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Re: Jr/Sr v pro rate
Posted: Sun Jul 21, 2019 8:27 pm
by Olin Edmundson
I'm not entirely convinced that my situation has to fall within the boundary establishment doctrine of Practical Location. To a large extent, it seems to lie within the basic realm of retracing an original survey, following in the footsteps of the original surveyor. It is true that I don't have any indication that an actual surveyor laid these lots out, but does that matter? They are original boundaries, all of the basic elements of intent written in the deeds are being honored, just one bearing is at variance with what is recited. But, as John Stahl mentioned, in a retracement, we are very rarely finding the exact same mathematics as what is recited.
We all acknowledge that our primary duty is to follow the footsteps of the original surveyor, my basic question is this: Is it of any significance if this was an actual surveyor, or say just builders or laypersons laying out the lots? Does this matter at all?
For a couple background points, if this matters, my final boundary positions are derived from actual survey monuments in the ground. Bit hard to explain, but there were different previous surveys running up the respective streets that did have the frontage positions correct, I'm just connecting them across rather than holding Record bearing. As Woolley suspected there is a problem with a remote point of beginning call, probably a miscalculation in the office that may have started this whole thing.
Re: Jr/Sr v pro rate
Posted: Mon Jul 22, 2019 9:04 pm
by Elias French
Olin Edmundson, I agree with your take that this situation falls within the realm of fairly ordinary surveying practice, although perhaps near the edge. You have reconciled the writings with the field evidence, identified an apparent error or better said an imprecision in the legal descriptions, and arrived at an opinion as to the boundary location that appears to be well supported by the evidence. For me, it is not material whether the old improvements were laid out by surveyors or not; either way, it appears they are the best evidence of the lines of the old lots, have been peaceably occupied for many decades, and are corroborated by the deed distances.
I am curious as to others takes. Many replies appear to support your position.
However, the previous surveys you describe, which held record bearings, running lines through buildings, creating gap parcels, etc., apparently were conducted according to the theory that the surveyor is duty-bound to locate the ‘written title lines’ upon the ground, in strict conformance with the exact language contained therein, no matter the quantity of evidence to the contrary, and against the call of common sense. These surveys seem an example of the product of the school of thought that rigidly constrains within artificially narrow bounds the latitude of the surveyor to opine on the boundary line location. It seems in this case, it is these previous surveys that may be giving pause, rather than the issues with the resolution itself.
Re: Jr/Sr v pro rate
Posted: Mon Jul 22, 2019 9:28 pm
by Elias French
I am curious as to DWoolley’s take on this specific scenario, since this is a different set of facts than the ‘gap’ question, and perhaps this is a situation where the differing lines of reasoning laid out in this thread may converge.
Re: Jr/Sr v pro rate
Posted: Tue Jul 23, 2019 9:40 am
by kwilson
This was a very interesting discussion. Here are my comments.
1. In a real and practical sense surveyors determine and mark property lines (See LS Act comments by Steffan July 21). 95% (give or take) of the time landowners, cities, counties, contractors, fence builders, other surveyors accept our markings as the property line.
2. A note to any first retracement surveyor – If you do a good job and provide solid reasoning for your work and it is reasonable and in accord with the standard for our profession I will try to accept it. There may be other methods to re-establish a boundary. But if subsequent surveyors find reasons to agree rather than try to reinvent the wheel, the problem is generally solved.
3. The greater the error between measurements and record data, the greater likelihood we will have for liability, added costs to our clients, potential litigation along with more potential for alternate methods of establishment by various surveyors.
4. There is a proportional relationship between the value of the property and the concern of the surveyor with respect to differences of record and measured.
5. Curt Brown – whether right or wrong could really get to the point and provided only what was pertinent to his subject. Thanks Mike Pallamary for providing his comments.
6. Hypothetical situations don’t work for me.
7. Every survey is unique and principles must be applied.
8. Possession never agrees exactly with surveyed lines (Have you ever seen a fence that the property line “exactly” splits?) We should start a new post with stories about fences - one of my favorite subjects.
9. For this survey – prorate or not? My first inclination would be to hold the 50' dimensions and leave the excess as a gap – owned by original grantor whoever that might be. Inform landowners. Let them figure it out. Show it on an RS. Likely nobody cares. Garage encroaches? I’ll bet money that no one does anything about it until they pull a building permit. If they demo and replace they will move the new structure to the appropriate setback. If they remodel, it stays where it is unless City/County says you need to fix the zoning violation and then you deal with them. I showed a gap on a recent survey. I believe the difference was about 1.5 feet in a subdivision of 50' wide lots. If i was the first retracing surveyor i would likely prorate. And yes it is partially based on the amount of error, the value of the land and the potential liability. Likely the landowners don't care that much about 0.25' and i am the first retracement surveyor. I would put a note on my map stating what i believe the intent was. However, since none of us have as much knowledge about this as the actual surveyor I would go with the method he chooses.
10. We are in business to make a living. In doing so we want to limit the likelihood that we will be sued for damages. We want to stay out of court. We want our clients, their neighbors and fellow surveyors to be satisfied and agreeable to our solutions. Therefore, we must be convincing and definite when making decisions. Confidence based on precision and solid principles goes a long way.
10. In situations where we determine a gap exists, Mike’s idea of going to the Assessor might work if you want to try to pay an attorney $$$ to file a quiet title or adverse possession case in the future. Is the property worth it?
Thank you all for taking the time to post. This is how we all learn how each other thinks and our new surveyors are helped to grasp what is going on.
Ken Wilson
LS 5571
Los Gatos, CA
Re: Jr/Sr v pro rate
Posted: Tue Jul 23, 2019 8:03 pm
by DWoolley
steffan wrote:CA B&P Code:
“8726. A person, including any person employed by the state or by a city, county, or city and county within the state, practices land surveying within the meaning of this chapter who, either in a public or private capacity, does or offers to do any one or more of the following:
.......
(c) Locates, relocates, establishes, reestablishes, or retraces any property line or boundary of any parcel of land, right-of-way, easement, or alignment of those lines or boundaries.”
Simply for the sake of argument, the quote above is the statutory entitlement empowering those California surveyors who practice within the limits of their competency.
Where within this statute, or elsewhere, is a surveyor limited in his or her ability to mark a boundary in accordance with adjudicated precedence?
Steffan:
I personally know you to be intelligent. I am not sure I understand the question. Is the premise that by virtue of being licensed as a professional land surveyor and granted the authority cited above is akin to 007's license to kill? As a licensee, anything goes for boundary discretion/resolution? You know better.
In my experience, generally, the adjudciated precedence is acceptable for broad based considerations e.g. Bryant v Blevins as to the meaning of one-half. The handful of cases we know establish one rule for the broad concept in the narrowest circumstances. As stated previously, the facts to the published cases are very specific, oftentimes incomplete and unwritten in the decision, and will vary from any other land survey - public lands being a noted exception. The court writes to address the issues on appeal, not necessarily all the issues addressed by the lower court. There are often other issues in a present survey that were not addressed in the published decisions. I would extend to say most land surveyors are not familiar with Shepardizing the cases and reading the subsequent citations. Personally, in reading those subsequent cases I came to understand how the case is to be applied. I have occasionally misunderstood the application from reading only the land surveying case. That being said, it would be foolish in most instances to strictly apply case law to a boundary. This is further demonstrated in the textbooks, most particularly in Brown's "Boundary Control and Legal Principles", in which a stated principle is often contradicted by the following principle. This is as it should be - there are cases nuanced and differentiated by the facts and the application of law.
The statutes that provide the judicial discretion are in the same contract laws cited earlier i.e. Civil Code, Civil Procedures, BAJI, CACI etc. I believe contract law will provide the most beneficial guidance. The textbook, second treatise, are generally a compendium of several cases and/or the broader principle adopted to specific fact sets.
In short, if the effected parties are in agreement, the client and the adjoiner, no adjudicated precedence, theory or elements needs to be addressed, simply follow the contract/deed and/or fix the title problem using the authority given to a land surveyor. If the parties are adverse, try to mediate it, no judicial precedence needed. If they cannot come to terms, you have done your job by advising the parties as to the problems and the potential solutions, file a record of survey and maybe, the attorney will call you. The attorney is unlikely to ask you to research the case law and provide a written analysis (do not be offended).
Lastly, no attorney, certainly not a judge, takes a single adjudicated case and applies it to the current issue at hand, essentially a summary judgement, and resolves a boundary issue, why would you? Rhetorical question.
Olin Edmundson, I have been stewing on your scenario. I filed a record of survey on a similar survey 10-15 years ago.
DWoolley
Re: Jr/Sr v pro rate
Posted: Wed Jul 24, 2019 2:24 pm
by DWoolley
Olin Edmundson wrote:
The reason why I am asking is because I have a particular survey underway where I think this is coming into play. This is a classic Cooley situation, a pretty interesting survey. For a brief overview, if you're interested, there is an entire city block created by metes and bounds descriptions starting in the early 1900's Initially many parcels ran street to street, for say a 50'x200' lot, then over time were broken down into more typical 50'x100' lots. All deeds clearly call for specific frontage, rear and sideline distances, and I have a very consistence pattern of an abundance of old occupation lines throughout the entire block, fencing, historic structures, walls old concrete pours, etc. running from street to street, all in patern and in harmony with these basic lot dimension called for in the various deeds. Most of it is still in existence today, then I also have some old unrecorded survey maps going back to the 1940's that has documented fence and building positions. This pattern gives all of the parcels their basic lot configuration, being a 50' frontage and rear width and 100' depth. But the bearing of these side line coming across from street to street by the pattern of occupation established on the ground is at a variance with the bearings called for in all of the deeds by a significant amount, a couple of degrees which makes about 3.5' on the rear of the lots, then 7' across width to other street. There have been at least a half of dozen retracement surveys done over the years. All start on one street, run record bearing away from the street, miss occupation on back line by 3.5' then miss stationing by 7' on the other street. It happens every time. I believe they are all wrong. Their erroneous work has caused other weirdness including the assessor "creating" a phantom 7' wide triangle parcel (that never and doesn't exist) because a surveyor drafted this "gap" on a recorded map, then followed up by a quitclaim deed for this triangle from a previous owner of the land to the current owner who thought they had all of the sudden miraculously found a free extra 7' feet of frontage, missing for 100 years, then followed up by a surveyor a few years ago who gave them this non-existant quitclaim "parcel" and staked it on ground.
In my mind, I have an overwhelming amount of evidence supporting my opinion, and can see very little on the other side. There are no monuments called for in the deeds and no old monuments have been recovered by anyone, everything out there now is more modern. My lot does not have any usage issues, there are old fence in place, right in the historic pattern throughout the block. The earliest survey on record was performed in 1961 by an old, respected and reputable firm in town, they brought control in from another block across the street, laid their lot on the ground, and the numerous other surveys have basically followed step, creating encroachments on every one of their surveys, missing fencing and running lines through historic buildings, none looking at the big picture. To a large extent many of these modern surveys have been ignored, fencing still out there where it has always been. There is no known survey of my parcel or any old "original" survey. For all I know someone just struck an initial line out there, then as lots were sold, took a tape out, measured along the frontages, connected a fence between them, developed their property and moved on with life. I have never quite been in type of situation where I am in disagreement with basically every other surveyor, it would be nice if I were able to provide some reference to specific law to substantiate my opinion, and I'm particularly concerned about the attorney getting this right. If you have even some general guidance to where I might begin to look that would be greatly appreciated. Thanks
Olin Edmundson:
In my experience, the situation described is likely to be one of the most difficult surveys you will complete in your career.
The forum doesn't lend itself to writing in sufficient detail to answer your every question. If you can establish the location of the original survey- collaborated by dating and locating the improvements- the original lines hold. There are numerous citations to this effect.
In my specific case, the mapping was especially tricky. In hindsight, after the depositions and two days on the stand in trial, I would have mapped and/or noted a few minor details differently. Another map is being filed to offer additional information based on the outcome of the trial.
I established the client's 1920s lot lines in their "original" location in disagreement with 40-50% of the lots in the block that had been surveyed between 2007 and 2015. I did not establish those lots on my map because there may have been rights established by reliance on the faulty surveys. I carefully noted all found monuments and the fact other lots in the block may not be consistent with the location of my client's lot. For the record, I did not add these notes as squirrel notes in a misguided attempt to avoid liability. They were technical notes stating rights may exist outside the "correctly" established original lot line locations.
The judge ended up accepting my survey as being the correct procedure and establishment. Frankly, it could have went the other way simply due to the highly technical nature of the material. My survey was helped by the fact opposing counsel scoured the LA basin for a expert witness willing to challenge my survey and ultimately, found someone way out of his depth.
Note, this was extremely messy litigation. Although the judge's ruling held that my procedure and process was correct, which it was, as stated previously, he equally could have made a different finding. Judges are not experienced land surveyors. That being said, I would caution you to be extremely diligent in the documentation and mapping - fortunately, this is our strong suit after many expert engagements before this survey walked in the door. I believe there is a lot of exposure to liability in this particular situation. I was sued, both personally, the corporation, and the client, for slander of title - practice tip, it did not help my case that I had removed the monuments incorrectly set by others. This was a foolish move by the opposing counsel. Expert witnesses enjoy absolute privilege prohibiting that particular liability. The opposing counsel's client paid a hell of a price for this nonsense, however, if you have not been through the litigation process and enjoy competent counsel it may be unnerving for some folks.
Establish the original lines, be hyper conscious of the other property rights which may have vested, document everything in the file and on the record of survey and cross your fingers.
Dwoolley
Re: Jr/Sr v pro rate
Posted: Wed Jul 24, 2019 7:28 pm
by steffan
DWoolley wrote:
Is the premise that by virtue of being licensed as a professional land surveyor and granted the authority cited above is akin to 007's license to kill?
As a licensee, anything goes for boundary discretion/resolution? .
In my experience, generally, the adjudciated precedence is acceptable for broad based considerations e.g. Bryant v Blevins as to the meaning of one-half.
Lastly, no attorney, certainly not a judge, takes a single adjudicated case and applies it to the current issue at hand, essentially a summary judgement, and resolves a boundary issue, why would you?
DWoolley
No, and that was not what I implied.
No, and that was not what I implied.
Agree, and perhaps consider broad based application of adjudicated precedence being a paramount consideration. Also, were you maybe thinking of Wood v Mandrilla? If my memory hasn't failed me, In Bryant v Blevins the definition of one-half was neither disputed nor adjudicated.
Perhaps, but then again everything is situation specific.
Again, simply for the sake of debate.
Re: Jr/Sr v pro rate
Posted: Wed Jul 24, 2019 11:03 pm
by Elias French
I am heartened to find that some agreement may be had with regards to Olin Edmundson’s situation.
It seems that all surveys lie on a continuum, from those that reveal little discrepancy between the writings and the field evidence, to those that reveal discrepancies so significant they render the writings ambiguous, and test the limits of our ability to confidently determine which principles to apply to locate the lines upon the ground. Also, the correct resolution to a given survey is heavily fact-dependent, making it difficult to discuss general principles in broad terms on this forum. I see both of the cases described thus far as lying along this continuum.
I don’t believe any contributors here are blindly applying cherrypicked caselaw or textbook principles in supporting their opinions, without considering first and foremost the facts of a particular situation. Also, our opinions are colored by our individual experiences in differing locales, with differing local survey histories. This gives us the wide range of viewpoints we collectively benefit from on these discussions.
It appears that Olin Edmundson’s case exhibited sufficient compelling evidence supporting his solution to secure approval of that solution from DWoolley, who, if I understand correctly, has argued here that the surveyor’s job is to locate the written title lines, show their relationship to possession, and, if and only if the parties are amenable, act to bring title into harmony with possession. However, apparently something about this case has exempted it from the strict application of that rule. I might suspect that it is the weight of the apparently overwhelming evidence that favors the proposed solution. Does not every Surveyor have a ‘gut feeling’ test, which tells them that if lines are running through old buildings and the like, and there is a clear pattern of historic possession that suggests a more correct configuration, that perhaps this evidence should be used to construe the writings more correctly? This for me would be one such case.
I believe that those who argue against the existence of the ‘title gap’ in TIB’s original post, are in all likelihood drawing upon a well of past survey situations, where the weight of evidence was overwhelmingly in favor of the finding of ‘no gap’, much as how in Mr. Edmundson’s case the evidence is clearly in favor of his solution. For myself, this is certainly the case. I hope and am confident that in such situations, those who would argue the surveyor may not go outside the four corners in the general instance, would be willing to grant that there may be exceptions to this rule. Setting aside the question of what to do in TIB’s case in particular.
Nothing in surveying is black and white, it is all shades of gray. I see a need in our profession for greater education in the legal principles of surveying, to temper the instinct of those who survey ‘by the book’ at all times, even when it produces a preposterous result, and to improve our arsenal of tools to use in such times. The previous surveys in Olin Edmundson’s block, and the ones mentioned earlier by DWoolley that came deed distances from each end on a block that was ‘short’, prove this out.
My fear is that if we too strongly advocate that ‘the surveyor cannot go outside the deed’, we encourage those who don’t listen to the ‘except for...’ at the end of that sentence, to perform surveys that are patently wrong when they are faced with conflicting evidence. No doubt the previous surveyors in Olin Edmundson’s block felt they were safely within the friendly confines of their deeds, and thus had ‘done their duty’...