California Surveyors Forums

Thank you Dane, at least you haven't lost patience in correcting Evan's take on the opposing sides stance. And as for cases, that hold record over monument I cited two.

PS "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'de like to see if you can find one that shows that the court rejected this argument. Provide one. Just one!

You are asking me to prove a negative. Why would I need to research a case for a losing argument which attempted to overcome a settled principle of law? The burden is upon the one who wishes to overcome the settled principle.

Moving on now.

I concede to your perseverance on the issue.

BTW, I presented this threads scenario to 3 land use attorneys and all 3 said a judge would probably decide in favor of holding the mapped dimensions.

Yep. Most would probably go with the map until they research the issue.

I have enjoyed your posts to this thread. Steve's post about the frustrated attorney pretty much sums up the "opposing" view in my opinion. I have tried to diligently keep up with this thread and the logic of the various positions, and have to shake my head at those that warmly embrace the view that INTENT of the parties is most firmly established by the parcel map.

For those that embrace the notion that a map best expresses the INTENT of the parties and therefore, a valid reason to reject a monument, I offer this analogy. The Unites States mining laws unambiguously state that the maximum dimensions for a lode mining claim are 600x1500 feet. This is not merely the intent of the parties, but the statutory requirement. Using the argument that a parcel map is the ultimate statement of intent, then a patented mining claim that exceeds the 600x1500 limit MUST somehow be reduced to the statutory limit.

I found an interesting case here in Colorado where a mine owner got squeamish about one of the claims he had purchased because it was 124 feet too long. In order to correct the "blunder" of the mineral surveyor, the mine owner petitioned the Commissioner of the General Land Office to allow him to correct the error. The mine owner offered to surrender his patent for the Mother Lode (Mineral Survey No. 204) so an amended survey could then be conducted to correct the original blunder. The facts were that the Mother lode shared a common end line with the Paris lode. To "fix" the error, the common end line between the claims was dissolved, creating a gap of 124 feet between the amended position of the Mother and the Paris lode. The mine owner then claimed the newly created gap with multiple claims and went through the patent process to obtain a new patent for the Mother lode that complied with the statutory limits. The gap was patented to the Easton and Allentown lodes (you don't want to know why it took two claims to cover the manufactured gap of 124 feet). Nor will I go into why a new claim, the Mater lode, was located in the same place as the Mother lode!!

The Mother/Mater/etc. lodes are connected to the Sinnott v. Jewett DOI Land Decision (33 L.D. 91). If you want to see the mess, take a look at the segregation diagram and connected sheet that I linked in my post dated Sept. 10, 2010 (Post #141).

Cheers,
Gene

Context is everything. When you're dealing with a large parcel located on the side of a 14,000' mountain (I've seen photos of some of your jobs, Gene!) that was originally surveyed in the 19th century, the impact of a surveyor's 7-foot blunder is generally modest to non-existent. When that 7-foot goof turns up on a small parcel surveyed a couple of years ago, it might be a very different matter.

Consider a 50'x100' lot in a modern subdivision. The surveyor's button-pushing high-school summer-help crew sets a monument 7 feet out of position, and a week later the lot is purchased. The new owner stomps around the lot with the real estate agent. They see the busted monument and the agent says, "That's your lot corner." The owner doesn't build anything on the lot, nor does his neighbor. 8 years later the neighbor has his lot surveyed, and the monument's relationship to the record location is discovered.

Does the monument really mark the corner? Does one guy have a 57-foot-wide rear line, and the other a 43-foot-wide lot that he can't build on? Would it make any difference if the bust was 20 feet? 40 feet? Is a court really going to hold the monument in every case?

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Can I claim continuing education credits when posting? ;)

Thanks Steve for replying. Sounds like a "sticky" situation. You could certainly take an oath from the land owner after explaining the legal repercussions of perjuring yourself and show the physical findings on your Record of Survey; if you were going to hold the pipe.

I'll hold off on saying anymore since I have over 10 pages to read...........

I am not sure what the elevation of a survey has to do with intent! ;-)

Nor do I understand the position that some have taken that a parcel map should take precedence over a found, original (and tagged) monument, even one set in error. In my work I have seen what others would have regarded as gross error (at least with respect to the magnitude of the difference between the record and monuments). Not once did I ever entertain the notion that the plat should be held over the found monument. The only monument that I did reject was one that I was able to quantitatively document had moved nearly 20 feet in the last 120 years. The stone is still upright with a mound of stone around it. However, the entire area is moving en masse down the slope. I didn't presume that just because it differed from the record that it must have moved. I had "clear and convincing" evidence of the movement. I first shot the monument in 2001. In 2007, I shot it again and it was over two feet different from its position in 2001. In 2009, it had moved an additional 0.66 feet (all movement was down the fall line of the slope).

In my opinion, trying to divine the INTENT from a map is dangerous at best. What I have noticed in this thread is a willingness by several posters to grasp at anything that allows the blundered pin to be rejected. That sense of fairness and a need to correct the mistakes of others that we all have at times.

One question for you Jim. What do think of the Colorado "blunder rule" case of Morales v. CAMB? I have mentioned it more than once and most have avoided any comment. Granted this concerns a 13 foot error in a mountain subdivision, but do note that it is in the ski resort of Winter Park, CO and that if CAMB had prevailed and the judge held the map as superior to the monuments, an extra condo could have been built.

Well, I am headed up to 13,000 to find some of those pesky stones that don't exactly match the plat. Have a great Sunday Jim! The aspens are in their full color now.

Cheers,
Gene

P.S. Can anyone provide a primer in how to post a photo?

P.S.S. From post #237, "the impact of a surveyor's 7-foot blunder is generally modest to non-existent." That doesn't pan out when gold and silver are involved (pun intended). See Resurrection Gold Mining Co. vs. Fortune Gold Mining Co. where the defendent was ordered to pay $100,000 in damages and that was in the late 1890s.

"One question for you Jim. What do think of the Colorado "blunder rule" case of Morales v. CAMB?"

If I read the case correctly -- and after apparently crashing the Grand County map server while attempting to understand the parcel geometry -- the court noted that the 13-foot discrepancy in the parcel dimensions is reflected in not one but two monuments, both purporting to mark the south line of Lot 6. The court stated that "the parties do not dispute that the pertinent monuments are located consistently with each other. Hence, we need not decide whether the [general] rule of the precedence of monuments has any exception under Colorado law."

The court specifically mentioned that the exception to the general rule as found in Duane v. Saltaformaggio does not apply because such an exception "is limited to those rare instances in which the locations of monuments are themselves inconsistent." In other words, a prudent person, upon finding two monuments as described upon the plat and at the platted distance, can reasonably rely upon them as marking the limits of title.

I find it interesting that Morales v. CAMB makes no mention of substantial reliance. I wonder if Morales had built a fence or otherwise exerted any patent control over the land marked by the monuments prior to CAMB's discovery of the blunder.

In any event, the overlap with Steve's case is only partial, in that his matter involves a single busted monument.

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"Can anyone provide a primer in how to post a photo?"

Alas, while you can upload a photo (click on Manage Attachments), there's no way that I know of to embed an image in a post on this board.

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I came across this in my reading and thought it applies.

Wattles on the theory of “Majority Probability”

“For correct title interpretation, assemble all the facts including record and off-record information and occupation as determined by survey. From this data, set forth all the probable and possible theories of line and corner positions giving full consideration to the physical, engineer, title and legal factors, and their interrelationship to ascertain a solution which will fit the majority of the analysis most closely. This is the theory of majority probability, and normally will produce the most satisfactory results.”

I agree with Evan Page.

But I'm a realist and I don't doubt you could persuade a bunch of befuddled attorneys and a herd of humdrum judges to the opposite way of thinking.

Hint: sometimes you have to gently educate Attorneys; it's not easy, their kind don't take a connection to reality easily. They are used to jousting using reams of interrogatories and artful deposition questions. I have found Deputy A.G.s are the best to work with but I did manage to turn one private attorney around from a belief in adverse possession being the answer to the actual boundary being the answer. Once he got on board it was so simple even a Judge could follow it.

Steve-you are right hence the old joke about posing some controversy to an Attorney and his first question is, "which side am I on?"

The Attorney saw it my way because he saw it for what it was, a much simpler way and likely way to persuade a Judge and win the case.

Attorneys are not infallible. They go to law school for four years to get their heads stuffed with concepts then they go work for a law firm where they find out how it actually is done (mostly strategy with very little concern afforded by the process for the truth). A Land Surveyor might have some chance of influencing this process a little. Often we have unwittingly muddied the waters in past decisions.

Attorneys and Judges don't magically know the law or anything else. They can be victims of group think just like us. They put their pants on one leg at a time. Our job is to try to steer the Titanic of Judicial process with a row boat oar but sometimes things align properly so we have some influence on the process.

I like Wattles but he just made that up out of thin air. It sounds arbitrary to me.

On the other hand, here's a monument, it either is or isn't the boundary corner, which is it? Probability has nothing to do with it.

Evidence and developing facts is the point of a Survey.

Mr. Landowner: So Mr. Surveyor, is that rebar my corner?
Mr. Surveyor: Well I ran that through my majority probability analysis software and the rebar is 0.61' south and .045' east of your actual corner with an uncertainy of 0.189' oriented N 15°15'46" E.
Mr. Landowner: Huh?

Dave Woolley, thanks for the thoughtful post. I would be very interested in seeing what the courts have to say.

I first want to preface this post by saying I’m not trying to argue either way on this particular case. I’m not sure how critical the following needs to be said but I’ll say it anyway:

I believe Wattles is saying that majority probability has very little (if not nothing) to do with error ellipses, software, mathmagical solutions, etc. It does, however, have everything to do with the intent and evidence of the intent. Even general rules can be overturned due to evidence of contrary intent. That is why they are general rules. How much evidence of contrary intent due you need? Enough to show majority probability.

Why was the rule “hold found original” established in the first place? Majority probability. What happens when the reasons the rule exist no longer are valid? The rule is no longer valid. I think we can all agree so far, it is only in the application of this logic that we are arguing about. It seems though that some have argued there is no alternative solution to “hold found original” and I just can’t agree with that.

"It seems though that some have argued there is no alternative..."


Who?

Here's your chance. To ALL those that say hold found original: When would you NOT hold found orginal?

Some more food for thought: Wattles quotes 9.C.J. Boundaries Section 45 (I don’t know what this references) on page 3.16:

“In the absence of monuments or marks, or in the case of repugnance between them, the determination of what are the true lines called for in the entry, grant or conveyance is a pure question of construction, dependent on the intention of the parties, as shown by the instrument and the circumstances of the transaction.”

Cuomo's Advanced Land Descriptions, Chapter 2, "Control Afforded Recitals" under the subheading "Order of importance among conflicting elements” says:

“When the recitals within the description are uncertain or ambiguous, then the following raking is common:
• An actual survey or survey plat upon which the description is based
• Natural monuments
• Artificial monuments
• Measurements for direction and distance
• Acreage
• Coordinates”

I believe legal descriptions based on modern subdivisions typically fall into the highest category as a “survey plat upon which the description is based.”

Obviously if the legal description was based on an “actual survey” then the survey would hold.

I got this from a book titled “The Codes of California, As Amended and in Force at the Close of the Forty-Fourth Session of the Legislature, 1921, Fully Annotated by James M. Kerr, 2nd Edition”

http://books.google.com/books?id=OewkAA ... &q&f=false

Maybe the most concise explanation and reputable source:

“273. Exceptions to General Rule.—Rule that call for monument will control conflicting calls for distance, etc., is not absolute and in flexible rule. It, has always been subject to qualifications of various kinds, and books are full of cases in which calls for visible monuments have been made to yield to other calls in order to carry out true intention of parties to conveyance of land. Our statute has adopted rule with all its exceptions and qualifications. It is true that among other rules prescribed by above section of code It is provided in subdivision 2 that when permanent, visible, or ascertained boundaries or monuments are inconsistent with measurements, either of lines, angles, or surveys, boundaries or monuments are paramount; but this, like every other rule embraced in the section is subject to qualification contained in first clause that they control only when there are no other sufficient circumstances to determine doubtful construction, and it is further subject to rule prescribed by subdivision 6 that map referred to in deed and with reference to which parties acted, controls other parts.—Miller v. Grunsky, 141 Cal. 441, 450, 66 Pac. 858, 75 Pac. 48.”

I normally consider mapped lots as having the property of simultaneous creation, and ignore sales dates when retracing interior lot lines.

Now let's suppose that a map was never filed, but instead Lot B was created by deed with a call to the ip?

The subdivider, living on Lot A, sells Lot B. Now B is senior to A, and ambiguity (IN THIS EXAMPLE) would be in favor of the grantee. The seller has to live with the mistake, and is stuck with his undersized lot.

Does this help? Sorry if this has already been brought up... I remember the discussions about overlapping maps in Gulala.
http://www.californiasurveyors.org/clsa ... php?t=2641

Ben Lund wrote:Here's your chance. To ALL those that say hold found original: When would you NOT hold found orginal?

Already asked and answered, both in this thread, and as an example, here:
http://www.californiasurveyors.org/clsa ... php?t=3567

Anthony Maffia wrote:I normally consider mapped lots as having the property of simultaneous creation, and ignore sales dates when retracing interior lot lines.

Under what conditions would you NOT consider mapped lots to be created simultaneously?

Steven,

So are you then saying that the PM and the survey performed for it were somehow vacated due to a finding of incompetence?


Gentlemen,

It is unarguable that we each will, or have and will again retrace a survey where we find that it was performed carelessly and/or our opinion of the surveyor's care and ability in making field measurements leaves much to be desired. We may, and often have shaken our heads and wondered how it is that this particular surveyor got a license to begin with, and further, how he has managed to not lose it with such poor practice.

Our opinion of that surveyor's performance or competence is immaterial. Whether we like it or not, he is licensed and performed the work (albeit poorly) the work which he is licensed to perform for those who do not posess the skill and ability to do that work for themselves. Further, until the State removes that surveyor's authority to perform such work, the public for whom it was performed has a right to rely upon it and we do not have the right to correct it of our own volition.

You will find that basic concept presented in nearly the same words I just did in Skelton, Wattles, BCLP, Evidence and Procedures, Clark, Forensic Procedures, Interpreting Land Records, the writings of Brown, Broadus, Karyan, Cooley, and others. Those authors did not pull this concept out of their collective... ears. This concept of retracement is clearly stated in cases cited by each of these authors.

In performing a boundary retracement, it is beyond our authority to declare "blatant incompetence" of the surveyor who originally set the monuments and prepared the map and survey we are tasked to retrace. The assessment of one's competence is the purview of BPELS and of courts.

And here's a real kick in the shorts for many: Even if BPELS revokes a surveyor's license, it does not have the power or right to vacate the results of the surveys performed by that surveyor prior to the revocation. And neither do any of us. As poorly as they may have been performed, if they have been accepted (as this one was by the local municipality and by the landowners), then it stands. If a mistake is found, and it is your opinion that the mistake is on the ground rather than on the map, any correction made must be done by the consent and authority of the landowners, not by your own.