California Surveyors Forums

I had occasion to ask for a copy of a survey from Ed. Exactly as you describe. I was amazed at their records room. More orderly and better organized than many counties I've visited.

You guys just made my day with that exchange. Thank you. This is a very important subject and one that needs more dialogue. For better or worse, there are far too many surveyors who have never experienced the rigors of litigation and the burdens they might one day find themselves under. By then it will be too late to learn these lessons.

I am presently (as in have been working on this the last several days) on a case wherein a surveyor neglected to consider importance evidence related to a contested boundary line. He was told it existed but instead of considering it, his ego got in the way and he forged ahead. His client and the neighbor are now in litigation and the surveyor is being sued personally. I have been involved in quite a few of these and I would share them if not for my respect for the surveyors who have been sued as they do not need any additional embarrassment or notoriety. All I can tell you is it happens and when it does, it is not pretty. I have been hired by lawyers and insurance companies across the state to defend decisions like this and it is not a lot of fun. As I said, until one gets sued and gets to feel real pain, they have no appreciation for this side of the business. Lessons can sometimes be real expensive. Everyone that has weighed in on this one have demonstrated the depth and diversity of opinions on this subject. With all due respect for these opinions, mine included, until a court of law weighs in, we may not know or appreciate the importance of these points and arguments.

Good exchange.

Willard,

1st point: the older, unrecorded monuments may have been accepted by the landowners for several years or decades before a recent surveyor came along, determined and monumented the mathmagically "correct" position.

If another surveyor then comes along shortly thereafter and finds both the shiny new monuments per the recent RS and the old monuments per the decades old unrecorded survey, then also finds that the landowners had been recognizing the older monuments for decades up to the point that the mathmagician moved the boundary, what is this latest surveyor to do? Should he recognize the until very recently long settled boundary, or bless the location of the boundary recently moved to the mathmagically "correct" location?

A retracing surveyor does not have the authority to change or move a boundary, only to find that which has been established and recognized. Sometimes that's at the monuments of an unrecorded survey, sometimes those monuments don't rise to that level because they were never accepted by the landowners.

2nd point: "A lot of you guys..." In Post #9, you state that anyone who buys these sets of old records should be obligated to provide copies of unrecorded maps/notes for free. That is punishing the person who saw the value of preserving the notes for the lack of recording of the surveyor who created the maps/notes. You also suggest that the person who does see the value of these notes, of preserving them for himself or others to reference, are in essence aiding and abetting past illegal activity by paying someone for the surveys which should have been recorded, as if the records were some illicit substance.

In suggesting that the purchaser of such records is somehow unethical (you may not have used those words, but the implication is pretty clear), and by wishing to impose an obligation that amounts to a fine for preserving pieces of history (provide for free what one paid for and worked to preserve), you would punish the present surveyor for the acts or omissions of some past surveyor.

3rd Point: You are welcome to disagree, but I invite you to show us a published case in which a court declared that a survey is of no value because it was not recorded.

Last point: Brings us back to the first. Disputes often arise when a new surveyor comes along and identifies a boundary in a different location than where another surveyor previously identified it. Up until that point, landowners are often settled on the survey markers they know of.

Owner A had a survey done by LS 0000 in 1954, marking all of his boundaries. LS 0000 was known for doing fairly decent work but also for recording few of his surveys. A didn't request this one be recorded, so it wasn't.

Owner B adjoins A's land on the West. Owner A built a fence around his lot in 1954 according to the survey and has maintained it since. Owner B knows of the LS 0000 monuments along the line common with A.

In 1988, A sells to C, showing him the monuments all around. B and C live in harmony, recognizing the 1954 line. In 2007, B sells to D, who decides to fence the remainder of his property. D hires LS 8xxx to mark the rest of his boundaries. Lo and behold, LS 8xxx finds that he disagrees with LS 0000 by a foot on the A/B (now the C/D) line, monuments his line and shows C's (formerly A's) fence encroaching by 1'.

In 2010, C hires LS 6788 to identify the true boundary. You find that the mathmagically correct line per your measurements is pretty close to where LS 8xxx marked it. Being the diligent surveyor that you are, you also discern all of the history of both surveys and landowner actions/acceptance. Where do you identify the true boundary location to be?

Given this set of circumstances LS 7275 would identify the old monuments of the unrecorded survey as marking the true established boundary of C/D.


Now change those circumstances somewhat: A has the survey done in 1954, which was not filed. A never builds his fence on B's side, but does build his house and driveway near the East line. B may or may not have been aware of the monuments, we're not able to find out one way or the other.

A sells to C in 1988, shows C the monuments on the East line and says that there are monuments on the West, but he's not exactly sure where.

B sells to D in 2007 and has LS 8xxx survey the lot. LS 8xxx finds the old LS 0000 monuments, finds no record, observes no occupation or recognition, sets his points, calling the LS 0000 monuments off.

But now C finally knows where those monuments are and decides to then build a fence to stake his claim to the 1' stip and the boundary he didn't care enough to locate previously. He also hires another surveyor to identify the true boundary.

In this case, there was no recognition of the older survey along the A/B line. One party knew of it's existence, but the other didn't. Same for the subsequent parties. C was aware of it's existence, but made no attempt to locate and occupy to it.

This becomes a little trickier, but given no other facts, LS 7275 would most likely recognize the LS 8xxx line.

The key is the acceptance or non-acceptance, and when each started or ended. If one party recently decided to not accept a line after several years or decades of acceptance, that non-acceptance means little.

If the non-acceptance was longstanding, or is of a recently discovered line (even if that line had been marked several decades prior), then it means much.

The lack of recording is not of much importance in determining the validity of a survey unless that lack of recording served to conceal the fact that a survey had been performed. If both owners are aware of the monumented line, then actual notice has occurred and the lack of recording is moot with regard to the validity and value of the survey.

None of this should be read to excuse the fact that the survey should have been recorded.

But Evan,

I just found the field notes and plat for a survey conducted by LS 0000 on August 13, 1930. A proper chain of Title discloses Smith created the parcel by deed description and sold it to Gibson first who subsequently sold to A. The survey was conducted for the original seller and buyer of the property created by deed which recorded September 1, 1930. Unfortunately in these parts, the scrivener never called for monuments from the original surveyor.

But being the diligent surveyor I am, I frequently participate in CLSA Chapter Meetings and I am aware of who has whose notes in this area and the Standard of Care for a prudent surveyor working in this county. From the chain of title, I knew when the parcel was created and I know who was practicing in the area and what archives I need to research. Voila! I’m holding the original (unrecorded) monuments, which created the parcel as long as I believe they are in their original place.


Or in another case, I have many notes, which replaced many original subdivision hubs (circa 1900), with iron monuments. Unfortunately the surveyors didn't tag the monuments back in that day and unfortunately you have subsequent surveyors who come into an area and don’t inquire about where the monument came from. Of course these surveyors are usually the experts at making measurements and make a real mess for the neighbors who used to be friends.

Reading through this thread, I keep reminding myself that everywhere in the state...every little corner of a county within this state...the absolute minimum standard of care is the Professional land Surveyors Act (PLSA).

No amount of "this is the way we do it in our county" will ever circumvent that fact.

When a survey is being scruntinized, it should first be evaluated against the PLSA to determine if the state-wide standard of care has been achieved as mandated by state laws, rules and regulations.

Only then, after determining whether the "minimum standard of care" has been achieved, can commonly accepted local practice that EXCEEDS the minimum standard of care be used to further evaluate a survey.

What actually constitutes or defines that higher level of practice could become a entirely different topic of discussion that I suspect would not be easily agreed upon.

Ric, that is an excellent point and one well taken. At the end of the day, that is the goal we should all strive for. To satisfy a minimum standard is a minimum effort to exceed the standard is an exceptional and noble goal.
Thanks

I am 99.99% done with the final edits for the Curt Brown papers. The devil is in the details. I did some research to see what Curt's thoughts are on this subject and I wanted to share them with you. I have included an excerpt here and I have attached his entire article. It was first presented in 1971.

*************************************

In the matter of locating boundaries, to me, there is nothing more important than preservation of evidence. Examinations for registration prove a surveyor’s competency to make measurements; they prove a person’s proficiency in mathematics. Letters from qualified people may prove the examinee’s integrity and honesty. But this alone is not sufficient; a surveyor must understand the laws of evidence. Every boundary survey must start from a point on the surface of the earth, and the validity of that starting point is dependent upon evidence.

The law is exact and specific: Wherever the original surveyor set his original monument, that spot is the correct location for that corner. If we are to preserve that original position, we must have a continuous chain of records from the time of the original setting of the monument to the present. The original surveyor may have set a wooden stake that was later replaced by an iron pipe. At a later date the iron pipe may have been removed by highway construction and new reference points set. Who can prove what happened without a continuous chain of records stating what was done? Without question, more property line disputes arise from loss of evidence than from any other cause.

The surveyor locating property lines from incomplete evidence can find himself paying out large sums for erroneous monumentation.
Mutual interest of both the public and the surveyor demands that evidence of monument positions be filed as public records. This produces harmony and exchange of knowledge between surveyors.

Two requirements in California that insure a better system of maintaining orderly boundary locations are: (1) license numbers permanently attached to all set monuments, and (2) the filing of plats disclosing evidence found.
Contrary to the thinking of some, these provisions of the law have proved to be of far greater benefit to the surveyor than they have been a detriment. Quite often in my former office we got referral work merely because the adjoiner identified my license number on a property corner. The major benefit from the usage of numbers on monuments is the free exchange of information. A proper location for a corner can only be determined after an evaluation of all the evidence. By the time the second surveyor arrives on the scene, part of the evidence that the first surveyor observed may be gone. If the first surveyor is identifiable by a license number on his monuments, a telephone call usually brings a satisfactory explanation of differences in location.

The old concept that the surveyor’s records are his personal secret - not to be disclosed to anyone - is gradually dying out. In California’s Owens Valley we have two lakes. One is fresh and trout are in it. Trees spread their branches over it and children play along its shores. A river flows into this lake and out to a second lake. Here, in the second lake, are no fish and no children’s laughter. Travelers choose other routes. Neither man, beast nor fowl will drink of its waters. There is a difference between the two lakes. The first lake receives fresh mountain water. For every drop that flows in, another drop flows out. The other lake is shrewder. Every drop it gets, it keeps. The first lake receives and gives, the second lake receives, does not give, and is salted to death. Are we going to be like the first lake and receive and give information, or are we going to be like the second lake and jealously hoard professional information?

For states westerly of the original states, the United States devised a rather effective system of surveys. The more important feature was the setting of monuments prior to the sale of land. Accurate notes were kept exactly describing each monument set. In addition, bearing objects and trees were called for to aid in identification in the event of destruction of the monument itself. The system was turned over to the states, and no provision was made for preservation of monument positions. Today, out of the millions of monuments and markers originally set, precious few are left. We, as surveyors, are constantly discovering evidence of old corners or witnesses to old corners. What happens to our records? After we die are they lost forever? The number of states that provide a place for the surveyor to publicly record discovered monument evidence is few indeed; only one state makes it mandatory.

The law of every state should provide a place for the filing of surveyor evidence records and, under certain circumstances, it should be mandatory for the surveyors to file their records.

- Curtis M. Brown

The key is the notice (whether actual or constructive).

Thanks for that citation Dave. I think that speaks clearly to the validity, and extent of effect of an unfiled survey.

[APOLOGIES IN ADVANCE FOR THE LENGTH OF THIS POST AND ANY THREAD HIJACKING. This is the 1st time I’ve had to post in two parts – just enjoying the tangents of the discussion]

PART 1

Willard, you read my statements thus: "The information you give is lacking in the basics for any one to make a determination on the fact pattern. Other words, the question “Have you stopped beating your wife, yes or no” which no one can answer without being incorrect."


It is nearly impossible to present a complete scenario on a discussion forum, but the scenarios were to depict where an unrecorded survey may or may not have validity. There may always be other factors that could change the outcome, but we are not discussing the other factors here.

In the 1st scenario, everybody had notice. Clearly the unrecorded survey is the best evidence of the true boundary. In the last scenario, neither B nor D had notice prior to the recent survey. Clearly they are not bound by LS 0000's survey. The middle scenario put it in a gray area, and you are correct, without further information, there is no correct answer. But none of them were a "when did you stop beating your wife" set up.


"Math notes the location of the monuments, may even use there [sic] location to create the new deed line."

If those older monuments represent the true boundary, there is no new deed line. Those monuments mark the existing deed lines, regardless of the dimensional reporting errors in the existent deeds. The deed guides you to the place where you should start looking for the true boundary. You may find it at a location deviating somewhat from where your measurements, following precise dimensions of a deed indicate it to be. This is a basic boundary retracement principle.


"But the problem is….You change one fact, maybe one recorded monument, one something, you would change the outcome."

No kidding. That's why we are licensed, to gather all of the pertinent evidence, including but not limited deed dimensions and our own measurements, and evaluate that evidence in light of statutory law, as interpreted from time to time by the courts, to determine our opinion of where the true boundary is.

We are not licensed only to make measurements or read deeds. If that was the extent of our role as surveyors, there would be no need for licensure.


"Never the less. Holding the two unrecorded monuments without filing new deeds, if in fact there is two locations for this line, is not acceptable."

If those monuments do not represent the true boundary, you are correct. If they do represent the true boundary, you are wrong. Again, in that case those monuments mark the lines called for in the deeds regardless of the dimensions reported in the deeds.



"A Surveyor does not establish property lines, but deed lines and the location of occupation. Do you believe you are the one who tells landowners “this is your property line” I hope not. You believe you can ascertain instead of the Courts if prescriptive rights, adverse possession, etc are applicable. I hope not.

I have countless times come across instances where the boundaries did not match exactly the location where my measurements of the deed dimensions would place them. When these differences are significant, I explain to the landowner the reason for my opinion and will discuss evidence that supports and that which may tend to contradict my findings. I have never told a client that “this is your property line” with incontrovertible finality. Any boundary I identify is my professional opinion of the location based upon my knowledge of the law and the guidance the courts have given to evaluate evidence to that effect.

The discussion of AP or PR is an entirely different subject and has absolutely nothing to do with the acceptance or rejection of evidence of an unrecorded survey as defining the true boundary or not.

“You have stated “those monuments don't rise to that level because they were never accepted by the landowners.” A Surveyor does not have the authority to decide if these monuments “rise to the level”, only the Court or the affected landowners."

Who ever said that the surveyor should be exercising such authority? The surveyor merely determines the fact of whether that is the case. I try to find out as much as I can about their awareness of, and use and recognition of any previously marked boundaries and then try to use the same criteria that the courts would to determine the effect of that information on the boundary.

In doing so, I am not usurping the authority of either the landowners or the courts, I am recognizing the authority of the landowners through their actions and statements over time. I am exercising my duty as a licensed professional land surveyor. The more such information I can obtain and consider, and the more I consider it as the courts have, the more likely I can help the parties avoid a costly court battle.

If I were to simply and blindly measure per the exact deed dimensions, the more likely I am to create controversy or lend an air of legitimacy to a dispute that would otherwise lack it. If the fact set found all falls within well settled law, and I don’t evaluate the facts by that law, I am failing all parties involved and am relegating my role to that of a technician rather than a professional.

PART 2

“I looked and looked and looked; but I never saw where the “implication is pretty clear” concerning the purchaser of these “unrecorded notes” being unethical by purchasing these notes. I like how you read and state how others feel, keeps the pot boiling, you know. So next time I need someone to ascertain my position, I’ll wait for you. LMAO”

Fair enough. Please interpret this statement for us: “The original surveyor has done a disservice to the public and the Land Surveying Community by not fulfilling their legal obligation of timely filing. To add insult to injury, firms that pay for these unnotorized notes, not the goodwill associated with the purchased firms name, are paying the original surveyor monies for poor workmanship as well as an illegal activity, the failure to file the record.”

Until then, I’m happy to be your Dr. Phil. Not sure how you feel about something? Ask me, I’ll clear it up for you. ;-)


“Yes, they are obligated to provide at no cost, otherwise, do not accept these records.”

Easy statement to make from someone who sees no value in those old records. Correct me if I’m wrong, but I get the impression that the alternative of all these old records eventually finding their way to the dump wouldn’t be such a bad thing as far as you are concerned.

IMO, imposing such an obligation would be punishing someone for doing a service that ultimately serves both the profession and the public.

I’m glad you are willing to discuss your past projects with others at no cost. Personally, I work the same way. But that’s not what this particular set of comments focuses on. When someone buys records of another, they don’t have that first-hand experience. They did not enjoy the income from those projects when they were performed. They were never paid to produce the records, but instead they paid for the opportunity to preserve them. Big difference.

Your example obligations do not apply. In the 1st, I am contributing to a charity that makes improvements for an activity which is inherently free. No parallel to buying and maintaining survey records.

In the 2nd, you take on a survey that you then find will cost far more than anticipated and far more than the client can afford. There is no legal or ethical obligation for you to go broke taking on the responsibility of straightening out the mess of all previous surveys (blind deed stakers, no doubt!) and continuing the survey. Your obligation at that point is to explain to the client the nature of the difficulties and the cost of sorting through them, as well as the potential ramifications of subsequent legal action that will arise as a consequence of you changing all the previously established boundaries to locations that sit better with your BLM Chapter 3 guided mathmagical and spatial sensibilities. You have no authority to continue on this course if the client is not willing to accept the risks that go with it, even if you are willing to toss in $100K of your own money.


County web site/records retrieval: The County is charged with maintaining certain PUBLIC records and making them available to the public for the cost of reproduction. The key there is that the records do not belong to the county. The county holds and maintains them in trust for the public. A private entity cannot contract with a public agency to make private records available through that website.

They could do so through a private website, but then again, you would have them incur more cost in digitizing and appropriately indexing those records to facilitate their availability and search relevance. And then either developing and maintaining a website or contracting with someone who does. That would be quite costly.


Point 3, evidence: § 1341. “Historical works, books of science or art, and published maps or charts, made by persons indifferent between the parties, are not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest.”

Published does not mean recorded. If the surveyor prepared a map or took notes, they are published. The surveyor is presumed to be a person indifferent between the parties.

There are also these sections which serve to allow maps, notes, and reports pertaining to old unrecorded surveys admissible:

§1270. “As used in this article, "a business" includes every kind of business, governmental activity, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.”

§1271. “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”


“First off, land owner A does not have the authority to tell LS0000 not to record. LS0000 is required in 1956 to file, or do you know something I don’t?”

You are absolutely correct. The surveyor was obligated under the law to record the map. But the fact is, that all too often, maps were not recorded, and quite often, the decision of whether or not to record was based upon whether the client authorized and paid for it to be done. Whether this was a practice based upon misunderstanding of the law or a deliberate ignoring of the law probably varied according to the practitioner. But the fact remains that it happened to varying degrees in different parts of the state, apparently having been more prevalent in the northern rural parts than in the southern and more metropolitan areas. I’m not defending the practice, just pointing out fact. But the lack of recording does not affect the quality of the actual survey or its validity.


To my comment about both landowners having actual notice and the survey being valid, you reply: “Not in Contract Law nor in Real Estate Law. Might even get a Tort out of this.”

I refer you back to Civil Code §1217, posted by Dave (Post #68).


“Who is LS7275?” I just pulled that at random, but hear the guy is fairly sharp and a darn good surveyor. ;-)


“I had fun.”

Me too.

I have a complete set of inventoried survey records covering 45 years of land surveying in several affluent Southern California coastal cities on sale for $250,000. Purchase includes database and map index. Sale conditioned upon making these records available to anyone interested at no cost.

Terms negotiable.

Sorry, my last two code citations were from the Evidence Code, exceptions to the Hearsay Rule. Sorry for the omission.

Reply to Post #73:

A map is an instrument documenting a survey. Not all instruments must be signed by all parties. You are probably confusing the term as being synonymous with "contract". But then a contract does not necessarily need to be signed by all parties. In some cases it is sufficient by one's conduct to show that there was acceptance of the contract.

Even though A contracted the survey, that is an agreement between A and LS 0000. Offer to perform a survey for certain compensation, acceptance of the agreement, performance and delivery, actual compensation to LS 0000. At that point, that agreement is satisfied.

If B had actual notice of the survey, there is then opportunity for acceptance and agreement. The landowners' conduct with respect to that boundary over time can show whether or not there had been a meeting of the minds. B does not have to have been a party to the contract with LS 0000 to be held to the line marked by LS 0000. LS 0000 is not a landowner in this case and has no say as to whether either landowner accept his results. Whether or not the landowners did will be borne out by their conduct.

Your assertion that all parties must sign the RS for it to be considered an instrument or to have any effect is incorrect. I've never had any landowners sign any RS I've filed. Nor can I recall seeing an RS signed by any other than the surveyor who performed the survey and the county surveyor.

Response to #74

Was the LS 0000 survey the 1st to establish that line on the ground? If so, how can you justify using distant monuments and dimensions from a deed to overcome what amounts to an original survey of the line?



Response to #75: You stated that the purchaser of the records is paying the creator of he records for an illegal activity (not filing). Under what circumstances do you say that paying someone for an illegal activity is not unethical?

If you are contending that the creator of the notes had practiced illegally by not filing (I agree with that, BTW, as it pertains to the sections regarding filing of maps), where are you finding this idea of purchasing the "good will" of this unethically run company? Please define this purchasable good will, what it's value is, and how it somehow validates the otherwise unethical purchase of the records. This one really has me confused.

What's this talk of untagged monuments, goat stakes, and such. If an inquiry of the current residents yields no knowledge of an unrecorded survey, then they are nothing more than goat stakes. You have no avenue to pursue. Move on.

Your talk about fostering a different standard of care has no basis in reality. I know of nobody who has purchased records in order to force other surveyors to check with and purchase records from them as a normal course of performing a survey. This one is out of left field.


"So Evan, you spoke up, how about the rest of “usâ€￾ you spoke about."

Huh? what rest of "us" did I speak of? Is there something here to respond to?

Response to #76

It's a different world outside of your tidy corner of the state. If one to ignore unrecorded surveys up here, thy do so at their own potential professional peril.

They are a fairly common fact of survey life. We deal with it. One who doesn't will screw something up sooner or later.

Fortunately, not filing as a normal practice seems to be a thing of the past for all but a very few. But that doesn't change the past.


Response to #78

Ah, this is a completely different scenario than previously presented. There was no costing you $100K as implied in the previous telling. Nor was there the client who couldn't afford to pay you what it would cost. No performing the survey out of the goodness of your heart or sense of public or professional responsibility.

And those other surveyors ignoring so many existing monuments? That just tends to support my line of argument.


Response to Post #79

Michael made an offer in Post #77. Why don't you take him up on it out of a sense of public and professional responsibility. It's the least you could do to stand on principle.


Response to #80

"Explain yourself. Are these unrecorded notes and plates “published maps and charts”."

The maps certainly are.


"Are they “books of science or art”"

Obviously not.


Are they “Historical works”

Absolutely.



It has long been established that there is an exception for "ancient" maps. The current "keeper of the records" can verify the source of the maps or notes, although not first-hand knowledge of the performance. But that first-hand knowledge is not necessary.

I've enjoyed following the discussion and find it important. I don't have the time or eloquence of speech to write much but I have a simple question: It is a known FACT that much of this state has areas where recorded surveys are few and far between. In some of these areas there are a large amount of unrecorded surveys in private hands that are ORIGINAL surveys. I know of an instance in Marin County where there are ORIGINAL subdivision maps that were recorded that INTENTIONALLY left off ties to monuments so that the surveyor could have a monopoly over a certain area. Only the original surveyor had the data necessary to perform surveying in the area. If you go check out this same map from the original surveyor that is in private hands you can see all of the ties to control that were left off of the original map intentionally. It would be IMPOSSIBLE to survey in this area without checking the unrecorded records in private hands. Lets set aside the legal, moral, and ethical issues for the moment and pose this question: Would anyone in their right mind survey in this subdivision without checking the unrecorded map?

I know I wouldn't, but there are many who have and because of them what was once harmony in an area has now been turned into a hornets nest.

Since there have been doubts expressed about the importance of the need to look for, and carefully consider, unrecorded plats, I thought I would do some checking to refresh my memory. (After all, it was decades ago that I formed the conclusion that they are, in fact, important.)

Jerry Broadus (PLS and attorney) wrote an article in P.O.B. (8/15/2000) where he discusses 5 or 6 court cases dealing with unrecorded surveys:

http://www.pobonline.com/Articles/Surve ... 32a8c0____

In one case (cited by Skelton) the observation is made that "...all sources of inquiry which the description itself and the circumstances surrounding the parties and the conditions existing at the time of its execution naturally suggest must be exhausted in a vain effort to locate the property."

"Thus, by making what the court felt were a few simple inquiries, any person dealing with the property could discover the unrecorded plat and find a sufficiently definite location for the property...."

In Willis v. Campbell (1986) the disputed line was in the NW 1/4 of the NW 1/4 of Section 6. A new survey was performed by a surveyor who located the line away from an existing fence. But a second surveyor, "...after considerable research, later determined that the fence matched a boundary set by a survey for an unrecorded plat of part of the overall land holding."

"The second surveyor testified that based on information he received from other surveyors there had been an unrecorded subdivision done by surveyor Cook...." But, this second surveyor testified that Cook had incorrectly performed his survey because, "...Cook surveyed the lands as if it were a normal section having 5,280 foot boundary when in fact the north boundary of this Section 6 is actually 5335.8 feet."

Just the same, the owners built a fence along the (incorrectly) surveyed line, and the second surveyor found Cook's pins within a foot of the fence.

So here we have a prior, unrecorded survey that was, in fact, incorrectly performed. But what did the court say? "The court held that the second surveyor's retracement of the Cook unrecorded plat correctly determined the disputed boundary, basing its decision on principles of control by an original survey:

"The boundary line established by that unrecorded plat will control over a subsequent resurvey purporting to accurately locate the boundary line, if the original survey lines can be located and determined. In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines? The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance on it." 500 So. 2d at 303

Then Broadus sums up this case by saying:

"From a surveyor's standpoint this case illustrates very well the lengthy research necessary to perform a justifiable resurvey. It would be all too easy to dismiss the Cook survey as simply "wrong"; however, further investigation might reveal that it nevertheless controls the boundaries."

That pretty much says it all, doesn't it? The fact that the survey was unrecorded--the fact that it was even in error--failed to discount it as controlling.

In Clausing v. Kassner (1962) Broadus concludes: "The court made short work of this dispute, determining with little discussion that the line staked along the unrecorded tract boundaries controlled over the metes and bounds description....Again, this case is of interest to surveyors in its illustration of the evidence the court used to support its conclusion."

It would be wise to read the Broadus article in it's entirety, because there are other cases with different nuances that come into play regarding the importance of unrecorded surveys. But there can be no mistake, the courts are going to expect you to seriously consider unrecorded surveys!

I also found (elsewhere) Froscher v. Ruchs (1961) which involved a disputed line:

"The testimony of plaintiff's witnesses established the existence of an unrecorded plat, prepared by the Biscayne Engineering Company, in October of 1913. This plat was of Section 19, Township 57 South, Range 39 East, and covers the property in question. The testimony establishes without contradiction that this plat has been used by substantially all of the surveys made in the quarter section with which we are here concerned. There were introduced into evidence four recorded plats of portions of lot 9. Each plat followed the lines established by the unrecorded plat just described. None of these four plats covers the property of the plaintiff or the defendant, but they locate neighboring lands the boundaries of which would have to be relocated if the new survey approved by the judgment in this case should be imposed as the true survey of the lots involved. The long established use of the unrecorded survey, together with the fact that property rights have been acquired pursuant to recorded plats following this unrecorded survey, is sufficient to establish that the unrecorded survey was recognized by the surveyors of the area as the survey which established the procedure to be followed in locating boundary lines within the quarter section. Therefore the Court was in error in adopting defendant's mew survey, inasmuch as it fails to follow the legal principle that the purpose of a resurvey is to locate so far as possible previously established lines."

http://www1.co.weber.ut.us/rs/surveyor/ ... _Fuchs.htm

Excellent references, Lee!

I will take $5,000.00 a month for the records and I will only charge 7.5% interest per annum.

Hi Lee, Are you actually suggesting that a professional Land Surveyor do more than read a deed and place iron pipes with numbers on the top in the ground? Are you suggesting that he/she should actually do some research in areas that have always proved fruitful and are known to contain important information? My goodness! Blasphemy! Heresy!

;0

A payment plan! Jump on it, Willard!

After following a few more contributions to this thread, I did a little research. I thought some folks would find the excerpts from Arizona interesting. Perhaps more germane is the COC procedures out of Sonoma County. It is only three pages long. Take a look at their procedure regarding what is in essence a post survey certification. The standard appears to be that one merely needs to provide proof that a survey occurred and it will be recognized. Moreover, it does not have to be recorded and in fact, it appears to be a prevalent circumstance in Sonoma.

Excellent observation Steve. I think it emphasizes the value of unrecorded documents and that I think is the most important point here. There have been some very brilliant comments in this thread. And yes, the Sonoma document is quite interesting.

Stay well.

Does anyone know why, when they were talking about unrecorded surveys, they added, "prior to 1966"?

I suspect that that is when they adopted their local subdivision ordinance. The March 1972 date is not universal. Many cities and counties had their own subdivision ordinances in place before that. As an example, the City of Coronado has had a local subdivision ordinance since about 1945 (think wartime) and that is there cutoff date for purposes of determining legal lot status. They eventually adopted the 1972 date. The City of San Diego's was 1954 for a very long time even after 1972.