California Surveyors Forums

Here's an interesting dilemma we just experienced. Wondering how you would handle it if you were the public agency.

Property owner hires a surveyor to stake out his property. This person's property consists of an originally-mapped parcel, plus a 30' wide road abandonment that was documented by a resolution recorded in the County Recorder's office. The abandonment was a result of a request from the property owner at the time. It was not agency-driven.

Owner's surveyor nails a 6" long pin into the soil at the supposed new property corner. A permanent monument was never placed and a Record of Survey was never filed. Surveyor is subsequently involved in a bad accident and is no longer practicing surveying. We, as the agency, are not privy to the contract, so we don't have any idea what exactly the owner paid the surveyor to do.

Agency comes in to do some road work and disturbs the pin. Contractor did not stake out the location of the pin before it was disturbed. Owner insists that we are responsible for putting it back because he paid a surveyor good money to put in this so-called monument. Keep in mind, there was no record of this pin and there is no record of survey documenting that this pin was even put in the correct location of the property corner.

Agency has no field survey crew on staff. In an effort of good will to the property owner, agency contacted another local surveyor to inquire about the cost of setting a permanent monument and filing a record of survey. Estimate comes back at $1000. If it had been a couple hundred bucks, agency would have done it. $1000 is a large chunk of money for little benefit to the general public.

As the agency, what would you do?

Easy, I would recommend that the agency or the property owner contact BPELSG at BPELSG.Enforcement.Information@dca.ca.gov or my email address providing contact info for the property owner so that BPELSG can resolve the alleged situation with possible non-compliant monument and failure to file. We may be able to resolve this appropriately for the property owner.

Also,

Agency comes in to do some road work and disturbs the pin. Contractor did not stake out the location of the pin before it was disturbed.

The agency should not be contracting with a contractor to include monument preservation in the scope of services for road work. The agency should be providing those services directly either by in-house survey staff or by contracting with a land surveyor directly. The agency cannot expect a contractor to identify monuments or to contract for those services. The agency is responsible for ensuring that compliance with 8771(b) is met regardless of any contract with a contractor. See 6730.2(c).

Interesting that an agency is concerned about the costs to prepare/file a Record of Survey when the shoe is on the other foot.

dedkad,
Your County Surveyor may waive the RS checking fee if the RS is being performed for an agency. You should speak to him/her.
Ed

Not too sure what would become of a BPELSG effort other than to go after the incapacitated, non-practicing surveyor. Perhaps there is something to come of that, perhaps not.
As for expecting the agency to, after the fact, be responsible for locating non-record 60d spikes which may or may not be in the position of a property corner, my first question is if there is some proof that the owner actually commissioned the prior survey. If not, then is it possible the property owner is pulling a fast one and trying to get the agency to perform a survey free of cost? Have to ask the question.
Say the owner does show some sort of proof of having contracted with the surveyor to mark the position, the question becomes is it a reasonable expectation for a public agency to search out all property corner locations for possible evidence of corner location when there is none of record? Is it also a reasonable expectation that should the agency make that sort of (dare I say, uncommon) effort, that the agency also perform pre and post construction corner records or records of survey for any recovery of un-marked 60d spikes which are not of record?

I don't believe it to be a common practice nor a reasonable expectation. Therefor I don't believe the agency to be liable for not having performed such efforts.

The property owner probably got a "discount" on the cost of the survey. Now the chickens have come home to roost.
Both the first surveyor and the property owner are liable. Too bad about the accident, but the surveyor, although not practicing surveying, could hire someone he/she trusts to complete the job, including the required Record of Survey.

As an agency, I would set the corner.

The agency works for the public.

The public is the client.

Are there any monument preservation fees available?

This is a rare situation and as a business owner and a licensee, I have a contingency fund for things like this. We are all licensed by The Department of Consumer Affairs.

Here in San Diego, the city regularly destroys hundreds of monuments on a yearly basis and nothing is done.

I agree with Magee about filing a complaint. It sounds to me like there were/are exigent circumstances that prevented the surveyor who set a temp point from returning to set a permanent monument and filing a map. An enforcement case would do the public no good and put undue stress on someone who has already lost his livelihood to severe injury.

I suppose it's possible that the injured surveyor was also one of those who cut corners and had never intended to complete this job. Either way, pursuing a complaint against him sounds like trying to get blood from a turnip. The only reason to go after him now would be to punish him without having any real expectation that he will be able to contribute to a solution other than possibly providing some info about what he had done.

If this alleged missing monument is a corner that is on the RW line, then there is arguably some public benefit to setting the point and the agency should factor that into its decision.

Should the agency be responsible for checking all property corners to see if there is a monument there? In my opinion, yes. There was a very long period of time when the Board was much looser with its interpretations of circumstances requiring the filing of a map and perhaps a longer period where the conventional wisdom among surveyors included ideas like 1) unless you are setting a monument at a point that never existed on the ground or on a map before, then you don't need to file a map, and 2) you don't need to file a map if the client isn't paying you to do so. Right or wrong (probably mostly wrong), that's the way it was across most of the State for many decades.

The setting of monuments is for the benefit of landowners (clients, the public), not simply a measure of responsibility for the licensee involved. If a landowner hires a licensed surveyor and that surveyor sets monuments, that landowner and his or her adjoiners should, actually do have a right to rely on the correctness of those points. If a non-record monument at an existing property corner has been relied on by the affected landowners, they should have a right to expect it to be protected during a construction project. IMO, they should have a right to expect the agency to replace the monument if it is disturbed or destroyed during an agency project.

It doesn't take much extra effort to check for such monuments during the surveying that is done prior to construction to locate existing monuments in the construction impact area. Spin an angle, shoot a distance, wave a metal detector. Find something, locate and describe it. Find nothing, note that you checked and move on.

You say that you didn't have a LS out locating mons prior to construction, that no pre-construction CRs or RS were filed?

Oops. Better do that next time. Like Ric said, the agency cannot delegate a licensed function/responsibility to a contractor. The agency can put it in the contract that the contractor must hire the LS to do that portion of the work, but the ultimate responsibility to ensure that it is done and done correctly remains with the agency. An appropriate licensee employed by the agency, or an employee under the direction of such a licensee and with the proper experience could check/oversee the work in the capacity of an inspector. But if the agency lacks the in-house capability to do the surveying, I think it best that it contract directly with a licensed surveyor for that function.

Making the decision in the hindsight of not having had an LS diligently locate all record monuments, check for non-record monuments at property corners and locate non-record monuments found prior to construction, I would advise the agency to consider 1) how much money they should have budgeted to that statutorily required task; 2) whether or not the claimed monument was for a corner that is on the RW; 3) whether or not you have the ability to determine whether or not the monument actually existed; 4) the cost and hassle of having to deal with BPELSG on the wrong end of a complaint explaining that you didn't have an LS diligently search for and locate monuments within the impact area because you were ignorant of the law that places the ultimate responsibility on the agency licensee in responsible charge and has several times over the past several years issued public statements that the function cannot be passed off to a contractor.

E_Page wrote:...

It doesn't take much extra effort to check for such monuments during the surveying that is done prior to construction to locate existing monuments in the construction impact area. Spin an angle, shoot a distance, wave a metal detector. Find something, locate and describe it. Find nothing, note that you checked and move on.....

Does sound simple enough.

Not uncommon is where an agency performs say, a three mile long 3-R full roadway rehab. Not untypical is the situation where the road passes through an area which was originally broken down by a map into 10-acre lots in the 1920's. No record of monuments set. From there, over the years the area was further divided by many multiple deed cuts. Surveyors familiar with the area avoid it. They know this area has no "simple surveys". A few surveys have been filed in addition to the original 1920's map, but very piecemeal and sporadic..

Fast forward to 8771 (b). which states: "When monuments exist that control the location of subdivisions, tracts, boundaries, roads, streets, or highways, or provide horizontal or vertical survey control, the monuments shall be located and referenced by or under the direction of a licensed land surveyor or licensed civil engineer legally authorized to practice land surveying, prior to the time when any streets, highways, other rights-of-way, or easements are improved, constructed, reconstructed, maintained, resurfaced, or relocated, and a corner record or record of survey of the references shall be filed with the county surveyor"

In the situation above, there is certainly likely a plethora of possibilities such as boundaries by agreement, non-adjudicated potential of prescriptive rights, irrevocable license, equitable easement, easement by necessity, blah blah blah.

On top of that, the area is in a flood zone and there have been a number of LOMAs, flood certs, etc performed by various private surveyors/engineers.

So the question is, what is the required level of diligence by the agency performing the roadway rehab? Is it solely looking for those boundary monuments of record and those horizontal/vertical control monuments in the NGS and local agency databases?

Or is it performing an extensive investigation into the boundaries of the 104 adjoining properties to uncover all evidence such as the unrecorded, untagged 60-d spike or PK nail some jackleg set. Every fence post. Every goat stake. Lest not forget that full due diligence includes interviewing any and all parties who may have knowledge of those historic boundary locations. In addition don't forget to search out all LOMAs/flood certs etc etc for which a private surveyor or engineer may have hammered some PK nails into the pavement.

From a purist land survey standpoint and reading 8771 (b) as having no interpretations between the lines, I can see the viewpoint that no rock can be left unturned and the monument preservation survey effort for the aforementioned roadway rehab project will necessarily be of a herculean proportion.

Returning to the original poster's dilemma. Being as there is no record of the method or procedures used in establishing the position held by the 60d untagged, unrecorded spike. Replacement will involve making a determination of boundary location between 2 privately held properties and to accept the liabilities that come with making that determination. Is this the agency's responsibility? Is it a proper expenditure of public funds?

8771(b) is silent on the level of due diligence an agency is responsible for. While it is easy to proclaim the level of effort is best to be all encompassing, I am not sure the effort can really extend beyond that which is subjectively held to be practical and reasonable.

On a lighter note, I am very encouraged to recognize that since 8771(b) was re-written, I know personally a number of agencies who now do what is practical and reasonable in regards to efforts of monument perpetuation. These same agencies whom had destroyed many many monuments prior to the re-write of 8771(b). I have seen a pretty big improvement in agency efforts.

You have several issues going on here, which raise multiple questions, some of which are more straightforward than others. First off, it sounds like everything you know seems based on the landowner’s version of events. Without a Record of Survey, a sketch, a job file or asking the alleged surveyor what has happened, there’s no real indication a survey has even been done.
I don’t know what a “pin” is. Survey points or monuments can be described by what they specifically are, a 60d nail or spike for instance. Is it destroyed or disturbed? Did an operator confirm they hit this point (took it out) and save it? Have you seen it? I assume an agency is working in a public R/W, not a private drive. Is this agency aware of their obligation to search in advance for monuments of record and give at least a brief visual search for any other obvious monuments or control well before any activity that might destroy monuments? Not that this will necessarily come into play in this instance, since the facts are kind of sketchy, but that can get into a larger side discussion of monument preservation (this may have just been a traverse point).

Not sure there were any monuments to preserve without more information. As an agency, verifiable facts are needed before going down some path of offering to survey someone’s private property boundary, not something an agency should be getting involved in. A couple hundred bucks to survey in a property corner? A couple hundred bucks might get you through printing out an AP map, pulling a few deeds and getting started on some research.

Before an agency starts giving a private landowner the impression they might be surveying their land, they need to educate the landowner on their obligation to provide some facts; a map, photos, someone else who also has some plausible knowledge of the situation. Then and only then should a preliminary discussion be had on whether the agency has any responsibility to do anything. Unfortunately, these people may have been had by a non-licensed person. If they don’t have even a sketch or map, not to mention a Record of Survey (do they even have a name of a surveyor?) and they still claim they had their boundary surveyed.. . well, I’m afraid they’ve been had.

Not to come across as cold or lacking a sense of “good will”, but things are often not what they seem at first glance once you start asking some questions.

Dave Ryan,
Arcata, Ca.

Spot on advice, Dave!

Hope all is well with you in Northlands!

Phil - Sonoma

Magee, you're reading an awful lot into 8771, or into my reply if you got out of either a requirement to resolve the boundaries of all adjacent parcels and to resolve any and all boundary and title issues. That seems to be what you've inferred from my post. Either that or your engaging in hyperbole as a disingenuous means of attempting to discredit the opinion.

8771 addresses the preservation of monuments. Not just monuments of record and not just monuments shown on a filed RS, but of any and all monuments which "exist that control the location of subdivisions, tracts, boundaries, roads, streets, or highways, or provide horizontal or vertical survey control."

If you think that you must remove all doubt that an object which appears that it was likely set as a monument is truly a monument that fits the 8771 verbiage, you are certainly welcome to do so. I suggest that it is much more economical to simply locate it relative to some control outside of the impact area, show it on a CR or show several on an RS and include a note that the work you performed was not to ensure that the objects found correctly mark any point or corner that they purport to mark or appear to be for the purpose of marking, but simply to preserve the positions for others to consider and determine the correctness of in future surveys.

It is doable in an efficient manner. If you have no record or knowledge of a monument at a particular corner, but have sufficient info to determine a search position, simply make a cursory search for something readily obvious... a quick visual and a couple passes with the metal detector and move on. If you have knowledge or some record (filed or not) that a monument was set at a location, perform a more diligent search until you've found it or can be reasonably assured that it no longer exists.

Additionally, 8771 doesn't say preserve only those monuments which are easy to find or only the minimum required to calculate where all the others should have been set. The requirement is for all such monuments and the implication is all such that can be found by a reasonably diligent search.

By making arguments why it may not be reasonable to make even a cursory search for some of those monuments, you come off as one who cuts corners. I hope that's not actually the case.

E_Page wrote:...


Additionally, 8771 doesn't say preserve only those monuments which are easy to find or only the minimum required to calculate where all the others should have been set. The requirement is for all such monuments and the implication is all such that can be found by a reasonably diligent search.

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We really aren't in disagreement here. My ultimate point and more a question is in regards to the subjectivity of what constitutes a "reasonably diligent search". In certain areas and in a lot more instances than some may care to admit, it is not "doable in an efficient manner". In those convoluted and complex boundary areas creating search coordinates and delving into historic unrecorded surveys of the area can be quite challenging and time consuming. I am not saying it should be completely ignored, but instead my debate is centered on what is reasonable and practical? It is subjective.
The issue becomes even more complex considering 8771 is not limited to boundary monuments but also vertical and horizontal control. And 8771 does not limit it to government agency horizontal and vertical control. Every PK nail, every spike in a power pole may be some survey or engineer control.

Ultimately however the question is that which is posed in the original post. What is the liability if an agency neglects to recover un-recorded monuments of record. Does the agency have a responsibility in the O.P. to now perform a boundary determination being as the non-record 60d spike has been destroyed and its location now un-recoverable? If I was working for dedkad's agency I know what my advice would be.