In February, we looked at the boundary surveyor's liability with regard to boundary determinations. Although that article seemed to be chock-full of bad news for the boundary surveyor, especially with regard to third-party liability for erroneous boundary decisions,I did give a hint that this time I may have some good news for you. The good news may depend on which state you live in.

As with all such issues that affect the boundary surveyor, state specific law will control. As far as the boundary surveyor's liability goes, these are contract and tort issues driven by state law and limited, when they are limited, by state statutes of limitations and repose. For the preparation of this article I did not conduct a comprehensive survey of the law in all 50 states. Nevertheless, the cases I did look at seem to indicate that the states are all over the map with this one. Some states have no limitations that apply to boundary surveyors. Other states have statutes of limitations of varying lengths of time or a statute of limitations with a so-called "discovery rule" that may operate to toll the running of the statute until the "discovery" of the mistake that precipitated the injury. And still other states have enacted statutes of repose that set an outer limit within which an injured party must bring an action or forever be barred.

Statutes of Limitations

Statutes of limitations are just what the name implies: legislatively enacted limitations on certain causes of action. I would venture to guess that every state in the union has statutes that limit certain actions. I would further venture a guess that almost every state has a limitations period that applies to professional services providers. The kicker is whether the statute applies to the land surveyor. In other words, is land surveying one of the included professions?

Nebraska law is illustrative of the problem. As with all enacted law, somebody proposes it, a legislative body approves it and the courts interpret it. Nebraska has a statute of limitations that applies to professional service providers, Nebraska Revised Statutes § 25-222 (1989). The statute and its application to land surveyors is discussed at some length in the case of Lawyers Title Ins. Co. v. Hoffman.1 "Any action to recover damages based on alleged professional negligence or upon alleged breach"¦ shall be commenced within two years next after the alleged act or omission"¦ if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery"¦ in no event may any action be commenced to recover damages for professional negligence or breach"¦ more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action."

This statute has it all. A two-year statute of limitations with a tolling of the statute until "discovery," but in no event may an action be brought after 10 years. The only problem is that it doesn't apply to land surveyors. "The Legislature has not specifically stated which occupations are governed by § 25-222. We recognized that the term "˜profession' originally contemplated only theology, law and medicine but that other vocations were later designated as a profession. We have applied the professional period of limitations contained in § 25-222 to architects and engineers, to accountants, to medical technicians, and to those giving investment advice"¦. Defining the class of persons who will receive the benefit of a shortened statute of limitations may require the court to engage in a form of classification, which more properly should be done by the Legislature. On the limited facts articulated by this pleading, we decline to even consider whether surveyors render professional services under § 25-222."2

The Discovery Rule

The research that I pulled together for this article, which is by no means exhaustive, seems to indicate that the Nebraska view is a minority opinion on the role of the boundary surveyor and the services that they provide. The majority of cases that I reviewed place the surveyor under the statute of limitations for professional service providers. The limitations periods vary by state, but the courts recognize that if there is a problem with the professional services offered by the land surveyor it may not be discovered for some time to come. This is commonly referred to as the discovery rule.

The basic concept behind the discovery rule as it would be applied to the land surveyor is that an applicable statute of limitations will be tolled (will not begin to accrue) until the discovery of the error in the survey. The problem for the land surveyor is that the discovery of a survey error may not occur for years or even decades, thereby potentially tolling the statute until that time. So a two-year statute of limitations could possibly not begin to run until the error was discovered 20 years later. Fortunately, most discovery rules state that they will toll the statute until the error is discovered or should have been discovered. In addition, many states, as we saw in the Nebraska legislation (although not applicable to surveyors), have included an outside ultimate limit within which the aggrieved party must come forward or the claim will be barred (a statute of repose).

One case that discussed the discovery rule in length was the Utah case of Klinger v. Kightly.3 This case is instructive not only because of its lengthy discussion of the discovery rule, but because the court was being asked for the first time to fashion a rule that would apply to the discovery of a land surveying problem. In order to come to a conclusion in the case, the Utah Supreme Court did what other state courts do in such situations; it searched the law in other states. In so doing, the court made at least one interesting observation. "Observing how the discovery rule is applied nationally to the issue of surveyor negligence or breach of contract does not indicate any dispositive national trend. A number of jurisdictions have applied the discovery rule to surveyor negligence, while others have rejected it."

In fashioning its application of the discovery rule and applying it to the survey problem, the Klinger court set out a three-part test: (1) the legislature must have adopted the discovery rule by statute; (2) there must be proof of concealment or misleading by the defendant (surveyor); and (3) application of the statute of limitation rule would be irrational or unjust. This Klinger three-part test has since been cited by other state courts in determining the application of the discovery rule to the survey problem.

As the Klinger court pointed out, however, there is no national trend when it comes to the application of the discovery rule. One thing I did not find was a discovery rule that, as some commentators have suggested, extends the surveyor's liability ad infinitum. Quite the contrary, every case I looked at that discussed the issue recognized, as did the Klinger court, the need to balance the plaintiff's right to have a remedy with the professional's right to have finality. These cases also recognize that, for the repose of society, there must come a time when the threat of a lawsuit over negligent actions will end.

Statute of Repose

"The "˜discovery rule' has been used by courts and legislatures to avoid the harsh result that often allows a statute of limitations to run when some damage is incurred, even if the plaintiff has not yet discovered that he has suffered damages. Many statutes of limitations that incorporate a discovery rule also include an outer time limit, called a statute of repose. Indeed,Minn. Stat. § 541.052(1998) is such a statute, as it incorporates elements of a discovery rule, by requiring actions to be brought within two years of discovery of a surveying error, with a statute of repose, by limiting any action to 10 or 12 years after the date of the survey."4

We'll end our discussion with a Colorado case that is instructive not only for all of the issues already discussed, but for another issue that I have stressed from time to time. There is no better protection for the practicing land surveyor than knowing the laws that apply to your everyday practice and following them. Colorado law provides for a statute of limitations on land surveying services, with a discovery period and a statute of repose.

The statute and its interpretation were provided by Division One of the Colorado Court of Appeals in Cornforth v. Larsen Surveying.5 The statute states, in relevant part, that "all actions against any land surveyor brought to recover damages resulting from any alleged negligent or defective land survey shall be brought within the time provided in section 13-80-101 after the person bringing the action either discovered or in the exercise of reasonable diligence and concern should have discovered the negligence or defect which gave rise to such action, and not thereafter, but in no case shall such an action be brought more than ten years after the completion of the survey upon which such action is based."

So far so good, but the statute goes on to say that in order for the statute to be effective, a notice must be affixed to the map of survey, as follows:

NOTICE: According to Colorado law, you must commence any legal action based upon any defect in this survey within three years after you first discover such defect. In no event may any action based upon any defect in this survey be commenced more than ten years from the date of the certification shown hereon. [Emphasis in the original.]
In an action brought by a plaintiff more than 10 years after the issuance of the survey, Larsen claimed protection under the statute of repose. But Larsen didn't have the required notice on his survey and lost at both the trial level and on appeal.

It May Not Last Forever

Even though the application of statutes of limitations is state specific as it applies to the boundary surveyor, there is still a common thread that runs through all of the law across all 50 states. Legislative bodies and the courts hate antiquated claims that often have in them more injustice than justice.

"As a matter of public policy and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into"¦ It is necessary for the peace and security of society that there should be an end of litigation, and it is inequitable to allow those who have slept upon their rights for a period of 20 years [to come forward with a claim"¦ after 20 years] the memory of transactions has faded and parties and witnesses passed away"¦"6

In the final analysis, no matter what state you live in, if equity prevails you may not have to carry that survey error to your grave after all. And for those of you who live in states that do not recognize the land surveyor as a professional, you should be working to change that situation. Go forth and measure redundantly.