Establishing lines of easements

[David Kendall]

I have been asked by a client to prepare a legal description for a water tank site. There is an existing, 60 year old, 100,000 gallon tank in the middle of a rural US Forest Service parcel and it exists by permission of a very general Special Use permit from USFS. The special use permit includes as Exhibit A a topo map with an arrow pointing to the site. No further description is provided in the permit other than section, township and range and an area of 0.5 acres. I am not even clear if it rises to the level of an easement or lease in the world of title...

I am considering setting tagged pipes so that they will know where to build the fence (assuming the replacement installation will be fenced). I will tie to two or more record monuments around 500 feet to the West. Even if I set lath, hubs or calculated points referenced to bearing trees I would still technically be establishing new lines on the ground.

Would this establishment trigger a record of survey? I have not been asked to monument the parcel and I don't even know if they are planning to build a fence. I suppose I have the budget to file but not sure if it is warranted. I do not believe the legal description which I prepare will ever be recorded.

How do you interpret this?

BPC 8762 (b) (5) The points or lines set during the performance of a field survey of any parcel described in any deed or other instrument of title recorded in the county recorder’s office are not shown on any subdivision map, official map, or record of survey.

[Warren Smith]

I think the trigger here is that the code section does not differentiate between various title interests in the description. However, it does require that instrument to be recorded. Thus, you are off the hook for mandatory filing. However, you may file (and it would be a good idea for posterity - you have tied down the as built location of the tip of the arrow).

[aidensanchez0812]

I agree with Mr. Smith.

Since your field survey is not a retracement of an existing parcel that is described in a deed or other instrument of title recorded in the county, it sounds like you're off the hook.

I would also add that as long as your legal description doesn't tie into any deed in your caption you're ok.

However, the conundrum for me remains. Usually a legal description is to provide rights (whatever they may be) to the dominant tenement over the servient tenements' parcel. Rights are usually granted based on legal ownership described in deeds. Since all real property has an owner, an easement must lie within some parcel that has to be described in a recorded document and therefore, if points are set anywhere on the ground, they are usually set within the lands of some owner who has proof of ownership on file with the county recorder.

If the parcel is owned by the USFS then there should be a deed filed with the county recorder stating so, and a legal description accompanying it. If the parcel is simply on the tax map as "USFS" and there is no legal description available or on file for that parcel in the county recorder, I would agree you are off the hook based on the code section.


I may be totally off base on my interpretation of this and some board clarification or advice from other surveyors may be warranted.

Thanks.

[RAM]

Quick read, but I believe you are preparing an exhibit to be a part of a special use permit. I do not believe you can create an easement across Federal lands high level approval. So if not an easement, and an location agreement condition on a special use permit under federal jurisdiction, what would trigger the need for a State Record of Survey? late in the day, but what am I missing?

if USFS lands, there are no deeds, as USFS lands were assigned by Congress from lands held by the US.

[David Kendall]

Revisiting this prior discussion. I appreciate the input and the USFS permit establishment question has been resolved with confidence.

Mr Sanchez and I are having a new but related discussion: when might establishment or retracement of easement lines trigger a record of survey?

In my experience, I have commonly staked easement limits for construction purposes, usually with temporary wood hubs. Never have I set permanent durable monuments.

While the monuments are irrelevant, does the RS trigger depend on whether the easement is described in a recorded document?

I have not seen many easements described in records of survey as a primary objective. They are typically shown incidentally to a boundary survey, as needed or as a matter of convenience.

Is there a legal distinction between a "parcel described in any deed or other instrument of title" and an easement right?

If the location of the easement is dependent upon location (E.g. '10 feet South of the North line') of an unmapped parcel boundary line then the answer is obvious that a record would be required as a result of the relevant parcel boundary establishment.

If an easement is crossing a parcel and not directly related to a parcel boundary (with agreement between parties as to loaction) or it is related to a parcel boundary that is previously mapped and monumented, would a record of survey be required to be filed by BPC?

[Jim Frame]

If an easement is crossing a parcel and not directly related to a parcel boundary (with agreement between parties as to loaction) or it is related to a parcel boundary that is previously mapped and monumented, would a record of survey be required to be filed by BPC?

I recall asking Howard Brunner this question a couple of decades ago, and if I'm remembering correctly his opinion was that a ROS was not required. However, I can't find the document (I think it was just email) to back that up.

[DWoolley]

Writing in detail about this particular subject i.e. (monumenting and/or establishing easements requiring a record of survey) is more than I want to shoulder. In short, everything I needed to know about the profession was clearly demonstrated in 2012. I would have been wise, saving myself years of Bensonite aggravation, to have walked away some 12 years ago.

On January 16, 1998, BPELSG staff counsel, Gary Duke, wrote a memo to the contract Land Surveyor Registrar, Howard Brunner, with a "Conclusion: The monumentation of an easement does not require the filing of a Record of Survey". The closing paragraph stated, "Consequently, the monumentation of an easement does not likely fall within the meaning of either "land boundaries or property lines" as those terms are used in Business and Professions Code section 8762."

Interestingly, the memo does not address 8762 (b) (5) "...described in any deed or other instrument of title recorded [easements?] in the county recorder's office...".

Only the land surveyors would offer deference to a staff attorney memo - especially those looking to validate cutting corners. Harken back to not filing records of survey for decades because of a couple sentences printed in a 1968 newsletter with no citations.

When someone finds a monument on an easement with no record, now you will know why. Let the public have to litigate for their rights.

It would have been in the best interest of the public and the profession to have passed a legislative solution - according to the California Legislative Counsel's office. I saw levels of professional depravity in relation to this topic that should have been a clear warning of the capabilities and capacities of our ilk. I simply didn't see it for what it was or who we are as a profession, again, myopic. The Benson Coalition cannot be broken.

DWoolley

[David Kendall]

On January 16, 1998, BPELSG staff counsel, Gary Duke, wrote a memo to the contract Land Surveyor Registrar, Howard Brunner, with a "Conclusion: The monumentation of an easement does not require the filing of a Record of Survey". The closing paragraph stated, "Consequently, the monumentation of an easement does not likely fall within the meaning of either "land boundaries or property lines" as those terms are used in Business and Professions Code section 8762."

Interestingly, the memo does not address 8762 (b) (5) "...described in any deed or other instrument of title recorded [easements?] in the county recorder's office...".

Only the land surveyors would offer deference to a staff attorney memo - especially those looking to validate cutting corners. Harken back to not filing records of survey for decades because of a couple sentences printed in a 1968 newsletter with no citations.

Thank you Sweet Tea this is very helpful information! Could you please share the document so that I can better understand the legal reasoning?

[DWoolley]

Thank you Sweet Tea this is very helpful information! Could you please share the document so that I can better understand the legal reasoning?

You will be disappointed, there is no "legal reasoning". I believe this is the result of someone having an attorney willing sign onto an individual land surveyor's desired outcome or more likely, to cover an existing practice in a particular region.

Imagine, setting monuments for an easement and not filing a map - you no longer have to imagine, simply do it. Few individual land surveyors' actions, besides a handful of gentlemen, back in '68, sitting around a coffee shop in the Bullseye, comparing their private record collections, reading a CLSA newsletter like the dead sea scrolls, have done more damage to the public and the public records system since John Benson.

The ticket to ride is attached. Run with the devil in good health.

DWoolley

[LS_8750]

8762(b)(5). "other instrument of title". Duh.
Government workers.
If there is one thing I learned a while back, don't trust that lawyers and judges get it right.

[David Kendall]

You will be disappointed, there is no "legal reasoning". I believe this is the result of someone having an attorney willing to sign onto an individual land surveyor's desired outcome or more likely, to cover an existing practice in a particular region.

Yes I see your point. My interactions with said individual have been less rewarding so your assertion seems plauasible. Thank you for sharing!

I am going to have a chapter PPC discussion on this topic, to review the merits. There was some disharmony around the idea during our brief chapter meeting discussion.

It would be nice to have a current board opinion on the matter but my sense is that they no longer like to issue these kinds of memos which, considering the circumstances, is understandable