California Surveyors Forums

The master in the art of living makes little distinction between his work and his play, his labor and his leisure, his mind and his body, his education and his recreation, his love and his religion. He hardly knows which is which. He simply pursues his vision of excellence at whatever he does, leaving others to decide whether he is working or playing. To him he is always doing both.

6-15. ...The surveyor should neither rigidly apply the rules for restoration of lost corners without regard
to effect on location of improvements nor accept the position of improvements without
question regardless of their relation or irrelation to existing evidence of the original survey.
Between these extremes will be found the basis for determining whether improved lands have
been located in good faith or not. No definite set of rules can be laid down in advance. The
solution to the problem must be found on the ground by the surveyor. It is his responsibility
to resolve the question of good faith as to location.

6-16. It may be held generally that the entryman has located his lands in good faith if
such care was used in determining his boundaries as might be expected by the exercise of ordinary
intelligence under existing conditions. The relationship of the lands to the nearest corners
existing at the time the lands were located is often defined by his fencing, culture, or other
improvements. Lack of good faith is not necessarily chargeable if the entryman has not located
himself according to a rigid application of the rules laid down for the restoration of
lost corners where (1) complicated conditions involve a double set of corners, both of which
may be regarded as authentic; (2) there are no existing corners in one or more directions for
an excessive distance; (3) existing marks are improperly related to an extraordinary degree ;
or (4) all evidences of the original survey which have been adopted by the entryman as a basis
for his location have been lost before the resurvey is undertaken.

Steve ^^ great ^^.
source?

Peter

Thanks - credit goes to the BLM from the 1973 Manual

:-) I thought it was familiar... duh!

On the issue of original monuments that were set based on an original survey when said monuments (or survey) were not mentioned in a conveying deed but soon thereafter:

“Whether monuments are erected upon the face of the earth by the mutual agreement of parties, and a deed is given intended to conform thereto, or whether they are subsequently erected by them with intent to conform to a deed already given, those monuments must control, notwithstanding they may embrace more or less land than is mentioned in the deed.” (Bemis v. Bradley, 69 ALR 1399; Emery v. Fowler, 38 Me. 102)

“Monuments set by the original survey in the ground, and named or referred to in the plat, are the highest and best evidence. If there are none such, then stakes set by the surveyor to indicate corners of lots or blocks, or the lines of streets at the time or soon thereafter, are the next best evidence.” (City of Racine v. Emerson, 55 N.W. 177)

It’s one thing for a deed staker to place a record boundary on the ground when no previous surveys or monuments were discovered, quite another to do it in complete disregard of original surveys and original monuments.

(The above quotes are from an article located on the Maricopa County DOT (state of Arizona) websit:)

http://www.mcdot.maricopa.gov/survey/SR ... vision.pdf

Lee,

Lucas quotes another case from New Hampshire (apparently a course over distance state)

Sheldon v. Sevigny 272 A.2d 134, 136 (N.H. 1970)

"The palntiffs argue that because there were no monuments called for in the deeds to establish the corners, the course of S 70 degrees E must control over all other factors in the establishment of the line. While generally in the absence of monumnets course will control over distance if they are inconsistent [citations] this is not the rule when the call for course appears in error and conflicts with all the other calls in the deed and the evidence on the ground. The trial court here was entitled to accept the testimony of the surveyor that the course was incorrect and to determine from all of the evidence in the case the correct location of the boundary line. The evidence relating to the iron pins not shown on the plans was properly considered as evidence of the original survey, and together with other factors in evidence enabled the court to establish the boundary line to most nearly conform to the calls in the deeds. Ths was a determination of fact by the trial court and as it is supported by the evidence it must stand."

The New Hampshire case appears to be a substantial evidence rule case. Appellate Courts are generally very reluctant to overturn findings of fact by the trial court. Most reverses are on a finding of law. Boundary location cases are 95% fact questions.

Unrelated quote:
"The court may infer that there was an agreement between the coterminous owners ensuing from uncertainty or a dispute, from the long-standing acceptance of a fence as a boundary between their lands. ( Hannah v. Pogue, supra, 23 Cal.2d 849, 856 and cases cited.) The evidence shows that the St. Matthew's Evangelical Church caused a survey to be made at the time it purchased the property in 1925; that the improvements consisted not merely of fences, which might in and of themselves be of an uncertain, temporary or equivocal nature, but were substantial structures such as a cement walkway with a fence solidly embedded therein and a building with a concrete foundation; that no objection to the erection or maintenance of these structures was made by the adjoining owner for 26 years; that during all of that time no one asserted any adverse claim to the strip; that from 1942, when she bought the adjoining property, until 1952, a period of 10 years, the plaintiff made no objection to the open, visible, notorious and peaceable use of the property by the defendants, and that she then waited almost four years longer before bringing this action. It may be inferred that there was an uncertainty as to the true line at the time the structures were erected, which uncertainty was settled by practical location on the ground at that time and was agreed to by the then coterminous owners. It may also be inferred that the uncertainty arose after the improvements were constructed and that the coterminous owners, by acceptance and acquiescence, agreed that the easterly boundary of these structures constituted the true boundary line between their properties. There is no evidence that the defendant's predecessor did not act in good faith. The acquiescence of the adjoining owner continued for a period longer than the statute of limitations and also under such circumstances that substantial loss would be caused to the defendant by a change of position of the boundary line."
-Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702 (1959)

"Recently I was asked, “What one thing, above all others, does the land surveyor offer?” My answer is knowledge."

- Curtis Brown, April 1971

Also: "if we try to do today’s job with yesterday’s knowledge, we will be out of business tomorrow."

The quote (and variations) is much older than John Wooden (a remarkable man.)
Has been used many times in the past and will always be appropriate.

Ignore that last post. It went in the wrong place

90% of surveying is properly relating physical evidence to the written title, the other 50% is math.





RIP Yogi

"Well, I, uh, don't think it's quite fair to condemn a whole program because of a single slip-up, sir." -General "Buck" Turgidson

"That's right, sir, you are the only person authorized to do so. And although I, uh, hate to judge before all the facts are in, it's beginning to look like, uh, General Ripper exceeded his authority." -General "Buck" Turgidson

"If it ain't broke, don't fix it. Unless you are a bureaucrat and you feel like you need to do something important today." -Yogi Berra

"You can observe a lot by just watching." - Yogi Berra -

"Monuments, Not Math, Make Property"

http://www.slideshare.net/GISITR/2013-p ... arren-ward


I guess the original link did not work. You can Google "Monuments, Not Math, Make Property" for a link to Warren Ward's January 2013 presentation.

from the link above...

"It was held that the east line of the street was where the original surveyor placed it, not where is should be according to resurveys or subsequent surveys; that subsequent surveys are worse than usless; they only serve to confuse, unless they agree with the original survey".
Johnson v. Westrick, 200 Wis. 405 (1930)

"It cannot be doubted that the construction placed upon a description in a deed, as shown by the acts and conduct of the grantor and his grantees, and the manner in which they have exercised their respective rights under their deeds for long periods of time with relation to a boundary line, is entitled to the gravest consideration in the determination by a court of the location of such line. ( Hamm v. City of San Francisco, 17 Fed. 119; Truett v. Adams, 66 Cal. 218, [5 P. 96].)

Quoted from Williamson v. Pratt (1918) 37 Cal.Apps 363, 367 and Bell Terre Ranch v. Wilson

"The use of a reduced, substitute for space for that of reality is an impressive act in itself. But what's even more impressive is how the map advanced the evolution of abstract thinking throughout society. The combination of the reduction of reality and the construct of analogical space is an attainment in abstract thinking of a very high order indeed for it enables one to discover structures that would remain unknown if not mapped. The technology of the map gave to man a new and more comprehending mind, better able to understand the unseen forces that shape his surroundings and his existence." The Shallows, by Nicholas Carr

It seems like for every reported case that says, "hold the fence," there's another that says, "don't hold the fence." I think the details of these various cases make it hard to generalize their decisions into useful rules,, and that every boundary problem has to be met with an open mind.

It's not so hard to generalize court decisions into general rules once you realize the level at which the general rules need to be reduced to. They can't be generalized on the presence or absence of a particular fact such as a fence being in the vicinity of an expected boundary location. The presence or absence of a fence is just one fact that means nothing on its own.

The most basic rule, and the courts have been very consistent on this, is that it is the intent of the parties to the conveyance by which a parcel was created that is of primary importance, and all the other rules derive from this one. All of the other rules are fraught with exceptions, which speaks to the fact-dependent nature of boundaries. So it's impossible to create a cookbook set of rules, and obviously you can't just keep score on the number of times a court predicates the location of a boundary upon the existence or absence of one particular fact.

We've been instructed time and time again, that our job is to determine where the boundaries were actually established on the ground (or caused to be established on the ground) by the first parties who had a direct interest in those boundaries. If you find direct evidence of those locations, you have discovered how those parties intended to put their agreement into effect. If you cannot find direct evidence and must make inferences from indirect evidence, the only effective means of making accurate inferences is to discern the intent of those parties.

When it comes to indirect evidence, Clark stoner said this recently in the Junior monuments/Senior Line thread: "I'll take a faithful attempt, a monument, over some strange unproven counterlogic any day, even when the line is broken unto segments and not straight across several thousand feet. Monuments mean something."

The CA Court of Appeal (6th Dist) said pretty much the same thing a year ago August in Bloxham v. Saldinger where most of the original evidence of a line had completely disappeared and subsequent surveys purporting to have retraced portions of the original line provided indirect evidence of that original line. The surveyor who rejected the evidence of later surveys because they formed non-collinear segments, and instead held very questionable evidence in order to make the record continuous straight line fit lost to the surveyor who held monuments set during subsequent surveys when those monuments appeared to have been set during the course of reasonably performed surveys.

Good summation of the principle Clark.

“The Life of the law has not been logic. It has been experience.” Oliver Wendell Holmes, Jr.

The prime directive of rules is they are not used to defeat their own purpose. Most of the boundary and deed related rules are an algorithm which are intended to help determine the intentions of the parties. For example, generally area is subordinate to measurements and monuments but if there is direct, relevant, and competent evidence that a certain area was intended this may defeat the presence of monuments substantially in conflict with the intended area. Monuments are usually considered to be more credible than measurements and quantity but the contrary may be shown in a particular case.

We tend to focus on the facts of published cases. The point of publishing cases is not to make a rule which directs what to do given certain facts because no two cases are alike. The point is to publish the rules to follow. Skim the facts and focus on what they say the rule is. Also look for the exceptions, almost every rule has exceptions.

I think you have the cart before the horse. The facts dictate what the rules are that are applied to the case at hand.. The judge must have at least substantial evidence in order to form an opinion, otherwise the judgement is just based upon speculation. Do the facts in your situation correspond well to the facts of a case you are reviewing to see if the judgement is applicable to you circumstance? A very many appeals cases turn on the merits of the legal proceedings and have nothing to do with the merits of the survey issues. Mr Karoly correctly points out that there are exception. The rules are formulated not for the purpose of being applied rigidly. Clearly there is a long history of surveyors seeking comfort in rigid application of the rules. The oft quoted Justice Cooley mentions this problem in his writings. I agree that we should seek to understand the rule and whether or not it applies to our case at hand..

.

Bloxham is a weird case. The big dispute in the appeal is over a line remote from the actual boundary in dispute which appears to be well established. It's kind of like the Surveyor missed the stake so he walked 200' and smashed the car window, okay let's spend 10s of thousands of dollars arguing over the wrong thing.

But I've gotten past that, it doesn't really matter to anyone but Bloxham and Saldinger and the Superior Court all of whom took the wrong fork in the road due to faulty expert guidance. The rest of us can use the case discussion as good guidance.

I think the boundary portion of Belle Terre Ranch should be published, particularly the Parol Evidence Section, but Bloxham may cover it, have to read it again but right now I have to clean up "Stinky" (18 month old Jameson) then take him to the park so he'll hopefully run his batteries down, use up all the gas in his tank.