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On the level: Six rules for boundary disputes.

June 1, 2010
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According to Black’s, “Title is the means whereby the owner of lands has the just possession of his property. The union of all the elements which constitute ownership.”1 These elements may be described as proof and quality of claim, which is the attorney’s area of expertise, and location and quantity of claim, the surveyor’s area of expertise. 



According to Black’s, “Title is the means whereby the owner of lands has the just possession of his property. The union of all the elements which constitute ownership.”[1] These elements may be described as proof and quality of claim, which is the attorney’s area of expertise, and location and quantity of claim, the surveyor’s area of expertise. Any of these elements may lead to a dispute over land. Attorneys deal with disputes over the quality of title, while most disputes brought to the surveyor are over the location of a line or lines dividing adjacent parcels--i.e., boundary disputes.

A surveyor can bring peace to a boundary dispute as a result of his/her professionalism and objectivity. Unfortunately, the surveyor is also in a position to aggravate a dispute or even be largely responsible for the dispute arising in the first place due to her/his subjective approach or poor judgment.

There are several principles the professional surveyor should bear in mind before, during and at the completion of his/her boundary survey. I suggest the following six rules:

Rule 1: The surveyor acts in a ‘quasi-judicial’ capacity.

Thomas M. Cooley, chief justice of the Michigan Supreme Court in the late 1880s, summarized the role of the surveyor: “Surveyors are not and cannot be judicial officers, but in a great many cases they act in a quasi-judicial capacity with the acquiescence of the parties concerned.” In other words, when the decision of the professional surveyor is accepted by all interested parties, it is as though a judicial decision has been rendered.


Rule 2: The surveyor’s responsibility to the public is equal to his or her responsibility to the client.


Whether performing a retracement survey or attempting to reconcile a boundary dispute, the surveyor has an obligation to the public (i.e., his client’s neighbor) equal to his responsibility to his client’s interests. It is a situation endemic to the professional status assigned to the surveyor through public licensure.


Rule 3: The surveyor must remain objective.

The surveyor and the attorney have distinctly different roles when trying a boundary dispute in litigation. The attorney is an advocate for her client while the surveyor is a witness offering expert testimony in an unbiased, objective manner.


Rule 4: No ‘true answers’ are waiting to be discovered, only well-reasoned opinions.

“If a court upheld the surveyor’s evaluation of the evidence in the example, it is because the surveyor arrived at a comprehensive and well-reasoned answer rather than because he arrived at the theoretically correct answer … there are no “true” answers waiting to be discovered, only well-reasoned answers.”2


Rule 5: Professional cooperation between surveyors is imperative.

Two surveyors coming to differing “well-reasoned answers” have a regulatory obligation in some jurisdictions to seek a common understanding and, in any case, an ethical obligation to reconcile their differences in order to meet their social responsibilities.


Rule 6: The surveyor must strive to keep peace in the neighborhood.

The physician’s oath to do no harm may be reflected in the surveyor’s ethical obligation not to disrupt peace in the neighborhood. The source of boundary disputes between neighbors is often found within the realm of the surveyor’s expertise, and it is often within the surveyor’s ability to reconcile differences. It is also true that many boundary disputes have their origin in the retracement work of a surveyor who, in his zeal to serve his client’s interests, has failed to recognize a neighbor’s just claim.



References

1.   Black’s Law Dictionary, Fifth Edition. Williams, Mitchell G., Esq. and Harlan J. Onsrud, Esq., in “What Every Lawyer Should Know About Title Surveys,” Land Surveys, A Guide for Lawyers and Other professionals, Second Edition, Section of Real Property, Probate and trust Law, American Bar Association, 2000.

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