"The Pincushion Effect"

[LS_8750]

I read Jeff Lucas' book with a certain amount of excitement and a certain amount of horror. It is a good read. Lucas provides insight on the 2006 Kneer v. Mauldin case. It is one of those books where as you read each paragraph you ponder the decisions you have made in similar past real world circumstances.

After finishing it I had to wonder. Lucas is obviously aware that lawyers argue a point of view, whereas surveyors are to remain impartial. Lucas seems to have focused on cases where surveyors had made some fairly obvious bad choices. The book is a good read just to see the litigious wake surveyors have been leaving behind as of late.

I believe Lucas in "The Pincushion Effect" advocates "occupation" and "best available evidence" to the extreme, perhaps simply to drive the point straight into our thick impliable surveyor foreheads. It also seems to me Lucas advocates the "boundary line agreement" as the go-to option for resolving boundary disputes a little too much for my comfort level. I learned a great deal from his book, but I felt I should also be cautious.

For example, Lucas does not cite the California Supreme Court's 1994 Bryant v. Blevins case, where the court says the "common theme (of California case law regarding boundary line agreements) is a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation." In other words as I understand it, here in California if we can show by sufficient collateral and/or extrinsic evidence where that corner is, or should be, the weight of that evidence should trump occupation when occupation conflicts with the evidence.

Another thing Lucas talks about is intent. I agreed with him on the surveyors role in reading the intent of the document. I was reminded of that 2005 LS Exam problem where the protracted subdivision abutted the airforce base. I never agreed with the "correct answer" to that problem with respect to the small gap between the one lot and the airforce base. Give the gap to the adjacent lot owner. Don't try to tell me the correct answer to the problem is to track down every descendent of the old subdivider and ask what was their grandaddy's intent. According to his book, Lucas would reach the same conclusion.

Has anybody else read this book? Are there any topics covered in this book that may be of particular interest here in California?

[dmi]

I do not believe that Mr Lucas is a California licensed land surveyor, nor is he admitted to practice law in the State of California. Notwithstanding these facts, Lucas provides educational reading. I believe it is important for us to understand HOW we are SUPPOSED to practice under CALIFORNIA law. In part this understanding maybe at odds with the opinion of Mr. Lucas, but Mr. Lucas does not put his license at risk when he writes a book or an article.

[pls7809]

LOL - TKDW is my acronym for Mr. Woolley - "Thread Killer David Woolley" in case you couldn't figure that one out.

[Jim Frame]

Let’s play; a parent lot is 100’x100’ on the record plat. The first out grant is the east 50’; the second grant is the west 50’. The surveyor determines the lot to be 101’ x 101’. Where does the 1’ go and why? Hint: Are the contracts as written complete? Do they infringe on the right of another? Are they ambiguous? Suppose gap is 0.5’ or 10’, different answer? When distributing the 1’, do you have a reference or a reference legal theory?

The facts on the ground would probably determine the answer in a real-life situation. However -- continuing to play -- if there were no evidence of possession, the two conveyances are separated by a respectable difference in time, and there's no documentary evidence of grantor intent to retain a strip (e.g. the AP map showed only two parcels, as opposed to two 50-footers and a 1-foot strip), then I'd say that the first out gets his 50' (honoring the four corners of his deed) and the second gets 51' on the inference that the grantor was unaware of the measurement discrepancy and intended to convey all his remaining interest to the junior grantee.

I mention the time differential because if the two deeds were executed in quick succession, perhaps during a meeting with both grantees, a case can be made that the two conveyances were essentially simultaneous and that the discrepancy should be distributed between the two. But that would be a one-off situation and should be handled accordingly.

.

[Stephen Johnson]

quite logical application of Jr./Sr. rights.

[btaylor]

The facts on the ground would probably determine the answer in a real-life situation. However -- continuing to play -- if there were no evidence of possession, the two conveyances are separated by a respectable difference in time, and there's no documentary evidence of grantor intent to retain a strip (e.g. the AP map showed only two parcels, as opposed to two 50-footers and a 1-foot strip), then I'd say that the first out gets his 50' (honoring the four corners of his deed) and the second gets 51' on the inference that the grantor was unaware of the measurement discrepancy and intended to convey all his remaining interest to the junior grantee.

I mention the time differential because if the two deeds were executed in quick succession, perhaps during a meeting with both grantees, a case can be made that the two conveyances were essentially simultaneous and that the discrepancy should be distributed between the two. But that would be a one-off situation and should be handled accordingly.

.

Sounds like a good answer to me.

And good to see we can use the "quote" tab finally!

[E_Page]

Ohhhh Jim. If Dave is going to continue his form from that other thread, he is going to be making some remarks about your negligent practice and unsavory character for underhandedly denying the landowners their title rights and their right to go to legal war with each other over trifling differences.

By the way, I agree with you. Once you have found a conflict in the writings as they are placed on the ground, you must look to extrinsic evidence to attempt to determine the meaning that the original parties gave to the terms of the deed. But I don't want to turn this thread into an extension of that one.

If anyone wants to continue that one, please find it and post there, or start a new thread. Keep this one on the topic of Clark's OP.


I've read most of that book but got side tracked into other matters since mid-Fall.

I don't think that you can fully equate occupation and "best available evidence", nor have I come to the part yet where Jeff does that. Sometimes occupation is the best available evidence to a particular boundary problem, but more often it is merely supportive of other, stronger physical and documentary evidence.

The "best available evidence" is far more inclusive than limiting to one type or another. We should always base our boundary determinations on the best available evidence, regardless of its type classification. I've found that most often, the best available evidence is a mixture of various types of physical and documentary evidence that fit together in a complex manner which is often highly dependent upon chronology.

How can 50' become 51', or any record dimension become a different value according to our present measurements? Easy, we've all seen it to varying degrees. We follow the record dimensions to help us find the existent corners. Often we find physical evidence that definitively places the corner at a certain location on the ground, right where the original parties first established it. The record told us it was 50', but our regularly calibrated and recently checked modern equipment tells us that the distance measures 50.89' (51', rounded).

I've found such between record monuments, between monuments NOT mentioned in the deeds, but clearly and historically proven to have been set to establish the corners in question and accepted by the original parties to the transaction as such. Any of us have seen that a record 80 chains on a record straight line can be several dozen feet short or long of 5280', and can have a significant bearing break somewhere around 40 chains.

We all hope that no significant discrepancies appear when we attempt to place the boundaries per a record description on the ground, or that if we do find discrepancies between the written description and the apparent lines of occupation, that those discrepancies can be easily accounted for as carelessness in the placement of a recent fence or something which similarly does not begin to look like ot might become part of the "best available evidence", meaning that the record description remains high in that mix or maybe in conjunction with a few reliable monuments, is the "best available evidence".

But in many cases, the hope of no, or only insignificant discrepancies is a pretty slim hope. In many cases, there will be one or more significant discrepancies that the surveyor will have to attempt to find the source of.

Chief among the questions we must ask ourselves when looking for those sources are:

"What did the grantor think he owned and what did he think he was conveying?" and

"What did the grantee think was conveyed".

Also high on the list is:

"Were the boundaries were ever actually established on the ground, and if so, who did it?" and

"Did the original scrivener omit mention of monuments that may have existed at the time of conveyance, and is the lack of mention of monuments or lines of adjoining senior parcels a matter of an intent to create a new, separate line very near an existing line and to ignore existing monuments, or was the omission out of ignorance or a desire to condense the description down to only those terms the scrivener (likely an attorney or paralegal who was only interested in running some sort of closure) considered important?"

When a court interprets intent of a contract after execution, it will consider the acts relative to the agreement of the parties of the agreement. If the acts of the parties appear to harmonize, do not blatantly contradict the terms in the agreement, but appear to give them a different (and legitimate) interpretation than their most literal or common meaning, the court will accept the interpretation that harmonizes with the actions.

It does this because it must interpret the intent of the parties at the time of the agreement and cannot interpret it based upon new information that was not available to the parties at the time of the agreement. New measurements would be such information inadmissable to determine past intent.


In my reading of "Pincushion" up to this point, I haven't gotten the impression that Jeff is placing occupation above other forms of evidence, but is warning of the potential perils of completely ignoring it in favor of a boundary calculated and monumented in compleat fealty to dimesions cited in a deed to the exclusion of considering other obvious evidence.

Perhaps I just haven't gotten that far, but I don't recall where he advocated ignoring the deed dimensions in favor of a fence that has no other supporting evidence.

The danger of ignoring lines of occupation that appear to be in conflict with the deed (dimensions), is that the lines of occupation often lead the surveyor to more substantial physical evidence of the original boundary establishment.

Often, like the deed dimensions, the occupation is evidence which helps to guide one to the original boundaries. conversely, if not properly considered, each of those can also lead one away from the original boundaries to either a line which had never previously existed (inaccurate deed dimensions), or to a line that was established without regard to the true line (an errant fence, or one placed merely for convenience).

With regard to Boundary Line Agreements, again, I haven't gotten that far in the book, but have a pretty good feel for Lucas' understanding and philosophy of boundaries. I suspect that you may be confusing the legal remedy of a Boundary Line Agreement with the doctrine of Agreed Boundaries.

One is a formal agreement to define a previously ambiguous line to be in a particular location. That agreement may be based upon a line that was previously informally agreed to or it may be to a line that the adjoining landowners give new definition to in an attempt to place the line within the area of ambiguity and in a location they can agree to.

The doctrine of agreed boundaries occurs where the line has been established by some means, possibly unknown to the current landowners, but has had the reputation of being the common line for some period of time, generally for the period stated in the statutes or repose or longer, and where each affected landowner has recognized or otherwise acquiesced to that line as demonstrated by their past actions.

A Boundary Line Agreement is formally executed by the landowners, being cognizant that they are giving definition to a line unlocatable, or the location of which is in doubt by its written terms.

The Doctrine of Agreed Boundaries is invoked by a court when a dispute arises over a previous settled boundary in order to resettle the boundary at its previously established position.

[Jim Frame]

What legal basis gives the junior excess?

Equity. The senior grantee got everything he was deeded; he has no claim on anything more. The grantor's inferred intent was to convey his remaining property to the junior grantee.

Yes, inferring intent entails some risk, and any complicating circumstances (e.g. evidence of grantor's intent to retain the gap, close relative timing of the two conveyances, occupation) bring up the "whoa Nelly" flag.

In my experience the litigation usually involves less than one foot

I'd be interested in seeing any reported cases in which a de minimus gap (here defined loosely as "unusable for any practical purpose as a discrete parcel") was not awarded exclusively to the junior grantee absent a claim by the original grantor.

.

[tharris]

From Brown’s Boundary Control and Legal Principles, section 13.11:
“When an overlap exists between two parcels, the senior or first owner receives what is coming to him or her and the junior owner has the remainder. Where there is a gap, and the two parcels do not meet, neither has title to the surplus, because the original grantor did not sell it.â€￾

I referenced this in another thread regarding intent and figured it was worth posting again, though I suppose most have already made up their minds on this issue.

The words “inferredâ€￾ and “inferenceâ€￾ show up in earlier posts. As I see it, (and what I believe to be Mr. Woolley’s position here) is that the deed simply does not contain language about what the owner “reallyâ€￾ meant to sell – i.e. the remainder of his lands. The language that is actually used (east 50 feet/west 50 feet) is in fact clear and unambiguous.

And equity is worth considering, but as was pointed out, why doesn’t the first deed out get a half of that excess? If we are going to speak for the original subdivider, why not just say he wanted to grant half of what he owned to each person, regardless of the actual lot dimensions?

I suppose the related point to all of this is the importance of the language we utilize when describing land. Looking again at the quoted portion of Brown, which explains his position on the existence of gaps and overlaps, the actual context is that of how to NOT write a description.

[PE_PLS]

This question is directed towards DWolley, but others are free to answer.

Would you close a very small gap? If in the same example you mentioned, you had a deed lot 100' wide, and your measurement came to 100.03' would you call out a 0.03' gap on your Record of Survey and go through all the legal remedies to close the gap? Or would you opine to who the gap belongs to and show as such on your Record of Survey? Would you really call out a 0.03' gap, or a 0.01' gap?

[LS_8750]

Thanks for posting everybody!

Evan,
When I used the terms "occupation" and "best available evidence" in that particular context I was referring to that shoulder shrugging, head scratching, heckifIknow trace evidence that is the sum entirety of your search, and you still don't feel you have the supporting evidence to even believe this "best available evidence" is worth hanging your hat on. It is the sort of evidence that damns you if you use it and damns you if you don't. Like the center quarter corner search when you've just traced an old fallen barbed wire fence line buried underground that is rusted away and gone by the time you get within a 150 feet from your search area and that is all you have, nothing else, not a trace except the knowledge that somebody put up a fence a long time ago, no record of the center corner being set, no parol evidence as to how the fence got there, nothing.


Mr. Woolley,
I will play... however, without cited court cases (I will be pleading for your guidance directly later on below), only reading the four corners of the contract.

East (50') conveyed.
Later, West (50') conveyed.
Junior read in light of senior.
E (50') + W (50') = T (100')
E = W = 0.5T
No gap in title exists (no gap should exist on the ground).
Granter clearly conveyed all lands.
The rest depends on occupation:
Did E50 take possession of his E 50'?
Are both lots vacant?
My answer depends on the circumstances discovered in the field.
Question: If both lots are vacant and I split them exactly in half, is there case history that W50, junior, will win that extra 1 ft. in court and have 51 ft.?



Now, here is what Lucas has to say on the topic:

Note Lucas uses a nearly identical example to Woolley's, the only exception is that Lucas uses the aliquot 40 acre government lot, 1320 ft. x 1320 ft. It turns out Lucas' lot was measured to be 30 ft. wider. Here is what Mr. Lucas has to say:

"The junior is always read in light of the senior conveyance. Reading the junior deed in light of the senior conveyance, the senior was conveyed the 'west 660 feet' and the junior gets the remainder, especially when it appears that the grantor intended to divest himself of all that he owned. This case clearly indicates that the grantor was intending to sell his entire 40-acre tract, or what remained of it, given the nominal dimensions in the deeds. Other evidence plays a role here as well, such as the passing of time, occupation, lack of any evidence that the gap was actually retained by the grantor (e.g. being used for ingress and egress)." [page 94]


So, here we are again. That other thread regarding gaps has popped up like a zit on a prom queen's nose.


This issue seems to fit the criteria I had in mind for discussion back in my original post. Mr. Woolley, I sure could use some California case history references to clear this one up.


Cheers.

[Steve Martin]

Be careful with using aliquot parts of PLSS sections as examples in this discussion. Descriptions using terminology such as "The East 10 acres according to the official government plat thereof" may trigger a different set of rules for retracement, i.e. proportional 10 acres.

[LS_8750]

You are right Steve. Actually Lucas' example did not mention "government lot", just a 1320' x 1320' record lot that was measured 30 wider than record.

[Anthony Maffia]

... you had a deed lot 100' wide, and your measurement came to 100.03'

Any measurement between 99.6' -100.4' is in agreement with a stated measurement of 100'

[rpost]

Dylan,

Good question about the 0.01' discrepancy. I just ran into this situation the other day. I just can't talk myself into showing a 0.01' sliver.

[bryanmundia]

Any measurement between 99.6' -100.4' is in agreement with a stated measurement of 100'

How did you come up with this Anthony? I will take a shot at what I think about closing gaps. If I measured between two found original monuments and came up with a distance of 100.00' or even 100.06' I would look at how confident I am in my measurement before making a final decision.

If I occupied both points and shot them from additional control and once I have performed my adjustment then I could answer this question. I honestly don't think that the majority of us could measure better than +/- 0.02'-0.03' in positional accuracy for any given point.

With that being said, I would be comfortable, using the survey methods that I am used to in closing a gap that is within 0.06' of record +/- since I really cannot measure any better than +/-0.03' accuracy per point.

[Anthony Maffia]

How did you come up with this Anthony?

Off topic - Significant digits: the called for measurement is 100 feet, not 100.00 feet. So, 99.6' is closer to 100' than 99' so it "matches" record.

Also, N 56d40'25" E "matches" record bearing of N 56 3/4d E.

I'd still call out the difference on a map, but the record distance would be reported as 100' not 100.00'.

-------------------------

On topic: I don't think center of open IPs can be measured to 0.03'. That is 0.015' at each end, perfect gun/rod, tops of pipes not squashed into weird shapes, pipes perfectly plumb, ...

So, I'd accept a 100.03' measurement as 100'. No way that could create a 0.03' gap.

-------------------------

I took the easier question from Dylan than the 1' gap. I'll reserve judgement while the thread juggernauts battle it out. I'll get popcorn while I wait.

[E_Page]

Clark,

If the "Best available evidence" leaves you scratching your head because it doesn't lead you one way or the other, leaving you sticking to deed dimensions, then you're mislabeling the evidence. In that case, your deed dimensions would be considered the "Best available evidence".

Don't get hung up thinking that the best available has to be something you find in the field that indicates a line of occupation. Sometimes those lines aren't even close to being good evidence. you just don't know what is best until you've weighed all of the physical and documentary evidence.

Best available is exactly what it means, it's the best you have, regardless of the form it takes.

[Dave Karoly, PLS]

I took a law for the layperson class in my last year of High School because I was interested in the subject. I distinctly remember the instructor (an Attorney) presenting a real case and asking how the Judge should rule. I gave a very strict, doctrinaire answer. He said the Judge "used common sense" and ruled like this (it had nothing to do with boundaries). He said first and foremost the law is about common sense, not hammering people with a misguided strict and doctrinaire solution.

Land Surveyors are the only professionals qualified and licensed to evaluate the physical, documentary and circumstantial evidence surrounding a boundary case. The Attorneys are not qualified to survey boundaries nor do they have a license to do it. We have to do that. Judges often rely on a Land Surveyors expert testimony to make decisions in these cases. If we aren't properly applying the law then what good are we? No one else can do it short of a trial court decision which is not necessary if the parties are willing to resolve their differences.

The Bryant decision is an agreed boundary case so if your boundary is not an agreed one then the Bryant decision does not apply. The Appellate Court had it right and the Supremes should have stayed out of it. Mosk's dissent in that case is very good. Any one familiar with that piece of ground knows all about how naive the Supremes were but we won't get into that.

In order to properly Survey an old Deed the Surveyor needs to put himself into the shoes of the Deed scrivener and interpret the Deed in light of the information, methods and monuments that scrivener likely had and would have used. Deed descriptions are just that, a description of the property; like every other man made thing it is unreasonable to expect them to be perfect. If the only thing necessary is to exactly follow the instructions in the Deed then we can program a computer to do that and we can eliminate a whole group of licensed professionals as unnecessary to the needs of society.

[Jim Frame]

We can be thankful to those that have spent a career allocate junior parcels gap property. These are like Easter eggs of liability (bumping up another surveyor's paycheck on you by way of encroachments, setback violations, non contiguous parcels-and for that, we thank you) just sitting out there for us to find and remedy.

I'm put in mind of the attorneys who go around the state tripping on root-lifted sidewalks and then "settling" with the responsible municipality in lieu of a lawsuit. Such a public service!

A "gap property" is only a separate parcel if someone decides to claim it as such and succeeds in winning a legal battle to have the claim upheld. If an original grantor were to come forward and do so, I could see entertaining the notion and follow it to wherever it leads. But for anyone else to make such a claim -- including a senior grantee, who already got everything he bargained for -- I see only vultures. (Yes, I know: vultures are sometimes well-fed.)

For all that, I agree with Dave that taking on needless liability is foolish. However, the liability attendant upon a de minimus discrepancy in measurement seems very small to me.

Note to Dave: "di minimus" might work alright in modern Italy, but if you want to speak the language of the law, "de minimus" is the way to go. When in Rome, as it were...

.

[Dave Karoly, PLS]

Mr. Wooley,

Could you please cite an Appellate Decision for your Error Ellipse Rule.

I remain, you obedient servant,
-DB Karoly

[btaylor]

Assuming Mr. Woolley is 100% correct, I am unclear on the damage claim by the senior grantee. The senior grantee must be making a claim that a sequential conveyance should be prorated, and therefore he has been denied half of the gap area. I find it bizarre a court has ruled this way.

Better re-draw up all those LS Exam questions to account for this issue, pronto.

[Dave Karoly, PLS]

I see this as a fact issue.

Generally, Appellate Courts deal with questions of law and defer to the trial court on the facts unless there is an obvious error in the Trial Courts finding of fact. This is why you will never see an Appellate Court decision with respect to gaps; it isn't a question of law.

The question of fact is: are there two parcels or three parcels? If there are only two parcels then the only other question to answer is: where is the boundary between the two parcels.

I don't deny all sorts of strange things can happen in case settlement especially when one expert and two law firms line up to torpedo the other expert. Every boundary determination involves risk; that is just the fact of life for Surveyors. I was involved in a wrongful death suit as an officer of the club which owned the airplane which crashed and killed four people (much more serious than your 5 foot gap). We offered the plaintiffs $850,000 to settle the case which they turned down because they wanted 7 figures. We went to trial and ultimately won the case 100% which is rare in Civil cases. So I would never consider a Settled case as indicative of what the law or reason would call for.

[LS_8750]

Mr. Woolley,
Hearing you loud and clear on your post #11. Regarding gaps, please review my post #16 as I have a couple of questions for you.




There is a new thread running parallel to this one that actually falls back into the theme of "The Pincushion Effect".

Lucas basically categorizes today's land surveyors as belonging to one of two camps. He starts right in on Page 1 as follows:

"One camp insists that the land surveyor's only duty and responsibility is to his or her client and that the only function of the surveyor is to locate boundaries in accordance with the measurements in the client's deed, show the results and - in essence - 'let the chips fall where they may.' Issues related to property law, or the interpretation of property law, are matters best left to the legal community. The other camp sees the surveyor's duties and responsibilities as substantially broader. Recognizing that the measurements in the client's deed may or may not accurately reflect the true boundary line between the client and the client's neighbor, the second camp takes the position that the surveyor's duty is to locate the true boundary line between the coterminous landowners. This requires a proper reading of the client's deed in light of the surrounding circumstances and the consideration of extrinsic evidence (evidence outside the deed), especially in the face of ambiguities when an attempt is made to locate the boundary on the ground."

Camp A = "deed staker" = technician.
Camp B = professional land surveyor in today's world.

And there is reason for the split, look no further than Lucas' Introduction:

Adopted by most states in the late 1970's and early 1980's, Rule 704 of the Federal Rules of Evidence suggests that "it was no longer taboo for experts to testify as to the ultimate issue in any case, this includes boundary disputes cases." Prior to the Rules, according to Lucas surveyors simply left the extrinsic evidence for the courts and staked to the deed calls.

Section 801 of the Caifornia Evidence Code:

If a witness is testifying as an expert, his testimony in the
form of an opinion is limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact; and
(b) Based on matter (including his special knowledge, skill,
experience, training, and education) perceived by or personally known
to the witness or made known to him at or before the hearing,
whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to
which his testimony relates, unless an expert is precluded by law
from using such matter as a basis for his opinion.


Enter de minimis non curat lex - the law does not concern itself with trifles. The courts want us to step up to the plate and do the job society expects us to.

I was just working off of a 2011 RoS where the guy set a pipe 0.15' away from an old tagged non-recorded pipe, and this guy has been in business for 20 something years. Really? (I set mine between them - psyche just kidding)


So far with this discussion, Mr. Woolley pointed out that gaps are to be dealt with a bit differently here in California than as described in Lucas' book.

Avoiding the de minimis stuff regarding measurements and evidence, and going back to my original post, do we have additional practices here in California that may diverge from those discussed in "The Pincushion Effect"?

[btaylor]

Mr. Woolley, with respect here - not being sarcastic - since I am much less versed on the case law regarding gaps, I am still unclear on what the legal claim is of the senior grantee who feels cheated on the gap issue. Is the claim that the intent is to split the parcel in equal halves? If so, why is this different from a junior grantee claiming the same thing in the event of an overlap?

You have mentioned several times that this is a gap issue, and overlaps are in a different category. I cannot grasp why this is, when it seems like you are saying the courts have split the parent parcel in half.

I can easily see that argument, but then this flies in the face of what we have been taught about sequential conveyances.