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.)