What is a survey of property if not a well-reasoned opinion on the boundaries involved?
As we know from experience, however, many surveys (and surveyors) fall considerably short of this admirable goal. The court cases I read every week are filled with example after example of surveyors who had no intention of giving an opinion on anything but the math they used to solve a supposed boundary problem. I realize that the surveyors who read this column are much like the choir that hears the same sermon every week. But for the few that might be reached and for the more-than-apparent problems that continue to plague the profession, somebody has got to be the bad guy and bring these issues to light.
I still hear the tired excuses that “I’m only a surveyor,” “I don’t give opinions on property,” and one of my all-time favorites, “If they don’t like my survey, they can hire a lawyer.” I’ve addressed all of these in past columns, but the cases keep coming, and it’s obvious there are surveyors out there who need elementary lessons in land surveying and boundary law. Because of the paltry education most surveyors get on boundary law and the supposed difficulty in finding and studying the law, much of what is practiced as land surveying is actually an elaborate tradition that has become its own mythology. A prime example is the first surveyor concept myth we discussed last month. This month’s myth is the idea that land surveyors do not and cannot give opinions on property boundaries.
The Ultimate Issue
Just within the last few weeks, I had another surveyor tell me that it’s not his responsibility to determine who owns the property that he is surveying. This misses the point entirely and is just another excuse to avoid the issue of the well-reasoned opinion altogether. It is almost entirely immaterial who owns the property. The point is there is a piece of property, an estate in land, and it is usually surrounded by other estates in land or other interests in land. Some of these interests in land overlap (e.g. easements, rights-of-way, etc.), but most others abut, creating terminal points and boundaries. Generally speaking, no two estates will ever overlap; they must abut. There are no gaps and overlaps when it comes to estates in land; somebody owns the gap, and somebody owns the overlap. Who that person is may be entirely irrelevant. If you need to know who these people are, you may well find out when you are served with the complaint. See how easy a title search can be? They come to you.
I don’t care what you have read or where you read it, or what folklore or tradition you want to follow--the fact is there is only one issue to be decided when a boundary dispute goes to court. That issue is what the property boundary is between the warring tribes and where it is located on the face of the Earth. There may be other minor collateral issues being tried at the same time, but the ultimate issue is the property line. This is not some theoretical, unknowable, abstract, ephemeral apparition. It is a legal and factual question that will be answered by the judge, if need be. This does not mean that the surveyor can’t have an opinion on the subject. With the promulgation of the Federal Rules of Evidence and wholesale adoption of the rules by the states, not having an opinion on the ultimate issue could be tantamount to malpractice.
Our case-in-chief this month is actually two companion cases that were tried together: Lovetere v. Cole1 and Simon v. Cole.2 In 1945, there was an estate in land. Over the years, this estate was first built up into a larger estate of about 135 acres, and then lots were sold off to family and friends. In 1984, a survey of the estate was commissioned in order to determine the boundaries and acreage of the remaining property. The remainder, 56.29 acres according to the survey, was sold to defendant Cole based on the 1984 survey. In a sequence of events that seemed to me like déjà vu all over again,3 Cole decided that he didn’t like his survey and believed that he owned more property to the west. So in 1993, he hired another surveyor to review the 1984 survey. This second surveyor presented Cole with a report that concluded that the 1984 survey’s determination of the western boundary “appears to be a reasonable depiction of your western boundary line.”
Still not happy, in 2002 Cole hired a nonlawyer title searcher, another land surveyor and an out-of-state lawyer-surveyor consultant (I feel like I keep reading the same cases over and over again) to help him create his own fantasy boundary dispute. This time, Cole finally got the results he was looking for. Actually, he got more than he bargained for. Cole anticipated that his experts would come up with about 12 additional acres. To his extreme delight, his consultants came up with 37.9 additional acres that ostensibly belonged to Cole. There was only one problem--it’s the same problem with all such cases--Cole didn’t own the 37.9 acres; it belonged to someone else. Enter Lovetere and Simon.
As all landowners under such circumstances must do, Lovetere and Simon were forced to defend the castle. Simon filed a quiet title action to clear up the mess started by Cole and his consultants. Lovetere went all in with a four-count complaint. Not only did Lovetere file a quite title action, he claimed adverse possession to the disputed strip, filed for common law slander of title and for statutory slander of title. At trial, the plaintiffs’ hired experts were a lawyer title examiner and the land surveyor who performed the first survey of the property Cole bought back in 1984. Their opinions on the property line between Cole and his neighbors were welcomed by the court and proved to be decisive.
After hearing the testimony and well-reasoned opinions of the plaintiffs’ title attorney on how Cole could not own the disputed tract, the court turned its attention to the testimony of the plaintiffs’ land surveyor.
The most significant witness in the case was Henry Hart, a licensed land surveyor and civil engineer with many years experience, especially in Woodbury [Conn.] where the disputed property is located. Mr. Hart was an extremely credible witness. He has surveyed the property of both parties as well as surrounding properties. It is his opinion that the plaintiffs own the disputed property and the defendant does not. I believe Mr. Hart’s testimony. “Credibility must be assessed … not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert. … The trier may accept or reject, in whole or in part, the testimony of an expert.” (Citations omitted [by the court]).4
It was now time for Cole’s experts to man up or shut up, and they--well--they didn’t say anything. Not one of Cole’s experts could or would give an opinion on ownership of the disputed tract. Incredible!
Simon’s title was cleared, but it wasn’t over between Lovetere and Cole because Lovetere still had his slander of title action pending. The court found Cole guilty of statutory slander of title and awarded Lovetere $81,458.00 in attorney’s fees, $23,130.34 in expert fees and $6,526.91 in related litigation costs. Based on this case, the modern-day price tag to defend your property in court is $111,115.25. For those surveyors out there who still have the cavalier attitude that landowners can simply “hire an attorney” if they don’t like the results of your survey, not everyone can afford to do so. Cole’s surveyor escaped a slander of title charge due to a technicality in the statute that requires the aspersion to be “duly verified under oath.” Had his signature on his plat been notarized, that probably would have done it. The deed Cole filed on the disputed tract did him in under the statute.
More Questions Than Answers
These companion cases raise more questions than they answer. The first question that comes to mind is why do we survey property? Most states say about the same thing on this issue, and Connecticut is no different.
In order to establish and maintain a high standard of integrity, skills and practice in the profession of engineering and land surveying and to safeguard the life, health, property, and welfare of the public, the following rules of professional conduct are promulgated. ...5 [Emphasis added.]
How did Cole’s experts fulfill that mandate? There is no question Cole was the instigator in this modern property-law tragedy, but his experts were his facilitators, and when it came time for them to stand behind their actions they all left town. How did these experts safeguard Lovetere’s property when he had to spend $111,115.25 to defend his property rights--money he could not know for sure he would get back while he was spending it?
The answer appears to be that Cole’s experts were technicians disguised as professionals. They simply did as told, dutifully building a sham case for Cole’s ownership of property that he did not own, then wiped their hands of responsibility when it was time to defend their actions. What was needed was for professionals to step forward and tell Cole what he needed to hear, not what he wanted to hear. Fortunately, the plaintiffs in the case found professionals who rendered well-reasoned opinions on the property boundaries and brought an end to yet another fantasy boundary dispute.
- 1. Lovetere v. Cole, 2008 Conn. Super. LEXIS 2097 (Conn.Super.2008). Upheld on appeal Lovetere v. Cole, 984 A.2d 1171 (Conn.App.2009).
- Simon v. Cole, 2008 Conn. Super. LEXIS 2064 (Conn.Super.2008). Upheld on appeal Simon et al v. Cole, 985 A.2d 356 (Conn.App.2009).
- See “Fantasy Boundary Dispute,” POB, September 2007.
- Lovetere v. Cole at 9. Simon v. Cole at 8, 9.
- Sec. 20-300-12 (a). Code of ethics. Regulations of Connecticut State Agencies.
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.