Traversing the Law - When an expert is no longer an expert.
This is why we review these cases in this column. The issues in this case are issues the practicing surveyor encounters every day. Rapides v. Grant is our classic boundary dispute case, the twist being it is a dispute between two political subdivisions.
The Basic FactsRapides Parish and Grant Parish are two adjoining political subdivisions in Louisiana. Grant Parish was formed out of Rapides and two other parishes in the late 1860s. The common boundary, an approximately 27-mile-long line between the two parishes, was never surveyed on the ground but was described by the Louisiana legislature on March 4, 1869, by Act 82, in pertinent part as follows:
Commencing at a point on Red river where the Daro2 empties into said river, and thence running east to the point where Little river empties into Catahoula lake….
A dispute over the location of this boundary arose sometime in 1997. Why the dispute arose at this time and not some time in the past is not quite clear. What is clear is that potentially millions of dollars in tax revenue are at stake depending on the location of the boundary.
Enter the surveyors: Rapides Parish hired Willis Engineering Inc. of Alexandria, La., and Grant Parish hired Pan American Engineers Inc., also of Alexandria. Pan American appears to have been Grant Parish’s regular consulting engineer. Frank Willis was the lone surveyor representing Rapides Parish and Willis Engineering.
Enter the disputed boundaries: It becomes clear from reading the case that three possible locations of the boundary (among others) rise to the top. The first is what was referred to as the “Line of Acceptance.” This was a line that had been depicted on a USGS quad map and had been agreed to and relied upon by both parishes since about 1946, and had not come into dispute until 1997. The second line is what was referred to as the “Bringhurst Line.” This was a line depicted on a map prepared by Captain R.W. Bringhurst, who was the Rapides Parish surveyor from some time after the Civil War into the 1900s. His undated map was proven to have been published between 1871 and 1875. The third line was the line put forward by Pan American, which became known in the court record as the 1838 GLO line. Pan American purported to have conducted a retracement of the GLO surveys (the sections and section lines) that contained the parish boundary and the only monuments called for in the description: Where the Daro empties into the Red River and where Little River empties into Catahoula Lake.
It’s important to keep in mind that the parish boundary line had never been “run on the ground.” Bringhurst’s map was probably supported by actual surveying activity, but this could not be proven. The GLO map was definitely supported by actual field survey but was conducted 30 years before the parish boundary line was even created. The first known attempts to “survey” the common boundary line were being made by Willis and Pan American on behalf of the two parishes.
The details of the surveys as contained in the court records and other information I have obtained are fascinating, complex, and yet, as with so many other survey problems we face, quite simple in the final analysis. The resolution of the location of the boundary finally boiled down to the two questions asked and answered by every court in this country when faced with a boundary dispute: (1) What is the boundary and (2) Where is the boundary?
As with all such disputes, the first source consulted is the written document of conveyance (usually the deed), in this case the legislative act that created the parish boundary and the description of the boundary line. The initial step is to find the intent of the grantor (in this case the Louisiana legislature). If intent can’t be found in the written document, as when there is an ambiguity, resort will be made to circumstances surrounding the transaction and the subsequent acts of the parties. In addition, extrinsic and collateral evidence will be considered along with witness testimony. The same pattern is followed by the courts all of the time. It doesn’t matter if it is a dispute between two neighbors or two political subdivisions. A boundary dispute is a boundary dispute and all of the elements that we have seen before in these types of cases are in play.
Two Vastly Different ApproachesThe determination of the location of the boundary as written boils down to the determination of “a point on Red river where the Daro empties into said river, and thence running east to the point where Little river empties into Catahoula lake.” In testimony heard at trial and reviewed on appeal, it is where these natural monuments existed in 1869, when the parish boundary was created, not where they exist today. Such political boundaries are fixed and not subject to movement as are other water boundaries. This is not a universal rule. Many political boundaries are subject to movement along with the water boundary that defines them. These are state specific situations that cannot be governed by general assumptions. However, for the purposes of this specific case, it is safe for us to accept the rule since it was tried in a court of competent jurisdiction.
Willis set out to do exactly what the description said: find the natural monuments that define the terminal points of the boundary as they existed in 1869. The court record is replete with description of Willis’ methodology in conducting his survey; his efforts in determining the western terminus, being the location bayou Daro and Red River in 1869; as well as his efforts to determine the eastern terminus, where Little River empties into Catahoula Lake. He gave extensive testimony about his research efforts, his field investigation, and his methodology in conducting his survey, which supported his reasoning and conclusions.
Willis had found the Bringhurst map during his research of government archives, a map that had been put away and long forgotten. He surveyed both the “Bringhurst Line” and the “Line of Acceptance” on the ground so that the court could see the basis for each. He testified that his own survey of the parish boundary closely coincided with the Bringhurst map. He also testified that the 1838 GLO plat relied upon by neighboring Grant Parish contained many errors with respect to the central issue in the determination of the location of the boundary--the natural monuments called for in the description.
Mr. Willis determined that “the Bringhurst map shows the most authoritative, contemporaneous, accurate and locally accepted definition of the point where the Little River emptied into Catahoula Lake in 1869 when Grant Parish was created.” The Bringhurst map depicted the Little River delta extending out into Catahoula Lake when the lake is at a stage below the ordinary high water line. The 1838 GLO Plat relied upon by Grant Parish was also rendered during a low-water survey. By comparing the Bringhurst map, which by all indications was made around 1869, with the 1838 GLO Plat relied upon by Grant Parish, and with an 1884 GLO Map by a surveyor known to Mr. Willis to be very reputable, Mr. Willis discovered many inaccuracies in the 1838 GLO survey.
For example, Mr. Willis determined that the true shoreline of Catahoula Lake was not far out on the low water delta as shown in the 1838 GLO Plat, and that the Little River was not in the location depicted in the 1838 GLO Plat. Subsequently Mr. Willis proved that the Little River, unlike the Red River in the western terminus, had not moved over time. Mr. Willis found that the Bringhurst map actually depicted two outlets of the Little River emptying into Catahoula Lake during low water levels, indicating that Bringhurst actually walked on the low water delta and personally observed the first outlet into Catahoula Lake. While the second outlet was not shown on the 1838 GLO Plat, Mr. Willis found remnant evidence of the outlet on a 1994 Quadrangle Map of Holloway, Louisiana, thereby confirming his assessment of the Bringhurst Map and the unreliability of the 1838 GLO Plat. Mr. Willis testified at trial that the maps relied upon by Grant Parish do not accurately depict the proper location of the [boundary]….3
While Willis is testifying in court, giving instruction on surveying methodology, and butchering the 1838 GLO plat, where are the Grant Parish surveyors? Nowhere to be found. They couldn’t testify in court because--well--they weren’t experts.
The Daubert TestAs I have discussed on previous occasions, the standard for testing the reliability of expert witness testimony is set out in Daubert v. Merrell Dow Pharmaceuticals4; this standard is followed by many, if not the vast majority, of the states. Louisiana is such a state. Following the ruling in Daubert, the judge plays a “gatekeeper” role in allowing or disallowing expert testimony. If an expert’s proffered testimony is deemed to be unreliable or doubtful in the opinion of the judge--no matter the apparent qualifications of the expert--that testimony will not be allowed in court. That’s what happened to Pan American and its surveyors.
[I]n the present case, where the survey is offered to show where one body of water met another body of water in 1869, and the proper methodology for such a survey was not followed, and the survey is not what it purports to be, the trial court did not abuse its discretion in excluding that evidence as unreliable based upon the methodology employed by Grant Parish’s surveyors.
Nor can we give credence to the argument by Grant Parish that the survey, which failed to meet the minimum standards requirements for surveys, should have been admitted for the limited purpose of proving legislative intent. We fail to see how a faulty drawing, determined to be misleading and misrepresentative of where major markers are on the ground, can be used to show the location of the markers that the legislature was pointing to in 1869…. Moreover, the faulty new survey was purportedly based upon an ancient survey created over thirty-one years before the Act of 1869 was drafted, and the trial court found no evidence that the underlying survey was used by the legislature or referenced or connected in any manner to the Act of 1869.5
A “faulty” and “unreliable” survey determined to be “misleading and misrepresentative” that “failed to meet the minimum standards requirements for surveys” simply cannot be the basis for expert testimony. The judge in this case determined that those who prepared such a survey were not experts and were not qualified as such to testify in court.
Following in the FootstepsWe could go on and on with the details of the trial and the surveys, but time and space are fleeting. Let’s consider a basic and straightforward rule of surveying: “following in the footsteps.” This seemingly simple concept, time and time again, is either not understood by the surveyor or applied in an arbitrary fashion. In either case, the surveyor has converted it from a legitimate rule of surveying to a capricious or arbitrary rule of surveying. When you purport to have “followed in the footsteps” but in reality you haven’t, you render your survey and any court testimony about your survey as bogus or false. Under the right set of circumstances, you can commit fraud.6
A pre-trial hearing was conducted on the issue of whether of not to admit the Pan American survey into evidence at trial and/or to allow the Pan American surveyors to testify. Taking special note of that hearing, the Appellate Court, among many other observations, made the following:
[W]hen asked whether they had meandered courses and followed the footsteps on the ground of the original GLO surveyor, which methodology is required in a “retracement” survey, the Grant Parish surveyors admitted that they had not…. No attempts were made by Grant Parish to rehabilitate the damaging testimony regarding the mistakes marked on the survey in open court, or to address the specifics of the methodology used in preparing the survey, or to refute the negative evidence adduced by Rapides Parish. Following the testimony of the three PAE surveyors and their crew chief in the field, expert testimony at the hearing indicated that the PAE survey was not what it purported to be, “a retracement survey,” because proper methodology was not followed in rendering the survey. More specifically, the PAE surveyors entitled their survey a Retracement Survey, and their Proces Verbal7 stated that, “The meandered courses and distances were tied to section corners and therefore could be reasonably re-established utilizing survey retracement techniques to in effect follow the footsteps of the original surveyor. By retracing the meander lines, we could re-establish the location where the Little River emptied into Catahoula Lake.” However, the testimony of the surveyors demonstrated that the meander lines were not retraced on the ground by following in the footsteps of the original surveyor, but rather were mathematically calculated in an office using computers.8
Which boundary was held by the court? The “Line of Acceptance” had been agreed upon by both parishes dating back to 1946 and had been undisputed until 1997. As with almost any other boundary, two parties can agree as to what their common boundary is and where it is located. Those are the only two questions that need to be answered in any boundary dispute.
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.
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.