Angle Points: The Unwinding of the Cadastral Fabric

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The single most important edifice to land surveying and property ownership, the foundation for the American way of life and the entire economy, is the monument; all things begin and end with a monument.

It is interesting to see how various municipalities deal with the preservation and destruction of survey monuments. Some go to great extent to protect survey monuments while others, do nothing. After all, there are little photo opportunities for politicians standing next to a shiny new monument; sports stadiums and new roadways are far more attractive. Fortunately, in places like Rochester, New York, Section 104-22 of the Municipal Code contains some substantive regulations. Captioned "Interference with Survey Monuments," the code declares:

"No person shall interfere with, disturb or move any survey monument without having obtained a permit in writing from the City Engineer. Interference for the purpose of this section shall be defined as any excavation work within three (3) feet of a survey monument or any extensive excavation work further than three (3) feet from a survey monument that may affect the accuracy of the monument." A survey monument is considered destroyed if it has been broken or moved more than 0.02 of a foot in any direction without the written authorization of the Maps and Surveys Office.

In 1971, nearby Monroe County adopted similar regulations: "Wherever it appears … that geodetic survey monuments installed or employed by the County of Monroe are in danger of being damaged, destroyed or removed by a developer, the Director may require a performance bond in the amount of $1,000 per monument to be posted with and approved by the Director, said bond to be subject to forfeiture if, in the opinion of the Director, there is adequate proof that the provisions of this chapter have been violated. The Director may issue notices and stop-work orders with respect to acts of violation during the progress of any project. No plat shall be filed in the office of the Monroe County Clerk unless the provisions of this law have been complied with and such compliance is noted, in writing, by the Director." (§ 255-7)

"Any violation of or nonconformance with the county’s provisions constitute an offense punishable for each offense by a fine not exceeding $150 or by imprisonment for each offense not exceeding 150 days, or by both such fine and imprisonment. Moreover any developer violating or failing to comply with any provision of this chapter are held responsible for any damages to any geodetic survey monuments installed or employed by the County of Monroe. Every day of such violation or failure may be held to constitute a separate offense." (§ 255-8)

In 1969, the state of Washington, under section 58.24.040(8) of the Revised Code of Regulations adopted regulations to protect survey monuments. The State Board of Registration for Professional Engineers and Land Surveyors declared that non-compliance with these regulations as a violation of law. Anyone performing construction, maintenance, or other work is responsible for protecting all survey monuments within the area of work. In those instances where it is necessary to disturb a survey monument, a permit must be requested in advance from the Department of Natural Resources and the developer or builder must pay the cost of repairing or replacing the survey monument. Failure to comply with the requirements regarding monument removal or destruction is a gross misdemeanor and is punishable by a fine of up to $5,000 and/or imprisonment of up to 1 year; and liability for the cost of reestablishment.

In sunny Arizona, any person who knowingly or by gross negligence destroys, disfigures, removes or disturbs land survey monuments or other permanent monuments set by a land surveyor which have the land surveyor’s or a public agency’s cap or tag affixed to the monument is guilty of a Class 2 misdemeanor.

In the great state of Pennsylvania, a person commits a "summary offense" if he/she intentionally cuts, injures, damages, destroys, defaces or removes any survey monument or marker, other than a natural object such as a tree or stream. A person commits a misdemeanor of the second degree if he/she willfully or maliciously cuts, injures, damages, destroys, defaces or removes any survey monument or marker in order to call into question a boundary line.

In Hawaii, it is unlawful, "without the written consent of the state comptroller, for any person to destroy, deface, change, or remove to another place, any trigonometrical survey station, boundary line mark or monument, corner post, or any other government line of survey, or to cut down any witness tree or any tree blazed to mark the line of a government survey, or any bench mark in any government survey. A violation is punishable by a fine not to exceed $500, or imprisoned not more than four months, or both."

Abraham Lincoln’s state of Illinois adopted some progressive legislation, known as "The Land Survey Monuments Act" (765 ILCS 220/), to protect its cadastral network. In making the related findings, the state determined that "there exists a substantial problem of loss and deterioration of land survey monuments with the attendant uncertainty created in titles and transactions of real property in the State of Illinois." The purpose of the Act was to "establish a program of monumentation and preservation and restoration of existing monuments in order to protect and preserve these important land survey monuments. Under the law, "It shall be the duty of any land surveyor who conducts a survey which uses as a control corner any public land survey monument, to record with the recorder or Registrar of Titles in the county in which the survey was conducted, a written monument record describing such monument, or position thereof, and its accessories. Such a surveyor shall also record a monument record whenever he establishes, re-establishes, restores or rehabilitates any public land survey monument. Each monument record shall describe at least three accessories or reference points. . . Any land surveyor, or any person, including the responsible official of any agency of state, county, or local government who shall willfully and knowingly violate any of the provisions of this Article shall be guilty of a Class "A" misdemeanor. It shall be the responsibility of all State’s Attorneys of this State in all cases of suspected willful and knowing violation of any of the provisions of this Act to prosecute the person or persons committing such violation." (765 ILCS 220/11).

Across the country, similar regulations exist but they are only as effective as those sworn to enforce them. In California, viewed by many as a tarnished state, as opposed to the "Golden State," land values are overall the highest in the country; little has been done to stop the wholesale epidemic-like eradication of survey monuments. Most control monuments, horizontal and vertical, have been methodically destroyed by municipalities and not private citizens, usually in connection with the installation of pedestrian ramps and the filling of potholes, a politically attractive action. Under Section 605 of the state’s Penal Code, it is a misdemeanor to intentionally remove or destroy a permanent survey marker. In an anomalous situation, under the state’s misdemeanor prosecution procedures, county and city attorneys are required to enforce misdemeanors within their jurisdiction. Unfortunately, most, if not all municipal attorneys refuse to prosecute misdemeanors as these laws are regularly being broken by their
co-workers, creating an obvious conflict of interest. As one wag stated on the state’s surveying association’s web-forum, "Never seen it prosecuted. Sheriffs and other law and code agencies view this LAW as a joke!" And another added, "Never heard of a prosecution! Have seen many of them plowed over by Contractors, but they were not malicious so it’s ok, I guess."

A recent Bloomberg news article notes that the median sales price for residential homes across the country rose from a year earlier in 133 of 152 metropolitan areas measured; prices climbed 26 percent in Cape Coral, Florida; 22 percent in California’s Riverside and San Bernardino counties; and 20 percent in Las Vegas. Overall, prices in western states climbed 20 percent to a median $245,200, the biggest gain of any area. The economy is picking up steam, not only in California, but elsewhere. This is going to do two things: first, reinvestment will occur and many homes will be bought and sold and these homes will be remodeled and boundary lines will be surveyed. Second, with the increase in real estate investment, tax revenues will rise and these monies will be invested in fixing potholes, rebuilding streets and paving neglected roads.

A perfect storm is forming; the cadastral network here and elsewhere are in harm’s way and there is no evidence anything will be done to protect any of these monuments. After all, bridges and buildings make for better photo opportunities than plugs and pipes.

Michael Pallamary, PS, is the author of several books and numerous articles. He is a frequent lecturer at conferences and seminars and he teaches real property to attorneys and other members of the legal profession. He has been in the surveying profession since 1971.

A 172Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE