Filing of Old Maps

[Stan_K]

I have read many posts where an old unrecorded map was used in a new survey. It seems there are many problems in getting the old map into the records.

I have not experienced this myself, but would like to offer a possible solution, compliments of Lane County Oregon. The Lane County Surveyor will put a note on the old map and accept it for filing:

THIS SURVEY WAS FOUND IN THE FILES OF _______________, AND IS NOW BEING FILED FOR PUBLIC RECORD.
LANE COUNTY SURVEYOR____________________________
DATE_________.

This seems like an easy solution to getting old maps into the publis crecord.

Received new note from Lane County Surveyor:

Something I should have expanded upon was why we do this.

I believe it is short sighted to not put into the public record a lost or forgotten map of survey which may shed light on recovered monumentation.
Why? I believe the client who requested a survey and apparently got one, began to rely on the marked boundary. The public usually does not know we have a recordation law and may not care, they only care that they now have a marked boundary which they may begin to rely on.

The courts have always weighed heavily on reliance and of course in many cases choose repose. I cannot recall any case law here in Oregon where a court threw out a survey for failure to record. That document becomes an essential part of the record much like parol evidence would.

I think it is essential that all County Surveyors Offices hold as complete a record of survey information as possible. That includes documents which come to light well past the date they should have been recorded. I do not vouch for the survey maps accuracy only that it exists. It is up to the surveyor following in the footsteps of past surveyors to determine the validity and or accuracy of this document.

Mike Jackson
County Surveyor
Lane County Surveyors Office

Any comments?

[RAM]

One of the issues would be if the refered to map was of a media that could be filed. What if it was a sheet that was 18" wide and 8' long, ie. Co. Eng. road/row plans, or if it was a reproduction of the orginal. If you added a statement regard being filed to place in the public record, would you need permission from those involved? Wouldn't you be altering the orginal? Not a bad idea, but would need to work out the details.

[E_Page]

I think that Mr. Jackson has a great perspective on this. His note does not change the substance of the information on the map. The record presumably will not go into the "Record of Survey" books but filed as a miscellaneous map. Miscellaneous maps likely come in many different shapes and sizes.

In a state that requires the recording of surveys under current law, the reference to an unrecorded survey on your map as evidence you relied on or considered in your boundary determinations brings notice of existence of that unrecorded map into the public record and the only way to ensure it's availability as evidence to others is to get it into the record as well.

As to permission of those involved, if the map was made prior to the recording law, the surveyor is probably no longer with us. If made after the recording law and the surveyor is still around, perhaps he should redraw the map sufficient for filing and submit it. If the landowners have been relying on the monuments of that survey, it is in their best interest to have it entered into the public record, so I wouldn't expect an objection there. They may wish to keep the original. That's fine, make a copy to file.

If the original isn't of a material of sufficient durability to ensure continued usability, most print shops can make a copy of it onto mylar. The CS can inspect the original and the copy and add a note that the copy is a true copy of the inspected original. I have seen several maps that the CS had, in the 20s, 30s, or 40s, hand drawn a copy of a map from the 1850s or 1860s because of the deteriorating condition of the original, and then certified that the copy was a true and correct copy. The copy is now the official record replacing the actual original.


I wish more County Surveyor's and/or Recorders would take that view.

[pls7809]

I don't know if you're aware or not, but the CLSA Board of Directors are supposed to vote on language to be added to PLS Act 8764 regarding this very thing. See below the language that was provided for the July Board meeting. The next meeting is November 5.

Legislative Committee Report - Action item #4 Proposed language
8764. The record of survey shall show the applicable provisions of the following consistent with the
purpose of the survey:
(a) All monuments found, set, reset, replaced, or removed, describing their kind, size, and location, and
giving other data relating thereto.
(b) Bearing or witness monuments, basis of bearings, bearing and length of lines, scale of map, and
north arrow.
(c) Name and legal designation of the property in which the survey is located, and the date or time
period of the survey.
(d) The relationship to those portions of adjacent tracts, streets, or senior conveyances which have
common lines with the survey.
(e) Memorandum of oaths.
(f) Statements required by Section 8764.5.
(g) Any other data necessary for the intelligent interpretation of the various items and locations of the
points, lines, and areas shown, or convenient for the identification of the survey or surveyor, as may be
determined by the civil engineer or land surveyor preparing the record of survey.

New stuff...

(h) Reference(s) to unfiled map(s) and other data sources, not previously recorded or filed in the
office of the county recorder, city or county surveyor, or other public agency, may be noted on the
face of the record of survey. A copy of the unfiled map(s) or other data source(s) may either;
(1) Be submitted to the county surveyor in a form suitable for filing and indexing. Copies of
unfilled reference(s) shall be available to the public upon request or,
(2) Be added as an additional reference page(s) to the record of survey for filing pursuant to the
requirements of Section 8762 and 8763. The reference page(s) shall be clearly identified
“Reference Page for Informational Purposes Only” on the face of the map in bold lettering and
shall not be subject to the review and examination requirements under Section 8766. Nothing in
this section shall limit the county surveyor from requiring additional notes limiting the
responsibility of the county surveyor or county recorder for the information shown on the
reference pages.
The record of survey shall also show, either graphically or by note, the reason or reasons, if any, why the
mandatory filing provisions of paragraphs (1) to (5), inclusive, of subdivision (b) of Section 8762 apply.
The record of survey need not consist of a survey of an entire property.

[Jim Frame]

What I've done in the past is to provide a copy of the unrecorded map to the CS along with my ROS for checking. This is essentially what's described in the proposed §8764(h)(1). It's an imperfect solution, because it doesn't put the map into an easily searchable public record.

I think the best solution from a usability perspective is to follow the provisions of proposed §8764(h)(2). However, in my home county (Yolo) -- as in some others -- the checking fee is $500 per sheet submitted, and it's not clear to me that the "not subject to review" provision pertains to the fee. The prospect of my client having to pay 500 bucks to enter a map I didn't create into the public record is unpleasant to consider. I'd like to see the §8764(h)(2) language revised to clearly exempt informational map sheets from the fee calculations as well as from the review requirements.

.

[E_Page]

Since the $500 per sheet is a review fee, I don't see how they could justify charging a review fee for a sheet which is not subject to review. The CS is not authorized to charge a handling fee for such sheets.

[subman]

The Subdivision Map Act appears to already authorize Local Ordinance to have a provision that would allow an old unfiled survey used as part of the boundary establishment to get entered into the public record. The surveyor could add it as an informational sheet on the final or parcel map. It should only follow suit that it is appropriate on a Record of Survey.


66434.2. (a) On or after January 1, 1987, a city or county may, by
ordinance, require additional information to be filed or recorded
simultaneously with a final or parcel map. The additional information
shall be in the form of a separate document or an additional map
sheet which shall indicate its relationship to the final or parcel
map, and shall contain a statement that the additional information is
for informational purposes, describing conditions as of the date of
filing, and is not intended to affect record title interest. The
document or additional map sheet may also contain a notation that the
additional information is derived from public records or reports,
and does not imply the correctness or sufficiency of those records or
reports by the preparer of the document or additional map sheet.
(b) Additional survey and map information may include, but need
not be limited to: building setback lines, flood hazard zones,
seismic lines and setbacks, geologic mapping, and archaeological
sites.

[MFORD]

I and three of my colleagues originated the “unrecorded maps” proposed legislation and have been working with the CLSA Leg Committee to wordsmith the final version for approval by the entire Board. There have been some minor changes in the wording since the first review by the committee and the entire Board, which PLS7809 list in his post . The final wording is still in progress.

The purpose of amending 8764 is to standardize across the state how these unrecorded maps are entered into the public record and how they would be made available to the public for inspection. The premise being if the map was important enough to be relied upon to locate a boundary/property line and noted on a ROS/PM/FM then it should be available for inspection by the public at large. Currently every County Surveyor’s office does it differently or not at all. In some Counties the records are not available without contacting the surveyor who prepared the ROS/PM/FM map and showed a reference to the unrecorded map. Sometimes it’s a crap shot to be able to track the surveyor down to get a copy of the unrecorded map(s). Some surveyors in my area will reference multiple unrecorded maps as a basis for their conclusions. It can be difficult if not impossible to coordinate getting copies of those maps in a timely manner, not to mention the expense.

Some Counties are in favor of the proposed legislation and some aren’t. Those that aren’t generally have a system in place to keep copies and make them available to the public upon request. The opposition comes from the idea the legislation will “mandate” how the unrecorded maps will be handled in every county. If these maps had been recorded, as they should have been, when they were created there would be no need to amend the PLS ACT. Unfortunately there have been surveyor’s in the past that intentionally or unintentionally chose to ignore the PLS ACT. For the record the (mandate) requirement to file a record of our work was a part of the PLS ACT in 1890. There are very few of these unrecorded maps were produced before the requirement was put into place.

The SMA 66432.4 would seem to cover the circumstance of adding additional pages to a PM/FM map similar to the “Supplemental Map Sheet”. The difference is the “Supplemental Sheet” is for items that do not affect record title interest. In the case of unrecorded maps, by their nature, they do affect the location of the boundary which does affect record title interest. There is not currently any efforts being put towards amending the SMA to include “unrecorded maps” similar to the PLS ACT.

[Lee Hixson]

I applaud everyone's efforts in this regard. Keep up the good work and I will do what I can to work with County Surveyors in my area to get them on board.

Got a question. If this passes and the expected change is implemented, I would hope that it would encourage firms with unrecorded maps in their closets to make them more readily available. Over time, basically it would make it easier for them to get those old maps into the record. The only leg work on their part would be to let Surveyor A have a copy; he/she would then comply with the new law, jump through the hoops and get it filed as part of their current project.

So the first incentive is that it would require little effort on the firm's part. But are there any other incentives? For example, the cleaner their closet becomes, does that relieve them of any liability? Now that those maps are in the CS's office, can they sleep better knowing that finally those maps are available to the public?

(Just wondering, is all. Hoping those firms will look on the positive side and get on board.)

[Anthony Maffia]

I want to be able to attach a copy of an unrecorded survey to a ROS being prepared, and hope that the county will allow it. I know it has been done.

That said, unfiled surveys would be made more available by scanning and them and posting on the county surveyor's web site. The existing index can be automated, or a simple one created by listing the street names. The county wouldn't have to type in the metadata, it can be crowd-sourced by letting users / students enter the meta-data and improve it over time.

Scanning is less expensive than going through the recorder's, would be quicker and make everything available immediately.

[MFORD]

Anthony
I recently submitted a ROS with 4 unrecorded maps on two “reference” pages. When I get back to the office on Monday I’ll post a copy of the 3 pages. Also, feel free to call my office (707)542-8513 or email me at mford@michaelfordinc.com if you want to discuss.

The proposed legislation gives the CS control over how the unrecorded maps are filed and indexed or attached to the ROS as a reference page. Making them available on line is one way. There is opposition to the idea because it takes manpower, which translates into $$ in budgets. Most counties are short on budget and manpower. Adding the reference pages to the ROS accomplishes the task of making them available to the public without adding to the manpower/budgets of the CS office. Although, there will be cases where the maps aren’t suitable for converting to a format that meets the recording requirements. In those cases paper copies of the maps would be kept in the CS office.

Keep in mind, in most counties we aren’t talking about huge volumes of unrecorded maps. The cost to store and index these maps will vary depending on the volume. The decision is left to the CS how their county will make the maps available.

[Lee Hixson]

MFORD......can you give us an update on the law change?

Also, I'd like to see that RofS you referred to.

[MFORD]

Lee,
The legislation is moving forward. I believe the revised language will be on the BOD agenda at the Nov. meeting for consideration. The language has been tweaked to address concerns of the CS's and give them more control over how the un-filed maps are collected/filed in the individual counties. The spirit of the language remains the same, which is to get un-filed maps into the public record.

I will endeavor to post the ROS if I can figure out how to include it into a post.

[MFORD]

Lee,
This is the ROS being filed in Marin County in the next week or so. It has been reviewed and apparoved for filing by hte CS pending return from vacation of the person in their ofice that handles the maps.

The Surveyor's Note and the County Surveyor note is an important part of the "Reference Map". Both explain the circumstances for including the maps for "reference only" and how the reference maps can be used in the future by others. Note the CS note says the reference maps can't be used as a basis for filing a corner record.

[billok]

Surveyors advocating attaching unrecorded maps to a new Record of Survey are either ignorant of or disregard one important fact - the OWNER of the survey is the client who ordered and paid for it. The Surveyor who did the job and prepared the map is the Custodian of the survey. Early in our career we did a survey for an Attorney.His neighbor asked if we would send him a copy as it affected his property also - which we did. The survey disclosed some features that it turned out were detrimental to our clients proposed project. When he found out that we had given a copy of the survey to his neighbor he was furious. He said that if his neighbor held up his project as a result of us giving him a copy of the survey he would sue us. Fortunately nothing happened, but we learned our lesson. Nobody got a map of the survey without the approval of the owner! We always shared our records with members of our CLSA Chapter and other ethical surveyors. The main point of this long winded article is that you cannot attach a copy of an unrecorded survey without the OWNERS approval. The surveyor does NOT own the survey
the client does.
In the 50's, 60's & 70's when we did the bulk of our work most surveys were not recorded. The survey stands on it's own merits whether it is recorded or not. The only time we recorded a survey was when we discovered a "Material Discrepancy".Recording a normal survey does not benefit a client and adds
an unnecessary expense to the job. Our primary concern always was the client.

[bruce hall]

'The surveyor does NOT own the survey
the client does.'

Well if the client owns this thing, why do I have to keep all this stuff in my files?

I should just send all my clients this stuff and make more room in the shed. If not maybe I should sign my name Bruce Hall LS, COS (Custodian Of Surveys).


'Recording a normal survey does not benefit a client and adds
an unnecessary expense to the job. Our primary concern always was the client.'

A normal survey? MMMMMM. Wonder what that is? All the pipes are found per the records and all the distances and bearings are the same as the record. That has got to be the definition of a normal survey, but probably not.

Primary concern? Putting the line where it was originally placed sounds like a primary concern to me, the client comes in second place in a tie with the public at large, which includes the adjoiners.

[DWoolley]

Mr. Billok:

Did it ever occur to you the reason you didn’t get sued for giving the neighbor the survey was there were no grounds/basis to sue you? Talk is cheap. The greater concern should have been being charged with constructive fraud and/or collusion and host of other serious offences in connection with the actions you have described. How about the future damages based upon the reasonable reliance on an unfiled survey which is later lost to antiquity. The not filing of a survey is hardly saving a client or the public from harm. Failure to file is the opposite of the concern for a client.

Interestingly, the law requiring the public filing of a survey was in place in the 50’s, 60’s and 70’s. Maybe it was the lawless practice of the 50’s, 60’s and 70’s which have resulted in the problems we are facing today? For reference, I have attached the 1939 and 1941 Land Surveyor’s Act which was in place until the 1985 which we use today. Section 8762 then is 8762 today.

How many current and potentially great surveyors were set back, by way of mentorship, by such practices?

I am hoping for further insights on the practices described.

Best,
DWoolley

[Ian Wilson]

Thanks, Dave. You beat me to it.

BTW News Flash. Surveyors DO own the data they collect during the course of a survey.

[Lee Hixson]

billok...

All I can say is, Wow!

[E_Page]

I'll add my thanks to Ian's.

Billok's post just hit my email a few minutes ago, and in the time it took me to think about a reply, it's done.

[Stephen Johnson]

Gentlemen,

Thanks for verifying my own beliefs on who owns the survey. And I am muchly pleased that I was not in the middle of this discussion.

And keep working on clarifying the situation with previously unrecorded maps/plats/surveys used as a reference for a current ROS.

THANKS

[MFORD]

Billok is correct to a degree about who owns the survey or copyrights to the survey, which is what he is actually referring to? The answer to that question lies in how the contract was written when the work was performed. For a surveyor to retain ownership (copyrights) of the work product, the agreement between the client and surveyor would have to specifically state the surveyor retains the ownership(copyrights.) Otherwise the client is assumed to have control of the work product.

I recently discovered this bit of information while researching copyright protection pertaining to “survey maps.” Under the 1976 Copyright Act, which is the last revision of that law, under the “work for hire, independent contractor” portion, the client is presumed to own copyrights to a work product unless there is a written agreement that specifies the independent contractor (surveyor) retains the copyright (ownership).

In the case of surveyors it makes sense that IF(?) our survey maps are copyrightable, which is another question altogether, we would want to retain those copyrights. If the client retains those rights he/she/they are free distribute or even sell our work product as they see fit without our permission.

As Ian stated “surveyors own the survey data” collected , but the ownership of copyright to the work product controls the distribution.

As far as including unrecorded maps from the 50’s thru the 70’s into the public record with a current ROS filing, the copyright question is mute. The copyrights to those survey maps have expired, no matter who has possession of them. There are specific time periods for copyright protection starting with the date the maps were created. The time period for maps created in the early to mid 20th century has expired and the maps no longer enjoy copyright protection under the standard definition. No permission is required to reproduce those maps, save a license agreement between the current owner of the maps and the person who wants to reproduce the map. That’s a discussion topic all its own.

If no other argument can be made for continuing education, Billok is the perfect example with his post. How many other surveyors in 50’s, 60’s and 70’s era have the same misinterpretation about when and when not to file. I know of two I’ve had the opportunity to interview recently.

Also Billok, if your CA PLS license is still active you may want to review your records. If you have unrecorded surveys that fall under Section 8762 of the PLSA and they are discovered you may be asked (required) to file the appropriate document with the County you worked in.

[kwilson]

I was excited to see that the law regarding filing an RS has basically been in place since 1939 as Dave Woolley provided copies of those statutes.

At the same time I am amazed to see how that law has been widely ignored or swept under the rug by a host of surveyors over the years.

Mr. Billok's statements provide a little insight as to the thinking back then. It seems to me that what constitutes a material discrepancy has been inversely proportional to the ability to measure accurately. In other words, as the tools and methods used by surveyors provided better ability to measure with more precision, the smaller the tolerance for error became.

I see on many of the recorded maps in the area I currently work in, surveyors trying to force record bearings and distances to control boundaries and as a result reject monuments of record that do not fit the record exactly.

I have seen surveys where two centerline monuments from a recorded tract map are accepted and almost all of the others are rejected and shown as being off by minute amounts (many less than 0.10"). I agree with Mr. Woolley in that this trend continues because it has been passed along to subordinates who imitate their superiors.

This often results in the so-called "pincushion" effect where because one surveyor might hold two monuments from one location where another might hold two from another location. They just cannot fathom that the record distances just might not actually be the actual distance and that monuments usually control over distance and bearing.

Filing a map for other surveyors to see gives them an opportunity to agree with you. Not filing a map gives a much greater opportunity not to agree. What if they do not find the same monuments you used to control your survey? Likely, their final result will be different. However, it appears that some are hesitant to file their survey because they are not sure of themselves.