Revisited - Unrecorded maps pros and cons of sharing

[MFORD]

I was recently reviewing the May 2010 discussion thread on “unrecorded maps and the pro and cons of sharingâ€￾. Some of you may know the “Unrecorded Mapsâ€￾ topic is currently being discussed by the State Legislative Committee. Hopefully the Leg Committee at their March meeting will vote to forward the Unrecorded Maps legislation to the BOD for a vote and eventual passage by the State Legislature. Several people in the discussion thread brought up points that bear revisiting while considering the proposed legislation.

For my own re-education on the subject matter I reviewed Brown’s 6th edition of Evidence and Procedures, section 7-26, “Private Platsâ€￾ as evidence. Brown basically says that the courts treat recent private plats (surveys), field notes, etc. as “hearsay evidenceâ€￾ under the Federal Rules of Evidence (FRE), unless the information can be authenticated by the original surveyor. Also, the private plat(s) evidence is subject to cross examination by the parties. Brown goes on to say that ancient maps (30 years old or more) fall under FRE “exceptions to the hearsay ruleâ€￾. The “exceptions to the hearsay ruleâ€￾ basically says the information shown on ancient maps is authentic unless the contrary can be proven.

Although surveyors aren’t official officers of the court system, the survey maps we file make a legal case (opinion) for the boundary lines depicted on the maps. These maps are the result of reviewing and considering the weight of the available evidence, public and private, to locate boundary lines. In that context the information shown on a survey map is evidence presented to support our conclusions without prejudice to either adjoiner (parties). That evidence falls under the guidelines of the Federal Rules of Evidence. In the case of referencing ancient unrecorded maps (30 years old or more) as justification for locating boundary lines it would follow that the unrecorded maps are evidence under the FRE and are required to be available for cross examination by both parties (adjoiners.)

It would be unreasonable to expect private surveyors to make their records permanently and perpetually available for inspection. The only sure way for the ajoiners of both sides of a boundary line to authenticate an unrecorded reference is to make it available at the time the case is presented (the map is filed.) The easiest and obvious solution is to require the unrecorded reference be put into the public domain in either of the two ways prescribed in the proposed legislation. 1) submit a copy to the county surveyor or 2) filing the unrecorded information as a “reference pageâ€￾ with the new filed map.

I’m not insinuating that surveyors are qualified to stand in for and make decisions on behalf of the courts. But it stands to reason that if we are expected to render our professional opinion on matters affecting boundary we should have all the known available evidence.

[dmi]

These rules apply in cases that are under federal jurisdiction. Cases related to boundary issues where no federal interest is involved fall under state juridiction. The last time I was involved in a discuss of "FRE" I was told that California has it's own rules of evidence and has not adopted the federal rules. I have not done any research on this perhaps Woolley, Page or Propst
would know for sure. It is very likely that California has it's own similar rule with respect to acient maps.

[E_Page]

Yep, CA has its own version.

http://www.leginfo.ca.gov/cgi-bin/calaw ... ction=evid

You're correct Dane. FRE does not apply in CA State courts.

[MFORD]

I stand corrected on the FRE pertaining to CA state courts. Thank you Dane and Evan.

The crux of the post isn’t changed using the CA Rules of Evidence. The unrecorded map reference in really no different than introducing an Oath as evidence. Without authenticating the referenced map it’s of no value. In reference to the previous post on the pros and cons of sharing unrecorded maps, in my opinion, there are no cons. The only question is how to share them. Maybe the questions is better stated “the pros and cons of the methods of sharing the maps”.

[Stephen Johnson]

I agree that the only question is how to best put them in the proper position for access by/for/to surveyors in the state.

[MFORD]

Woodcutter,

You and I are of same mind. My objective is and has always been to make these records available. In some areas these old records are invaluable and every effort should be taken for their preservation. Unfortunately in my area there are those in our profession that see these old records as a way to keep others out of their territory and to discourage competition. They could give a hang about the preservation unless in benefits them personally. The most recent tactic is claiming copyright protection to their archives, which means the records can’t be copied, recorded, etc. So much for looking out for the public interest.

Making electronic copies in either PDF or TIFF format was an idea which was suggested in the first drafts of the proposed legislation. Some CS didn’t want the responsibility or didn’t have the budget or manpower to keep electronic copies and make them available to the public (hard copies also seemed to be out of the question due to space and manpower.) Every CS has a different filing system for the maps that come through their office. Finding a standard every CS office would agree to is more daunting than the current proposal. Each CS should have the option of keeping maps on file in whatever form and system they choose, similar to Corner Records.

The amnesty idea is worth considering. However, most of these records are from deceased surveyors or those that have long been retired. Getting these archives into the public records is not in the best economical interest to the current owners. I’m speaking from my own personal experience in the counties I work in. In other areas it may be different. Case in point. I had one archive owner tell me he had to double his fees for accessing his records because no one was utilizing his services. He went on to say that he may have to report those that didn’t use his services to the BOARD for lack of due diligence.

Any suggestions to solve the access and file format issues are welcomed. The best solution would be for those that own the archives to cooperate and voluntarily work towards getting the pertinent information into the public records. I can say without a doubt that short of a change in the PLS ACT it won’t happen. The thinking is to get the PLS ACT changed first and then work on the other areas of the state statutes.

[btaylor]

"He went on to say that he may have to report those that didn’t use his services to the BOARD for lack of due diligence."

I find this an interesting stance. I would be very curious to see if the Board took the side of someone who has personal records of deceased/retired original/first surveyors over that of a surveyor who may be ignorant of the existence of these records. Seems presumptuous at the very least. It can take awhile to comprehend areas and who has certain records that can prevent opening up a can of worms among the public.

We here in San Mateo County are very lucky to have a competitor that lets us research in his office among the records of two surveyors who in many cases are the first to break down blocks and have saved me, and therefore the public, a ton of problems. In this case, it is hard to miss him since the name of his company bears his name among those first surveyors. This is not the case with many companies.

[dmi]

“History is the foundation of the retracing surveyor”
Brown

FRE or not, we face a very significant problem in the preservation of records and access to those records. I do not believe that there is a WIN-WIN solution, but we ought to seek a balanced and fair minded approach that aides in our primary function of protecting the public.
We ought to consider a statewide despository for historical records that makes the records available to the public for the asking and at a small coping and preservation fee to fund and maintain the collection.

[E_Page]

The idea of getting private records into the public domain is a good one on many points. And I'd probably agree with nearly every one.

But I have a problem with the "have not's" appointing themselves to be the ones who get to determine what is fair in terms of what the "have's" need to share, when they must share it, and what the statutory fee would be for what they share.

For the record, in terms of private records collections, I am a "have not". I have what is contained in my own project files, which in some cases, includes copies of unrecorded maps or notes I have been fortunate to come by.

But if not for the foresight and investment of other surveyors (the "haves"), many of the unrecorded survey info I or any of you other "have nots" have been able to utilize would have been lost to a trash dump or burn pile many years before we ever had the opportunity to see it.

I know a few surveyors who have either inherited records or have purchased collections of records. Some of these surveyors spent significant sums to obtain those collections, and then have spent considerable time or paid considerable sums in wages to employees to index and create searchable records systems for these records, and continue to incur costs of storage and maintenance of those records.

How many of you, my fellow "have nots" have a realistic idea of the value of the investment of time and money the "haves" put into the records you so much envy? I don't fully know the costs, but I could take a good guess given a look at a collection.

Even if the records are just 15 or 20 boxes of unindexed old job files, a storage closet in a climate controlled building is going to mean ongoing storage costs of about $100/month.

What is the value of the time organizing and indexing? How much would you charge a client to sort through several boxes of old property records to tell them what they've got and what you can do with it as a surveyor? $100/hr? $150/hr? More?

What if that client didn't pay you for your time organizing the whole batch, but just proposed to pay you for certain documents that you found among the many boxes - how much would you charge for those few documents? What if the subject property changes hands and the new owner, upon finding that you have all these records pertaining to the property, comes to you to obtain copies of some of the documents? Would you charge just for the cost of copies? Would you charge for the cost of making copies including your time to pull the documents out of your previously indexed files and make the copies? Would you try to recoup some of the costs of the time you have already put into sorting through and indexing those records? What's fair? In this example, you didn't even have to pay for the records because your original client gave them to you.

Of my fellow "have nots", have you ever had the opportunity to obtain a collection of records either for free or for some offered price? If you were and you are still a records "have not", then I guess that you did not take advantage of that opportunity.

Why not? Was the initial cost too high? Did you not have the time to deal with the records (i.e. your time was too valuable to divert from other activities)? Did you not have a suitable storage location (i.e. were not able or willing to dedicate existing building space or rent a suitable space to store the records)?

So without even having the willingness to learn what the real costs of obtaining, preparing/indexing, storing, maintaining, and searching these private records collections, some of you, my fellow "have nots" have declared yourself competent, qualified, and righteous to declare how must share what for how much.

How much is a map and some notes worth? How much time does it take the owner to locate and copy the records? How often do such requests come in? What are the storage costs? What were the original purchasing and indexing costs? What is the value to the survey being conducted? Is the person requesting the records someone who underbid your reasonable estimate by 70% to get the job? (OK, maybe that last factor is debatable as to whether it should be considered in the fee you would charge for the records, so we’ll leave it out). Is the person requesting records someone who has been very clear that they believe you are perpetrating an evil upon the public by not having already made your records public for a nominal fee? (that one may be important)

For discussion, let’s say you get 1 such request per month, that you rent a space for storage that costs $200 per month, that your original purchase price of the marginally organized records was $6000, and that you’ve invested about $30,000 of your time and time paid to employees to sort through, organize, index, and create a database for the records. Let’s also estimate that you’ve set a goal of recouping your costs over a 5 year period based upon 1 request per month.

One-time costs of $36,000 divided by 60 months = $600/month. Ongoing storage costs = $200/month. Typical time to locate, pull, and copy the records might be 1 hour, sometimes less, sometimes much more if the requester isn’t quite sure what they might need. Copying costs are nominal. You might have a policy of letting trusted colleagues do their own searches, but those you don’t know, and especially that guy who considers you a borderline criminal for not giving away your records get more personal service, meaning that you or a knowledgeable employee will actually conduct the search at, say a professional courtesy rate of $100/hr.

Just to cover the ongoing costs, not including recovery of initial investment, you would have to charge $300, minimum. If you were to also work in recouping your initial investment, you would have to charge $900.

But who wants to pay $900 for records that should be public anyway! Outlandish! No one should be charged more than $100, right? That seems fair… to a “have not” who has not made the investment himself and doesn’t care to understand the reasoning behind the fee charged by particular “haves”.


While making the effort to get informative records of private surveys into the public record is laudable and most often worthwhile, I can assure you that some of what is being proposed, and the tactics of demonizing the "haves" on this score will be ultimately counterproductive to the ends of making such records more readily available.

If you are able to determine what is fair solely upon what you want to pay and without an appreciation for the actual investments that have been made, you will set a fee cap that in many cases may not cover the costs of the investments. You will destroy the incentive to share the desired records at all. Many such collections will be held for the sole purpose of giving the owner of those records some margin of advantage in certain areas.

As this generation of surveyors retires and the next reach that point in their careers where obtaining collections of old records might seem advantageous (read worthwhile), if statutes that penalize those who have invested in such records come to pass, there will be no incentive for younger surveyors to purchase these collections from the retiring surveyors. What will happen to those records then.

“Well they should have the decency to donate them to the county… blah, blah, blah”

Yeah, yeah. It’s easy to be so high-minded when you have no real investment in the matter – nothing to lose and everything to gain. Being magnanimous with others’ property is easy when you have no appreciation for their investment and effort in that property, when you won’t even consider a means to address their interest whiole furthering the goal of making records available.


Then what's the next step? Will you compel the owners of those collections to make their collections publicly available by law? How will you do that? Will the government have to confiscate private (non-real) property for the greater good of the people? (I am now envisioning scores of faceless surveyors, goose stepping under hammer & sickle flags, with range poles over their shoulders, followed by government pickup trucks with file boxes and tube files bristling from their beds as they roll by the state capital, while from the steps, members of the Board and a few of the more prominent county surveyors and other party members look on approvingly).

If you want to ensure that these records begin to disappear forever, then go ahead and ram a law through that creates disincentive to obtain records and put them into a usable format, and punishes those who have already gone to the expense and effort to do so.


I don’t condone gouging by the “haves”, but I also recognize that the “have nots” can engage in a form of gouging as well by attempting to push through legislation which will restrict fees to unrealistic levels, and ultimately be extremely counterproductive to the stated goal. That raises the question as to whether the goal is really to serve the public by getting private records into public repositories, or simply to take away a perceived advantage held by the “haves”.


I’m all for a workable means of getting informative records into public domain. But that means the plan to do so must respect the investment of $ and effort by those who have taken the responsibility as private citizens to do what the public sector was unable to do. I’m talking about those who have purchased or inherited records, not those who should have but did not file maps of their surveys as required. I like the amnesty idea for them.

[dmi]

Evan, again you offer a thorough consideration of the issues. As I see it, some private record collections contain records that ought to have been made public as a requirement of law since 1891.Many of these collections contain records that are far more valuable than the documents that would have been subject to recordation in the first place. No one ought to be punished for their business decision to buy and maintain records. At the same time, I am uncomfortable supporting a system whereby important records that ought to have been made a part of the public record are withheld from the public just so that a system of private records can be maintained with the main benefit going to the owners of the records.
I do not suggest that the big government march in and take private records. I do suggest that our profession occupies a niche that is based upon it relationship to government.

I am not sure what I would suggest, but perhaps CLSA ought to consider finding a way to buy records.

[Stephen Johnson]

Evan, again you offer a thorough consideration of the issues. As I see it, some private record collections contain records that ought to have been made public as a requirement of law since 1891.Many of these collections contain records that are far more valuable than the documents that would have been subject to recordation in the first place. No one ought to be punished for their business decision to buy and maintain records. At the same time, I am uncomfortable supporting a system whereby important records that ought to have been made a part of the public record are withheld from the public just so that a system of private records can be maintained with the main benefit going to the owners of the records.
I do not suggest that the big government march in and take private records. I do suggest that our profession occupies a niche that is based upon it relationship to government.

I am not sure what I would suggest, but perhaps CLSA ought to consider finding a way to buy records.

A possibility. Or Possibly finding a way for surveyors to get a substantial tax break for "Donating" copies of their unrecorded surveys to the CS offices and other Archives. Of Course the CS/Archives would charge a small fee for copies to other surveyors.

[MFORD]

Evan

We have gotten off track in this thread from the “best way to get private surveys into the public recordsâ€￾ to “punishing the holders of the private records.â€￾ The spirit of the proposed legislation is to get into the public record all the available information that may have an effect on boundary lines. As written the legislation doesn’t restrict the private record holders (haves) from charging whatever the market will bear (that’s the free market system). The legislation simply says that if a private survey is referenced on a ROS that record has to be made available to the public for inspection, the same as deeds, recorded maps, highway maps, railroad maps, etc. The way the system is now the holder of the private record can refuse to make copies available to anyone. The result being that the record is lost to everyone except the have. As far as what the “havesâ€￾ charge, the PLS ACT or any other legislation doesn’t guarantee business success. Nor does it restrict or put a cap on what we can charge for their services.

The haves made an investment in private records for their own reasons and purposes. They also, I assume, made an analysis of the value of those records to their businesses. The motive of the haves in my area was to “gain a competitive edgeâ€￾ and restrict competition from the have-nots. The problem with their business model is that they are perpetuating the illegal practice of not recording those private surveys when they are discovered. Let’s not confuse their free market business model with a magnanimous offering for the benefit the public.

As far as I know there are no plans to compel the haves to make all their private records public. Let’s not get hysterical. The proposed legislation is very simple with no hidden agenda or motives. Private survey records if used as a basis for boundary line determination by the nature of the reference on a ROS are put into the public record. Those referenced private surveys should be available to the public without having to request the “havesâ€￾ for copies, which they can refuse to comply with. How does that serve the public good? (I have had two surveyors in the last month refuse to furnish me copies, at any cost, of unrecorded surveys referenced on their ROS.)

You bring up many points worth pondering that bear more discussion than this space allows. Having your direct competitor do your research for you comes to mind.

I echo Dane’s comment that your posts are well written and thought out. Thank you for the additional food for thought.

[Lee Hixson]

But what about the other group of "haves"? Not the firms that purchased some other surveyor's records, but those existing firms with old, unrecorded maps of their own making?

That's an entirely different situation. What, if any, onus is, or should be, applied to them? They didn't "purchase" a set of files. Are they, should they, be obligated as a matter of professional ethics to provide copies? Are they, should they be, obligated by any law or court decision to provide copies? Should they also be allowed to charge for copies of maps that have been produced, maintained, and indexed out of the profits from their own past clients?

Seems to me that there should be an obligation to provide copies at no charge. And the haves/have-nots juxtaposition isn't applicable in this case, is it?

It's not about benefits accruing to the have nots, but the benefits that can, and should, accrue to the public.

[dmi]

What obligation do the owners of private records have to the PUBLIC with respect to records that ought to have been made available to the public in the first place? The ANSWER lies somewhere between NO OBLIGATION WHATSOEVER and giving the records away for free. The answer is somewhere between 0 and 80 miles and hour. We ought to engage in a balanced and fair minded approach that best serves the public.
In the meantime, valuable records are being lost by survey rig full everyday because we as a profession have no statewide coordinated plan to preserve these records and make them available.

[E_Page]

There are two issues which have been discussed in this and other threads.

1) The ability to have adequate access to private records essential to an accurate modern retracement.

2) A means to place any records gained into public record.

Separate but related issues.

The means to place them in record exists, but some counties are reluctant or unwilling to take on the burden of the additional records storage and maintenance. They can be given to the CS to file as Miscellaneous Maps, available to the public through the CS office. Or they can be scanned and inserted on subsequent sheets of the RS you will file.

While a private surveyor cannot demand that the CS accept such a map for filing as a Miscellaneous Map, or accept notes of old surveys and create a filing system to keep and make such documents available, I am unaware of any reasoning a county could use to prevent a surveyor from attaching the images of such records as a subsequent sheet or sheets to their current RS.

I have seen an example of this having been done by Dave Woolley, and Mike Ford posted an example of doing that a few weeks ago, as I recall.

I’m know some counties refuse to accept such maps for filing as Misc. Maps, citing no space or facilities to maintain the records. And I’m sure that some counties would be resistant or perhaps even refuse to file a RS with a scanned image of an older map included on it, most likely citing reproducibility or possibly failure of the old map to meet current PLSA requirements. For those cases it may be worthwhile to have a provision in the PLSA or the portion of the Govt. Code pertaining to the CS and/or the County Recorder to specifically allow or provide for the inclusion of unfiled historic survey data necessary for the intelligent interpretation of the current boundary survey into public record by one of these or another method.

Most of us have come across or heard of instances where a government functionary has thrown dozens or even hundreds of valuable survey records in order to make room for new cubicles or to store newer useless paper. Unless a county has a very specific, clear filing system for such records, or without a statutory provision for it to enable (coerce?) the other counties to do so, I fear that those old records are no safer in the care of a public agency than they are in the hands of a private surveying firm.

The argument I've heard from those owning private records against doing either is that it diminishes the value of their records and hinders their ability to recoup costs. Since I doubt that providing copies of unfiled survey records is a significant profit center for anyone having those records, I presume that the concern is mostly, if not entirely about covering costs.

I’ve heard the argument about copyright. I don’t know, it’s been discussed/being discussed on another thread here and in other forums. My understanding is there is no protection as to the facts presented in those old records (or any survey), but the particular presentation, to the extent that it is unique is generally covered. To what extent that pertains to acquired records, I don’t know and it’s not my intent to send this discussion off on that aspect.

There must be some price point at which the value of particular records is covered, justifying from a business perspective, the release of private records for public filing. Once the records are made public at the nominal copying fee that an agency would charge, the value of the copy or original retained would be greatly diminished in many cases.


There is also the balancing, as many have pointed out, of one's professional responsibility to protect the public from the harm inaccurate surveys would cause. I am not convinced that a PLS owner of old records is not fulfilling that responsibility just because those records have not been placed in the care of a public agency. But there is a wide gray area between not making them available at all and giving them to a public agency.

In many cases, those who now own such records have made previously unavailable or very obscure records more readily available and easier to research. You or I may not like the cost of obtaining copies from the current owners, but the fact remains that had those owners not made the investment in those records, we would now have no hope of finding them at all. In that regard, which is an important one, they have done a great service to the profession and to the public.

If one who owns the records refuses to make them available for any semblance of a reasonable price, then IMO they are abdicating their professional responsibility. But as I discussed at length yesterday, a reasonable price is not necessarily what you or I would like to pay, but one based upon the records owner’s investment and ongoing costs, and arguably the value of the records to the project at hand. The value of a map showing original corner monuments for a small parcel of remote desert or timber property would have a very different inherent value than a map showing the location of every original redwood corner stake in subdivision of multimillion dollar lots.

If one argues that a professional surveyor who owns old unfiled records has the duty to make them public, then to be consistent and intellectually honest, you must also hold the belief that any licensed surveyor, given the opportunity to come into possession of such records has the duty to obtain them, organize them for efficient searching, and make them readily and reasonably available to the public. If one does not, that surveyor is abdicating his or her professional responsibility even more than the one who obtains the records but does not make them available because the records passed upon stand a very good chance in many cases of then going to the dump and being lost forever.


Dane, your suggestion of CLSA working to obtain such records and make them available is possibly the most responsible option we, as collective members of the profession might pursue. It would probably be best done at the Chapter level as private records collections are almost always restricted to having regional or local value only.

At the chapter levels, members often know who has old records, both as organized collections, and often also as boxes sitting in the shed or attic of some retiree or of the heirs of a deceased surveyor. Those latter records are what I would consider to be “at risk” records, eventually slated for the dump if not obtained and preserved by someone or by an organization recognizing the potential value.

Unless and until the local CS or Recorder has a reliable and safe system of filing those records, the responsible thing for the CLSA to do would be to also organize the records and make them publicly available somehow.

But then the question of what “publicly available” means comes up. Does it mean that the records are readily available if you are a member of the local chapter and have a password to access the members’ only section of the chapter website, where you can download tiffs of what you need? Would it be available to any CLSA member; to the general public? Would the chapter charge a fee per copy? How would you set that fee? Where would the chapter store the originals, and if someone wanted to inspect the original, how would the chapter arrange that access?

[E_Page]

As to a particular company’s old records, I see at least a couple of different scenarios that would prescribe different levels of professional responsibility. 1st, if the current owner is the licensee who had performed the previous work and prepared the unfiled maps, to the extent that those surveys fell under the recording laws in effect at the time the survey was performed, that licensee is still obligated to file the appropriate map. The question is how to get them to do that without creating an incentive to eliminate past liabilities by burning the records.

2nd, the licensee who performed the work is retired (license retired or lapsed), and most likely has conveyed his or her interest in the company to others. What is the obligation to the new company owners with respect to filing maps of old surveys?

Since the obligation is on the licensee as to licensing issues, there is probably no obligation beyond any that might contractually be outstanding with those past clients. The entire PLSA, even those sections addressing business activities, addresses the rights, responsibilities, duties and authority of the individual licensed surveyor. It does not address the rights, responsibilities, duties and authority of any business entity. Even the contracts section (8759), a basic business function, is expressed in terms of the licensee’s responsibilities.

Technically, the retiree still has the responsibility to file maps of any surveys which were required to be filed. But if they are no longer licensees, what is the incentive or the hammer that could be used to get them to file? The Board could cite them, prosecute them through the AG, or perhaps refer them to a local DA. What’s the likelihood of a DA prosecuting? I doubt it’s ever been done for non-filing. As to whether the Board has ever prosecuted a retiree for non-filing, and how effective that was, I don’t know. Perhaps if Ric is following, he could chime in on that one.

But let’s just hold on to the presumption, for the sake of discussion that the company has some obligation to file those old company surveys. If it were the original licensee, he or she would be required to file maps that meet the current requirements of the PLSA. Would you suggest that the company, which was the party contracted to perform the surveys, would now similarly have to prepare RSs meeting current mapping requirements? If you start with the same obligation to file on the company as you do on the licensee, then it logically follows that the same mapping requirements would be in place.

If the original licensee is retired or unavailable, who would stamp and sign these maps, and what would the Surveyor’s Statement be? It couldn’t be “… a survey made by me or under my direction…”. Would there be a different statement declaring the information shown to be reflective of unfiled survey records, and specifically disavowing any express or implied representations of accuracy? A “Non-Record Data Record of Survey”? Hmmmm…

What about those old records that do not close? Would the company then be obligated to go back and resolve a 40, 60, or 100 year old survey?

How would you, the county, or BPELSG determine which old surveys warrant the filing of a map? It would have to be on a case by case basis, as one finds evidence of an unfiled survey in a particular location. In reality, such a system would probably bring a very low percentage of such surveys into the public record, and would create a largely unenforceable enforcement problem, even if BPELSG had similar authority over survey businesses as they do over licensees.


Whatever proposals are made, if they are legislative, there are a lot of details to consider in order to avoid the unintended consequences of having records become less available rather than more so. A proposal of a private organization obtaining records and making them available would have the least likelihood of that happening and would accordingly have the best chance of working well.

[MFORD]

Evan,

The proposed legislation is very simple and not nearly as complicated as its being represented in this thread. If an unrecorded map is presented on a RS as evidence to the location of a boundary line, that unrecorded map has been entered into the public record by that reference. The surveyor that accepts the unrecorded map and uses it is accepting the contents of the map either in its entirety or in part. It’s up the individual surveyor to explain on the reference page or in notes the particular circumstance why he accepted it. Whether or not the referenced map meets the current ROS standards is moot. If that were the litmus test none of the unrecorded maps would be acceptable. Again the legislation only deals with those maps brought into the public record by reference on a filed map.

In that respect it’s no different than accepting or not accepting a recorded map. The difference is that all the interested parties can examine the recorded maps, deeds, highway maps, etc. because they are accessible through the public records. Not so with private records unless the owner allows it. Browns 6th addition explains evidence in detail and basically says that each party has the right to all the evidence to either accept or reject. I suspect that’s why California is a recording state. This legislation says nothing about all abuot the unrecorded maps in all the files of all the offices of every surveyor in California. It only deals with those maps brought into the public record by reference on a filed map.

The source of the unrecorded map is irrelevant. Whether is comes from some ones attic, the archives of a practicing surveyor or the archives of a deceased or retired surveyor, the important issue here is to get that map into the public record for all who have an interest to see and examine. This is a situation where a surveyor introduces evidence that may change the location of boundary line(s) that that surveyor alone is privy to. That evidence under the current practice is not required to be disseminated to anyone for any reason short of a court trial.

I can envision a scenario where the archive holder is the surveyor on the opposite side of a court case that he used references to unrecorded maps to determine a boundary location. Am I expected to hire him to do my research of his unrecorded maps the case hinges on? How would the courts view that situation?

The arguments in favor of the legislation outweigh the concerns you mention, which can all be mitigated. Worrying about what to do with those errant surveyors, retired or otherwise, who practiced outside of the PLSA intentionally or unintentionally is a subject for a different discussion. The possible exception being those still living, non-practicing and retired would be granted amnesty with a sunset date.

If the archive holders this legislation address were so concerned about preserving the records for the public good, why would they be claiming copyright infringement? If they would rather destroy the records than make them public when the opportunity arises what does that say about their professional ethics and morals?

The private organization idea for collecting the records has merit but it doesn’t change the fact that once an unrecorded map is cited as a reference it should be available in the public records without having to go through a private third party.

Mike Ford

[btaylor]

Based on Mr. Ford's clarification/reiteration of this, I do not see this as being that controversial at all.

BTW very interesting that Mr. Ford has been refused copies of those records that are referenced on the ROS map.

Doesn't the County have a copy? They should have one when they checked the map, should they not?

Or is there some legal issue about releasing this data? I would think one can ask the County to look at the data and make a copy if needed.

[E_Page]

I missed the last legislative Committee meeting, but just went back to look at the proposal in its latest form. As you say, Mike, it addresses only the part about submitting the unfiled record to the county when you reference that record on your currently submitted RS.

I completely agree with your point about the value of making referenced records available in public record. The source of the map is irrelevant with respect to the proposed legislation, but not to that source. If the map is from a still practicing surveyor and it represents a survey that should have been recorded, that surveyor may be willing to provide it to you to help you find certain evidence, but very reluctant to do so if it were to become a public record of his failure to file a required map, and thus a basis for now compelling him to file said map or of a Board citation. I fear that without some provision for immunity after a certain number of years from the requirement to file the appropriate map for surveys depicted on unfiled records, that many of those records which might have otherwise been available will no longer be made available.

The only potentially controversial part of that proposed legislation would be the argument of loss of value of the original by the owner of those records. While I can understand that argument, and admit it has validity from a business standpoint, I don't fully agree with it. However, it is a concern to those who have made significant investments in records.

Were it me, bearing in mind that I am a records "have not", I would bear in mind that whatever copies of records I provide will end up either in the CS records or in the Recorder's office, or have the potential of being in one or both of those locations. That might mean that my fee to provide copies might reflect a shorter cost recovery period (higher copy fee). More likely in my case, given my business acumen vs my willingness to share data with colleagues, I'd lose money on that investment anyway I handled it.

As to how a court might view you getting copies of the records from the surveyor working on the other side of the litigation, I don't think it would be an issue. If that surveyor made the same documents available to you that he lists as references, then you would presumably be making professional judgments on the same set of data. If the other surveyor was withholding records in order to gain advantage in a dispute, that surveyor could be compelled to produce them in the discovery process.

In fact, rather than the court eyeing your survey with suspicion for being required to obtain documents from the surveyor on the other side of a dispute, the court might look with disfavor on the other surveyor if he had refused to make those records reasonably available to you short of a subpoena of his project file.

I don't see how those records would be perceived as tainted due to the fact that they were procured from a private party as opposed to a public agency.

The other surveyor insisting on a certain fee would not necessarily be the same as withholding the records unless that fee was unreasonably high. I would wager that as long as that other surveyor can make a reasonable presentation of the basis for the fee, and it is not out of line with what he would charge others for similar records outside of a dispute, that the court would view the situation more as one of the surveyor refusing to pay the fee for the records as not reasonably availing himself of all available evidence prior to forming a (incomplete) professional opinion on the matter.


Mike, you said:

“The arguments in favor of the legislation outweigh the concerns you mention, which can all be mitigated. Worrying about what to do with those errant surveyors, retired or otherwise, who practiced outside of the PLSA intentionally or unintentionally is a subject for a different discussion.”

All that is true if you want to ignore the unintended consequences of the proposed legislation should it become law. If you want to deny reality, deny human nature, and ensure that at least some records will not be available in the future then just maintain that attitude. If your belief is that the public benefits more by ensuring that those records will have a path into the public record and that those records will be available to be submitted for public record, than they do by seeing that some of those errant surveyors get exposed and face the potential expense and trouble of having to file a new map or to face Board sanction, then those concerns are for this discussion.

I support your goal of providing a means to place unfiled survey records into public record, but I strongly suggest that the concerns of those having such records, whether you respect them or not, be considered and addressed, or you will create a circumstance where many records will be lost which may have otherwise been available.



I also want to make perfectly clear that I in no way suggested that destroying records for whatever reason was acceptable. Rather than discussing the ethics or morals at play, I was acknowledging the reality of human nature.

If speaking of a surveyor who created the records and should have filed but didn’t, the reasoning for having not done so way back when might range from ignorance of what the triggers actually were (not a good excuse, but probably a real one for a good many LSs), to that it was “standard practice” in the area to only file surveys if they represented land divisions or if the client requested (an even poorer excuse, but still real in many areas), to that surveyor was cutting corners to be cheaper than the competition by not filing maps.

The ethics involved were and are very situational for each individual surveyor in that situation, and will vary widely among surveyors. You can argue about it and make the obvious (and correct, IMO) statement that proper ethics demands that they file the proper maps, but the reality is that faced with the accumulated expense of creating and submitting the proper maps now for their surveys of years and decades past, many will simply dispose of or lose track of any records incriminating them of non-filings for which they have not been caught.

For those who are custodians of records created by others, unless legislation setting a fee cap that is less than what is needed to cover costs of investment and maintenance, the only issue is the diminishment of value of the private collection as portions of it are filed in public records. I would think that diminishment would be very gradual, and that a point of diminishing returns on the initial and ongoing investment would be well into the future. It might not come during the career of the current custodian, but it would be realized when that person is ready to retire and wishes to sell his records and his historic collection to another.

But again, if you are going to start judging ethics and morals of those who currently have historic survey records collections, you must also judge the ethics and morals of those who pass up the opportunity to obtain and secure such collections. If you know of a surveyor who recently retired or died after a long career, and do nothing to ensure that his or her records are being preserved and maintained by you or by another surveyor, how much different is that from the surveyor who would take his own collection to the dump? IMO, from a professional responsibility standpoint, the distinction is not all that great.

[E_Page]

Also, I neglected to thank Mike and Dane for their kind words regarding my posts.

Thank you gentlemen. I appreciate the discussion and being able to contribute to it.

[MFORD]

Woodcutter,

The disadvantages to the proposed legislation you list area actually advantages.

*the unrecorded data will be available for the area it covers via the ROS reference page or the CS office. The goal of the legislation is not to get all the private data into the public record, but only those that affect the subject property shown on the filed survey.

*illegible data sources can be scanned, photographed or otherwise reproduced in a more permanent format and, most likely, more legible than the original. If the original is in such shape that the legibility is in question, the record may not be of useful as evidence. The scanned, photographed image is more permanent and less susceptible further degradation.

*if there are access restrictions put on the private record that wouldn’t allow it to be reproduced the value of that record is moot and it may as well not exist. What if you have to go to court and produce copies of all your data sources? The restriction violates the current rules and regulations of evidence. This legislation would reinforce the current rules of evidence and negate that restriction in any agreement because it’s unenforceable.

*private records of some retired or deceased surveyors will be destroyed whether or not this legislation passes. The goal of the legislation is to preserve those records that are discovered and have an effect on boundary location.

*the liability of the private record holders exists with or without this legislation. This legislation won’t expose them to anymore liability than currently exists. If the goal is to reduce the liability of surveyors for not filing maps, then let’s repeal the recording laws.

*surveyors that would side step the current proposal are most likely side stepping existing filing laws. If everyone followed the rules there wouldn’t be a need for the proposed legislation.

*the value of the data sources is based the record holders and the business models. If their goal is to preserve the records for posterity that’s one thing. If it’s a for profit, free market based value that’s another. Each record holder has their own idea of the value. Legislating how much they can charge is a project I will leave to someone else.

Thank you for bringing up these issues. This is a discussion that needs to be explored towards the successful passage of the legislation.

[MFORD]

Woodcutter,

Your responses are worth considering and the concerns you bring up are real.

Granted this legislation isn’t a perfect solution to the unrecorded maps problem and will only recover those maps that someone voluntarily lists on filed maps. Surveyors currently practicing or retired and still living with unrecorded maps in their files (I think that covers most surveyors in CA) are at risk of being “exposedâ€￾ by this legislation. Is the answer to look the other way with a wink and a nod when we discover these unrecorded maps? What message would that send about the strength of the PLSA?

The cost of scanning and photographic reproduction is a non issue. However, you could, if you chose to, purchase the expensive equipment and spend the time to learn the techniques of reproduction, or you could send it to your local reprographics shop for them to do it at a very reasonable cost,
comparatively. It sounds like unrecorded maps are few and far between in your area of practice. The reprographics shop would probably be your best bet. In my area I deal with this issue on a weekly basis. I am currently working on two surveys with seven (7) unrecorded maps references between them. I have seen as many as ten (10) references on one ROS.

This legislation isn’t the reason surveyors may close their records. They use it as a scare tactic and it seems to be working. The reason is they know they are in violation of the PLSA and don’t want to have to answer for it. As I explained in my previous posts the liability they may have incurred is not the result of having their unrecorded surveys put into the public record. Exposing that survey to the light of day through the reference on a filed map opened that door. If liability resulting from making the maps public was the reason they may want to rethink the whole sharing idea as long as they are still living.

The example you refer to is a case in point. You are blaming the messenger. Numerous filed ROS, PM, FM surveys in one county reference this persons “unrecorded mapsâ€￾ as the basis for boundary locations. This surveyor didn’t file maps because he felt it was an unnecessary expense to his clients and his maps stood on its own. After he retired he shared his maps with anyone who asked. He didn’t close his records until I declined to sign a stipulation agreeing not to copy or distribute the unrecorded map. If I had signed the agreement I would have been in violation of the PLSA for adding and abetting. Who’s the bad guy?

The hurdle of recording has been in place for 120 years. The work around has been to ignore it. As I said earlier you can’t legislate ethics. Professionals will follow the rules, others will find a way not to.

[Anthony Maffia]

Legislation should always improve the situation, not degrade it. Prohibiting the use of information from an unrecorded and unreproducible survey eliminates a source of evidence. That the survey exists might not even be disclosed on the ROS.

Such a mandate would be a nuisance and degrade the quality of our work.