California Surveyors Forums

After re-evaluation Section 8762(b)(5)

"The points or lines set during the performance of a field survey of any parcel described in any deed or other instrument of title recorded in the county recorder's office are not shown on any subdivision map, official map, or record of survey."

"Lot 18 and the northwestern 4 feet of lot 17, and southeastern 13 feet of lots 19, 20, and 21 . . . "

Now doesn't that deed describe a lot shown on a filed record map? In my interpretation, it does. I also interpret Section 8762(b)(5) to be of the intent to require a record of survey on a deed description by metes and bounds where no record map is involved for the lot.

of the northwestern 4 feet of Lot 17 and the southeastern line of the southeastern 13 feet of Lots 18, 19, 20 --- Do these lines show up on a map described in this section of the PLSA?

If it was my survey, those are the lines I am staking-monumenting-. Granted I have to find the LOT LINES on the subdivision map to do this, but the lines that I am staking do not show up on a map. That is how I interpret it.

And I would think that if the intent of this section was only in respect to metes and bounds descriptions, I would have thought that specific term-metes and bounds-would have been used. I think that terminology was around when this law was written. I think that surveyors had a part in creating the language used.

But I am not so much concerned with how I would interpret something. It is how would the AG or BORPELS or the CS or whoever else can mess my world interpret it.

But like I said earlier, If nothing comes up because of CR instead of a RS, great.

No matter what, the whole block should be established first, then you can break down the lots therefrom.

I am curious how this corner record shows the existing monuments which are existing around the block.

I am a little confused. Are you not establishing a line which does not exist on a subdivision map? I have read that the line is described in a deed and that it is Lot 1 together with the North 12' of Lot 2 kind of a thing and to me that requires a record of survey.

Also, by explaining to the client how far the neighbor's planter and irrigation system lie within the client's property, aren't you establishing that same line which is only described in a deed?

Maybe I am just having a hard time following what exactly is going on, even after reading through this 3 times.

I acknowledge that the ROS is clearly required as per the LSA, but can we also acknowledge it does the public zero benefit if something as basic as some parallel offset to an originally monumented (let's presume) lot line can be accomplished from a CR?

It is really silly for something like this to trigger an ROS, and I wish at the time something like this could have been clarified.

I think a RS is required in this case.
And many Counties are charging a arm and leg to check them when in reality their review is cursory, its a Record of Survey not a PM or Tract Map.

I may have missed it, is there a 13ft o/s chisel mark at the back line also?

I always stated verbably and in the contract that the survey could reveal something that would trigger a RS being required and extra fees would be charged, esp in Riverside County.

the CS here in the OC pitched the idea of the Corner Record law to the local chapter, he said "Listen guys, all we need/want to be shown on this thing is four lines and four circles. That's it. We just want to know who has been out there and did a lot survey." This is '82 or somewhere around there. There was a push to get more survey records into the system. "THEY" said it would be better for everyone and this was one way to do it.

And if one looks at the CR's here in the OC between 85 and 90, they showed more than that, but not a whole lot more. They showed bearings and distances that were not record and measured, distances that had two or three or 4 tenths here or there, no big deal in a 600 foot block.

In fact some just showed record and measured down a line, didn't go around the block,just turned right angles and went record. And everything is good in the world.

We were not supposed to need a lot of room for these surveys. It is 4 lines and a few circles. That's all more or less. No survey the world stuff. Only have a 8 1/2 x 11 to work with. And no surveys of lines that were not shown on a map somewhere, and this is not a AP map either.

At least we knew someone was out there. That was the idea/thought as it was explained to me almost 30 years ago.

Prior to 1982 or 83 RS's were not filed for "simple" lot surveys. There really was no vehicle for recording these surveys except for the RS unless the surveyor wanted to draw one up and have it filed. And these lot surveys were not all record and measured crap either. There was prorating. Non record monuments found and used. And after all was said and done it fit the fence not too badly. And everything was good in the world.

Granted the survey that started this whole thread isn't necessarily your "simple" survey although it seems as though some perceive it to be, and maybe it is.

I am sure that I am off topic. I hope that survey gets filed as inexpensive as possible and I think that I will just leave it at that. I've talked way too long as it is. I just hope nothing else comes of this.

"The bricks in the planter were obviously part of the improvements done by the adjoining owner but were several feet onto my clients property and ignored the position of the existing wooden fence along the common sideline."

The existence of an encroachment would have me filing an RS.

Assuming this would qualify as a CR I do not see the relevance of an encroachment when considering ROS v. CR, unless you are talking about fitting encroachment details onto a map and need more room.

The existence of an encroachment would have me showing more than what was appropriate for a CR to resolve my boundary, just to cover my a**!

To my surprise, though, BORPELS didn't adopt the ALJ ruling and nailed the surveyor anyway with a failure to file violation.

How does that work.
Is that like OJ and others where the criminal court finds them not guilty but the civil court takes their money.

"To my surprise, though, BORPELS didn't adopt the ALJ ruling and nailed the surveyor anyway with a failure to file violation."

So there was no document originally filed in the case you were involved with, is how I read this? That would make sense to me, that BPELS would go after a failure to file violation, if nothing was originally filed. If something was originally filed, then there possibly would have been no hearing.

The question in my thread has changed to what to file, and from your case a corner record is clearly a valid avenue. A prior court case will support the reasoning to file a corner record to satisfy the filing pertaining this thread.

The OJ or Kangaroo Court reference makes no sense to me.

I don't see Steven's case as validating a CR as a valid document (for that case). It appears to me that they were arguing whether or not §8762(b)(5) applied to a line described just as those in this case are.

BPELS apparently felt that it did apply (and found the reasoning to make it stick). By my reading, that clearly says that BPELS DOES NOT see a CR as a proper map to document the establishment (monumenting) of such a line. They are clearly of the opinion that §8762(b)(5) is applicable and therefore a RS is required.

Don is the Land Surveyor in this situation and is the only party that is aware of all the facts pertaining to his survey. That is why I asked the questions that I did and made suggestions for him to consider, because how he proceeds is his decision. We, including Keith and the CS, are only recipients' of whatever information that is provided to us. If any of us knew the entire story, our viewpoints and opinions may change.

That being said and based soley on the information provided, I would have to first look at how 8762(b)(4) & (5) applies. It appears that at least two lines described in the deed could meet the criteria for (b)(4). "Ascertainable" describes a situation that is definitive and clear. There can be no doubt or disagreement on anyone's part as to what the deed is describing. Which also means there can be no doubt as to the location of the underlying subdivision lines. It is also important to understand that representing a deed line (line not of record) on the ground, on paper or verbally to the property owners meets the criteria for (4). Based on what Don stated, it appears that his client is very clear on the location of the common property line (deed line) as Don as established. Clear enough in fact to proceed with "removing" the neighbors improvements.

To fully determine if (4) applies, one must also look at 8765 to see if any exemptions to a record of survey applies. 8765(d) describes filing a corner record for any survey that "...is a retracement of lines shown on a...map,..." Nope that doesn't apply because this survey is a retracement of lines shown on a map AND of lines described in a deed.

In regards to (5), the entire argument of "witness points" doesn't hold water and is based on incorrectly-applied logic.

"While establishing the Block I found a bunch of old chisel crosses in the walk at fence-lines, including one near my clients east boundary. The Block was subdivided by map, but when houses were built they enlarged the deeded ownership to 52' lots instead of the 35' lots created by map, so everybody has portion of 2, 3 or more lots."

It would be reasonable to expect that since the "deed ownership" differed from the subdivision map when the houses were built, that the fences were built at that time (or after) also. Which means, by that statement above, that the "...bunch of old chisel crosses in the walk at fence-lines..." were reflecting the deeds, not necessarily the subdivision lot lines. Which is substantiated by the further statement of "...The chisel crosses fit the deeded ownership of the block very well..." Now we have field evidence (of an unknown source) that has been accepted and determined by this survey to not be of record (as record is described in 8762).

"...and when setting the the corner near the planter, rose bushes etc. we found another very faint chisel cross that fit record, and accepted it. As we had looked for that corner at least 4 times without luck (I guess others had looked for it too!), we cleaned it out with a chisel and called it good."

Based on the information provided, we all know that the "corner near the planter" is on the "deed line" separating the property owners, not on one of the original subdivision corners. (The same may be said for any of the found chisel crosses) So, how did this "very faint chisel cross" fit record? Record what? Deed?

"The last thing we told our client was that "yes this is your boundary but you should write a letter to the adjoiner telling her that the Property had been surveyed and that her bricks, Rose Bushes and irrigation were on your property and that she should remove them"."

Now, it's obvious that the "deed line" was represented to the property owner, by verbal discussion and pointing out the "rehabilitated faint chisel cross", as the definitive location of the common property line. As further substantiated by "Yes it was on a deed line, the Street Right of Way and the found chisel cross was called a 13 foot offset to the original corner. The Client got a map."

It would be reasonable to expect that when the client is questioned regarding the source of that "faint chisel cross", the answer will probably lead back to the licensee who performed this survey who "definitively" informed the client of the nature of that "marker". It may also be reasonable to expect that the map that the client received doesn't exactly represent the same thing that was supplied to the CS. Otherwise, why would the client care where the "old" lot lines were? Again based on the information provided, the location of the deed line was represented to the property owner(s) in at least one manner, if not more than one, plain and simple.

Note: An argument could be made that since this survey struggled to find this monument and possibly not found by other surveyors, that the "rehabilitiated" cross should have been tagged in compliance with 8772 or at the very least, 8773.3.

Now on the CS's role...as I mentioned in the opening, it is Don's decision on how he proceeds, not the CS's. Upon receipt of the Corner Record submitted to the County, if the CR depicts what we know, and the CS is REQUIRED to review the submittal in compliance with 8773.2(a) and 8765, then it would be reasonable to expect that the submitting land surveyor would be notified that in the CS's opinion, a RS is required.

But also as I mentioned, the CS is not the individual performing the survey and may not have all the information available to make that decision. Which is evident by the statement "...I had sent "Corner Records" to the county for comment and dropped off the final Corner Records yesterday showing "found offset witness corners" and gave dimensions from the chisel crosses to the original Subdivision lot corners."

Note: While a CS is in the position of "quasi-enforcement" as they have elected to take on consumer protection duties that are in addition to the responsibilities of a licensed land surveyor, these individuals are still bound by the same compliance in carrying out their duties.

Some closing comments...

In his 01-01-2010, 09:59 PM post, Ken Wilson presents some very good observations.

Referencing his 01-01-2010, 06:26 PM post, Keith states "...I also interpret Section 8762(b)(5) to be of the intent to require a record of survey on a deed description by metes and bounds where no record map is involved for the lot." Keith, if I survey a 5 acre parcel in your county that is described by aliquot part (example: W1/2, NE1/4, SW1/4, NE1/4 of Sec X...) and the section has never been broken down from the original survey, I can file a CR?

In his 12-31-2009, 02:13 PM post, Don pretty much summed up this entire discussion with "The County Surveyor will accept corner records that show the setting of “witness cornersâ€￾ along either the street right of way or the record lot lines of the original parent tract map. However, no reference can be shown on a corner record to the deed lines. Ties to the deed line trigger the mandatory filing of a Record of Survey."

Steve, you may want to check out Government Code 11400 and 11500 (especially 11517) before you approach the AG, as I am of the understanding that these statutes mandate the procedures.

You can also inquire with Nancy on this and she can discuss this in much more clarity than I can.

Ric

PS: Yes, the ALJ provides the Board with a proposed decision for consideration. Doesn't mean that the Board always rejects all or any portion of the ALJ's proposal.

Great reply Ric, thanks!

As for your question pertaining filing a CR for aliquot parts as I eluded to, you even said the section had never been broken down. Therefore, how could the 5 acre parcel be "ascertainable" from the previous map, and clearly shown on a corner record?

This has turned out to be a great thread with lots to think about for all of us, and again, I want to thank Don for stepping up as the unkown surveyor who performend the survey. From what I have learned, I can not see Don as being in the wrong and I also agree from what I know at this time.

There is an incredible wealth of knowledge displayed in this thread!

Ric great post! I have to agree with you and others (Bruce, Evan, Ken, etc) that have posted similar logic.

I would like to argue the other side of “tagging” the found scribed ‘x’ logic.

“Note: An argument could be made that since this survey struggled to find this monument and possibly not found by other surveyors, that the "rehabilitated" cross should have been tagged in compliance with 8772 or at the very least, 8773.3.”

8772 refers to monuments that are SET. 8773.3 does not say anything about tagging. The charge is to reconstruct or rehabilitate the monument so that it remains reasonably permanent and easily locatable in the future.

I understand this to say, deepen the scribed ‘x’ etchings if necessary and adding a description on the Corner Record stating “Found scribed ‘x’ in 1’x1’ concrete buried 6” below grade” (with appropriate dimensions to other witness monuments).

Given the evidence presented, Don accepted two found corners as being the deed corners of a line not shown on any subdivision map, official map, or record of survey.

Also, are the underlying lot lines perpendicular to each other? If not, 15’ measured along the lot line is different than the “westerly 15 feet of lot…”.

The logic is pretty simple from what Ric says to satisfy Section 8772, when refering to tagging the found chiseled crosses (no record). True the point was not "SET" as described in 8772, but the found points were accepted as the original intent for the lines, and since Don used them, they become his points of record.

We have debated this issue before on this forum, I'll look for it, since I was involved, but I recomend simply stating on a corner record or record of survey, "ACCEPTED FOUND CHISELED CROSS IN SIDEWALK, SET NAIL AND 3/4" BRASS TAG PLSXXXX".

8762(b)(1) triggers because Don’s field survey discloses "material evidence" of a line accepted as representing a boundary line described in a deed which line is not shown on a subdivision map, official map, or record of survey.

8762(b)(2) does not apply

8762(b)(3) does not apply

8762(b)(4) might apply depending on your definition of “ascertainable”

8762(b)(5) does not apply because no points or lines were set.

8765 starts, “A record of survey is not required of any survey:”

Does this mean that unless you meet one of these exemptions you have to file a Record of Survey? If so, there are more triggers for a Record of Survey than the 5 listed under 8762(b)!

We have a long standing AG Opinion regarding a requirement to tag found and accepted monuments, record or not...not required.

Which is why I hedged a little on that comment before. Rehabilitating a monument can cover a wide spectrum of actions. I just think if you were going to go to the trouble of perpetuating it and representing it as THE corner, what harm does it do to set your tag. The benefit should outweigh the minimal time to set it.

Here is a previous thread that I actually started a couple years ago. If you want to comment on that thread, I have topped it so you all can see. Lets not get the various threads hijacked, so please post appropriately if you have comments.

http://www.californiasurveyors.org/clsa ... php?t=2017

near as I can tell the only corners or points that were found were the chisled x's in the walk that fit the fences. I still don't know if anything was found or set along the line in question or at the other end of the deed line.

Now I guess if Don found the line by virtue of finding the rear corner or something along this line, He didn't set the line.

But if he didn't find anything along that line, the deed line that is, did he "set the line" using what? Something parallel to the lot line?

Here's an attempt to upload a legal opinion from the Dept of Consumer Affairs Legal branch with regard to tagging found and accepted untagged monuments.

Dave, if this works, email what you are trying to attach to me and I'll put it up.

Ric,
Can you refresh my memory regarding what the AG Opinions are/were and why the website doesn't post them anymore? Also, you mentioned a specific opinion regarding the thread topic, can you post that?

*edit* Oops I posted this when I was at the bottom of Page 2 so it doesn't make a lot of sense in the light of being at the bottom of Page 3. I meant to respond to Evan's post at the bottom of page 2.

I think Evan is exactly right. A Record of Survey is required if it was represented to the client the found point marks the common boundary.

The Surveyor, not the County, determines when a Record of Survey is required by the Statute. The County Surveyor being willing to accept a Corner Record (because the CR is prepared in such a way so as to not reveal any opinion on the Common Boundary) does not absolve the Surveyor from filing a Record of Survey when the County Surveyor does not have written notice that the client was informed the reference point is actually a boundary corner.

I would advise my client to not write letters, not consult attorneys, not have Attorneys write letters; I would advise my client to get a bottle of chardonay and maybe some rib-eye steaks and bring them and the BBQ grill next door where they can discuss their mutual problem in a civil and friendly manner.