California Surveyors Forums

Please review the attached Record of Survey, particularly the common line between the 2 parcels surveyed with distances of 7.80' and 71.91'. All my questions below only apply to these 2 common lines.

The deed references to these two parcels contain uncertainties and therefore result in multiple positions of the common lines between these two parcels. There is uncertainty as to the positions of these common lines with respect to the deed references.

My opinions/questions are as follows:

It appears that the 1968 survey was done at the request of the two landowners of the two parcels. Unless the contrary can be shown, would you agree that both landowners were parties to this survey?

Would you assume that the two parties to this survey agreed to the line as monumented in 1968, unless the contrary can be shown?

Does the 1968 Record of Survey fix the position of these two common lines, if both owners were parties to this survey?

Or can the can of worms of uncertainty in the deed locations be opened back up if one or both of the current landowners disagree with how the line was marked on the 1968 Record of Survey?

For the purposes of this discussion, would you consider the 1968 surveyor to be an "original surveyor", that fixed the lines at the positions monumented during the 1968 survey?

Does the position of the common lines as monumented in the 1968 survey apply to only the parties that had the line surveyed, or to all subsequent landowners?

Comments please.

*edit*
Further information:
I can say with reasonable certainty that Gilbert was part of this survey, had knowledge of it, and paid his fair share. The reasoning is that Parcel 2 of Gilbert as shown on the Record of Survey is a cutout of a larger parcel owned by Gilbert. This Record of Survey is the first time this cutout is ever shown or described. I can say with reasonable certainty that the 1968 surveyor would not of done a cutout of a larger parcel unless Gilbert was paying him to do so. Sorry I did not convey this information in the original post.

*edit*
I redacted some of the information off of the Record of Survey

*edit*
Further clarification:
The 1968 Record of Survey was a survey of 2 existing parcels that had existed as separate for a long time prior to the 1968 survey. In the deeds there are conflicts that existed long before the 1968 survey was completed. The 1968 survey was not an original survey in the sense that it led to the creation of the deeds.

My question regarding "original surveyor" has to do with settling the conflicting deeds. For the purpose of this discussion, did the 1968 surveyor and the lines he marked common to the two parcels act as a final arbiter of the location of these common lines if both parties hired the surveyor for the purpose of marking their lines, including their common lines?

one person requested the survey according to the surveyors' certificate/statement.

Blackley owned Parcel One. Do you think Blackley paid to have all of Parcel Two surveyed that was owned by Gilbert? Or do you think its more likely that Gilbert paid for the survey as well, as Blackley and Gilbert are both named in the titleblock?

Do you think the surveyor's statement implies that only Blackley was a party to the survey, or do you think rather the surveyor just wrote one name down, not giving the statement much thought?

the survey itself does not "fix" any lines. The actions of the owner subsequent to the survey could have.
The survey references both parties,but only one is called out as having requested the survey. At some point the question you are asking is a legal question. But as far as a survey question goes, have you done enough surveying to obtain a preponderance of evidence that supports an opinion of gross error or fraud?
The deeds ought to have been reformed in 1968, if that was the intent of the owners. They did not do it then and apparently decided to live with the surveyor's opinion. So it is probably time to settle the matter. I think it would be a tall order to maintain tht the line is someplace other than where mapped, but it is the right of the owner to take possesion of the their property.

To me it looks like Blackley commissioned the survey. Gilbert may have assisted in payment, but that would be a WAG.
I would assume that RE483 felt he needed to survey the total of both lots to make his determination.
Some folks feel they always need to survey an entire property to determine just one location. Considering how few monuments were found, and where they were, I assume it was not a "easy survey". Lack of record data makes for lots of guessing... time for some more research.
I see no indication that there was any agreement or fixing of lines.
A Record of Survey "does" nothing other than show what was found and set on the ground, and one man's "opinion" (RE483) of the position of lines. Yes, sometimes a RoS can do more, but I see no sign of anything else going on here.

Is there any chance any descendants of Fisher (RCE 483) still has his old records or field notes? Your answer may be in there.

I would not assume that they were both parties of the survey, but it is peculiar that he would show both properties in bold and label them parcels 1 and 2.

The position of the common line is the surveyor's opinion of where that line is and would apply to both properties. Unfortunately, not much information is given as to how they were determined (compass rule, grant line adjustment, agreement, etc.).

If those lines were only described in deeds prior to the 1968 RS was filed, then RE 483 is the original surveyor of those dividing lines, IMO. But it appears there were surveys done in the area before.

I can say with reasonable certainty that Gilbert was part of this survey, hand knowledge of it, and paid his fair share. The reasoning is that Parcel 2 of Gilbert as shown on the Record of Survey is a cutout of a larger parcel owned by Gilbert. This Record of Survey is the first time this cutout is ever shown or described. I can say with reasonable certainty that the 1968 surveyor would not of done a cutout of a larger parcel unless Gilbert was paying him to do so. Sorry I did not convey this information in the original post.

Why else would I be asking these questions? :)

Why else would I be asking these questions. :)

............"Do you think the surveyor's statement implies that only Blackley was a party to the survey, or do you think rather the surveyor just wrote one name down, not giving the statement much thought?'................

Don't know what the surveyor was thinking or whether he gave this any thought. The statement is more than "implies", it is making a statement.

Now the surveyor could have erred in not naming all the parties that requested the survey, don't know, that's in the white part of the map I guess. But the black portions of the map state that one fella requested the survey, not two.

I did not mean to question that Blackley requested the survey. Yes, that is very black and white.

But does that mean the surveyor's statement imply that Blackley alone requested the survey? I don't think so. But that's just my thoughts, and I certainly appreciate yours.

I actually do have the field notes for the survey, with only Blackley's named mentioned. I do hope to find in the surveyor's files a receipt or something else that would show Gilbert's involvement.

Without reading the other replies, only responding to your original post (I'll read them after posting my response-should be interesting):

It appears that the 1968 survey was done at the request of the two landowners of the two parcels. Unless the contrary can be shown, would you agree that both landowners were parties to this survey?

Answer: If you have discovered a deed using the same courses as the survey and from the same time period between the same parties, then yes. But you say there are uncertainties. I'd have to see the specifics.

Would you assume that the two parties to this survey agreed to the line as monumented in 1968, unless the contrary can be shown?

Answer: related to my answer above, yes

Does the 1968 Record of Survey fix the position of these two common lines, if both owners were parties to this survey?

Answer: Without reading the specifics in the deeds, that's hard to say for sure, but the monuments would certainly hold great weight.

Or can the can of worms of uncertainty in the deed locations be opened back up if one or both of the current landowners disagree with how the line was marked on the 1968 Record of Survey?

Answer: Not willing to committ to a final answer without having all the facts, but the current landowner's opinion should only be taken relative to his proven knowledge of any historical facts that shed light on the original survey or conveyances. Otherwise, he can't create or alter a boundary now when other "intent" from the original deed or survey should be used as controlling. He should be viewed as a biased party whose opinion is subordinate to the other evidence.

For the purposes of this discussion, would you consider the 1968 surveyor to be an "original surveyor", that fixed the lines at the positions monumented during the 1968 survey?

Answer: Related to another qustion above, only if you have solid evidence that a deed was created relative to this survey, by looking at the parties involved and the time period. Unless you can essentially prove this is the case, this may be a "retracing" surveyor, and I would approach the entire situation differently. I may ultimately arrive at the same conclusion as if he was an original surveyor, but would scrutinize the deed calls and senior rights issues in a different light.

Does the position of the common lines as monumented in the 1968 survey apply to only the parties that had the line surveyed, or to all subsequent landowners?

Answer: If the survey was properly filed in the public record, and the monuments are in, I'd say subsequent parties are presumed to have reliance upon it.


Dave Ryan,
Humboldt County

I agree with everything Dave Ryan said.

If the original parties are controlled by the monuments then, generally speaking, their successors in the chain of title would be bound by them too.

The 1968 Record of Survey was a survey of 2 existing parcels that had existed as separate for a long time prior to the 1968 survey. In the deeds there are conflicts that existed long before the 1968 survey was completed. The 1968 survey was not an original survey in the sense that it led to the creation of the deeds.

My question regarding "original surveyor" has to do with settling the conflicting deeds. For the purpose of this discussion, did the 1968 surveyor and the lines he marked common to the two parcels act as a final arbiter of the location of these common lines if both parties hired the surveyor for the purpose of marking their lines, including their common lines?

In response to Dane it does not appear that there was any gross negligence or fraud on the part of the surveyor with regards to these two common lines.

PE_PLS wrote:It appears that the 1968 survey was done at the request of the two landowners of the two parcels. Unless the contrary can be shown, would you agree that both landowners were parties to this survey?

No. When looking for evidence of an agreed boundary, I would not assume that both were a party to the survey even if it seems to make the most sense, even if by reputation you are quite certain the surveyor would not have done the work unless both were parties.

I might state to my client, my clients attorney, or even in testimony that it appears that both Blackley and Gilbert had commissioned the survey, and point to all of the indicators that you are aware of, but I would not state definitively that they commissioned the survey together.

Is there a possibility of access to Fisher's business records or project file? Probably remote at best, but if the possibility exists, you might find definitive evidence that Fisher did this survey for both owners. Many surveyors will not perform a survey for multiple clients until one steps forward to take responsibility for paying the surveyor, leaving any squabbles about who pays what share strictly between the landowners. So the "at the request of", while being the most concrete piece of evidence as to who the survey was for, is not the final answer if there is sufficient evidence to positively show Gilbert's involvement.

You might still be able to show additional evidence of an agreed boundary based on the history of actual occupation and use, records of conversations, recollections of neighbors who lived in the area when Blackley and Gilbert did, etc.

PE_PLS wrote:Would you assume that the two parties to this survey agreed to the line as monumented in 1968, unless the contrary can be shown?

Putting in the big caveat that first you must demonstrate that there was an uncertainty, and you must definitively show either that the survey was performed for both Blackley and Gilbert, or that they both acted in accordance with the survey, yes.

PE_PLS wrote:Does the 1968 Record of Survey fix the position of these two common lines, if both owners were parties to this survey?

If both landowners had commissioned the survey and accepted its results, and the survey served to settle an uncertainty in the line location, yes.

PE_PLS wrote:Or can the can of worms of uncertainty in the deed locations be opened back up if one or both of the current landowners disagree with how the line was marked on the 1968 Record of Survey?

Uncertainty is a cornerstone requirement for Agreed Boundary, so showing now that there is an uncertainty in the deed descriptions actually bolsters the argument that the survey was performed, at least in part, to settle the uncertainty, which would give the monuments of the 1968 survey controlling effect over the boundary.

PE_PLS wrote:For the purposes of this discussion, would you consider the 1968 surveyor to be an "original surveyor", that fixed the lines at the positions monumented during the 1968 survey?

No. You said that these properties were not divided out of a common parcel. Several things can give it controlling effect: 1) if it was performed for both landowners for the purposes of settling uncertainty of location, 2) if both landowners afterward accepted the boundary location and occupied to the lines in question, or 3) the survey was called for in subsequent conveyances of the properties.

PE_PLS wrote:Does the position of the common lines as monumented in the 1968 survey apply to only the parties that had the line surveyed, or to all subsequent landowners?

If there was an agreement by Blackley and Gilbert to abide by the lines of the Fisher survey as a means of settling an uncertain line, that agreement is binding upon subsequent grantees of the properties.

If there was no actual uncertainty and the lines were not a reasonable attempt to follow the written lines of title, but there was agreement between Blackley and Gilbert to abide by these lines anyway, and if subsequent purchasers were not formally noticed of the agreement, then the agreement stops with Blackley and Gilbert, or the last parties aware of and adhering to the agreement.

I would have a hard time disregarding Fisher's resolution of those lines, especially when he makes a point of showing certain features like the tree and the driveway. I find it hard to believe that the parties involved did not accept where he placed those lines on the ground unless you find deeds that were created later that appear to conflict with this. Am I correct in assuming the deed descriptions predate the ROS?

Yes, all deed descriptions predate the ROS

PE_PLS wrote:Yes, all deed descriptions predate the ROS

Yeah then to disregard the survey seems like it is asking for problems. Unless there is some good reason to reinvent the wheel (i.e. you find some type of original deed monument that Fisher missed), I would think you would make it more confusing.

I agree. You certainly cannot disregard the survey. But you cannot definitively say that there was an agreement based on:

1) it makes sense that Gilbert would have been a party to the survey since his parcel is larger and is completely delineated;

2) Fisher's reputation is such that he wouldn't have included the Gilbert parcel unless Gilbert was a party to the survey;

3) there was a conflict between the deed descriptions so it makes sense that Blackley and Gilbert would have jointly hired the surveyor to determine a line to settle the conflict.

All of those things make sense, and a Judge would likely follow that reasoning, but each is an assumption based on what makes sense and on how Fisher would have acted if he followed the pattern according to his reputation. None of those things are facts and none are presumptions based on statute or common law.

An affirmative statement from Blackley, Gilbert, or Fisher, if they are still alive and can be found, can affirm that the survey was done for both and/or that there was an agreement to abide by the survey. That makes the existence of an agreement a fact of evidence rather than an assumption of a likely chain of events for which there is no direct evidence.

A published statement by Fisher, either in business records, an old set of Chapter minutes, an old copy of the Chapter newsletter or other society publication, or a statement from an former business partner or administrative assistant to Fisher that he never surveys or would have surveyed a property without the involvement of the owner of that property would turn the assumption based on one's view of Fisher's reputation into a valid presumption based upon Fisher's own statement, which could be produced.

We can form solid opinions on demonstrable facts and on valid presumptions that the law tells us to make or allows us to make. Stating conclusions built on assumed facts which in turn were based on less direct facts and "what would have made sense" can get very risky.

The difference between an assumption and a presumption is this: A presumption is a fact that the law either requires or permits us to assume based upon the existence of certain other facts. For example, if a description calls a roadway as a boundary, unless there is specific language to the contrary, the presumption is that the centerline is the intended bound. (Civ Code 2077(4)). Another example is that if one holds a current, unrevoked license to practice land surveying, that person is competent to perform surveys. It is a fact that has no further need of being proven.

An assumption is a fact assumed to be true because of the existence of other certain facts, but for which there is no statutory or common law support. The assumed fact, as opposed to the presumed fact requires additional evidence to prove its validity.

With the facts presented in this thread, I would feel comfortable stating that there is a high likelihood that Blakely and Gilbert made a valid agreement that would be binding on successors. But there has not bee enough fact presented to base an opinion on, or which would support valid presumptions to in turn base an opinion on that there certainly was an agreement.

We cannot definitely say there was an agreement, I agree, but taking this aside and just looking at the basics, this is a good example of what I constantly see today where people try to do "their own survey" because the math is nicer or they can resolve something in the field quicker, and then they conflict with a 1968 ROS map for no clear reason other than "my version of the math works when coming from this other magical location and therefore these monuments over here are invalid".

If you uphold the survey, you are respecting the fact that they marked the lines 45 years ago, and would be on a lot more solid footing unless you find Fisher made a clear error and missed a called-for monument.

Very true, Bryan. I'm not suggesting that a newer, shinier, more precise mathemagical solution should be resorted to. I'm assuming that the uncertainty goes beyond simply a mismatch in deed dimensions, but goes deeper into an uncertainty of identifying what the boundary is.

If the uncertainty was simply a matter of conflicting dimensions, it could have been settled by a chain of title to determine which line description was senior.

If the uncertainty was simply conflicting dimensions and the Fisher survey was performed to establish a compromise line, then we are back to having to prove the existence of an agreement by a preponderence of the evidence. With the information provided, we have a preponderence of the suppositions and only a little evidence. That's not quite enough when you can find the fact of which line is senior. If the Fisher lines follow the senior courses, no problem. If not, then you need a bit more to firmly plant your flag on the Fisher lines.

As it stands at this point, if there were no other factual evidence available, I would most likely place the dark line on the Fisher lines, and if other lines were locatable by the terms of the respective deeds, show them as lighter lines labeled as alternative solutions. I would also include copious notes in a carefully worded narrative of the survey. The combination of graphic representations and notes would make it quite clear that although the survey evidence suggest that an agreement did take place, there was no direct evidence of such an agreement found.

If you put the full weight of your opinion on the Fisher lines according to the supposition based on the thin evidence, you risk crossing the line from survey expert to advocate. Make your survey map reflect what you are willing to testify to, testify based on the facts you can demonstrate and the presumptions the law allows from those.