Material Discrepancy or not?

[MikeTurnrose]

I seem to encounter these type of boundary surveys a lot. I recently completed a boundary survey of a parcel shown on a recorded ROS map that was recorded in 1962. The ROS was basically a reconfiguration of several lots shown on recorded sub. map. The recorded sub. map that was reconfigured recorded in 1960 and another sub. map adjacent to the south was recorded only a month after the ROS. All 3 maps were done by the same engineer. I found two iron pipes at two of the lot corners with the same engineers tag on them in excellent shape and undisturbed. These pipes are not shown on any of the 3 maps. The engineer shows nothing to have been set at these two corners. The front pipe I found to measure 0.3-0.4' tenths off the right of way line using the centerline monuments that are shown on the maps. The other pipe I found at the southwest corner (lower corner) measures 223.64 feet inverse with the other pipe. The record says 225.00 feet. The centerline monuments measure less than 0.4' short of record (397.64 v. 398.00). I also found a PK nail in the centerline which measures within a few tenths of record. I ended up holding the front pipe for line and the other pipe I accepted as the corner.
I found nothing at the other 3 corners. 2x2s were shown at the other corners. This lot is on a very steep hillside in an oak forested area which I think is a major contributing factor as to why the lower pipe is off from record. Material Discrepancy or not? Thanks in advance for any input you can offer.

[LS 4722]

The answers should be interesting Mike.

First off, I do not know how it is in your neck of the woods, but centerline monuments in some areas of Los Angeles County bounce around in position over the years as resurveys are done for intersections.

That being said..Let's explore the differences of discepancy, according to one legal blurb I pulled off the net..

DISCREPANCY

A difference between one thing and another, between one writing and another; a variance.

Discrepancies are material and immaterial

.

A discrepancy is material when there is such a difference between a thing alleged and a thing offered in evidence, as to show they are not substantially the same; e.g., when the plaintiff in his declaration for a malicious arrest averred, that 'the plaintiff, in that action, did not prosecute his said suit, but therein made default,' and the record was that he obtained a rule to discontinue. An immaterial discrepancy is one which does not materially affect the cause; e.g., where a declaration stated that a deed bore date in a certain year of our Lord, and the deed was simply dated 'March 30, 1701.'

I would say you have an immaterial discrepancy. You found pipes/hubs w/e that are at accepted property corners. I say 'accepted' since you have not provided anything that disputes that status.

Since the 'cause' in this situation is the location of property corners, the distance variation of +/- 0.4' does not come into play. They are where they are and it is what it is.

An immaterial discrepancy is one which does not materially affect the cause

[MikeTurnrose]

Another thing I forgot to mention is that the deed refers to the ROS. (i.e. Parcel D as shown on such and such map)--that's it.

[Ric7308]

Mike,

While I always appreciate the insight that Paul provides, I thought I would summarize how I read your post:

"I only found two non-record monuments that appear to represent two of the record property corners, but the direct measurement between those two monuments differ 1.4' in 225.00' from record and I want to hold these only two found monuments as my basis for this survey. Do I need to file a Record of Survey?"

Did I summarize that accurately?

Mike - what do you think in regards to your question?

Have you discussed it with the County Surveyor for his / her perspective? (Utilize that resource)

Does the filed ROS have any sort of subdivision certificate or any other type of certificate that is not called for in the PLSA?

[MikeTurnrose]

Ric,

To answer your first question, yes and no. I'm holding those two pipes to determine one side. On the other sides, I've utilized record bearings and distances from the found centerline monuments in the street. My basis of survey and bearings are the centerline mons.

To answer your second question, I'm not sure. To me, it's not a cut and dry scenario. I suppose a surveyor, could ignore the two non record monuments, and hold record bearings and distances from the centerline monuments and set another pipe at 225.00 feet. That would be foolish in my opinion, but we've all seen things like this happen (pin cushions). I think you have to take several factors into consideration when retracing older surveys. What technology was used at the time of the original survey? What is the terrain? What was the foliage at the time? 1.4' may have been an acceptable tolerance in 1962. I'm not sure.

The difficult thing with this kind of situation is explaining to the client that they have to pay a $400 map checking fee and an additional fee to the surveyor to prepare an ROS. I always put the ROS clause in almost all of my boundary related contracts. I also send a copy of the PLS Act if clients question this clause.

I will discuss this with the County Surveyor.

I don't see a subdivision certificate on the map. It just has the Surveyors certificate, the County Engineers Certificate and the Recorders Certificate. The map notes in the title block as being a Record of Survey being a resubdivision of Lots X, Y, Z.

[LS 4722]

I did not see that 1.4' diff in 225'...

Anyway, I would probably file an RS but my county costs is just $ 170, which is endurable if you are the client.

PS Mike... Could one of those monuments be on a one foot offset?

[MikeTurnrose]

Are you back in the LA area? Last time we talked, you were headed to Texas.

To answer your question, I don't think it's a one foot offset. There is nothing else around (fence, wall, tree) that would have prevented him from setting the actual corner, so it would be odd to have set a one foot offset.

I've contacted the surveyor who has some of the old records of the engineer. He may have a plat or something that shows these pipes.

Mike

[LS 4722]

1.4' may have been an acceptable tolerance in 1962. I'm not sure

.

Not with the good surveyors it wasnt.

Mike, I guess it's been a few years since we spoke..

How about downslope movement for one or both of the pipes?

[E_Page]

Whether or not 1.4' is in 225' is a discrepancy that might be expected in that area, from that era, and under the conditions existent at the time of the survey is a question that can only be answered through experience of comparison of several such surveys to modern measurements. A surveyor unfamiliar with the conditions and the standard of care actually adhered to during the era and in similar areas in which the survey was performed cannot properly answer the question for you.

I can state with certainty that I have worked in places where such an error, while not exactly typical, is neither rare. If the difference is outside of what should have been reasonably attainable for relative positional accuracy, I would call it material.

Regardless of whether you have a material discrepancy, you do have evidence which does not appear on a previous record map. Therefore, RS required.

[LS 4722]

.. A surveyor unfamiliar with the conditions and the standard of care actually adhered to during the era and in similar areas in which the survey was performed cannot properly answer the question for you.

Having retraced many surveys done in the 30's and on, in flatland and hillside, I can say with confidence that an error ratio of 1:160 steel chain survey was not the norm.

One does not have to be on a 1930 chaining crew to be able to tell if the 2012 retraced work was done competently or not.

The "Era" has nothing to do with the quality of work. The norm for the 60's was 1:7500 minimum for a good surveyor, many exceeded that.

This is from Los Angeles County experience.

[E_Page]

Paul,

I can tell you from experience following different surveys of different eras in some parts of the state that "era" can have a lot to do with it.

There are surveyor's, who when you see their name, you know you will find solid work, whether they did it in the late 40s or early 70s. There are others who, if they were surveying what was then low value land, may not have exercised the level of care one would normally find on higher value land or on land where meeting the standards was not a physically challenging.

1 1:160 error is certainly not the norm, but in some locations, considering surveys performed under rough conditions from certain eras, 1:160 would not be unheard of.

[MikeTurnrose]

Thanks for all your responses.

Evan, that's pretty much what I thought. We found monuments not shown on a recorded map, even though the map was done by the surveyor who set these pipes. That's the main trigger. It's too bad that the retracing surveyor and the client get hit with this. It's difficult to get clients to understand these things.

Paul, no downslope issue here. I found the measurements short 1.4' of record.