Web Exclusive: Slip Sliding Away
November 1, 2008
Remember villain Lex Luthor in “Superman” smugly announcing that his now worthless land in Nevada would soon be valuable beachfront property when California slipped into the Pacific Ocean after “the big one”? Well, a seldom talked about challenge among land surveyors worldwide is the issue of boundary changes in the aftermath of natural disasters and how these issues might be solved.
The Hayward Fault splits into three segments as it runs through Kensington, Calif. This slip-type fault is a lesser-known relative of the sudden-lurch-type San Andreas Fault. A few years back, a 4.0 quake-not large by most standards-struck almost under our house at some depth. Nothing broke; nothing fell off the shelves; but it woke us from a sound sleep at 4:00 a.m. and felt like a semi slamming into the side of our house.
Our particular area has a lot of bedrock, some of it above ground, which is one reason why neither this quake nor a previous one in 1989 caused much damage. Since we’re two miles from the San Francisco Bay and 650 feet above sea level in the Berkeley Hills, there’s probably not much chance of our becoming prime beachfront property or being hit by a tsunami. However, far more people live along the Hayward Fault than the San Andreas Fault, and a serious quake could cause a huge loss of life and property. But it’s not just sudden earthquakes that can cause trouble. Slow and incremental land movement can create boundary/ownership problems, especially in landslide hazard areas less than a mile away from us.
A Moving Experience
Geotechnical engineers have identified three main slide areas around the Hayward Fault that impact several hundred homes, wreck foundations, crack walls and sidewalks, buckle streets and fences and rupture water lines. University of California-Berkeley scientists who monitor large tracts report typical land movements in these areas of 5 mm to 38 mm per year.
Many of these slide areas are in subdivisions built in the 1950s and ’60s, and several homeowners report changed lot boundaries. Some have spent vast sums on attorneys’ fees seeking a resolution-to little effect-and public officials have been reluctant to get involved. Police have even been called in occasionally to cool a few tempers.
The land under one property owner’s house has slid almost 20 feet since it was built in 1916. As property lines don’t move (see exceptions below), part of the house now appears to be on his neighbor’s land. So, the question becomes: When a home, or driveway or deck slips onto a neighbor’s land, does it become the neighbor’s property?
The problem of who owns what and where in such cases hasn’t even been addressed by the state board that oversees land surveying. The Cullen Earthquake Act, a California law enacted in 1972 after the San Fernando Valley earthquake, allows the redrawing of property lines after landslides but only covers large, sudden disasters, not continuous and slow-moving land slippage. The act is nearly identical to original Alaska legislation and permits the resurvey and replatting of an affected area. Part of the California Code of Civil procedure 751.50-751.65, the act basically says you can file in court, get all interested parties together, and the judge will "equitably decide." A new plat will then be generated. Some consider landslides to be just another type of dependent resurvey problem created by a specific act of nature. Perhaps, interestingly, the American Land Title Association (ALTA) is not concerned since they only insure title, not location on the ground.
A Flood of Boundary Issues
If you happen to homestead, say, on the banks of the Mississippi or Missouri rivers, a flood is a natural occurrence that may not only destroy dwellings but also evidence of property ownership. Remember that cadastral surveying began in Egypt after perennial flooding of the Nile River kept wiping out the locals’ property or, at least, evidence of where it was. According to Black’s Law Dictionary, the surveyor’s bible of legal definitions, boundary changes caused by water occur through four primary means:
- Accretion-the gradual and imperceptible accumulation of land by natural causes, as out of the sea or a river. It happens through two methods: by alluvion, or the washing up of sand or soil, forming firm ground; or by dereliction, as when the sea shrinks below the usual watermark.
- Avulsion-the sudden and perceptible loss of or addition to land by the action of water, or a sudden change in the bed or course of a stream.
- Erosion-the gradual eating away of the soil by the operation of currents or tides. As against submergence, which is the disappearance of soil under the water and the formation of a navigable body over it.
- Reliction-a gradual increase of the land by the permanent withdrawal or retrocession of the sea or a river.
In his update of “Clark on Surveying and Boundaries,” Walter Robillard relates how boundary problems might be resolved through the four actions above. In short, where the boundary of a navigable stream is the center or “thread” of the main current, the boundary shifts as the current shifts, unless there has been avulsion. Title changes can occur by accretion and erosion, but not by avulsion. Changes due to reliction depend on who owns the underlying bed.
The Measure of Law
Of course, rules in the United States differ from state to state. U.S. surveys also present a few other peculiarities. For example, the Bureau of Land Management (BLM) has complete jurisdiction over the system of rectangular surveys prevalent in most of the U.S., except the Eastern states and Texas. The BLM’s remit includes restoring lost or obliterated corners. Once boundaries of the public lands are approved and accepted, they become unchangeable. Even if the original surveyor laid out a section incorrectly, say 5,000 feet instead of 5,280 feet, either through an honest error or fraudulently, the corners stand. Not so with private lands subdivided within sections, where incorrectly set corners can be changed.
Nearly all boundary surveying treatises and licensed surveyors subscribe to the tenet that where boundaries are concerned, monuments have control over anything else-with natural monuments (e.g., trees, rocks, streams) taking precedence over artificial ones (e.g., concrete blocks, iron pipes, wooden stakes). Bearings and distances follow, then coordinates, and finally area (e.g., north 5 acres of lot 6). Incidentally, if a title document states “thence N.10° 30’E., 210 feet to the Pacific Ocean” and it turns out that the Pacific Ocean (taken as being the mean high water mark) is actually 400 feet away, then the 210 feet is ignored. The idea behind coordinates being junior to bearings and distances is that these, together with angles, are used to create coordinates.
This boundary rule changes when dealing with GPS and satellite-derived coordinates. And there’s the rub! Faced with solving tricky boundary situations, such as land movement due to slow slides or flooding, my contrarian nature is guided by three quotes:
- “When everyone thinks the same thing, no one is thinking.” (anon)
- “Problems can’t be solved with the same thinking that created them.” (Albert Einstein)
- “The fact that an opinion has been widely held is no evidence whatever that it is not utterly absurd.” (Bertrand Russell)
Now, this isn’t to refute the learned treatises on boundaries-most of which were written long before GPS had ever been heard of-but more to challenge those who see boundary issues as either black or white. It’s as ludicrous for boundary surveyors to maintain blindly that monuments always control and coordinates are irrelevant as it is for GPS surveyors to locate a monument using coordinates, find that its position disagrees by 1 foot, and then promptly move it or set a new one.
In the ideal system, once section or property corners are established or found and then accepted as correct, GPS-derived coordinates would be placed on them. This method might then render obsolete the time-consuming re-establishment through single- or double-proportion methods or the use of witness marks, bearing trees and parole evidence.
Many in the land surveying community and the courts will consider this pure heresy! But in our quake- and slide-prone environment, original property monuments could have moved 20 feet, along with all the witness marks and bearing trees, and you’d never know. Several properties on either side of a homeowner’s lot may have moved, either together or at different rates. However, at some point outside the fault-line’s zone of influence, stability finally reigns. Once surveyors can assure they have found at least two, and preferably three, control points that have not moved, they can use whatever survey system is at their disposal-total station, laser scan, theodolite plus EDM, etc.-and coordinates and other evidence derived pre-earthquake, to reset boundary corners.
Unlike countries where property corners are tied to a well-established coordinate grid system and surveyors work from the whole to the part, our system is often more one of working from the part to the whole; the odd hiatus is not uncommon. Of course, inaccuracies in old triangulation schemes exist, often through scale error. But in slide or quake areas, I’ll take GPS coordinates on property monuments over reliance on just the physical localized evidence. I want to know how much my property corner, house or fence has moved. However, in the end, where the legal (nonphysical) property line lies, or who owns what improvements, may rest with the courts and their decision for an equitable solution.
A variation of this story first appeared in Geomatics World.
Editor's NoteOn June 30, 2008, AB 2479 was introduced in the California Legislature by Assemblymember Loni Hancock to address boundary issues caused by gradual earth movement. However, the bill was “gutted” on Aug. 22, 2008, and rewritten to address labeling requirements for bottled water. According to Hancock’s Chief of Staff, Hans Hemann, the bill will be reintroduced in early 2009.
If enacted, the bill “would require the California Law Revision Commission (CLRC) to submit a report to the Legislature, on or before March 1, 2009, that generally discusses existing remedies, including under the laws of accretion, for a property owner whose property is affected, adversely or favorably, when the boundaries of land owned by the person has been disturbed by gradual earth movement, as specified. The study would discuss whether an action in rem should be established to enable a property owner to equitably reestablish boundaries and to quiet title to land within the boundaries so reestablished, when the boundaries of land owned by either public or private entities have been disturbed by any gradual earth movement caused either by man or by nature. It would also discuss the possible collateral consequences of enacting remedies to address situations where the land boundaries have been disturbed by gradual earth movement.”
POB will cover the proposed legislation when the new bill is reintroduced in the California Legislature. More information on the original bill is available at www.clrc.ca.gov/pub/2008/MM08-33.pdf.