Can A Boundary Survey Be Negligent If You Weren’t Proven Wrong?
How can you be negligent if your boundary determination was never proven to be wrong? This was the question in the recent Connecticut Superior Court case of Iron Shields Investment, LLC v. Miller, (2019). 1 Surveyor D’Amico — the only surveyor in the case — surveyed two adjoining tracts of land in Weston, Connecticut, in 2006. The properties in question were the Pellegrini property consisting of about 4 acres lying to the north and the Miller property adjoining to the south consisting of about 10 acres.
In performing his survey, D’Amico researched available maps of surrounding properties, pulled deeds of the properties and of adjacent tracts, pulled older deeds in the chain of title, went to the field to retrace existing boundaries, and recovered existing “stone bounds” (two in particular). “D’Amico researched the S.W. Hoyt map, 2 which showed the southern [Miller] tract as ten acres with boundary lines of two stone bounds along the boundary of property belonging to Stephen Godfrey.” The Godfrey property later became a part of the Weston Gun Club property which, at the time of the action in the case, adjoined the Miller property on the south.
In 1960, the Weston Gun Club (the Club) had its 24-acre property surveyed (the Weston Gun Club map). “The surveyor for the Weston Gun Club showed several different possible boundary lines with the Miller property on his worksheet, but he selected a boundary line that gave the Weston Gun Club twenty-four acres.” D’Amico studied the Weston Gun Club map and it showed five “stone bounds in the vicinity of the boundary between the Miller property and the Weston Gun Club property,” all within the Club’s property. D’Amico eventually determined that the two stones shown on the S.W. Hoyt map for the Godfrey property were the correct property corners for the southern boundary of the Miller tract.
D’Amico’s resulting survey of the two properties indicated that the Pellegrini tract contained 3.95 acres and the Miller tract contained 9.87 acres. “D’Amico’s line on the survey of the Miller property was drawn between two of the five-stone bounds that matched the S.W. Hoyt map. The line on the 1960 Weston Gun Club map, however, showed a line from two different stone bounds.” This resulted in an ostensible 4-acre overlap with the Club property. D’Amico did not reveal the overlap on his map of survey, nor did he show the other “stone bounds.” “D’Amico testified that he saw the overlap between the bounds that the Weston Gun Club claimed marked the boundary and the bounds he relied upon, but he decided his line was accurate.” See Figure 1 below.
What to do with a second chance
“A man deserves a second chance … but keep an eye on him.” 3 I often tell surveyors that a second chance on a survey you previously performed is an opportunity to find the mistakes you made the first time around—don’t treat it like an opportunity to make a quick buck. I’m not saying D’Amico cut corners on the second time around with the Miller survey, I don’t know, but he didn’t find his mistake.
In 2014, Iron Shields Investment, LLC (a.k.a., the plaintiff) bought the 4-acre Pellegrini property for $325,000. They were also looking at the 10-acre Miller property with an eye on developing it into a three-lot subdivision. Local zoning would require 10 acres for three lots. “On March 7, 2014, the plaintiff contacted D’Amico and bought a copy of the survey of the Miller property, which the plaintiff was considering purchasing from the Millers.” Before signing a contract to purchase the Miller property, Iron Shields’ construction manager had a sit-down with D’Amico, who is also an engineer, about development of the Miller property into three lots.
On March 10, 2014, Iron Shields entered into a contract to purchase the Miller property with a contingency that they would have to be able to develop at least two lots on the property. On March 31, 2014, Iron Shields bought the Miller property for $350,000. “On October 1, 2014, D’Amico prepared, issued, and certified to the plaintiff a map (‘Map’) of the Miller property. The Map was prepared to an A-2 accuracy standard. The Map certified that the Miller property contained 9.917 acres.” The map also contained a statement that “this survey and map has been prepared in accordance with Sections 20-300b-1 to 20-300b-20 of the Regulations of the Connecticut State Agencies.” After Iron Shields obtained zoning approval, D’Amico prepared a three-lot subdivision plat which was recorded August 24, 2015.
Let’s take out the trees
Whenever surveyors are depicted on TV, they’re always standing behind a tripod with a level that isn’t level, in front of a bulldozer, pointing the way to the trees. True to script, Iron Shields started taking out the trees on the former Miller property when the Club noticed that the bulldozer was on what it considered to be its property. Everybody took a time out. “The plaintiff and the Weston Gun Club then undertook an extensive review of the existing conditions and land records, employing surveyors, engineers and title searchers as part of that review. They exchanged information on an ‘open file’ basis.”
After the joint review, a lawyer and member of the Club believed that the Club “had a strong case” for the disputed 4-acre overlap. “On April 26, 2016, the Weston Gun Club instituted suit against the plaintiff to quiet title.” Three days later the parties settled the dispute “and entered into a boundary line agreement.” 4 The agreement allowed Iron Shields to develop two lots. If the parties had gone to trial, Iron Shields could have lost two lots and more money. None of the surveyors who testified at the subsequent trial involving D’Amico “could say that the Weston Gun Club had superior rights of ownership to the” disputed 4 acres.
Last man standing
On September 13, 2016, Iron Shields filed suit naming A. Elizabeth Miller, Beck & Beck, LLC, and D’Amico as defendants. “Prior to evidence being presented at trial, the plaintiff withdrew its complaint as to the other defendants, leaving D’Amico as the sole defendant for trial.” The others settled. “The only claim in the complaint against D’Amico sounds in common-law negligence,” which consists of four elements:
“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” 5
D’Amico argued that he owed no duty to Iron Shields because they were not in privity of contract. 6 The Court agreed they were not in privity in 2006, but when D’Amico sold Iron Shields the survey and then certified the map in 2014, that created privity and the duty owed. The duty owed in a professional negligence case is the standard of care and a breach of that duty is “the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent, reputable member of the profession with the result of injury, of loss, or damage to the recipient of those services.”
All the surveyors at D’Amico’s trial “testified that work performed by a surveyor must adhere to the regulations found in §§ 20-300b-1 to 20-300b-20 of the Regulations of Connecticut State Agencies.” Even D’Amico agreed and had certified to such on his 2014 survey prepared for Iron Shields. Subsection (b)(1) of those regulations require “that a ‘Property Survey depicts the position of boundaries with respect to: (A) Locations of all boundary monumentation found or set; … (G) Unresolved conflicts with record deed descriptions and maps; [and] (H) All apparent boundary encroachments; …’”
D’Amico’s survey did not reveal any of these circumstances even though they existed, and he knew about them. “The defendant appears to argue that the standard of care only required him to do the title work and field work—which he did—and to find the markers and make a determination of the boundary line. He further argues that the standard of care did not require him to note the stone bounds on the Survey or the Map.” Causation and actual injury to Iron Shields were easily proved and D’Amico was found negligent even though his survey results were never determined to be wrong.
As I have discussed on many occasions in various forums, in a professional negligence action against a land surveyor the plaintiff must prove all four elements of negligence. If one fails, then there can be no negligence and no damages. The practitioner should assume the plaintiff will prove a duty owed, causation and damages. As the Court observed: “A disputed boundary in and of itself can cause harm.” Words to the wise. The only element the practitioner can control is breach of the duty owed (i.e., falling below the standard of care). Always operate above the standard.
Iron Shields claimed $506,231.84 in damages. When it was all said and done, they were awarded $41,060.77 and denied recovery of attorney’s fees.
- Iron Shields Investment, LLC v. A. Elizabeth Miller, No. FBTCV166059810S (Conn.Supr.Ct.2019). This is an unpublished opinion, but as we have discussed in the past, that simply means it can’t be cited as precedent in other Connecticut decisions because it has been deemed to have no precedential value in that it is breaking no new ground. That doesn’t mean that it has no value to us or that the articulation of the law in the case is wrong. If the law in the case was different than existing law, then it would be breaking new ground and would most likely be published or overturned. As explained in the past, the reason we use unpublished opinions is because there is a surveying fact scenario that, while maybe not of much interest to the rest of the legal world, is of interest to the practice of surveying, along with the law that was applied to those facts.
- No date was given for the S.W. Hoyt map. It was characterized as “old,” it is therefore assumed that it was an ancient map. In legal evidence, ancient is consider anything over 20 years old.
- Quote attributed to John Wayne.
- Unlike so many boundary disputes we study that are driven by emotions, this was a business decision made by businesspeople.
- RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384; 650 A.2d 153, 155 (1994).
- Privity is a contract concept. “The requirement of privity should only be applicable to actions growing out of contract theory and should be irrelevant to tort actions. Foreseeability, not privity, is the ‘ultimate test’ of whether there is a duty of care [in a tort action].” Coburn v. Lenox Homes, Inc., 173 Conn. 567, 574; 378 A.2d 599, 602 (1977).
A version of this article was originally published in the June 2020 issue of POB.