The Curt Brown Revelations
A few years ago, Michael J. Pallamary compiled many of the lectures and articles written by the late Curtis M. Brown, along with the writings of others who chose to respond in some way to Brown’s views, into a volume entitled “The Curt Brown Chronicles.” I recently had the occasion to read this book while sitting in an airplane or two, and while killing time between flights in airports. Airports are a delightful hurry-up-and-wait experience.
This short review is not intended in any way to be a comprehensive appraisal of Pallamary’s 690-page book. I will advise that the book doesn’t need to be read cover to cover, although that is what I ended up doing. I would also venture to guess that most surveyors would enjoy flipping through this book selecting articles of interest that Brown wrote and, just as importantly, many of the responses he received from his readers.
I was already familiar with several of the articles included in this compilation of Brown’s writings. Most of them were originally published through ACSM1 publications such as the old “Surveying and Mapping” magazine, and then subsequently reprinted over the years in various state society publications across the country. Two of Brown’s articles that I have frequently referred to in the past are “The Professional Status of Land Surveyors” (1961) and “Land Surveyor’s Liability to Unwritten Rights” (1979). My last column included a brief discussion of the latter on the issue of “unwritten rights.”
I have been somewhat critical of Brown’s views on the surveyor’s duties and responsibilities toward property lines and boundary surveying in general, as those views have survived, even to this day, in the publications that continue to bear his name. No matter what I think, there is no denying the great influence that Brown has had on the practice of American land surveying over the past half century or more — whether you believe that influence to be good or bad, or a combination of both. I thought that by reading Pallamary’s compilation of Brown’s articles I might gain a better understanding, or at the very least, a more comprehensive view of Brown’s observations and opinions. I was not disappointed, thus the title of this column, “The Curt Brown Revelations.”
One of my first surprising revelations, given the wide acceptance over the last 50 to 60 years of Brown’s companion books, “Boundary Control and Legal Principles,” and “Evidence and Procedures for Boundary Location,” was the initial criticism he received from his peers with the publication of his first book, “Boundary Control for Surveyors in California.” Writing in 1955, after the release of the book, then ACSM Vice-President William C. Wattles wrote in a letter to ACSM Secretary Walter Dix the following:
“Mr. Brown’s book is a good brief abstract of the statutes and case citations of California, and provides a fair reference work for such matters ... My criticism is concerned principally with the academic style of recital. The ‘rules’ laid down are basic and generally usable, but are too rigid for the subject matter. There are practically no rules which are 100 percent applicable without some qualification. … The book will be valuable in the hands of those who have the training and experience to evaluate it, but dangerous to those of lesser capacity; blind acceptance leads to pitfalls.”2
Reacting to Wattle’s letter, S.A. Bauer, past president of ACSM, wrote:
“My impression of the book was very much in line with the opinion of our good friend, Bill Wattles. It is a noble effort to get out such a book, as my experience with the Handbook proves, but I am inclined to agree that in the over-simplification and in the positiveness with which Mr. Brown expounds his views, the book could easily become a damaging rather than a helpful document. I feel that the experienced men who know that such matters must be carefully weighed and judged will not need the book particularly, whereas the inexperienced will get the completely erroneous idea that the rules are as inflexible and rigid as Mr. Brown makes them out to be.”3
The criticism continued with the publication of the first edition of “Boundary Control and Legal Principles,” in 1957, a book co-authored by H. Fredrick Landgraf, attorney at law. This book was an attempt to expand the scope beyond California and to a more universal application across the country. A review of the book was written by Victor H. Ghent, PE, PLS, and published by ACSM in 1957. Ghent, wrote in pertinent part:
“Much of the text will be helpful to anyone anywhere in a general appreciation of a subject whose magnitude and complexity have been considerably oversimplified by condensation into 264 pages; a sacrifice to brevity at which your reviewer looks with alarm because the ‘watered down’ coverage can be a dangerous hazard to the layman’s or student’s understanding of such a complex subject. …
“Thus, the principles, as set forth throughout the book, cannot and must not be considered rigid like a geometric theorem. Whereas in geometry one may take identical conditions and apply rigid principles and always get the same result; the application of physical mechanics to principles of jurisprudence — which surveying of real property boundary determination really is — does not always give equal results even under equal conditions. With this always in mind, or the dedication slogan ‘the contrary may be shown,’ applied to every principle, the book can prove a valuable reference.”4
By 1968, with the rollout of the second edition of “Boundary Control and Legal Principles,” the criticism seems to have abated or was otherwise not reported in Pallamary’s book. Francois D. “Bud” Uzes, who was a co-author added to the second edition, wrote a glowing review of the book, as might be expected, since he was a co-author. Pallamary’s book doesn’t follow the rollout of “Evidence and Procedures for Boundary Location,” and devotes the remainder of the book to the articles written by Brown on a variety of topics, which is where we will go.
Brown the Fence-Line Surveyor
Yes, you are reading that correctly. As much as I have criticized the “Brownian”5 notion that the boundary surveyor’s only duty is to “stake the client’s deed” (i.e. “deed-staker”), he was actually accused of being a fence-line surveyor following the publication of his 1979 article, “Land Surveyor’s Liability to Unwritten Rights.”6 If true, this was indeed a turnaround in Brown’s thinking.
In that article, Brown discussed three real-life situations where the client’s title documents were defective in some way and did not match the occupation. In all three cases, the occupied lines seem to have won the day. Discussing these three situations, Brown made the following comments:
“In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years, there have been cases, one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession.7 …
“Can a surveyor monument the lines of ownership obtained by unwritten means? To my knowledge absolutely nothing in the law prevents him from doing so. Clearly from my conversations with attorneys, this is not the unauthorized practice of law. If the surveyor chooses to claim that a possessory right has ripened into a fee title, he is certainly privileged to do so. The real question is: What should he do?”8
To this, Mitchell G. Williams, PLS, wrote a somewhat scathing rebuttal to Brown’s “principle” of occupation surveying (i.e. fence-line surveying). Calling out the lead article in the June 1979 issue of Surveying and Mapping, “Land Surveyor’s Liability to Unwritten Rights,” by Curtis Brown,” Williams states:
“The principle enunciated is that of occupation, i.e., the idea that possession of land is sometimes the best evidence for the location of a boundary. To many readers of this essay, this will seem self-evident, and they may have utilized such a principle in their own work. It is to these readers that I address what follows, for this principle is based on a basic misunderstanding of both the nature of boundary lines and the legal role of the land surveyor.”9
Notwithstanding the many problems I have with that statement, Williams goes on to agree with me on the issue of unwritten rights:
“The point I wish to make, though, is that ‘unwritten title’ is a misleading phrase. It is actually ‘unwritten evidence of title,’ which a court may so consider, and if it decides to accept this unwritten evidence, it ripens into a written title being recorded in the court’s decision and subsequently recorded in the public records. No one has ‘unwritten title.’”10
Wow! I hardly know where to start. Do I start by defending Brown and his apparent conversion from “deed-staker” to surveyor of property lines, or by explaining Williams’ descent into purgatory before his eventual redemption in 1986 (see endnote 5)? Let’s start with Williams:
“If the surveyor’s evaluation of the evidence … is eventually upheld in a court of law, it is because the surveyor has arrived at a comprehensive and well-reasoned answer rather than because he has arrived at the theoretically correct answer. Again, there are no ‘true’ answers waiting to be discovered; only well-reasoned answers [to be given].”11
Williams said a lot more in that paper that clearly indicates a change of thinking, but that is all we have room for in this column. As for Brown, I’ll let Ted Madson speak from his “Remembrances of Curtis Brown,” on the second page of Pallamary’s book (pages un-numbered):
“I invited Curt to appear with me as my guest at a series of three three-day seminars to debate our opinions about the surveyor’s duty and obligations as regards ownership.12 … After several days of vigorous debate and input from surveyors in attendance, Curt and I concluded that surveyors actually do render opinions of ownership, regardless of their disclaimers.”
Indeed. It appears that Brown’s conversion was complete.
- ACSM: The former American Congress on Surveying and Mapping, now the National Society of Professional Surveyors (NSPS)
- Pallamary, Michael J., “The Curt Brown Chronicles,” Author House 2011, at 8.
- “The Curt Brown Chronicles,” at 9.
- Id. at 11-12.
- Id. at 341. “Brownian,” a term first coined, as far as I can tell, by Mitchell G. Williams, PLS, in his March 1980 reply to Brown’s 1979 article, “Land Surveyor’s Liability to Unwritten Rights.” This is the same Mitchell G. Williams who in 1986 co-authored, with Harlan J. Onsrud, a brilliant paper entitled, “What Every Lawyer Should Know about Title Survey.”
- In my last column in August, I discussed and explained how the term ‘unwritten rights’ is a misnomer, otherwise misleading, and only applicable in a case of bare-naked adverse possession, where even in that situation, would be merely potential unwritten rights not fully realized until confirmed by the courts.
- “The Curt Brown Chronicles,” at 324.
- Id. at 327.
- Id. at 335.
- Id. at 337-338.
- Williams, Mitchell G. and Harlan J. Onsrud, “What Every Lawyer Should Know about Title Surveys,” Reprinted in Land Surveys, A Guide for Lawyers, Real Property and Trust Law Section American Bar Association, 1986.
Although Madson doesn’t give a date for these events, it was apparently in the late 1970’s or early 1980’s and tends to explain Brown’s reversal in his thinking.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.