Land Surveyor as Equity Judge

Many learned minds with a better understanding of the law or land surveying, or both, have expressed the idea that the land surveyor is both judge and jury when it comes to rendering a well-reasoned opinion on the location of property boundaries.

One of the most famous and oft-quoted, and a man who was arguably one of the greatest legal minds of his era, was Justice Thomas M. Cooley. Twice he spoke to the Michigan Association of Surveyors and Engineers in the late 1800’s, resulting in two versions of a paper entitled “The Judicial Functions of Surveyors.” The latter version of that paper published in “The Michigan Engineer” in 1883, is the version most widely quoted.[i]

As a consequence of bad surveying practice that resulted in litigation, Cooley also wrote many opinions on land surveying activity and the misguided thinking of the surveyor who “has mistaken entirely the point to which his attention should have been directed.”[ii]

On the issue of the surveyor’s judicial functions, from his paper first mentioned we find the following:

Surveyors are not and cannot be judicial officers, but in a great many cases they act in a quasi-judicial capacity with the acquiescence of the parties concerned; and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions.[iii]

Not long after the publication of Justice Cooley’s paper, Francis Hodgman, also from Michigan, picked up on this theme in his book, “A Manual of Land Surveying.”

In an old settled country, the principal work of the surveyor is to retrace old boundary lines, find old corners, and relocate them when lost. In performing this duty, he exercises, to a certain extent, judicial functions. He usually takes the place of both judge and jury, and acting as arbiter between adjoining proprietors, decides both the law and the facts in regard to their boundary lines. He does this not because of any right or authority he may possess, but because the interested parties voluntarily submit their differences to him as an expert in such matters, preferring to abide by his decisions rather than go to law about it.[iv]

Obviously, Hodgman took his cue from Cooley. Implied by Cooley but articulated by Hodgman, many early surveyors, including A.C. Mulford[v] of New York, also saw the surveyor’s role as a kind of mediator in settling boundary disputes. These were generally preventative operations. You can’t mediate a dispute when you are also the cause of the dispute.

With no known connection to Cooley or Hodgman, an early Illinois surveyor wrote a little treatise in 1891 entitled, “The Early Surveyors and Surveying in Illinois.” Enos made a similar observation about the judicial function of the land surveyor.

The Surveyor in the field has no opportunity to consult authorities, to counsel with others, or hold under advisement for subsequent adjudication. He must think and act for himself, and that quickly and firmly. In the discharge of his duties he combines the three-fold character of attorney, jury and judge. Of attorney, in bringing out and collecting the evidence; of jury, in determining the facts from the evidence; and of judge, in applying the law to the facts so ascertained.[vi]   

Frank Emerson Clark was an attorney and best known to surveyors for his book, “Clark on Surveying and Boundaries.” However, in 1939, Clark wrote an abstruse treatise called “The Fundamentals of Law for Surveyors,” in which he described the surveyor’s function in the following words:

When a surveyor is employed to establish the position of a point or line in which two or more persons are interested he should act as an honorable, unprejudiced party and seek to find the true position, regardless of consequences. … It is therefore of the utmost importance that the surveyor should act in the same manner as does a judge on the bench rather than as a partisan employee of one of the persons concerned. By performing his duties in this way, the surveyor makes friends and also gains the reputation of being just.[vii]

In more recent times the theme continues to be repeated. In 1965, F. Henry Sipe discussed the surveyor’s role in analyzing evidence and rendering decisions based on court opinions in his book, “Compass Land Surveying.”[viii] Ira Tillotson in his 1973 book, “Legal Principles of Property Boundary Location on the Ground in the Public Land Survey States,”[ix] referred to the land surveyor as “actually a court.”

In a little known 1975 publication entitled “Establishment of Boundaries by Unwritten Methods and the Land Surveyor,” Darrell Dean and John McEntyre drill down to the core reason the land surveyor is de facto judge and jury; the vast majority of land surveyor decisions are final because nobody can afford to take the land surveyor to court to have the surveyor’s judgment overturned.

The surveyor makes so-called quasi-judicial decisions when he decides such items as a stone is the original stone, that a fence intersection is the best evidence of an obliterated corner, or that a north bearing in a description meant parallel to the east boundary. Most of these decisions are never questioned, and if so never go to court, and become final. The Surveyor therefore makes the final decision in most boundary cases. In reality these are final, judicial decisions. The only factor that makes them quasi-judicial is that they are subject to review and possible change by the courts if a case goes to court.[x]

And that is a very big “if.”

Without casting myself on the same plane as all these great minds that have gone before, I have also written on the subject on many occasions in this column. My entire column in the November 2007 edition of this magazine was on this subject. But a distinction has been left out of all of these discussions that I think is ultimately important to understand this role of the land surveyor—and that’s the difference between the law and equity.

The justice system we inherited from England recognized two types of judges, the law judge and the equity judge. The law judge ruled on the law; that is what was written down in the law books, enacted by the legislative branch or otherwise decreed by the king, when the king had such power. If it wasn’t written down in the law books, the law judge had no remedy for you; you got kicked to the curb. However, people still had disputes that they needed the king to provide a remedy for. Two farmers would argue over the ownership of a pig and the law courts had nothing. Thus, we had the birth of mud-wrestling, but that’s a different story.

Eventually (over the course of several centuries), the equity courts (referred to in England as the Chancery) emerged as courts separate from the law to dispense “the rules of equity and good conscience.” In other words, the law judge rules on the law and the equity judge dispenses fairness in good conscience. In the pig-ownership dispute, the legal question is; What is the thing? It’s a pig. The factual question which equity is best suited to answer is; Who owns it? This is our metaphor for the boundary dispute.

The difference between the legal question and equity jurisdiction is very well described in the 1905 Illinois Supreme Court case of Krause v. Nolte.[xi] This was a boundary dispute case over the location of the center-quarter corner of a certain section of land back in the day when we still had separate courts of law and equity (today they are combined but the distinction lives on). The following quotations taken from the case, rearranged by me to best illustrate the point, explain a very difficult concept in American property law that not many can wrap their brain around, because the difference between the law question and equity considerations is the same as the difference between the question of title and the question of location.

The object of the suit, therefore, is to ascertain the true boundary line between the contiguous estates, and not to try the question of title on either side of the boundary. All that a survey does is to establish the line, and it does not determine the title to the real estate. The object [of a survey] is not to try the question of title on either side of the line, but to mark the place of the old line, where the ancient monuments are gone. [Similarly a] court of equity will not try title to land in a suit to establish boundaries. This question, being purely legal, was one for the courts of law, assisted as they are in respect to the findings of fact by a jury. Law and equity do not undertake to do the same things. In equity the object of the bill is to ascertain and fix the boundaries, without reference to the possession, and without affecting any legal rights that either of the parties may have acquired. We think, however, that the court lost sight of the real purpose of such acts, which is simply to restore lost bounds. It may be asked, of what avail is it to do this, if no conclusion follows as to title or possession? But this is a question with which we have nothing to do, as it affects the wisdom of the law.[xii]

The same can be said for the land surveyor as for the equity judge. In fulfilling the judicial functions of the land surveyor, the land surveyor acts as an equity judge. The questions for the land surveyor are not legal questions, they are factual in nature. The land surveyor has no prerogative to pass judgment on title, the surveyor’s only purview is a well-reasoned opinion on the location of established boundaries—nothing else. In this sense, yes, as Dean and McEntyre so rightly observed, the land surveyor is de facto judge and jury in the vast majority of boundary decisions made in this country. What seems to be missing is an understanding of equity. 

[xii] Id. at 364-365.