More on 8771

[E_Page]

I didn't want to take Rob's thread too far off the track he intended, but wanted to comment on something Dane brought up.

"The contractor shall be responsible for the replacement of any monuments destroyed... blah, blah, blah."

This seems to be how many agencies deal with their responsibility, by attempting to absolve themselves of it. An agency that I previously worked for used to (up until I was hired) include this in their contracts and figured that covered them in regard to their legal responsibilities.

The problem arises when the agency does not inventory and locate the monumentation prior to construction (or require the contractor to hire a PLS to do so), has no provisions in their contracts to encourage the contractor to do so, prepares no mapping pre- or post- construction, and performs no oversight or follow up to ensure this work is done.

It seems to me that an agency putting in their contract a clause that reads "It shall be the contractor's responsibility..." is akin to me putting a clause in my boundary contracts that reads "It shall be the client's responsibility to set monuments, prepare and file a Record of Survey drawing should one be required."

I'm sure the agencies involved in this practice would argue that it is their intent that the contractor hire a licensed surveyor to do the work, and that they do not intend that the contractor shortcut the law. But the typical responsibility absolvement clause does not spell out all of the requirements of 8771. Perhaps some do, but I suspect that would be very few.

Similarly, I could, in my "It shall be the client's responsibility..." clause state that they shall prepare the map according to the appropriate PLS Act sections, and hire another PLS to draw it, and file it within 90 days of my notice to them that the field survey is complete, thereby having some sort of compliance with the law.

But the law is clear that filing an RS of a survey performed by me or under my direction is MY responsibility. It is also clear that monument preservation is the AGENCY's responsibility. They may require the contractor to hire a PLS to do the work, but it is still the responsibility of the agency to ensure that the work is done and that it is done properly.

Any comments from BPELS lurkers?

[dmi]

Evan,
Additionally, some folks only consider monuments as those thingys constructed in a monument well and having a big metal cover. One difficulty, I have experienced is convincing others that monuments that reference property boundaries come in all shapes and sizes and it really requires someone with experience in boundary surveying to recognize what physical evidence may be important for boundary locations. This task is not something that can be put off onto a contractor.

I use the CLSA contract for all my work and it is very clear about client and consultant responsiblity with respect to records of survey. There is no mention of corner records. There is no mention in the CELSOC standard contract ,either. This is okay generally because corner records for the most part are one -of items. But in an infra-structure project, there may be miles and miles of property evidence subject to destruction. So what is the best way to handle that case? Dozens of corner records, some have suggested a record of survey, but would you do a before and after record of survey? Something I am not clear on, if you are doing before and after corner records-what happens(or ought you to do) if you reference a no record point on a deed line that should have been a record of survey, but the survey was never filed?

[Dave Lindell]

I tie out A LOT of found points prior to construction projects.

I make a note that points are "TIED OUT AS FOUND" and then "REPLACED IN TIED OUT POSITON". I usually only file one Corner Record per point.

I have had other surveyors tell me the point tied out was not the correct centerline, or whatever it supposed to be. I reply that I tied out what was found just to preserve it. At least they will have something to start from.

I try not to tie out found nails without tags or property corners that are just chisel crosses unless the whole neighborhood has them.

[E_Page]

The purpose of 8771 is not to determine if the monument in question actually is a corner of a boundary. Nor is the intent that you reset the monument where you thought it should have been, but to recognize the potential value as evidence to other surveys and to re-establish the monument in the position in which it was found. So, Dave, I agree with your treatment of the monument position (although 8771 is specific that pre-construction AND post-construction CRs or RSs be filed).

One small town in the foothills undertook a major (for them) reconstruction of a portion of their Main Street a couple of years back.

In this portion of town, nearly all of the front corners were monumented on projection of the sidelines with cut crosses in the curbs.

These were incredibly important points because the basis of all the lots is the Townsite Map of the City of XXXX, and the M&B descriptions of each lot filed with the map. None of the descriptions close except by dumb luck. It is not uncommon for a lot description within this townsite to misclose by a dozen feet or more.

Under such circumstances, corners as established are incredibly important evidence because the written description may be completely useless. (Deed stakers won't even work in this town - too scary because it's a mathmagical twilight zone)

A cut cross is no less a valid historical monument worth preserving than a 2 1/2" x 48" stainless steel pipe encased with a foot of concrete and topped off with a 3 1/2" brass cap.

On the project that I describe, the City Engineer overseeing the project was not a pre-82, and admittedly is not qualified to be a surveyor. But he made a declaration that he was not qualified to make and caused the destruction of dozens of these cut crosses that were in the area of this project. He stated, to a group of surveyors (who all told him he was wrong) that cut crosses were NOT monuments and did not need to be preserved.

The City had a consulting firm performing the survey work, and that firm often had an LS on site as the acting PC. But they did not preserve these locations either, I guess in accordance with the direction of the City Engineer, who's authority is apparently higher than State Law.

That dereliction of duty will now cost each landowner wanting to have their front corners or side lines re-established a couple extra thousand dollars per survey.

So, Dave, the way I approach cut crosses or untagged nails is that if they appear that they might contol a CL, RW, or other PL, I tie them. If they appear to be someone else's random control, I don't bother for purposes of 8771, but may for my own reference if it might be useful to tie into the work of others for different reasons.

[Lee Hixson]

"....So, shall I tie out all of these markers on a whim and let somebody else figure it out? Or should I tie out only those that I am confident control the location of a subdivision, tract, boundary, etc.? "

I side with Evan on this one. When in doubt, tie it and preserve it. It's not always possible to easily poll the surrounding property owners, and besides, you wouldn't want to make a decision based primarily (much less, solely) on their input.

What if a nail and shinner is discounted (naively) by neighbors, but it was set decades ago by an LS who has private notes showing a tie distance to a property corner or street intersection monument?

Now let's suppose that you come along, doing a private survey, and you are in desperate need of a tie to use to re-establish the position of a monument that is critical to your survey. Going by the adage of "no stone unturned" you track down this old surveyor who gladly provides you with a copy of his 1965 field notes (for an unrecorded survey), and you are elated to realize that this is the key to saving you hours, if not days, of worry and further field work. It is the only extant evidence for the point you need.

Only to find out that it wasn't considered valuable enough on a reconstruction project 3 months ago, and it got destroyed without benefit of a Corner Record.

We should do everything possible to campaign for, and encourage, the use of Corner Records to preserve as much monumentation as possible.

[E_Page]

Greg,

I didn't say anything about "A snowball's chance in hell". You need to apply a little professional judgement in such cases. You now have a license that indicates that you should be able to exercise such judgement, so do it.

You are free to go to all the work of determining if that monument that you found, be it a dinner plate size brass cap or a scribed X, is actually a controlling boundary corner if you wish. Of course that might be a whole lot more than your anticipated scope of work, and effort that your client shouldn't need to pay for and you shouldn't eat the cost of if determining what boundary may be controlled by the point is not relevant to the rest of oyur project.

Or you can look at the thing, exercise some judgement as to whether it might be useful evidence for future boundary surveys and file a CR or RS, or not, at your discretion.

Just be aware that if you do not file a CR or RS, the monument marks a such a controlling point, and it gets destroyed, you will have failed in your professional responsibility.

This section of the law is not about the surveyor determining if the monument is important. It's about preserving the evidence in case it is important. Quite often, it's pretty obvious if the point is just another surveyor's litter as opposed to something more meaningful. Sometimes it isn't so apparent.

If you want to perform a more complete survey for each such point, potentially spend a several thousand to see if you need to spend a couple hundred to file the CR or include it on an RS you may be working on, that's your prerogative. Personally, as a matter of economics, as well as professional responsibility. If I am the surveyor on a construction project, find a monument or marker of some kind that I just don't know without doing more surveying whether or not it really is one that needs to be saved per this code section, I'll tie it and include it on my RS if I have one going, or file a CR. I don't want to be the jackass who allowed a critical controlling point to get destroyed because I didn't recognize it as such (there's already enough folks who consider me a jackass for other reasons, I'm sure).

In the case of the city project I wrote of in the opening post, the city engineer didn't recognize the importance of cut crosses (scribed X, whatever) and actually directed that they not be preserved. Now he has a lot of local surveyors ticked at him for making a poor decision based upon inadequate knowledge, a decision that will have added costs for the residents of that street for many years down the road. Those monuments that you apparently would not have recognized were critical points controlling boundaries for a whole neighborhood. Now all we've got are fences, buildings, and edges of driveways.

Landowners may be, and often are ignorant as to the importance or potential importance of the survey points near their parcel. They may have good info, or not. I'm not saying don't ask, just don't hang your hat on it.

In other words, you should be pretty darn sure it IS NOT a controlling corner if you are going to decide to ignore it and not file the CR.

If you think that a c-nail or scribed X isn't a monument, you had better reconsider what you're doing. There are many areas that such marks are the only evidence available. A monument is ANY object intended to mark a point of consequence.


Great example, Lee! That's exactly the situation in that foothill town I mentioned.

[dmi]

I remember a story told by Paul Cuomo.(loosley paraphrased) Apparently he was out in the field and they were trying to decide whether or not to tie out this pipe that they had found. The pipe was sticking out of the ground a couple of feet asnd it just really did not fit much of anything. The decision was made to shoot the pipe, but just before they could get the shot someone rode up on a horse,the person then hopped off the horse and with out a word they tied their pony up to the pipe and walked away.

Gregs comments also remind me of working in LA. On one job (a retangular block with streets on all four sides) where the block is divided in half with tiers of lots in each half taking up the entire block. The block is entirely built and has beens so since the 1920s. At one end of the block ,near by and possibly on the prolongation of the line that bisects the block there several leads and tags and cut crosses within a 0.30' circle. So I guess that is going to be a silly looking corner record.

[bruce hall]

Did ya get a signal, Hub ? No. okay, let's split the curbs, both ways and eyball the centerline intersection. We'll set a c nail and it will be good enough for the topo and some street stationing.

Okay Tack, what did you set? A PK! Why not a c nail? Someone's gonna think that point really means something now. Oh well! Sh%t happens. It's a good thing ya didn't put a tin on that.

[Ian Wilson]

Level the playing field.

I would LOVE it if it were a level playing field, Greg!

How much do y'all pay for ROS checks in Orange County? Wanna split the cost of my next ROS in Riverside County? BTW, that $500 is a DEPOSIT BASED FEE. Expect at least one request for an additional $150 in the pot.

The biggest "reason" for failing to file ROS is the cost. I'm not arguing the validity of the reason, just that it exists. I think you'd see a lot more ROS filed if we all paid what you pay in Orange County.

Hats off to John Cannis for initiating the $0 fee for ROS in Orange County and hats off to Ray Mathe for retaining that brilliant policy.

[E_Page]

Greg,

I think we are in general agreement, but you seem to be missing my primary point.

Let's say that your client is the DPW of a local municipality, and the contract is for the surveying for improvements on a few blocks of one of their main thoroughfares.

Included in your Scope of Services is determining the RW, topo mapping, and later, the construction staking.

During the course of Phase 1 of this contract, RW determination, you find a mixed bag of IPs, rebar, nails, scribed Xs, and maybe even a hash mark or two cut into the curb or back of walk. Some are shown on recorded maps as being front corners, many do not appear on any record map, and of those, many are not mentioned in any deed. Of the non-record points, some seem to be obviously intended to mark front corners, but many appear that they were probably intended to either mark front corners, or were set as projections of the sidelines of lots at the TBC or TBW.

What are you going to do with these points? Maybe compliance with the recording laws has been very good for several decades where you practice. That's not the case in all areas. In my area, compliance was pretty poor until sometime in the 70s. Does that make those points any less valid? Isn't it possible, even likely, that many of those unrecorded points represent the original, on the ground establishment of many of those lines?

Are you going to reject and ignore all of those non-record points? Many of them will have nothing to do with the RW, which you have been hired to survey, but may control the sidelines of the various lots, which you have not been hired to survey. Are you going to procede with a full boundary survey of each lot where you encounter such a point?

I doubt it. If you are exercising proper professional judgment, you will evaluate each point to the best of your ability with the info at hand. Is it possible that this X (or whatever) was set or used to control the location of one of these sidelines? Hmmm, maybe. It's pretty close to being on line. But, hey, I wasn't hired to survey that property, so I don't really give a darn if it will be ultimately accepted or rejected by another surveyor who someday will survey that lot line. I just want to ensure that this location is preserved for that surveyor, who will gather more info particular to that boundary, so that he or she can make a well informed decision in re-establishing the original line rather than resorting to proration.

It makes no difference if that point is a controlling point for your project (street RW and mapping). You are obligated to tie it out and either file a CRs for the points you find, or show them on the RS that you are preparing for your client's project.

A note on non-record monuments when they appear that they mere intended to pertain to your client's boundary: I hope that you are not dismissing them out of hand simply because they do not show up on a recorded map and are not mentioned in the deeds. There are times when such points may appear on an old unrecorded survey that was performed to establish these boundaries on the ground, and the paralegal or title company tech who wrote the description based upon the unrecorded survey just had no idea how much importance many surveyors put on such calls in the deed.

I'm not saying that such calls aren't important, or that you should accept any monument that appears to have been intended to occupy a corner. Sometimes though, those unrecorded monuments (and that could include an old c-nail or scribed X) may be the ONLY evidence that you have. It may turn out that everyone in the neighborhood has been occupying their lots to these old points for decades, but if you reject them all because they are non-record and then decide to prorate, all of the fences are now off, some of the lines go through peoples' garages or homes. Generally, it creates a real mess and gets the whole neighborhood in an uproar.

Whattyagonnado? Tell everyone they've been occupying to the wrong lines for 60 years? Or will you evaluate each such found point as to the likelihood that it was set in good faith to establish the boundaries on the ground, or to mark the boundaries as they were originally established on the ground.

Remember that proration is a method of last resort, even behind using monumentation of questionable pedigree.

[Ben Lund]

“Remember that proration is a method of last resort, even behind using monumentation of questionable pedigree.”

Evan,
I see what you’re saying but I wanted to give an example where this statement would not be true:

If the only monuments set for a block are the centerline street monuments and you find monuments of no record at lot corners; Paul Cuomo would say to prorate and not hold the monuments of no record.

Ben

[Ian Wilson]

Paul wouldn't put out such a blanket statement.

Do the "no record" points fit the lines of occupation? Do these points have tags or plugs? When were they set? Why? By whom? Have the local property owners relied upon these monuments? Are they accepted?

I'll take you to hundreds of "no record" points that were set prior to the requirement to file records was established/enforced. The monuments are impeccable. Failing to honor them will result in serious problems and lawsuits.

Use boundary "recipes" at your own peril.

[Peter Ehlert]

Greg: you said "If I tried to perpetuate a no reference, tagged monument (even if called for in the deed) that represented an angle point in a deed line on a Corner Record, it would (or should be) rejected and a ROS filed instead. Sure the CR is cheap and quick but doesn't 8762(b)(5) require a ROS, not a CR?"

simply, no

just research, recon, tie-out anything and everything you find, xerox your field notes onto a CR form and file it/them with the County Surveyor.
you are now done and there is no analysis or further work needed.

of course your traverse and ties are designed to be recoverable after the anticipated construction...

this is not a tough thing to do, but you may discover a need to take better field notes than you are used to...

yes it takes some effort, but that is what we do.

my best, Peter

(P.S. knowing what the monuments are intended to represent is beyond the task of monument preservation)
(if the CS thinks that a RoS is needed then just politely say "please file my CR" and smile)

Lee: very well said!

[Ben Lund]

Ian,
I still don’t believe using monuments of questionable pedigree or no pedigree at all comes before proration.

As for what Paul said, it was a summary of a certain situation that we talked about in depth. It was not a blanket statement. I was merely giving an example of when you would NOT use monuments of no record as boundary corners and pointing out that this was not just my opinion (in my particular example) but Paul’s also.

Regards

[E_Page]

Ben,

You had better look into that belief before you go and cause problems where none need exist.

In regard to PLSS, read Section 6-28 of the 1973 BLM Manual. The same principal applies to non-PLSS lands.

In short, the surveyor is guided to NOT reject any monument out of hand. "Monuments of unknown origin must be judged on their own merits."

Use caution, don't automatically accept any chunk of metal or wood you run across. But likewise, use caution before rejecting such possible monuments.

After you have read 6-28 a few times, re-read Ian's last post and put it into context with what you just got out of the book.

You must carefully consider unrecorded points before rejecting them and applying (or misapplying) proportionate measure. Use the right tool for the right job. Too many surveyors use this one at inappropriate times because it's so much easier to apply this mathmagical rule than to carefully evaluate a possible monument before deciding to accept or reject it. It's one of the things that will separate the professional surveyors from the licensed technicians.

[Ben Lund]

I started a new thread because I felt I was taking this one off topic.

[Ian Wilson]

Ben, that is exactly the concept that Cooley was railing against when he wrote that property owners cringed everytime a new surveyor showed up. It is NOT incumbent upon us to "correct" the neighborhood. That is a mathematical solution to a NON-mathematical problem.

There is a wonderful quote from Walleigh v Emery (163 A.2d 665 (Pa.Super.Court. 1960) ) that reads

"The question of what is a boundary line is a metter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact."

Two neighbors relying on a "no record" monument for many years will turmp your mathematical solution by proration.

In the ABSENCE of ANY other evidence, proration is a valuable tool. It is also a valuable analytical tool, but it is a last resort when determining where boundaries should be placed.

As an example, I would hazard that less than half of the monuments marking the centers of sections I've surveyed were "of record". Some of the most contentious and problematic "solutions" I've encountered were created when those "no record" centers of sections that have been relied upon for many years were "reset" in the "proper" position.

[Ben Lund]

Is it in the surveyor's license to hold the "no record" monument because the neighbors relied on it?