As we traverse the law, we can’t overlook the secondary sources1of the law: survey texts, learned treatises and articles published in our professional journals and magazines. If we are looking for authoritative sources on what the surveyor’s duties and responsibilities are, the courts aren’t going to give us a “Peyton Manning Priceless Pep Talk.”





But the surveyors, attorneys and others familiar with land surveying, who prepare these secondary sources, have read the court cases and interpreted what the courts are saying to the land surveyor and the land surveying community. This makes these works important, and because of their relative permanence and accessibility, surveying texts are probably the most important secondary sources.


The Law Marches On

One thing they taught us in law school is that the law is ever changing. This is why it’s important to finish law school quickly and take the bar exam at the earliest possible date. A year or two out of law school and what was learned in the first few semesters can be completely irrelevant.

Our surveying texts are not immune to this. There are many surveying texts out there, and every surveyor has his or her own library and favorites. Yet some still quoted today are, in reality, ancient. If these texts are to be any good to us at all−at least from the standpoint of a secondary source of the law−anything that hasn’t been updated in the last five to 10 years is almost useless.

Given the need for relevance, there are only three surveying texts that can truly be considered secondary sources of the law: Brown’s Boundary Control and Legal Principles, Fifth Edition; Evidence and Procedures for Boundary Control, Fifth Edition; and Clark on Surveying and Boundaries, Seventh Edition (with the 2007 supplement). There may be some “also-rans” out there, but these are the main three, not only because they are relatively up to date but also because no other texts are cited by the courts as often−if at all. 2

Given this standing in the land surveying community, we would hope that these texts could be relied upon when utilizing them as secondary sources of the law. There may be many portions of these texts that can be safely relied upon as secondary sources of the law, but they are woefully lacking with reference to this column’s subject--the surveyor’s duties and responsibilities under the law.3

Duty and Responsibility to Boundaries

Brown’s two works (hereinafter collectively referred to as “Brown”) are both contradictory and confusing as to the surveyor’s duty and responsibility toward boundaries. Brown starts off by attempting to redefine what a boundary is and the surveyor’s responsibility toward boundaries. He seems to say that a “boundary” is something found in a deed and is separate and distinct from a “property boundary.” He goes on to say that the term “property line or property boundary” is seldom used by the modern courts.4Nothing could be further from the truth.

I covered this issue at length a few months ago and will not repeat it all now.5Suffice it to say that the only issue before the court in a boundary dispute is the true boundary line between the coterminous landowners. This is not an abstract idea. The courts are talking about the property boundary line between the landowners, which may or may not be contained in any deed. Any lack of use of the term “property boundary” by the modern courts only goes to show Brown’s lack of understanding of what the courts are dealing with in a boundary dispute and/or that the courts have not seen fit to make any distinction between a “boundary” and a “property boundary” because none is necessary.

Brown goes on to tell us that we are not to address legal questions or property rights.6Yet several pages later he states that surveyors “do consider senior rights and note possession not in agreement with the written deed.”7The obvious question is: How can you consider senior rights without considering property rights? But beyond this is a much bigger issue: A senior deed (or rights) can be defeated by a junior deed when an occupancy right has ripened into a legal right, extinguishing the senior. In addition to this, states that have enacted the model Marketable Record Title Act (22 states by my last count) have legislatively mandated that senior conveyances will be trumped by a junior when the statutory provisions have been perfected. How in the world will you know any of this unless you are considering property rights?

Brown seems to redeem himself (but contradicts his earlier position) in Chapter 17 of the same text when he tells us, “The surveyor has the following obligations to the public: (1) to see that the client’s boundaries are properly monumented without subtracting from the rights of the adjoiner. …”8Obviously, he’s considering property rights at this point. He goes on, “the surveyor is morally and ethically bound to protect the bona fide rights of the adjoiner, while holding the bona fide rights of the client paramount. …”9Maybe I’m reading Brown wrong here, but this sounds too close to client advocacy, which we recently discussed at length.10

Jumping over to his other book, at Chapter 14, Brown is back on the bandwagon beating the drum against the surveyor dealing with property rights,11advocating that the surveyor’s only responsibility is to stake the deed.12and report the facts.13In other words, we are to be the “Sergeant Fridays” of the profession: “Just the facts, ma’am, just the facts.”14



Professionals or Technicians?

What Brown is describing is work that can be done by any highly trained technician. Any competent technician can be taught to find monuments, take measurements and “report the facts.” This is technical level work that involves little, if any, professional judgment. Many surveyors rely on their technicians to do this work. Never leaving the office themselves, they sign and seal their technicians’ work and call it a boundary survey when in reality they should be calling it a “deed stakeout.”15

Brown addresses this issue himself: “To be a successful professional surveyor, one must have more than a narrow technical education. Technical education has to do with things. Employees at a lower professional scale deal with things; professionals deal with people, situations, and ideas.”16In your typical boundary dispute, the “things” are the monuments, measurements, deeds, surveying instruments and “facts.” The “people” are the landowners, affected third parties, title professionals and attorneys (and judges, if it goes that far). The “situation” is a boundary dispute usually involving two or more possible locations of the boundary, and the “ideas” are the applicable law, the property rights involved, applying the “facts” to the “situation,” and possible solutions to the “situation.” By Brown’s own definition, those who are dealing with “things” are merely technicians--not professionals.



The Law Doesn't Apply to Land Surveyors

One theme running throughout Brown’s work is that surveyors are not to pass judgment on the operation of the law. “Boundary surveyors must be very careful to understand that their responsibility is in addressing opinions of fact, whereas the courts address the application of the law.”17Clark was on board with this opinion up through the sixth edition. Like Brown, Clark also advocated that the surveyor is not to “pass upon the application of the law. …”18This is a theme I hear repeated by surveyors across the country. Surveyors are of the opinion that the law is somehow for lawyers and for judges but not for surveyors.

All one need do is read a contemporary case involving surveyors to see that this opinion is wrong. The land surveyor’s ignorance of the law and property rights is more likely to land him or her in court than keep him or her out. With the cost of modern litigation, it is no longer an option to go into court hiding behind your client’s deed. You may find that the deed isn’t worth the paper it was written on and the results of your survey are “hair raising.”19Yes, it is true that, in court, the jury will determine the facts and the judge will determine the law. But this is true of any issue that ends up in court, not just boundary determinations.

Clark comes off this position, to a certain extent, in the seventh edition. At the least, Clark quits advocating that the surveyor’s only duty is to stake his client’s deed. Clark deserves a round of applause for this. However, it doesn’t take long to find some grave errors in this volume, especially when it comes to the surveyor’s responsibility as to the ultimate issue in the case.



The Ultimate Issue

In all boundary dispute cases, the ultimate issue is the true boundary line (and we are talking “property boundary,” not some abstract notion that defies understanding) between the coterminous landowners. In order to get to the ultimate issue, we must first define what the boundary is, then establish where it’s located.

As an expert in court, will the land surveyor be asked to testify as to the ultimate issue? According to Clark, he will not.

In all courts, evidence is the purview of the jury (or judge as “trier of the facts” if there is no jury); the law is always in the purview of the court. A Georgia decision permitted the surveyor to testify as to his opinion on the ultimate issue of the case without invading the province of the jury, so long as the subject matter was an appropriate one for opinion evidence. This is quite unusual. North Carolina still retains the majority approach in that the expert land surveyor cannot give an opinion as to where a true boundary line is located, for that decision is the ultimate fact in issue to be determined by the jury from the evidence presented during the trial.20

This is simply an incorrect statement of the law. The law has moved on leaving Clark behind. In the late 1970s and early 1980s, the Federal Rules of Evidence were promulgated and adopted by the federal judiciary. Over the ensuing years, the states have adopted the Federal Rules as their own, usually with minor revisions. One Internet source puts it at 42 states that have adopted the Federal Rules (with varying revisions) as their own.21The Federal Rules of Evidence, along with the court’s interpretation of those rules,22make it clear that experts will be allowed to give opinion testimony, even to the ultimate issue in the case.

Federal Rules of Evidence, Rule 704. Opinion on Ultimate Issue. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.23

Clark singles out North Carolina law as the voice of the majority opinion on the issue of surveyors not being allowed to give opinion testimony on the ultimate issue. What does North Carolina really say on the subject?

Rule 704, provides that opinion testimony “is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” This rule abrogates the doctrine that opinion testimony should be excluded for the reason that it goes to the ultimate issue which should be decided by the trier of fact.24

Unlike Brown and Clark, I believe that the law is within the reach and the understanding of the land surveyor. And, unlike Brown, I believe that the land surveyor is a professional. As such, the land surveyor must not only deal with “things” and “facts” but must also engage the “people” involved in the “situation” and apply the “ideas” to resolve boundary disputes, not start them. This is the duty and the responsibility of the land surveyor. Go forth and measure redundantly.



References

1 Secondary sources of the law are just what the name implies. The direct sources of the law are the common law (case law), statutory law and administrative law. Secondary sources are any sources that attempt to analyze or interpret the primary sources of the law. They are authoritative only to the extent that they properly analyze and interpret the law.

2 I conducted a 10-year search of all jurisdictions and found 17 citations to these three books combined. I found no citations of any other survey text that I entered in my search that could conceivably be considered a secondary source of the law. The BLM Manual of Surveying Instructions 1973 is excluded from this discussion.

3 This is not a complete review of these texts. This review is limited to the subject matter of this article.

4 Robillard, Walter G., Wilson, Donald and Brown, Curtis, Evidence and Procedures for Boundary Location, Fifth Edition at 1.

5 See “Traversing the Law: A Question of Law and Fact,” POB October 2007.

6 Evidence and Procedures for Boundary Location, Fifth Edition at 1.

7 Supra at 21.

8 Supra at 487.

9 Supra.

10 See “Traversing the Law: Fantasy Boundary Dispute,” POB September 2007.

11 Robillard, Walter G., Wilson, Donald A. and Brown, Curtis M., Brown’s Boundary Control and Legal Principles, Fifth Edition at 419.

12 Supra.

13 Supra at 418, 419.

14 For more, again see “Fantasy Boundary Dispute.”

15 See my POB columns: “Surveyor Supervision,” October 2004; “When an Expert is No Longer an Expert,” January 2008; “Common Mistakes of the Surveyor,” February 2008; and “Does a Mistake Constitute Negligence?” March 2008.

16 Evidence and Procedures at 484.

17 Boundary Control and Legal Principles at 416.

18 Robillard, Walter G. and Bouman, Lane J., Clark on Surveying and Boundaries, Sixth Edition at 26.

19 Watts v. Shannon and Leggins, 2005 Tenn.App. LEXIS 403, 2 (Tenn.2005).

20 Robillard, Walter G., Bouman, Lane J. and Shelton, Hon. Robert, Clark on Surveying and Boundaries, Seventh Edition at 49.

21 State Correlations to the Federal Rules of Evidence, Marian Gould Gallagher Law Library, University of Washington School of Law, http://lib.law.washington.edu/ref/evidence.html.

22 See “Traversing the Law: Expert Witness Testimony,” POB February 2007.

23 United States Code, Federal Rules of Evidence, Article VII, Opinions and Expert Testimony, Rule 704 (a).

24 Green Hi-Win Farm, Inc. v. Neal, S.E.2d 614, 616, 617 (N.C.App. 1968).





Neither the author nor POB intend 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.