Setting another surveyor's tag?

[bruce hall]

that I have come across this situation.

If my memory serves me correctly I have come across this scenario -bent monuments with the tag still in them, -and for whatever reason, reset my own monument, but I put my tag in the reset pipe or lead, not the other guys.

And then, of course, I am on the hook for the documentation. It sure woulda been easier to set the other guys tag in the reset monument. I'll have to remember that.

[PLS7393]

My question is pertaining the timing of the map being filed.
Was the map filed when surveyor "B" went out?
If so, then I agree with Bruce, reset with new tag.
If the map has not been filed yet, then the surveyor signing the map is responsible. Then surveyor "A" can discuss the back charges with the contractor that disturbed the monurment. Section 8771 PLS Act states, "if any monument could be destroyed, damaged, covered, or otherwise obliterated . . . "

Pretty simple in my mind what should have and could have been done, but the contractor in your case decided to hire a second surveyor. Makes me wonder why? Who is going to go back and set the street monuments after improvements are done? Isn't the street monument going to have an LS Number stamped on the disc as required by Section 8772 PLS Act? Is your surveyor "B" going to stamp each street monument with surveyor "A" LS Number???

Maybe the street monuments might not be set? I hope there is a good bond filed for this map, and the governmental agency (county or city) knows how to handle bonds. I know this from first hand experience, most bonds are handled through planning departments, and they don't have a clue about surveying (from A-Z). Some agencies are ok, but not all.

Good Luck!!!

[E_Page]

The only scenario that I can think of where that might be acceptable is if Surveyor B contacts Surveyor A, says (I see you have a map in the works here. I'm doing some work for XYZ Construction and they asked me to reset this monument they knocked out. Your iron is knocked out but the cap is still good. Do you want me to put your cap on their or mine?"

Even then, Some Surveyors A might have B put A's cap back on after checking B's notes, but I think most Surveyors A would tell B to put his (B's) cap on and file a CR.

So in short, no, it is neither the standard approach to replace another's cap/tag without first speaking to that surveyor, nor an acceptable one.

[Steve Martin]

Section 8772 of the Business and Professions code is pretty clear

"Any monument set by a licensed Land Surveyor....shall be permanently and visibly marked or tagged with the certificate number of the surveyor or civil engineer setting it..."

Specifically the LS number of the Surveyor setting the monument. Nowhere does it indicate that a Surveyor can set the tag of another Surveyor.

You should contact the other Surveyor and let him know that you are not happy with him setting your tag and that you want him to correctly tag the monument with his own LS number.

He will be liable for filing a Corner Record to document his procedure, and he should have known that that was his professional responsibility going into the survey.

Give him a chance to correct his mistake before you go any further with it.

[Steve Martin]

Mr. Smith,

It appears from some of your other posts that you too do not really believe that it is OK to set another Surveyor's tag without his expressed permission or responsible charge.

Are you saying that you would not accept a Corner Record from a Surveyor who reset another Surveyor's pipe before the map recorded? What happens after the map records then? Would you then turn it in to the JPPC after at first refusing to accept the corner record?

The issue to me from the original post appeared to be setting another surveyor's tag without permission. I am still trying to understand your position from your post.

[E_Page]

It would seem from this scenario that Surveyor B had knowledge that the map was in review and the lots were pending recordation of that map.

Surveyor B must have either had a copy of the prelim map or had located the monument in question prior to its having been disturbed.

So there are several questions in this question: Did either surveyor have a duty to replace the disturbed iron? If yes, which one, and why? Does it matter that the PM had not yet recorded?

Whether or not it was B's duty, B did reset it. Did B perform that duty correctly?


Why would Surveyor A be under any obligation to reset the monument after it was set once in connection with the PM? Do you know of anyone who, having once set the mons, revisits each survey just before a map (PM, FM, RS, or CR) is filed to ensure that none of the points have been disturbed? I don't. I think that it is a commonly held belief that setting monuments is a one time service for contracts that don't specify otherwise. Resetting points is an extra service which would happen only upon request, and for which the surveyor is entitled to additional compensation. In this case, it seems that Surveyor A fulfilled his duty in the field and was in the process of completing his duty as to filing the map.

Usually, if construction is occurring concurrently with map review, the same surveyor who prepared the map is also performing the construction staking. In such a case, setting the lot corners is normally held off until all of the site work is done. The scenario in the OP apparently does not fit the typical case.

If, for whatever reason, the project sees a different surveyor for services after the map has been prepared, doesn't that 2nd surveyor then take on the responsibility for survey activities on the site? Does the first surveyor have any control over what may happen to the point's he's set? Is he in a position to be aware of points being disturbed? I think not.

If Surveyor B has knowledge that the PM is in review and the lots, for which he is performing construction staking (or some other surveying) will exist as soon as the map clears review and is filed, IMO, his duty is the same as if he were working on a site with a filed map. If he is aware of a corner mon that gets knocked out in connection with the activities of his project, he is obliged to replace it and file a CR. He has 90 days to file from the time the iron is reset. It is reasonable that he reset the mon, and hold the CR until the PM files, or if the PM is still in review for some reason, file the CR with a note about the pending nature of the PM. I can imagine some unlicensed map checkers having some issue with this, but I can't imagine that a licensed CS would demand that Surveyor B violate the statutory 90 days in such a case. IMO, it would take a special kind of ignorance to read a proscription from filing a CR in this case simply because this case is not specifically addressed under the law.

I'm fortunate to work in a county with a CS office with staff that is helpful to the both the general public and to the private surveyors they come into contact with. In a case like this, if I were Surveyor B, I might be able to turn in my CR, leaving blanks for the PM Book & Page, and the map checker would fill in the blanks and file the CR the same day the PM records.

We've already discussed that Surveyor B should have placed his own # on the reset mon.

So, in short, my opinion is:

- A had no duty to replace the mon without being requested and paid to do so.
- B did have a duty to replace a boundary corner disturbed by construction activities of the project he was working on.
- It does not matter that the map had not yet recorded. B had knowledge of the pending PM.
- B should not be placing anyone's number on a mon w/o the express consent of that other licensee. He should be placing his own # on the mon.
- B should file a CR.

[mpallamary]

If I understand the question, I would treat the monument like any other monument. I would show it's location and note that it is disturbed and consequently rejected. If you remove the monument markings like a disc, you have to file a Record of Survey.

If the found monument was not of record I would note it as such. At the same time, as a professional curtesy, I would contact the other surveyor.

If a corner has a legal basis to be established, i.e. if a map is in place, I would set it. I would not set a monument for a lot in a subdivision that has not yet recorded as that means there is no map. Until the map records, the lot does not exist. Here is what Curt Brown wrote on this issue. (You can read the entire Curt Brown papers very soon as I am close to publication).

***************************

The Surveyor and the Law

Proration and Delayed Staking

September 1963

In a letter from Roy L. McCuistion, Jr., the validity of proration and the control of original monument positions as applied to delayed staking projects is questioned. In California, in some counties, the law requires that the surveyor must place a note on his subdivision map stating, “I will set monuments (of a given size and kind) at all lot corners, angle points, and change of direction within 30 days after the installation of all improvements.” This delayed staking provision applies to interior stakes and not boundary stakes. All boundary corners must be set prior to filing of the map. After placing the note on the map, the map is filed, and the lots are sold prior to setting interior stakes.

To illustrate the question, the following hypothetical situation will be assumed. Mr. Jones buys Lot 2, Block 2, Hillview Acres. Two months after he buys the lot, the surveyor, in accordance with his agreement, sets the lot corners; but in so doing he makes an error of 2.00 feet. Does the stakes bind Mr. Jones or can he claim that he bought by the measurements on the map?

To my knowledge, this question has not been tried by the courts, but it is an ideal speculative question. In California, the first thing to note is that the law requires posting of bond by the sub-divider guaranteeing final lot staking. If errors were discovered prior to the release of the bond, the chances are that the surveyor would have to correct erroneous stakes and probably would be responsible for any damages.

After the bond is released and the public agency has, in effect, admitted that the surveyor has complied with the law, are the owners then bound by the surveyor’s monuments even though set incorrectly? When Mr. Jones purchased his lot, he accepted title as Lot 2, Block 2 according to the plat. The plat stated that delayed staking would be done, and the purchaser of the lot agreed in writing to accept title in accordance with those conditions. In effect, the purchaser agreed in advance that the surveyor would locate his lot. After the surveyor did locate the lot, should not Mr. Jones be held to that location? Suppose that the neighbor, in good faith, builds a concrete - block wall right on the monumented line but 2.00 feet in error by measurements. Is the neighbor to blame and should he move his wall? Probably not. If parties agree to a future event, and the item is done, the parties have a reasonable time to object or accept the event. Silence over a period of time indicates acceptance.

Until such time as the courts rule upon delayed staking, I have adopted the following (it can be wrong, but I will use it until proved otherwise): If there have been no improvements and no one will be harmed by correcting an error, I call the original surveyor and come to an agreement as to what should be done. Usually the stakes are moved to the correct measured position. But, if someone has acted in good faith and has erected improvements, the monuments, to me, are fixed in position and cannot be altered irrespective of measurement errors. Of course, any monument that can be proved to have been moved or disturbed would be an exception.

The second part of the question asked is, “If you find a stake out of measured position in a delayed staking project, can you use it for prorating in another corner”? Normally, proration cannot extend beyond an original monument position, and unless there were unusual circumstances, I would use this rule. Once delayed stakes are set and accepted (by silence or by a period of time), they are the original stakes called for. But, if the results of proration are impossible or ridiculous, I would hesitate to use the rule.

Maybe, at some future date, a trial will settle the issue.

****************************

Good luck!

[bruce hall]

You state in your post above that "If you remove the monument markings like a disc, you have to file a Record of Survey." I would think that a Corner Record would suffice.

It seems like everyone is in a hurry to move in. "Record that map and give me a new pipe!"

[mpallamary]

Hi Bruce,

That opinion is not mine. It is the law. If you remove a monument, you have to file a ROS. That is the distinction. You can use a Corner Record or a Record of Survey to set monuments. You can only use the ROS to remove a monument. That is the distinction, to wit:
*****************
CORNER RECORDS
LSA 8773. Corner records - “lost corners”
(a) Except as provided in subdivision (b) of Section 8773.4, a person authorized to practice land surveying in this state shall complete, sign, stamp with his or her seal, and file with the county surveyor or engineer of the county where the corners are situated, a written record of corner establishment or restoration to be known as a “corner record” for every corner established by the Survey of the Public Lands of the United States, except “lost corners,” as defined by the Manual of Instructions for the Survey of the Public Lands of the United States, and every accessory to such corner which is found, set, reset, or used as control in any survey by such authorized person.
(b) After the establishment of a lost corner, as defined by the Manual of Instructions for the Survey of the Public Lands of the United States, a record of survey shall be filed as set forth in Section 8764.
(c) Any person authorized to practice land surveying in this state may file such corner record for any property corners, property controlling corners, reference monuments, or accessories to a property corner.

8773.3. Corner record - monument rehabilitation
In every case where a corner record is filed pursuant to Section 8773, the licensed land surveyor or registered civil engineer shall reconstruct or rehabilitate the monument of such corner, and accessories to such corner, so that the same shall be left by him in such physical condition that it remains as permanent a monument as is reasonably possible and so that the same may be reasonably expected to be located with facility at all times in the future.

ROS MAPS

8764. Record of survey - technical requirement

The record of survey shall show the applicable provisions of the following consistent with the purpose of the survey:
(a) All monuments found, set, reset, replaced, or REMOVED, describing their kind, size, and location, and giving other data relating thereto.
(b) Bearing or witness monuments, basis of bearings, bearing and length of lines, scale of map, and north arrow.
(c) Name and legal designation of the property in which the survey is located, and the date or time period of the survey.
(d) The relationship to those portions of adjacent tracts, streets, or senior conveyances which have common lines with the survey.
(e) Memorandum of oaths.
(f) Statements required by Section 8764.5.
(g) Any other data necessary for the intelligent interpretation of the various items and locations of the points, lines, and areas shown, or convenient for the identification of the survey or surveyor, as may be determined by the civil engineer or land surveyor preparing the record of survey.
The record of survey shall also show, either graphically or by note, the reason or reasons, if any why the mandatory filing provisions of paragraphs (1) to (5), inclusive, of subdivision (b) of Section 8762 apply.
The record of survey need not consist of a survey of an entire property.

************************

The word "removed" only occurs once in the LSA and that is under the ROS provisions. A Corner Record cannot document a removal.

I hope this opinion has merit. The removal of a monument under any circumstances is a very significant undertaking and should not be treated lightly.

That's my two cents worth. As always, I appreciate the exchanges. Bruce, as always hoping to see you down the road.

PS, Happy Holidays to all.

[E_Page]

If a monument is removed, and another constructed in its place, that makes it replaced. If nothing is placed in the location of the removed monument, it remains simply removed.

Its easy to make an assumption, but the scenario in the OP leaves another question unanswered: Did the client request that Surveyor B reset the (future) lot corner? My previous responses assume that was the case.

[bruce hall]

"One of the corners gets destroyed/bent by construction."

The fella didn't remove a perfectly good monument. This monument was destroyed or bent by construction. And then it was replaced, although it was using the first surveyors tag.

If I found this perfectly "good" monument, didn't like where it was, and then removed it, then I would be bound to file the RS. That isn't the scenario in this situation.

[mpallamary]

Yeah, so many variables. Lots of shuffling. When in doubt, file a ROS map. Another alternative perhaps is a certificate of correction. Wouldn't that be needed anyways?
As I stated earlier, if the map is not recorded, the lots do not exist.

[E_Page]

Didn't mean to imply that I thought B removed a perfectly good monument. Sorry if I created confusion. I was merely speculating on what precipitated resetting the monument.

[bruce hall]

I was responding to the post by Pallamary. I thought he infered that the monument was removed only, and not replaced/reset.

This is what happened (as Monk would describe it) Surveyor B says to the land owner, "I can't reset that monument cause the lot corner doesn't exist-yet. But I can reset the original monument where it used to be, if only I knew where it used to be (do you have some plans or maps?). I can then and reset another pipe, put in the original tag, and no-one will be the wiser. Unless you, the landowner, tell someone about it."

Gosh I wouldn't want to touch that. I have tough enough time keeping things simple. Ask anyone who knows me.

[mpallamary]

And Bruce, that is one of the reasons your thoughts are valued.
One thing is certain, things can get very confusing real fast with this scenario.
Communication, communication, documentation and then more communication!

[mpallamary]

I revisited the post. Here is my opinion. As soon as you or anyone places or replaces a monument in a pipe, you just bought it. If that were to occur, I believe it would be permissible assuming the original surveyor accepted his/her "responsible charge" duties by permitting you to perform this work. In other words, your work was done under his/her direct supervision, i.e. you were acting as his/her field crew.

Otherwise, I would not touch the monument particularly if the map has not recorded. The monument can only exist by virtue of the map. There is also a legal issue known as "interference." What this means is if the first surveyor was in a contractual dispute and he/she was not paid and you were to do this type of work, you could be sued for interfering with the first surveyor's contract. In addition, this is a reason the SMA provides for a monumentation bond to be posted. Until the surveyor releases the map, the monument(s) can be moved around and are not "monuments" under the SMA. Until there is a map, there is no monument. As an FYI, interference with a contract is a tort which is proven by the following:

1. A contract between the plaintiff and a third party at the time of the claimed interference.
2. Defendant knew of the contract at that time.
3. Defendant intentionally interfered with the contract.
4. Defendant improperly interfered with the contract.
5. Defendant’s conduct caused the breaching party to breach the contract.
6. Plaintiff was damaged as a result of defendant’s conduct

Here is a bit more legal mumbo jumbo to think about:

The tort of interference with contractual relations has its roots in the tort of inducing breach of contract. It is also refered to as the tort of interference with economic relations. Both the tort of interference with contract relations and the tort of interference with prospective contract or business relations involve basically the same conduct - in one case the interference takes place when a contract is already in existence, in the other, when a contract would, with certainty, have been consummated but for the conduct of the wrongdoer.

The act of inducing the breach must be an intentional one. If the actor had no knowledge of the existence of the contract or his actions were not intended to induce a breach, he cannot be held liable though an actual breach results from his lawful and proper acts. It is not enough that the actor intended to perform the acts which caused the result -- he or she must have intended to cause the result itself. The claim only be asserted against a stranger to the contractual relationship, if the person complained of was a party to the contract, the claim should be brought as a breach of contract claim. Proof that it is reasonably probable that the lost economic advantage would have been realized but for the defendant's interference is required to prevail on the claim.

Just more food for thought. Caution is the word of the day. I apologize if I was long winded here - it is with good reason.

[bryanmundia]

Why is everyone so quick on the draw to file a record of survey? As it has been described to me, shouldn't this just be a corner record since you are resetting an obliterated monument? Whether or not the lots are created yet by the other map, since you reset the point you should file a corner record stating so.

Basically the corner record would state that you found a disturbed monument of no record and reset it.

As my experience is continuing to grow I may be wrong and encourage everyone to let me know if this is a wrong assumption. I am in no way the end all to be all when it comes to surveying knowledge.

[mpallamary]

By declaring the monument "no-record" you are implying that the surveyor failed to meet his/her duties under the LS Act. All monuments have to be of record. If that notation were to occur in many areas of the state, the surveyor would be turned in to the JPPC.

If the map was not filed, you may be incurring liability and could be deemed negligent if you set/reset a monument that has no basis in law or fact. Until the map records, the monument has no pedigree. It only exisits by virtue of the map. The monument needs what is known as "foundation." It is a legal term meaning it has to have its basis in a proper legal document or process. Someone has to first authenticate it.

What if the surveyor decides to move his/her monuments around as the map has not yet recorded? Can he/she not do that? If so, where does that leave you? What if the surveyor shifts the line by one foot?

In the end, there is really no such thing as a "no record" monument. The term is a misnomer - a fallacy if you will. There is a record out there - you just have to find it.

[bryanmundia]

I understand and thought that might be a reason that a corner record may not be valid. However, I will be the first to say that there are monuments which have no record. I have found corners in the past where I have called the surveyor and he/she has basically said, "Yeah I set the tag and no I didn't file a map."

In that regard isn't the monument of no record?

[mpallamary]

If you mean is the monument not shown on a recorded map, yes. That is what is known as a "public record." If you mean it is no "record," the answer is no. The surveyor must have field notes. Those notes are what are known as "private survey records." It is the same as finding county engineer monuments or city engineer monuments. Are they recorded - no. They are what are known as quasi-public records. Are you going to accept them? Probably yes. When you think about it, that might be a technically poor decision. I have seen a great many county surveyors and city surveyors do some pretty poor work. Because the monuments are shrouded with the mantle and cloak of the government, that doesn't make them any better. The choice to accept them lies with the surveyor in "responsible charge" of the survey.

All too often, many surveyors will reject a monument because they do not have a record of it having been filed, i.e. there is no "public record" of the survey. In many instances, once you obtain the surveyor's records, you might learn that he/she preserved the best available evidence. I own private survey records from an old time surveyor. He surveyed in two areas of town where land is very expensive (La Jolla and Del Mar). On a great many of his surveys, he has found original redwood hubs and he has preserved them over the years by replacing them with tagged iron pipes. This was back in the '50's. He did not file all of his surveys. That was very common throughout the state. I have seen surveyors reject his so-called "no record" monuments without making an attempt to figure out how they got there. A very large number of Curt Brown's surveys are not recorded. Does that mean you have a right to reject his work?

I was involved in a lawsuit where an engineer rejected a found "not of public record" monument. We proved that the unrecorded monument had preserved an original redwood hub. The engineer lost the court case. Moral of the story, do your research and don't be so quick to reject other people's work.

Yes, it takes a little bit more time but that is what you are being paid for. You have to do your homework. I will tell you that before I reject a not of public record monument, I am going to make every effort to find a way to accept it if possible. If it was set by a licensed surveyor I have to assume he/she knew what they were doing. As to the surveyor who says he/she did not file a map, ask him/her when they will. If they say never then file a complaint. Because you have knowledge that they did not file, you could be found guilty of conspiring to violate the LS Act as well as subterfuge. If this all sounds very legal and scary, it is. I spend a lot of time defending surveyors and battling surveyors who get caught up in this scenario. It is not pretty and it is real. In terms of some legal issues to consider:

A public record is a document that has been filed with, or furnished by, a governmental agency and is available to the public for inspection. For example, title of record to property is an ownership interest that has been duly filed in the office of public land records.

The term record also applies to the formal, written account of a case, which contains the history of actions taken, papers filed, rulings made, and all written opinions.

(West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.)

A Record is a document produced during the routine course of business which notes the occurrence of an event or activity of the agency operation.
A record can exist in a number of formats, including various sizes of paper (original or photocopy), microfilm or any microform, electronic media, optical
disk media, CD, mylar mylar, sepia, , blueline blueline, photograph, audio and video tape, punched cards, books, maps.

Your computer files, CAD drawings and other electronic data are all legally discoverable in a lawsuit or is you are issued a subpoena. I diverge though and will return to my underlying thesis.

You should acquaint your self with the Rules of Evidence in California law if you want an eye opener. Here is an excerpt from article to consider and yes I can get a bit extended in my reply. It is with good cause. "An ounce of prevention is worth a pound of cure."

See second post.

[mpallamary]

SUMMARY OF THE RULES OF EVIDENCE By Vincent Dicarlo of State of California Attorney General Medical Fraud Bureau

I. INTRODUCTION.

We can only cover both the federal and California law of evidence in a brief essay like this by a ruthless process of selection and compression. What we will cover can best be thought of as that essential kernel of the law of evidence that the trial lawyer must carry in his head.

First, our task would be impossible but for two important facts. First, all of you have studied the law of evidence before, either in a course on evidence or in preparation for the bar exam. Accordingly, most of the rules presented will already be familiar to you. What we will do here is to try to review, organize, and reinforce that law so that you can apply it with confidence when you need it.

Second, most of the rules of evidence need not be covered here because they are either so obvious that you already know all you need to know about them or they apply only in limited circumstances. For example, we would surely be wasting our time if we indulged in an extended discussion of the rule that evidence should be construed to achieve the ends of justice, and others like it. This and many other rules only state the obvious and will not be covered here. Rules that apply only in limited circumstances include ones like those relating to the scope of cross examination of a plaintiff in a case of sexual assault, a juror's incompetence to impeach his own verdict, and the proof of valuation of property. Evid. Code §§ 781, 1150, 810 et seq.; Fed. Rules Evid. 412, 606. You do not need to know those special rules unless you get a case where they apply. When that happens, it will be time enough to study them.

What is left after you eliminate all the rules that are obvious and all those that have only limited application are the rules that are used every day in ordinary cases and that are not trivial or obvious. These essential tools of survival must be thoroughly mastered. They will enable you to solve the vast majority of evidentiary problems that arise in preparing and trying your cases.

I do recommend, however, that you take the time to read whichever codification applies to your practice so you will know when you need to study one of the rules of limited application and so that you can gain confidence that there are not any gaps in your knowledge. California's Evidence Code is short and the Federal Rules of Evidence are shorter and, once we are done, I think that you will have an analytic framework that will allow you to read them easily and with understanding.

II. THE FOUR TYPES OF EVIDENCE.

There are four traditional types of evidence: real, demonstrative, documentary, and testimonial. Some rules of evidence apply to all four types and some apply only to some or one of them. First, we will cover general rules of admissibility that apply to all evidence. Then, we will cover foundational rules that relate to specific kinds of evidence. Finally, we will cover some special topics, like the form of examination, the hearsay rule, and the lay opinion rule, that frequently cause problems in the courtroom.

III. GENERAL RULES OF ADMISSIBILITY.

The basic prerequisites of admissibility are relevance, materiality, and competence. In general, if evidence is shown to be relevant, material, and competent, and is not barred by an exclusionary rule, it is admissible. Evid. Code § 351; Fed. Rules Evid. 402.

Evidence is relevant when it has any tendency in reason to make the fact that it is offered to prove or disprove either more or less probable. Evid. Code § 210; Fed. Rules Evid. 401. To be relevant, a particular item of evidence need not make the fact for which it is offered certain, or even more probable than not. All that is required is that it have some tendency to increase the likelihood of the fact for which it is offered. Weighing the evidence is for the finder of fact, and although a particular piece of evidence, standing by itself, may be weak, it will be admitted unless it is otherwise incompetent or it runs afoul of an exclusionary rule. For example, if the fact to be proved is that the defendant bit off the plaintiff's nose in a fight, testimony by an eyewitness to the act would clearly be relevant, but so would testimony by a witness who heard the plaintiff and the defendant exchange angry words on the day before the fight, or even testimony by a witness who sold the defendant a disinfectant mouthwash shortly afterwards.

Evidence is material if it is offered to prove a fact that is at issue in the case. For example, if I offer the testimony of an eyewitness to prove that it was raining on the day of the signing of a contract, that evidence may be relevant to prove the fact for which it is offered, yet the fact that it was or was not raining may be immaterial to any of the issues in the case, which may turn entirely on whether one or both parties breached the contract.

The issues in the case are determined by the pleadings, any formal stipulations or admissions, and the applicable law. For example, if, in a case of breach of contract, the defendant has conceded that the plaintiff performed all his covenants, proof of that performance would no longer be material unless it were relevant to some other issue. Under both the California and federal rules, the concept of materiality is included in the concept of relevance. Evid. Code § 210; Fed. Rules Evid. 410.

Evidence is competent if the proof that is being offered meets certain traditional requirements of reliability. The preliminary showing that the evidence meets those tests, and any other prerequisites of admissibility, is called the foundational evidence. Evid. Code § 402, 403. When an objection is made that an answer to a question, a document, or a thing lacks a proper foundation, what the objector is really saying is that a showing of competence, or of another prerequisite of admissibility, has not yet been made. The modern trend in the law is to diminish the importance of the rules of competence by turning them into considerations of weight. See, e.g., Evid. Code § 700; Fed. Rules Evid. 601. The question of competence will be considered below for each category of evidence.

In general, if competent evidence is offered to prove a relevant and material fact, it is admissible even if it would have been improper to receive it for another purpose. Evid. Code § 355. For example, while evidence of prior bad acts is generally not admissible to show that a person acted similarly in the present case, it may be admissible to show motive, plan, intent, lack of mistake or, in federal court, to impeach a witness's credibility. Evid. Code § 1101(b); Fed. Rules Evid. 404(b). When evidence is received for a limited purpose, the party who thinks a jury may make improper use of that evidence is entitled, upon his request, to a limiting instruction. Evid. Code § 355.

However, where the value of evidence for its proper purpose is slight and the likelihood that it will be used for an improper purpose by a finder of fact is great, a court may, in its discretion, exclude the evidence even though it would otherwise be admissible. Evid. Code § 352; Fed. Rules Evid. 403. In this situation, the probative value of the evidence is said to be outweighed by its prejudicial effect.

Prejudice means improper harm. The fact that evidence may be extremely harmful to one party's case does not necessarily make it prejudicial. Courts also have discretion to exclude otherwise admissible evidence to prevent confusion, delay, waste of time, or the needless presentation of cumulative evidence. Evid. Code § 352; Fed. Rules Evid. 403.

[mpallamary]

IV. REAL EVIDENCE.

Real evidence is a thing the existence or characteristics of which are relevant and material. It is usually a thing that was directly involved in some event in the case. The written contract upon which an action is based is real evidence both to prove its terms and that it was executed by the defendant. If it is written in a faltering and unsteady hand, it may also be relevant to show that the writer was under duress at the time of its execution. The bloody bloomers, the murder weapon, a crumpled automobile, the scene of an accident--all may be real evidence.

To be admissible, real evidence, like all evidence, must be relevant, material, and competent. Establishing these basic prerequisites, and any other special ones that may apply, is called laying a foundation. The relevance and materiality of real evidence are usually obvious. Its competence is established by showing that it really is what it is supposed to be. Proving that real or other evidence is what it purports to be is called authentication. Evid. Code § 1400; Fed. Rules Evid. 901.

Real evidence may be authenticated in three ways--by identification of a unique object, by identification of an object that has been made unique, and by establishing a chain of custody. You only have to be able to use one of these ways, though it is prudent to prepare to use an alternate method in case the court is not satisfied with the one you have chosen.

The easiest and usually the least troublesome way to authenticate real evidence is by the testimony of a witness who can identify a unique object in court. For example, the curator of a museum may be able to testify that he is familiar with, say, Picasso's "Dames de Avignon" and that what has been marked as exhibit so-and-so is in fact that unfortunate painting. It is important to remember, however, that many more mundane objects may be amenable to this kind of identification. A unique contract, or one that has been signed, may be authenticated by a person who is familiar with the document or its signatures. A ring may have an inscription by which it can be identified. Even a manufactured object, like a wallet, may be identifiable by its owner after years of use have given it a unique personality.

The second method--identification in court of an object that has been made unique, is extremely useful since it sometimes allows a lawyer or client to avoid the pitfalls of proving a chain of custody by exercising some forethought. If a witness who can establish an object's relevance to the case marks it with his signature, initials, or another mark that will allow him to testify that he can tell it from all other objects of its kind, that witness will be allowed to identify the object in court and thus to authenticate it. Often, if a member of the lawyer's staff or another person early in the chain of custody marks the evidence, big problems can be avoided if a later link in the chain turns out to be missing.

The third and least desirable way to authenticate real evidence is by establishing a chain of custody. Establishing a chain of custody requires that the whereabouts of the evidence at all times since the evidence was involved in the events at issue be established by competent testimony.

The proponent of the evidence must also establish that the object, in relevant respects, has not changed or been altered between the events and the trial. This can sometimes be a tall order, or can require the testimony of several witnesses. If there is any time from the events in question to the day of trial during which the location of the item cannot be accounted for, the chain is broken. In that case, the evidence will be excluded unless another method of authentication can be used.

V. DEMONSTRATIVE EVIDENCE.

Demonstrative evidence is just what the name implies--it demonstrates or illustrates the testimony of a witness. It will be admissible when, with accuracy sufficient for the task at hand, it fairly and accurately reflects that testimony and is otherwise unobjectionable. Typical examples of demonstrative evidence are maps, diagrams of the scene of an occurrence, animations, and the like. Because its purpose is to illustrate testimony, demonstrative evidence is authenticated by the witness whose testimony is being illustrated. That witness will usually identify salient features of the exhibit and testify that it fairly and accurately reflects what he saw or heard on a particular occasion, such as the location of people or things on a diagram.

For some time in California, and in some other states, there was a controversy over whether photographs were only demonstrative in nature or whether they had evidentiary value independent of the testimony of the witness who authenticated them. This problem was particularly pressing when there was no witness who could confirm what the camera saw as, for example, where crucial identifying photographs were taken by automatic cameras.

Fortunately, the courts in California and most other states seem to have reached the only sensible solution, which is that photographs can be either real or demonstrative evidence depending on how they are authenticated. When a photograph is authenticated by a witness who observed what is depicted in it and can testify that it accurately reflects what he saw, the photograph is demonstrative evidence. When it is authenticated by a technician or other witness who testifies about the operation of the equipment used to take it, it is real evidence and is, in the language of the courts, a "silent witness."

VI. DOCUMENTARY EVIDENCE.

Documentary evidence is often a kind of real evidence, as for example where a contract is offered to prove its terms. When a document is used this way it is authenticated the same way as any other real evidence--by a witness who identifies it or, less commonly, by witnesses who establish a chain of custody for it. However, because they contain human language, and because of the historical development of the common law, documents present special problems not presented by other forms of real evidence, such as when they contain hearsay.

When dealing with documentary evidence, it is a good idea to ask yourself four questions:

1. Is there a parol evidence problem?

2. Is there a best evidence problem?

3. Is there an authentication problem?

4. Is there a hearsay problem?

The parol evidence rule, which bars the admission of extrinsic evidence to vary the terms of a written agreement, is usually considered a matter of substantive law, not of rule of evidence. Accordingly, we will not deal with it here.

As has been noted above, documents can be authenticated the same way as any other real evidence. Evid. Code § 1400, 1401, 1410-1416. Material alterations must be accounted for. Evid. Code § 1402. There are also specifically approved methods of authenticating documents listed in the Evidence Code, including the submission to the finder of fact of a known exemplar of a signature for comparison with the signature on a disputed document, Evid. Code § 1417, authentication by evidence of a reply, Evid. Code § 1420, and authentication by content, Evid. Code § 1421.

In addition, some documents, such as certified copies of public records, official documents, newspapers, periodicals, trade inscriptions, acknowledged documents to prove the acknowledgment, certificates of the custodians of business records, and certain commercial paper and related documents are, to one extent or another, self authenticating under either California law or the federal rules. Evid. Code § 1450 et seq., 1530 et seq., 1562; Fed. Rules Evid. 901, 902.

We will cover the hearsay rule as a separate topic.

The best evidence rule provides that, where a writing is offered in evidence, a copy or other secondary evidence of its content will not be received in place of the original document unless an adequate explanation is offered for the absence of the original. Evid. Code § 1500 et seq.; Fed. Rules Evid. 1002. In California, testimonial and other secondary evidence of the document's content is also generally forbidden. Evid. Code §§ 1500, 1508.

The best evidence rule arose during the days when a copy was usually made by a clerk or, worse, a party to the lawsuit. Courts generally assumed that, if the original was not produced, there was a good chance of either a scrivener's error or fraud. Now that "copy" usually means "photocopy," the chance of a copy being in error, as opposed to simply illegible, is slight. In addition, courts are reluctant to require needless effort and delay where there is no dispute about the fairness and adequacy of a photocopy.

Accordingly, both California law and the federal rules allow the use of mechanically produced duplicates unless a party has raised a genuine question about the accuracy of the copy or can show that its use would be unfair. Evid. Code §§ 1500 et seq.; Fed. Rules Evid. 1003. However, there is always a danger of a party questioning a document, so it is important to remember that, unless you have a stipulation to the contrary, or your document fits one of the exceptions listed in the statute, you must be ready to produce originals of any documents involved in your case or to produce evidence of why you can't.

Under both California law and the federal rules, compilations or summaries of voluminous records may be received where the originals are available for examination by the other parties. Evid. Code § 1509.

VII. TESTIMONIAL EVIDENCE.

Testimonial evidence is the most basic form of evidence and the only kind that does not usually require another form of evidence as a prerequisite for its admissibility. See Evid. Code § 702(b); Fed R. Evid. 602. It consists of what is said in the court at the proceeding in question by a competent witness. . . .

[bryanmundia]

Thank you for the very informative and thorough explanation. I learn something new and have the information to back it up every time I come on this forum.

[goodgps]

If you have a good relationship with the original surveyor, and discuss the situation, AND the other surveyor trusts you and cant or wont come to repair the situation him/herself, I dont see any problem..

we "spin" straighten and replace pipe all the time when there is a good original position evidant.

If the deed is done out of respect for the previous surveyor, everything should be fine. If the action is to move a damaged monument to "your special" position, then thats another issue.

Local CLSA chapters, is one good way to interact with other professionals.

[mpallamary]

Goodgps has some good advice here. The notion of interacting through CLSA is an excellent idea. Communication is the key.
I hope my explanation was not too lengthy. These are the issues that can arise and seeing that an attorney appears to have been involved, hopefully my explanation can explain his/her interest.
Good luck.