It’s like the Troy Polamalu shampoo commercial, in reverse. Troy Polamalu is the star Pittsburgh Steelers defensive back with “big hair.” A player walks up to his locker and notices his bottle of shampoo–which is formulated to make your hair look bigger–isn’t as full as he remembered. He looks over at Polamalu, who has big hair, and asks if Polamalu used the shampoo. At first, Polamalu denies it. He asks again. This time Polamalu’s hair is twice as big as before, but he still denies it. He asks him a third time. This time Polamalu’s hair couldn’t get any bigger. He finally admits he used the shampoo.

When I ask surveyors if they have read the new 2011 Standards,1 at first, they say they have. I ask again, and they still say they have. I ask a third time, and they finally admit that they haven’t. If you haven’t, you’d better; at least, you’d better read them before you agree to perform a survey under these new requirements.

If you are still under the belief that you don’t survey property boundaries, the 2011 Standards remove all doubt. Wherever the previous standards used such terms as “survey boundary,” “boundary represented,” “surveyed tract,” “premises,” “plot” or “parcel,” the 2011 Standards replaces these terms in every instance with “surveyed property” and “property being surveyed.” No longer are we simply surveying a premises, plot or parcel of land. When conducting a 2011 ALTA/ACSM Land Title Survey, we are surveying property. My February column was devoted to discussing the difference between surveying a “plot” of land and surveying “property,” and I’m not going to repeat that entire discussion here.

I have had untold numbers of land surveyors say to me that “it’s not my job to determine who owns a piece of property.” That misses the point entirely. Surveying property is a matter of ownership, but the owner of the property is almost irrelevant in the matter of identifying the location of the property lines in question. What is relevant is that there is an estate in land, and in all likelihood it is surrounded by other estates in land. In law school terms, when we compared two estates in land, we referred to one as “Whiteacre” and the other as “Blackacre.” Where is the property boundary line between Whiteacre and Blackacre? Quite simply, it is where it is. Stealing a line from a good friend of mine, it is where the fullest extent of the property rights associated with Whiteacre meets those of Blackacre.

The best available evidence must be gathered and evaluated in order to render a well-reasoned opinion on the location of the property boundary between Whiteacre and Blackacre. This is a fact-driven inquiry where record, physical and possibly even parol evidence must be considered by the land surveyor. In many cases, measurements are not the best available evidence of the location of property boundaries. According to the majority approach to the rules for construing written documents (aka, “rules of construction”), measurements in legal descriptions are almost the lowest form of evidence, behind natural monuments, artificial monuments, calls for adjoiners and bearings. The only thing lower is acreage.

Yet in the majority of boundary dispute cases that go to trial, go up on appeal or get written up as a court opinion and published, the surveyor relies on measurements in the face of more and better evidence to the contrary. My theory on why this is the case is simple. Land surveyors are more comfortable with their measurements and math than they are with the law and evaluating evidence. This is a failure in educating land surveyors about the law and evidence before awarding them a license. A rigorous examination that could not be passed without the examinee knowing “appropriate boundary law principles” would accomplish the same goal. This, of course, would require exam writers and graders who understand these principles as well. But that’s a topic for another day; the 2011 Standards are the topic of the moment.

Important changes have come to the 2011 Standards, and there are two changes in particular that have gone relatively unnoticed with the current furor over the new certification requirement. I’ve already introduced you to the first one–that we are now surveying property as opposed to a plot or tract of land. Not only are we surveying property, the survey is to be “complete and accurate.”2 An accurate survey of property is any survey that identifies the true corners and the true boundaries of the property being surveyed. This can be done with or without measurements. This could be accomplished with a Boy Scout compass and a knotted rope. Boundaries and the resolution of the factual question (where is the boundary located) are not dependent on measurements. Measurements are merely evidence, and in many cases, not even the best available evidence.

The 2011 Standards have finally recognized the difference between an accurate survey and precise measurements.

A boundary corner or line may have a small Relative Positional Precision because the survey measurements were precise, yet still be in the wrong position (i.e. inaccurate) if it was established or retraced using faulty or improper application of boundary law principles.3

Resolving the boundary problem under the 2011 Standards now requires that:

The boundary lines and corners of any property being surveyed as part of an ALTA/ACSM Land Title Survey shall be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and survey.”4 [Emphasis added.]

I fully agree with this change and have been advocating for years that surveyors need to be surveying property boundaries and not simply slapping math on the ground. If all we are as a profession are people who can measure expertly, then society will not need us in the not-too-distant future. With the changes that are taking place with technology, soon anyone with the right tools will also be able to measure expertly. What will set us apart from all of the other expert measurers if not the fact that we survey property lines?

Let’s look at this new boundary law requirement and think of some possible ramifications. The first and easiest scenario is the surveyor who still claims to not be surveying property (the proverbial deed-staker). This surveyor is simply interested in putting some math on the ground and doing that as cheaply and quickly as possible. These are the surveyors who perform ALTA surveys for pennies on the dollar. After all, I can tell you with some precision–and if I’m familiar with the area I can tell you over the phone–how much it’s going to cost to lay out some math. All I need are two points on the ground, and I can expertly measure and lay out any math you want to give me. What I can’t tell you without getting involved in the project is how much it’s going to cost to survey your property. This is an evidence gathering and evaluation process that gets more complicated as conflicts in the evidence mount. The majority of boundary resolution cases are relatively straightforward, but every now and then the amount of work involved to render a well-reasoned opinion on the location of the property boundaries involved will exceed even the most generous lump sum budget estimate.

The surveyor who simply slaps math on the ground has applied no boundary law principles that I am aware of. When the map of survey is subsequently signed, sealed and delivered as a “2011 ALTA” survey that meets the standards, the surveyor may have just committed fraud. Black’s defines the elements of fraud as a “false representation of a … fact made by defendant [knowingly or unknowingly], action in reliance thereupon by plaintiff, and damages resulting to plaintiff from such misrepresentation.” The misrepresentation is that the survey meets the standards. Reliance will take place when the surveyor’s client takes action as a result of the survey (moves fences, sues adjoiners, shoots the neighbor, etc.). Damages are almost automatic in these types of cases. In such a scenario, all of the elements of fraud are in place. Will the surveyor be prosecuted in a fraud action? Who knows, but who wants that question hanging over his or her head?

Not only is fraud possibly in play, but so is professional negligence or malpractice. Black’s defines malpractice as “failure of one rendering professional services to exercise that degree of skill and leaning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage … to those entitled to reply upon [the professional].” What reasonably prudent professional would commit fraud? And by not applying any boundary law principles as required by the standard, the professional also fails in the exercise of the “skill and learning” that must be applied under the circumstances. This falls below anybody’s definition of the standard of care.

The ultimate issue in any boundary line dispute is “what” the property boundary is between the plaintiff and the defendant, and “where” that property boundary is located.5 Once upon a time, a land surveyor (any expert) was not responsible for having an opinion on the ultimate issue in a case. This was considered the exclusive province of the jury, and an expert in court could not give an opinion on the ultimate issue even if the expert wished to do so. That all changed with the adoption of the “Ultimate Issue Rule” under the Federal Rules of Civil Procedure (FRCP).6 Some estimates find the FRCP has now been adopted and/or adapted by 42 of our 50 states. Generally speaking, it is no longer objectionable for an expert to testify and give an opinion on the ultimate issue in a case. In the boundary dispute case, the ultimate issue for the land surveyor is the location of the property line. The correct answer to the ultimate issue is totally dependent on appropriate boundary law principles.

Keep in mind, the only reason for expert testimony in court is if the expert has something to offer the court that is useful and does not waste the court’s time. Also keep in mind there is no “right” to testify as an expert (give opinion testimony) just because one holds a license or certain credentials, or even in one’s own self-defense or in the defense of one’s professional work. Combining the 2011 Standards’ appropriate boundary law principles with the ultimate issue rule, it is easy to see how a surveyor with no opinion on the ultimate issue or who has applied no boundary law principles could be excluded from testifying as an expert, even at the surveyor’s own negligence trial. It is equally easy to see how the surveyor who has done both may be the only expert to testify at trial even when there are two competing surveys over a common property line. If you have to testify at trial–no matter the circumstances of that testimony–you want to be the only surveyor giving an opinion.

 

Have you read the 2011 Standards?

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.


References

  1. 2011 “Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys” (2011 Standards).
  2. 2011 Standards, sec.1.
  3. 2011 Standards, sec.3., subpara.E.iv.
  4. 2011 Standards, sec.3., subpara.D.
  5.  “What” is the property boundary is the legal question that will still, generally speaking, be the province of the judge. The judge determines the law at any given trial. “Where” the property boundary is located is a separate factual question that will ultimately be answered by the trier-of-fact. This is the question that the expert may be allowed or required to give an opinion on.
  6. Rule 704, Federal Rules of Civil Procedure.