Traversing the Law
This month we are going to take a slight detour from the ordinary fare to provide a point of clarification requested by a reader.
The reader’s question has several different aspects to it but it all boils down to the same issue, and that is whether I am advocating the position that the land surveyor should recognize boundaries that have, as he noted, “transitioned from what they were originally, into a title boundary.”
To answer the question, I am working under the assumption that the reader is referring to what the deed of conveyance describes, and that the transition into “title boundary” means the boundary as physically occupied.
The Adjudication of BoundariesThis issue deals with the subject of the land surveyor adjudicating boundaries. It is without question that the land surveyor has no legal authority to adjudicate boundaries between two coterminous landowners. It is equally unquestionable that there is no legal authority against the land surveyor doing so. If we step back and consider the reality of the situation, we find that surveyors, wittingly or unwittingly, adjudicate boundaries on a daily basis. My own experience has shown me that the general public thinks that this is exactly what surveyors are doing. In my study of the law and my interactions in the legal community, judges and attorneys, by and large, think that surveyors are adjudicating boundaries. Our dirty little secret is that we seem to be the only ones who don’t think that is what we ought to be doing.
If we go back to the quote from Williams and Onsrud1 in my October 2006 column, this is exactly what they think land surveyors are doing. Who are Williams and Onsrud? Mitchell G. Williams is a practicing attorney in New York and Harlan Onsrud is a professor in the Department of Spatial Information Science and Engineering at the University of Maine. I first found them quoted in Evidence and Procedures2 and later found a copy of their treatise. According to the reference in Evidence and Procedures, their paper was reprinted by the American Bar Association as late as 2000. It is crystal clear from reading their paper that Williams and Onsrud are of the opinion that land surveyors are actually trying to adjudicate boundary locations.
The surveyor is guided by legal principles in his evaluation of the evidence for a boundary line location…. The resolution of the conflicts between written and unwritten rights is one of the most difficult problems for both surveyors and lawyers…. But even within a deed or other written conveyance there frequently are conflicting terms which must be resolved [emphasis added].3Williams and Onsrud also describe five basic reasons for having property surveyed. Not found among the reasons is idle curiosity over the location of deed lines irrespective of all other evidence of boundaries. No--three out of the five deal with the surveyor’s role in interpreting the written record and physical evidence, resolving the conflicts between the written instrument of conveyance and the reality on the ground, weighing all of the evidence, and establishing (or recognizing) the true boundary between two coterminous landowners. “Merely locating the lines described in a deed on the ground is not adequate for establishing the physical limits of a property owner’s interests.”4
My biggest heartburn over the issue of land surveyors adjudicating boundaries, besides the fact that we actually do adjudicate boundaries whether we want to admit the reality or not, is that many property owners never get their “day in court” in the land surveyor’s courtroom. They never get to testify as to the location of boundaries, all of the evidence isn’t considered by the land surveyor, and a bad ruling is made, usually weighing heavily towards measurements and the written description. There are three possible outcomes from the land surveyor’s ruling on the boundary issue: the results will be accepted, ignored or litigated in a court of competent jurisdiction.
It’s a fact that the vast majority of civil disputes never go to trial. Although passions may run high and principles may outweigh logic, the typical boundary dispute case between two coterminous private citizen landowners does not generate a great interest in the legal community due to the relatively small war chests involved.
While it may be true that the land surveyor has no legal authority to adjudicate boundaries and the surveyor’s decisions are subject to judicial review (and real adjudication in a court of competent jurisdiction), in the vast majority of cases they never will be. So that leads me to a question of my own. If the vast majority of surveyor decisions will stand as the final adjudication between two coterminous landowners, why shouldn’t it be a good decision based on the evidence in the case, a fair evaluation of that evidence and the law?
Surveyors occasionally disagree on the proper location of a boundary line: not necessarily because one surveyor measures better than the other but more commonly because each surveyor has weighed the evidence differently and has formed different opinions. Just as two lawyers may draw different conclusions from the same line of cases, surveyors may disagree about the appropriate location for a boundary. Being a professional opinion, a survey is subject to review by a court in the event that a boundary dispute reaches litigation. Because a survey is primarily a professional opinion, the attorney should remember that a survey and supporting documentation provided by one professional surveyor may be far superior or far inferior to that provided by another.5
We Aren't Lawyers and We Aren't JudgesIt is true that most land surveyors are neither lawyers nor judges. However, this doesn’t mean that the land surveyor cannot know more about the law, especially property law as it applies to land boundaries, than the average lawyer or judge. As a matter of fact, I advocate the position that the land surveyor practicing boundary surveying should know more about the law within his area of expertise than any lawyer or judge he will ever encounter. The law is a very big subject and there are very few attorneys or judges who specialize in land boundary issues. In contrast, every surveyor who practices land boundary surveying is a specialist. And this is a very distinct area of the law that can be understood very well.
All citizens are ascribed with knowledge of the law--more so the professional. Ignorance of the law will not be an excuse when the boundary dispute is adjudicated in a court of competent jurisdiction. Under the right circumstances, this ignorance of the law on the part of the professional land surveyor could give rise to charges of incompetence, negligence or any number of other torts, some carrying punitive damages. Many surveyors seem to find solace in the idea that their map of survey meets the minimum standards or the detail requirements for surveys as promulgated by their state, and yet have survey results that are--well--wrong. Often these wrong results are based on an overreliance on measurements or legal descriptions in deeds to the exclusion of all other evidence of boundaries.
What's Wrong With Being Right?Let me ask another question: what’s wrong with being right? If we all know our decisions are subject to judicial review, what’s wrong with making the same decision the judge will make? Consider this: your map of survey meets all of the requirements of the state standards (or any other standard that may be applicable), and you gathered all of the evidence in the case that any reasonably prudent surveyor in like or similar circumstances would have gathered (including but not limited to testimony evidence, measurement evidence, the written evidence as found in the deed of conveyance and as found in the deeds of adjoiners). Then you weighed the evidence gathered against the civil standard that will be used in court. By the preponderance of the evidence, you applied your state’s property law as has been handed down through the courts and legislature, and you made a decision as to the location of the true boundary line between the coterminous landowners. You win in court. What’s the downside?
Let’s change the scenario. You’re given a deed by your client and asked to go “stake out my deed.” Relying almost exclusively on your client’s deed you go to the field and, weighing heavily on your measurements, you stake out his deed. Your map of survey meets all of the applicable requirements of the state standards (or whatever other standard you are using), but you ignored other evidence of the true boundaries, i.e. testimony, occupation, repose, etc.6 Since you ignored this other evidence, you have no evidence to weigh against the standard the court will use in reviewing your survey results, and you applied no law to your decision. Your plan is to hide behind your client’s deed once you go to court and claim that you owe no duty to anyone but your client. The results of your survey are found to be in error when you go to court. I don’t think there is any question given the choice between these two scenarios--winning in court is the better option.
Professional AdjudicationInvariably, the comment that comes back to me, especially in live seminars, is “but all my client wants me to do is stake his deed.” The answer to this is simple: then tell him that’s what you’re doing--you are simply staking a deed. Don’t call your survey a “boundary survey.” Call it what it is: a “deed stakeout.”
The analogy is easy to recognize in other professions. In the legal profession, for example, many clients want the attorney to prepare a “simple will” or a “simple divorce.” Every attorney in the country knows that there is no such thing. The issues involved in both cases are not simple and the attorneys don’t attempt to make them so. If they do, they set themselves up for malpractice suits. The lawsuit on the “simple will,” for example, won’t come from the dead man. It will come from his estate or third parties whose rights were ignored in the preparation of the “simple will.” Are we professionals or simply technicians doing what we are told?
It is abundantly clear from my study of the law that the land surveyor has no legal authority to adjudicate boundaries. It is equally clear that there is no prohibition against it. The reality is that the general public and the legal profession, by and large, think that this is exactly what the land surveyor is doing, adjudicating boundaries. “If the surveyor’s evaluation of the evidence…is eventually upheld in a court of law, it is because the surveyor has arrived at a comprehensive and well-reasoned answer rather than because he has arrived at the theoretically correct answer. Again, there are no ‘true’ answers waiting to be discovered; only well-reasoned answers.”7
Go forth and measure redundantly.
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 in your jurisdiction.