California Surveyors Forums

Do you agree with the recent San Diego County Grand Jury report when it says on page 9:

"The County does not have authority to enforce compliance with land survey requirements outside of its rights-of-way. Additionally, the County does not have authority inside the cities’ jurisdiction to enforce compliance with PLSA."

http://www.sdcounty.ca.gov/grandjury/reports/2012-2013/Improved_Access_Land_Survey_Monuments.pdf

I'm not a CS, but I'll chime in anyway: The CS has no enforcement authority in any circumstance. He can register a complaint with BPELSG just like anyone else, but only the DA (in the case of criminal activity) or the AG (in the case of professional negligence or incompetence) can enforce the statutes.

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MP brought this jury result into the forum on May 2nd, if you will check earlier posts. I was the one who first quoted the above two sentences, then I asked for comments. A few came in. One comment was that since the statement came under the heading of monument preservation, the jury was being specific with regard to that matter rather than making a broad statement as to county authority in land surveying.

Jim Frame's comment on enforcement authority seems accurate enough. Maybe the question should be "framed" differently: Do we need to pose the question of what input or influence if any, should municipal and county surveyor depts. have on the surveys submitted by the private practitioner ?
A couple of years ago I sent out a questionnaire to the 30 or so county surveyors in this state. I got maybe 5 or 6 replies as to what they thought their "job" was regarding reviewing survey submittals (this being aside from their ordinary review for compliance with the PLSA) The most interesting replies were from several former CA county surveyors who were employed in Colorado and a couple of other western states. There is no "input" from them regarding survey procedure; surveys are filed directly with the county recorder, period.

Does this go back to the old question of "whose survey is it anyway" ? I am sorry, but I think surveyors are copping out when they write in magazine articles stating it is the "publics' survey". That answer over simplifies and begs the question, doesn't it ? It's supposed to be "your survey". They just have the right to buy it.
This relates back to a post I made a couple of months ago with surprisingly few replies; I had asked if anyone used section 8768 regarding differences of opinion on ROS submittals and similarly section 8773.2 (c) regarding differences of opinion on surveys for corner records. I think there were just a couple of replies. Will check on that.

All good food for thought from D.W. as usual.

sect. 8766 uses the word "examination" in the heading, not "approval".

The founding writers of this section appear to have intended for input to be provided.

Sect.8766(b) also stipulates Co. LS "shall not require.. the surveyor ... to change methods.."

Sorry, have to cut this short and get out to my desert !

Side note

The headings are not a part of the law. Headings are placed in most 3rd party reprints of the laws for convenience only. The binder copy I have of the CLSA publication specifically mentions this upfront.

Dave, point me to the 100k, that would be a huge raise. I will debate the ability of the recorders office to understand closures, and I dont believe they want to.

All they have to do is look at the line containing the follow "Precision 1:960,000,000", any recording agent could do that. You will have to forgive Dave's salary estimates, his frame of reference is Orange County, San Diego, San Francisco. Now if you are county surveyor in a county with 12 taxpayers well....

All they have to do is look at the line containing the following "Precision 1:960,000,000", any recording agent could do that. You will have to forgive Dave's salary estimates, his frame of reference is Orange County, San Diego, San Francisco. Now if you are county surveyor in a county with 12 taxpayers well....

Hey, our after the cenus, our taypayers is now up to 17

DWoolley wrote:I have several opinions on this topic...

As opposed to what topics that you don't have several opinions on? ;-)

DWoolley wrote:1.) One duty of the CS... is the responsibility (...) for checking items prescribed under §8764... § 8764 (d) states "The relationship of those portions of adjacent tracts...". By virtue of a signature, the County Surveyor is accepting the responsibility of having examined and approved the process and procedures for establishing the boundary shown on the map in respect to §8764 (d) .

The language of 8764 and 8766 are not as tight as you suggest, allowing for only one strict interpretation, and it's not tight enough to box a County Surveyor into a level of review the you, or I may wish to see.

In 8766, the CS is limited from dictating that the surveyor of record change one's methods, and is given authority to add notes of disagreement. But nothing states that the CS is required to add a note of disagreement when he believes methods to be incorrect. You can reasonably argue that since the legislature enumerated items pertaining to methods that they intended that the CS would add such a note if he or she felt the map or survey to be substandard. But someone with the contrary view could reasonably argue that the legislature could have easily included language to plainly make it a requirement.

Since the rules of construction of statutes (largely the same in the Code of Civil Procedure as the rules of construction of documents) proscribes interpreting the meaning of statutes by adding language or presuming beyond the plain language, I would think that the view that the CS is not required to add a note of disagreement when not fully comfortable with the map or survey would most likely prevail if the question goes through the court system.

8764(d), the relationship of adjacent tracts, etc. This section does not state that it must be the precise relationship of those adjacent tracts, etc. One could interpret that code section to be satisfied by the mere graphic representation of the approximate relationship.

I agree that it seems most reasonable that since the point of a boundary survey is to establish or re-establish the precise locations of the lines and points comprising the boundary, that it is presumed that the legislature's intent was to depict the precise relationships to adjacent tracts. But for the same reason as stated above, someone may be able to present an argument that seems reasonable to a judge or jury that had the legislature meant for the precise relationships to be shown, they could have simply added the word "precise".

I wouldn't place a bet either way how that one would come out if presented to the judiciary. It would probably come down to which side had the more highly skilled litigator.

8764(a), all monuments... Is it reasonable to interpret that so that if the field crew located a monument several blocks away that was in no way pertinent to the lot survey being performed, that the surveyor would be negligent in not showing it?

How is the CS to know that the surveyor of record is showing all pertinent monuments? He could inspect the field notes of the surveyor of record, but those aren't normally part of the submittal package, and the surveyor may have simply ignored certain evidence altogether. Perhaps the CS is familiar enough with the vicinity to know what monuments exist and what's pertinent, but more likely not.

Same with 8764(g), other data necessary for the intelligent interpretation...

Evidence such as fences and other improvements or lines of occupation fall in this category. How is the CS to know if there is other data that is necessary to understand the site conditions and the full body of evidence unless he or she has another recent record to compare to?

8766(b) says that the examination shall not require a field survey. Without either a) some indication on the map being examined, b) a more complete and recent record in the immediate vicinity by another surveyor, or c) a field investigation by the CS, there is often no way to determine whether 8764(g) has actually been fully met.

Only if the information on the face of the map being examined impeaches itself, or by comparison to a more complete, recent, and reliable record at the same or very close by location can the CS be reasonably certain whether these particular elements have been met or not. It would be foolish for the CS to add a note of disagreement without sufficient data to adequately support the statement.

I don't deny that in many instances, the deficiency of the map and the survey it depicts is quite obvious by an inspection of the map and of available records. In those cases, I agree with you to the point that I wish the CS would add that note. But then we are back to the lack of a requirement for them to do so.

Waddyagonnado, huh?

DWoolley wrote:2.) ... if the duty was intended to be anything other than described above, why is it §8768 has a very specific procedure for the County Surveyor to note differences?...

Since the CS has no real authority to prevent the filing of a RS, no matter how deficient the survey behind it appears to be, the legislature recognized the moral dilemma and frustration a conscientious CS would experience in such cases. The legislature did not feel that it was proper to place authority to determine whether or not a survey was performed well enough to be filed in one person who may or may not have superior expertise to the surveyor who performed the survey and prepared the map. The balanced approach was to allow the CS to add notes of disagreement when he or she feels the survey is somehow incorrect.

They probably also recognized that there was no way for the CS to be certain that the survey behind the map being examined was performed correctly and that all relevant data was being properly depicted unless the CS performed a field survey. At the same time, they may have realized that there would be some CSs, if required to agree that the survey was correct, and accordingly given the authority to conduct field surveys to come by that assuance, would abuse that authority and conduct surveys far more extensive and costly than needed, and requiring them in all instances as part of the review process, making any RS review prohibitively extensive and costly, creating the consequence of extremely low compliance with the filing law. And so they did not make it a requirement that the CS ensure correctness, and did not write the law such that the CS signature is an approval of the survey itself.

DWoolley wrote:3.) The County Surveyor may not have enforcement authority, ..., but they certainly have the same responsibilities of any other licensee. Their obligation to the public, as a licensee, is no different than any other licensee. In fact, they have a heighten obligation as a public employee (as an officer to be precise), in many instances. In this context, does anyone believe their signature on a document is only a perfunctory obligation?

Same responsibilities as other licensees, yes. In that context, would you ensure the correctness of another's survey, in all cases, without performiong your own field survey? I hope not. The only real standard that you can reasonably expect in a limited review is that the reviewing surveyor finds or does not find any evidence of negligence or incompetence. You cannot demand that they ensure completeness and correctness.

I agree that many CSs perform too cursory an examination and a lot of junk gets filed in many jurisdictions. But I also believe that there are many jurisdictions that often go too far, perceive a liability for the survey itself which does not exist, and thereby purport to justify exorbitantly high review fees that bring relatively little value to the landowner for whom the survey was performed or to the public as a whole.

DWoolley wrote:... woe is the CS that has the misunderstanding their duties are any less than described above, ... A CS that ... allows negligent and/or incompetent work to be filed without a note (§8768) is negligent and/or incompetent himself and should be reported to the board.

... does any county need an licensed employee, making ($17,000/yr in Russ' case - 1k for each resident of the County), to ensure* (formatting n such and ignore evidentiary matters)?

I agree that the CS should check for issues that information to adequately do so is available for. That would include Jr/Sr relationships and description conflicts obvious by the records or by other information shown by the surveyor of record. But the review of many of these kinds of issues is dependent upon what the surveyor of record has decided to show. If no occupation is shown, and if the CS is not personally familiar with the site 9and google earth does not give sufficient detail to the contrary), can he reasonably question the lack of depiction of improvements or indications of occupation?

Has there been case law or Board actions that have supported your interpretation of the CS's responsibilities over the interpretation of those who would argue the contrary?

Without the definition having been clarified by one of those authorities, your interpretation, or mine, is just a couple of opinions, no more correct or incorrect, and without any authority to compel anyone to accept them.

Where does that leave us. I don't think that it leaves the CS with a looser interpretation of the requirements of one's position in a state of woe.

* A linguistic pet peeve: To insure is to provide for moentary recompense in the event a desired outcome does not occur or an unwanted outcome does occur. To ensure is to see that a desired outcome does occur.

Whew ! a hot one at the river & desert this Memorial Day.

Thank you DW and EP for the expected stellar input.

Not to oversimplify the above but to sum up my take on this, it appears the CO surveyor's signature and stamp constitute a review and not an approval of the practitioner's survey, ie.,

"this map has been examined in accordance with sect.8766..."

This is not a reply to DW's excellent comments; am wondering about the legal basis for such a board rule. DW refers to the rule;
"...application of proportion methods and analysis of evidence related to written and unwritten property rights."

See Walter Robillard "California Boundary Law and Landowner Disputes", pg. I-36 and I-44. In discussing the role of surveyor as regards unwritten rights the sage one reminds us of the following:

"Surveyors in the U.S. have not been given the authority to determine legal property lines". "These are legal dicta and should not be addressed by a registered surveyor."

I am aware of a hearing where two Borpels surveyors questioned a surveyor as to his opinion on location of improvements built beyond the common lot line, and what the builder's rights might be. The surveyor replied with all due respect to the question by reminding them of the above two legal principles. There were no further questions posed on that subject.

He claimed to have found original 2 x 2 wood hubs, that were in fact in a gooey marsh of a sloping hillside when no other surveyor at anytime since 1927 had reported finding these original corners and/or relying on their position, AFTER the City challenged the surveyed position because it was in disharmony with every other surveyed location in the area by FEET.....One of the parties in the Oakland case later had their license revoked for building things in the wrong location.

The lay person expresses a "personal opinion" whereas the professional may express an "expert opinion". To be professional, an expert's opinion ought to be well reasoned, based upon evidence, and fact and accepted survey practice, superior knowledge, special experience and education.

I can tell you that based upon my experience, it is a loathsome position to be in when a County Surveyor is holding your project hostage based solely upon their "personal opinion".

As to Mr. Woolley's reference to Board's rule relating to responsible charge, I ask who is it that has the capacity to stamp and sign documents? The answer is the surveyor who is in responsible charge of those documents for that project. How is the public served by documents stamped and signed by surveyors who do not posse even the basic knowledge and understanding of the project??

Wonderful responses, Dane, et al!

Okay. Let me get this straight. Public agency has immunity? How is it that the interests of thh Public are best served having review by the County Surveyor? With record of survey review fees having such fluctuations throughout the State that one might think they're a playing Pachinko game!

If you're going to say, "they police the LS Act". That duty lies squarely on the shoulders of BPELSG and the profession via BPELSG.

How does the Public benefit from these sometimes exorbitant fees . . . with an agency that has immunity and no fiscal liability? What was "bought" for these fees?

David ‘n Goliath legislation should be in order. Surveyor to Recorder.

Uh oh . . . someone's kickin' the soapbox . . .

Phil - Sonoma

First, I enjoy and truely benefit from these discussion, it is time well spent and is a form of CE.

Second, Dave in my opinion a Co Surveyor should be in constant training, things change, metheods change, principles may remain the same, but how we apply the principle varies and is affected by many factors. The most glaring factor is "there are no simple surveys" anymore. The easy stuff has been done, all that is left is complex, one of a kind projects.

As something who has close to 30 years of surveying education, training and experiences, I feel am still learning, traininng everyday, to keep up to date.
Having been in private practice for most of my career, the public side is a definate new experience.

The Co Surveyors role is one additional step to "Protect the Public", but each Co Surveyor should also keep in mind the intent of the PLSA. I do agree maps should not be delayed due to a subjective opinion.

The Wheeler case from San Bernardino leads me to believe that a County Surveyor DOES NOT HAVE IMMUNITY when it comes to map review. I am sure someone will chime in with the citation, as I do not have it handy at the moment.

Haven't read it in a while, but here it is.

"The David and Goliath legislation shouldn't be to eliminate the County Surveyor examination, it should be to provide an alternate source of revenue and then, cap the amount of the fees to be charged."

Great rebuttal, Dave . . . I still think we can "pay" a competant competitor to review our work for far less than what some counties are charging. Then run it down to the Recorder.

Have a good weekend, buddy!

Phil

Phil,

There is a Southern California County which does farm out its map checks to a pool of local surveying firms. This is true peer review ...
Of course, the County Surveyor's office maintains oversight, and ultimate approval.

Wheeler was about administrative process, not about professional practice. It just happened to be a case involving the Co Surveyor, but the principles at issue could have come up in any one of several widely different agencies with very different areas of responsibility.

Wheeler did not look at whether the survey was correct or not, whether the County Surveyor performed an appropriate review or not, or even what the appropriate standards of review are. It merely ruled on whether or not the County Surveyor is protected by the immunity described in Govt Code §820.2 when performing the review of a RS.

So the only thing to come out of Wheeler is that a CS can be held liable for a negligent review. Just how deep that review must be with respect to methodology is still unanswered by the courts as far as I know, and is open to honest debate as to the interpretation of the statute law until the courts have occasion to visit the issue.


Dave, although he can't yet refrain from belittling by equating honest discussion of practice and interpretation of practice laws with an assertion of the composition of the moon being made of some foodstuff, does show some progress toward honest discussion by actually addressing some of the substance of the comments. I guess that's a step in the right direction.

So far, I haven't yet said what my view of what the County Surveyor's responsibility with respect to methods behind the surveys depicted in the maps they review are. I have only represented that there are differing views and that the law does is not currently specific enough to support only one interpretation.

Nizam-Aldine is interesting for what it is, but as Woodcutter observed, it has nothing to do with defining the appropriate level of review of an RS by County Surveyors.

This should be a good lesson for those who lend credibility to a writer simply because he or she cites to various laws and court cases. Citations may give the appearance of credibility, but only provide true credibility if they are on topic, are presented in proper context, and say what the writer says they say.

I maintain that we each have a responsibility to give cited support materials at least a quick read before we take the accompanying commentary as authoritative, and most certainly before we pour on the accolades.

Moving on to §8768, in context it is a code describing process: if the CS makes an issue of disagreement on method, or any other substantive matter, then the notes addressing those matters for which the surveyor of record and the CS cannot come to agreement on shall be added by the process described in 8768.

If the CS completes his or her review pursuant to §8766 without any matters of disagreement that the CS deems substantial enough for a note, then §8768 never comes into play. There is no mandate in these sections fo rthe CS to carefully review methods. There is also no prohibition from doing so, although there is a prohibition from the CS dictating methods to the surveyor of record.

Whether or not the CS should carefully review methods is not a debate that can be based in the statutes, because the mandate is not there. It is a debate that should be based on the standard of care, and specifically those more nebulous portions that go beyond the statutes that define the absolute floor or foundation of the standard of care, and into that area of "what would a competent surveyor in good standing performing under similar conditions do?"

While we will likely still not fully agree, under that aspect Dave and I would probably be much closer to agreement than he or others may realize.

Dave interprets: "the Page argument is ... licensed discipline-is allowed the discretionary imprecise location..."

Yes Dave, you seem to grasp the point made, at least in part. Licensed professionals do have discretion to determine what information they have is pertinent and what is not, and to include or exclude any such info accordingly on their map. The fact that some exercise that discretion poorly does not lessen the fact that, as licensees they have that discretion.

If the precise locations of adjacent tracts are material to the intelligent interpretation of points, lines, etc., and those precise locations are not shown, then the CS has something over which to disagree.

No, I have never wondered why the legislature mentions senior conveyances. The answer to that should be obvious to any with enough boundary survey experience and training to posess a LSIT certificate. But not all adjacent tracts are senior and not all have an effect on the location of a property being surveyed.

IMO, good practice dictates that any monuments of surveyed adjacent tracts on or near the common boundary be located and shown, as well as indications of lines of occupation which may or may not mean anything to title and/or boundary location.

But if the adjacent tract is not senior, has not been surveyed, and exhibits no specific lines of occupation, then in many cases, the precise location of the corners of such a tract may or may not be relevant to the location of the property being surveyed. If it is not, neither a CS, a PPC, nor an overly concerned fellow licensee would be serving the public by insisting that the surveyor of record charge his or her client extra fees that could run to several hundred dollars or more to determine whether the precise location is 142.33' along a boundary from the client's nearest corner, or 142.87' from that corner, when it is perfectly adequate to draw it so that it scales about 142 1/2 ft from that corner. If it has no effect, it doesn't matter.

"Suppose a junior... [clear scenario with inarguable need to consider sr adj tract]... blah, blah... [inapplicable cite to nonexistent code section w.r.t. CS responsibilities]... [broad-brush misrepresentation of statements made]." (I'm paraphrasing, but I think I captured the essence of the statement)

No one said that boundary surveying should be done imprecisely or by sloppy measurement or reporting. A professional has the discretion to determine what level of precision is appropriate for reporting various information. some exercise that discretion well, and others exercise it poorly, being either too loose in their standards or being overly precise, thus exhibiting an inability to determine which info has an effect on the boundary location and which does not.

With regard to which monuments to show, a competent professional should be able to discern when a piece of evidence gathered by a field crew has no relevance whatsoever to one's survey, and should be able to exercise the discretion to not show it on a map. A low level technician needs to be told, be given hard rules about what is to be shown. The low level technician who fancies himself a truly learned professional on the matter will flip out when someone actually does exercise discretion.

Why the crew would have located a distant monument that is not pertinent to the survey depicted is irrelevant. It may have been something related to another nearby survey the company is working on, or it may have been an overzealous new chief deciding that too much info is better than not enough.

To insist that one is less than professional because one did not show every goat stake and curb pin located by field crews in every survey ever supervised is really quite silly. Hold on to your seat here, because I'm going to make a confession... I'm certain that there has been at least one survey, perhaps several that I decided to not show every stake and scrap of metal located by the field crew. Heck, I may have even located a mon just because I knew I would need the location for some future work but didn't show it on the RS for the current survey. EEK! I hope BPELSG doesn't come after me for that.

I make no apologies for the length of my post. My discussion is honest and I make no cites to irrelevant code sections, nonexistent code sections, or off-topic cases simply to make my writing appear more credible. I do invite all to actually read the law for themselves and come to reasonable conclusions.

???

County Surveyor as Instrument of Political Machine

My last run-in with a County surveyor gave me the Willies. A drainage feature I labeled was contested by the County Surveyor. I received a four page letter from the Surveyor disputing my labeling of the drainage feature, after I had produced a PE report describing the origin of the feature back to the GLO maps, had consulted every possible reference about the exact appropriate definition to label this feature, including texts in geology, biology, engineering and of course dictionaries including Black's Law Dictionary. I chose the exact correct word to describe this feature.

The letter I received from the County Surveyor wreaked of previous County council influence, rattling on about 8768 and how important it was that I make the change he requested. His request would have changed the entire meaning of my survey. I held my ground and forwarded the letter to my client/attorney who basically requested the County Surveyor to file the map as is. The title commitment that followed shortly after raised plenty of eyebrows lets just say, thanks to the County Surveyor's comments on my map.

Yes, the County Surveyor had basically been roped into being a cog in the County's political machine.

The experience helped to shed my naivety with respect to local politics. An experience I will not forget.

FROM WHEELER
Plaintiff alleged that the survey was inaccurate and that the county surveyor and employees within the office of the county surveyor (who were named Doe defendants) conspired with Krueper by recording the survey which they knew, or should have known, was inaccurate.
Fairly read, plaintiff's complaint states a cause of action for damage to real property. The essential allegations are that the county is somehow responsible for the recording of a survey which shows plaintiff's property to be smaller than it really is. The recorded survey is therefore a cloud upon plaintiff's title which must be removed.
The function of the county surveyor in connection with the recording of a survey is set forth in Business and Professions Code sections 8766 and 8767. Section 8766 provides that the county surveyor shall examine the survey with respect to: (1) mathematical accuracy and completeness of information; (2) conformity to existing records; and (3) compliance with certain provisions of law. According to section 8767, the county surveyor, after completing this examination, shall either indorse the survey for filing, if satisfactory, or return it to the person presenting it if changes are required.
We are satisfied, at least for purposes of ruling on a demurrer, that the county surveyor's duties under these provisions do not involve any basic policy decisions, and therefore the immunity of Government Code section 820.2 does not attach.

FROM NAZIM-ALDINE

The City of Oakland (the City) appeals a judgment entered pursuant to a jury verdict holding the City liable for defamation and for placing plaintiffs in a false light. Plaintiffs and respondents, Zuhayr Nizam-Aldine (Aldine) and Al Masso (Masso) are licensed civil engineers allegedly accused by the City of conducting inaccurate and fraudulent boundary surveys of three parcels of property located in the Oakland Hills....

First, the fact that the City (via certain of its employees) believed respondents' surveys were sufficiently defective to warrant reporting them to the State of California's licensing board, the Board of Engineers, bespeaks the public nature of the survey dispute. Members of the public "have an interest in matters which affect their roles as consumers." (Paradise Hills Associates v. Procel, supra, 235 Cal.App.3d at p. 1544.) And, as Division Five of this court recognized in Nadel, supra, it is a legitimate and important function of
government not only to gather information about commercial and trade practices which are detrimental to consumers, but also to inform the public (including other pertinent governmental agencies) about those practices.
If government is denied First Amendment protection in situations such as the
present one, the performance of its "informing function" could be inhibited in order to avoid defamation liability "to the ultimate detriment of consumers." (Ibid.).

Second, when viewed in context, the negative statements about respondents' surveys unquestionably relate to a broader public issue-whether [47 Cal.App.4th 378] boundary lines in the Forestland Manor subdivision should be drawn in accordance with the 1927 map or the 1954 map. The record belies respondents' contention that the public was not interested in this issue. Paul Tamm, president of the local homeowners association, sought information about it, shared that information with other members of the association and discussed the dispute in association newsletters. Homeowners in the area
could be affected by the resolution of this dispute and had a legitimate interest in obtaining information about it from their city government. If the 1927 map was indeed valid, as respondents had contended, boundary lines that had been drawn in the subdivision without reference to that map would be called into question. Further, interest in the dispute was not limited to residents of the subdivision. Anwar Mirsa, a citizen who considered purchasing property in the subdivision, and Marta de Pierris, a local realtor, also expressed interest in the dispute...

The varied backgrounds of these individuals underscores the extent of public interest in the surveying dispute. If respondents' surveys were accurate and the City's 1954 map was not valid, many kinds of people would be affected-current and potential purchasers of property in the area, realtors who marketed the properties and engineers and contractors who helped develop the subdivision. [47 Cal.App.4th 379]