Limiting liability is a legitimate concern for surveyors and for professionals across the spectrum. However, the privilege of professional recognition brings with it a heightened level of responsibility that cannot be avoided by quick disclaimers or clever denials. Thorough research, careful analysis, and professional results are mandatory rather than optional.
A mere disclaimer on the map is not sufficient justification to ignore legitimate requirements put in the place by a Board of Examiners. Where state standards clearly require specific information on all survey maps, a disclaimer does not excuse the intentional neglect of that data on the survey map.
In the recent Tennessee decision Whitelaw v. Brooks: 138 S.W.3d 890 (2003), a surveyor was found guilty of negligence for failure to conform to existing standards of practice. The surveyor: “…in derogation of the rules promulgated by the Tennessee State Board of Examiners for Land Surveyors, failed to create his survey using the latest recorded deed to the property and instead utilized a tax map provided by the Tax Assessor’s office. Hall’s survey resulted in an encroachment on Whitelaw’s remaining parcel of land.”
This case is a valuable lesson to licensees who prefer quick and easy solutions to professional-level performance.
When considering the necessary time and effort to invest in research and analysis, surveyors tend to focus on standards of practice set by their Board of Examiners. This is certainly a legitimate concern, particularly because willful failure to follow state standards may be the basis for a charge of negligence.
However, courts and judges have their own expectations that often exceed those set by licensing boards. Courts generally require complete research that includes all relevant deeds and maps as well as other significant data. Those land use professionals who argue that research challenges justify their failure will find no sympathy from the judge. In short, the court requires research sufficient to get the right answer.
Consider this quote from the Texas decision Scheller v. Groesbeck, 231 S.W. 1092 (1921): “That in the construction of written instruments the cardinal rule to be followed is to arrive at the intention of the parties and that all parts of a deed shall be given effect if possible, and where there is a particular description followed by general description the latter shall yield, though where it is possible the real intent must be gathered from the whole description, including the general, as well as the special, and that all instruments in a chain of title when referred to in a deed will be read into it, are all rules of law so familiar that citation of authorities is unnecessary.”
Implicit in this passage is recognition that, in order to properly interpret an ambiguous description, prior conveyances in the chain of title also must be reviewed. In order to properly retrace boundaries, surveyors must understand and conform to this important common law principle. It is sad but true that the courts’ assumption that these principles are widely recognized is probably inaccurate.
In Roll v. Bacon: 160 Ohio Misc. 2d 23 (2010), the Ohio court condemned the work of three separate surveyors who had researched deeds back to 1906. Their work was rejected as incorrect because they should have pursued the chains of conveyance for the relevant tracts back to the ultimate source descriptions circa 1860: “The court finds that the surveys conducted by Jasontek, Byrnside, and Hewett do not reflect the intent of the grantor, as evidenced by the chains of title. In the original deed from Sims to Brown, dated April 30, 1860, the grantor states that the property is conveyed “Reserving the right of way along Smith’s line to the Williamsburg road.” From this, the court finds that Sims intended to convey the property with a reservation of a right of way along Smith’s line, which became the Old Schoolhouse Lot.”
The Ohio court also observes that attempted reliance on the Marketable Title Act is misplaced. In determining original intent, standards set by the act have no relevance. In this case, the only surveyor who correctly interpreted the deeds was the one who traced the relevant tracts back to the source descriptions circa 1860.
Research in State Statutes—Railroads
In a forceful recognition of constructive notice and its relevance to the land surveyor, the Tennessee court concludes that individuals attempting to determine the limits and nature of railroad rights-of-way have constructive notice of all language in the original state railroad charter, as seen in Railroad v. French: 100 Tenn. 209 (1897): “A person who builds upon the right of way of a railroad does so at his peril, no matter what paper title he may have from a third person. And all persons are affected with notice of the extent of the right of way when it depends upon the charter provisions.” [Emphasis added]
This quotation refers to the numerous legislative acts that are generally critical for determining property rights associated with railroad corridors. It applies to anyone attempting to determine the limits and nature of railroad rights—including surveyors, attorneys and landowners.
Responsibility to Know & Understand the Law
Research alone is insufficient if the professional misinterprets the documents recovered. Professional land surveyors cannot abdicate their responsibility to know, understand and apply appropriate rules of construction. One common misconception is that the surveyor is only required to understand basic rules of construction and that all else is the province of the legal profession. In fact, any and all statutory and common law associated with the location of deeds should be applied by the surveyor. This includes—but is not limited to—relevant state statutes, practical location, variants of the centerline presumption and significance of parol evidence.
This standard was highlighted by the California court in Iacovitti v. Fardin: 273 P.2d 926 (1954). In this instance, the surveyor asserts that reading deeds and surveying are two separate disciplines—with predictable results: “The surveyor testified that, according to his survey and calculations, the precise frontage actually conveyed was 25.81 feet or 25 feet 9 3/4 inches, which is some 9 inches more than 25.03 feet “more or less” mentioned in the deed. The surveyor also testified that appellants’ lot with the claimed encroachment still has a frontage available for building of 25.10 feet, which is .07 of a foot in excess of the 25.03 feet mentioned in the deed. The surveyor admitted that his calculations were predicated on the metes and bounds descriptions in the appellants’ and respondents’ deeds and disregarded the Southern Pacific deeds and the intent on the part of that company as disclosed by those deeds to divide the original area into two equal grants to Steele and Schafer; that if such intent were considered a different result might follow; that it was not a matter of surveying but of interpreting the deeds; that, according to his interpretation, there was an 8-inch overlap, but that according to the interpretation of respondents’ surveyor there was no overlap.” [Emphasis added]
This case is remarkable for the casual assumption by the surveyor that rejects any responsibility for knowing and applying appropriate rules of construction. The maps and conclusions of the surveyor quoted above were dismissed as being contrary to established legal principles. The work of the respondents’ surveyor—who correctly determined the significance of all relevant deeds—was upheld.
There is no substitute for complete and reasoned opinions. Surveyors should be prepared to justify their position on every iron pin observed on any project—whether it is held or rejected. Gut reactions by professionals seldom convince judges and are more likely to result in derogatory comments from the court. Insufficient analysis generally causes more problems than it resolves.
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.