Posted on 4/16/2008 at 12:32 AM
(POB: for clarity, article excerpts are in normal font; JB Stahl's remarks are bolded)
Just ran across an article written by HON. L. S. MONTAGUE, OF HOWELL, MICHIGAN entitled "THE LEGAL POSITION OCCUPIED BY A SURVEYOR IN THE STATE OF MICHIGAN." The article was presented to the Michigan Engineering Society on Thursday, Feb. 19, 1885. Much of the paper focuses on the statutory advantages of the County Surveyor and the ruse played upon the unsuspecting citizens, but I found the following excerpts particularly interesting.
After the able paper by Mr. Justice Cooley, read before this Association, which covers a portion of this subject, it will be more difficult for me to add anything that is interesting or instructive...
The results of surveys are useful and important in two ways: 1. To determine lines, boundaries and comers in suits in courts involving them. 2. To determine those questions in cases that are never litigated in courts.
In only a very small proportion of the surveys made do courts and juries follow after the surveyor, over the same ground. In most cases the surveyor is called upon to make a survey by the owners of the lands, who have confidence in his skill and integrity, and who frequently accompany him in his work as assistants or interested spectators. He proceeds with the survey, using all the information at hand -- monuments, field notes, witness trees, old fences, etc. -- and inquiring into all the facts, and frequently showing his means of knowledge to those interested. It becomes a substantial submission to arbitration by parole, of the lines and boundary, and the surveyor becomes practically an arbitrator, and exercises the judicial function of determining the location of the lines and boundary; for although the submission should be in writing, to affect real estate under the statute of frauds, the parole award, or agreement, would be enforceable when actually executed; and when the lines and boundaries so determined have been recognized and acted upon by the adjoining owners, by conforming their occupation to them, they become finally determined as firmly as if passed upon by courts and juries.
Cronin vs. Gore, 38 Mioh. Reports, 384.
Smith vs. Hamilton, 20 Mich. Reports, 438.
And even if the survey is not made with the joint consent of the owners, if it is made, and the lines and boundaries determined by the surveyor, and accepted and acted upon, by the exercise of possessory rights and otherwise, by the owners, for fifteen years, the length of time required by the statute of limitations, or perhaps less, the lines and boundaries become fixed, without court or jury.
Stewart vs. Carleton, 31 Mich. Reports, 273.
Diehl vs. Zanger, 39 Mich. Reports, 603,605 and 606.
Pratt vs. Lewis, 39 Mich. Reports, 12.
Flynn vs. Glenny, 61 Mich. Reports, 583,
Baker vs. MoArthur, 19 Northwestern Reporter, 925.
Crowell vs. Beebe, 10 Vermont Reports, 33.
When lines and boundaries are in litigation in court, and before they have been settled by the said practical arbitration and acts thereunder, or by lapse of time, possession and acts of owners, relying on previous surveys, and when the question of where were the lines, and corners located by the original government survey, or by the town plat, is still open in that forum, the legal position occupied by the surveyor is very different, and he becomes only a witness to the facts, that shall establish the location of said lines, boundaries and corners, and an expert witness as to matters of fact requiring special knowledge and with which he is familiar, in cases where better means of information do not exist, a very useful assistant in coming to a correct judgment, but still only a witness.
Stewart vs. Carleton, 31 Mich. Reports, 273.
He has no more authority than other men to determine boundaries on his own motion, and the law itself does not make 4im the arbiter of private rights.
Cronin vs. Gore, 39 Mich. Reports, 386.
All bounds and starting points are questions of fact to be determined by testimony; and not of the surveyor alone, but by all testimony that is relevant to the issue that can be obtained, including that of unprofessional witnesses.
Hoffman vs. Harrington, 44 Mich. Reports, 185.
As the surveyor will generally have more accurate knowledge of the facts that should determine the lines and corners than any other witness, his testimony will usually be very important, and often controlling; but its weight will depend upon his knowledge of the facts and his thorough and clear statement of them, and not upon his opinion of where the line is located.
Stewart vs. Carleton, 31 Mich. Reports, 274.
Still, he is allowed as a witness to give opinions of matters with which he is familiar by reason of his employment, where better means of information do not exist; as whether in his opinion certain marks on trees and piles of atone were intended es monuments of boundaries.
1 Greenleaf on Evidence, Sec. 440.
But whether an allowance for the variation of the compass should be made, to determine the location of the lines and boundaries, and if so, how much allowance should be made, are questions of fact under all the proof for the jury to decide.
Harlan vs. Brown, 2 Gill, Maryland Reports, 475.
Same case, 41 American Decisions, 438.
While, as has been stated, private surveys, or plans or memoranda of them, made without public authority, are not admissible as evidence of the facts therein, for the reason, as has been said, that it might benefit men to include in such surveys more than belonged to them;
Jones vs. Huggins, 1 Devereaux's Law, North Carolina Reports, 223.
Same case, 17, American Decisions, 569.
Yet after the draft of a survey had been proven by the surveyor who made the survey and the draft, it was held to be admissible in evidence for the purpose of explaining what he testified he had done in making the survey.
Hoey vs. Furman, 1 Pennsylvania State Reports, 295.
Same case, 44 American Decisions, 129.
Field notes, memoranda, drafts and plans of surveys made by a surveyor himself, or by another person at his dictation, may be referred to by him, while under examination as a witness, for the purpose of refreshing his memory, where his recollection is not sufficient to enable him to answer the questions without it.
Abbott's Trial Evidence, 320.
Raynor vs. Norton, 31 Mich. Reports, 213.
But if they are used to refresh the memory of the witness, the opposition party, from the one in whose behalf he is sworn, has the right to have them produced and to know what the memorandum is, and whether it had any legitimate tendency to bring the fact in controversy to mind.
Duncan vs. Seeley, 34 Mich. Reports, 370.
The boundaries will usually be mainly decided by the court and jury on the testimony of the surveyor, as he will be the only witness who has all the available facts bearing upon them in his possession. Whether as an arbitrator, the maker of a survey which becomes fixed by time and acceptance, or as a witness to facts in court, including the giving of an opinion as an expert, the legal position of the surveyor is such that he, more than all other agencies combined, fixes and determines boundaries of lands and the limits of their ownership.
With writings so clearly expressed as this, it makes me wonder just how far our profession has "progressed."
Modified By JB Stahl on 4/16/2008 at 12:39 AM
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