California Surveyors Forums

For many years I have been discussing the issue that a corner record is valid when a surveyor surveys a deed which describes a parcel of land as: "All of Lot 1, as shown on Tract 1234, filed in Book 1 of Maps, at Page 2, and the west 5.00 feet of Lot 2 (1 Maps 2)."

In years past, this was standard practice throughout all Bay Area Counties. Approximately five years ago, someone came up with the concept this is not an acceptable situation to show on a corner record. I have had strong opposition by past CLSA Presidents, and the Board. I had a formal complaint filed against me for this situation, and I had to comply and filed a record of survey. There are still a lot of surveyors who agree with me, since the parallel line surveyed is referenced and shown on the underlying map, which is easily retraced. Some old maps even have original street monuments set per the map (1 Maps 2).

Everyone referenced Section 8762 (b)(4), because I referenced a parallel line being a "Deed" line, as identified in said section. I would totally agree if the line surveyed was 01" different from the filed map, but we are talking "Parallel" lines shown on a filed map. If you read the entire sub-section (4), it clearly states; " . . . the positions of which are not ascertainable from an inspection of the subdivision map, official map, or record of survey."

"Ascertainable" as defined in Black's Law Dictionary defines "Ascertain" as; "To fix; to render certain or definite; to estimate and determine; to clear of doubt or obscurity. Pughe v. Coleman, Tex,Civ.App.,44 S.W. 578. To insure as a certainty. United States v. Foster, C.C.A.Iowa, 131 F.2d 3, 7.

With all that said, and from all of those who have disagreed with me, I ask how is a parallel line shown on a filed map not ascertainable from the inspection of a filed map?

Now grab some popcorn, because I know there will be some who twist this around, make a tangent statement, and spiral this downhill, even though it is clearly printed in the PLS Act that a corner record should be a valid avenue to map this situation. Ascertainable as defined, is truly not open for interpretation. Yes a record of survey is always best to show your work, but not necessary. If you still think a record of survey shall be filed, I'd like to understand your reasoning, but it is still only your interpretation.

Happy days to you all!!!

The purpose of a ROS is to further the maintenenance of a current and accurate cadastre. Toward that end, when you establish the location of a deed line that's not shown on any of the statutorily-defined maps, the law requires you to file a ROS. The definition of "ascertain" is irrelevant here, as any surveyor can ascertain any line, parallel or not, that's defined in a deed and tied to a record map. Parallelism may make it easier for a lay person to lay off a line from lot corner monuments, but that's not the point of the code section.

The wink-and-a-nod practice of calling the monumented line a "reference" to the lot line is a ruse to avoid filing a ROS. And common practice in violation of the statute is still a violation. As you apparently found out, it can come around and bite you in the end.

Jim Frame wrote: The definition of "ascertain" is irrelevant here, as any surveyor can ascertain any line, parallel or not, that's defined in a deed and tied to a record map.

Jim, the section clearly states "the positions of which are not ascertainable from an inspection". Parallel lines should fall into this situation.
I don't know anyone who can ascertain a non-parallel line without a computer, calculator, log tables(calculations), or even an abacus.

Jim Frame wrote:Parallelism may make it easier for a lay person to lay off a line from lot corner monuments, but that's not the point of the code section.
.

Jim, how do you know what the point of the code section is? Were you actually involved in writing it? Your interpretation is clearly just that, your interpretation which may be in line with others. If this is ambiguous, then why is the clause even listed in the section??? The code should be clear, and not open to interpretation. If there is any potential multiple interpretation, both views should be valid.

Remember the old LS grading exam process? The grading outline (answers) was what we used, until an alternate mythology and process was identified as valid due to the examinee's interpretation of the question. Any code should not be held mandated as only one valid answer if it is open to interpretation.

So by your interpretation of "inspection", i understand you perform calculations.
Black's Law Dictionary defines "Inspection" as; "An examination by a private person of public records and documents." Thus the intent of adjusting parallel lines shown on a map is pretty simple, and how some of us interpret the code.

I always though the parallel line should be allowed on a Corner Record.
But that only works with rectangular lots.
What if the back line was, say, 45° to the sidelines? Could the average homeowner know where or when to stop the parallel line if given the lot line?

Dave Lindell wrote:I always though the parallel line should be allowed on a Corner Record.
But that only works with rectangular lots.
What if the back line was, say, 45° to the sidelines? Could the average homeowner know where or when to stop the parallel line if given the lot line?

Dave, most of these situations are performed on rectangular lots, and why would 45 degree angles be any different?
Parallel lines to any line on a filed map is still relative to the filed map.
A surveyor would set points and show it on a CR relative to the underlying filed map, which supports your parallel line.
What was the intent for the adjustment of the west 5.00 feet?

Keith - I hear what you are saying; however I feel that your situation is more covered under 8762(b)(5).

(5) The points or lines set during the performance of a field survey of any parcel described in any deed or other instrument of title recorded in the county recorder’s office are not shown on any subdivision map, official map, or record of survey.

The West 5 feet of Lot 2 is not shown on a subdivision map, official map or record of survey.

Just my 2 cents.

LS7773 wrote:Keith - I hear what you are saying; however I feel that your situation is more covered under 8762(b)(5).

Thanks Mouro,
But isn't Sub Section (5) clearly interpreted to be describing lines in a deed as part of a metes and bounds description?
Clearly you can't ascertain the position(s) from the inspection of a filed map, cause there isn't a filed map on the parcel per Sect. (5).
Here comes your downward spiral, lol.

Keith Nofield:

Jim Frame and Mauro Weyant each gave precise answers based on the black letter law, no dictionary required, simply reading the law by the four corners. Hallmarked by your quick reply to the discussion rejecting their position.

Based on my limited exposure to various practitioners, I do not think your position will find many like minded folks. I do not think there is a constituency for your position.

The answer to the question may rest outside of the question being asked. Maybe ask yourself what would be the ideal answer and why you are asking in the context of confirmation bias.

"Confirmation bias is the tendency to search for, interpret, favor, and recall information in a way that confirms or supports one's prior beliefs or values. It is an important type of cognitive bias that has a significant effect on the proper functioning of society by distorting evidence-based decision-making. People display this bias when they gather or remember information selectively, or when they interpret it in a bias way. For example, a person may cherry-pick empirical data that supports one's belief, ignoring the remainder of the data that is not supportive. People also tend to interpret ambiguous evidence as supporting their existing position. The effect is strongest for desired outcomes, for emotionally charged issues, and for deeply entrenched beliefs."


Peace,

DWoolley

Post script: I am not immune from trying to satisfy my own positions and being subject to a confirmation bias. It is a human condition.

DWoolley wrote: The answer to the question may rest outside of the question being asked. Maybe ask yourself what would be the ideal answer and why you are asking in the context of confirmation bias.

Dave the ideal answer would be in three parts:
1) The homeowner wouldn't be burdened to pay extortioned review fees for a simple retracement of a monumented Subdivision map.

2) ALL counties would implement a reduced fee record of survey for those situations that do not require 4-6 hours to review a map.
I know some counties already have this. The County Surveyor has the authority to reduce the map review fee, and I have NO issues requesting their
approval to proceed with a record of survey with a reduced cost to the public.

3) Homeowners don't want to pay my record of survey fees, and find another surveyor. When I get a job next door and find wood ginnies at the corner labeled "PROPERTY CORNER" and there is no records of this, oh ya the other surveyor is real professional. The homeowners don't know the law, so how is that protecting the public? So having a corner record filed to document the property corners, and point set does assist and protect the public.


PS, thanks for the reply since other times I don't hear from you on peer review issues.

PLS7393 wrote: 1) The homeowner wouldn't be burdened to pay extortioned review fees for a simple retracement of a monumented Subdivision map.

2) ALL counties would implement a reduced fee record of survey for those situations that do not require 4-6 hours to review a map.
I know some counties already have this. The County Surveyor has the authority to reduce the map review fee, and I have NO issues requesting their
approval to proceed with a record of survey with a reduced cost to the public.

I support this solution fully

I encountered this situation a couple of months ago. Best I could do was set the lot corner (Corner Record) and stake the line at random intervals between my set corner and a found corner up the block. I told the home owner that he could pull the 35 feet down the line from my pipe and build his fence (south 35' of the lot) but if I set that deed corner for him then it was going to cost him an extra $1500 as I would be bound by law to file a record of survey. In my opinion we are doing the opposite of a public service with this behavior and a low cost RS option could be an easy remedy. It never crossed my mind that I could set that offset corner on a corner record for the reasons previously discussed (deed line, not previously mapped, etc.)

The only caveat to my support for this low cost RS is that the County Surveyor would have to have discretion to reject or require a regular cost RS. I'm not sure how that would work as there would be an opportunity for abuse of discretion on both sides of the counter and someone is bound to mess it up....

David Kendall wrote: I support this solution fully

It never crossed my mind that I could set that offset corner on a corner record for the reasons previously discussed (deed line, not previously mapped, etc.)

Thanks David,
Don't get to carried away with the simple concept of an offset point to the underlying subdivision map, even though reference (offset) points are also allowed as defined in the PLS Act. That use to be the accepted practice, without drawing a line between the offset points. Then a CS referenced the assessors map, yes they did, and said we are staking the deed line as shown on the assessors map, thus a RS. Call it what it is, and if you have a CS understanding the concept, more power to you. Obviously the little guys, those who deal with the homeowners, are the ones who deal with this, not the big companies, or even the bosses.

What happened to interpretation of the codes, when there are different (valid) interpretations? It's not a matter of right or wrong, because you can't be right or wrong if there are different interpretations. Some say who has a bigger hammer, the independent surveyor, County Surveyor, the Board, a judge, or the Attorney General, if you want to keep going up the ladder. Remember our work is only an opinion, and a judge in CA is the only one qualified to state the true boundary. Yes that is relative, because the CS is telling us what they want us to do too, even if they are clearly wrong. Maybe CLSA should request some clear interpretation from the Attorney General, but unless they are a licensed surveyor, will they truly understand the question at hand?

David Kendall wrote:

PLS7393 wrote: 1) The homeowner wouldn't be burdened to pay extortioned review fees for a simple retracement of a monumented Subdivision map.

2) ALL counties would implement a reduced fee record of survey for those situations that do not require 4-6 hours to review a map.
I know some counties already have this. The County Surveyor has the authority to reduce the map review fee, and I have NO issues requesting their
approval to proceed with a record of survey with a reduced cost to the public.

I support this solution fully

I encountered this situation a couple of months ago. Best I could do was set the lot corner (Corner Record) and stake the line at random intervals between my set corner and a found corner up the block. I told the home owner that he could pull the 35 feet down the line from my pipe and build his fence (south 35' of the lot) but if I set that deed corner for him then it was going to cost him an extra $1500 as I would be bound by law to file a record of survey. In my opinion we are doing the opposite of a public service with this behavior and a low cost RS option could be an easy remedy. It never crossed my mind that I could set that offset corner on a corner record for the reasons previously discussed (deed line, not previously mapped, etc.)

The only caveat to my support for this low cost RS is that the County Surveyor would have to have discretion to reject or require a regular cost RS. I'm not sure how that would work as there would be an opportunity for abuse of discretion on both sides of the counter and someone is bound to mess it up....

Yep I second this idea. I'm currently doing an ROS on a parcel because the one line isn't of (mapped) record but its location is unambigious, street monuments fit fine, etc. It's a glorified corner record - two points set on either end of the line in question. I'd definitely expect a lower fee for this map if there was such an animal.

The whole idea is to get more maps in, and something like this would encourage it more and we would get less hackery.

David Kendall:

I think you *meant that you were speaking hypothetically, right?

Why would you expose yourself to the liability to establish the "west 35.00'" by setting a 35' offset to file a corner record? Why not walk away if they don't want to pay for a record of survey?

Keith Nofield:

General guidance I have found to be helpful.

"Courts generally assume that the words of a statute mean what an “ordinary” or “reasonable” person would understand them to mean. Moreover, some courts adhere to the principle that if the words of a statute are clear and unambiguous, the court need not inquire any further into the meaning of the statute. Thus, you can often begin by looking at the ordinary or reasonable understanding of a statute’s text based on your own experience and understanding of language and grammar."

Those that want a different outcome could suggest exemption language that allows a corner record for "simple" surveys? Several folks have tried to craft the language to exempt "ly" descriptions and it gets complicated.

DWoolley

(4) says what it says, so it must apply some time, right? If not when the line is parallel, then when?
I agree that surveying that line shouldn't trigger a RoS, in my interpretation of that paragraph of code. I find that to be the most annoying couple words in the whole act. It's so ambiguous, I know some would take that argument very far, offsets and a fillet? Multiple courses tied to a monumented line? At what point is it not ascertained from the monumented line? If we're talking about my dad, 14 year old me, 9 year old brother, a string and some 4x4s, pretty darn quick after parallel. But it's so easy to think of surveyors applying it to an ALTA with 57 courses separating the winco parking from the walmart parking. That sentence does no good. I go back to: it's there, so when does it apply?

Keith, you say you set the corners, so (5), end of story. If agencies allowed it then that's aiding and abetting.

I'm very curious if the complaint was about(4) at all or just (5).

Thanks

Mssrs. Nofield, Taylor and Kendall:

I have asked for the attached legislative proposal to be placed on the November 2020 Board of Directors meeting agenda. The Directors will vote on whether or not to move forward on the language. If approved by the Directors, the proposal will be sent to the Legislative Committee to prepare language. Final language is not needed at this time.

The smart play is for each of you to reach out to any Director (s) to discuss the proposal. Also, I would suggest you coordinate with Landon Blake to see if you can get a webinar on topic before November. Although I am not a fan of the idea of modifying 8762 (b) (4), absent any volunteers, I am willing to advocate for the proposal. The webinar will be an opportunity to explain to some Directors and CLSA members the necessity of the language change.

DWoolley

Thanks Dave for your support, as it appears you may have seen the light to what I am talking about.
I do not understand how so many surveyors don't see the benefit to the public to enable surveyors to at least get more documents filed with property corners set of record. I know of a surveyor who had to file a record of survey simply because the original lot lines from for tract map were adjusted 1.00'.
How many of you reading this have set an offset point to the property corner of 1.00' or 2.00' because of a fence, tree, landscaping, or other obstacle? The concept is very similar if your think about it.

Trust me, the homeowner will appreciate you only charging $2,000 for a CR vs $3,500 for a RS (depending on the county fees).

It seems this topic is always a good one, but then many who have told me their opinion in the past simply don't want to post their comments with any justification. Business as usual I guess and those who actually try to make the profession better are left in a rabbit hole, at the homeowners expense.

Dave, do you also have a petition of some sorts that is accompanying this. I'd be happy to sign? Filing a map on the westerly 2" of Lot 1 of tract X, does not protect the public, it extorts them.

PLS9196:

There is a CLSA Legislative Committee meeting on October 10th. The committee cannot act on the proposal until the Board of Directors authorizes the committee to move forward. However, it is likely to be discussed briefly and impartially.

Off the cuff, I do not anticipate much controversy or opposition at the November Board of Directors meeting. Although I have been surprised in the past. The foreseeable challenge is the committee may not be able to find the words to accomplish the stated goal.

If you're interested, I think the committee would welcome an interested member to attend the committee meeting and certainly, the board meeting.

I am easy to find if you want to discuss it further off the forum. Thank you for your interest. It is appreciated and welcomed.

DWoolley