California Surveyors Forums

Thank you Steve what the heart of the issue is. I don't believe anyone is saying the boundaries should change based upon the ability to measure more precisely, yet this is one of the main arguments presented by those who say "hold found original no matter what."

Evan, you’ve made it clear that you would never reject a monument in favor of the math. You said, “Should not the general public be able to rely on the markers we set?” Yes.

Should not the general public be able to rely on the MAP that says they own a legal conforming lot that meets all applicable ordinances, statutes, laws, etc.?

What’s more important to the general public? To the courts?

For some reason, we want that unsuspecting buyer to burden the responsibility of a blundered monument and I don’t believe that is right. Not only that but we throw intent right out the window when we hold a blundered monument. How could anyone say the surveyor, subdivider, City, County, etc intended to create a non-conforming lot? Or that the purchaser intended to buy a non-conforming lot?

It’s too bad that I just can’t walk away from this argument and say, “hold found original no matter what” because I think that would be the easier boundary solution.

Ben,

You will never be able to understand your responsibility in this if you persist in your unrealistic oversimplified statement that you attribute to those who have not said "hold the monument no matter what". There is no such axiom in any of the standard references, and there is none in the courts of which I am aware.

The courts have spoken clearly and repeatedly on the subject.

The public, generally, is not aware that such discrepancies can even exist until it happens to them. When it does, which will they most often have acted in reliance upon, the abstract representation of their boundaries, or those which exist on the ground to which they can build fences, mow to, put up a string between often without the aid of a surveyor.

Most of the time, the public will opt for what they are already familiar with if there is no major discrepancy or dispute. Once they find out that those marks on the ground don't encompass the same area they thought they bought, then they will jump up and down and demand the map be honored. When a discrepancy is brought to their attention, many will then want whichever solution gives them more. If the monuments encompass more than what the map says they own, they will demand that monuments be honored. That same person, if told that the monuments encompass less than the map indicates, will demand the map hold. No surprises here.

You speak of a burden on the public to hold to a blundered monument. First, it is your assumption that it is blundered simply by comparison with the map. You need far more than that to prove where the blunder, if one exists, lies. Your assumption may be correct, but until you prove it, it is still an assumption.

What about the burden to the public to live with the knowledge that each time a surveyor shows up, he may find what he believes to be a blunder and start moving lines and corners around, creating controversy where before his arrival there was repose?

Under your "burden", the landowner needs to be told "here's where I found your boundary. Nothing has changed on the ground, but you don't have as much on paper as you thought you did." The landowner need not move any improvements or change the real image of what they own. But they may need to deal with other issues should they want to subdivide later on.

One thing you are forgetting or misunderstanding is that this lot is already a legal lot. It is a lot of an approved subdivision. It is not only the map which is approved, but the survey creating the subdivision. It was and still is a legal lot. That does not get undone because a recent surveyor has found that the lot is smaller than the zoned minimum.

Under the alternate "burden", the surveyor comes in, unilaterally corrects the survey because he is certain that his measurements and evidence interpretation is superior to that of the previous surveyor, and tells the landowner "I found the markers of the last surveyor. Most of them were close enough to the true corners to not be concerned about, but this one needed to be corrected by 0.56', and another by 7.48'. The good news is that I have returned 500 square feet of your lot to you. The bad news is that your neighbor is now going to sue you for the area. But don't worry, even though it may cost you $50,000 or more to defend, I assure you that you will win because I keep meticulous field notes and my Chi squared numbers were near perfect."

At least under your scenario, they can take comfort in the fact that you have returned their rightful property to them. That is until the next surveyor comes along and discovers that you incorrectly monumented on of your new points and he needs to move it by 0.82', or 0.36', or 0.04'.


"It’s too bad that I just can’t walk away from this argument and say, “hold found original no matter what” because I think that would be the easier boundary solution."

Actually, it's too bad that you can't set aside the black and white thinking of an engineering tech in order to gain a better understanding of the laws and rules governing boundary surveying.

Evan, maybe we are saying the same thing. Sometimes it is hard for me to tell.

PS, Is it possible for you to write a post without the demeaning name calling/classifications? I for one don't care for your personal attacks and I don't think anyone else does either.

SteveGardner wrote:Evan - As I said last night, I'm not saying that a blundered monument can't attain the status of a corner. My dilemma 200+ posts ago was and still is whether it should automatically be held in accordance with the general rule that original monuments hold or whether in a case where there has been no reliance on it, it can be rejected. I agree that the decision would have to involve the affected property owners. In this real-world case, the property owner I was hired by made the decision to accept the monument just to avoid a hassle. It didn't make that much difference to them to lose a little triangle of land on their 2.3-acre parcel. I'm still not sure if that decision is binding on their successors.

Steve,

It was their decision to make, and once recognized, I believe that it will be binding upon their successors. They, or their successors may have some recourse against the title company (doubtful) or the surveyor (did you say he was deceased?) or the surveyor's company if it still exists. But that may be doubtful as well. Once accepted, I think that the owner, current or future, would then be estopped from claiming to any other boundary.

If they had chosen to claim to the mapped line, then you may have been afforded the opportunity to more fully research the decisions that went into the preparation and approval of the subd, and may have found sufficient evidence to show by a preponderance that the iron was either set in error or intended to be an offset to the true corner. It may not have taken much more than you already knew. But simply observing a difference between the map and an iron is not sufficient to show superiority of the map over the monument.

Ben Lund wrote:Evan, maybe we are saying the same thing. Sometimes it is hard for me to tell.

PS, Is it possible for you to write a post without the demeaning name calling/classifications? I for one don't care for your personal attacks and I don't think anyone else does either.

Sorry Ben. Not trying to be demeaning. Just pointing out that you need to set aside black and white thinking when working out boundary discrepancies. I will try in the future to proof read and edit out any references you may find offensive.

I'm not sure why my thinking is black and white. Maybe this is your rub? If anything "hold found original" is black and white. You’re the one applying the general rule in the face of intent. Some statues have exceptions, and “hold found original” is one of them. Do we agree?

Nope, we don't agree.

"Hold found original" is not a black and white statement in and of itself. It can be once applied to a particular situation. It most certainly is when you add "no matter what", and that is the part that you keep tacking on and characterizing others as saying when no one has said that.

"Hold found original" can also be quite flexible if the meaning is "hold found original unless superior evidence is found to overcome it."

That is the very definition of a presumption. "Presume A to be true, unless there is sufficient evidence to support that A is not true."

That does not mean "unless there is sufficient evidence for me to suspect that A may not be true."

Black and white thinking is also "The map shows this lot configuration, the math of the map works, there are signatures on the map, so it MUST be a clear expression of intent superior to all other evidence." Sorry, case law just does not support that interpretation.

Until the legislature enacts a law that states in the case of conflict between monuments and maps of subdivisions performed or filed as of a certain date, that the map shall be presumed to control, or some as yet non-existent landmark case comes along making the same assertion, we cannot impose our own ideas of how evidence should be utilized in contradiction to existing law.

It sure would make our jobs easier if we could. But it might also open us up to other liabilities if we were perceived to have not corrected a boundary where we should have.

I am not attempting to apply any rule "in the face of intent", but to follow the set rules of construction which are to be used where intent is uncertain. The courts have repeatedly held that where a map and the lines and points of an actual survey conflict, the actual survey more clearly or reliably shows intent because that is what the parties took actual possession of.

But the contrary can be shown. You just need sufficient evidence to do it.

How's that for gray area.

"....until the next surveyor comes along and discovers that you incorrectly monumented on of your new points and he needs to move it by 0.82', or 0.36', or 0.04'."

I think that this is not a fair characterizarion of the question. Unless, I missed something the original poster indicated that he had found and planned to hold many of the original monuments except ONE SEEMED TO BE WAY OUT OF POSITION. Because this one monument was NOT IN HARMONY WITH THE OTHER MONUMENTS and there was no evidence, to point to how or why the monument occupies a position not in harmony with other monuments and the map and understanding the IMPORTANCE OF MONUMENTS, the poster asked others what they make of the situation.

OK Dane. At how many sigma do you decide to reject? Where is the line, so to speak, for that judgment?

If you think it not a fair characterization, then I think you miss my point. What if you were following a survey on a 2.3 acre tract, and all but one of the monuments fit calcs within 0.2', but one was out at 0.6'. Do you reject it? I mean, it was obviously not set to the same standard as the rest according to the map in hand, right? So what would you do with it?

Evan, 7.5 feet isn't sigma anything. What is your solution to this situation? Would you place your neck on the chopping block in support of your solution?

The facts in this case are clear cut, and lead to only one conclusion.
However, lest someone charge me with saying that "Monuments hold no matter what" I agree with Brown when he notes "When you change the evidence you often change the applicable law" [sec 4.16]

Anthony, that brings up another issue in most surveyor's thinking. Why do we assume that we need to make a tough decision in a vacuum and then "place our neck on the chopping block"?

You find a discrepancy like this. You have enough to eye the point with a great deal of sucspicion, but not enough to overcome the presumption. You don't really have what you would like to feel comfortable either way.

Before completing your survey, but once you've verified the existence of such a discrepancy, why not brief your client, lay out some options, and ask "what would you like me to do?" Hopefully, both landowners will agree on a solution, which may be to honor the monument (and recording agreement to such), a BLA to correct the boundaries to the mapped location, or some other amicable and easily achievable solution.

In this particular case, Steve lucked out in that his client directed him to just go with the legal presumption that the actual survey prevails over the map. That really takes a lot of burden off of him.

But I guess the next stage of your question might be "What if your client gives you no specific direction other than to finish the survey based upon what you already know?"

Well, then, I would draw my dark line to the monument and dimension appropriately, and in a lighter line, show an alternate solution along the mapped dimensions. I would also include a narrative explaining that the monument represents the best evidence currently available to me, but that my opinion could change if better evidence were to be made available after completion of my survey. My narrative would explain my misgivings with respect to the monument, but also explain that I do not feel that the preponderance of currently available evidence is great enough to prove that the monument is not in its original location or that the landowners had recognized any line other than that which was monumented.


It may be true that the monumented line was not particularly recognized, but it is significant that no other line had been recognized either. Had there been some indication that the landowners had thought this monument to be misplaced, that may have been enough to tip the weight of preponderance, IMO.


Documenting your boundary decisions is not a roll of the dice, and they should not be made on the basis of "I feel that...." They should be made on the basis of statutes and rules of construction in effect, as guided by interpretation from the courts, using our measured and other evidence as the pieces to put together according to those rules.

Follow those rules and document it well, and you will be fine. Usually.


IMO, you are assuming more liability by assuming intent, ignoring the rules of construction, and correcting a survey that you have no authority to correct.

Thanks, Tom.

Also, if you guys would read up on the subject (and that means more than looking just for sections to support your argument - an advocate's role), you will find that there are legitimate times to reject a monument, but that when comparing to dimensions in a deed or on a map, the monument in place will most often control.

It is certainly not a "no matter what" line of thinking. It's a line of thinking that lets the evidence and the law, and not my personal sense of equity, lead me to the most likely and most legally defensible answer.

Evan, it is bold of you to assume that I have not read up on the subject and that my only purpose in reading up would be to PROVE my own point. As far as I am concerned, I do not care what the rule is, but it is my business to make sure I know what it is and if it is applicable to the factset at hand.

It is not a question of magnitude.

BTW the rules of construction are DESIGNED for the purpose of getting at what is likely the best representation of the intent of the parties, when there are conflicting elements.

"...a line of thinking that lets the evidence and the law, and not my personal sense of equity, lead me to the most likely and most legally defensible answer." I am in complete agreement here, although not being a judge deciding the matter, I would have only my lay opinion as to whether or not my line of thought lead me to the most legally defensible answer or not.

Dane, my thin skinned friend, my parenthetical comment was not a personal jab at you or anyone else, but a general comment of how many tend to use their references.

When using a reference, and considering a particular passage to demonstrate a point, take note of what chapter, part, or section of the book you are in, read the section just prior and the section just after, ensure that the passage you are preparing to use makes the point you want to make when taken in the full context of the author's writings on the subject. (another general note to no one in particular)

"BTW the rules of construction are DESIGNED for the purpose of getting at what is likely the best representation of the intent of the parties, when there are conflicting elements."

On that we also agree. I believe that I have stated as much only a couple of posts back. The courts have taken note that non-surveyors generally do not have the knowledge, skills, ability, or means to determine whether a monument is in positional agreement according to a map, and to properly judge if any discrepancies represent an expected amount of error, given the equipment, methods, and care in common usage at the time of the original survey. Accordingly, they give monuments in their original positions very high regard and do not cast them aside as easily as many surveyors would.

If your argument to reject a particular monument is not a question of magnitude, what is it a question of? You characterize the mon as a blundered one. What criteria other than magnitude from expected position or relative position to other mons of the subdivision are you using then?


Edit: Although you are neither judge nor attorney, your opinion as to the application of law to the problem should not be a "lay" opinion. You are expected to know and to apply the law to the survey of boundaries. That's what we are licensed for, to apply our special knowledge to the surveying of land. Our opinion should be an educated one. If it is a "lay" opinion, then it is no further advanced than would be our average client's, and accordingly, no reason for us to be licensed. We apply the law, the attorneys advocate the law, the judges interpret the evidence and arguments and then decide whether or not we applied the law correctly.

"Dane, my thin skinned friend,..." Is this really called for? Perhaps you are just joshing and I missed the "lol" or joshing emoticon....

As far as checking the citation, I did exactly as you suggest and I do recall the being taking to task on this subject by 826 who then proceeded to quote chapter and verse from a section by the same source that related to the manner in which a deed is to be construed. The sections I quoted related to the CONTROL OF MONUMENTS.....

We are expected to know the law and to apply it, but this is an ENTIRELY DIFFERENT MATTER THAN SPECULATION ON HOW A COURT WOULD RULE. My opinion of a boundary location is an expert opiniion, but I have no expert standing to opine on the proper function of a court.

Evan, I do appreciate your thoughful, intelligent and educated responses.

Quote from above: "I don't recall seeing a court decision in this thread anywhere that dealt with this exact situation. "

See post #40:
O'Farrell v Harney, 51 Cal. 125 (1875)
This case has been included in all six editions of "Brown's Boundary Control and Legal Principles".

"The question is, where are the boundaries of the lot conveyed by Taylor to Moran? The map was intended as a representation of the survey actually made on the ground -- the position of the blocks and lots as indicated by the lines as run and the stakes driven at the corners. A map which, by reference to monuments established or by some other mode, refers to a survey, is presumed to correctly represent the survey as actually made; but if there is a discrepancy between the map and the survey, the survey must prevail, if the position of the points and lines established by the survey can be proved."

While the discrepancy in that case was "three feet and six inches" (or about half the difference in this instant case) the lot was only twenty-six feet and eight inches wide, considerably smaller than the parcels mentioned here.

The line immediately following the above quote may give some further direction:
"It must be so held, upon the principle that the monuments, whether natural or artificial, must prevail over the courses and distances."

Shouldn't the most likely and the most defensible solution be the the same in thing? In this case it is most likely a blundered monument yet this is not the most defensible?

Propst,
The map was created before the survey. Hence the reason for the rule doesn't exist.

I'm not sure where that quote is from, but it seems appropriate given the previous comment.

Per post #30 (by the thread's originator):
"This particular county requires all parcel corners to be monumented and this tagged pipe is shown on the recorded map."

The map DID NOT precede the survey.

I pointed out earlier that had the monumentation been deferred, we would be having an entirely different discussion.

But that is NOT the case here. I'm talking about the facts as they have been presented.

(circa 1970-80) and also to Daniel Moynihan who said the same thing in the 90's regarding opinions and facts.

"Fence cutting is a crime. Boundary disputes abound in Winona County. Old survey lines are being replaced by Global Positioning Satellite survey lines."

from Winona Daily New.com
Rollingstone Minn

http://www.winonadailynews.com/news/opi ... 03286.html

THIS is where we are headed....

We can’t even agree as to what comes first, survey or Map!

The egg, of course.

Map first or survey first, generally doesn't much matter. The consideration is that the survey was performed in conjunction with the map. The map is still considered to be a representation or plan of the actual survey, and the actual survey will most often control, for all the reasons I've previously stated.

A map is sometimes referred to as a plan of the survey. If the map preceded the field survey, then that characterization makes a lot of sense. But as we all know, as with a project for fixed works (aside: Are boundaries and monuments "fixed works"? - perhaps a topic for a separate discussion), the fixed works don't always get built strictly according to plan. sometimes that is due to a builder's error, and sometimes it is due to an adjustment in the field to fit certain on site conditions. Thus the purpose of As-Builts, or Amended Maps. As with As-Builts, Amended Maps sometimes fall by the wayside because the contractor, developer, surveyor, or sometimes the agency, has not put a high enough priority on getting it done, and it eventually gets forgotten.

In the case of the constructed fixed work, it is where it is, regardless of where the approved plan said it was supposed to be. If you were to argue that even though you located a building at 8' from a property line, since the plan from 1995 showed that it was supposed to have been built at 10', that it is really at 10' or needs to now be moved to 10', you're not likely to get anyone to lend you much credibility on the matter. It is where it is and we'll deal with the consequences of that when and if we ever engage in a project where it will matter. That would be the reaction of the property owner as well as the local agency.

How is a boundary different?

The fact that monuments may have been set after filing the map (that would need to be verified) would be one more piece of the entire body of evidence to weigh. Along with several other pieces of evidence, one may find the preponderance required to overcome the controlling monument presumption.

There would probably not be one piece of evidence that would serve as a silver bullet to prove the monument as not controlling, but a set of several facts viewed together. The key there being that they must be facts, not assumptions or value judgments of the previous surveyor.