Old, unrecorded surveys: the pros & cons of sharing

[Lee Hixson]

Information about old unrecorded surveys is sometimes hard to come by, especially those that the County Survey is not aware of. I'm talking here about surveys that were done before the LS Act was changed to try and stop that practice. Long-established firms are sometimes reluctant to give you copies of notes and plats.

Other firms take the position that the spirit of the Act is to freely share the information because it benefits the public at large. What I'm wondering is this:

1. Has the Board ever opined on the obligation of surveyors/firms to respond to requests for copies of unrecorded surveys?

2. Is anyone aware of any court cases where this has been at issue? For example, an old monument that would have materially changed a boundary resolution but the modern surveyor wasn't aware of it because a firm would not cooperate and share the necessary information. And I'm not talking here about finding a monument with an LS or CE cap on it that isn't of record, and then approaching the firm about it (they usually comply in this instance). I'm talking here about undiscovered monuments that could have been located had a firm been forthcoming. In other words, following the no-stone-unturned philosophy of thorough research, a conscientious surveyor might inquire if Firms A, B, & C have ever done work in the area in question but the firms will not acknowledge one way or the other.

3. Liability? Does the reluctant firm take on more--or less--liability when they don't share such information?

[JasonCamit]

I worked for a firm in the central valley that had alot of unrecorded surveys and records that went back as for as the 1870's (field books, maps, etc). We would provide all of the records at a cost, since it would take some time and effort to research our records for the area in question. Obviously we were familar with our own filing system, but we could not just let anyone come in and start sifting through our records. We took pride in preserving these records and basically did not want any of the information lost or misplaced. So we provided the records and performed the research ourselves for a fee. Typically it would be a couple hundred dollars depending on the size and area the project was in.

As far as liablity, most of the unrecorded map or info was typically quite old. Therefore the LS or CE that performed the work on said maps was retired or dead. I am not sure if liabilty can be passed from beyond the grave, but I am not a legal expert.

[pls7809]

There is a Legislative Council of California opinion regarding the statute of limitations in regards to land surveying. There is either a 4 year or 10 year time limit. See the attachment for further info. The level of liability should not be a factor for really old surveys.


(FYI - the file name says BPELS, but it is not a BPELS opinion, it is a Legislative Council Opinion)

[E_Page]

1. I doubt it. Such an opinion would likely have little (desired) effect. First, if a company has such records but refuses to acknowledge it, how do you prove it or enforce a policy of sharing? Second, what if they have such records but are unaware of it at the time you ask - would they be in violation? Third, what if the owner of a company that does have such records is a cantankerous sort who would destroy the records rather than share them, thinking that if they don't exist, he can't be compelled to share? But most basically of all, under what law would BPELS base an opinion on the subject one way or another? You're talking about privately held records.

2. Don't recall ever reading one where a 3rd party surveyor was forced to share old files or admonished for not doing so. Have read some where one of the surveyors in the case was admonished for not discovering or considering pertinent evidence. The responsibility is on the surveyor performing the current survey to discover what is discoverable, not on some other surveyor to provide information which may or may not be readily available in their historic files.

3. Liability for the work would be subject to the statutory limits as explained in the letter Ryan attached. I don't see how a surveyor could be held liable in your current project for not providing copies of private records pertaining to one of their old projects. Presumably, they provided that info to their client when they performed the work. Why wouldn't that client or their successor in title be just as liable?


Having said all that, I think that if a company does have such records and are aware of it, they should willingly provide them. I also believe that it is not unreasonable for them to expect some renumeration to compensate them for the time and effort they expend to locate and provide copies of those records. Part of the value of an established company is their records. Why should they be expected to give that value away?

[Lehmann]

Old surveys were to have been recorded also, I see that as far back as March 31, 1891 that under the land surveyors act, that Sec 11 stated that within 60 days after a survey relating to the sale of lands, or the retracing or establishing of boundary lines, public roads, trails or other has been made by a licensed surveyor, he shall file with the Recorder of the county in which such survey or any portion thereof lies, a record of survey. Sec 13 states that upon failure of licensed survye to comply with the requirements of this act, and the furnishing of satisfactorry proofs of such fact, the state surveyor general must revoke his license.

I think that a lot of us think that surveys were only required to be recorded fairly recently (60's+/-?)

[Lee Hixson]

Lehmann: like you, that was always my impression. I'm surprised to read otherwise. I appreciate all the replies, especially the Legislative Council Opinion. That should go a long ways toward calming anyone's worries about turning loose those old plats. Now...need to get the word out.

[dmi]

i KNEW THAT THERE WAS A REQUIREMENT TO FILE AS FAR BACK AS THE 1907, BUT TO SEE IT WENT BACK TO THE 1890'S IS INTERESTING.

I have heard surveyors caim "oh, times were different back then, nobody filled anything and they were talking about a specific decade such as the the 60',70's 80's. I believe that the custom may have been to ignore the rules, but that really has no bearing on the fact that the client paid for the survey and once completed, the surveyor was obliged to properly execute his duty to protect the public and file his record of survey/ corner record.

So I understand the mind set when a surveyor or company buys the records of another surveyor or company. Those records do have value and the ultimate value is to the public, in that they greatly aid in maintaining settled boundaries.

In some cases, these unrecorded records are used to keep out competition.

Is that fair? Is that the proper execution of the duties of a licensed professional. I hope that someone from the Legislative Committee will champion some type of rules whereby investment can be protected and records that by all rights that ought to be available to the public start to see the light of day.

[Lee Hixson]

Williard........while you make good points, my personal opinion is not nearly so harsh. I simply feel that surveyors/firms should acknowledge the existence of unrecorded survey files in their archives and share them with other professionals. I do agree with you about not charging for this; it's the least that could be done to correct the misfortune of them not being recorded in the first place.

As to their legitimate value for our modern projects? The mere fact of their being unrecorded should have no bearing on their usefulness. One should evaluate them objectively and carefully, just like any other evidence. Remember, the fact that those points have been in the ground, and relied upon, for all those decades counts for a lot. I'm pretty sure that a judge would not look kindly on a surveyor who dismissed a 4-year old plat simply because it wasn't recorded.

My suggestion? I would recommend that our code of professional ethics be revised to state that it is, in fact, unethical to NOT share files of unrecorded surveys. At the very least, it should be made clear that, for the "protection of the public" the only ethical posture is to cooperatively share old survey information.

Personally, I would go beyond that and revise the LS Act to require sharing. But that's just me.

[JasonCamit]

Fees charged by a private company for research and copies of old maps, notes, field books, etc is absolutely acceptable. I think that the fee should be reasonable and based on an hourly rate that is discussed before the research begins. I worked for a company for 10 years that had acquired records that went back to the 1800's. At times the research was intense, time consuming, and very valuable to the person(s) seeking the information. To say that they are obligated to do that research for free is just off base. An entity like San Diego County gets supplementary funds from tax money to help cover those costs. A private company does not have that compensation.

I too believe that the original surveyor did a disservice to ALL when not filing there work in a timely manner. But I don't believe that firms pay for these unnotorized notes specifically. The way the notes were acquired by the firm I worked for, was more of a passing of the guard. I surveyor/ce works his career; retires/passes away; a different company/partner buys the rights to the company which includes a multitude of assets, one being these notes. In my case this situation happened several times over a 100 years.

I think it is irresponsible to think that just because a map was not filed then it is not reliable. We are not sure what the reasons the original surveyor did not file a record of his work (common practice, unpaid debt by the owner, etc.). Keep in mind, in some cases these old surveys were performed before cars were previlant. What we do know is that it was the wrong thing to do, but it does not make his/her survey in error. I find that this unfiled information is always valuable when they exist in analyzing and research. Just because it was not filed does not mean that his/her survey was not used for improvements, development, or boundary disputes or rectification. Most times they were used for such reasons. Lines of accupation that do not match newer surveys most likely would match the old unfiled survey.

My bottom line is that the original surveyors did a disservice to the public and the survey community when they did not file their surveys. But the reality is, that the unfiled information exists and most likey was used by the person who hired the surveyor. And do have value when analyzing and research in determining the sequence of events in an area, as it pertains to survey work performed. It is up to us as professionals to make a determination if the data is reliable or not. When a private firm has such records, they should provide them at a cost that is reasonable. If not, these records would mysteriously not exist, until it benefits the private firm. And would not exist in any other case, if the firm was forced to do the research and provide copies of such information for free. All information is valuable when performing research and analyzing a situation. To close the door on such information or force someone to provide it for free will most definately add to the problem and get us further away from our goal to completely determine the history of an area our project is in.

[mpallamary]

I am the owner of private survey records. I paid for them and saved them from being thrown in the trash. I have expended thousands of dollars to organize these records and to index them and to make sure they are available for others to use and rely on. It took a year and a half fir one of my employees to do this working a couple of hours a day. Am I not entitled to recover some of these costs? I have them stored in a storage vault and this costs me several hundred dollars a month. Am I not entitled to recover some of these costs? I am currently georeferencing these points into our GIS system so that they can be recovered and made easier to locate. Am I not entitled to recover some of these costs?

Clearly these notes are of great value and it is for this reason that I treat them with such reverence and make them available to others who recognize their value. Anyone who has ever used unrecorded files and records or relied on them to solve a boundary problem can appreciate their value.

The surveyor who created the records I purchased died in 1983 and is not available to explain what he did and did not do. What I do know is that he did a lot of work in some very affluent communities and in many instances, he found original redwood hubs and replaced them with monumented iron pipes. These are perpetuation of original record monuments. WHo in their right mind would reject these and more importantly, why?

It is absolutely irrelevant how a revisionist approach would criticize what was done or what should have been done 20, 30, 40, 50, 60 or 70 years ago. The fact is the vast majority of practitioners did not file their surveys and "modern" practitioners did not start filing until many of us advanced and promoted the filing of surveys through the Joint Professional Practices Committee in 1980. This happened because of considerable efforts by many surveyors and as one who went through that error, I an others were subjected to harsh criticism by those who disagreed with us and our efforts.

These are the facts and no amount of criticism about what was and wasn't done in years past will change this. Thankfully, today most surveyors file their work. Sadly, many did not in years past. Does this mean their surveys are worthless and irrelevant? Of course not. It simply means the surveys were not filed. As to the use and acceptance of these records by a Licensed Surveyor or anyone else, in addition to affording recognition to the value of these important elements of evidence, that is a professional call. As to the cost of business, I gladly pay for private records when I can locate them. They are valuable and important and to reject their value in toto is an odd way to treat evidence.

I have attached the package that was developed to encourage the filing of surveys. Take a look at the dates and number of Corner Records filed in San Diego County before 1980.

[Lee Hixson]

Can you recover costs associated with organizing, indexing, and copying files of unrecorded surveys? It's a fair question and it deserves serious consideration.

When I first started surveying in Northern California (1976) I quickly came to know a C.E. by the name of Ed Stanton, who worked mostly in and around the City of Live Oak in Sutter County. Ed was one of those excellent civil engineers who did exemplary work and truly understood the profession of surveying. He was near retirement, but willingly looked up, and made copies, (for free) of anything that he had done that wasn't recorded. (Most of his work was recorded.)

For a while I considered approaching him about taking over his files. I was quite serious about it even though I eventually decided against it. Now, if I did either accept, or purchase, his records was it my idea that I would turn around and charge anyone else who needed copies? No. I looked upon it as a move that I would make entirely on my own, and primarily as a way to preserve his files, expecting that some day I would turn over all my files to a younger surveyor, including his files. I did not consider charging for it.

It would have been done, first, as a way of respecting and preserving his valuable files. And second, because it would have benefited my own practice. The fact that I would have to expend time and energy to take such a venture on just came with the territory.

Would I expect any/every other surveyor to look at it the same way? No. I can understand someone wanting to try and recoup their expenses.

There are two possibilities: a) a long-established firm with in-house records that include their own unrecorded surveys; b) a firm that chooses to accept, or purchase, some other surveyor's records.

In the first case, I strongly lean toward expecting them to charge very little, if nothing, to give out files. Their files are already indexed. To not charge would be their own good faith gesture to finally provide access to the public something that should have been free in the first place. I'm talking about the general public, not the original clients--rather, those who had the expectation that they could walk into the Recorder's Office and examine copies of any survey maps they felt they need to, and/or purchase copies for a minimal copy fee. After all, they "should have" been available for the public to inspect, for free, in the first place.

It's interesting how opinions change depending on your perspective.

Suppose Jane Doe citizen purchases an unfenced lot and wants to build fences. She finds out from older neighbors that in 1960 a R.ofS. was filed at the Recorder's Office on the lot to the south, and that Surveyor X did an unrecorded survey the same year on the lot to the north. Why should Jane have to pay to examine one map but not the other?

And as for copy expenses, if I want to I can go to the Recorder's Office and take digital camera shots of any maps I want to. For free. If I want copies they are a few bucks each. From the public's perspective, it seems to me that they shouldn't be more burdened from one category of survey record, as compared to another.

Now, if one does feel it acceptable to charge for copies, shouldn't it be only for the reproduction costs only? A few dollars? Should the public have to shoulder all other costs associated with a private firms decision to take over another surveyor's records?

I'm not taking a hard line stance here. Just trying to shed light on the subject from the public's standpoint. It deserves discussion.

[JasonCamit]

I think that your client is burdened with paying you for your research time on their project and it is an associated cost of the overall project that you are performing for them. You most likely will be establishing research cost in your proposal regardless if you time is spent at the county records or at a private companies files. This is a question of time spent researching. If one person comes in once a year it is not that much of a monetary burden for the private company to provide that info for little or no cost. But if you receive calls once a day or 3 times a week, would you be willing do hire someone part time to service these requests and bare that cost, while your other employees run the day to day business?

Where I worked we were willing to provide our records to the county so they could scan these records and index them in their system. There answer was no. They did not want to allocate resources to accomplish this. And technically I do not think the county is in the business of making a profit for any of these services, and they function on public funds. How can you expect a private firm to do the same when they are in the business of making money.

Lets be clear. Nobody ever made a bundle of money with old unfiled records. And when I say unfiled records, it pertains to field books, field notes, plats, map of surveys, etc. The research time to collect all of this data takes time when performing a comprehensive research. The time is substantial when you have several requests quite often. I do not think that anyone knows the resources it takes to perform this research, unless they are in that situation. I believe that is why there is such a difference of opinion.

We just wanted to break even when we provided research and unfiled records.

[Greg Ippolito]

Private records can be great as long as you know where to find them. Even if you know who currently has off record information it can be difficult to determine what records are in the area where you are working. (especially if you are looking for untagged hubs). I don’t have a problem with people charging a fee, I just want to know where I should be looking. It would be great it the people who are holding these records could make it known (to everyone) who they are that way if they are willing to share their information we all know who to call when we find something. Maybe over time it could be incorporated into Mr. Pallamary’s very helpful tie-points website. (just a thought…)

[bruce hall]

Michael. that stuff from the 1980 jppc is really interesting reading. Especially the part where the board says that a RS must be filed for a replacement monument due to degaradation of the existing monument, Or at least I think that is what they said.

Very enlightening and relatively old stuff as look back at it from 2010.

Thank you.

[dmi]

My beef is not with the folks who value the records and have spent 10s of thousands to buy the records and thousands upon thousands to maintain those records. My beef is with those who used the records to monopolize the market.

It is easy to be magnanimus in the abstract, but few will be happy when they continually loose out to lower fee proposals and then are hounded for their records......

I wish we could get a fund together to buy out all of these records and make them truly public......

Like, I said, I have no problem with amassing these records, it makes good business sense and if I had the chance I would do the same. But it does not change the fact that this black market in records is hurtful to the public.

[Ben Lund]

Unrecorded surveys showing evidence of perpetuation of original monuments by setting new ones is extremely valuable and critical to the protection of the public. If the “highest priority” of the BPELS is to protect the public, why isn’t there a move to make these unrecorded surveys available to the public? I don’t understand why we don’t “force” counties to take, index, file, and provide these records not only to the professional land surveyor but ANY member of the public.

Speaking to those who have these precious unrecorded records. It is infeasible to inform all of the professional land surveyor community (let alone the general public) that you have an unrecorded survey of real property with information that controls the location of the property lines.

I applaud the efforts of those who rescued these cherished documents but it is not your burden nor is it in your capacity to provide these records to the general public. I feel very strongly that to truly protect the public, these records must be brought to the county offices and filed immediately. I would support statute that forces owners of these records to give them to the county records and for the county to accept and file them. There is no other logistically feasible way to protect the public.

[mpallamary]

By the way and so the record is clear as to what I do, these records are available because I make them available. As a standard condition of all my contracts, including the new ones I enter into, after 3 months time, once a project is closed, I charge a standard fee of $150.00 to recover all files. In other words, if I did a job for a client last year and they come back to me to obtain a copy of some maps we generated, I charge them the recovery fee. I do this with all clients and it is part of our contract. I also waive the research fee for anyone who cannot afford it or if it is a hardship on them. The files are located in a storage locker miles from my office and it takes time to get the files. Everyone knows where to get the files. The records I have are always available and I gladly share them with others.
The counties are not the greatest choice to file records. There are many reasons this is so including budgetary constraints that prohibit this effort. As to public records, these are available by law under the California Public Records Act. This is one of the reasons I developed www.tiepoints.com. I am trying to identify these records so they are available.

Sean Englert in San Diego is doing some great work in this area.

[Ben Lund]

Mike,
Again, I have to applaud your efforts and this is just one of many ways you have helped the land surveying community and the general public. If you hadn’t rescued these records they most likely would have been lost forever without any evidence of their existence.

I have also visited www.tiepoints.com and am very impressed with the amount of valuable information you have on the site.

I have read (and have a special folder for) many of the letters and articles you have written and I find your opinions resonate with mine.

Even though I agree that some counties have budgetary constraints I don’t believe it is beyond their capacity to provide a satisfactory service to provide these records. Is there a provision that allows you to record or file these records now?

Supposedly “Everyone knows where to get the files” yet I wouldn’t know where to get them unless I was reading this thread or previous threads or happened to come across your website all of which could be argued does not fall into the standard practice of care for researching property boundary evidence.

[JasonCamit]

I agree with Mike, the counties are not the best place for some of these records. It should be and it makes sense that that is where they should be. But reality is, if we were to take our records to the county today for them to file, free of any monetary compensation for the upkeep that we have contributed, these records would be put in a corner, lost, or thrown out over time. They do not want to deal with them, sad but true. They have other issues that rank higher than indexing unrecorded surveys. Its just a fact. Thats why these unfiled information is like your faithful dog that you have groomed and loved for many years. You would not want to give him to someone that will chain him up in the corner of the yard and feed occassionally.

The people that take these files and index them, do it because they understand their importance to the public and the industry. I am sure that no one ever created a boundary monopoly with the possession of such files. If so, he should publish a book on this amazing business plan.

[Greg Ippolito]

Ben – I agree. How does the public benefit when the best available evidence may be in someone’s dusty droor across town and the average business and professions code practicing surveyor does not know that.

[dmi]

I know for a fact there are areas in the state where private survey records are held out of view of the general public and it is for the specific purpose of protecting turf. The idea of any one surveyor or firm purchaisng records is for the purpose of furthering their own private interests.

The notion that counties cannot hadle the job is just plain silly. My experience throughout the state has been mixed, but by and large the service provided is far better than having to call Mike, make an appointment and give em $150 and wait for a time when he can send someone down the road to the storage and pick trhough the records. On most jobs, the fees for research are far less than $150.

Don't get me wrong, I am not critical of Mike's business model. He is merely taking advantage of the way things are. At the same time, we are concerned that Mike be treated fairly, we should not lose sight of the fact that the issue is FAIR TREATMENT OF THE PUBLIC and what right if any the public has to records that shuld have been made public in the first place.

Further there are someplaces, where to do a thorough job of research, a surveyor would have to go to at least a half dozen other surveyors on bended knee begging to see their records as well as the typical research at the city/county. I cannot see this as the best way to do business or protect the public......

[JasonCamit]

Dane,
If you know for a fact that some surveyors hold these records to protect turf, why haven't you contacted the board and filed a complaint? Or come together with the surveyors in the area and collectively file a complaint if it creates an unfair business practice (monopoly) or violates any other law?

As far as the county records. We have tried in our area and they were not interested. Mind you, this was years ago, but the budget crisis has made there operating expenses much worse today. If it is the consensus of the survey community that the counties should have these files, maybe we should get their input. They will be be responsible for the indexing, filing, distribution, etc of these files. What is there position on the issue? I bet you will be surprised at there response, if we take a big cross-section of there opinion.

[mpallamary]

Thanks guys! Your input has great value to all of us and I applaud everyone for their contributions. Some of us go back many years and some of us have only met through this forum. Regardless, we are heading to the same place I hope.

My goal in developing www.tiepoints.com is to fill a void. There are no other resources out there along these lines and I am hopeful that this will provide a forum for that to happen. Time permitting, my goal is to develop a central repository for this kind of information and to develop a list of where to find these records.

It would be nice to have a listing of these unrecorded files and records so we can let others know how to access them. I am gathering those up. Here in San Diego we have such a list. Other counties and chapters should develop such a list. if you do not have a place to post this information, I will gladly do it.

http://www.sd-surveyors.org/PrivateRecords/index.php

Also see recent editorial in POB.

http://www.pobonline.com/Articles/Colum ... 0000766674

[E_Page]

Interesting difference of opinions.

It seems that all (or nearly so) see a responsibility to preserve old records for the benefit of the profession and of the public.

Some feel the responsibility enough to actually do it, for some at significant expense. These people feel that it is fair to expect some payment to fulfill requests for copies of this records to offset their costs. It is noteworthy that there was no mention, or even hint at making a profit on old records.

Others feel that those in possession of old records should provide copies for free or for the cost of making a copy because it's the right thing to do. This group says that's what they would do *if they had old records of value*. At least one here had an opportunity to obtain a set of valuable old records, but apparently didn't feel a strong enough responsibility to do it, but nonetheless has very strong opinions that others share what they have worked and spent to obtain and maintain.



So I see these two positions as follows:

1. I have these records that I'm willing to share with anyone who needs them. But they cost me, so I need to charge you some.

2. I have nothing to share, but if you do, you should to make up for the fact that you were such a scoundrel for hording them in the first place by giving them to me for free. Yeah, I could have had something to share, but hey, that's not MY responsibility. But it is my right to expect something for nothing.

[E_Page]

Willard,

You misunderstand the value of old records completely. They are used to help intertret some of the evidence to determine where the boundary is. They are never used to move a boundary.

Unrecorded surveys, like any other, must be evaluated on their own merit.

If the landowners have been occupying to a line marked by an unrecorded survey for 40 years, but you determine the line to be elsewhere based upon more distant, but recorded information, who is moving the line. There it is, monumented, established, and accepted for many, many years, but you say "No, it's over here!" You then are moving the line, not the surveyor who obtains that unrecorded map, learns the history of the line, and declares the recognized line as the boundary. He has moved nothing, only found what is.



A lot of you guys are wanting to go back and punish present surveyors for the acts of past surveyors. That's just ridiculous.

Yes, those surveyors so many decades ago should have been filing their maps regardless of whether it was common to do so. But they didn't. That is now ancient history.

The fact is that unrecorded surveys exist, and many of those records are quite valuable, and in many cases absolutely necessary to understand the significance of some field evidence.

If you overlook unrecorded notes or maps simply because they are unrecorded, you are being less diligent in your research than many surveyors.

Although we are required to file our maps (in many cases), there is nothing in the law that states that a survey must be filed to be considered valid. The validity is determined by the methodology of the surveyor, and the subsequent acceptance by the affected landowners.