California Surveyors Forums

Whoa....left CA. almost 20 years ago, but for kicks I come here once in a while just to see what's going on.
Wheeler vs. San Bernardino...ahhhh fond memories. I wasn't involved in this case, but I was asked to review the data for a companion case Wheeler vs (Surveyor...name not relavent).
In contradiction to what Ian posted (post #108 in Temporary Line Markers), it is my considered opinion that Wheeler vs San Bernardino, has "Everything" to do with liability and I'm glad that County Surveyors are "still nervous". At the time, most in the area refused to acknowledge that the case even existed.
In a nutshell, the question was (really).....can a county surveyor be held liable with respect to the impact of a R/S that he/she/his office reviews and allows to go to record...if he/she/his office has reason to believe that it is or may be in error?
Now...I may use terms that are not quite the correct legalize so I'll apologize for that first.
Background:
Wheeler had a survey done.
Wheeler disagreed with the location of a portion of the boundary.
Wheeler noticed the County Surveyor that he didn't agree, was having another survey made, and requested that the (1st) R/S be held in abeyance until such time as the second survey was completed.
Needless to say, the (1st) R/S recorded before the second survey was completed.
Wheeler filed suit.

One of the first things the County did was to file for a summary dismissal, based on Governmental Immunity and "this" is the crux of the whole issue of liabilty with respect to this case.

Paraphrasing the Court:
Governmental Immunity is applicable to an action taken by a Public Employee which is (specifically) required by statute or ordinance.
At least in part, the determination of acceptability for recordation of an R/S, involves a professional opinion (on the part of the County Surveyor) that the boundary development is reasonable and meets professional standards of practice (professional determinations made by a Professional Land Surveyor). Such determinations can not be codified...IF THEY COULD BE there would be no necessity for such professionals to exist.

In layman's terms: "Have at it Mr. Wheeler".

I don't really recall the specific allegations, the courts response to the County's initial "defense" was really the most critical issue, at least with respect to Surveyors and Boundaries.

If your characterization of the case is correct, I think it is bad public policy because the CSs start charging huge fees for checking R/Ss which suppresses compliance (whether we like it or not). I work for the State so we don't pay regardless but it hurts the private side of things. There is a Statute that states the Government will pay for no official service therefore not only do we not pay it is illegal for us to pay the fees.

The LS should be the one on the hook, period. The CS can't refuse to file anyway so it sounds like the Court blundered on that one too.

I may be all wrong or misunderstanding the case.

The property owner may write a letter to the CS but the CS can't refuse to file the LS's map so I can't see why the CS should be liable for that?

Dave...

When you say, "The LS should be the one on the hook, period" are you talking about the Wheeler case only, or do you mean in general?

If the latter, do you mean that you can't imagine a situation where a CS rubber stamps a map that is so blatantly, seriously deficient that the CS could be deemed negligent for doing so?

I agree with Woodcutter.

Woodcutter:
I've always been of the opinion that the wisest thing the CS might have done, was add a notation that "a consern had been raised as to the methods used in the boundary development" (even if that consern was by the property owner). As you've stated there is no way for a CS to actually "prohibit" recordation, but the "note" would have most probably curtailed the litigation against him.
As far as removing the "review" process....I'm in Wisconsin now. "Plat-of-Surveys" are required to be "filed" (much like the CR) on any "non-subdivision" survey that is made. There IS NO REVIEW, and trust me when I say...it's not pretty (of course being trained in CA., I guess I'm biased towards a plat you can, at least more or less, tell what was done).

Dave:
I'm "old", as I said it's been almost 20 years since I was out in CA. The fact of the matter is, I'm SO OLD, I can remember when the only cost for processing an R/S was the "recording fee". Sometime in the late 70's/early 80's, it was $100-150 (S.B. Co)...I remember Riverside Co. being around $700 which everyone thought was "rediculous". I have no idea of what the fees today are, but I'm guessing that $700 is "cheap".
With respect to "liability", one issue is that, to some extent at least, the signature of the CS, can be looked at as lending additional credibility to the map. Personally, I think that in "most" cases this is probably a good thing. Once upon a time (even after the implementation of the CR in '82') I tried to file an R/S on any (non-subdivision) boundary that I did. I had to draw a map anyway so that part wasn't a big deal, and the R/S review, gave "me" a second opinion (of course once again...I'm old, most plat review was done by people who were either licensed, headed for licensing or had been involved in boundaries "forever"). By the mid 80's that was starting to change and, in some cases, "review" was being looked at almost as an "entry level/learning" position.

Lee:
You are probably right, "blatent" isn't going to fly very far.
There is one consern that I had when I was out there (starting probably in the early 80's). There was a time or two with R/S's and more often with Subdivison and Parcel Map boundaries, when certain "plan checkers" got (in my opinion), the "big head", and started "dictating" boundary determination methodology. "This is how it's gonna be and if you want to record your map....". Sometimes the "don't rock the boat" factor, and the "I'm gonna have to deal with these guys in the future" mentality, might sway a practitioner into (let's say) "mitigating" his true opinion. In my case, there were actually a couple of times when "I" gave up. Once I realized it was gonna be "one of those" situations, I found myself spending quite a bit of time writing comments and explainations back, and "losing" check prints (a really really bad, slap my wrist twice, habit) when they were ignored.

Woodcutter:
I'm semi-retired, and work part time for another LS, so I have plenty of time on my hands to begin with, and between the economy and not so great weather, the last couple of years I've had even more. Last year, out of morbid curiosity, I took a look at the disciplinary actions taken over the past 10 or so years.
Of the 50 or so actions that I glanced at, MOST appeared to be the result of oversights in drafting (the typical things that would be picked up by even an entry level tech. out there...thus a real advertisement for the need for a good, solid, competent plat review.
I did see one where a guy made a mistake (blunder) setting a corner and (apparently) got reported when he went back to fix it.
I saw a couple that were only related to sureying via a consern with "moral character" (I guess)...one guy had tax problems (that apparently warrented revoking his ticket), and another guy had an alcohol related vehicle accident (apparently not even on the job). Whether these were consistant and long term problems or not...it didn't say.
What I didn't see, was a single case of (what I would call) actual incompetence in boundary development (or any other Surveying discipline), and for me to issue an opinion on that point would require room and time more commencerate with writting a book.

With repect to "self policing", I tend to agree with you, although it does have it's draw backs. Too much reliance on it might lead to the opinion that surveying is a "good ol' boys" club, and all of the in's and out's of that mentality.

I hear what you're saying in your last issue...BUT...that's not limited to County Surveyor's. I got my LS in '76' and my RCE in '81' (note: the last group of RCE's to have boundary authority). In response to a comment made by someone earlier, us "old" CE's were NOT "grandfathered", we were specifically granted the authority upon obtaining our RCE registration , and MOST of the RCE's that I knew or delt with (that did Boundary work) were as competent as most of the LS's that I knew. Right after the change in '82', there was a slue of new RCE's that turned around and got their LS's and (again) most of the ones I knew, weren't all that ignorant. lol

Wheeler v County of San Bernardino is attached.

The issues brought to the court by Wheeler are listed in the last paragraph of the 2nd page of the attached copy, and are as follows:

1) The claim presentation period was one year rather than one hundred days [per the Tort Claims Act]

2) The application for leave to file a late claim satisfied the claim presentation requirement. [Wheeler, under mistaken impression that 100 day limit was in effect, presented his basis for a claim in the form of a request to file a late claim about a week or 2 after the 100 days had run out]

3) The county is not immune [specifically, CS not immune from liability in performance of one's role in map checking/approval]

4) Mandate is proper remedy [Wheeler desired to file a mandate to compel the county to un-file the allegedly incorrect RS)



With respect to issue 1, the court affirmed that the one year period applied since the claim was for damage against Wheeler's title to real property and not to "person or to personal property or to growing crops". The county had "fostered and encouraged" the mistaken belief that the 100 day period was applicable, and therefore had never ruled on Wheeler's original claim issue, but only ruled (incorrectly) on a request to file a late claim.

With respect to issue 2, at trial, the county had contended that since the initial claim was filed in the wrong format (request to file late claim rather than on the proper claim form), no claim was actually ever filed within the proper time period. The trial judge agreed, but stated that the 1 year period applied rather than the 100 day period, so allowed Wheeler to amend his complaint. Wheeler refiled the complaint with 1 week to spare, but failed to state in his complaint that he was complying with the Tort Claims Act, so the county again rejected even considering the issue which was the subject of the complaint. The superior court agreed with the county and this time did not permit Wheeler leave to amend (the 1 year period was past at time of that ruling).

The court, without saying as much thought that the county was jerking wheeler around in avoiding the base issue by hiding behind such administrative minutae. They specifically ruled that it is the substance of notice rather than the rigid adherence to administrative format that determined whether or not Wheeler had provided valid notice of a claim. They clarified that the standard to be used in this determination was "substantial compliance" rather than the ridiculous one of perfect compliance the county was attempting to use to avoid addressing Wheeler's original claim. The court stated that since Wheeler had provided sufficient information in his first claim submittal (request to file late claim), that the county was adequately informed of Wheeler's contentions and intent to file a claim. The spirit of the law was met and fulfilled by Wheeler's effort.


On the 3rd issue, the one so many surveyors seem to think addressed whether or not the CS fulfilled his obligations with respect to Wheeler's RS, or that somehow mandates a higher duty than what is plainly in the B&P code, the court only addressed the correct level of immunity.... (pay attention here)

.... it never addressed the CS's specific responsibility when reviewing and "indorsing" maps. It merely referred to the pertinent sections of the PLSA, but DID NOT EVEN INTERPRET THEM.

Let me repeat that in case some missed it:

THE COURT DID NOT INTERPRET NOR DID IT ELABORATE ON THE PLSA IN ITS STATEMENT OF THE COUNTY SURVEYORS' DUTIES OF REVIEWING AND SIGNING A RECORD OF SURVEY FOR FILING.

What the court did do to address Wheeler's issue 3 was to clarify what the CA Supreme Court had ruled (in Johnson v State of CA) with respect to the immunity of government officials. The immunity extends to officials in ther discretionary roles of making basic policy decisions, but not for discretionary acts at the operational level.

Since map review, although involving judgment and discretion, is performed at the operational level and does not involve policy making decisions, immunity does not attach. A claim can be pursued if there was negligence in the performance of a discretionary act at the operational level. This same ruling could have just as easily applied to the county dog catcher as it could to the county surveyor.

If the chief dog catcher set a policy that only dogs presenting an imminent threat to people were to be captured and all others left to roam about, that would be a policy decision and liability would not attach. If though, a dog catcher on patrol came across a dog that was growling and showing it's teeth, but decided that since it was not actually attacking that it did not present an imminent danger and then let it be, immunity would not attach if that dog subsequently did attack someone.

If Wheeler's original claim with the county had been regarding the dog catcher because a stray dog which should have been caught had damaged Wheeler's real property (heck of a digger, that critter), one could substitute the term "animal control officer" wherever "county surveyor" appears, and substitute the code sections regarding the animal control officers duties with respect to nuisance animals for those describing the duties of the CS, and leave the rest of the ruling alone. The ruling would lose nothing in coherence and its substance would be the same as it is now.

The fact that the government official against whom Wheeler originally had a complaint was the CS, and the particular reason for the complaint are actually ancillary to the ruling. Plug in any governemnt official performing any discretionary act at an operational level and you have the same ruling. The courts only concern was whether or not the act at question was policy level or operational level.


For the court to then rule on Wheeler's 4th issue, it would have had to further explore whether or not the CS met his responsibility under the PLSA, in which case it would have then had to interpret the pertinent sections and possibly elaborate on them (i.e. does the CS have a responsibility to approve methodology or otherwise measure the survey reflected on the map against the appropriate standard of care).

The appellate court's function is to review the application of law by the lower courts. It is not authorized nor able to discover and determine facts. Since neither the county nor the lower court addressed the subject matter of Wheeler's original complaint, there were no facts addressed with respect to what the CS did or did not do and whether or not the duties outlined in the PLSA were fulfilled. Since no facts were considered or even presented to the lower court, there was no application of law to review. Without facts or law to review, the court had no means by which to address whether or not a mandate was an appropriate remedy, or if the actions/inactions of the CS required any remedy at all.



Any related case where Wheeler's survey was the central issue, and the County Surveyor's conduct with respect to filing it notwithstanding, Wheeler v San Bernardino does not in any way, by any possible reading, add to the County Surveyor's duties or responsibilities over what was already stated in the PLSA with respect to map review. What it did do was bring already existing law, as interpreted by the CA Supreme Court, to the attention of counties and of surveyors by stating that the county surveyor is actually responsible for work done by him or under his direction (at the operational level), and reminded all that immunity only attaches at the policy making level.


Because of the Wheeler case, the county had to then address the subject matter of Wheeler's original complaint. It could very well be that the survey was incorrect, or that there were errors on the RS or other shortcomings of meeting statutory requirements. It may be that the CS did not thoroughly check the survey according to the PLSA. But even if all of that is the case, it was not addressed by the court and was immaterial to Wheeler v San Bernardino.

Well, Wheeler was supposed to be attached, said it was attached, but didn't show up with the post. let me try again.

East of Santa Maria the govt did a resurvey of the mountain area. Land owners started having their properties surveyed to this new govt survey.
The survey was never recorded, maybe it was later, because the largest land owner, Suey ranch, had fences that were not on their property line. Would cost big $$ to move them. The Feds have/had a option that if the biggest landowner objected to the map they could not record it.

Lee-what I mean is it should primarily be the Land Surveyor's responsibility to do the Survey in accordance with the Standard of Practice which is already the case anyway. The County Surveyor obviously has some responsibility but he can't stop the filing of the map nor should he be able to. He can put a note on there which would be the best way to handle it.

The system we have is pretty good but I don't think it is a benefit to the public to dump a huge pile of liability on the County Surveyor just for checking maps.

But the way Evan explains it, it doesn't sound unreasonable, the outcome of Wheeler, that is.

What is actually needed is some mechanism where the public who benefits from Record of Survey maps just as much as the property owner pays at least some of the cost of checking. We have a really good system. I use old Surveys all the time to Survey boundaries and I can't imagine how difficult it would be to do without them guessing or trying to find monuments that I have no idea how they got there. My employer (or client for private surveyors) benefits from the use of these old Surveyors essentially for the cost of a copy or sometimes the CS gives me a copy for free. Why shouldn't the public at large help pay for this? One way to do it would be to have a fee similar to the monument preservation fee some Counties have (per Statute).

Shortly after getting my license I had a CS make a suggestion to me. I can't remember the exact circumstances but the gist of it was that, instead of favoring an angle over distance, I should consider the reverse to be more appropriate. I went back to my office and broke out my books and sure enough, he had the better thought on the matter.

I always appreciated that he took the time to tutor me, after all, he was aware that I was the new guy in town and could use some advice here and there.

There's a lot to learn and digest with this profession. Imagine a small firm, let's say, and this firm doesn't have any good mentors to speak of, and you're a new licensee and you naively fail to realize that you didn't consider Jr/Sr rights in your analysis. The CS then becomes the public's last defense against a seriously inadequate map getting into the record, one that could harm the client and/or their adjoiners. I am firmly convinced that we should expect of our County or City Surveyors that their checking process should catch these kinds of oversights and bring them up to our fellow practitioners out there.

It's one thing where they use their bully pulpits to coerce changes out of us for decisions that we are comfortable with, quite another when the incompetence of the checker allows bad work to slip through the cracks.

As I read Evan's excellent summary of the case, I take heart that public agency's are, in fact, expected to help protect the public in this way.

Lee:
That's exactly the type of thing that I used to "like" about the review process out there. No matter how experienced you are...No mater how thorough you try to be....there's always the possibility that you "might" miss something, whether it's in the field or doing research.
Back in the day, when I was (myself) was doing plat reveiw, my supervisor (an RCE by the way) always told me (other than 2+2 does not equal 5) that I could "question" and "suggest alternates"..but my job WAS NOT to tell an LS or RCE HOW to do ANYTHING.
When I was practicing out in CA. (admittedly) I whined and complained as much as anyone about the process (takes too long...this guy is a real idiot...etc.). Now that I'm in a juristiction where there is no review process, I have more appreciation for it.

Dave Ryan:
Well Dave, I'm not actually back in CA., nor do I intend (at this very moment) to return...but I maintain my licenses there...JUST IN CASE...lol
I personally prefer a senerio where what I call the "Fear of God" rule is implemented. The private surveyor probably makes more of an effort because he knows someone (presumably who has a reasonable understanding of boundary) is "definitely" going to look at his work, and the CS makes more of an effort since there's a possibility (even though it's probably quite small) that he/she might be on the same hook as the private surveyor, should the survey be challenged.
There are two sides to an R/S...the private surveyor and the County Surveyor. I agree with your comment involving "questionable" if you are speaking from the standpoint of the CS, and the "questionable" issue can be seen as a "6 of one, half dozen of the other" kind of thing.
On the other side of the question...the private surveyor HAS to feel comfortable about what he's done.

I appreciate a thorough review from the CS for the same reasons others have stated here. If the CS or his regular checker see a potential issue, rather than taking offense that someone is questioning my survey, I'm glad for their input.

Usually, any comments I receive have been about adding a record dimension here, or a note of clarification there, and sometimes they are regarding style. Every once in a while, they have brought a piece of evidence to my attention that I was previously unaware of - an unrecorded survey, a road dept or railroad map separate from other records - or offer a perspective on the use of evidence I may not have fully considered. Although I appreciate the extra set of eyes to catch typos, missing dimensions, etc., it's the more substantive comments that I've really been thankful for. There have been times that after consideration, I stay with what I've already determined. But there has also been a time or two that extra bit of evidence or different perspective has caused me to alter my determination in some way because the evidence has lent more certainty to a boundary location or the resulting determination of a line open to more than one interpretation is more defensible.

I have found in at least one county, some surveyors get more comments than others. Not, as one might think that the less diligent surveyors get more comments, but those who may be more receptive to advice. The map checker as much as told me so after I asked about it after seeing a RS filed by a local unlicensed guy who gets his retired father living several hundred miles away to stamp his maps, a RS reflecting a survey that I know had ignored very important evidence leading to a very real gap in title. I knew the map checker was well aware of the evidence (much of which was shown on the maps listed as references by the unlicensed guy).

Me: "If I had missed even a little bit of that, I know you would have brought it to my attention. Why didn't you call him on it?"

Checker: "First, you wouldn't have missed it, but if you did, I know that you would act on the comment and correct it. If I reviewed his maps the way I review yours, I could go through 6 check prints and it still wouldn't be right, so why bother. It's his liability if it ever goes to court."


I have mixed feelings on that. On the one hand, I see the checker's point. The CS office has only so much authority, which doesn't extend to insisting the surveyor use or even consider additional evidence, or enforcing laws regarding practice (the unlicensed practice/rubber stamp by distant retired father is a whole different discussion), and if there is a long history of difficulty with repeated reviews with certain surveyors, I can understand the attitude of leaving the review at the statutory minimum and giving the surveyor the rope with which to hang himself.

On the other hand, there are real clients and adjoiners who will suffer the consequence of this poor surveying at some point. If disputes ensue over the boundaries, it isn't just the surveyor's liability and license on the line. There's also the real costs of legal fees, not to mention the time and stress involved to the landowners in a dispute to litigate or settle the matter. And there is also the argument of whether the CS, if he or a map checker under his direction are aware of evidence not considered, possibility of alternate solutions, and so on, has a duty to bring the matter to the surveyor's attention and add a note per §8768 if the comments are not adequately addressed.

There is nothing in the PLSA that explicitly places responsibility on the CS to ensure that the RS reflects a survey performed to the appropriate standard of care, although one might make a reasonable argument that §8764(g) implies it.

The County Surveyors are a great resource we have other places don't.

I apologize to some I have peppered with questions ;-).

I have not had a bad encounter with a County Surveyor; for the most part the comments are good constructive criticism even when they aren't technically allowable (such as preferred local symbols). If they want me to use a local symbol for something I'm all for it because it makes my map easier to understand for local surveyors. If they want me to change my boundary determination and I disagree then I explain further why I did what I did. That only happened once and ultimately the map recorded without a note. I don't consider a comment like that out of line, though, it's just the CS doing his/her job.

Sometimes I use a word which is commonly understood in another County and the CS says to define it on the map. You should do that anyway, will the Surveyor 100 years from now understand what the heck you wrote?

I think there could be a better way to finance R/S checking but obviously the County Surveyor can't do anything about that; it requires a Statute change.

Jim: before I first read Wheeler, I assumed that it was a case all about an RS an the CS liability for checking them. Since Wheeler is cited as the reason for the level of scrutiny given maps, I was surprised to see that virtually all of the decision was related to the time limits for filing and the actions taken by the County regarding those limits. I still stand by my original statement. This case is NOT a landmark case concerning liability.

Nevada and Colorado have CSs but do not require the review process by the CS. On the whole, the quality of maps in Nevada and Colorado exceeds that of maps filed in California. NV and CO both have mechanisms for Board review of substandard maps that are brought to their attention. Substandard filed maps are prima facie evidence of incompetence or negligence.

The benefit of such liberal recording? Even Land Title Surveys are recorded in Colorado. What a treat to work in a state where maps abound.

Ian:
I think the primary consern with respect to Wheeler vs San Bernardino, isn't the details of the litigation so much as the fact that it established the idea that (what can be shown to be) "professional" actions, taken by a CS, are not (summarily) covered by "Governmental Immunity", as initially alledged by S.B. CS defense team.
As I said in an earlier post, I think had the CS placed a note on the map, in some way indicating that an "issue" existed with the boundary as show, that the action against the county would have probably gone no where.
Maybe I was a "little" to close to the case to be all that open minded about it, but I (also) stand by my opinion.
As I stated above, here in WI, there is no review process (subdivision excepted). In theory, we have to "file" plats on anything we do...most do. As a result there is a plethera of mapping available. The BOR (again as previously noted) has a process for reviewing compliance (upon complaint).
Being used to CA. standard (ingrained during my training and practice there) the mapping here doesn't hold a candle to that which I remember in CA.
The boards review seems to be limited to "drafting requirements" and not "boundary development". I can't speak for anyone else, but give me a single map that shows me enough to figure out what was done, and an idea of why it was done, than 10 plats that show 4 lines connection 4 circles (indicated as simply iron pipe) with just enough dimensioning to close, half the time it's "record" information. The other problem here, is that the plat "filing system" is also used for construction documentation, so you have a "proposed plot plan", a "revised proposed plot plan", a later site plan showing contours", a new proposed plot plan showing an addition and maybe an "as-built of the addition" (if the permitting juristiction requires one).

Utah has a major problem with a significant portion of licensees that are completely ignorant of Jr/Sr rights and the distinction between simultaneous vs. sequential conveyances. Proration is the order of the day. It is a huge problem. Inadequate to awful maps are found all over the state. When surveying my parents parcel I ran across numerous maps with a remote (many thousands of feet away) P.O.C, with a dashed line to the PIQ, and no mention of any adjoiner deeds. They didn't even bother to show the line work for the neighbor lots, let alone "resolve" them.

It is also a state where they don't check your Record of Survey.

Are the two related? Damn right they are!

Then you have some SoCal counties that literally rake you over the coals--a virtual adversarial relationship right out of the gate. I prefer a middle ground. I want a licensed surveyor to check my map and bounce alternatives off me. And as for liability, the CS should be expected to look for, and catch, major omissions or errors on the part of all of us, anything that could have negative impacts on the general public. That should be their duty. They should be a final safety check.

I know the arguments on the other side. But after working in Utah, I want my CS on board. California is all the better for it.

"If the CS does not understand the case law and/or the proper boundary procedures he may be practicing out of his area of competence, which is another issue."

I have run across just such a situation before. In reading the Board Rules I don't see where there is any obligation on the part of a licensee to turn in anyone, CS or otherwise. Did I miss it? Is it addressed anywhere else?

Here, here!!

You are stepping on my territory Dave. ;)