This article to intended to be a culmination of the last year's articles on boundary surveys, private property rights, and the surveyor's liabilities and responsibilities with regard to both.

Since the case law has been previously discussed in some detail, this article will make very little citation to those cases. Instead, I will attempt to put forward the general principals articulated by the courts to lay out a strategy for conducting a boundary survey that will win in court. In order for this effort to have any meaning to you, I'm going to ask you to take off your surveyor's hat for just a few minutes and pretend that you are judge and jury in a boundary dispute. Each side will bring their attorneys and surveyors to court, and they will have two different interpretations of the same boundary. The ultimate decision to be made is: Which one is correct?

Initial Considerations

Why should I be concerned with winning in court? The answer to this question should be painfully obvious. If it's not, I'll just say that in this litigious society, losing isn't an option. You may have performed your survey meeting every applicable minimum survey requirement and lose in court because your determination as to the location of the true boundary between two coterminous landowners was incorrect. Why was it held to be incorrect? Because the other side presented more evidence as to the true boundary line than your side did. In other words, in civil litigation, the preponderance of the evidence wins in court. The other side gathered more and better evidence than you did and the judge ruled in their favor. What's your liability? Depending on the circumstances, maybe nothing, maybe everything. Were you negligent in your retracement efforts or in your evidence-gathering activities? Did you commit fraud? Or did you simply have errors and omissions? The obvious first step in any boundary determination will be to gather the necessary evidence to make a competent determination as to the location of the boundary lines in question.

Records research-and how much is enough-is an ongoing battle and topic of debate in the surveying community, and a topic that I have previously covered. I do not intend to retrace all of those previous efforts. I'll simply say that if the other side gathers more and better evidence as to the ultimate question, you lose. In some very simple scenarios, possibly all that is needed is a copy of the recorded plat. In other circumstances you may need significant research in order to make a winning determination. In all circumstances, the final standard will be what a prudent surveyor in similar circumstances would have done. Anything less will be negligence.

Deeds and Deed Interpretation

The written record of title will be the deed. It's important to keep in mind that the deed isn't proof of title, but simply evidence of title. The deed you're working with could be completely bogus, it may not contain a record of previous conveyances, the description may not contain the intent of the parties, and there may be other and better evidence as to the true title lines or the intent of the parties.

Once the deed is in hand, the surveyor must closely examine it just as the court would. The deed is the written manifestation of the intent of the original parties to the transaction. It must not be lightly cast aside. The deed will reveal valuable information to the surveyor including, but not limited to, identification of the parties to the transaction, the interests that were conveyed, the description of the property, and other indications of intent (e.g., called for monuments). The conveyance could have been less than a fee simple interest in the property. Some common examples would be "less mineral rights," a conveyance of "a one-half interest" in the property, or a conveyance with a reservation for an easement across the property. Another consideration is the type of deed being used-is it a warranty deed or simply a quitclaim deed? These situations could have an impact on the outcome of the survey, or even nullify the need to perform a survey.

It has often been said that the intent of the grantor and the grantee is king when it comes to the transfer of property, with a couple of exceptions. The first and most obvious is that the grantor cannot grant more than he owns or has a right to grant. Similarly, intent is defeated by unwritten conveyances (e.g., adverse possession, prescriptive rights, agreement, acquiescence, estoppel, etc.), and by senior conveyances. Again, the grantor can't convey what he doesn't own. If the property has already been conveyed (senior rights), it can't be conveyed again. Nevertheless, in the interpretation of deeds, it is the intent of the grantor and grantee, but especially the grantor, that the courts seek. Once found, this intent will prevail over all other considerations in the conveyance.

"The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required."1But if the intent can't be gathered from the deed, as when there is a latent ambiguity, then the courts are allowed to look outside the instrument to ascertain the true intent of the grant. "Where a deed is ambiguous, the subsequent acts of the parties are entitled to great weight in determining what they intended."2

Ambiguity

Ambiguity is one of the essential "keys" to a court-winning boundary determination. The primary ambiguity that we need to concern ourselves with is the ambiguity created when two surveyors, working with the same deed, come up with two different interpretations as to the location of the boundary lines. When does this happen? Almost every time two surveyors go to court. Generally speaking, there wouldn't be a controversy unless there were at least two different interpretations of the deed.

As I said at the beginning of this article, take off your surveyor's hat, forget everything you know (or think you know) about boundary surveying, and be the judge and jury. A plaintiff drags a defendant into court over a boundary dispute. And in many cases, the defendant has filed counter claims whereby he is, essentially, dragging the plaintiff in as well. Suffice to say, they come into court with their hands wrapped tightly around each other's necks. The interpretation of a deed is the issue, or perhaps both deeds. (Perhaps now we should go back and discuss research a little more"¦ never mind, moving on). Each party has hired his or her own attorney and surveyor.

What do we have?

We have an ambiguity in one or both of the deeds. You're the judge and the jury; what do you do next? The simple answer is you throw the deed away and start looking at the surrounding circumstances at the time of the conveyance, and look at the subsequent acts of the parties to determine where the true boundary line is located.

Now let's say, for argument's sake, that the simple solution was a senior conveyance. One surveyor researched the records of both parties, found the problem, and made a determination (all other things being equal) that the senior conveyance trumps the junior. There is no overlap. The second surveyor simply staked the deed of his client. Who wins? After you've answered that question-silently, to yourself-answer this: why would you want to be the deed staker? What liability have you incurred?

Let's say your client went to the mat on this one and spent $120,000 prosecuting the case based on your survey. The other side brought in three experts to say that you fell below the standard of what any ordinarily prudent surveyor would do. Or that you based your survey on some arbitrary rule of surveying-say-you broke the section down based on locally accepted corners and drove new monuments into the ground in defiance of original monuments and long-held occupation. At this point you are probably guilty of negligence, errors, omissions, fraud or maybe even trespass.

What Will the Courts Do?

This is our ultimate question. The first consideration of the courts will be to look at the instrument of conveyance and search the four corners of the deed for the intent of the parties. If the intent of the parties can be gathered from the four corners of the conveying instrument and there are no ambiguities, the courts will not leave the deed. The courts will be reluctant to leave the deed if there is any way the deed can be interpreted, standing on its own. Even testimony of the original parties will not be heard to alter the intent as conveyed in the deed, absent fraud, ambiguities or mutual mistake.

Since the courts will be reluctant to leave the deed, the boundary surveyor should be reluctant to leave the deed as well. Every effort must be made to interpret the intent of the parties from the writings in the deed of conveyance. Primarily, the surveyor is concerned with the description of the property, however, this can't be the only concern. As discussed, a quitclaim deed, for example, could describe property that the client can't own and possibly shouldn't be included in your survey. And just because a legal description does not close doesn't mean the surveyor should cast it aside. Those things that are most certain are given the greatest amount or weight and those things that are less certain are given lesser weight.

If there are ambiguities in the written conveyance, the courts are free to leave the writing and look to the subsequent acts of the parties for intent. If the courts are free to leave the writing, so is the land surveyor. The very definition of an adequate legal description is a legal description that can be placed on the ground by a land surveyor. An ambiguity exists when two surveyors come up with two different interpretations of the same description. When this happens, the court will abandon the deed and take testimony from locals who have knowledge about the boundary lines in question and will look to the subsequent acts of the parties for intent. By the same token, if the surveyor knows that there is a latent ambiguity as a result of his surveying activity, the surveyor should be talking to the locals about the boundary lines in question and looking at the subsequent acts of the parties. These are all of the things that are normally located during the course of the survey (monuments, fences, improvements, occupation, other evidence of the true boundary lines, etc.).

The court will weigh all of this evidence, and the preponderance of the evidence will point to the true boundary line or lines. The surveyor who blindly ignores this evidence will come up short, will lose in court, and may be subject to additional litigation for negligence or any number of other actions.

Future Insurance

If there is an ambiguity in the written instrument, and for our purposes we are generally talking about the legal description, then the writing is flawed. Once the surveyor has made a determination of the true location of the property line between the coterminous landowners, the legal description should be rewritten to conform to the survey results. If a new conveyance is taking place contemporaneously with the survey, this new description should be employed in the new conveyance, thereby putting it on the public record. If not, the surveyor should seek other means of getting the new description on the record. Corrective deeds and filing the map of survey are options in some states. If nothing else, make sure the client receives the new description and survey. Be sure the description references the survey, previous instruments of conveyances (if appropriate), monuments found and set, bounds as appropriate, and calls for adjoiners, as appropriate. In the field make sure that you have set monuments for the next surveyor to find. Leave big footsteps behind for others to follow. This will almost always ensure that your survey is followed in the future as opposed to another path that will only lead to further ambiguity and litigation.

If you want to win in court, make sure that every surveyor that follows your survey utilizes your legal description and finds your monuments in the ground. What other recourse will the following surveyor have than to follow in your footsteps, especially if the ambiguities have been removed from the conveying instrument and monuments in the ground match the writing?

Are We Technicians or Professionals?

If we are simply a group of technicians, then we don't need to worry about winning in court. When we go to court we can testify that we are simply technicians and our only duty is to stake out our client's deed-like the mechanic who makes sure the engine runs but claims no responsibility for ensuring that the brakes work or that the car is road-worthy. If we're just technicians, what duty do we owe to society? This is a difference between a trade and a profession. Professionals owe a duty to society due to their advanced training and skill. Society needs professionals who are experts in their respective fields. Society needs land surveyors who can make boundary determinations that will win in court, not simply meet a minimum standard. If not the surveyor, then who?