As has been the case many times in the past, I started out researching one subject for an article and ended up in a completely different direction. I wanted to continue with our discussion on contracts but our case-in-chief, Knerr v. Mauldin,1 jumped out of the computer and thrust itself on me. I was powerless to resist. We’ll pick up on contracts later.

Just as Don Quixote, knight errant, rode the Spanish countryside with his sidekick Sancho Panza, seeking chivalrous adventure and illusory enemies to be defeated, so too our surveyor errant, who is the central figure in our case-in-chief, attempts to right wrongs that don’t exist and otherwise joust at windmills. Our misguided surveyor attempts to supplant legal doctrines with notions of correct surveying methodology. As the man from la Mancha found out for himself, these jousts usually result in broken lances, rude dismounts and bruised egos; but very few lessons learned. Fortunately for the rest of us, we can learn the lessons without the accompanying pain by studying the case.



The Basic Facts

This is a boundary dispute case between Knerr and Mauldin over the location of their common boundary in a subdivision know as Chatsworth Lakeview Annex, located on the Los Angeles and Ventura County line in California. The subdivision was recorded in 1926. From the court opinion (such opinions often lack in detail leaving much to our imagination), it appears that the exterior boundary of the subdivision was actually surveyed in the 1920s but the interior lots were not, leaving them protracted on the subdivision plat in paper form only. Over the years surveys were performed on these interior lots by various and sundry surveyors. Mentioned in the court opinion are early surveys in the subdivision performed by Charles Eades and Louis Zehfuss, neither of which happens to be the surveyor of record on the subdivision plat. The defendant, Mauldin, had her property surveyed in 1989 by South Bay Engineering Company (South Bay) and went into possession and built fences based on South Bay’s survey. Knerr purchased the lot next door, west of Mauldin in 2001. Accepting Mauldin’s fence as the boundary, Knerr had her own fence built in conformance with her property dimensions and Mauldin’s fence location.

Shortly after she began construction of her fence, Knerr’s neighbor on her west side (opposite side from Mauldin), complained that Knerr was 20 to 30 feet over his property line based on his own survey. Knerr then hired Stephen Hughey to survey her property. This is where our story truly begins.

As with the story of Don Quixote, it’s been told many times over.2 The only thing missing is the Broadway play and the blockbuster movie. Hughey searched for “original” monuments in the subdivisions, after finding none set by the original surveyor (by Hughey’s definition, the original surveyor being the surveyor who prepared and recorded the plat in 1926), Hughey left the subdivision and found an original monument “S-10” (apparently a quarter section or section corner) that was reflected on the 1926 plat. “That monument was to the east and outside the subdivision, but Hughey used it as a starting point ‘because it’s the only monument that can be shown without a doubt to have been perpetuated by records from various public agencies.’”3 Then Hughey “after searching for the original stakes and finding none … proceeded to take measurements according to the original plat and to drive stakes of his own.”4 If we do not know history, we are bound to repeat it.

Hughey testified he “followed the footsteps of the original surveyor” by following the courses and bearings on the 1926 map. He started with S-10, proceeded west to the southeast corner of the subdivision as shown on the 1926 map, and then continued west to the southwest corner of the subdivision. He stated the distances shown on the 1926 map for the southern boundary of the subdivision were correct. He used the proration method to determine the boundary between the Knerr and Maudlin lots.5

Although title attorneys and others who regularly work with them develop expertise as to land descriptions, the only professional authorized to locate land lines on the ground is a registered land surveyor. In fact, the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor.... In working for a client, a surveyor basically performs two distinctly different roles or functions: First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the “original surveyor” and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line…. Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he “traces the footsteps” of the “original surveyor” in locating existing boundaries. Correctly stated, this is a “retracement” survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a “following” or “tracing” surveyor and his sole duty, function and power is to locate on the ground the boundaries [sic] corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it.8



Hughey’s final fatal flaw is that he doesn’t know the law in the state of California. He replaced notions of proper survey methodology for the law and equity as it has been set down by the courts in California. “Where, as here, there is an established interior monument near the lots being surveyed, it is that monument that should be used.”9 Quoting State of California v. Thompson,10 the court went on: “Although respondent contends that appellant’s surveyor ought to have commenced his survey from the east in order to literally ‘follow in the footsteps’ of the original surveyor, this argument is without merit. A survey from the nearest established corner is least liable to error.”11

This Thompson case is an interesting case in and of itself, and may be a discussion for another day, but the point here is undeniable: The surveyor must know the law and equity of the state, and how it will be applied in everyday practice, and have a concern for and understanding of private property rights.

If you do not think these issues are your concern, then you need to hand in your license because you have just violated the very first survey commandment and the only reason you have a survey license to begin with: “Protection of the public shall be the highest priority of the Board for Professional Engineers and Land Surveyors in exercising its licensing, regulatory, and disciplinary functions. Whenever protection of the public is inconsistent with other interest sought to be promoted, the protection of the public shall be paramount.”12 Without launching into an expanded discussion on what “protection of the public” means, it’s safe to say it would include protection of private property rights as opposed to trampling upon them.



Illustration by Pablo Picasso

Missing the Forest for the Trees

There are several glaring problems with Hughey’s reasoning and methodology. The first problem is that if the original surveyor (by Hughey’s definition being the surveyor who prepared the plat) never set the interior lot corners in the subdivision, then there are no footsteps to follow because none were left.

The other glaring problem is Hughey’s definition of “original surveyor.” The “original surveyor” is the surveyor who is the first to set the property corners, not the one who draws the map. This is true whether we are discussing the subdivision of the public domain or the subdivision of “Fred’s Green Acres.”

Rather, we conclude that, because Derrick was the first official to survey the interior of section 12 and to establish the center of the section, his survey should be regarded as an original survey that is controlling despite any errors in it, just as Mercer’s survey is. That conclusion should follow at least in circumstances like these, where Derrick’s was the only recorded survey to monument the center of section 12 during nearly a 100-year period, and the center as he located it has been relied on and has determined the lines of occupation over that time.6

In surveying a tract of land according to a former plat or survey, the surveyor’s only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, he has the right to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it.7

Although title attorneys and others who regularly work with them develop expertise as to land descriptions, the only professional authorized to locate land lines on the ground is a registered land surveyor. In fact, the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor.... In working for a client, a surveyor basically performs two distinctly different roles or functions: First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the “original surveyor” and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line…. Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he “traces the footsteps” of the “original surveyor” in locating existing boundaries. Correctly stated, this is a “retracement” survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a “following” or “tracing” surveyor and his sole duty, function and power is to locate on the ground the boundaries [sic] corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it.8

Hughey’s final fatal flaw is that he doesn’t know the law in the state of California. He replaced notions of proper survey methodology for the law and equity as it has been set down by the courts in California. “Where, as here, there is an established interior monument near the lots being surveyed, it is that monument that should be used.”9 Quoting State of California v. Thompson,10 the court went on: “Although respondent contends that appellant’s surveyor ought to have commenced his survey from the east in order to literally ‘follow in the footsteps’ of the original surveyor, this argument is without merit. A survey from the nearest established corner is least liable to error.”11

This Thompson case is an interesting case in and of itself, and may be a discussion for another day, but the point here is undeniable: The surveyor must know the law and equity of the state, and how it will be applied in everyday practice, and have a concern for and understanding of private property rights.

If you do not think these issues are your concern, then you need to hand in your license because you have just violated the very first survey commandment and the only reason you have a survey license to begin with: “Protection of the public shall be the highest priority of the Board for Professional Engineers and Land Surveyors in exercising its licensing, regulatory, and disciplinary functions. Whenever protection of the public is inconsistent with other interest sought to be promoted, the protection of the public shall be paramount.”12 Without launching into an expanded discussion on what “protection of the public” means, it’s safe to say it would include protection of private property rights as opposed to trampling upon them.


CLSA's Amicus Brief

Incredibly, the California Land Surveyors Association (CLSA) jumped into the fray in support of Knerr and Hughey. The CLSA filed an amicus curiae (friend of the court) brief in support of the appellant, Knerr, essentially supporting and approving of the survey methodology employed by Knerr’s surveyor, Stephen Hughey. And so, CLSA too misses the forest for the trees. They cite the right cases13 and even quote Cooley vis-à-vis Diehl: “The question is not how an entirely accurate survey would locate these lots, but how the original surveyor would locate them.”14

Is it possible they never read this case? Is it possible that they just left it up to their attorneys to make their arguments, throw out some terms like “original surveyor” and “following in the footsteps,” without an understanding as to what these terms mean? “Although it [the court] paid lip service to the concept of ‘following in the footsteps’ of the original surveyor--being one Mr. Davy who, in 1926, surveyed the boundary of Chatsworth Lakeview Annex and created the protracted lots within--it [the court] does not appear to have understood how that is done.”15 Indeed, it would appear that the CLSA, along with Mr. Hughey, lack the understanding.

No matter how hard we try to make the world conform to our calculated representations, our “rules of surveying” and our own notions of the way things ought to be, there is one tiny little problem: if those calculations, rules and notions don’t conform with the law and equity, they are simply wrong.

Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity [emphasis added]. 16

It’s little wonder so many landowners cringe when they see the surveyor coming.


Letter to the Editor

I’m writing this letter to the readers, as well as the Editors, of POB. In my August column I wrote an article about a California appellate court case, Knerr v. Mauldin. The column has received considerable attention and I need to correct at least one omission on my part. The case is an unpublished California Appellate Court decision. At the very least I should have included this fact in footnotes. I have to admit at the time I wrote the article and submitted to POB for publication I did not have a full understanding of the significance or insignificance of the status of “unpublished.” My thought was that I had found advance sheets of the case that would be “certified” and “published” once final editing had been accomplished. This does not appear to be the case.

From my subsequent research into the issue of “unpublished” cases, this appears to be a situation unique to California, a few other states, and certain Federal jurisdictions. It’s a practice that has drawn considerable criticism in the legal community, and in at least one Federal case, has been struck down as unconstitutional. Nevertheless, in California, all Supreme Court cases are “published” but only certain appellate court cases are “certified” by the Supreme Court and later “published.”

Quoting from pertinent California law, Rule 976 of the Court Rules, “No opinion of a Court of Appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion: (1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; (2) resolves or creates an apparent conflict in the law; (3) involves a legal issue of continuing public interest; or (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.” Apparently, the California Supreme Court does not believe the case accomplishes any of the above. This doesn’t mean that the case will not be certified at some later date and published, which is what I originally thought was the situation, but that now seems unlikely. So what does this mean? Not much really. It doesn’t change the facts or the outcome of the case. It was appealed from the Appellate to the Supreme Court, which refused to review the case, meaning the Supreme Court, if not satisfied, saw nothing that deserved its attention. It means that no “new rule or law” has been established in the case. The rule of law already established in the previous California case, cited in both the opinion and my article, State of California v. Thompson, is still the law of the land, as least as far as California is concerned. It does mean that the case cannot be cited as legal authority in a court proceeding in California, because it establishes no new law.

The remainder of the cases cited in the article are all established law within their jurisdictional boundaries and as they can be applied generally. I apologize to the readership and to the Editors of
POB for any misconception this may have caused. In any event, I stand behind the article and the principles articulated by the court in the case.

Jeff Lucas