Marin County record maps

[btaylor]

They were not/are not "illegal maps". They are not contraband. The failure to file the maps was a failure to follow the law. The surveyors who performed surveys for which maps were required to be filed are guilty of violating a license regulation statute, not the Penal Code.

The failure to file was not a problem limited to Marin County, or limited to those surveyors who initially formed CLSA or those who had anything to do with proposing the various laws we practice under. Several areas of the State have a substantial number of unfiled surveys affecting properties.

Restraint of trade refers to improper government action.

If you have been paying attention, you would see that the map collections are not a profit center for those who have them. If viewed as a business line, the only viable business decision would be to dispose of the records, as in take them to the dump, because the revenue brought in does not even cover storage and maintenance costs.

I'd be surprised if the Capone family is living large off Al's off the books business dealings. He was convicted of tax evasion and all of his assets, save the fabled hidden fortune, were seized.

The way I see this, is that many surveyors, for various reasons ranging from protecting home turf to plain old ignorance of the full content of the law, failed t file maps of their surveys. Those surveyors have since mostly retired or died. They, or their families have given or sold the records of the survey work of those old surveyors.

Some currently practicing surveyors have purchased or otherwise obtained these records. Some may have done so thinking that owning such records would ensure them exclusive or near exclusive domain over various areas where the retired or deceased surveyor worked. Most probably obtained the records knowing their importance as evidence to many boundary locations. Some have obtained records from family of the deceased surveyor on the verge of hauling all those "old papers" off to the dump.

Those surveyors who thought they were making a shrewd business investment are undoubtedly sorely disappointed on that score.

Any who have, and make thse old records available for inspection and or copying have done the public a service by preserving the records. It would be unrealistic and unjustly punitive to expect that those who have already spent their own money and time to preserve these records, now be required to provide copies without even being compensated for their time to pull records or provide access, much less a fee that helps offset the cost of storage and maintenance.

But, some of the self-proclaimed professionals who are castigating those who have dared to preserve these records and gain an "unfair advantage", make it pretty obvious that they don't really give the slightest damb about the welfare of the public, they only care that they do not have virtually free access to these records.

Until a public agency can be given the responsibility and the resources to obtain these records and make them fully public, I find this bickering and public sniping at those who have preserved old survey records of retired or deceased surveyors, and who do make them available to other surveyors, to be the deplorable part of the current situation.

It seems that the snipers, if they can't have all the copies they like for free (or darn close to it), would prefer that all these records be disposed of so that no one had access to them. Rather than be honest with their clients about the possible existence and potential costs, they would rather be able to justify low fees and level the playing field. That does not protect the public in any way.

Evan the more interesting aspect of what Mr. Ford talks about is:

"I requested copies of off record maps from one person who sent me a stipulation agreement to sign prior to beginning the research that stated I could not copy, distribute or share in any format with anyone, including the County Surveyor, the information I received from him"

If true, this seems a little excessive, does it not? And very odd not to share it with the County Surveyor. Doesn't the CS need the documents as a part of their map checking needs?

[Jim Frame]

Restraint of trade refers to improper government action.

I'm pretty much in agreement with the sentiment of Evan's last post, but want to clarify that the term "collusion in restraint of trade" refers to a situation in which two or more business entities privately act in concert with the goal of restraining competition. It's illegal, and is the type of activity that got some Arkansas surveyors in some rather costly hot water awhile back.

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[MFORD]

Evan, again you miss the mark and go off on a sanctimonious tangent with condescending accusations about those who have a different opinion than yours as being “self proclaimed professionalsâ€￾. Behave yourself. The goal of the failed legislation was not to penalize archive holders as you suggest. Your committee missed the point altogether and you continue to go down that road.

You also describe the motives and intensions of these archive holders as pure as the driven snow and that their only goal was to rescue the records for the good of the public. I have sat in too many meetings where these same archive holders have declared, to anyone within ear shot, that if those records are made public they will lose their competitive edge over their competition. They have further declared these records are private information and should be kept from public view. Until you know the whole story perhaps you should refrain from making inflammatory statements.

The purpose of the proposed legislation from the beginning was to inform and educate every surveyor, public and private, of the Public Records Act and the requirement that all the information shown an a map filed for record is public, including there to fore unfiled information. As BTAYLOR points out and I’ve often repeated the CS needs the information to perform the map checking. Submitting the information to the CS puts it into the public record. That in a nut shell is what the failed legislation was about, nothing else. The sub-committee you chaired chose to address a different issue.

The goal of getting every unfiled survey, field note, business record or random thought by every surveyor who has been or ever will be licensed is a noble cause and I wish you the best of luck. Until then let’s solve the problems we can and add the Public Records Act reference to the PLS Act so future generations of surveyors won’t have to have this same discussion.

Mike Ford

[Dave Karoly, PLS]

This is not a scholarly paper and there may be mistakes, this is just my quick notes:

I just want to point out the Record of Survey filing requirement has existed since the beginning in 1891. See Statutes of 1891, Chapter 255.

The map size was 21"x30" on "firm paper." Filing was free; there was no County Surveyor review. It required permanent monuments except for cemetery and town lots (!!!).

The 1903 Amendment (Chapter 227) added a short lived option to describe the survey in writing or a diagram on an 8"x12-1/2" sheet of paper. It added the exemption to the R/S requirement if the Survey had already been filed and there were no material changes.

Failure to comply with the R/S requirement was a misdemeanor and punishable by revocation of license (no reinstatement rights for one year) and a $100 fine or 30 days in the County Jail. The County Surveyor was expected to catch violators and turn them into the Surveyor General.

The 1907 Act (Chapter 247) eliminated the 1903 option to file a written description or diagram of the survey on smaller paper. The misdemeanor provision of failure to file and revocation penalties were kept in place. The license fee was $10.

The County Surveyor review was added in Statutes of 1931, Chapter 1091 and exempts surveys which find no "material change."

The 1933 Statute (Chapter 506) changed the map size to the current 18"x26".

The 1935 Statute (Chapter 775) added the now familiar "material discrepancy" and "alternate positions" provisions. It also appears to have changed the requirement to mark monuments with initials to RCE or LS number.

The 1939 Statute (Chapter 41) is the first version of the modern statute; it has been amended several times but it is substantially in line with current requirements. It allowed for 180 days for filing time (it had changed back and forth between 60 days and 180 days). The 1941 amendment (Chapter 834) changed the filing time to the current 90 days. Failure to file is no longer a misdemeanor. By 1939 surveying in connection with a subdivision under the SMA was exempt from the SMA (I didn't write down the exact year).

The next big change came in 1977 (Chapter 576) which added the Corner Record requirement on lot surveys under B&P 8765(d). I think prior to 1977 there was no requirement to file anything when surveying a parcel or lot shown on another map unless there was a material discrepancy or alternate possible positions.

[E_Page]

I am in no way condoning the failure to file by those who should have. However, for those who are retired or dead, it's water under the bridge.

I do not contend that the current archive owners' motives are or were "pure as the driven snow". I acknowledged that some bought them for a perceived competetive edge. The fact that many surveyors do not even bother checking for the existence of unfiled records and are getting plenty of the work in the supposed protected areas speaks to the fact that those records do not give a significant competetive edge and do not earn their keep as a business investment. As a professional investment to ensure more thorough surveys, that's a different matter.

I don't agree with the agreement to not provide a copy to the County Surveyor. The reasons for those agreements range from copyright to perceived liability to the archive owner. I know a little about copyright but am far from an expert on it. I recognize the reasoning of perceived liability as misguided. There is no liability to the archive owner for providing copies reflective of another's professional work. They are merely providing a copy of a document, not preparing it or certifying to the correctness or fitness of the content for any particular use. Although I do not agree with the opinions or policies of restricting the use such that copies cannot be provided to the County (or anyone else), I respect the position until such time that a solution workable to all comes about. I do understand the need or desire to offset the costs of obtaining and maintaining.

The legislative proposal may not have had anything directly punitive to the archive owners, but there were definitely punitive ideas being freely bandied about, from including a statutory arbitrary maximum that could be charged for maps of unfiled surveys, to sanctions against the licenses of those who continue to maintain private archives of such records. At least one person likened the possession of such maps to purchasing and possessing stolen property. These ideas are certainly hostile to the archive owners.

The problem with the proposal for legislation is that it provided no resources for the County's responsibility to accept and maintain such records, and provided no criteria of acceptable records. It made no acknowledgement of the investment of th eprivate parties who have preserved the records. It contained no consideration of the Recorder's potential concerns of reproducibility or additional document type or of storage. As it was, opposition from other interested groups could be anticipated. A full solution would require the input and collaboration of several groups, including the Recorders, the County Surveyors, the CLTA, and the surveyors from both sides of the issue, some of whom simply view those of the other group as criminals. That's no basis for the beginning of any kind of collaboration.

There is nothing preventing a surveyor who uses information of maps of unfiled surveys from duplicating the courses, the ties, the descriptions of points, and other factual information by redrawing or rewriting it on one's own map. There very well may be legitimate copyright concerns about reproducing the actual map as a copy. There are attorneys who specialize in that area to argue about that.

Once your map, with the cited info is filed, all the info on that map is now public record, including the fact that the map cited as Reference X is an unfiled map of a survey by XXXXXX XXXXX, a copy (or the original) of which is maintained in the records of (whoever owns them now).

I am not against getting maps of surveys that should have been filed but weren't into some manner of public record now. In fact I'm all for it. But it has to be done in a way that does not punish those who have them for preserving them, regardless of their original or current motives for obtaining and holding them, in a way that provides standards for records which are appropriate to record, in a way that ensures that once passed into public agency care, that they continue to be preserved, and in a way that provides the resources that will be needed by those who are given the responsibility to obtain or receive, and to maintain such records.

If I come off as sanctimonious or condescending, then for my intent in that post, I hit the right tone. It nearly mirrors the acerbic and contemptuous tone that you and a couple of others have employed toward those you disagree with. I don't believe that I have missed any point in this debate. In fact, there seem to be only a few of us who have given a good deal of consideration to both sides. I believe that it is you, and those others who have expressed or hold a contemptuous view of archive owners who have refused to acknowledge any points held by the opposing view.

When all those who actually are interested in solving the problem rather than just leveling the playing field, or in the case of one or two archive owners, picking up their bat and ball and going home, all decide to act like adults, acknowledge that there are legitimate concerns to be addressed by not only the surveyor "haves" and "have-nots", but also by other groups that will be affected, then we might be able to start getting somewhere.

I'm willing to contribute ideas toward a solution, but first the warring parties on each side need to agree that there are legitimate concerns on the other side of the issue, that the parties on the other side are not criminals, and that it is in the best interest of the public and the profession that records containing valuable boundary evidence be preserved in some manner of publicly available records. If you're willing to do that, I will treat all of your views seriously, worthy of consideration, and deserving of being addressed.

If you feel like you're getting more mileage by portraying those with different views on the subject as criminals, or aiding and abeting criminals, then you show that you don't really have the interests of the public or the profession at the forefront. You are not considering the potential of making such records less available rather than more. You are not taking the issue seriously. and then you will be correct. I will condescendingly dismiss your views as decidedly nonserious and self-serving.

[Jim Frame]

For what it's worth, when private survey information is referenced on a ROS in Yolo County, the CS gets a copy and makes it available upon request our when it affects another survey. I can't imagine how anyone can justify keeping such a record private.


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[Dave Karoly, PLS]

Evan-

I didn't mean to argue with you. I'm just sharing information. I would bet a sizable chunk of the private records were surveys that did not require a filing, at least before 1977. I just found it interesting to look it up because I have heard all sorts of varying answers on this. I always thought it was sometime in the 1980s but it took 15 minutes to find out the lot survey Corner Record came about in 1977 (PLSS corner records had existed long before that but they were just that, a record of a single corner).

I have even heard it often said "that Record of Surveys were not required back then" referring to times not very long ago, like 1980. It's interesting to see they were required back to 1891, e.g. from the beginning.

-Dave

P.S. I have no personal experience with private survey records in Marin County. If it is true that some require a no sharing agreement then it seems to me that destroys the value of the record because it can't be used to support your current survey. I have used private survey records in other counties, Sacramento, Mendocino and Humboldt but they were either in the custody of the County Surveyor or our Department files. Our records are public record, of course, and I am still finding them. I just found out there are a bunch of OLD field books in Fort Bragg. Looking forward to seeing those (they range from the 19th century to the 1950s).

[E_Page]

No worries Dave. My last response was mostly addressing the particular points in Mike Ford's last post.

You are probably right about the relative percentage of records that pertain to boundary evidence. Having looked through records at the El Dorado County Historical Museum, where they have the private records of a few past local surveyors, a lot of it has little to no value as evidence in a boundary survey.

I've heard a lot of the same lore about RS requirements from "they weren't required" to "we only filed if the client wanted us to", to the more common "we only had to file if we set new monuments or created a new line". It seems that for whatever reason (and to be clear for those who would otherwise jump on the statement, I'm not justifying it), there was a lot of ignorance about when an RS was required.

I don't fully agree with you about the destroyed value of an unfiled map if there is a no sharing copies agreement. I use my field notes as well as other records as a source of information to prepare an RS. I place the pertinent info from my notes onto the map, but rarely if ever submit my field notes.

The law says that you have to be able to show the basis for the info or conclusions you depict. I can do that by bringing in my notes, or an unfiled map, standing over a desk with the CS and showing him where the info came from. I can then leave with my notes or the map copy and will have fulfilled my legal obligation. I would prefer to provide a copy of the map, but don't know where in the law that it requires me to do so any more than it requires me to file copies of my field notes.

[Dave Karoly, PLS]

Well that wouldn't be unusual because I don't totally agree with myself, sometimes.

If the map only helped to find a monument then maybe the CS doesn't necessarily need a copy. Or if the map points out obscure records that are already public, such as mis-indexed Deeds, then I could see where the CS doesn't need a copy.

Sometimes old R/S maps weren't well indexed either. One cool thing about having a CD with the maps on it is you can browse them and sometimes find maps that were never indexed anywhere.

[Dave Karoly, PLS]

For your fun and enjoyment, all of the Chaptered statutes are available on-line from the Assembly Clerk. I found this out from the State Library Law Librarian.

Choose the year (some cover two years so you have to get the year by trial and error). This brings up a PDF. What isn't obvious is the PDF has links. Hover over Statutes and click. This opens a PDF of the Statute book. There are navigation links on the left. It's a little weird but very handy.

http://192.234.213.35/clerkarchive/

[land butcher]

http://www.amerisurv.com/content/view/11046/153/

[LA Stevens]

October 1969 issue of the California Surveyor reported the following:
“RECENT BOARD ACTIONS

At its meeting in Sacramento on July 11, 1969, the Board of Registration for Professional Engineers approved the following recommendation for interpretation of a portion of the Land Surveyors’ Act:

“The term ‘material evidence’, as used in Section 8762 (a) of Chapter 15, Division 3 of the Business and Professions Code (Land Surveyor Act) does not relate itself to either old or new (found or set) evidence.”

“Conversely, survey points found or set do not necessarily constitute ‘material evidence’, which would require recordation of a map according to Section 8762 (a). If the evidence (found or set) is not significant enough to make a difference, then it cannot be deemed ‘material evidence’.”

“However, it can be stated that recordation of a map is not required according to Section 8762 (a) if points were set which do not appear on any map, but which points would not significantly affect the outcome of the survey; and the best interest of the public would not be significantly enhanced by the recordation.”



Apparently, a much narrower interpretation of the filing requirement existed, prior to the majority of us getting our licenses.

[Stephen Johnson]

I really need a "sarcasm" font.

Get the webmaster to converse with Wendell Harness up in Oregon. He has a sarcasm font on his board for surveyors.

[Sunburned_Surveyor]

Would any of the holders of the private map collections in Marin County be willing to discuss a purchase of their unfiled records? I'd be willing to do a couple of fund raising workshops or other events to buy some of the records and donate them to the County Surveyor or local CLSA Chapter. Perhaps that is a practical way to put out some of the fires over this topic. Please let me know if this is an option. I'd love to help if I could, and I think this is the best solution. We make the maps available to all surveyors and we make at least a token compensation to the surveyors who have worked very hard to preserve and organize all of these records.

My schedule for workshops is open after the end of the year. We could schedule something in January or February. If we need more than one even to pay for some of the records, I'm willing to do that to. I'll bet I can even round up a couple of other speakers who would donate their time and teaching to the cause.

Landon

[pls7809]

It's definitely worth trying and doesn't hurt to ask. I think these guys probably paid a lot of money to purchase and store these records.

[land butcher]

or maybe not

[enriquegill012]

Some well written land survey laws could make it easier on both the public and our profession. There is no reason that we, as Land Surveyors, should be the only ones looking up from the outlet end of the sewer pipe.

[MFORD]

Enrique,
It’s interesting the you resurrect the subject at this particular time. There is a CLSA committee currently working on doing what you suggest. As the chairman of that committee I would be interested in your thoughts on what you think such law should say?

[LS_8750]

When you go and play in another's sandbox, it is best to play by their rules.
How many suits involving conflicting surveys occur between a local surveyor versus a non local surveyor?

My experience in Marin County is extremely limited, and I offer this: those holding the private records do not appear to be undercutting the competition in terms of fees, as if possession of these records give them a thousand dollar, or more, advantage for every job. Marin County has a lot of old tricky areas, and several of those old areas are hilly or mountainous, the improvements are dense if not stacked on top of one another - it seems as though for a long time minor encroachments were the permitted norm to facilitate development. The locals know the problem areas, and you don't have to be a genius to see a problem area when you go and read the deeds and/or maps. Chasing the records of some old surveyor may prove fruitful, or it may lead to a dead end. It seems to me that a combination of the two is the likely norm. I budget that thousand dollars for research, plus another day in the field (or two) and if I don't get a call back or notice to proceed I do not expect that they tracked down the local surveyor with the private records in house. Rather, I suspect those property owners go find somebody who is willing to do the job cheaper, which only exacerbates an ongoing problem in Marin - modern filed record maps that are garbage.

Talk to the locals, if not just for the stories and the laughs.