As a follow-up to my recent articles on the surveyor's duty as it relates to boundary determinations, this month I want to explore the liability involved when the surveyor fails in this duty. We're going to do that by looking at our "case-in-chief," Watts v. Shannon and Leggins, a 2005 case from Tennessee.

The Liability Tail

As we all know, or I imagine most of us suspect, surveys have what is referred to as a long liability tail. That is to say, in the typical circumstance, the surveyor's mistake that gives rise to liability may take a long time to surface, if ever. This is due to many factors. Often the work of the surveyor goes largely unnoticed. Erroneously placed monuments, especially monuments set in conflict with long held occupation, may be ignored or go unrecognized for years or decades. Many unsophisticated clients are perplexed by maps of any kind, let alone survey maps that on the surface look great but actually contain latent defects or mask negligent actions on the part of the surveyor.

Although the general public misunderstands much of what we do as land surveyors, one thing the public has always understood about surveyors is that they make boundary determinations. And this is true. Most, if not all, state regulations place upon the surveyor either the duty to determine boundary lines or the responsibility for gathering the evidence necessary for such determinations. And the vast majority of these determinations go unchallenged. The respective parties agree with the determinations, acquiesce to these determinations or ignore them. This is the quasi-judicial function of the surveyor that so many commentators have referred to. Quasi-judicial in the sense that these decisions are subject to judicial scrutiny and can be overturned, but in reality they rarely are.

A Double-Edged Sword

This of course leads us to the double-edged sword that the boundary surveyor wields. From one aspect of liability the sword cuts in the surveyor's favor. If relatively few boundary determinations are ever challenged in court (for the purposes of further discussion, I'm going to refer to this as our "immunity from prosecution" even though we have no such immunity), this means there are relatively few opportunities to incur liability. However, the other side of that sword cuts away from the surveyor's protection from liability. Since surveyors, in essence, play judge and jury over the location of boundary lines, this opens the surveyor to liability to third parties whom the surveyor has never met, let alone contracted with.

I'll talk about the erosion of "privity of contract" in just a moment, but let me lump in two more troubling thoughts before I move on. The first is that our immunity from prosecution that the profession has seemed to enjoy for centuries is quickly coming to an end. You can read it in the case law if you study enough of it. Older boundary dispute cases generally revolve around the determination of the boundary between the disputing parties. Surveyors, inexplicably, are left out of the fray. They come in to testify, and if there are two surveyors they give conflicting testimony and then disappear from the case. Newer cases revolve around who is responsible for the mess, as does our case-in-chief. And the surveyor who is responsible for the mess is named as a part defendant. The other troubling thought is that, as with society as a whole and professionals in particular, the number of lawsuits against surveyors are going to increase as the value of land climbs and lawyers in search of billable hours divide and multiply.

The Erosion of Privity of Contract

The erosion of the doctrine of privity of contract began many years ago with the rise of the tradesman, commercial manufacturers and professional service providers who interact with the public at large and upon whom the public at large increasingly depends. It started as a consumer rights issue. Consumers were being barred from their remedies in court because they were not in privity of contract with the manufacturer who produced the product that caused the injury. The courts quickly began to recognize new doctrines of the law, e.g. "strict warranty," "implied warranty," "implied contract," "third party beneficiary" and "misrepresentation." Some of these doctrines arose in contract or implied contract, others as a tort.

In extending the erosion of privity of contract to professionals, the California Court of Appeals put it this way:

The general rule in California is that a professional person may be held liable to third persons who suffer damage proximately caused by the negligence of the professional person as an independent contractor in the performance of his professional duties even though there is no privity of contract between the third person and the professional person and even though the client does not complain about the quality of the professional service"¦ The reason for the rule is that the action is ex delicto, not ex contractu. Originally professional persons were exempt from liability to third persons because it was believed that they owed their duty to their clients not to third persons. In"¦ rejecting the privity of contract requirement [California] declared that whether or not liability to third persons existed involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm. Foreseeability and proximate cause now supplant the former requirement of privity of contract.1
In other words, the California court was saying that the action against the professional is due to the professional's breach of duty, not breach of contract. Eight years earlier, in 1969, the Supreme Court of Illinois unknowingly agreed, adding "[a]lthough we are aware of cases, which evidence the increasing disregard for the privity requirement through continued expansion of the class of permissible plaintiffs under the third-party beneficiary doctrine, and realize that in factual situations similar to the instant case recovery has been granted under this theory, we believe the fundamental reasoning underlying the tortious misrepresentation theory more nearly accommodates this case than the expanded third-party beneficiary doctrine."2In 1969, Illinois was recognizing that the third-party beneficiary doctrine was on the rise but in many cases, the foreseeability of the surveyor's actions, the proximate cause of the injury, and the surveyor's breach of duty owed as a professional, give rise to a tort action against the surveyor. If they can't get you as a third-party beneficiary under an implied contract, they'll come after you under tort theory. Either way, as a professional whose work affects the parties on both sides of the boundary line, you're open to liability whether you have a contract or not.

Now if you're thinking, as you should be, that all of these issues are driven by state law and that what's applicable in California and Illinois may not be applicable in your state, then you're right. For preparation of this article I did not search case law in all 50 states. However, I did find similar results in the dozen or so states I searched. In addition, at least two commentators have stated that privity of contract is dead as far as the land surveyor is concerned. "[T]he courts have eliminated the need for privity between the [l]and [s]urveyor and the party seeking relief"¦ that is, the party complaining no longer has to be the party with whom the land surveyor enjoyed a contractual relationship."3 These commentators, T.S. Madsen and Robert John Munro, also imply that the discovery rule is alive and well throughout the country and extends the surveyor's liability in perpetuity, and that's not exactly true. Again, these are state law driven issues and nothing beats knowing the laws that affect you as a professional land surveyor in your own state.

Let's now move on to our case-in-chief, a Tennessee case that in many respects is driven by Tennessee statutory law, but I think still stands as a good example of how things can go seriously wrong for the professional boundary surveyor.

Watts v. Shannon and Leggins

First of all, if you are ever in court and you and your survey are on trial, and the judge says that the results of your survey are "hair-raising,"4then you know you're in big, big trouble. This was the case for Mr. Leggins, the surveyor in this boundary dispute case. This case is a tangible example of issues that we have discussed before. Let me give you a deed description and I dare you to go perform a survey with no regard for the rights of third parties. No, actually, I double-dog dare you. When you perform a boundary survey, you're not only surveying your client's property, you are surveying the common boundary with every adjoiner. This case also illustrates the relationship between tort actions and privity of contract.

Watts brought the action under tort law for misrepresentation, breach of duty, negligence, fraud and outrageous conduct. Leggins claimed privity of contract resulting in an award to Watts in the amount of $10,691.89 for actual damages consisting of attorney's fees, survey fees and court costs. Do I really have to say whose argument was better? And do I have to add that this is on top of the costs that Shannon and Leggins incurred in their own defense? Assuming that they jointly employed one attorney, this could easily be another $10,000. If they each employed their own attorneys, this could be another $20,000 on top of the $10,691.89 award. Total cost of this survey mistake could be $30,000. I wonder how much Leggins charged for the survey?

Expert Measurers

Leggins appears to be from the "expert measurer" school of surveying: "give me a description and I'll survey it." The record from the opinion seems to indicate that this is exactly what happened. "The Trial Court said that the surveyor (Leggins) had an absolute duty to do his own surveying and not let someone else show him where the lines were."5In other words, Shannon, the owner Leggins was working for, gave Leggins a description of his property and said, "Go survey it." Leggins, ostensibly, relied exclusively on a tax map and the description of the property as provided by Shannon with no other research. No research of adjoining deeds, no regard for occupation, no regard for superior rights, and no regard for the rights of third parties.

Watts hired his own surveyor who, of course, came to a different conclusion than Leggins and testified at trial. "The Court credited plaintiff's surveyor's survey of the property, and rejected Leggins' survey. In establishing plaintiff's boundary line as found by plaintiff's surveyor, the court said that plaintiffs had owned the property in dispute for 40 years, possessed it, cut timber on it, etc. and had superior title to the property."6

All Leggins had to do was what every boundary surveyor in America is obligated to do (whether you want to believe this or not): survey your client's description. But, you must look at the other incidences of title. That is, study your client's deed, examine adjoining deeds, observe and locate evidence of occupation, find evidence of previous surveys, talk to property owners, weigh all of the evidence, go back and dig deeper if you need to, and make a determination of the true boundary line between two coterminous landowners based on a preponderance of the evidence. Or, at the very least, alert your client to conflicts that cast shadows on your client's claim of title. Deeds and descriptions in deeds are only evidence of title, not proof of title. Occupational rights that have ripened into legal rights and senior rights are both superior to written conveyances.

No Duty to the Community

Instead, Leggins "testified that he felt that he owed no duty to the community or other property owners, but only owed a duty to his client to survey [his client's deed] and did not have to go behind his client's deed so long as he was "˜comfortable' with it."7How common is Leggins' opinion in the surveying profession today? Let me reverse the question. How prevalent is the opinion that it is the surveyor's role to make quasi-judicial boundary determinations between two coterminous landowners (along every boundary line) based on the law, the available evidence, and facts of each situation? Going back to Madsen and Munro,8they state that this is a foreign concept to the modern surveyor "as propounded by the latter-day sages of our profession who exhort surveyors to "˜stake the deed line only and be only a reporter of the facts and should a conflict arise, have your client contact a lawyer.'"9Let me add a bit of my own sage advice: go ahead and contact your lawyer as well.

Stay Out of Court

The best thing, from my perspective, that came out of this case was that the parties were not subject to the quasi-judicial boundary determination of the expert measurer. The sad reality is that there are thousands of other victims who are and never get their day in court to overrule bad decisions made by surveyors who ignore the law and apply arbitrary rules of surveying in making their determinations. Our case-in-chief clearly illustrates that the surveyor's immunity from prosecution is gone, and that the instances of land surveyors being hauled into court over bad decisions will only rise. I'll end with this thought: when you go to court in a boundary dispute case, the issue will not be how well you staked out a deed; the issue will be: Where is the true boundary between the two coterminous landowners?

Neither the author nor POB intends 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 of your jurisdiction.