California Surveyors Forums

That's also what I understood Bruce.

Propst and Evan, here's your chance to clear up any misunderstandings with the answering of a simple question. In your professional opinion and given the situation at hand, how far off does the monument need to be to make it "absurd" to hold it?

Ben,
From the original post, "It is within 0.3' of the north line of the map, but 7.5' too far West." That puts the monument either within the subdivision short of the boundary or if the monument is outside the PM boundary we have a closing corner situation. If it is outside the boundary then how can it be held as the lot corner as suggested in earlier posts? Magnitude of the apparent error has to be taken into consideration, otherwise any “originalâ€￾ monument must be held regardless of the “absurdityâ€￾ of its location.

I understand the theory of holding the original monument and the ramifications of not doing so. However, ascribing to black or white theory without consideration of possible mitigating circumstances causes at leat as many problems as it may solve.

Mike Ford, PLS

Sorry Ben, I meant Bruce in my last post.

Mike Ford, PLS

Dane, expressing disagreement and explaining why I disagree and believe your offered examples to be off base and out of context is neither name calling nor being nasty. If you offer reasoning based upon examples with little resemblance to the case under discussion, I will go the next step beyond the case soundbite and actually analyze the case behind the soundbite. If you believe that to be nasty, or to point out that grabbing a short out of context quote is a mistake commonly made by a surveyor lacking experience in applying case law as nasty and name calling, then you will often find me to be such. That speaks to your perception rather than to my intent.

I have suggested that you should be more careful in your analysis to avoid offering inapplicable cites. I have not disparaged you personally, I have not slandered you professionally, and I will not do so. You state that you are just trying to further discussion. If so, good, you've accomplished that and I think we've had some very good discussion. You also suggest that you're not really advocating a position. I doubt that anyone could actually discern that from the discussion you've presented. You are defending your opinion based upon your belief of how the rules of construction should be adhered to or disregarded. That's fine on a discussion board. On a real project, you need to be very careful as to whether your decisions are based upon actual supporting law or based upon your personal view of an equittable outcome.

You engage in spirited debate, at times furthering the "spirited" part, then cry foul when someone counters your points with a deeper analysis than you offer. Rather than an apology, I offer the advice that if you are going to glean all of your authority from one source, that you put Skelton back on the shelf and pick up a copy of Brown, Clark, or something which may have case cites which might be more easily located in order to be analyzed.

The quote you offer from Skelton, you appear to suppose it to be justification for departing from the well established and in CA's case, codified rules of construction. In rality, it is an admonision to the professional to use careful consideration for instances when those rules should be adhered to as well as when they should be departed from. The larger theme of the book, like later such texts, is that the rules have been developed on well established principles and should not be departed from easily.

The rules of construction are not a set of rules to blindly follow when one does not wish to discern intent, they were developed as the most reliable order TO DISCERN INTENT. When you decide to depart from them in order to honor supposed intent, you should have some very convincing evidence which is more than just a reversal of the order of a portion of the rules.

If you are going to decide that the map controls over this monument, you are reversing the order of the well established rule that the court must follow, you need to present convincing evidence why that order should be reversed. Pointing to the surveyors tool and practice which is more precise than those of yesteryear, or the administrative process of the local agency are all very unlikely to impress the court. Listing cases of questionable applicability and without any analysis certainly won't.

The Rules of Construction are presumptive in nature. That means that the courts have said in essence that these are not hard and fast or inflexible rules, but in the absence of convincing evidence to the contrary, you will hold this order to be true.

Of the cases you've offered, only Duane appears to have merits and aspects relevant to discussion here. I can see it offering support for rejection of the mon in this case. My opinion, certainly open to debate, is that the court decided upon factors which differ somewhat from those present in Steve's survey. But their stated opinions do not make that abundantly clear. They do acknowledge the rare nature of the case as why they decided map over monuments. Is it a rare case that monuments and the map disagree in MS? I don't know, perhaps. But that does not present such a rare scenario in CA (except in "modern" subdivisions, for which the courts thus far have made no distinction). That case offers a good basis for discussion in context with the facts of Steve's survey.

Does 7.5' constitute an absurd result? When looking at the measurments, math, and expected errors, and assuming that the original subdivider intended for the surveyor to place it at the mapped location, then yes, we, as expert measurers (a legitimate part of our role, supporting other roles for which we are licenced) find its location to be absurd. But that is not the standard held by the courts.

Is its location such that the landowners would find it obviously to be in the wrong location? "Hey, the map says both parcels are supposed to be 2.3 acres and my north line 330' long, but you're telling me that my north line is only 100' long, that my neighbor has 3.4 acres, I have only 1.2 and the line runs across my back porch? That's absurd!"

In your opinion, 7.5' represents an absurd result. In mine, with no other reason but the exceeding of expected error, it does not. Had there been some feature mapped relative to the line between A & B, and the existing location of the iron did not comport with that location, that would be something that would tip the balance the other way for me.



By listing case after case without offering a whit of analysis, a score keeping method is exactly what you've offered. To state that you have not engaged in that is disinegenuous.

I did not call you unprofessional. Don't put words in my mouth (or on my keyboard). Attempting to apply irrelevant cases in a forum discussion invites a counterview based upon some analysis. To offer those cases in support of an argument is either argumentative or neophyte. Either is fine in discussion. Argumentative presentation, that is in support of a position (which one may support or may present for the sake of discussion), offers each side the opportunity to research a topic and hone their persuasive presentations. A neophyte is defined as "a beginner or novice at something". To characterize one's demonstrated analysis as such is a legitimate observation if that analysis is so lacking as to not compare facts and/or underlying principles to the case at hand. You can look at it as a learnig opportunity or you can look at it as insult. When such comments were presented to me as a young surveyor, I was pissed, but I also considered that the one offering the comments was someone who had way more experience than I and in the past had often offered that experience to help me learn and further my own knowledge.

Don't let your pride and sensitivity get in the way of learning. Again, your error in perception does not translate to my intent. No apologies.

Ben,

Your observation of online discussion vs face to face is often true. It seems that once a month or more Dane takes offense to my commentary, seeing it as some unintended personal affront. Yet we have spoken on the phone and face to face on many occasions and are able to have similar discussions without either party taking offense. Go figger.

As to your question posed to Mr. Propst and me in post #343, I suggest that that is a question already asked and answered (probably several times). Go back to post #334 and read it carefully. You will find the answer to your question there.

Bruce,

Yes, that is the case. Steve restates it in post #337. 7.5' from mapped position, about 0.3' off exterior line.

Mr. Ford,

Holding the monument in this case, at least for me, is not "black and white theory". I have described several additional pieces of evidence when taken together with a discrepancy between map and monument, would be convincing to reject it. Some of those pieces of evidence may exist, but were either not found or not presented.

Deciding whether or not to reject based only upon discrepancy with the map and a mathematical estimation of expected error is a black and white approach which serves our sensibilities as experts of measurement and error analysis, and our affinity for order in those areas well, but may not comport with the well established laws which our measurements and error analysis must often yield to.

Mathematics do come into play in my analysis though. 0.3' is within the expected extent of error we may find in such a survey, so this monument is essentially on the exterior line. There are circumstances where a junior monument can control a senior line, and there are far more where it cannot (use similar to a closing corner). We have not addressed this monument's effect, if any on the exterior line.


New parcel? Not at all. Only two parcels were created, and only one line between them. The only question is where that line actually exists.


Steven offers two theories as to how or the iron came to be where it is by mistake. These are two very viable and likely theories, but I submit that, and have previously suggested alternate theories other than the presupposed notion that it must be blundered (it may very well be, but there must be convincing evidence to that fact. So far, that evidence has not been offered). There may have been an intended and approved change to the lot configuration and the final map inadvertently not amended to reflect that change. The monument may have been intntionally set as an on line offset to the true corner because of the pre-existing shed (as I recall, Steven had indication that it may have been pre-existing but nothing conclusive on that point). If I were to give it more thought, I could probably come up with one or two more. These are possibilities which, lacking conclusive evidence to the contrary, cannot be discounted.

I'm not sure how considering a wider range of possibilities, and insisting that something more than supposition and math be used to overcome well established rules of construction is black and white thinking?

No one is saying to hold the monument based soley on its exceedence of an expected error. I think we could test Evan's theory that the monument was placed there on purpose (and the map wasn't updated) by asking the agency if they concur. I think they would like to accept or reject this proposed shift of the lot line and they certainly have that right.

Ben Lund wrote:No one is saying to hold the monument based soley on its exceedence of an expected error. I think we could test Evan's theory that the monument was placed there on purpose (and the map wasn't updated) by asking the agency if they concur. I think they would like to accept or reject this proposed shift of the lot line and they certainly have that right.

I would suggest one step farther. If you simply ask someone at the agency, they will likely only look at the filed map, take note of where the iron was found, and opine based only on those two bits of info. That would add nothing to what you already know.

Ask to see the project file. That should include any preliminary submittals and correspondence. The contents of the file could shed enough light on the situation to make a call we could all be comfortable with.

But I said this early on in the thread as well.

If we can gain agreement on the reality that there is nothing absolute in anything involving the law then we've come along way.

Boundary Surveying definitely involves the law.

Generally the presumption is the original monument will prevail; a presumption shifts the burden of proof. The monument controls unless it can be proved that it does not.

Does this have anything to do with this thread?

66441. Certificate
A statement by the engineer or surveyor responsible for the survey and final map is required. His or her statement shall give the date of the survey, state that the survey and final map were made by him or her or under his or her direction, and that the survey is true and complete as shown.

The statement shall also state that all the monuments are of the character and occupy the positions indicated, or that they will be set in those positions on or before a specified later date. The statement shall also state that the monuments are, or will be, sufficient to enable the survey to be retraced.

66442. Certification by city engineer/county surveyor
(a) If a subdivision for which a final map is required lies within an unincorporated area, a certificate or statement by the county surveyor is required. If a subdivision lies within a city, a certificate or statement by the city engineer or city surveyor is required. The appropriate official shall sign, date, and, below or immediately adjacent to the signature, indicate his or her registration or license number with expiration date and the stamp of his or her seal, state that:

(1) He or she has examined the map.
(2) The subdivision as shown is substantially the same as it appeared on the tentative map, and any approved alterations thereof.
(3) All provisions of this chapter and of any local ordinances applicable at the time of approval of the tentative map have been complied with.
(4) He or she is satisfied that the map is technically correct

I have not seen any cases that were decided where the rights of the landowner to subdivide their property in a configuration at odds with the subdivision map act. Most if not all the controlling precendent in this state was decided prior to the subdivision map act. I am not saying that the subdivision map act trumps land owner's rights under the constitution.

I am saying that where a subdivision was created under the provisions of the subdivision map act, a court may rule differently than in the past when and the owners attempt to create a subdivision at odds with the approved subdivision and those owners have not done so via some recognized and approved method to alter a subdivision.

I am wondering outloud about this and I am not stating a firm position. I do wonder if an 1875 Ca. supreme court case ,holding monuments over the map, is applicable to this case, when the 1875 map was created in a time when there was no subdivision map act.

Futher in Brown, check out his discussion on measurement error and measurement evidence. There is a suggestion on the reasonable application of measurement evidence. How far- is to far out of position, before a monument is to be rejected? Brown suggests "reason" and that there is no specific criteria for acceptance or rejection based upon measurement evidence.

I have learned a lot from the previous threads. I found some legal precedence from a book "The Law of Real Property and Boundaries", by Chuck Karayan,that may help with this given situation. The text below is taken from the book.
Monuments:
1 a. Original Monuments have no error of position if:
1)They are called for in the written description, either directly or impliedly,and..2) They are clearly indentifiable as those called for...3) They are undisturbed.
g. Passing calls (monuments mentioned as on line but not the corners are weak evidence.
The reason why monuments as a general thing in the determination of boundaries , control course and distance is that they are less liable to mistakes, but the rule ceases with the reason for it. If they are inconsistent with the call for other monuments and it appears from all other particulars that they were inadvertently inserted, the reason for retaining them no longer exist, and they will be rejected as false and repugnant. Carter vs Bof A, 69 CA App2 112, 158 P2 423.
Monuments of Record:
2 a. The plat (deed) is only a guide, an aid in discovering the monuments shown (called). Wheeler vs. Benjamin 136 Ca 51, 68 p 313.
b. Once the property rights of a grantee have invested reliance upon a survey and monument, a subsequent survey cannot divest those rights by delineating the correct line. Williams vs Barnett 135 Ca App2 607, 287 P2 789.
c. Measured values (bearing/distance) to a found monument are extrinsic evidence as to the identity of the monument; and when the measured values and record data are not in substantial agreement with one another, the monument must be proven in some other manner before its position can be accepted. Blake vs Doherty, 18 US 359.

I know this doesn't make matters any clearer. I was taught to gather all the evidence and apply the law. It seems Steve Gardner did his survey right and resolved it professionally.

By your reasoning, Ralph, landowners can not rely on surveyed and monumented positions. So, why set monuments at all? Any measurement is prone not only to random and systematic errors, but also to occasional blunders. That being the case, no monument can be seen as reliable to the landowner and any improvement ever placed near a monumented property line is done so at the landowners risk.

Fortunately, the courts take a more practical view of monumented boundaries than many surveyors do. Boundaries cannot be subject to change each time a different surveyor measures them. At some point they must be stable regardless of the errors of the original survey. That very principle is a basic legal concept and is stated in several decisions throughout history.

Local ordinances and minimum lot sizes may sometimes be considered at the superior court level, but I've never seen it seriously considered at the appellate or higher level. They simply don't matter when dealing with established boundaries.

"That being the case, no monument can be seen as reliable to the landowner and any improvement ever placed near a monumented property line is done so at the landowners risk."

Evan, it sounds like you’re saying that the landowner has the right to find two pipes in the ground, presume that is the property line, and build a fence.

Ben Lund wrote:"That being the case, no monument can be seen as reliable to the landowner and any improvement ever placed near a monumented property line is done so at the landowners risk."

Evan, it sounds like you’re saying that the landowner has the right to find two pipes in the ground, presume that is the property line, and build a fence.

It sounds more to me like he's saying that at some point, the monuments need to be considered the controlling evidence if undisturbed.

Regardless of modern methods regarding mapping prior to setting corners, it's just a reason to continue to make sure that you and your subordinates are setting corners properly, and storing/recording (yes, on paper!) check shots.

The trick to me does come when you're arguing the legal rights of a homeowner to subdivide. Given a situation where the a lot was mapped to be 100.00' X 100.00', and an attempt is made to subdivide where the minimum lot size is 50.00' X 100.00', that landowner could certainly argue that the intent of the subdivision of that lot was to grant a 100.00' wide lot.

I'm not sure there's going to be a situation in which we can state that the map always controls or the monument always controls. It comes back, every time, to intent.

"People have a reasonable expectation to rely on a surveyor's monument as defining their property corner." I certainly agree with this but at the same time the home owner (or anyone for that matter) doing this is taking some risk.

We don’t live in a world that strictly defines property corners by bearings, distances, or coordinates. If every property corner could be established by these means then you would not need surveyors at all, only technicians.

“Just find the survey monuments at the corner of your property and make sure your fence is within those monuments.” How valuable is this statement given to a homeowner who wants to know where his property corners are? Well, I wouldn’t charge anything for that statement (and that’s about how much it is worth).

There are many examples when the monuments would not represent the location of the corners: lot line adjustment, lot by deed, monument set as offset, disturbed monument, and monument set in gross error such that holding the monument would be absurd. Not to mention the fact that the “monument” might not be a monument at all.

So the logic that monuments are set so that owners can (without professional services) determine their own boundary lines does not carry perfect weight.

Maybe in the future we will be required to publish NAD83 coordinates on every monument we set. Maybe in the future agencies will require the coordinates established before approval of subdivision. Maybe in the future the home owner will use this public information and his GPS wrist watch to locate exactly where his corner is.

Ben,

I have yet to encounter any legal concept in boundary law that "carries perfect weight".

You list reasons why one (surveyor or land owner) should not accept any ol chunk of metal as marking the property corners.

Of that list, we probably agree on more than we disagree, but lets look at those items...

LLA: This is an item of record which should be found in initial research. It does not mean that the monument is incorrect, only that it marks a point which is no longer a point on the boundary. Since it is the landowner that causes a LLA to occur, hopefully the landowner will be aware that the monument marks the old boundary location. Any subsequent landowners should have been made aware of the LLA and its relationship to previously mapped lines at the time of purchase. In any case, no one could make the argument that the mon was ever intended to mark the existent boundary.

Lot by Deed: I need you to provide some clarification on this one. What effect is there upon the monuments if the property is or is not shown on a subdivision map?

Offset: This will be either a matter of public record or should be able to be found in the surveyor's private notes (assuming they are available). If it is shown that the monument was aset as an offset point, then it never was the true point and no amount of arguing makes it so. There may be some rare case where reliance on it as the true point may be a valid basis for AP, but even reliance will not ever make it the true point.

Disturbed Monument: This one is obvious, we are probably all in agreement on it, and requires no further discussion.

Monument Set in Gross Error: In principle, I'm sure that you will find near unanimity on this. In practice, one needs to define what constitutes gross error. If you look at it from a surveyor's perspective as an expert measurer (which we all should be in addition to our more professional roles), you will come to very different conclusions about gross error than you would if you were a landowner trying to find his corners with a hand compass and rough pacing.

The expert measurer may see anything that cannot be explained by systematic or random errors in surveying as gross error. But that's not how the law sees it. Would a reasonable landowner, upon visible inspection of the corners be able to determine that one is obviously set in error? It is not a standard readily defined by numbers and relative accuracies. It may depend upon what else is mapped nearby. Does it appear to be in the same general relationship with topographic or improved features on the map? Is there supposed to be other monuments close by and does it appear to be in about the correct relationship with those? Is it several hundred feet from other corners and does the map lack other features by which to visually judge its position?

Depending upon the size of the property and the other features shown on the map (or mentioned in a description), gross error may be as little as a couple feet, or it may be several thousand. Each case is unique.

Look at such monuments by asking yourself "should the landowner have been able to tell this is in the wrong spot without my help?" and "should I have been able to tell this was in the wrong spot prior to measuring it?" If the answer to either of those is "no", then you may be looking at a monument placed very poorly, but are probably not looking a monument set in gross error, legally speaking.

Not a monument at all: Then it was never intended to mark a corner. We agree on this one.

“So the logic that monuments are set so that owners can (without professional services) determine their own boundary lines does not carry perfect weight.” I’m glad you agree this logic is not perfect and I would go farther and say this logic can get you into trouble for the reasons I outlined and some more discussion follows:

LLA: “Since it is the landowner that causes a LLA to occur, hopefully the landowner will be aware that the monument marks the old boundary location.” Evan, your logic here is most landowners know there was a LLA done? I think the only safe thing to say is most landowners know where the fence is and that’s about it.

Lets say you are talking to a guy on the phone that is telling you he owns Lot 1, he has the map, and has identified the monument set per the map. You say, “Great, that’s all you need to do” and yet there is a LLA that you and he don’t know about that moved PL 2’. How would you or he know that without the proper title research. Steve said it himself that if he would have stumbled across the monument that he would have flagged it and called it the corner because there is no need to verify its location. I’m arguing this practice is taking on some risk. Is the risk high enough to get the gun out and shoot some monuments? I guess that would depend on the case.

Lot by Deed Clarification: You own the East 5’ of Lot 1 and the Westerly 45’ of Lot 2. Hence the found monument (at the corner of Lot 1 and 2) is NOT your property corner and therefore the landowner using the mon is in error. Risk reward.

Offset: Yes the offset should show up in the public record and a retracing surveyor should identify this. However, you cannot expect the landowner to do this. And I have seen a number of maps that do not allow for the offset yet that is exactly what was set (even without a certificate of correction).

Disturbed Monument: I’m glad you agree but why do you agree? Because the mon is significantly in the wrong place and it looks disturbed? It looks disturbed but in the right place? Or is in the wrong place and who knows if it was disturbed?

Not a Monument at all: I’m glad you agree and a professional land surveyor has the skills, training, and experience to understand when the monument is not a monument. Can we honestly expect the landowner to make this call without any risk?

I would love to see a case where the mapped location was thrown out because the courts held the landowner has the right to use a compass and pacing to identify his property corner. Or a case where he found a pipe where he thought the corner ought to be, a surveyor found the actual monument, and the courts held the landowner’s found mon.

I agree with what you’ve said and I appreciate the discussion. I think the point has been made and we all agree that Mr. Landowner building a fence along two monuments is taking a certain amount of risk. The land surveyor profession should embrace the risk and liability for that is how we get paid.

Ben,

Monuments are set by surveyors to identify boundaries for landowners. Once set, the landowners should be able to rely on the surveyors monuments as that identification. That is why we set monuments and that is why there are surveyors. If landowners cannot rely on our identification by way of monuments, there is no reason for surveying to exist as a profession.

LLA: Some may so carelessly answer a landowners question about a map and monument, I do not. If I am speaking with a landowner, say over the phone about their property, surveys, monuments, etc., I am busy pulling up both APMs and record maps of the property and in the immediate vicinity. I also ask them what their deed description says. I do find that most are aware if there were any LLAs, BLAs, or judgements w.r.t. the boundary. The more tentative a landowner sounds in knowledge of their property, the more vague my answers.

Deed Lot: In your example, there was an LLA (the real issue rather than it being a Deed parcel) and the monument does not mark the current boundary. Nothing is going to make it mark the corner. Again, most landowners are quite aware of any LLAs affecting their parcel and are unlikely to make this mistake.

Offset: If shown correctly on a properly recorded document, there is no reason a landowner should not be able to rely on an offset in the capacity it was inteded for, as a witness to the true corner. Many landowners may not be able to properly read a map, but most can. Those that don't should get someone who can to help them. That may be a surveyor. Again, the monument was set by a surveyor and shown on a map so that others, particularly the landowner can rely on it, not as some secret code that only other surveyors can decifer. If the surveyor did not properly map the monument, then he was remiss in his duty, and we end up with one of the possible scenarios of the PM in the OP.

Disturbed Monument: I wouldn't think I would have to explain this, but OK, here goes... This is pretty basic. A monument, undisturbed in its original position is presumed to control the boundary. If it is disturbed, it is no longer in the position that it was originally set in. Do I need to expand on this?

Not a monument: Again, a monument identified and described on a map will normally also have a cap, plug, or tag with the surveyor's name and/or LS# on it. Such an object is easily identified as a monument. Any surveyor suggesting to a landowner that they should be able to rely on an object which cannot be uniquely identified is offering bad and unprofessional advice. In the case of similar monuments in close proximity to each other, as are often found along back corners of residential subdivision lots, or where front corners are near a PC or PT of a curve, they are more difficult for a layperson to uniquely identify without other cues, such as mapped fence corners or other improvements.

If it is not a monument at all, the proverbial goat stake, it was never the corner and except by some legal device like AP and estoppel with other circumstances involved, it can never become the corner marker.

Compass and pacing: Ben, come on now, you do know better than to have interpreted that I was describing or advocating that landowners should survey their lands by this method, don't you? The surveyor has already identified the boundaries, the landowner is simply using this method to find the monuments the surveyor left behind to memorialize that identification. Some of the monuments may not be readily visible because they are in brush or what not. Any Boy Scout who has earned the orienteering merit badge, or anyone who knows how to use a compass and has found a couple of the monuments stands a pretty good chance of finding the rest with a compass and a rough idea of how long their pace is.

No, you will not find any case that holds a landowners pacing to be superior to a surveyor's measurements, but you will find many that hold original undisturbed monuments, even those set in error, to a surveyor's measurements. That's what we are talking about, the monument, not the measurement.

Mr. Landowner building a fence to existent, undisturbed, positively identified surveyor's monuments set to mark the boundary should be taking very minimal risk w.r.t. the fence location.



Steve,

When you say that you initially questioned the monument in question because of its distance from your search position, that is not the test of gross error. If you had walked the site prior to any measurement and seen this iron, would it have been apparent to you that it was not in its mapped location? If so, its position may be considered absurd with respect to the boundary. If not, it may be incorrect, and there may be other valid reasons for rejecting it, but gross error or an absurd result would not be one of them.

I've got my own few comments to place on each section of the discussion, though I find it's being summed up rather nicely by both sides. There are only a few degrees of separation between the opinions from where I sit.

LLA: I find a good number of landowners -aren't- aware if a LLA has ever been done, especially in the case of fairly recent purchases. They're likely to have been informed at some point, but it's often shocking when you start getting into the number of people who were just unaware that anything ever occurred. In fact, I just had someone come into the office on Monday with a question about this, who had a nicely photocopied map with her parcel highlighted that didn't reflect the LLA, even though it was recorded on the assessor's map and recorded in 1998.

As for the phone call, the idea of that phone conversation ever taking place like you describe concerns me. I know it's simply an example, but anyone is usually accessing the online map data that they have access to while talking to the homeowner, and including such phrases as "according to the records I'm looking over..." and "the only way to entirely verify the location of the boundary is to do a field survey". I can't fathom opening yourself up to liability like that in any situation, unless you were out there the day before retracing that line for the adjoiner... and even then I'd be concerned that some unscrupulous individual had knocked something into a more advantageous position.


Disturbed Monument: I think Ben's point isn't referring to if a disturbed monument denotes the corner, but if a landowner is able to recognize a disturbed monument, or if a surveyor is able to decide if a monument has been disturbed or not. This really gets to the heart of the matter for me; if the monument has been grossly disturbed (perhaps even removed and replaced) then it will be apparent to anyone with even a basic ability to read a map. If the disturbance is very minor, then it falls into a grey area; any permanent improvements should be kept away from a line that is in question, which is usually handled by City setbacks. In the case that a homeowner builds right along what they assumed to be the parcel line, it's entirely the liability of the homeowner.

As far as giving a homeowner confidence in set monuments, they have that in most cases. If the particular project requires a higher degree of accuracy than a rough overview, it is on the homeowner to hire a professional.


Offset/Not a Monument: Not a direct comment, but it's an opinion I've held for some time regarding our markers in general... I think it would be advantageous as a whole to go to a standardized Survey Marker. I used these for years in Nova Scotia, where each marker had the full name, LS#, and "Nova Scotia Survey Marker, Penalty for Removal" printed on them. You could then stamp the top with "WIT" and the distance if you wished, in the case of witness corners. Obviously in the current economic environment, few people will want to put out the expense to order survey caps and rebar, of course. I just file this thought away in the "Would be nice if..." file that I don't expect to be acted upon.

Anyway, that's likely to start an entirely new conversation in which people lambast me for suggesting any cost increases.

Evan,
You found another example where there might be two monuments right next to each other (PC, PT of street in curb vs offset of property line in curb) and it would normally take an LS to differentiate the two. I have to admit I’ve made the quick assumption that the mon is PL when it was actually PT.

The Deed Lot example has nothing to do with a LLA, maybe reread the hypothetical.

I don’t believe the general population knows if a LLA has been filed on their property, knows how to identify disturbed monuments, and was a Boy Scout that earned his Orienteering Merit Badge (or have the equivalent skills).

“Mr. Landowner building a fence to existent, undisturbed, positively identified surveyor's monuments set to mark the boundary should be taking very minimal risk w.r.t. the fence location.” I fully agree minus the exceptions I’ve pointed out.

The landowner who decides to build the fence where he believes his property line is takes on some risk (I think we all agree here). He would have no risk if he lived in a perfect world where:
1. All property corners are monumented.
2. The monuments would be in the correct position to reflect current real property boundaries.
3. Records of their location would be easily accessible and findable by the least skilled landowner.
4. All deeds, maps, and other records of title would contain no discrepancies.
5. All landowners would have enough knowledge and skill to read maps, deeds, and other records of title.
6. All landowners were scrupulous.

Let’s say I own some land and want to build a CMU screen wall. It will cost $40,000 to build and the contractor is saying he wants it staked. What would I do as a professional land surveyor with all of the education and experience that I currently possess if I found two pipes marked LS 7275. Would I hold the mons without any research to my deed or record maps? Maybe I would stop after doing some research and hold the mons, but if I thought the risk of getting sued or having to relocate the fence was too high I probably would establish the positional relationship of the found monuments with other monuments of record.

Now the fence costs $2,000 and would cost $500 to relocate. Would I go to all of the trouble of doing all of the research, etc. to establish the boundary? Maybe not.

The logic that the landowner will always and forever be able to rely on the monuments set by the surveyor does not work for all cases and I’ve tried to show what cases would be the exception.

Ben,

Maybe the difference in our perception of what knowledge of one's property and common skills possessed by the general public is a function of the segment of public we each most often deal with. Perhaps you are in a more urban environment where people are generally more clueless about such things, while I most often survey in a rural to semi-urban environment where most people are more aware of their descriptions and tend to possess basic outdoor skills.

Quoting your deed lot example: "You own the East 5’ of Lot 1 and the Westerly 45’ of Lot 2. Hence the found monument (at the corner of Lot 1 and 2) is NOT your property corner..."

Since Lots 1 and 2 existed sometime prior to the current landowner owning a portion of each, a LLA was effected in some manner. By definition, if lines existed to defined parcels at one location, and then the parcel lines were moved to another location, there was an adjustment of the previously existing lot lines to the current ones. Your example is therefore one of LLA rather than an example of a deed parcel.

When I think of a parcel created by deed, I think of one where a new line was created, as opposed to moved, without benefit of adhering to the SMA. That is, a newly created lot cut out of a larger parent parcel.

Going back to your use of deed lot as an example of why a monument should be rejected, I counter with if a monument was set by someone with authority to do so for the purpose of marking the corner and it remains undisturbed in its original location, it should not be rejected. If the monument was not set for purposes of marking the boundary or was set by someone with no authority to do so, then in almost all cases, it should be rejected.

Addressing your list, I find a mistake in your perception of what is necessary for a landowner to have a reasonable expectation to rely on a surveyor's monuments.

2. What constitutes correct? That is at the heart of this discussion. You have been taking a mathmatical and measurement view to define correct (7.5' is certainly reflective of poor measurement if indeed it was a mistake in measurement rather than in mapping which occurred), while I have been taking a legal view.

3. Where in the law does it state that for a monument or the survey behind it to be valid, that a map of it must be recorded and filed in a manner to be easily accessible? Where do you find the standard of "the least skilled landowner" in the law? To my knowledge, the law has not yet devolved its standards to the least common denominator of humanity. The standard would be "a person of average intelligence and ability", otherwise known as the "reasonable person" test.

4. Where in the law is there a requirement for no discrepancies? The surveyor who set the monuments should have found any discrepancies and resolved them prior to setting the monuments. I know that in a real world, that often does not happen. But the liability for a line monumented and identified as the boundary contrary to a superior claim of title rests with the surveyor.

5. All landowners don't need this full skill set. They need only enough to be able to find the surveyor's monuments, recognize them for what they are, and be able to create a straight fence between them, either themselves or by hiring someone who can.

6. I still believe that the majority of landowners are not devious enough to deliberately move monuments to new positions. In nearly 30 years of surveying, I could probably count on my fingers the number of times where a landowner deliberately moved monuments in an attempt to enlarge their property, and only one time where they did such a careful job of it that it wasn't obvious on initial visual inspection. The few other times I've come across moved monuments, it has been obvious by the mangled caps, pipe, bars, and/or by other conditions on the ground.

If you want me to admit that there is some risk for the landowner in relying upon monuments, fine, I admit it. But if he can't rely on the monuments left by the last surveyor, why should he rely on yours? Are you really that much better than any other surveyor who may have come before, and if you are, is there some way for the landowner to recognize this fact?


Certainly there are times where a landowner clearly should have a surveyor identify or verify one's boundaries. Generally, if someone is calling a surveyor, they need one regardless of what's at their boundaries. However, if a landowner has map in hand, has found and positively identified the monuments described on the map, and there are no apparent reasons to question the veracity of the survey or the monuments, I'm not going to tell him he needs to get another surveyor to verify what the last surveyor already told him or his predecessor in title.

When you go to a doctor for a check up, you feel fine and the doctor says you're in good health, do you go to another doctor for a second opinion to ensure the first one didn't miss anything?



Oh, and if you find two pipes with brass caps marked LS 7275, count them as golden and make the entire neighborhood fit them! ;-)

Evan, the deed example came from a survey I did where a very old map was created and later a deed legal (see previously given example verbiage) included 2 different “lots”. It is rare, but it happens. I guess I'm surprised you haven't run into such an example.

I believe we agree on the majority of our beliefs. I appreciate you pointing out that you have more of a rural background because I have more of an urban background which does seem to explain some of our differences of opinion.

The only way I can show where I disagree with your logic is to show why I believe your logic would get you in trouble, that’s all. It would seem with your logic that:

1. Steve didn’t need to measure anything after he found the monument matching the description.
2. Homowners can do the same.
3. Once a parcel is monumented the issues I brought up do not exist.

Certainly your approach makes life a lot simpler. PS, I am not advocating the math only view, I am advocating the math is a part of the evidence. You seem to be arguing the math doesn’t matter.

PS, the homeowner did hold the two pipes marked LS 7275, turns out those marked lots that no longer exist!

"Evan, the deed example came from a survey I did where a very old map was created and later a deed legal (see previously given example verbiage) included 2 different “lots”. It is rare, but it happens. I guess I'm surprised you haven't run into such an example."

I have, several times, and as I explained, whether it was accomplished by a formal LLA process or not, it is an adjustment of the boundaries from the mapped lot lines. I guess I'm surprised that you don't seem able to grasp that.


"I believe we agree on the majority of our beliefs. I appreciate you pointing out that you have more of a rural background because I have more of an urban background which does seem to explain some of our differences of opinion."

Yep. The basics remain the same regardless of location, but the difference of perspective will affect how we view the details and how that affects practice. But again, the principles do not change because of this difference in perspective.



"It would seem with your logic that:

1. Steve didn’t need to measure anything after he found the monument matching the description.
2. Homowners can do the same.
3. Once a parcel is monumented the issues I brought up do not exist.

Certainly your approach makes life a lot simpler."


1. Huh? It's quite a stretch to think that I advocated any such thing. Perhaps you missed it, but I did make the statment more than once that one of our functions is as expert measurer. But that is not the function we are primarily licensed for.

2. Do the same what, find mons and not measure? Let me see if I can clarify it down to a sentence or two for you: If the current property lines are marked with uniquely identifiable monuments set by someone with authority to do so, and the landowner is able to positively identify those monuments, then the landowner should, and by law in almost all cases, can rely on them.

3. Most of the issues you brought up are ones where the monuments either were set to mark corners that are no longer on the boundary because the boundary had moved by some operation of conveyance or law, had been moved from their original locations, or were never intended to directly mark the boundary but rather witness it by some distance. Those issues may exist. If the landowner is as clueless about their property as those you seem to come in contact with, then they should always get a survey for any time they do anything near their lines. For more sensible landowners, there should be no reason why they should not be able to rely on such monuments for the purposes for which they were set.

Apparently it's not so simple, otherwise I wouldn't be re-explaining so much.



"PS, the homeowner did hold the two pipes marked LS 7275, turns out those marked lots that no longer exist!"

Again, you bring an LLA into the discussion.

Apparently my client must have entered into an LLA with his adjoiner and then sold to some clueless metropolitan high rise dweller playing Eddie Albert as a gentleman farmer and who doesn't know enough to read his deed description which probably would have specifically mentioned the LLA or at least followed courses not consistent with the map showing the old parcel (My RS or PM in this fictional instance). I'll bet any surveyor who checks will find those PLS 7275 brass caps correctly placed by an unassailable retracement of the boundary that existed at the time of that survey. ;-)