Map v. monument

[Gene Kooper]

Yes, Mr. Hall, the court ruled that even though the original surveyor blundered the corners by a reported 13 feet, the monuments still hold over course and distance. A local attorney refers to the case as Colorado's "blunder rule". My understanding is that the "extra" 13 feet would have allowed the developer to build one more condo on the replatted lots 3, 4 and 5 of the Vasquez Village subdivision.

Steve Gardner mentioned that I made his "head hurt" when he tried to understand why the court mentioned that "the southeast corner of Lot 6 was consistent with a distance call on the plat for that location.." when the south line of lot 6 is stated to be 13 feet south of its platted position! Not to mention Steve's puzzlement regarding the court's interpretation that, "Duane v. Saltaformaggio, 455 So. 2d 753 (Miss. 1984). does not support a contrary conclusion. The exception to the general rule relied upon by the court in that case is limited to those rare instances in which the locations of monuments are themselves inconsistent, thereby creating a conflict between monuments." I skimmed that case and it appears to concern an old subdivision with two sets of monuments to choose from!

Unfortunately, Grand County Colorado only has indexes of their plats available online. I may have some additional information after chatting with the lead defendent, Max Garwood. The defendents are all from the same area of the Nebraska Sandhills that I come from. Mr. Garwood is a good friend of my father, but no longer has an interest in the property (and thankfully so according to my dad).

Gene

[Gene Kooper]

I am not sure why the Colorado court decided to cite Duane v. Saltaformaggio other than to say that on rare occasions, an exception to the general rule that monuments are controlling can be justified. I presume that the defendant's attorney made note of Duane v. Saltaformaggio in their pleadings and the court answered by saying that case was not precedential because it concerned an inconsistancy between monuments, not the case at hand of an inconsistancy between monuments and measurements.

I emailed the case to you because some posters expressed an interest in posting any applicable CA case law. I thought this Colorado case might spur some additional discussion regarding what conditions and evidence may rise to the point as being regarded by Colorado courts as an exception to the rule.

I didn't want to see your question fade into obscurity with only a handful of replies! ;-) And besides, I thought that my good friend Ian should know that we have a "blunder rule" before jetting out to take the exam next month.

Cheers,
Gene

[Anthony Maffia]

Steve, it sounds like the lot 5 went south an extra 13 feet. Next, Lot 6 was monumented the platted dimensions, but perhaps its south line is now outside of the boundary of the map, thus reducing its size by that 13 feet.

The Miss. case had multiple sets of inconsistent monuments.

This settles it for me, and I'd have something to point to if I were ever questioned.

[Anthony Maffia]

Now it'd be to the pipe, because of that case. It's in a different state, but is close enough to this situation.

[Gene Kooper]

Steve,

Here are a couple of mining-related items that you may find informative.

The Act of April 28, 1904 (30 USC Sec. 34) explicitly states that original, undisturbed monuments MUST ALWAY be regarded as superior to the patent description for defining which ground was patented. As a U.S. Mineral Surveyor, the monuments that you set are sacrosanct. Here is the full text of the act.

"The description of vein or lode claims upon surveyed lands shall designate the location of the claims with reference to the lines of the public survey, but need not conform therewith; but where patents have been or shall be issued for claims upon unsurveyed lands, the Director of the Bureau of Land Management in extending the public survey, shall adjust the same to the boundaries of said patented claims so as in no case to interfere with or change the true location of such claims as they are officially established upon the ground. Where patents have issued for mineral lands, those lands only shall be segregated and shall be deemed to be patented which are bounded by the lines actually marked, defined, and established upon the ground by the monuments of the official survey upon which the patent grant is based, and the Director of the Bureau of Land Management in executing subsequent patent surveys, whether upon surveyed or unsurveyed lands, shall be governed accordingly. The said monuments shall at all times constitute the highest authority as to what land is patented, and in case of any conflict between the said monuments of such patented claims and the descriptions of said claims in the patents issued therefor the monuments on the ground shall govern, and erroneous or inconsistent descriptions or calls in the patent descriptions shall give way thereto."

The last sentence states that monuments, "shall govern, and erroneous or inconsistent descriptions or calls in the patent descriptions shall give way thereto." To my way of thinking, an inconsistency in the patent description implies that the monuments were set in error.

Below is an extract from the July 12, 1904 DOI Land Decision, Sinnott v. Jewett (33 L.D. 91). It is the first decision issued by the GLO after the above act was passed. In the below extract, the Department states the plethora of case law supporting monuments over course and distance. I took special note that the appellee's counsel did not cite a single case to support their opposing premise. The full case can be downloaded from the DOI Office of Hearings and Appeals web site at: http://www.oha.doi.gov

"The principle is thus stated to be settled and universal, that where boundaries of a tract are described in the conveyance thereof by courses and distances and by reference to natural objects or fixed and known artificial monuments, the latter element controls in the event of disagreement between the two. No authorities to the contrary are cited by counsel for the Silver Monument applicant (appellee here), and none exist so far as the Department is able to ascertain."

[Gene Kooper]

Well, the new manual does say in Chapter X that, "the patent issuance is final, except in cases of fraud or mistake, which are subject to a statute of limitations." I have seen examples where the U.S. Attorney General forced mine owners to surrender their patents, usually based on a charge of fraud.

The 1904 law and the Sinnott v. Jewett decision are discussed in section 10-211 of the 2009 manual. Section 10-226 gives some criteria for the acceptance or rejection of mineral survey corners. The old BLM critera for rejecting a monument was "gross error or fraud". In section 10-226 that has been modified to "gross error, mistake, or fraud". Your guess is as good as mine as to what might construe a mistake. Is that similar to some "material discrepancies"?

Gene

[Jim Frame]

Remember that much, if not most, of the case and statute law on the subject deals with surveys in which the lines were actually run on the ground. In that context it makes sense to honor the monument as best representing the intent of the subdivider, because competent persons followed the line to the its endpoint to set the monument. But in modern urban/suburban subdivision practice, the actual lines are rarely run. Monuments are set by radiation from control points located for convenience, and even a competent person setting the monument may not be able to sense from the geographic context that he's setting it in the intended location.

At some point the law has to reflect changes in practice, and time-honored principles that applied to practices no longer in use need to be set gently aside. Elevating a mistake to a fait accomplis without a darn good reason for doing so does not well serve the interests of the public.

.

[E_Page]

I'm not certain that the basis of the court decisions along these lines is rooted in survey procedure, but rather on physical evidence readily available, visible, and commonly relied upon by reasonable landowners. As far as I can recall, the courts have always acknowledged that mistakes in survey procedure do occur, yet have rarerly made that a deciding factor.

Almost no landowners, whether or not they have a copy of the map, once they see monuments in the ground, are likely to go out and spend hundreds or thousands of dollars to have another surveyor check their veracity.

You might be able to convince a court that, in some recent instances, it makes more sense to hold the map because of procedures in the field, map preparation and checking, zoning ordinances, or the bureaucratic temper tantrum of a planner or deputy county surveyor. That may make sense in a case where it was or should have been obvious to the landowners that the iron was out of place.

For the basic legal principle, I think that it is, and will continue to be, whether a reasonably intelligent, non-surveyor landowner, upon seeing a monument, would believe it reasonable to act in reliance upon it. In land cases, The courts prefer stability over correction to sooth bureaucratic and technical sensibilities of the professions or agencies that allowed the discrepanciy to occur in the first place.

[Ben Lund]

I have to agree with Jim Frame on this one and I would like to add to his comments with a few hypotheticals.

Example1
You find the original monuments set by the map. You find there is no certificate of correction. You take some measurements and find they’re “off” from record. You hold the monuments as identifying the original corners.

Later, another surveyor realizes the monuments were set as offsets, for no apparent reason (rocks and what not in the way), just that’s what was set. His boundary solution involves accepting found originals as offsets.

I think most (if not all of us) would agree that the true location of the boundary is located at offsets to the found original. This is an about face to the “hold the original monuments no matter what” strategy. Here the evidence strongly proves the intention. What if the evidence doesn’t explain why things are off.

Example 2
You find all of the monuments of a subdivision to coincide with the map dimensions except for one that you believe is a blunder? You don’t know how or why it is a blunder, all you know is it doesn’t fit with the other monuments. Is there no room in current case law to say the monument was a blunder?

Example 3
You are plotting a metes description from a deed. You see that you miss closing by 5 feet. You could adjust the lengths and angles using transit, compass, or least squares to force a closer but you find that when you switch one of the bearings from northWEST to northEAST your figure closes.

For me it is all about WHY we hold found originals over bearing and distance as to when we apply this general rule and when there may be an exception.

[Jim Frame]

"For the basic legal principle, I think that it is, and will continue to be, whether a reasonably intelligent, non-surveyor landowner, upon seeing a monument, would believe it reasonable to act in reliance upon it."

Substantial reliance is the key, in my opinion. If the adjoiner in Steve's case had built a million-dollar house at minimum setback from the monumented line, I'd agree that justice would not be served by declaring the house an encroachment. But if substantial reliance can't be demonstrated -- and I question whether the shed in Steve's case qualifies -- then I think it's proper to place more weight on the large body of evidence supporting parcel dimensions as shown on the map, and calling the one errant monument a mistake to be rectified.

Blind adherence to maxims like "the monument always controls" allows inequitable outcomes, and the courts have recognized this by acknowledging permissable deviations from the rule. The reliable answer is "it depends."

.

[E_Page]

Example 1
If the monuments were offsets, why didn't the 1st surveyor find that? What did the 2nd surveyor find that the 1st didn't. You are introducing evidence that the monuments should be rejected not because they were originally set in error, but because they were originally set, and should be accepted to represent something other than the corner. In which case, you are accepting the monument as set in its original location for its original intent, and doing so over the map evidence.

You haven't provided enough info in the example for most (if not all) of us to agree on a true location of the boundary, but rather just enough to ask a lot of questions as to why each surveyor accepted the irons as representing different lines.

Example 2
This seems to be the situation presented in the OP. To my knowledge, there is no room in case law to declare the monument in question as a blunder only on the basis that it is the only one out of its record position. You need further supporting evidence. Finding it out of position is just the trigger to further investigation for answers. Some of those answers may support that the monument's placement was the result of a blunder. That being the case, most often you will still need further justification for a court to reject it and upend the stability of the boundary as established on the ground.

Example 3
Where is the monument in this example? I'm seeing an example of a typographical error which, at this point, only has implications on paper, not on the ground.


The "why" of any situation is important. But what I infer from your post is that you need to be shown a reason to invoke the "general" rule rather than be shown a reason to reject it.

Bear in mind that the courts don't care about your personal preference as to how these situations should be approached. They will look at the facts, and then apply the established law as it is to those facts, regardless of whether that law conflicts with your (or anyone else's) technical sensibilities of what should be.

Forgive me for drawing the comparison, but this reminds me of a conversation I had with my oldest daughter a few years back. I was correcting her spelling homework and said "Sweetheart, the number two is not spelled t-o-o." To which she replied "To me it is!"

[E_Page]

Jim,

I agree with your last post. The key is having sufficient evidence to overcome the legal presumption that the monument controls. Reliance, or lack thereof is certainly one of the factors we must look at.

I don't think that anyone has asserted that the monument always controls, no matter what. The presumption that the monument controls is based upon equitable outcomes.

If Smith and Brown have owned adjacent properties for many years, maybe built a fence, homes and or garages based upon the monuments, then Joe the mathemagician surveyor shows up and finds one of their corner mons out of place, would it be more equitable to honor the map or to honor the monuments which have been relied upon?

[Gene Kooper]

The argument that modern surveying methods somehow modifies (or should modify) one of the most fundamental boundary law principles is flawed in my opinion. No one is saying that there are NO exceptions to the general rule. Survey blunders are possible regardless of the survey method(s) employed by the original surveyor. Embracing that logic, one could defend the absurd position that any material discrepancy found during the retracement of an original survey done by RTK GPS should be corrected in the field by the retracement surveyor. Obviously, the blundered pin was intended to be set at the platted position and that intent should be recognized and adhered to by the retracement surveyor. We all know the perils of relying on a quickie-dickie RTK position.

I'm sure no one believes that older surveys were always run on the ground as described in the original field notes nor that all the lines were actually run. The official field notes for mineral surveys [almost] always begin with a tie to a section corner or mineral monument then the lines are run from Cor. No. 1 to 2 to 3, etc. and finally back to 1. Often the mineral surveyor would run only one side line and stub out the end lines. I know this both by my retracement experience and because for a time, Colorado mineral surveyors were required to report the lines as actually run on the ground in a new Report section of the official field notes!

I have always adhered to the opinion that boundary surveying is boundary surveying is boundary surveying regardless of the jurisdiction or type of survey. Yes, the statutes and case law vary from state to state as do the generally accepted standards of practice. The rules of construction aside, we all adhere to the same general principles. IMHO the real issue here is whether the statutes and case law of California support an exception to the general rule that monuments control. Does a survey blunder rise to the level to be regarded as an exception to the general rule?

Given the situation that Mr. Gardner has detailed in this thread, "Would the California courts embrace a blunder rule and hold the erroneously set pin as the Colorado Appeals Court did in Morales v. CAMB?" Or is a survey blunder rule just plain wrong in California? I do not blindly adhere to the principle that monuments control. To my way of thinking a monument is controlling over course and distance unless I can prove otherwise. In the absence of such proof, the monument controls. I know that many surveyors have the "fix-it" gene. When they find a mistake, they want to fix it. I don't believe a licensed land surveyor has the authority to unilaterally fix the blunders of another surveyor. After the discovery of an error, the surveyor's responsibility is to assist the land owners in resolving the problem. Short of California requiring Torrens title registration for all subdivisions and parcel maps, I don't buy the argument that the onerous and bureaucratic approval process should automatically elevate a parcel map above the set monuments.

So far, I haven't read anthing in this thread that would compel me to hold the parcel map over the monument. However, please realize my handicap of also being a geologist (rockhead) and consequently being denser than the normal surveyor. :) I know I must be missing something in the discussion when folks whose survey opinions I have respected on other fora have opinions differing from mine.

Gene Kooper, CO PLS

[Ben Lund]

Gene,
Well said I agree with your post. It is the WHY underlying the general rule of holding found original that is important to me.

Evan,
If you can’t see my points there is nothing I can do except explain it another way (see below). You hold found original (basically no matter what) because of your experience, reading, and understanding of California statues, the subdivision process, and case law. You believe this is NOT an exception to the general rule and I believe it could be.

Your witness stand testimony would explain California statue and case law says to hold found original. My testimony would explain that surveyors make mistakes, lots are conditionally created based upon paper subdivisions, the monuments are supposed to be set per the conditionally approved map, and that holding a blunder in some cases creates more undo havoc and there has to be a provision to reject the blunders of a survey crew.

Example 1
Options 1: You hold the monuments because that’s what California statute and case law say to do even though you find evidence they were set as offsets.

OR

Option 2: You don’t hold the monuments (as representing the location of the true corner) because you find evidence the monuments are really representing offsets.

What would you do? I hope you would choose option two but from your posting I’m not sure what you would do. If you did choose option two, what you are saying is that there is an exception to the general rule: if you find evidence that explains WHY the location of the monument is NOT coincident with what is described as being set on the map.

Example 2
I created Example 2 because I wanted to take out the WHY portion of Example 1.

Option 1: Because you can’t explain WHY there is a discrepancy, you hold found original.

OR

Option 2: You don’t know WHY the discrepancy, all you know is every found original matches record except for one. You call the monument location a blunder and set a new one in a location that coincides with all of the other witness monuments shown on the map.

Example 3
You have evidence there is a typographical error and you identify it. For some reason the professional land surveyor is allowed to identify and correct a typographical error but not an error in the field.

We are professionals that are able to look at ALL of the evidence and explain why the boundary is here and not there. The examples I gave are simplistic and have been created to prove a point. They are not meant to demean, confuse, or set in place law or professional standards of practice.

[E_Page]

"You hold found original (basically no matter what)"

And you know what I do and what I think, how? It can't be from reading my posts, otherwise you wouldn't have made some of the statements you did.

A presumption is rebuttable. That means that if I find a monument of the character reported on a map in the general vicinity of a point that the map indicates was monumented, unless I can find sufficient evidence to overcome the presumption, I will hold the monument. But that is a far cry from holding the monument "no matter what".

One example of not holding the monument happened a few years ago. I located a lot corner mon that I had previously located. It was 3' away from the location that I had previously located, which was a few hundredths from where the record map said it should be relative to other nearby mons.

When I found it a few hundredths (might have been a couple tenths, but reasonably close), I saw no reason to investigate any reasons to hold the map over the mon. I held the mon.

The 2nd time, I had evidence which led me to believe that the mon was in error. It was set nice and straight, with the plastic cap looking just as it should, sticking up from the ground just about as most those nearby, but I had evidence to suggest it was wrong, starting with the fact it was 3' from my previous location. I looked around, saw a side fence that lined up on a position about where I thought I located it before. I looked carefully at the position I had located it in before and found a clean hole just below some surface duff. I rejected that mon because it was not in it's original position. The map was just one indicator of this, but it was physical evidence upon which I decided to reject the mon.

I would not sit on the stand and say "case and statute law say...". That's what the attorneys argue and the judge decides. I would discuss the evidence upon which I decided to either accept or reject a monument. My technical analysis of the evidence would be guided by established statute and case law that the attorney would cite in his or her briefs and oral arguments.

I would not condescend to the court by explaining that surveyors make mistakes, that the survey on the ground is supposed to correspond to the paper map because they already know these things. I would not lecture the court as to how it should rule and that accepting a blunder would create havoc, etc., 1st because my telling the judge how he should rule on the law would be outrageously presumptuous, and 2nd because that line of reasoning flies in the face of well over a century of boundary law (revisit the opinion of Diehl v Zanger and then try to find cases that reject it's logic - Good luck). I hope you decide to rethink your testimony, or at least how you present your logic before you go there.


Example 1
I don't quite know where to start, so I'll go back to basics. No law instructs us to accept monuments as marking positions they were not intended to mark. If the points were intended as offsets, then they are offsets. Period!

How you get to me using them as the corners if they are offsets is beyond me. You don't tell me how you get from these monuments being just monuments that appear to be in a different location than as called for on the map to having been found to be offsets. You just make the jump. But let's just go with the notion that there is sufficient evidence to indicate that they were intended to be offset points to the corners when set. OK, I've accepted them as such. It is not a matter of rejecting the monuments. It is a matter of identifying their original purpose and accepting them for that purpose.

This is a basic point. I don't understand why you don't understand it.


Example 2
I hope you have better reasoning than just throwing your hands in the air, saying "I dunno, the first surveyor musta screwed up". I would hope that you would investigate other possibilities and find additional or more substantial reasoning to overcome the presumption at law (for case law) and CA statute law than just going with the administraive process because even though the law does not accept it as sufficient reasoning, "To me it is!".


Example 3
A typographical error, not translated to an error on the ground has no real affect on the landowners. It is abstract in nature and can be corrected with no consequences to the parties. In fact, correcting at this stage may avert real consequences in the future. As a surveyor, you need to fix it.


As a professional, you are presumed to have sufficient superior knowledge of the practice of surveying. That includes the application of current law to the facts you find. If you find something amiss, it is your responsibility to find the underlying reasoning, if any. It is also your responsibility to be aware of the consequences to the parties.

The law of boundaries likes repose. That is what it is designed for. Repose with respect to boundaries means that the boundary settled on the ground is presumed to be the true line. Can it be overcome? Sure, but not by deferring to the administrative process alone. It needs more substantial physical (field) evidence to support it.

You are correct that the examples you gave are simplistic. So much so that there is not enough info to arrive at a correct answer, and for you to state that I would do one thing or another in any of them becomes very presumptuous. Each one presents only a staring point for further investigation. I didn't take them as demeaning, but I do see your conclusions as indicative that you need to be careful of making leaps of logic without a solid foundation of facts and knowledge to get from one point to another.

I'm also confused as to how you agree with Gene, and then proceed to argue against his reasoning by arguing against my points.

You agree with Gene. I agree with Gene. But you and I disagree. How does that work???

[Ben Lund]

Evan, maybe we do agree. Honestly it's hard for me to tell. I think you're saying you don't hold monument no matter what...But again, I'm not sure if this is your platform.

[dmi]

"the mapped parcel is at absolute minimum size for the zone, so if the pipe is the corner, the parcel's too small."

Part of the consideration is the intention of the parties, in fact it is the paramount consideration. A monument set, tht defeats the intentions of the parties DOES NOT CONTROL. If the reason for the rule ceases to exist the rule is not applicable.

Clearly, the intention of the subdivider was to create parcels of a size and configuration that would satisfy local agency requirements. If the pipe defeats that intention, it cannot be controlling absolutely....... Do not be confused, this is not an argument for placing Area at a higher level in the hierarchy,but an argument for creating legally compliant lots.

That is my story and I am sticking to it.

[E_Page]

Dane,

That is a line of reasoning that I could entertain. You carry that beyond the simple reliance on the administrative process.

[dmi]

I am not suggesting that anyone fix anything. I am suggesting that we can clearly understand the intentions of the parties by the map that was filed and that as stated here evidence of some original monuments were found that express the intention of the parties and some of these monuments appear to be in harmony with each other and the map as filed,save a particular monument. Even though the line is run and marked upon the ground and is as you have stated unchangable, this is not the case when this prinicple would defeat the intentions of the parties concerned.

There is a further distinction between state authority surveys and federal authoruty surveys. The Congress of the United States passed a law stating that there is no error in the public land surveys and they are presumed to be correct. Private surveyors, in California, do not operate under the luxury of such a statutory protection. The legislature has passed not such law and therefore the private surveys are subject to collateral attack.

[Anthony Maffia]

I pointed that out a few pages ago, that private non-government surveys are not "by law free from error."

[Ben Lund]

I truly appreciate the discussion in this particular thread. I wish we were all in the same room and weren’t limited to just reading posts and snippets of ideas but, for now, it would seem this forum is the best we can do. I also wish I had a little more case law regarding this matter.

Mike Pallamary has given an example of filing a certificate of correction on the map that would explain where the blundered monument is in relationship to the true corner as described on the map. How can this be a solution if we always hold found original?

I have not been a PLS very long so you’ll have to be patient with some of my concerns. It has never felt right to me that there is no way to say that a found original was set in error. I’m not encouraging “fixing” the old surveys, “pincushin-ing” corners, or destroying occupation, acquiescence, etc (none of which I condone). I’m talking about that rare case of a modern survey that erred in setting the monument as described per the map. It seems there are three different camps:

Camp 1: Hold found original basically no matter what.

Camp 2: Hold found original unless you can explain why it was not set in the correct place (i.e. evidence it was set as an offset because of an obstruction, an error based upon an incorrect basis of bearings, an error found in the surveying notes, whatever).

Camp 3: Hold found original unless there is a blunder even though there is no evidence showing why or how the blunder occurred just that there is a blunder.

If I had to guess where every surveyor would put themselves in I would say 30% Camp 1, 50% Camp 2, and 20% Camp 3.

[dmi]

The gospel at least according to one preacher....
"Skelton Boundaries and Adjacent Properties" copyright 1930. My copy is brown faux leather with gold lettering and it seems to be a reproduction of the 1930 version. There is no indication of an edition number that I find.
So turning to ChapterII "Relative Importance of Conflicting Elements"
i will jump around, but this is a very good chapter that relates well to SG's problem and there are numerous case cites.

page 161-Section 174 (dd) Effect of intention,--"All rules of boundary surveying have for their purpose the ascertainment of the expressed intention of the deed, and they are to be applied or taken exception to, depending upon whether their application or disregard most certainly effectuates the intention. "

page 154 section 169 (b) Least liable to error.--"...' The reason why monuments as a general thing, in the determination of boundaries control courses and distances is that they are less liable to mistakes, but the rule ceases with the reason for it. If they are inconsistent with the calls for other monuments, and it is apparent from all other particulars that they were inadvertently inserted, the reason for retaining them no longer exists, and they will be rejected as false and repugnant' (White v. Luning, 93 U.S.514, 23 L. ed. 938 )

page 135 section 152 (4) Exceptions.-- 'Where the control of an artificial monument over a course and distance would defeat the evident intention of the deed, an exception must be made, (Ehrenreich v. Froment, 73 App. Div. 213, 76 N.Y.S. 861) and likewise where their adoption is so manifestly wrong as to lead to an absurd result,(okay I cannot resist... Dane'S corollary THE APPLICATION OF ANY RULE TO THE EXCLUSION OF COMMON SENSE, is just asking for trouble) such as embracing the land of a third party, the monuments yeild to course and distance, and even quantity.(Post v. Wilkes-Barre Connecting R. Co., 286 Pa. 273, 133 Alt. 377)

[subman]

If the monument cannot be moved to agree with the intent of the parcel map since it has supposedly been relied upon, is there an obligation for someone to file the appropriate instrument to make the map agree with the lines on the ground defined by the monuments, via an amended map (SMA66469) or a modification to a recorded map (SMA 66472.1)?

Should notices of violation be issued to require Certificates of Compliance to be recorded on both parcels with a legal descriptions describing the lines as established on the ground between the "original monuments". The lines on the ground do not substantially conform to the approved tentative map, and are likely, for one of the lots, inconsistent with Zoning (lot size) and General Plan requirements. These would have been grounds to deny the recordation of the parcel map if the local agency knew the lines monumented on the ground were not the lines shown on the map before them for approval.

Should the parcels be conveyed in the future as "that portion of parcel A of
PM xxx ..., as defined by a metes and bounds description that matches the lines on the ground?

Filing a ROS would only put in the public record, the opinion of the retracement surveyor as to where the boundary is, based on the found evidence. It would not change assessment lines. Owner A would still be paying taxes on a portion of owner B's property. The Assessor relies on lines as shown on the recorded map, not the lines established on the ground via the "original monuments".

Just more food for thought... So simple, but yet so complex

[bruce hall]

moderators of this site could make this thread a "sticky"?

[dmi]

"Skelton Boundaries and Adjacent Properties" copyright 1930. My copy is brown faux leather with gold lettering and it seems to be a reproduction of the 1930 version. There is no indication of an edition number that I find.
So turning to ChapterII "Relative Importance of Conflicting Elements"
i will jump around, but this is a very good chapter that relates well to SG's problem and there are numerous case cites.

page 161-Section 174 (dd) Effect of intention,--"All rules of boundary surveying have for their purpose the ascertainment of the expressed intention of the deed, and they are to be applied or taken exception to, depending upon whether their application or disregard most certainly effectuates the intention. "

page 154 section 169 (b) Least liable to error.--"...' The reason why monuments as a general thing, in the determination of boundaries control courses and distances is that they are less liable to mistakes, but the rule ceases with the reason for it. If they are inconsistent with the calls for other monuments, and it is apparent from all other particulars that they were inadvertently inserted, the reason for retaining them no longer exists, and they will be rejected as false and repugnant' (White v. Luning, 93 U.S.514, 23 L. ed. 938 )

page 135 section 152 (4) Exceptions.-- 'Where the control of an artificial monument over a course and distance would defeat the evident intention of the deed, an exception must be made, (Ehrenreich v. Froment, 73 App. Div. 213, 76 N.Y.S. 861) and likewise where their adoption is so manifestly wrong as to lead to an absurd result,(okay I cannot resist... Dane'S corollary THE APPLICATION OF ANY RULE TO THE EXCLUSION OF COMMON SENSE, is just asking for trouble) such as embracing the land of a third party, the monuments yeild to course and distance, and even quantity".(Post v. Wilkes-Barre Connecting R. Co., 286 Pa. 273, 133 Alt. 377)

page 102 Section 111(K) Over Course and Distance "In the final analysis the rigidity of the rule, due to the greater certainty and correctness usually found in monments, is relative and ceases when the application defeats the intention of the conveyance under consideration. The rule authorizes no other departure from course and distance that is necessary to effectuate the apparent intention." (Taflifer Co. v. Falk, 105 Misc. 6, 173 N. Y. S. 251)

page 113 sestion 122 (M) Control as between Several Monuments. --(1) The rule.-- "When there is conflict between monuments, that which is most certain, least likely to mistake and in keeping with the expressed intention will prevail,(Hubbard v. Dusy, 80 Cal 281) and if one of the monumnets in conflict cannot be found, this circumstance in itself is suggestive of an errorin the call for it , and the other will control.(Lance v. Rumbough, 150 N. Car. 19,63 S.E. 357) Likewise where one the conflicting monumnets is in agreement with other monuments or the courses and distance of a plat or deed and the other not, the harmony at once establishes control."