who has superior experience in the area at hand, do yourself and your client a favor and suggest that your client allow you to bring that surveyor on as a subconsultant, especially before the other side hires him or her. And rather than tossing the hot potato (grenade?) at your client with the admonision to find a lawyer, help him find one experienced and knowledgeable in boundary law.

[VANCE]

Interior lot lines of a map qualifies as being simultaneously created, the boundary does not.

If the owner/subdividers of the 1954 & 1960 maps were different, then the dividing line would be located per the underlying deeds. If an it is aliquot line, then break down the section.

Because each subdivided parcel was owned by the same person, the affect on the line of the 1960 map is determined by state and local laws in effect at that time, and needs to be referred to a local land attorney.

E.g., perhaps there was a requirement that LLAs or Parcel Maps be processed to be valid.

The overlap question becomes one of law, circa 1960, and is beyond a surveyor's expertise to resolve, unless one is also a local land attorney.

To state one or the other line is the true boundary is a breach of ethics.

Maybe you should read the entire problem and question. What would you do? and my ultimate question, what creates a simultaneous conveyance? When a lot is sold or when the map is recorded (filed)? If you hold the principal, when the map gets filed, than the 1954 subdivision is senior, but wait, the owner still owned the lots of the 1954 subdivision when the 1960 subdivision was recorded (filed) so there within lays the question on who would have rights to the overlap. Thanks Evan for your response.

This is a real situation, the surveyors around here we split on their opinion, so I wanted to see if that was true with surveyors' around the State.

[Anthony Maffia]

Vance said: If you hold the principal, when the map gets filed, than the 1954 subdivision is senior...

I don't see that as a principal, or do you mean in this particular situation, where both maps had the same ownership.

[VANCE]

Vance said: If you hold the principal, when the map gets filed, than the 1954 subdivision is senior...

I don't see that as a principal, or do you mean in this particular situation, where both maps had the same ownership.

Sure its a principal,a subdivideder creates 5 lots and a remainder and sells lots, than at a later date subdivides his/her remainder parcel, than the first subdivision would be "senior" (can not sell what you do not own). In this case the owner still owned both subdivisions that overlapped, thus the question at hand. What would you do?

[E_Page]

Vance, you need to separate the idea of conveyance from the idea of creation. A conveyance is a transfer of ownership from one person or entity to another.

Our commonly used term of "simultaneous conveyance" is actually a misnomer. lots of a subdivision are often not simultaneously conveyed, although they are simultaneously created. They hold equal footing relative to one another because they are conveyed as Lot XX of the Wherever Subdivision. Since all lots within the Wherever subdivision were created simultaneously, and conveyed as lots of that subdivision, there are no seniority issues between them.

When dealing with parcels not of the same subdivision, order of conveyance becomes an issue. Order of conveyance of parcels is what determines seniority.