The Legal Position Occupied by a Surveyor ...
After the able paper by Mr. Justice Cooley, read before this Association, which covers a portion of this subject, it will be more difficult for me to add anything that is interesting or instructive...
Cronin vs. Gore, 38 Mioh. Reports, 384.
Smith vs. Hamilton, 20 Mich. Reports, 438.
And even if the survey is not made with the joint consent of the owners, if it is made, and the lines and boundaries determined by the surveyor, and accepted and acted upon, by the exercise of possessory rights and otherwise, by the owners, for fifteen years, the length of time required by the statute of limitations, or perhaps less, the lines and boundaries become fixed, without court or jury.
Stewart vs. Carleton, 31 Mich. Reports, 273.
Diehl vs. Zanger, 39 Mich. Reports, 603,605 and 606.
Pratt vs. Lewis, 39 Mich. Reports, 12.
Flynn vs. Glenny, 61 Mich. Reports, 583,
Baker vs. MoArthur, 19 Northwestern Reporter, 925.
Crowell vs. Beebe, 10 Vermont Reports, 33.
When lines and boundaries are in litigation in court, and before they have been settled by the said practical arbitration and acts thereunder, or by lapse of time, possession and acts of owners, relying on previous surveys, and when the question of where were the lines, and corners located by the original government survey, or by the town plat, is still open in that forum, the legal position occupied by the surveyor is very different, and he becomes only a witness to the facts, that shall establish the location of said lines, boundaries and corners, and an expert witness as to matters of fact requiring special knowledge and with which he is familiar, in cases where better means of information do not exist, a very useful assistant in coming to a correct judgment, but still only a witness.
Stewart vs. Carleton, 31 Mich. Reports, 273.
He has no more authority than other men to determine boundaries on his own motion, and the law itself does not make 4im the arbiter of private rights.
Cronin vs. Gore, 39 Mich. Reports, 386.
All bounds and starting points are questions of fact to be determined by testimony; and not of the surveyor alone, but by all testimony that is relevant to the issue that can be obtained, including that of unprofessional witnesses.
Hoffman vs. Harrington, 44 Mich. Reports, 185.
As the surveyor will generally have more accurate knowledge of the facts that should determine the lines and corners than any other witness, his testimony will usually be very important, and often controlling; but its weight will depend upon his knowledge of the facts and his thorough and clear statement of them, and not upon his opinion of where the line is located.
Stewart vs. Carleton, 31 Mich. Reports, 274.
Still, he is allowed as a witness to give opinions of matters with which he is familiar by reason of his employment, where better means of information do not exist; as whether in his opinion certain marks on trees and piles of atone were intended es monuments of boundaries.
1 Greenleaf on Evidence, Sec. 440.
But whether an allowance for the variation of the compass should be made, to determine the location of the lines and boundaries, and if so, how much allowance should be made, are questions of fact under all the proof for the jury to decide.
Harlan vs. Brown, 2 Gill, Maryland Reports, 475.
Same case, 41 American Decisions, 438.
While, as has been stated, private surveys, or plans or memoranda of them, made without public authority, are not admissible as evidence of the facts therein, for the reason, as has been said, that it might benefit men to include in such surveys more than belonged to them;
Jones vs. Huggins, 1 Devereaux's Law, North Carolina Reports, 223.
Same case, 17, American Decisions, 569.
Yet after the draft of a survey had been proven by the surveyor who made the survey and the draft, it was held to be admissible in evidence for the purpose of explaining what he testified he had done in making the survey.
Hoey vs. Furman, 1 Pennsylvania State Reports, 295.
Same case, 44 American Decisions, 129.
Field notes, memoranda, drafts and plans of surveys made by a surveyor himself, or by another person at his dictation, may be referred to by him, while under examination as a witness, for the purpose of refreshing his memory, where his recollection is not sufficient to enable him to answer the questions without it.
Abbott's Trial Evidence, 320.
Raynor vs. Norton, 31 Mich. Reports, 213.
But if they are used to refresh the memory of the witness, the opposition party, from the one in whose behalf he is sworn, has the right to have them produced and to know what the memorandum is, and whether it had any legitimate tendency to bring the fact in controversy to mind.
Duncan vs. Seeley, 34 Mich. Reports, 370.
The boundaries will usually be mainly decided by the court and jury on the testimony of the surveyor, as he will be the only witness who has all the available facts bearing upon them in his possession. Whether as an arbitrator, the maker of a survey which becomes fixed by time and acceptance, or as a witness to facts in court, including the giving of an opinion as an expert, the legal position of the surveyor is such that he, more than all other agencies combined, fixes and determines boundaries of lands and the limits of their ownership.
Modified By JB Stahl on 4/16/2008 at 12:39 AM