As I read through cases involving surveyors, I see common themes repeated over and over again that result in mistakes on the part of the surveyor. Some of these mistakes are systemic and a result of the way we go about the process of surveying.




With the tools currently available to us for performing measurements, this part of the equation rarely comes under fire in the courtroom (at least in the most recent cases). Yet it is the measuring function that many boundary surveyors seem to focus on the most. It’s the other evidence and the way we gather it that leads to the mistakes that land the surveyor in court and, once in court, ultimately prove the surveyor wrong.

Other mistakes come from a basic misunderstanding of why we are surveying property to begin with. All too often the surveyor is surveying the property for one purpose and the client or landowner wants the survey for another purpose. Sometimes this is simple miscommunication. Other times it’s confusion over the surveyor’s role and duty vis-à-vis boundaries. The surveyor goes into court firmly grounded in his or her beliefs as to duty and purpose, only to find out these beliefs were misplaced. Often, even though proven wrong in court, the surveyor somehow feels that the survey was right. How much more confused can one be?

A final mistake that we will consider stems from the surveyor’s own idea of what a survey is. Many surveyors understand that the survey (and the resulting map or report) is simply the surveyor’s opinion as to what the boundaries are and where they are located. Other surveyors, maybe the majority, on the one hand will freely confess that their survey carries no judicial weight, and on the other hand will not budge on their “final decree” even though more and better evidence of a different location of the boundary continues to mount. Once the monuments have been set by the surveyor, the survey is cast in stone and the surveyor will go to the mat (or to court) before conceding otherwise.




Facts in the Case

Our case-in-chief, Dowdell v. Cotham,1 is a recent example of the recurring themes I’ve found that lead the surveyor to the wrong conclusion as to what the boundary is and where it is located. Dowdell and Cotham had been neighbors for more than 20 years and shared a common boundary line. According to the testimony at trial, neither neighbor ever knew the exact location of this line. The topic had come up on several different occasions over the years but no agreement was ever reached.

From these conversations, two possible locations of the boundary surfaced. The first was a ditch or “gully” that contained an old fence line. The fence had been removed by Cotham many years earlier but remnants remained embedded in trees that were growing in the ditch. The second possible line was on the north side of the ditch and close to Dowdell’s driveway. Cotham believed that the measurements in his deed took the line that far north. Dowdell never knew for sure where the boundary was, and neither party had ever had it surveyed.

A third possible boundary line surfaced later in the case. Some time after removing the fence from the ditch, Cotham erected a fence along the south side of the ditch. Neither party ever claimed the fence as a boundary line, and Cotham testified in court that it was simply a fence of convenience to keep his cattle contained. Sometimes a fence is just a fence. However, the fence took on added significance when Dowdell commissioned a survey and the surveyor set his monuments at or near this fence.
 
 


The Boundary Dispute

Even though the parties never agreed on the actual location of the boundary, the dispute never escalated beyond “over-the-fence” conversation until Dowdell commissioned a survey of his property. This is when the parties broke out the proverbial “lawyers, guns and money.” One theme I often see repeated in cases is that a surveyor is more likely to start a boundary dispute (or in this case escalate an existing dispute) rather than resolve a boundary dispute.

This surveyor’s mark was likely the spark that ignited this dispute. When the marker was placed near the Cothams’ fence, the Cothams challenged the finding saying they had always owned at least to the ditch line and perhaps past the ditch line to the north. Again, Mr. Dowdell said he was never shown the boundary line and never really knew the location of the common boundary. 2



In such cases the problem begins with either a misunderstanding of what the client wants or what the surveyor believes is the ultimate purpose of the survey. Dowdell hired Mike Burns, a registered land surveyor, to survey his property. “On cross-examination, Burns stated that he had been retained by Dowdell to conduct a survey of the property because Dowdell wanted to know the location of his property line.”3

This seems pretty clear and unambiguous, and Burns repeated the instruction on the witness stand. Dowdell, like the majority of landowners who hire surveyors, wanted to know where his property boundaries were. And as my regular readers already know, there are only two questions to answer in such a situation: (1) what is the boundary and (2) where is the boundary? But, as we will see as the case unfolds, either Burns was misguided as to the purpose of a boundary survey or he missed critical evidence due to a systemic problem in his approach to boundary surveying. Rest assured Burns is not alone.





Common Mistakes

One common mistake across the country is that when the red flags are flying and indicate a problem requiring our attention, surveyors rush ahead before considering all the evidence. In a case such as this where there is ambiguity and uncertainty as to what the boundary is and several possible locations for it, surveyors should begin with a “stop, look and listen” moment--not a rush to drive irons in the ground.

A problem in this case, as in so many others, is that Burns never left the office. He never went to the field to conduct the survey, supervise the survey or evaluate the evidence for himself. “Burns testified as an expert at the bench trial but explained that the actual field work had been completed by his associates.”4 Like many other surveyors, Burns probably believes he did an adequate job of supervising, analyzing and evaluating from his desk chair. The outcome of the case proves otherwise.

Based on the testimony as a whole, the trial court weighed the evidence, adjudging the credibility of the witnesses. We find no cause for concern that the trial court found the testimony of the surveyor troublesome. The surveyor testified as to his results but noted that he had not conducted the actual survey. The court found that the surveyor’s testimony left some questions unanswered. For example, he did not know if anyone from his staff walked the disputed road frontage as alleged by the Cothams. Mrs. Cotham testified that she was present when the survey was conducted and approached the surveyor’s staff. She asked one of the surveying team about the road frontage on the Cotham deed to which (according to Mrs. Cotham who testified without objection) he responded that there appeared to be a fifty feet overlap. The trial court found this acknowledgment to be significant because it was within a reasonable range of the road frontage shown on the surveyor drawings offered as exhibits.5



Not only is the spark that ignites the dispute provided when the surveyor drives his irons prior to conducting a thorough investigation of all of the evidence, fuel is added along the way as his unsupervised subordinates are allowed to opine on a problem that may or may not exist.



Critical Evidence Missed

Because the surveyor never went to the field, critical evidence was missed. At the trial, witnesses came forward to testify as to what the boundary was and where it was located. As in so many other boundary dispute cases, somehow the attorneys are able to find these witnesses that the surveyors don’t. This is usually because the surveyor never looks for them. How do the attorneys find them? They ask. The attorneys ask the parties involved in the case what they know about the boundaries and they ask if anyone else has knowledge of the boundaries.

In all fairness (and without giving too much credit to attorneys), by the time the case is in the attorneys’ hands, they know they have a dispute and therefore they question everybody, including the other side, on the subject. However, in most of these cases the surveyor knows that there is a dispute but chooses to ignore critical evidence, such as testimony evidence, that will lead to the proper resolution of the case. Or, the surveyor doesn’t understand what a boundary survey is and why it’s being done. In the minds of too many surveyors, the only evidence necessary for the resolution of the boundary dispute is a deed and field measurements.

Ammon Halsey testified that he previously owned the land now owned by the Cothams and had lived in that community since 1960. He said he had personal knowledge of the property line between the Cothams and Dowdell. Halsey said the property had been deeded to him from Lewis Elmore, who had reared Mr. Halsey’s wife. Halsey said at the time of the deed, Mr. Elmore showed him the boundaries of the property. According to Halsey, Lewis Elmore owned both the Dowdell and Cotham properties in the chain of title. Lewis Elmore then conveyed part of the property (southern portion) to Halsey and the other part (northern portion) to Richard Elmore. The Cotham property is the property previously owned by Mr. Halsey while the property now owned by Mr. Dowdell was part of the property owned by Richard Elmore. He said that when Lewis Elmore split the property, he showed Halsey the property line. Halsey stated that Lewis Elmore indicated the boundary line between the two properties was “straight down a fence line all the way through the creek.” He explained that the fence was in the crooked gully, “in and out of the north side and the south side, in and out.” Halsey said during his ownership he never had a dispute about the boundary line.6
 
In addition to this testimony, Cotham himself stated on the stand that he “agreed that the center of the ditch line would be a good resolution to the disputed boundary line.”7 Why in the world did these people ever go to court? Yet this is not an unusual situation. This is a pattern that is followed in many boundary dispute cases.
 
 


So Wrong Yet So Right

So here we have it. We have ambiguity as to not only what the boundary is but where it is located. We have overlapping deeds based on what appears to be a simultaneous conveyance (no other theory such as junior/senior conveyances was put forward). Cotham’s deed measurements place the boundary north of the ditch. “Burns admitted that his results were based in part on calculations (based on the deed) done by the computer”8 and he ended up south of the ditch at the fence of convenience. Dowdell admits he doesn’t know where the boundary is, Cotham thinks it’s north of the ditch but states that he would agree to the ditch, and Halsey, an eyewitness to the division of the property who heard the original grantor’s intentions firsthand, says the ditch is the boundary.

Does anyone reading this article really need me to tell them what line was held as the boundary between these two coterminous landowners?

And how about my final point--that once the monuments have been set by the surveyor, the surveyor will go to the mat (or to court) before conceding otherwise? “In conclusion, Burns held firm to his testimony that his survey accurately reflects the boundary of Mr. Dowdell’s property.”9Judged to be wrong yet maintains that the survey is right. A survey can be technically correct yet completely miss the mark. This is akin to rearranging the deck chairs on the Titanic--what’s the point?


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.


References

1Dowdell v. Cotham,2007 Tenn.App. LEXIS 470 (Tenn.App. 2007). This is a Lexis-Nexis citation, as this case has not yet made it to the reporters. This is, however, a published opinion.

2 Id. at 28, 29.

3 Id. at 3, 4.

4 Id. at 3.

5 Id. at 31, 31.

6 Id. at 11, 12.

7 Id. at 13.

8 Id. at 5.

9 Id.