California Surveyors Forums

Background:
Record of Survey filed in 2005. Very complicated several page Record of Survey. 2005 surveyor has retired. I have been asked to add several "point on line" monuments to one line shown on the Record of Survey. There are several monuments that already exist upon this line that conform to the dimensions shown on the filed Record of Survey. There are no discrepancies with the filed Record of Survey. I have only been requested to add several more monuments to the line already monumented. The owners who adjoined this line at the time of the Record of Survey are the same owners today. When the line was monumented in 2005, the Record of Survey clearly indicated occupation, with differences between occupation and the resolved boundary line up to 4' discrepant. This is waterfront property on San Francisco Bay. 4' is a big deal. The owner that is being "shorted" wants to move the fence. Other owner is not cooperative. There is a significant change this will end up in litigation. Deep pockets.

Question:
The work being described is simple. It will take me a few hours to add the additional monuments to the line, and then prepare a Corner Record. Is there any way to perform this work without being liable for the determination of the boundary line as completed in 2005? By accepting work to add additional monuments to the previously monumented line in question, am I liable for the previous resolution of said boundary line? Is there any way to limit liability in this situation?

I know what a wise person would do in this situation: RUN AWAY, not worth it! But I am still curious how others consider this matter.

Any real world examples are appreciated.

Sounds like a dicey situation.

The BIG QUESTION is when, and if, this goes to court do you feel confident in the work of others. Because the other side's attorney is going over the survey that you hung your hat - on with a fine tooth comb.

But accepting a recorded surve you have to defend it.

Some out-of-the-area surveyors that work in Marin blindly accept a survey because it is recorded. Better know the surveyor. Better vet the survey.

Crazy Phil's two cents

Clark On Boundaries book explains nonfeasance (negligence) as non performance of an act which a surveyor should have performed properly.
he continues on to say that malfeasance is evil doing, described as knowingly not performing an act which needed to be done (retracement of the underlying RS). This deliberate act can have a possible award of punitive damages.
Your liability is based on what another surveyor expert witness is likely to say in court is standard practice. Several expert witnessing surveyors I know tend to use highest standard of care when describing what a surveyor should have done. Too many surveyors on daily basis fall a bit short. This could be the retired guy (are you familiar with his work?)

Having said that, in many jurisdictions if this line has been surveyor before, and you have performed sufficient survey/analysis on your own to vet the underlying information, you can set corners and file a corner of record. A lot depends on actual specifics of the boundary, which we don't have here.

If the property is already in dispute, if you are going to err, you need to make an effort to err on the side of being hypervigilant.

The two waterfront properties, if you monument them, you own them (in terms of liability). Is your insurance willing to pay for this? Can you afford to be dragged into the dispute? Even if you defend yourself successfully, it is costly.

The surveyor who performed the work in 2005 is generally thorough and of good reputation in the local surveying community. I will not be taking on this project. But I'll tell you, it does kind of bother me that I don't have a good solution to offer the client. I would need compensation in the 5 figures to be willing to take on the liability of this project, and they already paid someone in 2005 to do just that. It doesn't seem right for them to be required to do it again, just because they want more markers, and the other surveyor retired. I guess this just confirms that life isn't fair.

PE_PLS wrote: Tue Oct 11, 2022 9:41 am The surveyor who performed the work in 2005 is generally thorough and of good reputation in the local surveying community. I will not be taking on this project. But I'll tell you, it does kind of bother me that I don't have a good solution to offer the client. I would need compensation in the 5 figures to be willing to take on the liability of this project, and they already paid someone in 2005 to do just that. It doesn't seem right for them to be required to do it again, just because they want more markers, and the other surveyor retired. I guess this just confirms that life isn't fair.

Why do they want more monumentation?
Are these angle points, or points on line? What problem is the (potential) client trying to solve? Is there a different answer to their problem?

Usually if you have an irate neighbor who is fighting over everything a few more monuments don't solve that issue. It may even escalate it, because now he will question what you (or any new surveyor) has done.

CBarrett wrote: Tue Oct 11, 2022 9:09 am if this line has been surveyor before, and you have performed sufficient survey/analysis on your own to vet the underlying information, you can set corners and file a corner record.

I agree with this statement. I am in a similar situation on a survey that I just contracted today. If I can get enough information to confirm and agree with the reasoning developed for prior line then there is no problem. If I find an alternate solution then I will have to document that on a record of survey. I did not contract for a record of survey (as the line is already established), we will discuss that if it becomes necessary Still no problem, just more work...

If you set the new mons and file a CR, I would consider that a defacto statement of agreement with the previous survey, otherwise you would fall into 8762 (b)(3) "alternate positions". It would be too easy to ask a series of questions that pinned you to either being negligent or defending the 2005 survey's conclusions as correct.

If you set the monuments and use a RoS to state clearly that you are only perpetuating positions from that 2005 survey as requested by your client, explicitly to allow them to see the old line on the ground, I don't see how you would be liable on a professional level. Make it clear in the contract and on the face of the RoS so that you can clearly and correctly say you weren't paid to render an opinion on the correct location of the relevant boundary in your eventual deposition :)

We have had several jobs where we helped clients like that. IE Monumenting a line from an old RoS that a client was in the process of litigating and they want something they can point to and discuss. We didn't feel comfortable setting wood, or pipes with a CR, and the RoS provided enough CYA and still help someone get through the process of settling a boundary.

BTW, not a lawyer.

Mikey Mueller, PLS
Sonoma County

In general if anyone asks me “can someone sue me for this” my answer is “Anyone can sue you at anytime for any reason”.

For a while I had a partnership with a civil engineer for incidental civil design work. He was concerned about liability. I told him that liability exists as soon as you get to work and ends when you lock the door. It’s a constant.

The key for me is to limit the liability by the way you operate. Assume that you could be sued for any boundary you determine. Document your decision so you can understand what you did years later. Have a solid reason for every line or point you determine. Follow the laws of the land - like filing an RS when mandated. Communicate with your client and interested parties. If your client is upset it’s real important to explain yourself clearly and never write them off. I have had the most trouble with my own clients who did not agree with what I did. I got into trouble when I ignored their objections.

Be careful, confident but also willing to listen and adjust when necessary.

https://www.victorinsuranceus.com/Conte ... _Risk.aspx

Kurt Sumner/Gary Kent paper on risk management for surveyors.

kwilson: "Anyone can sue you anytime for any reason" ... and you can be totally right and still lose.

The BIG QUESTION is when, and if, this goes to court do you feel confident in the work of others.

I'm currently dealing with a situation that I always hate to encounter: a recent survey that's basically correct but sloppily done.

The setup: my client bought his rural 391'x240' parcel in 2022. It's surrounded on the south and east by a 76-acre ag parcel. The 76-acre neighbor had a survey done, the ROS was filed (I think) last month (thus far I only have an unconformed draft). I'm not familiar with the surveyor, he's from a few counties away. My client decided to fence his parcel, and directed the fence contractor to build the fence to the flagged wood stakes he found (at present I don't know who set those stakes or why). It's a very nice 5' redwood fence, 3 each 2x6 stringers
on 4x4 posts every 8 feet, with 4' wire on the inside. I believe he said materials alone came to almost $20k.

Following completion of the fence, the 76-acre neighbor points out the actual corner monuments, and tells my client to move the fence off his property. The fence is about 16' over on the south (240') side, and skews across the east (391') side by up to 3'.

My client asks for a proposal to survey his parcel. I ask him to send me relevant documents, and among them is a draft of the ROS. I respond by saying that I don't see anything wrong with the survey, it ties to several monuments of record and dimensions are consistent with same, but without doing any field work I can't verify its correctness. I gently suggest that spending money on a survey might not be a good investment,
but he asks for a proposal anyway.

I work up some numbers and get him an estimate. I figure I'll recover the ROS monuments (found and set), find everything copacetic, and that'll be that. Client signs the agreement, and I go out to the site. I find the 2 new rebars at the back corners, set up an RTK base on one of them, and start hitting the other monuments and the new fence corners, nominal 3-minute shots on each.

My first wincing moment occurs at the NW corner (in the road), which is described as a buggy axle on surveys from 1909, 1954 and 1969, as well as the 2022 ROS. What I find is a 3/8" rebar just below the road surface.

Wince No. 2 occurs at the NE corner, which was set by the 2022 surveyor and described as a PK nail & aluminum washer. I find a nail hole in the pavement, and in the ditch nearby I find a 1-1/2" mag nail and an aluminum washer with the 2022 surveyor's number on it. I beep the nail hole and get a solid read, I cut through the chipseal and find a nail and shiner 0.19'N & 0.08'E of the nail hole.

I hit the rest of the monuments, all aliquot corners in wells per the old surveys, pack up an go back to the office. The RTK positions match record with 0.15', mostly half that or less. I write a report describing preliminary results consistent with the 2022 survey "for all practical purposes," and suggest to my client that he may wish to stop there in order to save money (at this point I've spent a little over half the estimate).

The client wants me to continue, he doesn't want a preliminary survey, he wants a final survey. I return to the site, repeat the RTK shots for redundancy, and take total station shots at all the on-site points. The final adjustment changes the RTK positions by a couple of hundredths or less.

Now comes the dilemma: do I tell my client that in order to finish the survey I have to spend the time to dig up the buggy axle (which is presumably still there, likely raised by someone in the past with the 3/8" rebar) and file a new ROS showing the nail & shiner and the tenth-ish differences between 2022 record and my measurements -- all of which will more than double the estimate -- or do I tell him that I can meet the estimate and quietly ignore the sloppy-but-practically-correct
work of the guy who can't tell a rebar from a buggy axle, can't be bothered to wave a pin finder around before slamming in an undersized nail, and apparently thinks RTK is good enough to monument a small parcel?

Sounds like you have a client where "It's not the money, it's the principle of the thing!"

Are you saying that you and the recent sloppy survey agree by 0.2' in general?

Are you saying that you and the recent sloppy survey agree by 0.2' in general?

Yes, as to dimensions. Not so much as to monument search and durability.

I mean aren't we nearly always surveying and/or monumenting a previously surveyed line?

So the 'sloppy surveyor' decided to accept the rebar to be indicative of the axle record position, because it agreed with record information? Am I reading this right?
By placing it on the RS. Previous surveyor added that rebar to the location pedigree. Unless one expects to fin the buggy axle in a materially different position, the rebar seems acceptable?

I just did a boundary where the perpetuated location of a centerline disagreed with the original position by just over a foot. My, bless his heart, diligent party chief, found the original subdivision monument from 1910, and a city well monument a foot away meant to perpetuate this monuments position from 1940, on. All current improvements in this tract are based on the newer monument, and the original in this one location is practically obsolete. I will he reporting these findings on a followup RS.

So the 'sloppy surveyor' decided to accept the rebar to be indicative of the axle record position, because it agreed with record information?

I haven't talked to him yet, but my guess is that he doesn't know what a buggy axle looks like nor how far down to expect to find one. (In this area I'd expect to find it somewhere between half a foot and 2 feet below pavement grade.) I think the rebar is probably within a tenth or two of the horizontal position of the buggy axle, but the ROS as filed calls for a monument that's not what was actually located, so the rebar still has no record pedigree.

Ah, thanks, that's the detail I missed.