For the past several months, we’ve been focusing on the surveyor’s misunderstanding of property law and the consequences of this. In this column, I am going to place one more example on the table.

This month’s case-in-chief from Florida, Andrews v. Barton,[1] is just another illustration of our misguided duty vis-à-vis boundaries and the damage we leave in our wake. We continue to demonstrate our ineptitude with the basic tenets of property law, apply arbitrary “rules of surveying” through either a capricious application of the rule or a total lack of understanding of the rule, and have the audacity to call our end product a “boundary survey.” People react to what we do, they are often damaged by our actions, and surveying continues to take a black eye.

In Andrews, after hearing the testimony of the two surveyors, the court takes the additional step of telling Florida surveyors (if not a wider audience) how to survey. My initial reaction after reading the case--and getting over the initial shock of the bungled survey that sent the two parties to court--was embarrassment for the profession. That the court felt the need to instruct surveyors on how to survey is truly an indication that the profession is at a low ebb−at least with regard to our understanding of boundaries. We might be able to use GPS with the best of them, but we need a primer on boundaries.

Boundary Surveying 101

Before we get to the facts in the case, let’s, once again, tackle the myth that there is any other purpose for conducting a boundary survey other than to determine the “property boundary” between the client and all of the adjoiners. “The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiff’s and defendants’ property. To do this, the survey must begin with an accurate description of what land the parties own.”[2] In most cases, the task is relatively straightforward; in other cases, it may be quite complex. “No definite set of rules can be laid down in advance. The solution to the problem must be found on the ground by the surveyor.”[3]

I concede that there are reasons to conduct a survey other than the determination of property boundaries, such as for forensic reasons. But if that is the case, don’t call it a “boundary survey” and thereby mislead the unwary. Nevertheless, the vast majority of boundary surveys are conducted for the purpose of identifying and locating property boundaries. “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.”[4] And do not be mistaken, the only issue (what the courts refer to as the “ultimate issue”) in a boundary dispute case is the property boundary between the warring landowners.

The deed has to be the beginning point for any survey of property. “Typically the face of the deed is examined to reveal the intent of parties, unless facts outside the deed reveal a latent ambiguity--then the standard rules of construction and circumstances surrounding the drafting of the deed are used to resolve the issue of intent.”[5] There is no reason to leave the deed if it is clear and unambiguous on its face and if there are no factors outside the deed (such as survey results) that render the deed ambiguous. If, however, the deed is ambiguous, it no longer contains intent and becomes a worthless piece of paper. “Once it is determined that the deed cannot locate the boundary line according to requisite legal standards, the deed loses its efficacy in the determination of the boundary dispute.”[6]

In Andrews, there was no need to leave the deed; there was simply a need to consult it in the first place, especially because there was a 50-foot discrepancy between the plat and the field measurements that threw all of the boundary lines in the block into chaos. In such a case, you might want to see if your client’s deed has an explanation for the discrepancy. This would be “Boundary Surveying 101,” first chapter, first day of class.

This example is what I now refer to as our “classic boundary dispute.” It has become the highest form of boundary dispute in American jurisprudence. There are two neighbors living side by side in peaceful coexistence until the arrival of the surveyor. One neighbor decides that the property boundaries need to be determined and calls on the aid of the surveyor. The surveyor sallies forth, equipped with some potions and notions, a few incantations and a magic measuring wand. In a ritual to be admired by ancient medicine men and the wizards of mythology, the surveyor waves his magic wand over the length and breadth of the land. He calls upon the survey gods: “O ancient Original Surveyor, with your monuments of old and your protracted lot lines, show me what no one else can see--the true boundary lines.” He casts out the survey demons: “First Surveyor, with your errant monuments that you have placed like a scourge over the face of the land, be gone, and take these infernal boundary lines you have established with you!” He then chants the magic words: “Boundary, boundary, boundary. I have placed you where survey dictates. Now, let the lawyers come forth.”

Facts in the Case

It pretty much starts out that way in the case of Andrews v. Barton. The plaintiff in the case, Barton (appellee on appeal), hired Frederick H. Hildebrandt to survey his lots in 2000. Barton’s deed states that he owns “Lots 31, 30 and 29, minus a 50-foot strip of land at the east end of Lots 29 and 30. The plaintiff’s land is at the east end of Block 54, adjacent to Fourth Avenue.”[7] This is all in Block 54, Stock Island, Monroe County, Florida, near Key West. Undeterred by his client’s deed, Hildebrandt staked out lots 29-31 in accordance with the plat. I say undeterred. In fact, Hildebrandt never consulted his client’s deed, even though the results of his survey threw Andrews’ entire lot within the Barton property boundary.

Not knowing that Barton’s deed included a “less and except” of 50 feet on the eastern end of the block, Hildebrandt concluded that the block was 50 feet short and commenced with proration.

When the plaintiff’s surveyor testified, he stated that in doing his survey, he relied on the recorded plat and the plaintiff’s statement that he had purchased Lots 29, 30, and 31. The plaintiff’s surveyor conceded that he did not look at the plaintiff’s deed and was unaware of the “less and except” provision which excluded the fifty-foot strip. He contended, however, that this exclusion would not make any difference in the survey. … The plaintiff’s surveyor testified that he had measured the entirety of Block 54 and found a discrepancy between the actual measurements of the land versus the land as shown on the plat. The surveyor’s solution to this was to say that all of the lots in Block 54 would have to be reduced in width by 2.3 feet. The plaintiff’s surveyor took that position even though there had been no proceeding to replat the block and even though the westerly property owners in Block 54 were not parties to this litigation.[8]

If this isn’t blind adherence to rules of surveying to the exclusion of reality, I don’t know what would be. The 50-foot exclusion “would make no difference”? And what about what I said two months ago:

Proportionate measure is only a valid rule because it stands on an equitable principle, that principle being that all equally situated landowners should rightfully share in the “gain or pain” of any excess or deficiency in land. Rarely are landowners equally situated when the surveyor attempts to prorate excesses and deficiencies (and it’s almost always a deficiency). In addition, the courts always emphasize that proration is a remedy of last resort. But surveyors seldom use it as a last resort. In the vast majority of cases I review, it’s the first resort. And, finally, since proration is a last resort, this means there are other alternatives before applying it to a boundary.[9]

Even if the block was truly 50 feet short, what would this have to do with anybody else in the neighborhood? One of the unfortunate results of Hildebrandt’s survey is that his client reacted to it as if Hildebrandt had made some sort of boundary determination. “The plaintiff sued the defendants for damages. The plaintiff also requested an injunction to require the defendants to clear the property of trash and material the defendants had placed there.”[10]

Thankfully, Andrews (the defendant) hired his own surveyor, Robert E. Reece, who showed up with something more than a potion and a notion.

The defendants’ surveyor testified that any surveyor must begin with an accurate legal description of the property being surveyed, which should be taken from the deed, not a verbal description. The defendants’ surveyor reviewed the plaintiff’s deed which revealed that the plaintiff did not own the fifty-foot strip. The defendants’ surveyor testified that he and his crew had located a number of survey monuments and markers in Block 54, including a dozen corner markers, although no corner markers for Lot 32. The defendants’ surveyor stated that once the exclusion of the fifty-foot strip was taken into account, the measurement of Block 54 revealed that the amount of land in Block 54 was consistent with the plat. … According to the defendants’ surveyor, the plaintiff’s surveyor erred by failing to note that the plaintiff does not own the fifty-foot strip, which the Gomezes conveyed to Monroe County. This means that the plaintiff’s survey locates the property lines fifty feet to the west of where it should. According to the defendants’ surveyor, the effect of this fifty-foot error is to relocate the plaintiff’s land so it is positioned on top of the defendants’ Lot 32.[11]

The Court Instructs on Surveying

This isn’t rocket science, but the court felt like a little lesson in surveying was needed:

Given the testimony that a number of survey monuments and markers already exist in Block 54 (although no corner markers for Lot 32), it should be possible by use of measurements from the known monuments and markers to resolve the boundary issue as a matter of law. In other words, by utilizing a survey or surveys containing the correct legal description, and by locating the existing monuments and markers in Block 54, it appears likely that the claimed boundary conflict will disappear. Any issue regarding the fifty-foot strip and the location of Fourth Avenue affects only the plaintiff’s abutting property, not the interior lot owners.[12]

Even land surveyors ought to be able to handle that, right? As a warning shot across the bow, the court added the following:

The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiff’s and defendants’ property. To do this, the survey must begin with an accurate description of what land the parties own. … To have probative value, the plaintiff’s survey must contain an accurate legal description of the property being surveyed. An expert “opinion is admissible only if it can be applied to evidence at trial.” Because the plaintiff’s survey is based on a materially inaccurate legal description, it must be excluded from evidence on remand.[13]

In other words, Florida tells its surveyors: Don’t show up in court with a bogus survey based on a bogus description of property. This is good advice for all.

Here's a thought for next month: Are all licensed surveyors qualified to deal with boundaries?



References

1- Andrews v. Barton, 2008 Fla.App. LEXIS 1836.

2- Id. at 7.

3- Manual of Surveying Instructions 1973, U.S. Department of the Interior, Bureau of Land Management, Sec. 6-15. Page 148.

4- Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470, 3, 4 (Tenn.App. 2007).

5- Hennessy v. Fairley, 796 A.2d 41, 48 (Me. 2002).

6- Id. at 49.

7- Andrews v. Barton, at 2.

8- Id. at 5.

9- “Traversing the Law: Applying math instead of professional judgment,” POB, June 2007.

10- Andrews v. Barton, at 2.

11- Id. at 6.

12- Id. at 10.

13- Id. at 7, 9.



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.