This is somewhat simplified from the real situation:
State acquires 3.5 acres of nearly ocean front property for $8,000 (I like the price-it's probably worth $8,000,000 now) by metes and bounds Deed in 1960. State's surveyor sets pipe and brass cap at the property corners but files no R/S. We only have his field books (someone thought to offer them to the Surveyors before throwing them away).
The north boundary is the south boundary of a 1920s subdivision. It is well monumented, lots of R/Ss and Corner Records and they all line right up. There isn't a question as to where that boundary is located.
Here is the problem: State's surveyor set the northeast corner 1.5' short of the subdivision boundary (called for in the Deed) at the Deed distance. He did good otherwise. There is some reliance but all of the private surveyors are either ignoring the pipe/cap or calling it off. The State Constitution prohibits a gift of State funds (no Surveyor for the State has the authority to give away property intentionally or otherwise).
I even talked to the property owner most directly affected by the pipe/cap (it is on his rear line). He had a Survey and his Surveyor told him it is off. He had built some retaining wall using that pipe/cap east of it (technically on the property of the adjoiner that sold us our property). He was kind of puzzled about the situation (who wouldn't think an official looking brass/cap with government agency name stamped on it is authoritative) but it wasn't a huge problem for him. For us it is way in the rear corner of our property and not really developable for us.
Put a little extra sugar in the Kool-Aid and everyone will be happy. No sense digging up a dead horse, even if it is worth a lot of money. Really makes you wonder what happened in 1960. Could some mischievious imp have moved it, just for fun?
Could be but I think it's right where he set it. According to his notes those pipes are 5 feet long. It is heavy clay (kind of weird next to the ocean). The cap is in good shape. I agree on let sleeping dogs lie where possible. Litigation in this State just goes on and on and on and costs too much money and staff time. The Lawyers seems to be able to stretch it out forever. I have noticed, though, if you get a Lawyer that wants to finish a case, it seems to get done like magic.
Also he calc'ed the job in the field book so I know what he did. The field notes for the job are about a half inch thick. He must've had nothing else to do that winter. He has 3D sketches of nearby houses in perspective; he used chimneys and other objects for natural sights. I tried to identify some of the houses but one I am pretty sure about has been heavily remodeled. He did a lot of triangulating. I think he was a frustrated artist. Some of his handwriting is extremely small, need a magnifier to read.
He even found some tagged hubs along the boundary which are missing now. The same RCE license that set the hubs set some pipes further east which I found on the boundary so I'm pretty sure the hubs were on the boundary. I searched for the hubs but they've been taken out by more recent wall and fence construction. I have found old hubs near the coast but in a sandy environment.
what are you doing
Are you retracing a retracement? Is the pipe called for in the deed? When the pipe was set was it set as an original corner of a subdivision it is supposed to stand for or is it the opinion of the State as to the location of their holdings as described by the deed they are now claiming rights under? Do I understand you to say, that there is no physical evidence and/or written evidence of reliance on the pipe?
Thanks for the post interesting question
Consider this-boundary
Simplified:
"The north boundary is the south boundary of a 1920s subdivision."
what are you doing
The Survey is done and filed a couple of years ago.
It is just somewhat typical of the problems we have to find the answer to (although there isn't really a typical problem).
I was retracing a Deed. Most of the Deeds we received from that time period and before were cut out of larger parcels but on less than half of them the Department would survey the property (typically they would occupy 25% to 50% of the rural property). There are found monuments at all of the corners; since they are prominent with caps I consider them original monuments except two are in conflict with the actual location of the subdivision boundary so I used the well monumented subdivision boundary as called for in the Deed.
Sometimes there is some indication (maybe vague references in the correspondence files) that the local Ranger knew something about surveying so he and the fire crew laid out the fences. I haven't found one that was an encroachment problem because the structures aren't usually close to the boundaries. It's typical rural stuff, wire fences, that kind of thing.
This one just happened to get surveyed and monumented.
Prepare a document to be recorded granting the use of that part of the State property for a wall until such time the State develops that property up to the ownership lines or the wall needs replacing, either of which would terminate the permission and require that the encroaching wall be removed. That protects both owners and keeps any Cloud of Title at bay even if no adverse claims can be made against the state. Anything else could muck up an established Subdivision boundary. The document should be prepared by an Attorney, with both permission and acceptance signature lines and attached to the deed documents of both property's so it would go with the property if sold, your legal counsel should know how to get it done, A description of the wedge is all that a surveyor should get involved with.
jud
>State's surveyor set the northeast corner 1.5' short of the subdivision boundary (called for in the Deed) at the Deed distance
If the subdivision boundary existed, was called for, and is indisputable, doesn't that make his monument wrong?
what are you doing
> so I used the well monumented subdivision boundary as called for in the Deed.
>
Exactly what I would've done. The call is for the subdivision, he just happen to be mistaken as to where he was at with respect to that line. On the other hand, he could've have a blunder in actually setting the monument. Either way, the call is for the subdivision, which has been there much longer and is the best evidence. There was never an intention to leave a gap (like the old spite strips). Even if someone wanted to make a case of it, I'm sure California has a Strips & Gores Doctrine" like mostother states.
what are you doing
> ..... I'm sure California has a Strips & Gores Doctrine" like mostother states.
Yeah, it goes something like this. "Sue and go to court and let the judge decide".
The subdivision corner would not necessarily be the same as the State land corner, unless they are. This would be dependent on earlier deeds. I could see where there could be a difference of opinion as to where a certain line runs, which would produce such a problem. Say the sub corner and the State corner were both called to be on a section line. Surveyor 1 says this is the section line location. Then Surveyor 2 comes along a says Surveyor 1 was wrong about that location and uses his own interpretation of said line. Surveyor 2 is not obligated to fix Surveyor 1's mistakes inside the subdivision.
Consider this-boundary
:good:
File it showing it the way it is and if any monuments fall on that boundary, put some new ones that do or show how far the exiting ones fall short.
> The subdivision corner would not necessarily be the same as the State land corner, unless they are. This would be dependent on earlier deeds. I could see where there could be a difference of opinion as to where a certain line runs, which would produce such a problem. Say the sub corner and the State corner were both called to be on a section line. Surveyor 1 says this is the section line location. Then Surveyor 2 comes along a says Surveyor 1 was wrong about that location and uses his own interpretation of said line. Surveyor 2 is not obligated to fix Surveyor 1's mistakes inside the subdivision.
According to the post, the deed calls to the subdivision boundary.
" State's surveyor set the northeast corner 1.5' short of the subdivision boundary [b](called for in the Deed) at the Deed distance."
That makes the subdivision line being the actual call, and any original subdivision corners being "original" over a distance called for in the State's deed.
what are you doing
The cases I have found in California on strips and gores have to do with road right-of-ways.
I don't know of any specific case law regarding small strips left by description. I think it is mostly a fact issue, not a law issue. For example, what is the apparent intent from the writings and and the situation on the ground (is there an actual strip).
Don't believe there is much question where the ownership line is located. The problem is the wall and how much liability does the state have for having a monument in the wrong location. Being public land that is being encroached upon, there is little chance of an adverse clam being successful. There might be some liability by the state if they choose to insist that the wall be removed when it was constructed using reliance of an out of position monument placed by the state. Giving permission is the cleanest way to get any title issues settled and that takes legal action to prepare the document and the recording so there is a paper trail. A surveyor can only render an opinion as to where the ownership line is located and describe the wedge so the problem can be addressed.
jud
I'll give this to Richard Schaut
A surveyor putting in a pin or a pipe does not a corner make. What matters is what the adjoining owners, and subsequent surveyors, do in reliance on the pin or pipe.
In this case it seems that the 1960 pipe has not been relied on so I would not make myself the first to do so. Also, It sounds like there is a definite call to the subdivision lines and corners which would be a superior call.
Reject the pipe. You can claim is has been moved by persons unknown if you like. Not everybody surveying California in 1960 was Curt Brown.
what are you doing
> The cases I have found in California on strips and gores have to do with road right-of-ways.
>
> I don't know of any specific case law regarding small strips left by description. I think it is mostly a fact issue, not a law issue. For example, what is the apparent intent from the writings and and the situation on the ground (is there an actual strip).
Dave,
That's what I'm trying to say. It's not a case of that, because there's no ambiguity in the deed calls. Again, if someone wanted to try and make a case for the monument and the judge couldn't get his head around to the fact that the deed calls are unambiguous, then you would hopefully have a Strips and Gores Doctrine in your back pocket if forced to play your hand that way.
I'll give this to Richard Schaut
Yes, a monument is evidence of something. My opinion is the monument is evidence of the north-south Deed line but not the Subdivision boundary.
The description begins at the northwest corner of this parcel which is described as a Lot corner in the subdivision (the State also owns one of the subdivision Lots for access). There is a pipe and cap there but not on the Lot corner. I also know why he put that one there which is not a correct procedure. The pipe/cap has been driven down below grade and a wall built almost on top of it. It is behind a garage and would make the garage encroach on to our Subdivision Lot. I set the Lot corner using the best available evidence and voila! The garage is right on the Lot line (e.g. not a problem for us or its owner).
I have the advantage of having my predecessor's field notes which helps tremendously making these determinations. The private surveyors to the north didn't have his field notes but they properly established their respective Lot corners. If I didn't have the old field notes then that would make me wonder if he knew something in 1960 that I don't know but having the notes I know that isn't the case. Sorry if this is confusing.
He also set the other two corners of the parcel (SE & SW) which were new corners at that time (this was cut out of a much larger parcel). Although they don't match the Deed perfectly I used them as original monuments. They are within reason for the time and methods he used.
