IMPORTANT RULING: What happens when people move your monuments

[mpallamary]

This recent ruling may be of interest to the profession. In this case, I set some monuments and filed a survey and the neighbor did not like the results of that survey. he removed my monuments and set his own. I filed a complaint five years ago and it recently found its way through the system. The Board Administrator will not allow me to post the recorded Record of Survey.

I think the Administrative Law Judge's comments on the Board involvement are interesting.

On a sad note, my client died a few days after the hearing. I am trying to assist his widow as the neighbor created a real mess because of his misrepresentations to the city inspectors. We now have two illegal parcels because he moved my monuments.

I wish I could share the survey to better explain things.

[Gary Schenk]

The Board Administrator will not allow me to post the recorded Record of Survey.

What the reference? We can look it up ourselves.

[William Magee]

.........
The Board Administrator will not allow me to post the recorded Record of Survey.
.........
I wish I could share the survey to better explain things.

The way I understand it, the forum rules only disallow posting of someone else's work product. There is no rule against posting your own work product, and reallynothing wrong with posting historic surveys of those no longer practicing. Of course if the administrator has singled you out specifically, I might speculate as to the just cause.

[David Kendall]

I need one of you plastic card guys to interpret Conclusion #8 for me...

[Warren Smith]

David,

Legal Conclusion #8 speaks to situations where a statute prohibits an act under specified circumstances, and can be inferred to allow that act under circumstances which are not specified. In this case, the setting of boundary markers on land in which one does not have a legal interest cannot be done unless one is licensed to do so. In applying the reverse - setting of boundary markers on land in which one does have a legal interest - the Administrative Law judge determined that it was superceded by the requirement to be licensed in order to determine all boundaries.

It is arguing the alternative in order to illuminate its flawed reasoning. Trial judges - and especially appellate justices - do this in order to form opinions based upon the conflicting pleadings by the parties.

[Lee Hixson]

Section 8725 completely stumps me. I can't imagine what they were trying to allow. What is a possible circumstance where this is permissible.

[Warren Smith]

Lee,

The context of B&P 8725 is under the heading "Application of the Chapter". That is, it authorizes those individuals who are qualified to perform land surveying to do so for property in which they have no legal interest.

The AL judge above knocked the pillars out from under the argument that, by allowing licensed individuals to determine boundaries for others, unlicensed individuals could determine boundaries for their own property. What was unstated is that each boundary has an adjoiner. It may be that, if one owns a series of adjacent parcels, one could determine the interior boundaries, but that may run afoul of the Subdivision Map Act and provisions of local ordinances relating to land use.

[William Magee]

I believe the title of this thread is quite misleading. The judge made very clear that the defendant was not proven to have moved the recorded monuments. Rather he was found guilty of placing monuments to mark a boundary.
Fortunately this is not a appellate level opinion, sets no precedent and no courts are bound by it. My belief is the court would have better ruled that the defendant set monuments on another person's land, thereby surveying without a license. I disagree with the ruling in that placing monuments on one's own land is defendable. If both owner's agreed or acquiesced to the marking of a boundary by one or both owners, I have little doubt that one would have success arguing against unlawful survey practice at the appellate level contrary to this judge's determining basis. I know I'm splitting hairs but I believe it is an important distinction and one that plays into a number of situations. Such as when determining whether the agreed boundary doctrine applies to a particular boundary establishment. Case law is replete with boundaries lawfully established by landowners.

[Warren Smith]

Mr. Magee,

Very salient points.

What was lacking here was agreement between adjacent owners as to the re-set monuments. Had there been, it still would have been necessary to memorialize the agreement, and that would have been best served under the seal and authority of a licensed land surveyor.

[Olin Edmundson]

Interesting, thanks for sharing! I am curious, what did Mr. White set? I am also curious as to why the parcels are now considered illegal?

[mpallamary]

Mr. White set lead plugs with tacks and they looked just like old lead and tacks.

White's surveyor was involved and his name is on the survey. It is my understanding that because his name shows up on the recorded survey, he does not want that disclosed.

The lots are illegal because when Mr. White removed my monuments and after he set his new ones, he called the city inspectors and "showed" them he met the setbacks. After the cat was out of the bag and the city was aware of the problem, they declared him non-compliant.

The attorneys who were involved at the time, traded deeds, easements and quitclaim deeds over my protests, figuring they solved the problem. I protested and told them they were violating the map act and them being attorneys, they knew everything.

They are still trying to fix things and there is a big mess.

As to the reasons for the removal of the ROS, I posted the survey and I included a link to it several years ago and it was taken down. That being said, will the administrator allow it to be posted now????

BTW, I filed a couple of surveys because of all the problems with moving the monuments around.

Again, I thought you good folks would find this interesting.

[Administrator]

Your friendly neighborhood Administrator here, encouraging everyone to post away within the guidelines. Seems to me that William interpreted pertinent guidelines correctly...

[mpallamary]

Thanks Admin as always,

To everyone else. I cannot post the survey because a living surveyor is referred to on it. At the risk of sarcasm, and I am not being sarcastic, I may not ever be able to post the survey during my lifetime.

My main point is to give everyone some insight as to how this matter played out. I worked closely with Ray Mathe and Ray did a great job. Any insight into the thinking of an administrative law judge relative to land surveying is helpful.

[mpallamary]

Here are some pix of the White monuments. After removing mine, he set his and painted them with orange paint and pointed them out to city inspectors. As noted, this is not a published case or a conventional court decision. It is an administrative law judge ruling and my intent in sharing this, is to share some insight as to how things like these play out. I have been involved in other administrative legal proceedings involving surveyors and information like this is of value to everyone. The likelihood of being involved with an admin hearing is much higher, for most, than trial.

I also mentioned this guy is a CPA. Check out the CPA board reply.

I have attached some pix of him drilling and setting his own monuments which he denied. Once we had him in deposition, under sworn oath and with the evidence, he admitted he did it. My discs disappeared the same day and he denied removing them. Our former county surveyor suggested I sue White for defamation and slander because my reputation in this neighborhood was impacted. One can only assume what happened with my discs and where they ended up.

One of his complaints to the judge and one the judge was concerned with is it took 8 years before this came forward. During that period I expended an inordinate amount of time calling, emailing, mailing, calling, emailing and calling again to get the Board to pursue this.

The judge was disturbed with this fact and even though I felt that what White did was wrong, I could sympathise with him; eight years is a long time.

Again, I am sharing this to provide insight as to how the world works.

[rmaher]

Just imagine how nice that tag would look if set with one of these?: http://www.o-tags.com/

[desert turtoise]

My comment is not on the ruling by the Ad judge, rather it is related to the Record of Surveys and Corner Records filed by the two licensed individuals. I have in the past studied in depth all of the above maps related to this matter. I cannot go into great detail due to length constraints but some points are worth knowing for everyone's benefit.

1. Does anyone realize the boundary dispute was on the border between a subdivision filed in approximately 1920 and a later subdivision filed in approximately 1957? It was a matter of junior vs. senior rights. The owner to the east on the newer sub who apparently passed away recently was instructed by his surveyor (so stated in the ROS) that by directing his surveyor to monument the line of his choosing, that is, his junior line beyond and into the senior subdivision, there could be ramifications. That owner's surveyor let it be known in the narration of the ROS that he was careful to explain the possible results of holding a junior subdivision over a senior subdivision. Admirable but this begs the issue of responsible charge; who should be in charge of the survey results, the owner or the surveyor ? Surprisingly, this flew right over the heads of the Borpelsg people who were focused on who may practice and the second matter of tampering with markers.

2. The senior subdivision line to which White claimed was memorialized by the old rock wall seen in one of the above photos; the top most disc in the photo (see red paint?) indicates White's illegal marker. That illegal marker falls at the corner of that old wall built by the Sapps or their predecessors of the junior subdivision. The Sapps claimed their junior line went beyond their old rock wall. The rear of that line at the alley also was memorialized by a very old fence that existed for some 60 years as indicated by the city survey crew performing an alley survey with cross-sections in the 1950's. The City notes showed both the wall and fence to be at the record distance from the west, honoring the senior subdivision. This was all shown later in the ROS by Mr. White's surveyor, none of which vital evidence was shown in either of the ROS maps prepared for the Sapps earlier.

3. Mr. had everything in his favor; evidence of very long-standing occupation plus the exact record distance from the west that fit and substantiated the old occupational wall and fence. That is, until he chose to tamper with the markers set for the junior owners, rather than step back and allow a licensed surveyor at the very start to survey his senior land.

4. The Sapp surveyor did an outstanding, admirable, and I would even say an amazing job of research, explaining how the City had blundered in the creation of a street, later closed, that formed part the Sapp property, and led to the over lap of the two subs.

5. There are a lot of lessons to be learned from the above. Surveyors may find it a very slippery slope and can end up being an advocate for the person who hired them. Advocacy is for the owners' attorneys and has no place in land surveying.

[mpallamary]

Good points all! Those of us involved had also hoped the complaint would have addressed these issues. They did not and we are stuck with what we have. Hopefully, this dispute will be resolved to the satisfaction of all parties.

As to responsible charge, if you looked at the surveyors, the ones I prepared were entirely under my charge. That is what we do as surveyors. We make decisions and we do our best. No one said it was going to be easy. This is far from over as a lot of problems remain.

Thanks for weighing in!

[desert turtoise]

Your survey research would have taken place over a span of several years, since there were over 30 record maps to study in the area. The public can never realize the time and effort involved; only licensed land surveyors can appreciate that kind of effort.

Respectfully, my point about responsible charge has nothing to do with employees; it has to do with owners in legal situations who try to direct their hired surveyor to a result or try to interview surveyors who if hired, will have their viewpoint.

You were very transparent to the public in your first ROS, as you made it very clear in the narration on p.7 that you were using the opposite procedure that you had used in that block several years earlier when you had given the senior subdivision it's full width and those two other senior lots their full width. So you had honored the seniority at that time. "...attention is called to the fact that this Record of Survey also places monuments at the corners of Lot 1 in conflict with the procedure utilized in the reestablishment of lots 26-27...this is due to the fact that the owners commissioned me to monument the record location of lot 1 irrespective of the conflict..."

So since the client, to use your own language, "commissioned" you to use a particular procedure, that is, use the record dimension of the junior subdivision to hold over the senior subdivision, which you did in fact honestly admit to, the only conclusion is they are doing the directing, regardless of how transparent you were in your narration. They were in charge of where the line was marked. We can probably say they were not exactly in "responsible charge" since they were not themselves licensed. The bottom line is they got you to do what they wanted. You attempted to protect yourself by being transparent about it. Jeff Lucas the lecturer likes to call situations like this "slander of title" on the part of the surveyor. In my humble opinion it is not that clear cut due to your transparency in that first ROS.

[Anthony Maffia]

Rule #2 says:
Do not post material that is protected by copyright unless you are the copyright holder or have the author's written permission

Mr. Pallamary, Please post a link or filing information for your ROS. Thanks.

[mpallamary]

Will do.

Please note, the purpose of posting the administrative law judge ruling is to share how these things happen in the real world. I have no intentions of responding to some of the resultant posts for a variety of reasons, not the least of which this matter is still in litigation. My posting was solely intended to share the recent ruling as I worked closely with the Board on this case. I think it is valuable to see how the Administrative hearings go.

The surveys are all filed and can be found at the County of San Diego Survey Records Department. They are public records. Go to:

https://www.sdcountyluegepay.com/SRI_Internet/

MAP 4138
ROS 18066
ROS 20711
TPS 1771
TPS 1780
CR 26831
CR 27154

Good luck! I can be privately contacted. Once again, the SOLE purpose of my posting is to share with the rest of the community, how complaints of this move forward.

[DWoolley]

Ah, Mr. Maffia, please tell me more about this copyright which exists on a map filed at the county or any other work product showing common boundary lines as established (as opposed to a subdivision design).

DWoolley

[mpallamary]

Here is some additional information. In fact a series of deeds were prepared and recorded as per the attached. The problem as I noted had to do with White moving things around. The court is certainly entitled to its opinion in adopting its ruling. My clients and I are still entitled to our own opinions and observations. The problem arose because of monuments tampering and the representations made to the city. There is not enough time to debate the survey issues at this time and that was not the issue before the Admin Court. The issue was moving and setting markers around. The recorded deed may add some background. At the end of the day, both properties cannot meet proper setbacks and that is the problem. I would also note that I disagreed with the operative language of the recorded deeds. I was asked to merely prepare the land descriptions. My concerns were validated when this blew up.

As an aside, it would be helpful if desert tortoise identified himself given the fact he has intimate knowledge of what happened and as he has made some critical statements of my involvement with this case. I certainly welcome discussion but as I have oft stated, as with Mr. Magee, anonymity cannot be used as a shield to hide behind. Reveal yourself - it is liberating.

[desert turtoise]

It is both fun and educational to research and actually visit sites that have had boundary line disputes. I have done this in a number of cities, and counties. People tend to be myopic and isolate themselves when they just focus on surveys in their own city or town. CA is an amazingly big place with lots of opportunities to learn and grow. Do more than just vacation when you are on vacation. Do we ever stop learning ? I hope not.

Respectfully to everyone, previously I gave several reasons why being anonymous is best for some.

[mpallamary]

I agree desert tortoise. According to the rules of this forum (rules that have been repeatedly reinforced), it is fine to weigh in when you want. It is my opinion that when you attack someone and personalize those attacks, you are crossing the line making you a troll. It also makes you a coward. I welcome comments and the sharing of information. What I do not accept is personalized attacks behind a cloak of anonymity.

You and William Magee are a fine pair and a "credit" to the profession.

[desert turtoise]

"4. The Sapp surveyor did an outstanding, admirable, and I would even say an amazing job of research, explaining how the City had blundered in the creation of a street, later closed, that formed part the Sapp property, and led to the over lap of the two subs."

"So since the client, to use your own language, "commissioned" you to use a particular procedure, that is, use the record dimension of the junior subdivision to hold over the senior subdivision, which you did in fact honestly admit to, the only conclusion is they are doing the directing, regardless of how transparent you were in your narration. They were in charge of where the line was marked."

My only and final comment is to re-read the above. Vacation and be happy !