For many attorneys and title companies, there is no conflict between what the deed describes and the occupied boundaries. If the evidence on the ground, i.e. occupation and existing monumentation, does not comport to the written description of location as contained in the deed, then what’s on the ground needs to be modified to comply. Whether modified or not, exceptions to title will be written into any policies issued, and the landowner will be on her own when the boundary dispute goes to court. The title company will defend the title as written-with due consideration of the caveats included in the exceptions-but not insure location.

Too many land surveyors are also onboard with this way of thinking-that title equals location and when in conflict, location conforms to title. The proof of this statement is easily found on the ground and in the maps surveyors issue to their clients and put on the public records.

This way of thinking is not the way the courts generally view the situation. When the deed is in conflict with the reality on the ground, it is the deed that yields to the fact of location. The courts in all jurisdictions have described the resolution of any boundary dispute as a two-part question of law and fact.

It is the role of attorneys to argue the question of “what” the property is in court or even to possibly advance the notion that what the boundary is has changed, as in adverse possession. This question, or even arguing this question, is beyond the purview of the land surveyor. This doesn’t mean the land surveyor ignores this question. Just like a stop sign, the legal question is, “What does it mean?” The factual question is, “Did you stop?” Every citizen is charged with knowing the law. It’s up to the legal profession to actually define it or argue that it means something else.

The factual question of location is completely different. This is the land surveyor’s question, and it is completely within the line and scope of the land surveyor’s duties and responsibilities to give an opinion on the location question. This is the only reason land surveyors hold an exclusive license to survey property. Not to argue the legal question of title, but to opine on the factual location question.  

A land surveyor can have a wrong opinion on location; that alone does not constitute negligence. On the other hand, if a surveyor argues title or even that title has changed, this is outside the practice of the land surveyor and entering into the practice of law. This is beyond negligence. The retracing land surveyor’s only duty is to find where the property boundaries have already been established on the ground (the fact of location), not to argue that location must necessarily change to conform to the title documents. They are two separate questions. This is the same thing the courts say the land surveyor is supposed to be doing.

When a land surveyor goes to the field and finds two monuments within a subdivision that gives the surveyor a geometric connection to the lot to be surveyed and then from these two monuments proceeds to lay out the geometry of the lot inconsistent with the established boundaries on the ground, the surveyor is not surveying property; the surveyor is giving a legal opinion on title. When a surveyor finds four locally accepted quarter-section corners and ties them in with GPS and then proceeds to break down the section for the umpteenth time driving in new irons in disagreement with the established boundaries on the ground, this is no longer surveying. The surveyor is advocating a position that title equals location. At least half of this question is the practice of law, not surveying.

The fundamental rules of surveying property are relatively simple and straightforward. You are either an original surveyor setting out new property lines for the very first time, or you are a following surveyor whose only duty is to find where the lines have already been established on the ground. There is nothing in between. There are no title questions to argue or advocate. The multiple monuments we leave in our wake evidence our confusion over these basic fundamental principles.

Look for an expanded version of this article in the October issue of POB. More information on this topic can be found in Lucas’ latest book, The Pincushion Effect, The Multiple Monument Dilemma in American Land Surveying (2011, Lucas & Co., LLC, Birmingham, Ala.)