Who owns the survey monuments?

[mpallamary]

I am writing an article on the ownership of survey monuments. Is anyone aware of any case or principle that addresses this question? Thanks for your consideration.

[Warren Smith]

Given that their destruction is an offense within the Penal Code, their maintenance and preservation is the responsibility of the local agency, and the authority to tie out and replace them is granted under statute, their ownership would seem to be that of the people of the State of California.

That is through legislative action. For case law to apply, an action would have to be adjudicated and appealed. It would be an interesting search. Since the amendment to Civil Code section 841 a few years ago, landowners are also charged with maintaining their boundaries, fences, and monuments. That could be a source of litigation for this issue to surface.

[mpallamary]

A recent decision came down in a California case dealing with survey monuments. I do not want to share it at this time as it is the basis of the article.

As to the people owning them, does that ownership transfer when the monument is placed or the map records? In order for the monument to be state-owned, is that because the map or survey is recorded? What about older survey monuments that were placed but not in connection with any map. Interesting.

[Warren Smith]

Ownership of survey monuments can be determined through inference. Once a land surveyor sets them in furtherance of memorializing property corners, it can be inferred that ownership is no longer with the surveyor. Who is left? If adjacent property owners are to have ownership, is the physical object to be considered "split" along the various property lines running through it? Does the one who contracted the survey have a superior claim?

Ownership only has value for a survey monument in place, and documented to correctly represent a legal position on the surface of the earth.

Another class of potential "owners" is the public at large. The filing of a public record anticipates the benefit to be derived from the existence of physical markers representing boundaries between current and future landowners. Conveyance descriptions referring to such monuments also anticipate the continued advantage of tangible evidence of the location of vested interests. This is the basis for the Common Law, which Courts utilize to analyze issues brought for adjudication.

The above is exceedingly generalized, but may help in researching the rules of law which apply to the purpose you are focusing on.

[mpallamary]

Yes, good stuff. Thanks! Will digest.

[subman]

My opinion: If defining public improvements, say centerline monuments, then the public agency owns them on behalf of the public. If the monument defines the boundary of private property, then the benefitting property owners have a common joint ownership if set on-line. If set by off-set to the line, then sole ownership. In all cases the state and local agency have the legal authority to regulate their use, perpetuation.and access to by licensed individuals.

[Lee Hixson]

My first thought was to agree with subman. If a tree sits on a P/L then it's jointly owned, is it not? Similar situation with a monument.

On the other hand, as I've written before, I consider virtually any private parcel to be part of a unique "parcel matrix." In a tract situation that matrix usually consists of the entire block that the PIQ sits inside of and all monuments inside that block bear reference to each other. Or, a surveyed property could sit among a group of metes & bounds parcels that all relate to a set of controlling monuments (and to each other). Or you could have a set of aliquot parcels inside sectionalized land. Or, the matrix could be a combination of any of the above.

In my own mind--whichever of the above--the whole, unique matrix needs to be addressed and resolved for a proper survey to take place. Thus, all monuments pertaining to any matrix, be they controlling from the "outside" or marking or marking individual property corners "inside" the matrix, they are all witness corners to each other and should be considered as valuable and commonly owned and contingent upon each other. And since ownership of any one parcel in the matrix changes over time, that brings the general public into the picture, a la Warren Smith's comments.

[Tracy Park]

I'm not pro/con on a surveyor owning his monuments, not just yet anyway, but have a few thoughts on that:

- Is the race now on to be the first surveyor to put a (C) symbol on your cap?
- If the surveyor owns the monument, does she/he get to charge others fees for accessing the monument? Fees for referencing the monument on a map? How about fees just for considering the monument in your resolution??? (okay this one might be a jab)
- If the surveyor owns the monument, and it sits in the ground on private property for ## years, does she/he now have an easement to access said monument, regardless of right-of-entry?
- What if the State pulls said surveyor's license, so she/he is no longer a surveyor? Does she/he still own the survey monument, even though said surveyor may not have any legal grounds to do so?
- Does the local County get to 'pass' on any monument preservation required of privately held monuments? "I know you paid into the monument preservation fund when you purchased the property, but that fund is only for 'County/publicly owned' monuments"?

Having re-read my comments, it sounds like I'm 'con', lol. This isn't an attempt to dismiss the idea, I'll say that.

Mr. Pallamary, I am eagerly awaiting your aritcle!!

Tracy Park

[E_Page]

Civil Code §841 (a) Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.

The surveyor's "ownership ends once he has set a monument and represented it to the landowner as having a specific relationship to the property boundary, it then becomes part of the boundary.

I haven't yet read (or been aware of) the case Mike refers to, but if the court's reasoning is like mine, the monument becomes a shared responsibility (and likewise, they share in the value) of the coterminous owners of the boundaries the point is a part of. The distinction between monuments directly on a corner position or line and those off line, set as reference or witness monuments is different from the distinction of ownership of a tree on line versus a tree entirely on one side or the other of a boundary.

With something like a tree, who owns it and is responsible for it is a matter of higher concern than what the tree might represent. Unless a tree has been purposely placed and/or been designated some positional significance to the boundary (i.e., called as a corner, marked and called as a line tree or bearing tree), then its position relative to the boundary is merely determinative of the ownership & responsibility of it.

If it is purposely designated with a locational relationship to the boundary so that the boundary location may be determined from the tree location, then it also takes on the significance of a boundary monument and becomes part of the boundary.

A monument, being part of the boundary, whether directly on the boundary or not, IMO, is a matter of shared importance/value and each owner shares in the responsibility of maintaining that boundary. That includes the monuments. If the monument is a reference mon, wholly on one side, then the landowner on that side has a responsibility to maintain it as if it were on the boundary. Or if not the monument specifically, the position or equally reliable means of identifying the boundary at the referenced location.

If the monument (or more correctly, the location it marks) is a controlling point of property boundaries yet not a point directly on those boundaries (i.e. section corner, block corner, etc.), then the coterminous owners' duty to maintain the monument is not simply to each other, but to the community. If the monument is on a right of way, then the "ownership" would rest with not only the owners of the directly marked and affected parcels, but with all who have an interest in that RW (if a private RW, then limited to other properties with right to use the RW. If a public RW, then vested in the agency charged with responsibility of managing public RWs of the jurisdiction to which the RW is dedicated).

Even a monument set by a private surveyor within a public property ceases to be owned by that surveyor once he leaves it there. The surveyor may own all of his measurements and related data pertaining to the point marked by the monument, but he can not claim the exclusive right to occupy or otherwise use that point once set. Further, and this might be a small stretch, but if I were judge... a monument set by a private surveyor as a proprietary control point in a public location, once and if tied into another survey, by public agency or private surveyor, and reflected on a publicly filed map or other public document (i.e. County Surveyor's Field Notes), becomes a public monument.

That's just my opinion. It will be interesting to see what the court had to say.


Mike,

Is that a Superior Court judgment or an Appellate level opinion you referred to?

[Warren Smith]

Another apt analogy is that of public street improvements. The maintenance of roadways is the responsibility of the local agency, but the travelling public at large finances said maintenance through the payment of road use taxes. It is a means of maintaining public infrastructure for the common weal.

An interesting PLSA section is 8725:

"It is unlawful for any person to ... set, reset, replace, or remove any survey monument on land in which he or she has no legal interest, unless he or she has been licensed or specifically exempted from licensing under this chapter."

That speaks to the capacity of licensed land surveyors to perform tangible acts of demarcating boundaries, and it is based upon specialized training and knowledge of appropriate principles relating to all adjoiners - a very public concern, and one (like all other Business & Professions) necessary to regulate.

[subman]

What does having a legal interest in the property have to do with 8725. As such one can interpret that if a private unlicensed party has legal interest in the property, they can remove a survey monument on their property.

Just wondering out loud. What is the value of that phrase "...has no legal interest..."

[Peter Ehlert]

Subman: as I see it I believe the owners have the right to "set, reset, replace, or remove" your monuments.
We (non PLS land owners) have no responsibility to enlist a PLS or perpetuate you monuments for remote parties.
That is a private mater between us... as I see it

[Warren Smith]

It's an authorizing statute for those who are regulated/licensed. Along the lines of right of entry exemption from the crime of trespass. All in the scheme of specialized practice for the public good.

If a non-licensed landowner moves a properly set monument, it is likely to not be into property in which he or she has a legal interest. Who determines that?

The preamble for the PLSA is the protection of the consumer/General public.

[mpallamary]

As always, you guys present some great dialogue. I cannot wait to share my article and the case it is based on. It provides a rather extraordinary perspective on survey monuments while addressing some potential liability issues. I am getting a lot of national responses and they are just as engaging. Thank you everyone. It is an interesting question.