Have you discussed your recovery of the unrecorded documents and monuments with the adjoiner's surveyor? I think he should be made aware of your evidence. He may agree and convince his client of your perspective.
As far as your statement, the first paragraph I can agree with, but I think the next two go a little too far.
Good Luck
Survey report
-
E_Page
- Posts: 2137
- Joined: Thu Jun 23, 2005 6:49 am
- Location: El Dorado County
First paragraph: For purposes of a public forum discussion, eliminate the identification of the engineer, calling them something like XYZ Engineering, rather than by their actual name. Go back and edit your posting if you can.
The statement that the corners set and lines marked by XYZ Engineering have been accepted for 20 years by all parties is more definitive than you likely have actual knowledge of. State instead that they have been "reportedly recognized" or "apparently recognized" and state your source of the report or evidence that makes it apparent.
Second paragraph: State your basis for this assertion. Most of us correctly operate this way, giving our predecessors the benefit of the doubt (lacking evidence to the contrary). But in a report, you should cite at least one solid piece of backup to such assertions (a case, statute, or at least an accepted text reference).
Third paragraph: How does change of ownership change the equation? I agree, at least in principle, with the rest of that sentence.
What you believe does or does not deserve due consideration by a court of law is irrelevant. You are not an attorney. As a surveyor, you should use case law as the appropriate guide to apply law. Do this and then make factual statements as to how you did so. Never opine as to what you think the law should give consideration to.
You make statements that appear to direct the court as to what they should consider and to whom they should consider placing liability upon. You're opening yourself up to trouble in doing that. This is practicing law as an advocate.
As surveyors, we apply law. Sometimes the law is very clear as written in the statutes. Sometimes the statute law (including codes, regulations, etc.) require interpretation by a court. Often, the law we apply is common law as has been determined in court. Even what we consider basic principles, such as your statement of accepting a previous surveyor's (or in this case, engineer's) work have been tested and ruled upon in court. We use these rulings as guides to apply law.
Opining as to what the court should do in a particular case is not our purview. It is the practice of law. Often with boundary issues like the one you describe, the line between application and advocacy gets very fine. The difference can often be seen in your wording. Did you use principles from statute and case law to arrive at an opinion? Or, did you see what you considered to be the equitable outcome and then seek to justify that outcome?
In this case, you may arrive at the same outcome by proper application of the law, but your narrative currently reads more like a justification of an outcome that is best for your client.
Look for the proper legal authority to apply, adjust your conclusions if necessary, and then write statements that are factual (what evidence you found and how you applied law to that evidence) rather than advocatory for your conclusions. In other words, don't make the arguments, but rather provide all the relevant information for your client's attorney to make the proper arguments.
The statement that the corners set and lines marked by XYZ Engineering have been accepted for 20 years by all parties is more definitive than you likely have actual knowledge of. State instead that they have been "reportedly recognized" or "apparently recognized" and state your source of the report or evidence that makes it apparent.
Second paragraph: State your basis for this assertion. Most of us correctly operate this way, giving our predecessors the benefit of the doubt (lacking evidence to the contrary). But in a report, you should cite at least one solid piece of backup to such assertions (a case, statute, or at least an accepted text reference).
Third paragraph: How does change of ownership change the equation? I agree, at least in principle, with the rest of that sentence.
What you believe does or does not deserve due consideration by a court of law is irrelevant. You are not an attorney. As a surveyor, you should use case law as the appropriate guide to apply law. Do this and then make factual statements as to how you did so. Never opine as to what you think the law should give consideration to.
You make statements that appear to direct the court as to what they should consider and to whom they should consider placing liability upon. You're opening yourself up to trouble in doing that. This is practicing law as an advocate.
As surveyors, we apply law. Sometimes the law is very clear as written in the statutes. Sometimes the statute law (including codes, regulations, etc.) require interpretation by a court. Often, the law we apply is common law as has been determined in court. Even what we consider basic principles, such as your statement of accepting a previous surveyor's (or in this case, engineer's) work have been tested and ruled upon in court. We use these rulings as guides to apply law.
Opining as to what the court should do in a particular case is not our purview. It is the practice of law. Often with boundary issues like the one you describe, the line between application and advocacy gets very fine. The difference can often be seen in your wording. Did you use principles from statute and case law to arrive at an opinion? Or, did you see what you considered to be the equitable outcome and then seek to justify that outcome?
In this case, you may arrive at the same outcome by proper application of the law, but your narrative currently reads more like a justification of an outcome that is best for your client.
Look for the proper legal authority to apply, adjust your conclusions if necessary, and then write statements that are factual (what evidence you found and how you applied law to that evidence) rather than advocatory for your conclusions. In other words, don't make the arguments, but rather provide all the relevant information for your client's attorney to make the proper arguments.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
-
E_Page
- Posts: 2137
- Joined: Thu Jun 23, 2005 6:49 am
- Location: El Dorado County
As for the edit, call Crissy at the CLSA office. If she can't do it herself, I'm sure she can have the appropriate person get it done.
The only case that I know of to address the distinction between a recorded survey vs. an unrecorded one is Knerr. Fortunately, that is not a published case.
If it were me, generally speaking, I would give a signed and sealed unrecorded survey the same weight as a recorded one. Beyond that, how much weight I give one over the other would be dependent upon what I could discern from the map, or from the surveyor himself, as to the evidence found and how it was utilized.
In the case of the older survey, I might be concerned as to why it was not recorded. Was it an oversight or was it because the engineer had some reservations as to his boundary determination and didn't want to record his potential mistakes?
In the case of the recent survey, it would concern me that the evidence of the prior survey (existing monuments) was either not found or ignored altogether. On the surface, it shows either a lack of diligence in the field, or a disregard of relevant evidence by the LS in the office. Neither is acceptable and put the boundary determination in doubt. There may be other reasonable and acceptable reasons why the evidence was not found. Not knowing the particulars, I reserve judgment.
My particular feeling on narratives is that they can add much to the map, so that it more completely speaks for itself. Particularly where actual and described or "record" boundary do not fully coincide. Explaining why (in factual terms) you felt certain evidence superior to other conflicting evidence can lead a following surveyor (or a judge) to your conclusion, where if lacking the explanation, that surveyor (or judge) may come to a conflicting conclusion.
If you can rewrite your statements in factual terms, it may help your clients greatly in arguing their position. It seems that they will need the help. Without proper legal representation, they stand a better than even chance of losing, even if they are in the right. If you have the opportunity, perhaps you should let them know that you strongly urge them to get competent legal counsel for this dispute.
Good luck.
The only case that I know of to address the distinction between a recorded survey vs. an unrecorded one is Knerr. Fortunately, that is not a published case.
If it were me, generally speaking, I would give a signed and sealed unrecorded survey the same weight as a recorded one. Beyond that, how much weight I give one over the other would be dependent upon what I could discern from the map, or from the surveyor himself, as to the evidence found and how it was utilized.
In the case of the older survey, I might be concerned as to why it was not recorded. Was it an oversight or was it because the engineer had some reservations as to his boundary determination and didn't want to record his potential mistakes?
In the case of the recent survey, it would concern me that the evidence of the prior survey (existing monuments) was either not found or ignored altogether. On the surface, it shows either a lack of diligence in the field, or a disregard of relevant evidence by the LS in the office. Neither is acceptable and put the boundary determination in doubt. There may be other reasonable and acceptable reasons why the evidence was not found. Not knowing the particulars, I reserve judgment.
My particular feeling on narratives is that they can add much to the map, so that it more completely speaks for itself. Particularly where actual and described or "record" boundary do not fully coincide. Explaining why (in factual terms) you felt certain evidence superior to other conflicting evidence can lead a following surveyor (or a judge) to your conclusion, where if lacking the explanation, that surveyor (or judge) may come to a conflicting conclusion.
If you can rewrite your statements in factual terms, it may help your clients greatly in arguing their position. It seems that they will need the help. Without proper legal representation, they stand a better than even chance of losing, even if they are in the right. If you have the opportunity, perhaps you should let them know that you strongly urge them to get competent legal counsel for this dispute.
Good luck.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
-
D Ryan
- Posts: 187
- Joined: Fri Aug 23, 2002 12:20 pm
- Location: Arcata, CA
Pat,
It’s not entirely clear who set what monuments, and how much they disagree with each other. Sounds like the earlier surveyor set monuments, but it’s not clear if the later one did. Also it’s not entirely clear if you did a survey yourself and are filing a survey or are just preparing a report based on review of existing documentation. It sounds like you are inclined to accept the location of the non-record survey, but the recent surveyor failed to note the existence of the non-record survey and associated monuments.
So, what weight should be given to a non-record survey? That can be a dilemma. A survey that is discovered, whether filed in the public records or not, that a deed appears based on (i.e., they go hand in hand) can be the best evidence of the location of original deed lines and can hold great weight. It doesn’t sound like that’s the case here (too recent in time), so it would just be a retracement. A non-record survey generally enjoys a lower status than a filed survey, but I wouldn’t reject it outright based on that alone. An analysis is required regarding that surveyor’s diligence and methodology. Poor surveying and failure to file would be two strikes against it.
Can the recent surveyor be faulted for failing to acknowledge the non-record survey? That depends on local custom as pertains to level of research typically done. I’d hate to be sitting on the stand trying to defend why my Record of Survey failed to make any mention of the non-record survey if other surveyors are typically able to discover their existence, and give them consideration. Sometimes courts fail to see a distinction between a filed survey and a non-filed survey. It seems the question will be raised, though regarding the parties’ reliance on the non-record survey.
In the end, the court will likely look past the issue of proper or improper survey methods and evaluate fairness, or equity. You’d be best to present the facts to your clients and their attorney (and cross your fingers he is an experienced property law attorney) and let him advise them on their chances of prevailing in court. I agree with your decision to forego the long-winded opinions in your report (I just did enough of that for both of us…).
It’s not entirely clear who set what monuments, and how much they disagree with each other. Sounds like the earlier surveyor set monuments, but it’s not clear if the later one did. Also it’s not entirely clear if you did a survey yourself and are filing a survey or are just preparing a report based on review of existing documentation. It sounds like you are inclined to accept the location of the non-record survey, but the recent surveyor failed to note the existence of the non-record survey and associated monuments.
So, what weight should be given to a non-record survey? That can be a dilemma. A survey that is discovered, whether filed in the public records or not, that a deed appears based on (i.e., they go hand in hand) can be the best evidence of the location of original deed lines and can hold great weight. It doesn’t sound like that’s the case here (too recent in time), so it would just be a retracement. A non-record survey generally enjoys a lower status than a filed survey, but I wouldn’t reject it outright based on that alone. An analysis is required regarding that surveyor’s diligence and methodology. Poor surveying and failure to file would be two strikes against it.
Can the recent surveyor be faulted for failing to acknowledge the non-record survey? That depends on local custom as pertains to level of research typically done. I’d hate to be sitting on the stand trying to defend why my Record of Survey failed to make any mention of the non-record survey if other surveyors are typically able to discover their existence, and give them consideration. Sometimes courts fail to see a distinction between a filed survey and a non-filed survey. It seems the question will be raised, though regarding the parties’ reliance on the non-record survey.
In the end, the court will likely look past the issue of proper or improper survey methods and evaluate fairness, or equity. You’d be best to present the facts to your clients and their attorney (and cross your fingers he is an experienced property law attorney) and let him advise them on their chances of prevailing in court. I agree with your decision to forego the long-winded opinions in your report (I just did enough of that for both of us…).
-
E_Page
- Posts: 2137
- Joined: Thu Jun 23, 2005 6:49 am
- Location: El Dorado County
Mr. Tidwell,
Review Section 8762(b)(1) of the PLSA. You may want to reconsider whether a RS is required, considering the monuments from the unrecorded survey are "Material evidence ... which in whole or in part does not appear on any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder..."
If the other surveyor were to be made aware of the unrecorded survey and incorporated that evidence into his survey (accepted or rejected, at least shows it and references the unrecorded survey), then there will be no need for you to file an RS.
Review Section 8762(b)(1) of the PLSA. You may want to reconsider whether a RS is required, considering the monuments from the unrecorded survey are "Material evidence ... which in whole or in part does not appear on any subdivision map, official map, or record of survey previously recorded or filed in the office of the county recorder..."
If the other surveyor were to be made aware of the unrecorded survey and incorporated that evidence into his survey (accepted or rejected, at least shows it and references the unrecorded survey), then there will be no need for you to file an RS.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
-
Ian Wilson
- Posts: 1087
- Joined: Sat Aug 03, 2002 6:58 am
- Location: Bay Area
Yikes, Pat! I hope your E&O carrier doesn’t see this statement! ;^)
First, you mention that you don’t disagree with the adjoiner’s surveyor. Then, you mention that there are monuments set at the corners of your client’s land and that the boundary was “…established from unrecorded documents…” Just what are these unrecorded documents?
The fact that these monuments have been relied upon for more than 20 years may give something to the title insurance company in terms of “clearance” to rely upon marketable title. Whether the location of those monuments ahs eve been disputed by anyone is of little consequence.
The second paragraph in your statement must be terrifying any attorney reading this. You even state that you don’t disagree with the adjoiner’s surveyor. Why not? Is there something about the existing monuments which points to the fact that they were set in error? Either the monuments are good and in the proper place or they are not.
As one of my mentors used to tell me, sometimes in a somewhat heated voice, if you’re on the wrong line, you’re on the wrong line and all the math in all the world won’t change that! Just because the monuments have been there for more than twenty years means nothing.
I often put statements on my Records of Survey that are designed to leave explanations for what I’ve done and suggestions for how others should proceed in future. These statements are often directed to future courts. I am quite sure, in most cases, that such future courts would seriously question the future surveyor who strayed from my direction when it has been so clearly stated and recorded. The difference between your statement and mine is that yours attempts to deflect liability while mine takes it on squarely.
As to other’s statements about practicing law and being an advocate, that’s exactly what we do as Boundary Surveyors. When we make a determination as to where to position a line or an intersection based on what can best be defended in court, we ARE PRACTICING LAW!!! That’s what we do!!! I AM an advocate!!! I act as the advocate for the land. If that advocacy happens to benefit my client, so be it; if not, so be it as well!
From what you have presented, Pat, while you agree with the location of the common boundary line that the adjoiner’s surveyor has determined, something about the existing monuments has you entranced. Do you have further information that would cause you to go one way or the other regarding these monuments? Can you discuss the matter with the original surveyor/engineer? Do you have access to their original field notes or data?
As David alludes to, this is an opportunity to shine as a PROFESSIONAL land surveyor. Collecting all the data, analyzing it and presenting it to your client with suggestions as to how to proceed are what is needed here. Take charge and lead the way. Both your client and the adjoiner stand to gain.
This case has me intrigued. Please keep me informed as to what happens and how you handle it. If you need advice or another set of eyes, please feel free to call me or email me!
Ian
First, you mention that you don’t disagree with the adjoiner’s surveyor. Then, you mention that there are monuments set at the corners of your client’s land and that the boundary was “…established from unrecorded documents…” Just what are these unrecorded documents?
The fact that these monuments have been relied upon for more than 20 years may give something to the title insurance company in terms of “clearance” to rely upon marketable title. Whether the location of those monuments ahs eve been disputed by anyone is of little consequence.
The second paragraph in your statement must be terrifying any attorney reading this. You even state that you don’t disagree with the adjoiner’s surveyor. Why not? Is there something about the existing monuments which points to the fact that they were set in error? Either the monuments are good and in the proper place or they are not.
As one of my mentors used to tell me, sometimes in a somewhat heated voice, if you’re on the wrong line, you’re on the wrong line and all the math in all the world won’t change that! Just because the monuments have been there for more than twenty years means nothing.
I often put statements on my Records of Survey that are designed to leave explanations for what I’ve done and suggestions for how others should proceed in future. These statements are often directed to future courts. I am quite sure, in most cases, that such future courts would seriously question the future surveyor who strayed from my direction when it has been so clearly stated and recorded. The difference between your statement and mine is that yours attempts to deflect liability while mine takes it on squarely.
As to other’s statements about practicing law and being an advocate, that’s exactly what we do as Boundary Surveyors. When we make a determination as to where to position a line or an intersection based on what can best be defended in court, we ARE PRACTICING LAW!!! That’s what we do!!! I AM an advocate!!! I act as the advocate for the land. If that advocacy happens to benefit my client, so be it; if not, so be it as well!
From what you have presented, Pat, while you agree with the location of the common boundary line that the adjoiner’s surveyor has determined, something about the existing monuments has you entranced. Do you have further information that would cause you to go one way or the other regarding these monuments? Can you discuss the matter with the original surveyor/engineer? Do you have access to their original field notes or data?
As David alludes to, this is an opportunity to shine as a PROFESSIONAL land surveyor. Collecting all the data, analyzing it and presenting it to your client with suggestions as to how to proceed are what is needed here. Take charge and lead the way. Both your client and the adjoiner stand to gain.
This case has me intrigued. Please keep me informed as to what happens and how you handle it. If you need advice or another set of eyes, please feel free to call me or email me!
Ian
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
-
E_Page
- Posts: 2137
- Joined: Thu Jun 23, 2005 6:49 am
- Location: El Dorado County
Semantics, Ian.
You are applying law to the situation. You may then advocate for your position, which was arrived at by an impartial weighing of the evidence available. But the land is not a party to a case. It does not negotiate in a settlement. It can be neither plaintiff, nor defendant.
An attorney determines what is in the best interest of his client and then attempts to highlight or downplay evidence to persuade the court to reach a predisposed position.
That is practicing law, which goes beyond the application of law. We don't do that. Our conclusions should be the same regardless of which landowner hired us.
You are applying law to the situation. You may then advocate for your position, which was arrived at by an impartial weighing of the evidence available. But the land is not a party to a case. It does not negotiate in a settlement. It can be neither plaintiff, nor defendant.
An attorney determines what is in the best interest of his client and then attempts to highlight or downplay evidence to persuade the court to reach a predisposed position.
That is practicing law, which goes beyond the application of law. We don't do that. Our conclusions should be the same regardless of which landowner hired us.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
-
Ian Wilson
- Posts: 1087
- Joined: Sat Aug 03, 2002 6:58 am
- Location: Bay Area
Hey, Evan!
Semantics? Not really. To me, this is sort of like a BS in Mathematics and a BS in Applied Mathematics. The pure Math folks look down their noses at the Applied Math people.
And, no, I don’t always just “apply the law to the situation”. In a number of cases, it takes a synthesis of statute and case law to come up with my point. My comments to Gary O’Connor are a case in point. I make my argument based on interpretation of the statutes and where they lead me.
The same stands true for my advocacy.
And you’re right…the land is not PARTY to the case, it IS the case.
When I lay out the case, to my client, the adjoiner, to an attorney who hires me or to one who cross examines me, I describe the evidence I considered to arrive at my opinion as well as why I didn’t consider other evidence. I lay out the statute and cases that support my conclusions as well as the ones that don’t and why they do not apply in the case at hand.
The difference between the attorney who advocated for their client and me is the fact that a good attorney will work to find the best support FOR his client. He takes on the client and then builds a case in favor of the client. I work to support the best conclusion regardless of whose position it benefits. I take on the evidence, weigh it against what I can best support and disregard whose position it best supports.
Advocacy of the client’s position is not the practice of law; it is the lawyering that goes along with the practice of law. THAT we do not and MUST not practice.
I do agree with you when you say “Our conclusions should be the same regardless of which landowner hired us.” If they change one iota, then we need to step aside; we’re not practicing our profession any more, we’re practicing the art of lawyering.
(N.B. Lawyering is not wrong nor is it immoral. It is the art of working within the confines of the structure of the law, the court, the evidence and the rules of evidence to the benefit of your client. It is as honorable as the practice of land surveying.)
Semantics? Not really. To me, this is sort of like a BS in Mathematics and a BS in Applied Mathematics. The pure Math folks look down their noses at the Applied Math people.
And, no, I don’t always just “apply the law to the situation”. In a number of cases, it takes a synthesis of statute and case law to come up with my point. My comments to Gary O’Connor are a case in point. I make my argument based on interpretation of the statutes and where they lead me.
The same stands true for my advocacy.
And you’re right…the land is not PARTY to the case, it IS the case.
When I lay out the case, to my client, the adjoiner, to an attorney who hires me or to one who cross examines me, I describe the evidence I considered to arrive at my opinion as well as why I didn’t consider other evidence. I lay out the statute and cases that support my conclusions as well as the ones that don’t and why they do not apply in the case at hand.
The difference between the attorney who advocated for their client and me is the fact that a good attorney will work to find the best support FOR his client. He takes on the client and then builds a case in favor of the client. I work to support the best conclusion regardless of whose position it benefits. I take on the evidence, weigh it against what I can best support and disregard whose position it best supports.
Advocacy of the client’s position is not the practice of law; it is the lawyering that goes along with the practice of law. THAT we do not and MUST not practice.
I do agree with you when you say “Our conclusions should be the same regardless of which landowner hired us.” If they change one iota, then we need to step aside; we’re not practicing our profession any more, we’re practicing the art of lawyering.
(N.B. Lawyering is not wrong nor is it immoral. It is the art of working within the confines of the structure of the law, the court, the evidence and the rules of evidence to the benefit of your client. It is as honorable as the practice of land surveying.)
Ian Wilson, P.L.S. (CA / NV / CO)
Alameda County Surveyor
Alameda County Surveyor
-
E_Page
- Posts: 2137
- Joined: Thu Jun 23, 2005 6:49 am
- Location: El Dorado County
Your various comments seem to say that you would agree with the recent survey if there was not evidence of the older, unrecorded survey. But you also recognized that those monuments, and the amount of time that they've been recognized changes the whole equation.
You just indicated that the monuments of the unrecorded survey should have been obvious to the adjoiner's surveyor. You just stated that you would hold the older monuments.
I think that you just made a compelling argument as to why you need to file an RS.
You just indicated that the monuments of the unrecorded survey should have been obvious to the adjoiner's surveyor. You just stated that you would hold the older monuments.
I think that you just made a compelling argument as to why you need to file an RS.
Evan Page, PLS
A Visiting Forum Essayist
A Visiting Forum Essayist
-
pls7809
- Posts: 1035
- Joined: Tue Apr 13, 2004 3:48 pm
- Location: Chino, CA
-
McGee
- Posts: 20
- Joined: Tue Feb 28, 2006 3:27 pm
- Location: Santa Barbara
- Contact:
Surveyor's Responsibilities
My Thoughts
Land Surveyors are quasi-judicial officers of the court and operate in a forensic capacity which is to:
Collect evidence (records, history, monuments, occupation, measurements, etc)
Interpret the facts,
Avoid making judgments,
Avoid obfuscation of the issues,
and Report (in writing) the meaning of the evidence (and there is usually several alternatives to consider) and suggest if appropriate a resolution.
Restated: A surveyors responsibility is to report the facts, offer qualified opinions, and avoid the appearance of being an advocate for or against either party in a dispute.
One last thing, I adamantly believe as a matter of professional courtesy that when we find a problem with another surveyors work we should always contact them first and present the issues without criticism or judgments to create good will and an opportunity for resolution at an early stage.
Land Surveyors are quasi-judicial officers of the court and operate in a forensic capacity which is to:
Collect evidence (records, history, monuments, occupation, measurements, etc)
Interpret the facts,
Avoid making judgments,
Avoid obfuscation of the issues,
and Report (in writing) the meaning of the evidence (and there is usually several alternatives to consider) and suggest if appropriate a resolution.
Restated: A surveyors responsibility is to report the facts, offer qualified opinions, and avoid the appearance of being an advocate for or against either party in a dispute.
One last thing, I adamantly believe as a matter of professional courtesy that when we find a problem with another surveyors work we should always contact them first and present the issues without criticism or judgments to create good will and an opportunity for resolution at an early stage.
Michael McGee, PLS3945