Neighbor's nightly antics, 'adjusting' my pipe in the dark

[mpallamary]

One thing that cannot be overemphasized here. I exhausted every possible course of resolution. Evan is 100 percent correct. if these laws are not enforced, there is nothing we can do - they are worthless. When I presented the case to the city, they said what proof do you have? I said 4 eyewitnesses, three sworn affidavits, photographs and physical proof. They said, no, no, we mean real proof!!!

[Lee Hixson]

That, Mr. Pallamary, was an outstanding Surveyor's Narrative. I totally support including detailed, long narratives that explain one's map. Over the past couple of decades I have found my "notes" getting longer, and longer. The more you explain yourself, the better, for your own protection and for the benefit of future surveyors who may need to know not just what you did, but why.

In my 34-year career here in California I've worked in many counties and there is an inverse relationship between the amount of detailed explanations on filed maps and the age of said maps. I think it's unfortunate that "the practice" of earlier decades was to let others "figure it out" on their own by inspecting the map portion alone. Detailed notes were definitely not the norm.

Of course, quite a few maps are so cut-and-dried that long notes aren't necessary. But whenever the resolution starts getting complicated, that's when complete explanations are not just acceptable they become invaluable, necessary, even, in my opinion, professionally obligatory. Gaps, overlaps, discrepancies, disagreements all need to be thoroughly addressed.

That the other surveyor in Michael's situation chose not to go that route is unfortunate. Very much so.

[pls7809]

Did the other surveyor get away with only filing a corner record? It seems if he knew, as Mike states in the note on the ROS he posted, that there were monuments being moved around and came up with a different boundary solution, that would trigger 8762(b)(1), (b)(2) or (b)(3).

[mpallamary]

I did my best here and as to the other surveyor's obligations, I did what I could.....

That, Mr. Pallamary, was an outstanding Surveyor's Narrative. I totally support including detailed, long narratives that explain one's map. Over the past couple of decades I have found my "notes" getting longer, and longer. The more you explain yourself, the better, for your own protection and for the benefit of future surveyors who may need to know not just what you did, but why.

In my 34-year career here in California I've worked in many counties and there is an inverse relationship between the amount of detailed explanations on filed maps and the age of said maps. I think it's unfortunate that "the practice" of earlier decades was to let others "figure it out" on their own by inspecting the map portion alone. Detailed notes were definitely not the norm.

Of course, quite a few maps are so cut-and-dried that long notes aren't necessary. But whenever the resolution starts getting complicated, that's when complete explanations are not just acceptable they become invaluable, necessary, even, in my opinion, professionally obligatory. Gaps, overlaps, discrepancies, disagreements all need to be thoroughly addressed.

That the other surveyor in Michael's situation chose not to go that route is unfortunate. Very much so.

[mpallamary]

I appreciate all the dialogue. I think it is productive. So that you can appreciate the import of my survey, I have attached the first one I did. I was deposed for a day explaining this. When the other surveyor was asked to comment on it, he said, it must be good as there is so much information on it. This was a monster effort. If you like notes, check this one out.

[Stephen Johnson]

That is quite a note! Thank you for sharing it... Your professional handling of an apparently delicate and frustrating situation was remarkable and I would consider it a positive example to follow.

I Strongly Agree. :)

[desert turtoise]

Mr. Page, please consider the non-usage of such terms (nonfeasance)on this forum toward one of your fellow land surveyors.

I have knowledge of those differing Record of Surveys and the difference in professional opinions among our peers should be respected. Nor should there be the need to include documents that contain owners names, or names of lawyers, or surveyors involved on this forum.

Without going into lengthy detail of the 100 year mapping history of the dispute, (of which MP provided an excellent and extensive history in an earlier Record of Survey) the issue was one of an overlap between a senior subdivision in recorded in 1910 and a junior subdivision filed in 1956.
A classic case of junior versus senior rights. The other surveyor's client owned the last lot in the adjoining senior subdivision that bordered the junior subdivision of MP's client. It is very unfortunate that the owner chose to tamper with MP's points. No one can blame MP and his client for being mad.

The other surveyor's ROS quoted about fifteen examples from Brown, Clark, Robillard,etc., whereby a senior subdivision shall hold over a junior subdivision when an overlap occurs.

MP's client (the junior rights owner) was hoping to prove adverse possession and unwritten rights. I believe you can read that MP brought that out in the final page of his narrative. He also made some statements regarding his client's junior subdivision and other statements he probably would not make today. Mike has moved on and he is helping improve our profession with his articles. I don't know of anyone who puts in more time and effort than he does.

I am sure we would all like to move on. There is no more need to discuss that matter on this forum.

[E_Page]

Tortoise,

Your mention of a RS by the other surveyor is the first reference to his having filed one as opposed to filing only a CR. If he did file a RS subsequent to his CR and disclosed his knowledge regarding moved or possibly moved monuments, then he rectified his earlier non-feasance.

Non-feasance: Not doing something one had an obligation to do. The other surveyor was informed that the landowner had been photographed moving monuments and had admitted moving others. The surveyor then had a duty to consider that information and to report it to the extent that such illegal movement of monuments may affect conclusions of boundary locations and to the extent that such monuments illegally moved from their original positions might cause confusion for current and future landowners and for any surveyors following in the vicinity. If the surveyor did not consider that, and if he did not report those conditions on his map (CR or RS), then he neglected to do a thing he had an obligation to do. That is non-feasance.

There is no unprofessionalism in using a term correctly.

Beyond that, I'm not delving deeply into the issues of where the line should be, who holds senior title, who is attempting to adversely possess, or which surveyor has the correct resolution. The other guy may very well have a more correct resolution than Mike does. That does not absolve him from the duty to report that some monuments have been moved and that others may have been moved.

The duty is spelled out in 8762(b)(1), Material evidence or physical change; and in 8762(b)(3), Evidence that by reasonable analysis would result in a materially alternate boundary position. If the other surveyor did not believe that the alternate position, being Mike's opinion was the result of reasonable analysis, then he had a duty under 8762(b)(2), Material discrepancy.

As I said above, if he filed a RS after filing his CR and in that RS disclosed these matters, he will have rectified his previous non-feasance.

You make reference to statements from Brown, Clark, robillard, etc. regarding senior subdivisions holding over junior ones as if the date of the subdivision is the definitive factor in determining seniority in all cases. But it may not be so simple.

If the parent parcel of the later subdivision was senior to the parent parcel of the earlier subdivision, the "junior" subdivision may hold the senior right. There are so many different factors that could come into play, especially among subdivisions that are several decades old, that one can't simply look at dates, either of the subdivisions themselves or of the parent parcels to determine where the senior right currently resides.

For example: Was the earlier subdivision boundary established with the seniority of the neighboring parcel taken into consideration? If not, and if enough time passed, repose sets in and the boundary of the subdivision of the junior parcel (the earlier subdivision) gains the status of seniority.

If that subdivision boundary was established with consideration of the seniority of the adjacent parcel, that parcel does not lose its senior status along the common line because it is later subdivided. The new monuments set along the line to mark individual lot corners may have no controlling effect on the exterior boundary, but the exterior boundary itself does not lose its Sr status. Intermediate monuments set for either subdivision must be validated.

Repose may manifest in other ways, and with regard to intermediate monuments as well, depending upon the order of the development of lots in either subdivision. Repose is not a matter of adverse possession, unwritten transfers, etc. It is a provision in the law directing that boundaries established on the ground and long recognized are to be recognized as the true boundary even if they were not established in a fully, technically correct manner or with the utmost of care.

If the surveyor is going to practice in localities with these types of complications, he should be prepared to investigate beyond the dates of the filed maps and to consider all of the physical, documentary, and in some cases, parol evidence he is able to obtain to properly answer the questions that will lead one to the true boundaries.

Whether or not it is a simple, straight-forward case of Sr./Jr. rights seems unclear after reading the lengthy and informative narrative on Mike's RS 18066. It looks like a convoluted mess that would take a lot of work just to follow what other surveyors recently found in order to begin forming opinions about the correct location. From a technical standpoint, it looks to me like a classic example of where a BLA between agreeable landowners could be used to settle matters before they become expensive and contentious disputes. Too often, personality conflicts preclude the amicable and reasonable resolution of boundary conflicts.

As to my earlier comments about a "dirtbag who moves monuments in an attempt to steal some of his neighbor's land", it may be that if this case were adjudicated, the court would find that the preponderance of evidence points to the landowner who moved the monuments as having the Sr right. But moving monuments without authority to do so and to one's own advantage is not the act of an honest person. It is an illegal activity per several sections of statute, a malfeasance, whether or not he would eventually prevail in court on the boundary location.

I did refer to the landowner who was photographed while illegally and dishonestly moving survey monuments by a derogatory term, and I had included his last name in that post. I've edited that post to remove the offending landowner's name. I did not refer to any other parties, including the other surveyor (who I don't know) by name.

[mpallamary]

Just to make sure the record is clear so that my motives are understood. I did not offer these documents blindly. I responded to a post from a fellow surveyor who posted a question about malicious movement of monuments. The recorded documents I shared were responsive to that inquiry. Before they were recorded, everyone got to look at them including the State Board. I showed them to everyone remotely associated with this matter. Everyone reviewed them and had a chance to reply, rebut, or rebuke.

Evan nailed this one perfectly. I suggested at first blush that we resolve this by applying the doctrine of agreed boundaries. I was rebuffed as the attorney who shepherded this knew more than me. I get that a lot. I laid out a clear path of resolution with a definite outcome. The documents speak for themselves. I hope I provided some assistance with regards to the original post. How do you deal with this problem?

[land butcher]

Nothing is going to happen unless you have witnesses and video and even then probably still nothing.
There was a case in Orange county where inspectors were delaying inspections unless gifts were delivered to their houses. They were audio and video recorded making these demands.
When arrested, one quit to avoid prosecution the other 2 or 3 pleaded not guilty. Later the DA decided there was not enough evidence to prosecute and dropped the case. The inspectors sued for defamation of character and received 7 figure settlements each.
Bottom line be careful who you drag into court. A citizens arrest where the case is dropped or proven not guilty makes you open for suit.