Tuesday morning chatter

[LS 4722]

Back in December I was retained to perform a survey regarding an aerial encroachment of an eave line of a building that has been in place for a minimum of 97 years. I was the third surveyor involved in this in less than a year.

I added a note to a detail I had placed on my RS. This may have been the second time in my career that I had placed such a note. The reason I put it on the map was to make sure that all who viewed the RS understood that a 2014 survey line, in this case, is just a line of reference and that an agreement between two opposing parties must take place, either by a meeting of the minds or an adjudicated decision.

Anyway, something to talk about on this Tuesday morning.

Two PDF's show the situation.

[dedkad]

I wouldn't have included that note. You are venturing into legal territory. I think just showing and noting the encroachment would have been appropriate without using the terms possession and occupation.

[LS 4722]

Nothing wrong with that note. In fact, what I said is the 100% truth. Why are you so afraid of expressing your honest opinion, I'm not.

Remember, it's just an opinion

[RAM]

to be picky, I don't think you have established the line. You have located the line, your opinion. Isnt it up to the Court to establish? Just my 2 cents.

[dmi]

I think the line has already been established by the actions of the property owners. A retracing survey does not establish a boundary because the boundary exists prior to the retracing survey.

I think more research may be needed in this case. I would look to see if I could find original plot plans, building department records. I would look at all the notes and ties that I could find going back to a time prior to construction of the building, to see what the relationship of the control used in the current survey is to the control that may have been used at the time the building was constructed. I would check prior conveyances to determine that there are no errors in the current description.

[Dave Karoly, PLS]

Overhanging eaves are very common, especially in older areas. I think they often set the building on or very close to the boundary line and forgot there would be eaves involved.

I have a PDF of a Law Review article somewhere that explains the California Courts in recent Opinions are favoring calling these permanent encroachments.

[LS 4722]

I don't think you have established the line. You have located the line, your opinion.

You are 100% correct.

[Dave Karoly, PLS]

See 27-JAN L.A. Law 40 (Los Angeles Lawyer, January, 2005, SETTING BOUNDARIES by Mark L. Share).

I have a PDF but it is copyrighted so probably shouldn't post it here.

[Ian Wilson]

Here's a link to David's citation...

http://http://www.dwclaw.com/pdfs/setting-boundaries_la-lawyer-jan-2005.pdf

[Dave Karoly, PLS]

Mark Share has several articles on his page:

http://www.dwclaw.com/attorney-share.html

Ian's link repaired:
http://www.dwclaw.com/pdfs/setting-boun ... n-2005.pdf

[Dave Karoly, PLS]

to be picky, I don't think you have established the line. You have located the line, your opinion. Isnt it up to the Court to establish? Just my 2 cents.

I think it is incorrect to say the Courts establish boundaries. The only persons with the authority to do that are the property owners. The Courts follow the evidence to develop the fact of the boundary location. In other words, the Court is determining where the boundary is already established, not establishing a new location.

It is not possible or wise to make an absolute statement but the L.A. Lawyer article is indicating in a case like Paul's the more likely remedy a Trial Court would adopt is to accept the boundary as determined by the Surveyor but grant the encroacher an equitable easement which terminates when the encroachment is removed.

Trial Court judgments are highly dependent on the Lawyers, what remedies they seek and how they present the case and, of course, the Experts involved.

[Anthony Maffia]

The garage could probably be rebuilt for less than the cost to litigate this.

[bruce hall]

any county surveyor! This is my garden! I planted these tomatoes! I planted these beans! Nobody's gonna move me off my land!"

Lucy circa a long time ago.

[dmi]

Mr. Karoly explains it well in his post.

[dedkad]

I wonder how local building departments rectify the Building Code requirements with a court-decided equitable easement. Buidlings crossing property lines, fire rated walls, etc.