Traversing the Law: Forensic Surveying.
Although we understand this truth, our clients often don’t. Clients who own property and have hired the land surveyor to survey that property are often dismayed to discover--sometimes years after the survey was completed--that they did not actually receive a survey of their property boundaries. Instead, they received a stakeout of a deed in one of perhaps several possible locations. Like a doctor prescribing a placebo to completely unsuspecting patients who believe they are getting real medicine for their medical problem, surveyors often hand over maps that do not represent boundary lines or anything close to an opinion of boundary and call it a boundary survey. The excuse that comes back from the land surveying community is: “All my client wanted me to do was stake the deed.”
It would be malpractice for a doctor to treat a patient for heartburn−simply because the patient insists he or she has heartburn−when, in fact, the patient has heart disease and the doctor knows it. Yet this very same conduct is not only tolerated in the surveying profession, it’s actually condoned by a large segment (if not the majority) of the surveying community. What’s the difference?
When a living and breathing patient is sitting on the examination table, the doctor is expected to listen to what the patient has to say, examine the patient, run tests if necessary, make a diagnosis and prescribe medicine that will cure the patient. This outcome may or may not coincide with what the patient insisted upon at the outset. Conversely, when the patient is in the morgue, a completely different protocol is in order. Instead of looking for a cure, the medical examiner is looking for the cause of death. This is forensic medicine.
When a land surveyor is commissioned to survey property, it’s like having a living and breathing patient on the examination table. We must listen to what the client has to say, examine the client’s deed, do further research if necessary, gather the field evidence, and then make a well-reasoned opinion on the boundaries and issue a map of survey. This outcome may or may not coincide with what the client insists that the surveyor do vis-à-vis the client’s deed.
In contrast, when forensic surveying is warranted, the body is generally delivered to the surveyor in the form of a lawsuit by an attorney for one of the parties. The attorney is in need of evidence to build the case and needs forensic surveying services to help in that endeavor. Like the medical examiner, the surveyor’s role in this case is to find a cause, not a cure.
Of course, doctors have a definite advantage over surveyors in this matter because it’s easy to see when a patient is alive and when--well--he isn’t. If the distinction were that stark in surveying, it might be easier to understand the situation at hand and apply the correct protocol in our surveying practice. Just pick up any set of land surveying technical standards from across the country, and you will find a dozen or so defined “types” of surveys. If we limit the discussion to those involving boundaries, however, we generally get down to two types of surveys: those involving the determination of property boundaries and those involving something less.
What a great aid it would be to the practicing land surveyor−and what great strides could be made in ending much of the confusion in the surveying community over our duties and responsibilities toward boundaries−if we could get our collective act together on this one issue. We are either dealing with a live patient in need of a well-reasoned opinion of what the property boundaries are and where they are located or we are conducting a forensic survey after the fact to determine causation or help build a legal case. As it stands, we do both and call them by the same name.
A client hires a land surveyor to survey his property, and it’s called a “boundary survey,” even though no effort is made to determine the true property boundaries. An attorney hires a land surveyor to show where a particular deed exists on the ground, and it’s called a “boundary survey.” The protocol is exactly the same. In many instances, the surveyor has no clue that there is a difference between the two. In other instances, the surveyor is very aware of the differences and conducts a survey that is less than a “complete” boundary survey of the property in order to avoid the hassle and uncertainty associated with making boundary determinations, and the client is unaware that this subterfuge is taking place. This can be likened to performing an autopsy on a live patient. If it wasn’t a lawsuit (i.e., “dead body”) before the surveyor arrived, it will be as a result of the survey.
The case of Farrell v. Gardner  is a classic boundary dispute between two adjoining property owners. Both hire surveyors to determine their respective property boundary lines--in other words, both surveys are conducted on “live patients.” Armed with their respective surveys, the landowners go to court to get what is theirs. In court, the ultimate issue to be determined is the true property boundary line between these warring landowners. As the court sets upon this task, the two surveys are examined. As so many other courts before them have observed, the two surveyors “took dramatically different approaches to the task.”
Even though our clients may not be able to recognize the difference between two competing surveys, the courts will. For example:
The conclusion embodied in Webber’s survey is contrary to that reached by the plaintiff’s expert, Richard Perry. For a number of reasons, however, the court declines to give Perry’s opinion the weight that would be necessary to carry the day for the plaintiff. First, the court concludes that his methodological approach was not as sound as Webber’s. … Perry’s approach is also problematic because after finding the point that he believed to be the defendant’s southwest corner, he simply measured 8 rods back toward the plaintiff’s lot to find the common southerly corner of the parties’ parcels. … It places too much emphasis on the accuracy of the distance call associated with the southern boundary of the defendant’s land. … This is further shown by Webber’s findings that there were discrepancies between the distance calls for the northern boundaries of those westerly lots and the apparent actual locations of those lines. Thus, Perry’s dispositive reliance on a distance call in the defendant’s deed weakens his resulting opinion.
The flaw in Perry’s methodology is the strength of Webber’s. When Perry’s opinion rests primarily (if not exclusively) on information derived from the deeds, Webber’s analytical base is more thorough. … Finally, a series of other factors, when viewed in combination with the ones noted above, ultimately persuades the court that Perry’s opinion suffers from flaws that render it less probative than the conclusions reached by Webber. … For example, Perry failed to include express and important limitations on the nature and prospective use of the survey documents he created; his survey of the plaintiff’s property was not comprehensive; ... and Perry’s final product was described as a “retracement survey,” which does not rise to the level of a standard boundary survey, such as the one Webber generated in this case.
This is not an unusual situation. I could bring more examples to the table for us to dissect, but that’s not necessary. The point is that the plaintiff’s surveyor in this case did what so many other surveyors do in similar situations: He provided less than a survey of property only to find out that the survey was almost worthless when examined under the close scrutiny of the court in resolving a boundary dispute. The plaintiff’s surveyor’s forensic survey, which in and of itself had little or no probative value on the ultimate issue, actually demonstrated that the defendant’s survey had properly diagnosed the problem and prescribed the correct cure.
Providing Professional Services
No well-informed client will ever go to court with survey in hand and spend tens of thousands of dollars fighting over a property boundary without believing that his or her surveyor has determined, as a result of the survey bought and paid for, the extent of his or her property ownership. So, if a client does take such action, where is the failing? Is it because the client should have understood that a “retracement survey” isn’t a true “boundary survey”? What happens when a doctor prescribes a placebo to an unsuspecting patient instead of vital medicine? Why does one profession condone such behavior and the other purges itself of those practitioners? Is it because land surveying isn’t really a profession?
Sometimes Something Less is Warranted
There is a time and a place for forensic surveying. As A.C. Mulford observed in his treatise “Boundaries and Landmarks, A Practical Manual,” surveyors are sometimes hired by attorneys not necessarily for the determination of property boundaries but “for some special and particular purpose.” When this circumstance arises, this is forensic surveying, not boundary surveying.
When landowners hire surveyors to survey their property--even if they believe that they own everything their deed calls for--they are really asking for a diagnosis of their problem and a prescription for a cure. They are seeking a professional opinion. When we provide something less, it is our responsibility to make this clear to the patient. That is what any true professional would do.
Forensic surveying is a legitimate function of the boundary surveyor, but it is never the surveyor’s choice to determine who needs an autopsy versus a diagnosis and cure. When surveying property, we are dealing with live patients, and the only boundary line that really matters is the true property line between all of the affected property owners.
1. Farrell v. Gardner, 2003 Me. Super. LEXIS 250 (Me.Super. 2003).
2. Dykes v. Arnold, 129 P.3d 257, 260 (Ore.App. 2006).
Author’s note: For a more in-depth study of the legal principles that affect our everyday practice, subscribe to “The Lucas Letter” at www.jnlucaspls.com/TheLucasLetter.html.
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.
This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.