Just a Mere Survey?
October 27, 2011
Land surveyors, by virtue of licensure, are given the responsibility of performing certain tasks suited to their unique expertise. This can give rise to a false belief in the extent to which our professional judgment can be applied to unilaterally solve problems or bring about a particular outcome for our client. In an unfortunate blow to our collective ego, a signed and sealed survey taken alone frequently has less effect than we would prefer to believe.
For example, surveyors are frequently called upon to survey a tract of land for a proposed subdivision. The process will generally include setting new monuments to define individual lot corners and laying out streets and other proposed easements, as well as drafting and recording a plat of survey. But does the recordation of a plat by itself actually create the roads and lots in question? Not according to the U.S. Supreme Court, which ruled on this issue in 1850.
Thus, it has been presumed, if one makes a plan of his land in a city with certain streets laid down between certain lots, and sells the lots accordingly, that he thus means to dedicate those streets to the public…And more particularly is it so if the community are allowed to begin to occupy the streets accordingly. But a mere survey of such streets, without selling the contiguous lots or letting the streets be occupied, is not enough.1 [Cites omitted, emphasis added]
Although the sale of lots within the subdivision will generally be construed as an implied dedication to individuals within that development, this may result in a private easement (as between grantor and grantee) rather than one intended for use by the general public. Even at this level, some evidence of acceptance of the proposed easement by the landowners within the development must be shown before the easement can be presumed to exist. Thus, the survey of the lands by the surveyor and the recordation of a plat are only two steps in a much longer process. While state statutes vary somewhat when addressing the specific mechanism by which easements may be dedicated to the public, the basic principles of common law dedication are surprisingly consistent across the country. Regardless of the specific process, dedication of an easement to public use must generally be accomplished by acts of express or implied dedication, along with some form of either an express or an implied acceptance by the public or some municipal authority in order to complete the process. As stated by Illinois justices:
An acceptance of a street by a city may be either express or implied. An express acceptance may be shown by some order, resolution or action of the public authorities made and entered of record. An acceptance may be implied from the acts of the public authorities recognizing the existence of the street and treating it as a public way. Proof of the existence must be unequivocal, clear and satisfactory… Where the deed or plat, if accepted, imposes a burden upon the city to improve and repair the street, acceptance cannot be presumed from the mere execution or recording of the plat or deed.
As there must be an acceptance by the public or the public authorities in order to make the act complete, the making and recording of a plat (and, by analogy, the making and recording of a deed,) to the municipality must be regarded, before acceptance, as a mere offer.2 [Cites omitted, emphasis added]
This principle holds regardless of the standard of precision attained by the original surveyor.
In certain circumstances, even the platting of an easement and the conveyance of parcels may not be deemed sufficient to create an easement. One Ohio case ruled that, although several parcels of a tract were surveyed showing a 15-foot easement along the entire side of the parcels, no right or easement was created despite the fact that the parcels had been sold to several grantees. This decision was made in light of the fact that there was no necessity for the easement, nor was it mentioned in any written grant.
In a 1907 case, the Georgia courts pointed out that one of the major rationales for the recordation of a subdivision plat is not to open the streets in question, but to define the location and limits of the proposed easements once they are put into condition and opened for public travel. This general principle is also reflected in North Carolina Statute § 136-102.6, which specifically states that even a certificate of approval on a recorded plat is not to be considered evidence of acceptance by the N.C. Department of Transportation.
The effect of a boundary survey is severely limited where it comes into conflict with ownership rights. Although surveyors are frequently more concerned with the retracement of boundary lines based on documents of record, we need to remain aware that the retracement of record boundary lines may at times come into conflict with unwritten rights such as parol agreement or adverse possession. The surveyor who always holds existing fence lines to the exclusion of all else is frequently vilified in our profession, but we must strike a balance between two extremes--that of blindly following every fence encountered, as opposed to routinely ignoring evidence of long-standing possession. Wisconsin case law weighs in on this issue:
Although at the time when a fence was built the exact location of the true boundary line was not known by the parties, yet where the line of the fence was considered to be such true line, acquiescence therein and undisputed possession up to the fence for over forty years raises a strong presumption that the line so recognized is the true line; and such presumption is not overcome by the mere fact that a survey, made long after government monuments have been obliterated or lost, reveals another line.3 [Emphasis added]
In such case, the primary role of the surveyor is frequently limited to determining the difference between boundary lines of record and those of possession, and factually representing the contentions of the parties on a survey.
It is not an uncommon occurrence for a landowner to retain the services of a land surveyor in order to attempt to block a possible adverse possession claim by an adjoining property owner, as I noted in my August 2010 column (“Knowledge in the Face of Adversity, Part 1,” www.pobonline.com). The cases reviewed from several states provide a clear indication that this tactic, if unaccompanied by some assertion of ownership by the property owner following the survey, will probably be ineffective.
In an early Pennsylvania case, a survey was deemed insufficient to interrupt the statute of limitations for an adverse possession claim. “A mere survey of land for the purpose of ascertaining its locality, is not a sufficient entry to interrupt the statute. There must be in addition something to show that the survey was made with a purpose of resuming possession, and the purpose must be unequivocally manifested.”4
Conversely, there is also ample case law to indicate that a survey is not considered sufficient evidence to prove an adverse possession claim without some significant evidence of acts upon the ground by the possessor. Although statutory and common law regarding adverse possession varies significantly from state to state,
A mere survey of land is not sufficient to establish possession. (Thompson v. Burhans, 61 N.Y. 52). “Adverse possession of unenclosed, uncultivated, unimproved, and unoccupied land is not shown by evidence, that one had it surveyed and its boundaries marked by monuments, paid taxes on it for a few years, and from time to time cut trees on it for use on other land.”5
Restrictions of the effect of a survey upon property rights go far beyond adverse possession; in fact, it is generally held that a landowner gives up no legal rights at all when a survey is performed regardless of which land owner the surveyor is working for. The Indiana courts provide a balanced opinion regarding the weight given to a properly performed survey in the case of conflicting title issues other than those contained in the record documents:
The owner of land who causes a survey to be made agreeably to the provisions of the statute, or who consents to a survey, loses none of his rights by such proceeding or consent. The fact that he has caused a survey to be made, or has consented to one, does not estop him from claiming title to his land notwithstanding such survey remains unappealed from. By such survey he is deprived of no right of action or defense arising from possession, or any other source of title. An official survey is, as the statute declares, prima facie evidence in favor of the corners so established, and the lines so run, and nothing more. Its legal effect is merely to furnish one species of evidence, which may or may not be material, in the determination of a question of title, and which may be entirely controlled and overcome by evidence of another kind, such as proof of adverse possession under claim of title for twenty years, a valid agreement with the adjoining owner for a different line, and the like.6
Thus even a survey performed completely within the realm of accepted surveying practice and applicable local statutes appears to constitute at best prima facie evidence of the correct location of the actual limits of ownership.
Although it might be hoped that the expert testimony of a licensed professional would be of great value during the course of a trial, the rules by which the courts operate limit the information upon which our testimony can carry authority. Many have heard the general principle that where boundaries are is a matter of survey, but what boundaries are is a matter of law. However, what is less obvious at first glance is the possible effect of this principle upon our ability to interpret deeds with contradictory or vague terms. For example, while the rules of construction establish a framework providing the surveyor with a mechanism to resolve conflicts between various elements of a deed, the application of this principle is generally considered by the courts to be a matter of law. Thus, the surveyor testifying as an expert witness may find that his or her professional opinion as to the intent of the parties (based on the words in a deed description) will be dismissed by the court. The Kentucky court was emphatic on this issue.
Upon the evidence of the surveyors it is earnestly insisted by counsel for the appellants that as their uncontroverted testimony shows that, according to correct rules in land surveying, this fifth line, calling as it does for a course “down the spur,” should be run on the crest of and with the meanders of the spur, this course should prevail. But the opinion of the surveyors cannot be allowed controlling influence in determining this question of law. If it were a question of fact, their opinion would be entitled to considerable weight, but how this line should be run is not, as we have said, a question of fact, but a question of law, to be determined not by the opinions of witnesses, but from the words of the patent, construed in accordance with the principles of law applicable in cases like this. We do not think the opinion of a surveyor on a question of law should be entitled to any more weight than the opinion of any other layman on a question of law, and, plainly, questions of law are not to be decided by the opinions of either expert witnesses or laymen.7 [Emphasis added]
Justices on the Michigan court (possibly following the lead of the illustrious former Michigan Chief Justice Thomas Cooley) published an extremely scathing opinion in 1959 regarding the limitations placed on the testimony of a surveyor as an expert:
In O’Brien v. Cavanaugh, the Court said: “There was no testimony of any other right, except that of a surveyor, who undertook to change the line as the result of an ex parte survey, based on certain starting points, which threw out of place all the lots in the neighborhood.
“We agree with the judge below that this survey could not lawfully be regarded. A surveyor has no more right than anyone else to decide upon starting points and other elements of location. We have had frequent occasion to refer to the mischief done by the officious meddling of such persons under some notion that it is within their province to unsettle possessions and landmarks.”
In Fisher v. Dowling, again the Court said: “We have had frequent occasion to condemn the assumptions of surveyors in determining lines and landmarks according to their own notions. They have no such right, and their assumptions are not lawful. There are few evils more annoying to public or private peace than the intermeddling with land boundaries, and the disturbance of peaceable possessions.”8 [Cites omitted]
While other examples no doubt exist, this opinion stands out for the total lack of regard with which the surveyor is apparently held. Surveyors will continue to apply the rules of construction in the performance of boundary retracements (and rightly so) but need to remain aware that the results of their work will be upheld only if they apply these principles in a way that is in agreement with those opinions stated by the courts. It seems obvious from the previous opinion that our profession has a steep hill to climb in order to gain its proper reputation in our legal system. If we do so, we can hope to see more balanced summaries of the responsibilities of the surveyor, as was the case in a much older Michigan opinion:
We have had occasion, in several instances, to point out that a surveyor cannot be allowed, under any circumstances, to fix private rights or lines by any theory of his own. Before a surveyor’s evidence can be received at all, it must be connected with the starting points and other places or lines called for by the grants under which the parties claim. His duty is neither more nor less than to measure geometrically in accordance with those data, and his science goes no further. It is not his business to decide questions of law, or to pass upon facts that belong to the tribunal dealing with the decision of facts. His testimony, as a man of science, is never receivable except in connection with the data from which he surveys, and if he runs lines they are of no value unless the data are established from which they are run, and those must be distinctly proven, or there is nothing to enable any one to judge what is the proper result.9
It is perhaps surprising that two quotes from the court system of the same state could yield such different attitudes toward the surveyor, but these may provide a clue as to the general trend in our professional reputation over time.
With all of the restrictions apparently placed upon us, just what is the surveyor allowed to do? It has been amply demonstrated that, rules of evidence and court opinions to the contrary, the value of opinions by professional land surveyors may also be judged based on three additional factors: (1) the professional reputation of the individual surveyor rendering the opinion, (2) the judge hearing the case, and (3) the reputation in general of the surveying profession in the community. If we continue to practice in a professional and responsible manner, we can hope to see more opinions that, while placing proper limits upon the discretion of the surveyor, give positive weight to a properly executed retracement, such as that found in this summary from American Jurisprudence:
A registered or licensed surveyor may testify as an expert witness, and is admissible in determining the boundary between properties. A surveyor can testify as an expert about work performed by other surveyors, and he or she can testify as to his or her own survey performed on the property in dispute. The surveyor’s expert opinion can be based on deed descriptions, field notes, maps, other surveys, points on the ground, facts proved by other witnesses, and hearsay evidence, but if a surveyor does not have a factual basis for his or her location of the property line, his or her conclusion is not evidence of the location of the boundary.10
References1. IRWIN v. DIXION – U.S. SUPREME COURT; 50 U.S. 10; 13 L. Ed. 25; Mar. 1, 1850
2. HILLMER CO. v. BEHR; 264 Ill. 568; 106 N.E. 481; 1914
3. Wollman v. Ruehle (1898), 100 Wis. 31, 34, 75 N. W. 425
4. Hollinshead v. Nauman; Pennsylvania; 45 Pa. 140; 1863
5. White v. Harris; 206 Ill. 584; 69 N.E. 519; 1903
6. Spacy v. Evans. - 152 Ind. 431; 52 N.E. 605; 1899
7. Carter v. Elk Coal Co. 173 Ky. 378; 191 S.W. 294; 1917
8. Poch v. Urlaub; 357 Mich. 261; 98 N.W.2d 509; 1959
9. Jones v. Lee; 77 Mich. 35; 43 N.W. 855; 1889
10. 12 Am Jur 2d Boundaries § 100 -- § 100 Testimony of & concerning surveyors
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time 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.