Retrace vs. Establish

[CBarrett]

Side point of information:
Could we perhaps agree to make a finer point distinction between words ESTABLISH and RETRACE.

To establish is to create new boundary lines via legal subdivision - only subdivision maps and a sundry variety of processes (LLA) can ESTABLISH a boundary line, legally and on the ground.

Everything else is a RETRACEMENT.
Records of survey retrace established boundaries, they don't create new ones. Official maps don't Establish (create) boundaries, they retrace existing. Only thing that can be remotely considered establishment in a record of survey is setting a new monument on a line that we retraced, but I prefer to say "position recovered, or position retraced ~ and monumented ... "

Both, Black's law dictionary and Merriam Webster (used more colloquially) lean in this direction, of making the distinction between the two words. There are some minor instances where case law accepted the interchangeable use of these words.

I strongly believe that the best practice would be to train ourselves and others into making this distinction clear. There is a clear difference between creating boundary lines, and retracing them.

Same is also taught in many survey programs and seminars. Two words have ended up in code and case laws almost interchangeably, because many practicing surveyors neglect this finer distinction.

Thanks!

[E_Page]

Land title boundaries, by their nature are legal entities. Ideally, they are marked with some object on the ground, thereby fixing or establishing their actual position.

To "establish" means to make permanent. In terms of surveying, that means to fix in place. If the boundary is not "established" by mere protraction or description without specific mention of an object used to mark locations along the boundaries. If it was, the markers of it will necessarily need to be moved every time a new surveyor makes a measurement that disagrees slightly with the prior measurement. Establishment gives physicality to the existing legal entity. This is why there are "Establishment Doctrines" in the law of land boundaries.

A boundary may have been created by a conveyance or map at some point but never established on the ground. If never established on the ground, there is nothing to retrace.

In modern practice in CA, you are correct (in most instances), a boundary is both created and established through the subdivision process.

However, there are numerous instances where parcels were created solely by deed (or by will) and later made legal by a certificate of compliance, recognition by a court, etc. Even when not yet recognized as a legally compliant parcel, many yet exist as a real parcel in the legal sense (that is may not be developable but legally exists). Some even exist as an overlooked remnant left after a patchwork of previous conveyances from a since forgotten parent parcel. In these instances, the boundaries were created but not established on the ground.

With a modern common boundary survey, most lines and corners are the subject of retracement and must be re-established according to the relevant evidence available to the surveyor. If not previously established by a surveyor, a boundary still may have been established by the actions and reliance of the affected landowners. In some instances, no boundary or observable limit of occupation had ever been placed on the ground by any party. In those cases, the surveyor is establishing those boundaries for the first time by harmonizing to the greatest extent possible, the terms of the deed describing the particular boundary with those portions of a parcel's boundaries which are defined by relevant and available evidence.

So, while the vast majority of the time, you are correct that a boundary survey subject to being shown on a RS is a retracement, there are some instances where portions of that survey may represent a valid first establishment of the boundary.

How often that occurs will vary according to where the parcel exists. It will almost never occur in urban or long established suburban locales. A surveyor who practices in such areas may never establish a boundary for a client outside of the current subdivision process. In more rural areas, a surveyor may establish portions of parcel boundaries nearly on a monthly basis.

[CBarrett]

Evan, I really like the distinction that you made here. You are right, paper only subdivision (deed with no monuments) never had the points established on the ground.

So we need to define if establish means on the ground and in records, or if it can apply to records only as well. Good point!!!!

[SueDonim]

Ms. Barrett and Mr. Page,

What inciteful essays! Thank you.

One situation that has always concerned me is one where there were few (or few remaining) survey monuments within a subdivision.

Consider a mid-20th Century map that shows only street intersections being set. Over the decades, some of the monuments have been destroyed. Now, the original framework for the subdivision is no longer the sturdy set the original subdivider and her Surveyor/engineer intended.

Does the survey to mark the boundary of a parcel within the subdivision qualify as a retracement or establishment when
1 - the controlling monuments along the street in front of the parcel are missing?
2 - the controlling monuments at the block corners for the parcel are missing?
3 - a "devious" survey is needed to locate the boundary of the subject parcel? (second definition of devious, not the one everyone's thoughts go to immediately - thank you Mr. Woolley for pointing this out to me)

When does the survey of a parcel in an older subdivision move from retracement to establishment?

Thank you,

Sue

[E_Page]

Snidely Whiplash, LS (a devious surveyor!); Elmer Fudd, LS (an honest but questionably competent surveyor)

Great questions Sue.

On many older subdivision maps, there was no specific indication of monuments having been set at lot corners but typically they were marked with wood stakes, and increasingly as the years went on, with iron pipes, rods or rebar. Sometimes that's given a mention in the Surveyor's Certificate (i.e. "All points have been marked" or similar), and sometimes not. If they used a durable, slow rotting wood like redwood, some of those stakes might have survived up to 150 years or so.

In any case, if the boundaries had ever been established on the ground, either by the original surveyor or by the landowners making a reasonable attempt to mark the true lines and corners, you are retracing the boundaries and perhaps "re-establishing" corner positions with new monuments according to the available evidence of existing boundary locations.

If the positions had never been marked on the ground - the lots never monumented, then those lots are merely protracted lots. If you are the first to mark those boundaries on the ground, then you are establishing the positions. For that establishment to be valid, the methods need to be reasonable, the affected landowners need to accept it, or it needs to be adjudicated.

In a case as you describe, if there is no mention on the plat of lot corners having been marked in any way, if there is no evidence on the ground that lot lines have been marked in any way (this includes fences, hedgerows, houses and driveways built shortly after the subdivision was filed, etc.) and there isn't a locally known standard from the time period that surveyors (or the surveyor of that plat) typically set corner markers even if failing to mention them, then it may be up to you to establish those lot boundaries for the first time on the ground by some reasonable method.

Would it be reasonable to use controlling monuments from an adjacent subdivision? Maybe. It depends on the totality of the circumstances. If there are other subdivisions on multiple sides of the one in which your survey is located, it might be more reasonable to locate controlling monumentation of those several subdivisions and see if trying to harmonize the record measurements across the subject subdivision between monuments of other subdivisions appears reasonable. It may be more reasonable to utilize occupation evidence in other parts of the subdivision your lot is located in and treat it to be on par with or even superior to monumentation of adjacent subdivisions. Identifying the most reasonable and defensible method would likely involve comparing these various methods to determine what best harmonizes with the conditions at or near the lot being surveyed. Heck, I was an expert in a case where a county surveyor testifying as an "expert" for a surveyor of (IMO) questionable competence and even more questionable ethics, said it was OK to base the survey of a lot in one subdivision on the monumentation of an adjacent subdivision while ignoring the monumentation within the subdivision where the lot was located.

Trying to shorten the gist of my answer, to understand when a lot survey is a retracement vs. an establishment, you need to recognize if there is any history of those boundaries having been marked by anyone in the past. If yes, retracement. If no, establishment.

Hope that helps.

[SueDonim]

Thank you Mr. Page. That was an understandable explanation of exactly the conditions I often see.

I like the summary: IS there any evidence that the boundaries have been marked by anyone in the past. Yes = retracement. No = establishment.

Give my best to your good wife. I hope Natasha is enjoying retirement in the wilds of Idaho.

Sue

[David Kendall]

Generally agreeing with Evan on this but my understanding is evolving. The environment and survey history certainly play a part.

I have typically included the term ‘establish’ in my record of survey purpose statements as opposed to ‘illustrate’. ‘Retrace’ never occurred to me.

On a podcast episode that I heard recently, Jeff Lucas posited that surveyors ‘mark’ land boundaries while only landowners could establish their boundaries over time, through occupation. I have been wrangling with that every time I write another purpose statement.

This is a worthy discussion although somewhat trivial. The courts probably would not concern themselves with the distinction and landowners do not understand or care about the minutiae of survey terminology.

In Marin county, there are many 100 year old paper maps with Dr Seuss roads (publicly and privately maintained, inconsistent widths) and blocks winding through steep hills and forests with varying degrees of occupation on each lot. I usually consider my work establishment (or re-establishment?) in these cases if no clear indication of prior formal establishment is noted or if no record (public or private) monuments exist but some ambiguous level of historical occupation exists for which I am opining a boundary solution.

If the occupation is crystal clear and in harmony with mapping and neighbors or the property has been previously monumented and accepted then I could consider it a retracement survey.

I have found the wood posts that Evan describes to be suspicious although they are worthy of consideration. Without records, they are difficult to acknowledge and hold as original monuments due to most of them being lost and not really knowing who set them or when. If I was to find a redwood post of similar character on every lot corner at record distance then of course I would hold them but then they wouldn’t be calling me for a survey

So I suppose that I am adding landowner behavior and boundary complexity to the list of considerations.

[E_Page]

If we want to get completely correct with our terms, the majority of what we do in modern boundary surveying is what the BLM would call a "Dependent Resurvey", or I should say, that's what we're supposed to be doing most of the time - I'll come back to that.

A "Retracement" is merely finding the evidence of previously established corners and reporting it. Occasionally, we get lucky, find everything right where (or reasonably near to where) we expect to find it under a little dirt, in some bushes, etc. Whether we need to go beyond it, "Retracement" is part of every survey we do of an existing parcel.

Once we set monuments, we've gone beyond simply a "Retracement". If we are setting monuments at a location where the best evidence suggests to us that a corner had once been marked in the past, we are still in the "Dependent Resurvey". If we are marking a corner or line which had never previously been marked on the ground, then it's similar to if the BLM or GLO had returned to continue a previous partial survey and are now surveying previously protracted sections. These are called "Extension Surveys" or "Completion Surveys". Looking at some local BLM surveys where they came in to subdivide certain sections, they title it "Dependent Resurvey and Subdivision of Section". The dependent resurvey portion was identifying, verifying and, as necessary, remonumenting the exterior corners of the Section. The Subdivision of Section portion represents an Original Survey.

An "Independent Resurvey" is where any previous survey and the evidence of its corners is considered to be so deficient that the survey and its evidence should be ignored when performing the new survey. Although private surveyors rarely, if ever have the authority to "correct" and thereby move previously established and recognized property corners, they often take it upon themselves to do so. Often, perhaps most often, they don't even realize that they are moving corners and going beyond their authority.

When a surveyor does this it's usually under one or more of the following circumstances:

• - They consider a previous surveyor's measurements to be too poor to accept, seeing magnitude of measurement error as a metric for the accept/reject decision. [This is almost never a valid reason to reject a monument otherwise set reasonably. "Gross Error" is not typically what a surveyor considers an exceedingly poor measurement - ranging from several feet down to a couple tenths of a foot depending upon circumstances and the individual surveyor. "Gross Error" is a legal term that generally signifies that the boundaries marked on the ground cannot correlate to the boundaries described in the deed because the shape is entirely different, the area is off by something like 50%, or basic landmarks don't match.]

• - They disagree with a previous surveyor's methodology. [This may or may not be a valid reason to reject, depending upon age of survey, recognition by land owners, whether methodology was recognizable even if varying from "correct" method.]

• - Failure to recognize valid establishment by landowner or early builder actions. [When direct evidence fades or disappears with age, the improvements made, including but not limited to fences, buildings, driveways, etc., will often be far better evidence of original boundary locations than will measurements from distant evidence.]

An "Original Survey" is one in which you are establishing parcel lines and corners for the first time. The interior lots of a subdivision are an example of an "Original Survey" we might do. Beyond that, many of our boundary surveys may have aspects of both Resurvey and Original Survey. As stated in earlier posts, if establishing a corner or line for the first time (never previously marked by surveyor or landowner), that portion of our survey represents an "Original Survey" of those points and lines, the same as that BLM "Dependent Resurvey and Subdivision of Section".

Don't know if this helps or adds confusion.