The surveyor's legal responsibility

October 27, 2008
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Posted By Richard Schaut on 10/26/2008 at 3:42 PM

One of the more serious problems regarding the ability of surveyors to counsel our clients is, I think, the misunderstanding of the limitations specified in the 1973 BLM Manual:

From the ’73 Manual:
“…
5-13. One additional caution, addressed especially to the surveyor employed by the Bureau of Land Management, is to bear in mind that his professional work is technical in character, not legal or judicial. The surveyor is not a referee as to the justice or injustice of a situation, nor is he qualified to act judicially upon the equities or inequities that may appear to be involved.
…”

And

“…
LIMIT OF AUTHORITY OF SURVEYOR
6-11. There are certain questions of a purely judicial nature involved in resurveys of every description where the decision is to be reserved to the Director of the Bureau of Land Management, particularly those relating to compliance with the general laws in respect to the entry of the public lands. Thus it comes within the realm of the surveying process to identify and mark out on the ground the various legal subdivisions of the public domain, but it is a judicial question beyond the function of the surveyor to determine whether or not specified lands have been duly earned under a certain entry. In the resurvey process the surveyor will determine whether or not lands embraced within a claim as occupied have been correctly related in position to the original survey. Where the demonstration of this question may be one involving more or less uncertainty, as is often the case, the surveyor will examine and weigh the evidence relating strictly to the surveying problem involved. He will interpret the evidence with respect to its effect upon the manner in which the resurvey shall be executed to protect valid rights acquired under the original survey. The surveyor has no authority to enter into an agreement concerning the exchange of one subdivision for another or to bind the Bureau of Land Management in this particular.
,...”

There is a good reason to expect the BLM to limit the surveyor's role because the fed. gov't is not bound by state laws.

That said, I would expect that the cautions expressed above would not be necessary unless the private surveyor, in our normal practice, would not be expected to advise the private citizen who is our client.

While 'ignorance of the law is no excuse' is one of the foundation principles of our legal system, it is also understood that the average citizen cannot know all the details of every area of the law.

For certain areas of the law where special consideration of rarely used knowledge is needed, it is expected that the citizen would be able to hire experts who do have the requisite knowledge.

Here is where the surveyor must have the knowledge of the law not possessed by lawyers.

The key here is our ability to determine the errors in the record description and what correction method is most suitable for a particular problem.

How is a surveyor supposed to best assist the land owner to protect their property rights?

Richard Schaut

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