An Editor!

I am pleased to announce that my blog now has an Editor. Chantel Beasley has been involved in Land Surveying for several years, and is a fellow graduate of Dave Dorsett’s Land Surveying Program at Flathead Valley Community College. She will be helping me catch spelling and grammar errors, ensuring technical correctness, and make sure what I write is readable and understandable. I am honored to have a professional of her character and caliber reviewing my work. I’m sure the content of the blog will be of much higher quality with her review, and I thank her for her hard work.

The Sunburned Surveyor

Disclaimer

Disclaimer

I thought I should give the readers of my blog this disclaimer, or warning. I am not an attorney at law! Nor am I at this point a Licensed Land Surveyor. I provide the material on this blog for informational purposes only. I do not in any way guarantee that content of this blog is accurate or correct. If you have a question regarding a specific boundary resolution problem, consult a Licensed Land Surveyor and Attorney at Law in your area who can answer questions regarding your particular situation.

The Sunburned Surveyor

Understanding...Real Property

Understanding…Real Property

This is the first “Understanding…The Law For Land Surveyors” article. I hope many more like it will follow. These articles will explain legal concepts or topics related to Land Surveying and the determination of real property boundaries. They will be written with the beginner in mind, but experts may find them useful as a reminder or review. They may also introduce topics that would be suitable for further research. They are not summaries or briefs of court cases and legal decisions, although they may cite or reference these.

This particular article will attempt to answer these questions:

What is real property?
How is it different from personal property?
Why is the definition of real property important to Land Surveyors?
Why is the definition of real property important to our society?

* What is real property?

It can be difficult to define real property in an exact sense. In fact, the definition can change depending on the jurisdiction and/or the context in which the term is used. We will present a basic definition in this section.

Before we look at the legal definition of the term “real property”, let’s examine the two words that make up the term, “real” and “property”.

The first term “real” is of Spanish origins, and comes from the Latin word “regalis”, which means “royal”. |R1| (You can see the relationship between the Latin word “regalis” and the English word “regal”, which pertains to royalty.) This makes sense when you consider that under the Feudal system of Medieval Times, the king, or sovereign ruler owned all the land of a nation. (At least, this is how it worked in theory.) In that sense all land was “royal” property. |FN1|

The second term “property” is more common in the English language. The dictionary defines it as “something owned; a possession.” |R2| In this sense, property can be something tangible or intangible that can be owned or controlled by an entity. Property is therefore closely tied to ownership. This makes sense, when you consider that the rules governing ownership of real property have their own name, “property rights”. We will hopefully discuss the ownership of real property in greater detail in a future “Understanding…The Law For Land Surveyors” article.

Now that we have a better understanding of those two terms, let’s consider for a moment the basic legal definition of real property.

Real property: Property that is immovable and permanent. In most cases it is applied to land and all of the things permanently attached to that land. Land is the solid material of the Earth. Real property can also include structures and vegetation, and subterranean features of the land like aquifers and mineral rights. |R3| |R4|

* How is real property different from personal property?

A key part of understanding the definition of real property is to understand how it is different from personal property. There are 5 important distinctions:

[1] Real property is permanent and immovable. Personal property can be consumed, destroyed or moved. (You can technically move a house or other structures attached to land that would be considered real property, but this is not typically done. Soil and other material can also be separated and sold or transferred from a piece of real property. At some point the separated material ceases being a part of the real property and becomes personal property.)

[2] In most cases today, title to real property, or claim of ownership over real property, passes from the owner to his designated heir at the time of the owner’s death. This was not always the case with real property, as it was with personal property. In the Feudal system, ownership of all real property would pass back to the sovereign ruler, not to the heirs of the deceased person in possession of the property. In this way the sovereign owned all of the land in the kingdom, and had the ultimate power to decide who would possess and benefit from that land.

[3] The owner of real property has an estate, or ownership rights over the real property for as long as they are alive. (If a person was given rights to real property for a designated period of time, this would be considered a lease. There are exceptions to this rule, such as the life estate.)

[4] In most cases, title, or the claim to ownership of real property must be transferred by written means, such as in a deed.

[5] In the United States Of America, the laws governing real property are covered in the Statute of Frauds, while the laws governing personal property are covered in the Uniform Commercial Code.

|R5|

* Why is the definition of real property important to Land Surveyors?

Although the definition of real property is important to Land Surveyors, the dimensions, description, or location of real property is even more important. |FN2| Because of its high value, most modern societies have recognized the need for qualified professionals that specialize in the description and physical location of real property. In most cases, these qualified professionals are known as Land Surveyors. |FN3|

It is the Land Surveyors ability as an expert measurer that makes him, or her, an excellent choice in this regard. However, more than precise measurements are needed to locate and describe real property. A love of history, a thorough understanding of the laws pertaining to real property, and a dedication to the greater good are all desirable and required qualities of those given the privilege of locating and describing real property. These functions regarding real property are some of the major responsibilities of Land Surveyors. For this reason, Land Surveyors have an intimate relationship with real property.

In the course of their duties, a Land Surveyor may be required to not only locate or describe real property on a horizontal plane, but also in three dimensions. The Fourth Edition of Brown’s Boundary Control and Legal Principles does an excellent job of summarizing this “three-dimensional” aspect of real property. I will quote the book here:

“In its broadest description, real property is four-dimensional. The average surveyor visualizes real property or land in only two dimensions, length and width. Yet visionary surveyors are able to see that land or real property is also composed of depth (including height) and time. The third element, depth, in addition to surface rights, has been interpreted by courts to include subsurface rights in minerals, waters, and passage, as well as aerial rights and the space above the land itself. English common law and the courts in the United States also recognize a fourth dimension, time. Time can describe or indicate the duration of the legal rights in real property that the vendor has to convey.”

I found 4 California Court Cases that demonstrate this aspect of real property location. I will summarize them briefly, as I believe they will help the reader understand the importance of the “extra” dimensions when thinking about real property. The first two cases have to do with the subterranean or the below ground dimensions of real property. The last two have to do with the air space, or above ground dimensions.

* Melina Mancino v. Santa Clara Flood Control and Water District (272 Cal.App.2d 678): In this case the Santa Clara Flood Control and Water District installed a concrete control box that serviced a 66 inch pipeline on the Mancino property. It was installed in front of the house, but in the right-of-way of Emory Street, between the curb and the sidewalk. All but a small portion of the 35 X 25 X 20 foot structure was installed underground. The court found, that even in a case when fee ownership of a property extends to the centerline of a road, the owner of the property does not need to be compensated for the public taking of property “under” a public right-of-way. In other words, Melina Mancino owned the “property” underneath the surface of Emory Street, but the public right-of-way granted for that street included the right to place utilities below the surface of that right-of-way even though this was not specifically stated in the written terms of the conveyance of the right-of-way. When a right-of-way for a street is granted to a government entity, the right to place underground utilities is implied unless otherwise specifically stated in the document that transfers the right-of-way.

* Niles Sand & Gravel Company Inc., et al, v. Alameda County Water District (37 Cal.App.3d 924): In 1974 Alameda County Water District maintained a program in which it regularly recharged ground water in the Niles Cone Ground Water Basin. Niles Sand & Gravel Inc. mined gravel, sand and other material from a property within the ground water basin by means of deep, open pits. They pumped water from their pits, which were below the natural level of the ground water table, and below the sea level of the adjacent San Francisco Bay. The two entities involved in this case were working at complete cross-purposes. One was forcing water into the ground water table, the other was pumping it out. The underground “dimension” of the real property mined by Niles Sand & Gravel, Inc. became very important in determining if the District had to compensate them for a “public taking” of the rights to mine their property. In other words, the surface rights of the fee owner weren’t in question, the subterranean rights were. For reasons I will not discuss in detail here, the court ruled in favor of the District.

* Zantop Air Transport, Inc. v. County Of San Bernardino (246+ Cal.App.2d 435): This is a very interesting case in which the County of San Bernardino placed a tax on the value of planes used by an air transportation company that was based out-of-state, but maintained an in state repair and maintenance facility. (The tax disputed was not on the facility, but on the aircraft.) The tax assessed was a proportion based on the value of each aircraft and the time it spent in the county. You might be asking yourself what this has to do with real property. A statement in the majority decision highlights this. It found that although the United States and federal statutes regulate air commerce in navigable air space, that sovereignty in air space, which includes the power to tax, remained with the states. It found that “states and local agencies must contend with numerous problems stemming from the use of air space for interstate air commerce, particularly as this affects the use of subjacent lands.” |FN 4| This included dealing “with problems of noise, air crashes, and use regulations of lands under take-off and approach patterns.” The court found that the tax was appropriate considering these facts, among others. This demonstrates that the “air space” of real properties in the County of San Bernardino were important in this case.

* PG&E Company v Petereson (270 Cal.App.2d 434): In this case PG&E acquired an easement over the Peterson property and neighboring lands for the installation and maintenance of Electric Transmission Lines. The Petersons grow rice on their property and use aircraft to seed, fertilize, and spray the crops. They claimed that the erection of the electrical lines over the property and the adjoining properties would interfere with their ability to use their land. They also claimed to have obtained a “ avigation” easement by prescription. |FN5| When this claim was rejected by the court they claimed to have an irrevocable license to fly within the air space that would be blocked by the transmission lines. For reasons not discussed here the court rejected the Peterson’s claims for damages. This case does however demonstrate the value of the air space over the Peterson property, and even over adjoining properties. In this case, the “three dimensional” aspect of real property was very important.

* Why is the definition of real property important to our society?

The answer to this question is simple. It is one of the most valuable types of property that you can own today. In the United States, for instance, the ownership of real property and the rights related to that ownership are a key element of the economy. The definition of real property in different contexts can have significant and serious monetary consequences. I have selected 2 California Court Cases that demonstrate this.

* East Bay Municipal Utility District v Richmond Redevelopment Agency (93 Call.App.3d 346): In this case the Richmond Redevelopment Agency sought to vacate public streets as part of a redevelopment project. The question presented in the case asked if a utility company had to bear the cost of relocating underground facilities when the relocation was made necessary by a redevelopment project. In a New York case a utility company had sought compensation for the relocation of utilities lying within relocated streets on the basis that these were “real property”, and that owners of real property affected by the abandonment of the public streets were entitled to compensation. East Bay Municipal Utility District made the same claim in this case. The definition of real property, and whether or not underground utilities fit within that definition in this context, became a fundamental issue. In summary, the court found that a broad definition of real property that would include the utilities under the streets was not what the legislature intended in writing the laws that gave the redevelopment agency its powers, and that East Bay Municipal Utility District was not entitled to compensation on that basis. This demonstrates to us the financial importance of the definition of real property, and what is included or excluded in that definition.

* Jameson Petroleum Company v State of California (11 Call.App.2d 677): In this case Jameson Petroleum Company sought to recover a portion of the taxes it paid on its assets, including mineral rights and oil leases. In 1931 the State of California used different formulas to calculate the value of personal property owned by a corporation and to calculate the value of real property owned by a corporation. This resulted in a significant difference in the amount of taxes owed to the state depending on how assets of a company were placed in those two categories. In the case of Jameson Petroleum, the State of California asserted that oil leases and mineral rights were not personal property, but real property as defined in the section of law that determined the taxes owed by the company. |FN6| In the courts final decision it held that a leasehold on mineral or oil rights was correctly classified as real property in this context. This case provides another example of how the definition of real property can carry significant financial consequences.

I hope this article has helped my readers a better understanding of the definition of real property. This would include:

* How real property is different from personal property.
* That real property is three-dimensional.
* That the definition of real property can change depending on the legal context.
* That the definition of real property has an important affect, financial and otherwise, on the society that is governed by those definitions.

I hope to explore these topics in more detail in future articles on the Law4LandSurveyors blog.

The Sunburned Surveyor



|R1| This information was taken from the Wikipedia entry on “Real property” as the article was written on January 5, 2006. You can read the entire entry at this URL: http://en.wikipedia.org/wiki/Real_property

|R2| This definition was taken from the Third Edition of the American Heritage College Dictionary, at page 1097, under the term “property”.

|R3| A portion of this definition was taken from the Fourth Edition of Browns Boundary Control And Legal Principles. The information can be found on page 15 under the subheading “Real And Personal Property”, and on page 16, under the subheading “What Constitutes Real Property”. The book has an excellent discussion of real property from the Surveyor’s perspective, and I highly recommend reading it.

|R4| A portion of this definition was taken from The 'Lectric Law Library's Lexicon, under the web page that presents the definition of real property. On January 5, 2006 that information could be found at this URL: http://www.lectlaw.com/def2/q013.htm

|R5| These 5 points were based on information taken from The 'Lectric Law Library's Lexicon, under the web page that presents the definition of real property. On January 5, 2006 that information could be found at this URL: http://www.lectlaw.com/def2/q013.htm

|R6| This quote was taken from the Fourth Edition of Browns Boundary Control And Legal Principles. The information can be found on page 16, under the subheading “What Constitutes Real Property”.


|FN1| I was unable to find a published reference to back up this observation of mine. If you are aware of one, please let me know by dropping an e-mail to law4landsurveyors@gmail.com so I can add the reference to this article. In the meantime, my readers should treat it with a measure of skepticism.

|FN2| In the Third Edition of Browns Boundary Control and Legal Principles, the author mentions situations in which a Surveyor’s failure to make a distinction between real property and personal property resulted in there being liable for losses involved in the transfer of the real property surveyed. I was unable to find court cases that were an example of this situation. If you are aware of such a case, or can provide me a reference to material that deals with this subject, please drop me an e-mail at law4landsurveyors@gmail.com so I can investigate further and present the information to my readers.

|FN3| In the State of California, writing new descriptions of real property is covered in the definition of the practice of land surveying. (California Code – Section 8276 – [l]) Are other professionals allowed to do so? What are the laws in your state or jurisdiction? If you know the answer, drop me an e-mail at law4landsurveyors@gmail.com and let me know. I am curious who else is given the authority to do so in other places.

|FN4| This definition was set out in Section 16 – Article 8 of the California State Constitution, also known as the Bank and Corporation Franchise Tax Act, and Sections 3617 and 3820 of the Political Code, as they existed in 1931.


|FN5| Avigation is a relatively new term, which in this context means the ability to ”navigate or move through the air.” There is an interesting article on avigation easements at this link: http://www.saveourheritage.com/Library_Docs/Avigation_easements.htm

|FN6| The law involved in this case was Section 13 of the California State Constitution, the Bank and Corporation Franchise Tax Act, and Sections 3617 and 3820 of the Political Code as they existed in 1936.

Understanding The Format Of The Briefs Posted On Law4LandSurveyors

It is important to understand what a brief is. In essence, it is a summary of a court case and the
resulting decision. I hope to explain briefs, and how to write them, in future articles.

I would like to briefly describe the format I have chosen for the briefs that will be posted on Law4LandSurveyors. Each brief will have 7 sections.

[1] Identification: The first section will identify the case and the parties involved.
[2] Overview Of The Case: This section will present a short, 1 or 2 paragraph summary of the case.
[3] Facts Of The Case: This section will strive to present the facts of the case, in an unbiased manner.
[4] Issues Raised By The Case: This section lists the issues raised in the case. These issues will help the reader understand why the case important.
[5] The Courts Decision: In this section the courts final decision is reviewed. The arguments and reasoning presented in both the majority and minority opinions will be covered.
[6] Citations: In this section other cases cited in this case will be listed.
[7] Special Notes: This section will include any special notes to be considered with the brief. These notes may clarify or define terms in the brief, or provide references to other important information that may affect the readers understanding of the legal decision in the case.

If you have suggestions on items I have left out, or how I can improve the format of the briefs posted on this blog, please e-mail them to me at law4landsurveyors@gmail.com.

The Sunburned Surveyor

An Introduction To Contra Costa Sanitary District V Superior Court

An Introduction To Contra Costa Sanitary District V. The Superior Court of Contra Costa County

This case is the first case we will consider on Law4LandSurveyors. It does not pertain directly to Land Surveying,
but involves important issues related to real property and the rights of the sovereign. I have posted a brief that
presents my summary of the case. This case comes from California, and was decided in 1950. The two parties were the
Contra Costa Sanitary District and the Superior Court of Contra Costa County.

Why is this case important?

This case is one of many that highlights the struggle in finding a balance between the rights of the community, or the public, as enforced by the government, and the rights of a private property owner. It also illustrates how important the interpretation of ambiguous statements in a law can be. It deals specifically with the right of a government agency to take immediate possession of private property in connection with construction of public infrastructure.

What do you need to know to understand this case?

To fully understand this case, it will be helpful to understand the following:

[1] The Principle of Eminent Domain
[2] The Rights of the Sovereign
[3] Easements
[4] The Rights Of Real Property Ownership

I hope to address each of these topics in greater detail in the future on Law4LandSurveyors.

I hope you enjoy reading over the brief of our first case.

The Sunburned Surveyor

Contra Costa Sanitary District V. Superior Court Of Contra Costa County

Court Case Brief

Name: Central Contra Costa Sanitary District (a Public Corporation) V. Superior Court Of Contra Costa County et al.
Citation: 34 Cal.2d 845
Plaintiff and Appellant: Central Contra Costa Sanitary District
Defendant and Respondent: Superior Court Of Contra Costa County
Original Case Heard: Unknown
Case Appealed To: California Supreme Court
Date Submitted: Unknown
Date Decided: March 3, 1950

Overview of the Case

The Central Contra Costa Sanitary District wanted to obtain an easement for the construction of a sewer line over the property of Anne Fish Burgess. The District Court prevented the Sanitary District from doing this. The District Court based its decision on the grounds that the Sanitary District was not one of the public corporations specifically named in California State Law to have the authority to do so. That decision was appealed to the California Supreme Court. The California Supreme Court decided that the Sanitary District did indeed have the right to obtain the land through the authority granted to it by the section of state law in question.

Facts of Case

[1] In 1950 the Central Costa County Sanitary District operated a sanitary sewer system in Contra Costa County, embracing an area of approximately 30,000 acres and serving a population of about 43,000 people. The facilities in use at the time of the case included a treatment plant which handled 3,000,000 gallons of sewage daily, and a main trunk pipeline that was 24 miles long. At the time of the case, there were approximately 115 miles of collecting sewer lines.

[2] In connection with the construction in the Walnut Creek area, the Health Office of Contra Costa County certified to the governing board of the Sanitary District that investigation had disclosed unsanitary, unhealthful, and dangerous conditions in the area. On the basis of that report, the Sanitary District, in accordance with Section 5000 et seq. of the Streets and Highways Code, awarded a contract for the construction of a network of sewer pipes.

[3] Through negotiation with property owners, the district obtained easements or right of way for the
sewer system improvements on more than 90% of the land in private ownership. The construction of these improvements required an easement over the lands of Anne Fish Burgess.

[4] The Sanitary District filed a motion, or request with the court, to take immediate possession of the required land after the district made a deposit of an amount that was to be fixed by the court. In support of this motion, an affidavit of an appraiser was filed in which the appraiser declared the reasonable market value of the required land at $607.00. There was no debate about the sufficiency of this amount.

[5] The motion of the Sanitary District was denied by the lower court on 2 grounds. (1) The Sanitary District was not one of the public corporations specifically named in article 1, section 14, of the Constitution of the State of California, or a "similar public corporation" within the meaning of that section. (2) The use of the land that the Sanitary District was seeking was not a use that allowed immediate possession of the property. (This immediate possession of private property was only allowed when the property was required for a reservoir, or for right-of-way.)

Main Issues Raised In The Case

[1] Narrow Scope: Does a Sanitary District have the authority to take private property or an easement over private property, as granted under the California State Constitution - Article 1 - Section 14?

Broad Scope: Does a public entity or government agency have the authority to take private property for public purposes when that power has not been specifically and explicitly given to that public entity or government agency by the people?

[2] Narrow Scope: If the Sanitary District did have a right to take possession of the private property, did it also have the right to take immediate possession of that private property?

[3] Is an easement for a sewer line a "right-of-way" as specified in Article 1 - Section 14 of the California State Constitution?

[4] Narrow Scope: Did the California Supreme Court, by way of its final decision in this case, grant to public entities or government agencies, power or authority not intended by the people of California in the writing of Article 1 - Section 14 of the California State Constitution?

Broad Scope: Private property rights are an important part of our national economy and our national culture. Did the judiciary overstep its bounds in granting to a public agency the right to take private property, when this right is not specifically given in applicable law?

The Courts Decision

The Majority Opinion

Judge J Edmonds wrote the majority opinion for the court.

* In her appeal, the plaintiff claimed that the Sanitary District did not have the right to take immediate possession of the easement because it had an alternative and "adequate remedy at law". In other words, the Sanitary District had another viable legal means of obtaining the land, and therefore, did not have the right to take immediate possession of that land as provided by Section 1 - Article 14 of the State Constitution. However, Judge Edmonds wrote that the ruling of the lower court that prevented the Sanitary District from taking immediate possession of the land could not be appealed by any other means, and therefore had no other remedy than the case that was before the California Supreme Court. He also stated that the fact the Sanitary District could eventually obtain the lands it needed by other means was no substitute for the right to immediately take and use the contested land.

* Resolution of Issue #2: The court decided that the Sanitary District did have a right to take immediate possession of the contested property.

* Mr. Edmonds states that the plaintiff relied on the principle of "ejusdem generis" as her basis for the argument that the Sanitary District does not have the same powers granted to the "similar public corporations" named in Article 1 - Section 14 of the California State Constitution. All of these corporations, the plaintiff asserts, are involved in the conservation of water, while a Sanitary District is not directly involved in this function. However, in the majority opinion, Mr. Edmonds states the general purpose of the agencies named in Article 1 - Section 14 of the State Constitution was the protection of public health. If this is the case, then the Sanitary District would fall under the term "similar public corporations" as it is directly involved in the protection of public health.
This would mean the Sanitary District would have the power to take immediate possession of the contested property.

* Resolution of Issue #1: The court decided that the Sanitary District did have a right to take the private property of the plaintiff, as it was one of the "similar public corporations" mentioned in Section 1 - Article 14, of the California State Constitution. It based this decision in part on the fact that the Sanitary District obtained authority to protect public health under the California Health and Safety Code. All of the public entities specifically named under that section of the Constitution were involved, not solely in the conservation and protection of water, as the plaintiff asserted, but in the protection of public health. This common purpose shared between sanitary districts and the corporations specifically named in the subject section of the Constitution meant that the Sanitary
District was included in the public entities granted authority under this section.

* Even if the public health factor was not sufficient a sanitary district is specifically empowered by the Health and Safety Code - Section 6512, to construct storm water drains, as well as storm water collection, outfall and disposal systems. It also shares with municipal utility districts the power to construct sewer systems. Judge Edmonds states that "...It would indeed be a narrow construction
of the words 'similar public corporation' to distinguish, by so fine a line, between the authority of a sanitary district which controls storm water in order to avoid pollution of drinking water, and that of a water conservation district, which guards against damage of storm waters by the maintenance of irrigation facilities. To accomplish their purposes, all of the public corporations named must construct pipes across private lands, and all of them equally need to expedite construction by immediate occupancy of property upon which facilities are built."

* A major element of the issue before the court, was whether or not a decision in factor of the Sanitary District would grant to public entities rights not intended by the voters of California. The plaintiff asserted that this was the case, since a sanitary district was not one of the public corporations specifically mentioned in Article 1 - Section 14 of the California State Constitution. However, in writing the majority opinion Judge Edmonds makes a statement to contradict this argument.
"The voters were told: 'Since the sovereign agency must be entitled to eventually obtain the required property, it has long been recognized that the practical and sensible thing was to allow the public agency to take possession at once so that construction work and development would not be delayed.' And a further statement of the purpose of the amendment reads: 'This amendment does away with unfair discrimination which now exists between districts performing the same functions.'"

The Minority Opinion

Judge J. Carter wrote the minority opinion for the court.

* Judge Carter explains, that in the minority opinion, the court's decision has "read words into a constitutional provision when there is no justification" to do so. He asserts that the California State Constitution is meticulous in specifying which public agencies can be given the power of immediate possession of property in eminent domain cases, and that Sanitary Sewer districts are not one of the type agencies granted this power by the constitution.

* Judge Carter also mentions historical facts in support of the minority opinion. Before the year 1918 there was no provision in the California State Constitution for immediate possession of property condemned under the principle of eminent domain. When provisions allowing eminent domain were added in 1918 and again in 1934, each government agency granted the right of immediate possession by the constitution was specifically mentioned. Based on those facts Judge Carter states the following: "Thus the consistent practice has been to specifically name or describe the public agencies that have such power. For this court to add another distinctly named and constituted agency
is manifestly out of harmony with that practice and the clear intent of the electorate."

* In part of its argument, the majority opinion stated that the common purpose of all the agencies named in Article 1 - Section 14 of the California State Constitution was protection of public health. It argued that although Sanitary Districts were not mentioned specifically, that because it was involved in protecting public health, it was included in the "similar public corporations" mentioned. In the minority opinion Judge Carter disagrees, stating that the purpose of the agencies granted the power of eminent domain and immediate possession under the section of the State Constitution were involved, not in protecting the public health, but in conserving and protecting the quality of water, a valuable state resource. The minority opinion states that a Sanitary District would thus be excluded from the "similar public corporations" in this case because: "A sanitary district...is primarily
concerned with the disposal of sewage...Only incidentally is it interested in water control, that is, disposal of drainage waters which is naturally pertinent to its function for it may use the same facilities for both sewage and flood waters."

* Judge Carter uses an example in support of the minority opinion. He points out that a mosquito abatement district is another public agency in concerned with the disposal, not conservation of water, like a sanitary district. Part of the duties of a mosquito district is to drain or poison stagnant pools of water that may serve as a breeding ground for the insects. When using this example Judge Carter strongly asserts, "I seriously doubt if even the majority of this court would go the absurd length of holding the framers of amendment to the Constitution intended that a mosquito abatement district is given the power to take immediate possession of property it sought to acquire in connection with its abatement program. I can see no basis for the distinction between such a district and the sanitary district here involved."

* Judge Carter mentions another concern with the decision of the majority in the minority opinion. His concern centers on the compensation of a private land owner for the value of land taken by the government agency. This concern is magnified when the government agency is allowed to take immediate possession of the land it seeks, before making full compensation. He states: "In this connection, we may take judicial notice that there are many public agencies which are limited in the amount of money made available to them in the performance of the functions which they are authorized to perform. It is therefore, not beyond the realm of probability that such an agency may take immediate possession of property upon a preliminary showing of value and not be able to respond in the amount of compensation and damages which will subsequently be awarded by the jury in the in the trial of the eminent domain proceeding. In such event, the public agency would have the property without the payment of the just compensation and damages to which the owner is entitled to under both the federal and state Constitutions." In other word, a government agency could take immediate possession of private property, and then be unable to pay for it. In the minority opinion this power should only be given to agencies specifically named by the electorate or people of the state.

Court Case Citations

34 Cal.2d 847
34 Cal.2d 848
34 Cal.2d 849
34 Cal.2d 850
34 Cal.2d 853
34 Cal.2d 854

Cited Laws

California Streets and Highways Code - Section 5000
California Health and Safety Code - Section 6512

Special Note

The ejusdem generis rule mentioned in the majority opinion is a "rule of construction". (It is a legal principle that governs how a law can be interpreted after it is written. It states that, "general words, (as in a statute), that follow specific words in a list, must be construed as referring only to the type of things identified by the specific words." In this case, the "specific words" were the public corporations or agencies specifically named in Article 1, Section 14 of the California State Constitution. The "general words" that needed interpretation were the words "similar public corporation".

Welcome to the Law 4 Land Surveyors Blog

This blog is designed to help Land Surveyors understand and stay up to date with the legal principles that govern their profession. It will discuss important court cases that establish important precedents which can guide or govern a land surveyor when they are making a decision regarding boundary resolution or location. These cases will include landmark historical cases, recent cases, and cases currently awaiting a final decision. I will also discuss attorney general opinions and relevant state and federal laws. You do not have to be a legal expert to benefit from this blog. I will make an effort to explain unfamiliar terms and concepts. (See articles under the Jargon and Boundary Principles themes.) However, a basic understanding of land surveying and real property boundaries will be
help you to get the most out of this site. I will try to post new content to the site every week. If you have
questions or comments about this blog, or the content on it, please send me an e-mail at law4landsurveyors@gmail.com.

I would also like to hear from you if you would like to write an article for the blog, or if you have a legal issue related to land surveying or real property boundaries that you would like considered.

Thanks,

The Sunburned Surveyor

The Sunburned Surveyor's Bio

A reader of this blog had asked me to add a bio. I generally frown on speaking a great deal about my self and prefer the shadowy cloak of anonymity. However, I thought it was important that the readers of this blog know something of me as both a professional, and an individual. This knowledge is an important element in an objective judgment of this blog's contents and the opinions I state in the articles posted on it.

Note To The Reader: I strongly believe that this world puts too much emphasis, and faith, on credentials. I think that as a society, we to often "disqualify" truly qualified individuals because they don't have the correct certificate or degree. I think we should place more emphasis on what someone can do, not on their title or credintials. This does not mean that I think professional licensure is unnecessary. I think that professional licensure is very important. (That is, when it is based on what an individual can do, not on his title, degrees, or certificates.) All of this being said, I realize there are many people, including many Land Surveyors, that would disagree with me. Those types of people will be interested in the next section of this bio, "Titles, Degrees, and Other Pretentious Nonsense". Those that feel as I do will be more interested in the "What I Can Do" Section. There is a difference between a person’s titles, what they really can do, and who they are as a person. The final section of this bio is entitled "Who I Am", and takes care of that last item.

Titles Degrees and Other Pretentious Nonsense

I earned my A.A.S. Degree in Land Surveying from Flathead Community College under the excellent instruction and mentorship of Dave Dorsett. In the process I learned what it meant to be a surveyor, and I made some friends with future Foresters, who joined the Land Surveyors at FVCC for some GIS courses.

I obtained my California L.S.I.T. Certificate in 2002. A grueling experience I hope to repeat only one more time, when I take my PLS exam. If all goes according to plan, that will be in the spring of 2007.
(I find my life rarely goes according to plan.)

I currently work as a "Project Surveyor" for a Civil Engineering and Land Surveying company located in California's Central Valley.

What I Can Do

I'll just stick to the Land Surveying stuff in this section. I can operate various types of survey instruments, including conventional, hydrographic, and GPS. I have experience working on many different types of surveys, including boundary surveys, ALTA surveys, control surveys, topographic surveys, route surveys, and construction staking surveys. In the office I typically work on boundary problem resolution and historical boundary research. This includes extensive records research and analysis of property descriptions. I can utilize many types of CAD, Surveying, and GIS software.

Who I Am

My dad worked as a heavy equipment operator, and I spent my first years living in many of the States west of the Mississippi River. My family finally settled down in the Flathead Valley, near the Canadian Border in Montana. I spent all of my teenage years in this beautiful place. I worked my first couple of jobs as a dishwasher, and finally landed a job at one of the local grocery stores. I started there as a bag boy, and 6 years later was closing up shop as a night manager. I also worked a second job at The Big Mountain, an area ski resort, and pursued my education at Flathead Community College during this time.

After graduation from college, I accepted a job in the California Central Valley, where I could be close to some of my family. I have been there for the past four years, with the same Civil Engineering and Land Surveying Company. It is a very different place from the Flathead Valley, but I have found beauty here in places I didn't expect. Like beauty in the Almond Orchards that shield a person from the summer heat, the reedy islands of the San Joaquin/Sacramento Delta, and the green spring grass that covers the foothills of the Sierra Nevada.

I am married to a beautiful and intelligent woman, who works as a preschool teacher and fills my rather mundane life with joy and excitement. We have no children, but I married into a large family, and now have many nieces and nephews to look after. I am a deeply religious man, and volunteer much of my time in an effort to help my neighbors spiritually and morally. I strive to remain neutral in political affairs at all times, although this can be a challenge.

I enjoy backpacking and snowboarding. I prefer the Northern Rockies for these good times, but I have found that the peaks of the Sierra Nevada are a good substitute. I don't get the chance to enjoy their solitude nearly as much as I'd like, but relish the moments when they come.