California Surveyors Forums

"First of all the presumption is not MONUMENTS CONTROL. The presumption is that monuments control UNLESS there is reason to believe that the monument is not controlling."

Um, when you say that "the presumption is A" it is saying the same thing as "the presumption is A unless there is reason to believe it is not A". That is the definition of presumption, it indicates a default position which may be overcome with sufficient contrary evidence.

When we speak of harmony, we speak of harmony of the boundaries. That may or may not coincide with precise positional harmony of the monuments with respect to a map.

I cited Dykes because it is the closest I can recall to a "modern" subdivision. We don't know how the decision affected the nearby subdivision, but I'd be surprised if id didn't involve large settlements from that surveyor and the title companies involved.

Diehl was not decided as it was because of the instant "great calamity" that would have occurred had the "correcting survey stood. The calamity reference was to the view by landowners that very time a surveyor shows up, peoples property corners move, creating some level of discord, great or small, in the community. If you stand on the argument that this is a small one (involving only 1 interested landowner and 1 semi-interested one), then you are standing on a principle of magnitude (how many landowners, fences, buildings, whatever does it take to be a "great calamity"?) and not on a principle of disposition or legal authority of the surveyor.

If you want to stand on the argument of intent, then you are following a trail that can lead to a solidly defensible position. Frame your argument around that, and have enough supporting evidence to show that the conveyances did not consider the monuments on the ground, but only the deed and map, then you've got it.

There is a record document which shows this monument. It just happens that the actual location of it is at enough variance with that shown on the PM that it causes great concern.

In answer to your questions:

1. 3rd party. No, a 3rd party agent cannot make a representation of the boundary binding on the parties. So where are you going with this?

2. My basis is that monuments controlling is a legal presumption which must be overcome, not one which must be supported. Again, the definition of "presumption".

No, I am not standing on the idea that it is not a big deal because it only involves 2 landowners. I am suggesting that the court did consider the impact as being serious on the community involved because there was in fact a serious impact by not holding the monument. I would hazard a guess that a court would consider equitable issues here as well and clearly the impact on the community is not as large as the cases you cited.

Are you saying that if there was evidence that the property owners rejected the monument that this would satify you that the presumption does not apply?

As for the question about 3rd parties, is there evidence that a realtor pointed out the corner and not the common grantor,or previous owner? I suppose the previous owner could have walked the property and shown the corners to the realtor, that the owner had been shown by the original subdivider. Hearsay?

On the issue of harmony, I am refering to passages in Skelton that speaks of the relationship of controlling monuments and the relationship of those monuments to each other. This reference specifically talks about the harmony of monuments. I do not see how it has another meaning other than the physical relationship of physical objects.

page 113 sestion 122 (M) Control as between Several Monuments. --(1) The rule.-- "When there is conflict between monuments, that which is most certain, least likely to mistake and in keeping with the expressed intention will prevail,(Hubbard v. Dusy, 80 Cal 281) and if one of the monuments in conflict cannot be found, this circumstance in itself is suggestive of an error in the call for it , and the other will control.(Lance v. Rumbough, 150 N. Car. 19,63 S.E. 357) Likewise where one of the conflicting monuments is in agreement with other monuments or the courses and distance of a plat or deed and the other not, the HARMONY at once establishes control."
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Dane Ince, LS


I am sticking with intent. But, I do appreciate your opinion.

Thanks very much for your comments

dmi wrote:No, I am not standing on the idea that it is not a big deal because it only involves 2 landowners. I am suggesting that the court did consider the impact as being serious on the community involved because there was in fact a serious impact by not holding the monument. I would hazard a guess that a court would consider equitable issues here as well and clearly the impact on the community is not as large as the cases you cited.

Are you saying that if there was evidence that the property owners rejected the monument that this would satify you that the presumption does not apply?

As for the question about 3rd parties, is there evidence that a realtor pointed out the corner and not the common grantor,or previous owner? I suppose the previous owner could have walked the property and shown the corners to the realtor, that the owner had been shown by the original subdivider. Hearsay?

On the issue of harmony, I am refering to passages in Skelton that speaks of the relationship of controlling monuments and the relationship of those monuments to each other. This reference specifically talks about the harmony of monuments. I do not see how it has another meaning other than the physical relationship of physical objects.

page 113 sestion 122 (M) Control as between Several Monuments. --(1) The rule.-- "When there is conflict between monuments, that which is most certain, least likely to mistake and in keeping with the expressed intention will prevail,(Hubbard v. Dusy, 80 Cal 281) and if one of the monuments in conflict cannot be found, this circumstance in itself is suggestive of an error in the call for it , and the other will control.(Lance v. Rumbough, 150 N. Car. 19,63 S.E. 357) Likewise where one of the conflicting monuments is in agreement with other monuments or the courses and distance of a plat or deed and the other not, the HARMONY at once establishes control."
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Dane Ince, LS


I am sticking with intent. But, I do appreciate your opinion.

Thanks very much for your comments

The Diehl decision was not based upon the magnitude of the problem. It made it to court because of the magnitude. If the effects had been small, no one would have cared enough to press the issue. The Diehl court was clear on its reasoning, which was the authority of the surveyor, not the extent of the effect of the surveyor's decision. The extent was used merely to show the mischief that could ensue when the surveyor oversteps.



As to what I would consider strong enough evidence to overcome the monument, and to expand upon the conditions you state, if the owners had known of the monument, rejected it in favor of a position more in accordance with the map, I would view that as evidence that they recognized it as errant and had a better idea of where the corner should be if it were in mathematical agreement with the map.

To address the trap you laid, landowner rejection of a monument in itself does not invalidate the monument. If that were the case, all landowners would need to do to affect a LLA to wherever they wanted would be to ignore the monuments. So in this case, ignoring the monument in conjunction with a demonstration of knowledge of the location of the corner per map dimensions would suffice.


As to your discussion of the errant monument, it assumes that the monuments followed the map. That may or may not be a valid assumption. It probably is, but it is still an assumption until shown one way or the other. Until the assumption is verified, there is the legal presumption that the map reflects the survey, not the other way around, and that the survey expresses true intent when it precedes the conveyance. An assumption cannot be used to overcome a presumption established by legal precedent.

I don't have Brown with me here at my favorite coffee shop, but I recall a reference that also states the principle that even a survey performed shortly after the conveyance, for the purposes of laying the conveyance upon the ground, becomes controlling. That may speak to the issue of the map recording or being approved prior to mons being set, or it may be straying into the weeds. I'll have to look it up later for full context.

I do not have Skelton with me here at the coffee shop either, but I have to question the context in which the advice you quote is offered. Taken at face value without further contextual qualification, a great many of the boundary surveys that either you or I have performed would have had us accepting the two best fitting monuments, judging the rest solely according to those, and resetting any that do not agree. I don't know about you, but that's an awful lot of would be pin-cushioning in my case.

The portion of the quote about a missing monument is not applicable here. The monument called for is present, it just is not where we expected it to be, and to an extent that causes surveyors a good deal of consternation.


I am not saying that adequate evidence cannot be found to overcome this monument, and I think that your search for intent is the proper route to investigate it, but to paraphrase Jim (and for the opposite argument - apologies to Jim), the soup is a little too thin to hold up an argument that there is clear intent contrary to the monument position. But I do concede that we are at least in the gray area where reasonable professionals may reasonably disagree, given that the reasoning is supported by more than math and measurement.

I no longer have the patience.

I posted a synopsis of the FACTS in this case in post #155 to allow those who are PATENTLY wrong an opportunity to modify their position, from one based on surmise and possibly desire, to one based on the law and evidence. So far it seems there are no takers.

Based on their arguments it seems they lack basic understanding of what the terms “Presumption” and “Intent” mean, and how the LAW is supposed to guide our retracement procedures, not some prejudice in favor of “Modern Methods”. They want to force an engineering solution onto a legal question. They should know better.

“The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate is more inflexible than that monuments control over course and distance. . . .” BCLP Sec. 12.16 citing Justice Cooley in Diehl v. Zanger, also quoted in Bullard v. Kempff, 119 Cal. 9, 50 Pac. 780, also noted in Skelton’s [sec. 111]

To any aspiring surveyor reading this thread, please read the source documents cited in the above posts, so you can judge for yourself whether a case, code, or cited work, is germane to the argument at hand. Some are very far from the mark.

For example, Skelton’s “Boundaries and Adjacent Properties” was cited as having a favorable bearing on rejecting the monument in favor of the course shown on the plat, but read the following from Chapter II, “Relative Importance of Conflicting Elements”, Part 1 “Control of Intention”

"[ section 71.] (B.) BASIC RULE TO DETERMINE INTENTION-(1) FOUNDATION AND PURPOSE- The modern principle that the intention as effectively expressed is supreme has changed the technical rules regarding the weight to be given such conflicting elements as monuments, courses and distances, metes and bounds, etc., from criteria sufficient in themselves to aid in the determination of the intention. Founded as they are upon experience and observation and not on theory, the only academic consideration entering into the determination of precedents being that the most material, certain and least liable to error should prevail; *19 and seeking as they do to determine where the line was originally and actually located by the surveyor, not where it should have been located theoretically, *20 THEY AIM TO GIVE FINALITY TO THE LOCATION OF LINES, AND WARN THE ENGINEER AGAINST UPSETTING THE STATUS QUO OF THE COMMUNITY FOR THE PURPOSE OF ESTABLISHING CONFORMITY TO PLAN OR THEORY. Experience has shown that monuments necessitating no special training for their understanding by the layman, and being least liable to variation, are of the greatest significance. *21 Furthermore, monuments project a picture of the description on the ground and being, as it were, an actual plat laid down on the land, are not liable to errors of transcription. Therefore they are to be given the greatest weight, and those monuments which are locative are of greater value than those which are merely descriptive. *22 On the other hand, quantity is subject to all the errors and inaccuracies of the survey, and cannot always be approximately estimated by experienced engineers. Therefore it is subordinated to all other considerations."

"[section 72.] (2) THE RULE.-This reasoning leads to the rule that in weighting the calls of a deed for the purpose of ascertaining the intention, certainty and definiteness given natural monuments precedence over all other call calls; that artificially monuments ranks second, the joiners third, course and distance forth, and quantity last."

Why was that omitted from the previous discussion?
Draw your own conclusions.

Based on the facts as presented, and the applicable law, this is not a difficult call at all.

Its sad that the Real Estate Agent and Adjoining Owners see very plainly where the boundaries are, and its only a few surveyors, who want to impose their own order on the situation, who do not.

Thanks
I too have read all threads and citations. It does seem to be alot more simple than the agruments presented. I do enjoy the banter at times, and I hope the strong opinions are ego based and not professional practice.

If you have not come to your own conclusion, read all threads, one more time, most importantly the citations one more time. It will become evident to you once you have done that with sound mind.

People,
We are not arguing about pin-cushening, math-magical solutions, “fixing” well established boundary lines, etc, etc, etc. We are debating on a plane that is well above the “hold found original at all costs” approach that you would use on the survey exam.

Evan, from your case descriptions:
Dykes v Arnold = PLSS, long established, common report, occupation, acquiescence, etc.

Diehl v Zanger = long establishment, improvements, occupation, acquiescence, etc.

As far as I can tell, all of these characteristics are not in existence in this particular case (nor have I found a case either pro or against our differing opinions).

“When we speak of harmony, we speak of harmony of the boundaries.” Somehow we’re not talking about harmony of improvements, occupation, common report, physical objects, etc. that I believe what harmony means. Also, this statement argues that there is nothing to fix and never will be as long as you can positively identify found original. I’ve given multiple examples why this logic is faulty (at least outside of the realm of the LS exam).

“That may or may not coincide with precise positional harmony of the monuments with respect to a map.” This has been said before a number of different ways, that the positional harmony of the monuments is “rarely” a concern, “sometimes never” a concern and “I don’t know when I would hold anything other than found original.”

For me, the key still is WHY the general rule is the presumption. If the reasons for the presumption no longer exist than the general rule no longer exists. If the reasons why we hold found original over record are: public lands are defined legally by the monuments set (even when in error); plats and field notes are products of the actual lines run and monuments set; to keep longstanding acquiesced and occupied in boundaries in tack, to support common report amongst other professional surveyors having the same opinion, to consider the measuring precision of the surveying profession at the time THEN when these reasons no longer exist, the principle doesn’t either.

“…monuments controlling is a legal presumption which must be overcome, not one which must be supported.” I’m OK with this presumption, but part of proving that the general rule doesn’t apply is to show why the general rule exists and why those reasons aren’t applicable.

Evan, I have agreed with a lot of what you have posted especially recently in post #205. I’ve also disagreed partially with those who have posted along my same opinion. I certainly have not lost any respect for you and others who have posted “hold found original no matter what” even though I can’t agree. If anything this is the type of debate that defines us as professionals and thank you to those who have participated and sorry for the long post.

From Skelton...

page 161-Section 174 (dd) Effect of intention,--"All rules of boundary surveying have for their purpose the ascertainment of the expressed intention of the deed, and they ARE TO BE APPLIED OR TAKEN EXCEPTION TO, DEPENDING UPON whether their application or disregard most certainly effectuates the intention. "

I left out plenty of sections in Skelton. I felt the sections relating specifically to monuments control over various elements related to the subject matter more aptly than the sections designed to explain the methods of construing written descriptions.

Justice Cooley"The Quasi Judicial Function of Surveyors"....

"The duty of the surveyor
From the forgoing, it will appear that the duty of the surveyor where boundaries are in dispute must be varied by circumstances.

1. He is to search for original monuments or for the places where they were originally located, and allow these to control if he finds them,UNLESS he has reason to to believe that agreements of the parties,express or IMPLIED, have rendered them unimportant.

... always keeping in mind, that neither his opinion nor his survey can be conclusive upon the parties concerned,and, second, that courts and juries may be required to follow after the surveyor over the same ground,and, that it is exceedingly desirable that he govern his actions by the SAME LIGHTS AND RULES THAT WILL THEIRS."

for what it is worth......

One of the recent CLSA conferences had a mock trial with real surveyors, attorneys, and judges. Given the facts presented for their particular case, the vast majority of those in attendance thought the “judge” would choose a particular solution but in reality chose the solution held by the minority.

I would have no problems defending (in a court of law) that the monument was not intended to be set where it is and that all of the reasons why we normally do hold found original don’t apply or if they do, they apply fairly feebly. On the other hand, I could see a judge go either way on this one and that’s why from a “right or wrong” answer point of view it probably doesn’t matter which one you choose.

Dave Woolley makes a great point and that is to make your solution the reality by doing those things necessary to quiet title. Use your opinions leverage to repair the problem. A land use attorney friend on mine would put the burden of quieting title first on the title company, second on the realtor, and third on the bank.

Dane,

Cooley's mention of agreements of the parties refers to those things we commonly call "unwritten rights", where the boundary honored by the parties is not based on the monuments. Note that he does not tie these mentioned agreements to any record map or other record documentation.

It should be indisputable to anyone who has fully read Cooley's essay and the Diehl decision that the principle behind Cooley's logic is repose. That mean's that established boundaries on the ground should not be lightly disregarded. It also means that the actual survey, that which is most readily seen and understood by those most affected by it, should not be lightly disregarded in favor of a document of contrary expression.

IMO, by holding the monument, by all the principles presented in this thread, is governing one's (the surveyor's) actions by the same lights and rules that will govern theirs (courts and juries).

So far, most of the arguments for rejecting the iron are that the map either 1) was approved 1st, or 2) most reliably expresses intent of the parties. One argument that I think was touched on but not really directly addressed was whether or not the monument placement is indicative of gross error. You don't see this concept discussed much in cases, but it is mentioned in the BLM manual as a reason for rejection of an otherwise original monument in it's original position.

If we assume that the monument was set in error, which may be a reasonable assumption, then 7.5' can probably be argued to represent a gross error. Why do I say "assume", and "probably"? Because the fact that the monument lies on the northerly line of the subdivision rather than at some more random location places some doubt on the error assumption. It may have been set as an ofset to an otherwise inaccessible spot (under shed?), or it may have been a last minute decision that for one of a myriad of possible reasons, the surveyor neglected to reflect it on the final map. Could be that the county granted a variance for some reason (accommodate existing out building?), or that the southerly end of the line was similarly intended to have been moved in the opposite direction to maintain the area, but along with updating the final map prior to recording, the surveyor neglected. Without access to either the surveyor's or the county's project file, we really have no idea.

If the legal presumption was that the map controlled, there is no way that I would use the conjecture of my previous paragraph as a basis of reasoning to accept the monument without substantial evidence to support it.

But it is not the argument to accept the mon which needs to be supported under the law. It is presumed correct unless their is sufficient evidence to prove it otherwise. If it is in the position that the original surveyor placed it in, then it is correct. Unfortunately, no part of the licensing exam process tests our ability to measure well. As a result, we have some pretty sloppy fieldwork to follow at times. That doesn't give us the authority to correct for the last guy's sloppiness.

This is from Evidence and Procedures, 3rd, §11-3:

Once statutory authority is granted to the sovereign or landowner to create boundaries, and the survey is conducted, the lines that are run in contemplation, create the boundary lines and corners. Any marks made or monuments created become part of the original survey, including the field notes and plats of the parcels. The rules and regulations that are in effect are for the creation of the parcels. Once a boundary line is created, the presumption is that it was created in accordance with the laws, rules, and regulations in effect at the time. When the survey is accepted by the governmental agency or body, no subsequent surveyor has any authority to "recreate" those lines. They remain forever fixed. The responsibility of all subsequent surveyors is to "find" those original lines.

End quote.

There may be some liability for the surveyor and the subdivider who created the substandard parcel, but the parcels, their lines and their corners were created by the survey for the PM. The map represents the survey. Under the law, until you find a significant case rebutting the principle, the map always represents the survey, and never the other way around.

These are the lights and rules that will govern the courts' actions. Let them also govern yours.

Ben Lund wrote:Dave Woolley makes a great point and that is to make your solution the reality by doing those things necessary to quiet title. Use your opinions leverage to repair the problem. A land use attorney friend on mine would put the burden of quieting title first on the title company, second on the realtor, and third on the bank.

Steven has already said that neither party has any interest in moving the boundary back to the mapped line. One cannot force the parties into performing an LLA they either do not want to do or are not interested in doing. The surveyor cannot effect one under his own authority, and the government cannot force the landowners to enter into one.

If the survey tries to force the issue by opining the boundary in a location where, under the law it is least likely to be found, and in a location which at least one of the parties will find objectionable, he may find himself in the uncomfortable position of defending against a slander of title case.

Never, ever, ever use your supposedly unbiased professional opinion to leverage a boundary situation. In doing so, you aren't just stepping across the line into advocacy, you are leaping across with a big "Yeee Haw!"

I find your comment a little surprising. I thought you were one of the "just the facts" guys, Ben.


As to the mock court, and the majority being surprised by the outcome, I'm not surprised by that. I wasn't there, so don't know the issue or the outcome, but I do know that a majority of surveyors, while knowing proper methods of measurement, and being pretty familiar with regulatory process (getting a subd or LLA through the system), are fairly ignorant of the law. I'm sorry I missed it.


Also Ben, in Diehl, the characteristics you mention were present, but the basic facts were that the evidence pointed to the fact that the actual survey of the subdivision was at substantial variance with the plat of that subdivision, it is the actual survey on the ground which is superior, and that no subsequent surveyor has the authority to recreate the survey to comport with the corresponding map.

"It should be indisputable to anyone who has fully read Cooley's essay and the Diehl decision that the principle behind Cooley's logic is repose. That mean's that established boundaries on the ground should not be lightly disregarded."

What I don't find in the material that's been presented in this matter is establishment. A fence 17 feet distant, a shed corner that may predate the subdivision, an alleged statement by the adjoiner that he doesn't know where the boundary is, all versus a PM that holds together on the ground save for one wild pipe installed by a licensee apparently notorious for negligence.


To requote Brown:

"Superiority of monuments over distance, angle, and area is so frequently accepted by the courts in all states that the danger of applying the principle comes from a contrary intent. If numerous other inferior terms in a deed refute the call for a monument, and if the other terms taken together indicate a contrary intent, the reason for the principle is nullified."

.

The flimsy wandering fence seems it was only for the purpose of containing dogs, no attempt to follow any version of boundary. I didn't consider it, and still don't.

Shed may or may not mean anything. As I said before, worth consideration.

An "alleged statement" is worth absolutely nothing if it cannot be confirmed. It's a red herring.

When can you base your decisions on a licensee's notorious reputation? Could you bring that reputation into a court proceeding to justify your action which otherwise would seem contrary to legal precedent?

Which are the numerous contrary terms? All this discussion and so far we have:

1) Dimensions on a map.
2) General knowledge of the usual procedures in modern subdivision approval. This is a reason to investigate if the map as recorded is a superior indicator of intent. Some logical assumptions can be made to guess at the intent. But until you have further evidence as might be found in either the surveyor's or the county's files, you have conjecture and dimensions on a map.
3) A fence that is meaningless one way or the other.
4) A shed, the location of which may have some meaning with regard to a possible late in the process lot line change that was not reflected on a map, or an offset point that was neither reflected on a map or a CoC. Assuming either of those is also conjecture, so without further info, the shed is meaningless.
5) An alleged statement that can't be verified, so is meaningless.
6) A licensee's alleged poor reputation, which unless his negligence can be proven in this instance, is unuseable.

So, of all the "evidence" we have to refute the monument, which remember is presumed correct under the law, the only thing we have that can be considered at this point is dimensions on the map. Anything else is just a place to begin to look for more supporting evidence, at best.

The map is one contrary element. Where are the others of these numerous elements?

If you won't understand that acceptance of the monument is the default legal position that the courts will assume, then you can't even begin to build a good case to refute it. The case to accept it does not need to be made. That is a legal "fact". But to reject it, one does need to build a case against it.

Party 1 “Hold Found Original” because that is the presumption, the general rule, the law (2077), and court cases confirm this.

Party 2 “Disregard Blundered Monument” because the reasons for the presumption, general rule, and law do not exist and there are court cases that confirm this.

Party 2, how are you certain it is blundered?

Evidence the monument is blundered: it doesn’t match the deed, the map, agency approvals, occupation, fences, typical offsets, certificate of corrections, assessors maps, taxable land, and other found original monuments (except it’s on line with the subdivision boundary). There might be more, but this is my understanding.

BTW, I had a case where I found a monument that was of no record but stamped LS xxxx. This LS xxxx’s tag was on all of the subdivisions monuments even though he was not the LS of record per the map. Guess what I did? I held these monuments as representing what was supposed to be set per the map (even though there was no certificate of correction) because they matched the map dimensions. If it’s just a matter of accepting monuments based on their physical characteristics, why measure at all?

Deed based on PM (I assume parcels are conveyed as Parcel A of XX PM YYY). Since the law considers the map to be a representation of the survey, and it's the survey that creates the lines, the deeds would match the monument perfectly by definition if the monument is in the same location as originally set during the survey.

Doesn't match PM. Right, we've established that. If a casual reader got only one thing out of this thread, that would be it.

Agency approvals - logical assumption, but assumption just the same. Without the county's files, we have no way of moving this one out of the realm of assumption.

Occupation, aside from the shed being close to the iron in question, doesn't match anything - it's irrelevant.

Typical offsets to what, where did that come in?

There is no CoC to match or not match - facts not in evidence.

Assessor's map is based upon PM, and almost every APM I've seen in the last 20 years contains a note to not rely on it for boundary info, so this adds nothing.

Taxable land - huh? 'splain that one please. What do you do to rectify a discrepant amount of taxable land when you survey a subd that is short of land overall compared to record, take it from the next parcel over? Do you apportion excesses to the adjoiners?

Other found monuments - again, you mean that it doesn't match the reported dimensions between the mons per the PM. My understanding is that the description or the nature of the mon is consistent with others established in this survey. So, in that sense, it does match the other mons.

None of this speaks to why the monument does not match the record position. When you assert that it is there by blunder, you are ascribing a reason for it's placement. You currently have a belief of that reason based upon assumption. You have no evidence for the reason.

Once we filter out the facts not in evidence, the irrelevant facts, the assumptions, and boil down the rest to their essence, we are still left with only the fact that the dimensions between this monument and the adjacent monuments do not match what is shown on the map. That's called a "material discrepancy". See §8762(b)(2).


As to your personal example, would you have accepted that point had it been a 16d nail with a bit of flagging on it? I suspect not. I suspect that you would have noted that it was at or near the location for that corner and speculated that some surveyor had set a temp point, but would probably have used your calculated position a few hundredths away instead. I submit that you accepted it because it was of a nature consistent with all of the other original monuments of that subd with the supporting evidence that it reasonably matched record dimensions to adjacent mons.


Why measure? Because we need to report spatial relationships, to the best of our ability, in documentation of record so that the next person looking for the mon can readily find it; because when we are the first to establish these points, we strive to put them in the positions we calculate for them.

But we never succeed in putting them in the exact position we calculate for them except by the luck of random error. There is always some error in every measurement, and sometimes that error is a blunder. The next surveyor to follow us is almost certain to mave measurements at some variance with the ones we reported. The law recognizes this and also recognizes that the general public needs to be able to rely on something to permanently delineate their property. Since monuments are the most readily understood and seen thing for the general public, the law is loathe to repudiate them.

But I find me repeating myself and answering the same questions and logic again and again and ....


Here's a link to a seminar that may do you some good: http://www.pesilaw.com/search/detail/in ... ntid=11439
It's titled: California Deeds, Descriptions & the Law

I will be at the Burbank session next month!

Walt's eighty years old, and if you haven't been to one of his seminars you should while you still can.
PESI puts together a nice package of course materials as well, at least they have in previous seminars I have attended.
Go! you'll be glad you did!

To fan the discussion a little...

What if the facts in this case were such that the monuments in question were interior lots in a subdivision and the subdivision map had a certificate from the Surveyor stating that interior lot monuments were deferred and would be set within 90 days after the map records? How would those facts affect your position?


Steve has a real world problem here and I would venture that there are many backcountry subdivisons with similar, let's say... quality control, monumentation issues.

A good topic for a seminar would be "Surveying in the footsetps of fraud or incompentence"

"None of this speaks to why the monument does not match the record position. When you assert that it is there by blunder, you are ascribing a reason for it's placement. You currently have a belief of that reason based upon assumption. You have no evidence for the reason."

The fact that this monument alone is in conflict with the record PM dimensions at the level of gross error is prima facie evidence of a blunder. By signing the map, the surveyor affirmed that the monuments occupy the positions shown, and the other monuments in the subdivision appear to do so. Yet the positional accuracy of the monument in question is a couple of magnitudes outside the standard of practice, even for a sloppy practitioner.

I agree that a review of the local agency's file on the PM would be prudent. However, absent anything therein indicating intent to subdivide the parcel in a manner consistent with the location of the errant pipe, I don't see a reason to hold it.

.

This thread should be called harmony vs hold blunder.

More like "Follow the Law vs Follow your Bliss"

OK, that got me laughing pretty hard, touche!

Ben Lund wrote:This thread should be called harmony vs hold blunder.

Since, by legal precedent, when the survey on the ground, as found in the field is in conflict with the map, the map is presumed to be incorrect and the field survey correct, the blunder would be in the map until proven otherwise.

Why do you insist on holding the blunder rather than preserving the harmony on the ground?



Jim,

A discrepancy between the points of a survey and the map prepared to represent it may be prima facie evidence of a field blunder in your estimation, but not in the eyes of the law. The courts have consistently looked at such discrepancies as errors in the mapping.



At this point, this thread seems to have outlived its usefulness in that we keep running circles around the same arguments. Some of us argue the law against those who argue the math and that the math represents the intent, with this intent part being largely based upon the administrative process of subdivision approvals.

Aside from Dane's attempts to use quotes from Skelton, no one else arguing that a map is superior to the survey has bothered to support that position with the body of law by which a court would necessarily have to adhere to.

I do not disagree that the math of a map is indicative that the point may have been placed in error. I do not disagree that most commonly, all approvals for the subdivision are in place prior to the monuments being placed. I do not disagree that it is unlikely that the subdivider did not intend for his surveyor to create a substandard lot. I do not disagree that the occupation evidence is insufficient to base a boundary decision on.

This boundary needn't be bolstered by occupation. With some evidence that the monument was moved, or that the landowners or their predecessors had at some point recognized a line more in keeping with the mapped location for this point, the presumption of the correctness of the field survey over the map would be overcome.

Steven, do you have any such indication of either circumstance? It sure would be nice if you did, then we could all agree that the mapped location is correct and sing a round of Kumbayah.


I have yet to see a boundary case that turned upon the administrative process or adherence to zoning ordinances as being considered dispositive by the court as to the boundary location.

Provide one. Just one!

I agree we are replowing the same ground. But I do not contend that "a" map controls "a" survey. I contend THIS map controls over THIS inadvertently inserted monument and THIS contention is supported by case law as previously stated. In the cases cited supporting a monument's control, one has to consider that there were additional legal principles at work, Repose for example and detrimental reliance. We all appreciate,or we should, the reason for holding found,even uncalled for, monuments. Again, in the cases cited a massive injustice would have been to the communites involved had the monument(s) location been overturned by the court.

The question at hand is not the pipe v. Local agency. The local agency requirements only shed light on the intent of the parties. The way I see it the question is INTENT V. an inaedvertently inserted pipe. The real question is... Does the pipe represent the intent of the parites?