Traversing The Law: Legal Opinion Aside, Surveyors Have The Facts
How do you know when you’ve got it right? For too long, the land surveyor’s test for correct results of boundary surveying activity has been a closure ratio. Just take a look at almost anybody’s minimum technical standards, and you will see what I mean.
- We Have to Start in the Beginning
- Appropriate Principles of Boundary Law
- Standard of Care and Best Available Evidence
- Establishing the Surveyor's Criterion
The only mention of accurate results has to do with the measurements the surveyor makes. This is because we are a measure-centric profession that seemingly only knows how to measure expertly. The problem with this fixation on measurements is that it causes our focus to be misplaced.
Is the object of a survey of property to have precise measurements or accurate results? You can measure and map the wrong property with precision. However, if it’s the wrong piece of property, the identification of the property and its location on the earth are totally inaccurate; you have incorrect results.
The issue of precise measurements equating to accurate results has been a matter of confusion in the surveying profession for far too long, but we continue to hang on to it because it gives us a mathematical test of our survey results. After all, you can prove your closure, but how do you prove that you have identified the true and correct property lines? Well, that’s what we are going to venture into here.
One of the biggest obstacles to recognizing correct surveying results for the surveyor, the title company, the lawyer and the judge is wrapping our brain around the difference between title and location. We have discussed this on many occasions in this column, but it must be repeated in order to get to our litmus test.
Title to property is the formal right of ownership. Title identifies “what” the property is and is itself a legal question. Given “what” the property is, the question then becomes where is that property located on the ground? The location of the property on the ground is not a legal question; it is a factual question. This is the surveyor’s question and the only reason surveyors are licensed by the state. Summing this up very nicely while touching on a few other important principles is the Supreme Judicial Court of Maine in the 1991 case of Theriault v. Murray:
We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained.1
So that we are clear, let me restate what seems to be obvious, yet is still a very perplexing subject for many land surveyors, lawyers, and the like. Title confers ownership to property with finite limits. The limits of that ownership constitute the location question. The surveyor’s job is to render a well-reasoned opinion on the location question; in other words, the limits of ownership. Who owns the property and to what degree are somewhat irrelevant questions. The relevant point is that there is an estate in land with finite limits. Where are those limits?
The surveyor, in the first instance — before there is a lawsuit — is the only professional licensed and sanctioned by the state to give a definitive answer to the location question. Neither the lawyer sitting in the office nor the judge sitting on the bench has the authority to do that. This is the surveyor’s purview. The surveyor’s opinion on the location question can certainly be challenged and, if wrong, corrected, but relative to all of the surveying activity that takes place across the country on a daily basis, this rarely ever happens.
Most of these [boundary location] decisions are never questioned, and if so never go to court, and become final. The surveyor therefore makes the final decision on most boundary cases. In reality these are final judicial decisions. The only factor which makes them quasi-judicial is that they are subject to review and possibly change by the courts if a case goes to court. 2
A new concept was introduced to us in 2011 with the adoption the “Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys” (the “ALTA Standards”). The concept is that in resolving the location question, the surveyor is to employ the “appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and survey.”3
This is so that the survey of “real property” performed under the ALTA Standards is acceptable to a title insurance company, that it is “free and clear of survey matters” that would affect the policy, by a surveyor who will be “professionally responsible” for rendering a map of survey that is “complete and accurate.”4
If you read enough boundary dispute cases, then you know the application of the appropriate boundary law principles is not a new concept; this is what happens in court. What’s new is that this is the first time I had ever read the concept written into a surveying standard of practice. The other point of interest is that the survey is to be “complete and accurate.” Does this mean an acceptable closure, or does this mean correct results relative to the location of the limits of ownership? I think we find the answer a little further down in paragraph 3.E.iii.:
Relative Positional Precision is a measure of how precisely the surveyor is able to monument and report those positions; it is not a substitute for the application of proper boundary law principles. 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.
It seems clear that a misapplication of legitimate boundary law principles or the application of arbitrary rules of surveying will render the survey inaccurate; therefore, a key ingredient of our litmus test must be application of the appropriate boundary law principle(s). Unfortunately, time and space will not allow us to go through all of the boundary location doctrines. I will just say this on that subject: If you do not know what they are and when they apply, you shouldn’t be performing boundary retracement surveys.
Perhaps, we can recap these principles in a future column.
As we discussed at length in my previous column (POB, June 2015), you are either an original surveyor laying out new lines for the very first time for a common grantor (a measurement and math task), or you are a retracing surveyor gathering and evaluating the best available evidence as to where the boundary lines in question have become established on the ground and rendering a well-reasoned opinion on the location question.
Retracement surveying is an evidentiary exercise, not a measurement task. Most boundary surveying being performed today is retracement work, not original surveys. We have abundant evidence that too many surveyors do not understand these two fundamental principles of surveying, or they are simply ignoring them in favor of measurements.
The standard of care for professional service providers has just about become a universal standard. It is the reasonable practitioner model; what the reasonably prudent practitioner would do under like or similar circumstances.
The duty of care that the Superior Court imposed in this case required the Graveses to demonstrate that S.E. Downey’s work on the survey was below that of an ordinarily and reasonably competent land surveyor in like circumstances. Courts in other jurisdictions have articulated the duty of care of land surveyors in similar ways. … We agree with the Superior Court that the duty of care a land surveyor is obligated to provide is that degree of care that an ordinarily competent surveyor would exercise in like circumstances.5
Next, let’s consider the case of Northrop v. Opperman, for a discussion of best available evidence in the boundary retracement context. Keep in mind these are factual issues, not legal.
The answer to the pertinent question — where is the boundary line? — must be established by the best evidence available. Monuments set by the original survey in the ground, and named or referred to in the plat, are the highest and best evidence. If there are no such monuments, then stakes set by the surveyor or soon thereafter are the next best evidence. Buildings, fences, and other substantial improvements built according to the stakes laid out while they were present are the next best evidence of the line. The time will soon come when [the boundary line] will have been lost by the destruction of all monuments, natural or artificial, and by the death of the old inhabitants. Then resort must be had to evidence of lesser degree to establish ancient boundaries, and long-continued occupation with respect to unchanged lines, and reputation, even, may be the best evidence available. The circuit court’s determination of the best evidence locating the boundary line in the survey/fence cases is essentially a finding of fact.6
If we are looking for a litmus test to measure property boundary surveying results by, your closure doesn’t cut it. Measurements are evidence, not boundary law principles. Given the facts and circumstances in the cases at hand, have you gathered the best available evidence that the reasonably prudent practitioner would gather in like or similar circumstances? The Northrop court gave plenty of examples of relevant boundary evidence to be considered. If so, then move on to Step 2.
You must now weight your evidence against the appropriate boundary law principles that are in play. You are looking for a preponderance of the evidence (the greater weight) that leads to one solution over the others in order to achieve correct results. In the vast majority of cases, the evidence will be overwhelming as to the correct answer. In some cases, it may be very close.
The final step is to document your results on a map of survey along with a report, if applicable. If you can explain your opinion on the location question and the reasoning behind it (the appropriate boundary law principles), then this is your test.
You now have an accurate survey depicting the limits of ownership of the property in question; this is, after all, what surveying boundaries is supposed to be all about.
- Theriault v. Murray, 588 A.2d 720, 721, 722 (Me.1991).
- Dean, Darrell R., Jr., John D. McEntyre, “Establishment of Boundaries by Unwritten Methods and the Land Surveyor,” ISPLS Surveying Publication Series, circa 1974.
- See Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, Effective February 23, 2001, at paragraph 3.D. Boundary Resolution.
- See Id. at paragraph 1.
- Graves v. S.E. Downey, 885 A.2d 779, 782 (Me.2005).
- Northrop v. Opperman, 2001 WI 5, 42, 47, 48 (Wisc.2011).
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.