Duties of a County Surveyor

[mpallamary]

I have a theoretical question and I was hoping some of you folks could provide me with some feedback or thoughts. My question is, if a County Surveyor is aware of problems with a boundary survey involving significant encroachments, (10' plus or minus), map errors, lot lines running through houses and other serious problems, does he/she have the discretion to neglect this information? In other words, can he/she arbitrarily decide what is important and what should be disclosed on a Record of Survey?

Do you agree that one of the most important functions of a County Surveyor is to assure that that all significant conflicts between surveys both of record and in process are disclosed? In other words, should not the County Surveyor oversee potential conflicts between surveyors so as to assure problems like this are vetted, if possible, before a survey records and place everyone on notice?

Lastly, does anyone have an opinion in a situation where the County Surveyor is in the middle of reviewing a Record of Survey - one that makes significant disclosures - and during the review process, he/she (the County Surveyor) accepts and records a competing survey overnight so as to favor one surveyor's opinion over another while concurrently, not requiring the second surveyor to discuss or disclose the material discrepancies disclosed by the survey still in process?

The attached case is interesting and is the basis for my theoretical question.

PS, I have been off the forum for a while as I had surgery and developed some complications that needed attention. I am trying to ease back into things and return to life as it were. I hope everyone is doing well and that you are all healthy and that business is good.

[land butcher]

Complications seem to be the norm lately. Glad you are on the mend.

[desert turtoise]

MP, glad to hear you are on road to better health !

As you are aware of, section 8766(c) makes it optional for the county to weigh in. For convenience to others: "Nothing in this section shall limit the county surveyor from including notes expressing opinions regarding the record of survey, or the methods or procedures utilized or employed in the performance of the survey."

One or more of the parties involved would need to contract the county to perform their own proper field survey, boundary analysis and resulting ROS.

Employing a bureaucracy (you are well aware of such from your prior experiences) to perform this function boggles the mind regarding practicality and expense.

One answer would be what other professions have in place, peer review. We have no formal structure for peer review in place in this profession, unlike for example, accountants, whose professional associations form working groups for this purpose. That could go a long way to solving such problems relating to procedure of survey and even competence.

Your magazine article a year ago shed light on peer review and vetting "experts". That article also relates to what we have in the state government. After reviewing what is in place in other states, I found this state to be woefully behind the curve in this regard; most states have 3 to 5 person panels of "experts" who by vote, render decisions regarding competence, whether professional practice rules were violated, and related matters. In CA, there is a short one page qualification sheet and an oral interview. By that "vetting", one person becomes an "expert" and his/her input is then used by Borpelsg to arrive at a decision. Incredible but true.
I don't understand why so few land surveyors show interest in improving such a flawed system that is in place. Maybe only people who have been victimized by this inadequate system are willing to be vocal toward improving the system. The rest continue on in their state of surveying bliss, content with the system until something happens to them.

[mpallamary]

Thank you guys for your kind comments. As always, your observations are salient. I remain concerned with the direction the profession is going. The apathy is mind numbing and will continue to degrade the overall perception of the profession both internally and externally. We are not going in the right direction and few care. Thanks again for your comments.

[dmi]

I do not agree. The most important function a county surveyor has is exactly the same as any other licensee. This function is to protect the public. Understanding and applying a conceptual framework is critical to sorting these matters out. It seems to me that where we fall short is looking to a case by case, fact set by fact set scenario to answer the instance currently in front of us. We already have the conceptual framework right in front of us. Protect the public. If a county surveyor accepted the duty as is outlined in the current state of the law, then they would not be able to justify filing maps where there are significant issues between two different surveyors. But I do not believe that is solely up to the county surveyor to sort these matters out. The private surveyors also have a very important role in this situation. I suggest that the private surveyors may not have completed a thoroughly professional job, if they dump these surveys in the lap of the county surveyor to sort out.

[mpallamary]

Excellent point! Excellent point. Thank you.

[Warren Smith]

Excellent point indeed, Dane!
Records of Survey are just that. What is submitted for review is an exhibit with (hopefully) sufficient analysis of a boundary retracement. All relevant evidence should be included.
In Michael's scenario, it is suggestive of a common "file-and-forget" survey. County Surveyors do not have the boots on the ground perspective when looking at submittals. When there is potential for a latent ambiguity, it is not apparent from first impression. It is a frightening set of circumstances when faced with successive maps fighting for first filing.
It is useful for surveyors of adjacent properties to establish a dialogue during this phase. A profusion of notes - essentially a Report - can go a long way toward resolving the inevitable legal maneuvering to follow.

[Proud7191]

Nice to see your posts again. Enjoyed your presentations at Oregon conference in January. You got me thinking about a lot of issues. Thanks, Jon

[mpallamary]

Let's assume under this theoretical situation that the first surveyor initiated considerable dialogue and shared a lot of information with everyone, including the County Surveyor and he (the County Surveyor) elected to neglect everything as if it didn't exist. Do you folks feel that is proper? Do you feel the County Surveyor can decide what is important?

[dmi]

Yes and Yes, the county surveyor is free to evaluate the evidence and to arrive at an opinion and express that opinion..

[Warren Smith]

Michael,

The Wheeler v. County of San Bernardino case seems to me to be more about procedural issues. That is, discretionary as opposed to ministerial action taken by a public official. I don't read it as giving a cachet of greater legitimacy of one map over another due to a County Surveyor's review and approval.

There are minimum requirements for a record of survey and - while a reviewer often suggests prudent notes - ultimately, the licensee is responsible for filing a complete (and to do so objectively - not as an advocate) map of evidence found and proper analysis.

The optional County Surveyor's Note is where a disagreement as to matters depicted comes into play. This is required to be after a negotiated attempt is made to reach agreement. A rebuttal Note is also mandated, addressing those differences.

It is also proper for a subsequently filed map to add commentary about the prior map, so first in line is not always dispositive of issues in play.

I know you have been involved in some pretty convoluted adjacent surveys, so I'm confident that you know how best to proceed.

[David Kendall]

I might seek the counsel of a Professional Practices Committee in a situation like this. Would anyone else consider that appropriate? I am uncertain of the role of these committees in philosophical disputes.

[Warren Smith]

I would be interested in some Statewide feedback on the PPC involvement as well. While this might be a valid function of the local committee, I do know that there are some restrictions on the nature of material they review. I serve as an ex officio member for issues within my County and, in a situation such as this, it could be construed as a conflict of interest.

But it may also be an appropriate form of peer review as well. I suppose it would depend on creating proper guidelines.

[David Kendall]

It seems like it could be helpful to have a local mechanism to allow one to gain perspective on an issue like this, outside of your company or your immediate (friendly) associates, especially in the situations where someone is suggesting that personalities are being taken into great consideration. Obviously interested parties (or anyone otherwise incapable of an objective opinion) would have to recuse themselves.

I would prefer that the County Surveyor or mapchecker abstain from spending a great deal of time weighing the validity of a surveyor's opinion. I don't believe that office is intended to adjudicate this type of matter. The phrase I usually associate with the checking process is "technically correct" which I expect to be black and white (in most cases). When a great deal of consideration is going into that process, by a person that does not have intimate knowledge of the setting, the costs and conflicts increase and more explanation is required. This is when it turns into a discussion, rather than a statement of opinion.

I am missing the point about the advantage of the Record of Survey filing earlier than the one that it may conflict with. Is there an advantage there?

[mpallamary]

These are all valid comments and yes, I wish there was a mechanism for resolution to disputed matters. I continue to believe that CLSA could take a lead on issues like this.

As an aside, there are times where municipalities will issue building permits if someone produces a Record of Survey.

My objective here is to see if there is a consensus. Thanks again to all! I welcome further comments.

[desert turtoise]

It has been my personal experience that is it best not to ask for input from a PPC. It is not confidential and I received no peer review as requested. Two persons who held or had particularly active roles in the PPC met in the parking lot prior to the meeting. Kind of like the proverbial room filled with smoke during a political convention? They decided not be involved with my situation, then at the start of the meeting the chairperson (one of the two who met in the parking lot) announced to the rest of the PPC their two-person decision. There was no protest for not being given the opportunity for group input. When the meeting was over, more than half the members walked up to me or later contacted me stating they were embarrassed and in disagreement with the way my situation was handled. Oddly, they were unable to state such during the meeting, maybe they were too stunned by the proceeding, I don't know.

[Dave Karoly, PLS]

The case I have seen is like this:
Surveyor 1 surveys a lot in Los Angeles and sets corners by pro-rationing, showing a garage and driveway encroaching from the adjoining property. R/S filed.
Surveyor 2 surveys the adjoining lot using the same block control but measures record distances from one end of the block, the difference is less than a foot. Surveyor 2 concludes the garage and driveway are still encroaching but not as much. R/S filed. The R/S does not show the conflict with Surveyor 1. It can be figured out because it seems to me all the overall block information is the same. Monuments set by Surveyor 1 are not shown as found or even searched for. This seems substandard to me.

These two surveys in Los Angeles are the subject of an unpublished Appellate Opinion (Hoffman v. Del Rivo-I think, from memory). The Appellate opinion reverses the trial court judgment which had set the boundary so that the garage and driveway do not encroach based on the Agreed Boundary Doctrine.

So, should or could the County Surveyor require Surveyor 2 to show the conflict?

[Warren Smith]

Dave,

That does sound like a textbook example of, first, a review comment to show the evidence and second - if not - then a County Surveyor's Note (with rebuttal Note) addressing the issue.

The underlying rule of law at play being, of course, the Agreed Boundary Doctrine. But, at a minimum, disclosure of the difference of opinion between the two filed surveys.

[Darth Vader]

mpallamary,

As to your first question, “can he/she arbitrarily decide what is important and what should be disclosed on a Record of Survey?” I believe the answer lies in Business and Professions Code (B&P) 8766 which lists the requirements for review of a Record of Survey. This does invoke also reviewing B&P 8762.5, 8763, 8764, 8764.5, 8771.5, and 8772 as well. So in the information you have provided, I see no requirement for the County Surveyor decide what is or is not important. About as close as it comes, in my opinion, is 8744 (d) "The relationship to those portions of adjacent tracts, streets, or senior conveyances which have common lines with the survey." Which I note is void of the type of physical improvements I believe you have outlined in your first stated question. Now your question is “can” they decide what is important, rather than “must” or “shall.” So my answer would be they “can” but I do not think they “must.”

Your next question is “Do you agree that one of the most important functions of a County Surveyor is to assure that that all significant conflicts between surveys both of record and in process are disclosed?” My though is no. I think the most important duties are outlined in Government Code 27550. I cannot find anywhere in Government Code that requires the County Surveyor to resolve conflicts in private surveys. If two Professional Surveyors want to disagree on their Records’ of Survey, then they are entitled to disagree. I am OK with two professionals having different opinions on the best solution to a situation. Can you imagine if doctors had to live up to a standard of only one correct solution for curing an illness or an attorney for only one way to fight a legal battle. Professionals can have different opinions just as the Supreme Court can come to a split decision based on the exact same facts.

As to your last question, I do not know of any situation where a County Surveyor favors one surveyor over another unless one of them is acting less than professional.

Darth

[mpallamary]

Thanks for the reply Darth! I appreciate it very much. Onward and upward.

[dmi]

HIGHLIGHTS FROM WHEELER
The issues raised concern the Tort Claims Act (Gov. Code, § 900 et seq.) and governmental immunity for discretionary acts.
Plaintiff alleged that the survey was inaccurate and that the county surveyor and employees within the office of the county surveyor (who were named Doe defendants) conspired with Krueper by recording the survey which they knew, or should have known, was inaccurate.

Fairly read, plaintiff's complaint states a cause of action for damage to real property. The essential allegations are that the county is somehow responsible for the recording of a survey which shows plaintiff's property to be smaller than it really is. The recorded survey is therefore a cloud upon plaintiff's title which must be removed.

Next, the county contends it is immune from any liability based on the act of the county surveyor in approving the Krueper survey. The contention is grounded on Government Code section 820.2, which provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." At one time, the scope of the immunity conferred by Government Code section 820.2 was considered to be quite broad, covering any act requiring the exercise of judgment or choice, or any decision based on considerations of equity or justice. (See Burgdorf v. Funder, 246 Cal.App.2d 443, 449 [54 Cal.Rptr. 805].) However, the Supreme Court in Johnson v. State of California, 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], defined the term "discretionary acts" more narrowly. According to Johnson, immunity attaches only to basic policy decisions, involving conscious balancing of risks and advantages, activity which may be characterized as the planning rather than the operational level of decision making.

The county's brief on appeal relies extensively on the argument that without a broad immunity for discretionary acts, government employees would be unduly inhibited in the performance of their duties. Suffice it to say that this argument was expressly rejected by our Supreme Court in Johnson v. State of California, supra, 69 Cal.2d 782, 790793. Also, the county relies on the definition of discretion stated in Burgdorf v. Funder, supra, 246 Cal.App.2d 443, 449, which is no longer a correct statement of the law. (See Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d 406, 414.) The function of the county surveyor in connection with the recording of a survey is set forth in Business and Professions Code sections 8766 and 8767. Section 8766 provides that the county surveyor shall examine the survey with respect to: (1) mathematical accuracy and completeness of information; (2) conformity to existing records; and (3) compliance with certain provisions of law. According to section 8767, the county surveyor, after completing this examination, shall either indorse the survey for filing, if satisfactory, or return it to the person presenting it if changes are required. We are satisfied, at least for purposes of ruling on a demurrer, that the county surveyor's duties under these provisions do not involve any basic policy decisions, and therefore the immunity of Government Code section 820.2 does not attach.

DEFINITIONS OBTAINED FROM THE INTERNET.

Law Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party.

Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm.

The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.

MIKE, I am sorry to disagree with you but I do not believe the questions in your OP were properly framed. I believe if the questions were framed with these additionally considered items in mind, then perhaps the consensus might be expressed differently.

Has a county surveyor fallen below the standards of behavior established by law for the protection of others against unreasonable risk of harm when they failed to consider two surveys in conflict and they failed to take appropriate action?.

Would a reasonably prudent county surveyor require submitting surveyors to consider other surveys that may be in conflict with their own submittal and to take appropriate actions?

I do not believe that the PLS ACT needs to specifically state that surveyors are not allowed to be negligent. This reminds me of the scene in "A few good men". How do the soldiers find the mess hall when it is not in the manual?

[mpallamary]

Yes, I could have/should have broken it down better. I included the case but did not excerpt it. I think I got what I wanted in terms of responses. The Wheeler case is rather interesting. Thanks for the reply as always!

[desert turtoise]

" I do not believe that the PLS ACT needs to specifically state that surveyors are not allowed to be negligent." quote from dmi

dmi, the fact is that county surveyors are sometimes allowed to be negligent. And not held accountable. I have been privileged to confidentially review cases where the county surveyor was entirely satisfied with the Corner Record. He communicates no triggers for a ROS, sends no letter to the local surveyor, no letter to the PPC, or Borpelsg. He signs and files the Corner Record. Later there is a complaint from another surveyor or the neighbor, (usually both). The surveyor who prepared the corner record is cited for one or a combination of 8762(b)1-5, including negligence and incompetence thrown in as well. Never have seen this thrown at the Co. surveyor. If someone knows of a single instance where Borpelsg held the county LS to the same standard as the financially strapped practitioner,(no staff of free county attorneys supplied to protect him/her), please let me know.