California Surveyors Forums

Hi,

Does anyone have an opinion or thoughts on this provision of the LSA?

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8725. Necessity of license
Any person practicing, or offering to practice, land surveying in this state shall submit evidence that he or she is qualified to practice and shall be licensed under this chapter.

It is unlawful for any person to practice, offer to practice, or represent himself or herself, as a land surveyor in this state, or to set, reset, replace or remove any survey monument on land in which he or she has no legal interest, unless he or she has been licensed or specifically exempted from licensing under this chapter.

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Do you read this as meaning a person with a "legal interest" can survey his/her own property? What is a "legal interest."

Thanks in advance.

What it says and the intent of the code may be two different things. A "legal interst" to me, means "ownership",as intended in tis code section. But, the term is vague as it could apply unintentionally to a lienholder.

I agree with Greg. The exterior boundary is also the boundary of one or more adjoining properties, in which the landowner in question presumably has no interest. The boundary is not his alone to consider.

There could be two way to look at the section, Mike.

First, the section does not specifically grant permission to “…set, reset or remove survey monuments…” on land in which the “non-surveyor” has a “legal interest”. It merely prohibits non-surveyors from doing so.

Also, remember the old joke about every monument also belonging to the adjoiner? In one of the cases you recently presented, one of the gists of the decision was that an owner does not have a legal interest in the lands of an adjoiner.

This section might imply that the non-surveyor may not “…set, reset or remove survey monuments…” on lands of even the adjoiners.

Second, although it does not specifically empower them to do so, the section exempts surveyors and those “…specifically exempted…” from prosecution due to setting, resetting or removing monuments.

Let the games begin.

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Gentlemen, I appreciate the response. In the case I am involved in, the hostile neighbor did not like the location of my ROS certified monuments. He was photographed removing my monuments which were shown on a recorded ROS map. He then set his own monuments a couple of feet away. He placed lead plugs and brass nails and painted them fluorescent red and then called up city building inspectors to approve the location of his new building construction forms.
As I understand his attorney's arguments, his client is entitled to do this because he owns the property. Needless to say, this created serious problems for his neighbor (my client) as well as the entire neighborhood as he moved other markers around as part of his property owner right-to-survey. Although photographed and witnessed by others who have prepared sworn declarations as to what he did, he claims otherwise. The state board was asked to investigate and they concluded that in spite of the sworn statements, photographs, newly placed monuments and firsthand eye witnesses (three people with supporting declarations), there was "not enough information" to support the claim. The neighbor said "I didn't do it" and the Board dropped the case due to "insufficient evidence." As a result, I now have had to resurvey the entire block to determine how many of my other ROS monuments have been moved as the neighbor did it on the other side of his property also. My client is now having to pay for another ROS as I have had to document all the new monuments set by the neighbor and I have had to reset all my previously certified corners as the previous locations are no longer valid as they have been removed or possible moved and rest in a different location. And of course, we are now involved in litigation.
As noted, according to the neighbor's attorney, this activity is permissible as "anyone can survey their own property."
I have attached some photos. The bright red painted monuments are the ones placed by the neighbor. Did I forget to mention that these properties are located in Pacific Beach, where the real estate is very expensive?
Thoughts?

Thank you everyone for responding on forum and off forum. It has been pointed out that the destruction of a survey monument is a misdemeanor under the penal code. I agree. I contacted the city attorney and asked that they do their job and investigate and if a misdemeanor occurred, to prosecute the neighbor. They declined and refuse to pursue misdemeanors as they relate to land surveying matters as a matter of policy.
I cannot prosecute a misdemeanor nor can my client. Therefore we have concluded that it is permissible in San Diego to destroy survey monuments as you will not be investigated or prosecuted. That is where we are on this one.

At least someone has found a way to generate work for Land Surveyors.

My interpretation of §8725 is that it is not unlawful for a property owner to survey his own property, nor is it unlawful for him to set monuments at the corners of his property. The question of how he determines where his corners are located is another matter, and if he mistakenly sets a monument entirely on an adjoiner's parcel he's in violation of the statute.

I disagree with those who interpret §8725 to mean that an owner cannot lawfully mark a corner common to an adjoiner. As a practical matter, a corner -- being a point with no dimension -- cannot be physically marked without occupying space beyond the point itself. (Technically, one could mark a corner without encroaching on the adjoiner by placing the monument so that only its outside edges were on the intersecting lines, or by marking a crow's foot, but that's not the way it's generally done in the dirt.)

All that said, I believe that the authority of any monument set by an owner is nil, and adjoiners are free to ignore them.

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If the intent of the PLS Act was to allow an owner to survey his/her own property and set monuments, why wouldn't the PLS Act be as clear on the owners rights as the PE Act?

I don't read 8725 as "specifically exempting" an owner from licensing under the PLS Act in order to perform land surveying on his own property. Sec 6744, in my opinion "specifically exempts" the owner from licensing as a civil engineer to practice civil engineering on his/her own property, under certain conditions (i.e. health and safety related). I believe Sec 8708 would control. An owner performing his own land surveying would be biased which is contrary to safeguarding property and public welfare.

6744. This chapter does not require registration for the purpose of
practicing civil engineering, by an individual, a member of a firm
or partnership, or by an officer of a corporation on or in connection
with property owned or leased by the individual, firm, partnership,
or corporation, unless the civil engineering work to be performed
involves the public health or safety or the health and safety of
employees of the individual, firm, partnership or corporation.

8708. In order to safeguard property and public welfare, no person
shall practice land surveying unless appropriately licensed or
specifically exempted from licensure under this chapter, and only
persons licensed under this chapter shall be entitled to take and use
the titles "licensed land surveyor," "professional land surveyor,"
or "land surveyor," or any combination of these words, phrases, or
abbreviations thereof.

Just my honest opinion...

Consider 2 scenarios:

1. A property owner wants to delineate the line between his property and that of his neighbor. He believes he knows where his corners are, and he drives iron pipes at both corners. He tells his neighbor that those pipes mark the limits of his parcel.

2. A property owner wants to delineate the line between his property and that of his neighbor. He believes he knows where his corners are, and he plants fence posts at both corners. He builds a fence from corner post to corner post, and tells his neighbor that the fence marks the limits of his parcel.

In both cases, if he accurately marks the corner locations, he hasn't damaged anyone. If he inadvertently monuments or builds the fence inside his property, he hasn't damaged anyone. If he inadvertently monuments or builds the fence outside his property, he has damaged his neighbor. In the latter instance, the neighbor has various legal remedies at his disposal that do not involve §8700 et seq.

Question: Is a property owner who builds a fence breaking the law if he isn't a licensed land surveyor?

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The difference in those scenarios, Jim, is that in #1, the neighbor could be given the impression, or may infer that they were set by a surveyor, and therefore may be more likely to acquiesce to the line, right or wrong.

In #2, a reasonably astute neighbor would likely ask "Did you have the line surveyed before putting those posts in?", and would be more cautious about accepting the fence as the true line.

Another item which may or may not assist in any potential violations (per state, county, or city codes) would be an acceptable monument.

Mike, you mentioned the new points set by the property owner was a lead plug and brass nail. What requirements do property owners have to follow in that jurisdiction when it comes to identifying the point. Section 8772 of the PLS Act talks about any monument set by a land surveyor . . . shall be permanently and visibly marked or tagged with the certificate number. So if a property owner can survey his own land, why does Section 8772 even exist? Retracement of the new (un-tagged) points will only add confusion to the methology when set.

I think there are many loopholes in the various acts, and codes, but how do we clean them up? Should I even care?

If the PDF file is attached I hope this helps.

Nice!

Thanks my friend! You are brilliant!

And Keith, this, of course is the $64,000 question!

From Cindi's restatement of §8725 -- "it is unlawful for any person to set...any survey monument on land [in] which he or she has no legal interest" -- it's hard to conclude anything but that it is lawful for such a person to set monuments on land in which he/she has a legal interest.

I agree with her interpretation that §8725 does not specifically authorize persons to practice land surveying on lands they own, but I believe the point is moot. The notion that one is barred by statute from, say, establishing the alignment and grade of a drain line within one's parcel, or from performing a topographic survey of one's property, doesn't pass the giggle test. Implicit in all the statutory definitions of land surveying is the concept that the enumerated acts are performed for the beneficial use of others. Surveying on one's own land poses no threat to the public welfare; no harm, no foul.

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Agreed. In the end, the Board elected not to do anything in this case. In the end, my client has to pay for an expensive new ROS to verify and replace all my markers that were removed and dsiturbed as well as document and dismiss the other new ones set by the neighbor. Under the law, it is my duty as the client's surveyor to document and disclose.
It hardly seems like the consumer is being well served here.

I've never heard of anyone doing this, but depending upon the value of the land, couldn't the neighbor who destroyed valid monuments and placed the bogus ones be prosecuted for fraud, and possibly grand theft or attempted grand theft?

As I said, never heard of it happening... just thinking.