I haven’t studied the reverse rate in appellate courts but colloquially my impression is most boundary cases get reviewed on the facts which tend to result in affirms. In California those cases are usually not published so it’s harder to determine the rate of affirm vs reverse particularly before everything went into computer systems (vs. paper).
There will be variations among different jurisdictions. I remember reading a bunch of upper Midwest opinions, they tended to be very stable, “once again the law in this state is…” whereas in western jurisdictions there tends to be more tinkering with the law, at least the details.
@cflips if your surveyor located the invalidated pin it might be in your best interest to leave it alone as the court supported pin/location could be removed out of spite, leaving you with no idea where the corner is.
I will agree with your sentiment (my restatement?) about, "if the trial court erred" and the appellate court overturns, it is because the trial court got the law wrong, and "this" is the correct law to be used and its application; hence the "proper" (new) law is being used.
Not so much in the realm of "new" evidence, etc. UNLESS the court (jury?) clearly interpreted the evidence wrongly, and that evaluation is material to a particular effect, and/or applied it incorrectly, but USUALLY the trial court is pretty good at getting "the basics" correct.
Karoly raises a fair point about regional stability for property law, etc.
I find it annoying that people continually want to push the law beyond all recognition, mostly because of greed, arrogance, and ignorance.
It seems that people just push through and do what they do, despite it being wrong. But, you don't really know that until after the fact, and by that point everything is built, the harm is done, and the law doen't like to "undo progress", when an injunction would have been prudent until things were heard and decided.
And that is the quid pro quo in 2023. Do whatever you want now, because by time it's litigated (IF it is litigated), nobody will be willing to, or actually attempt to undo the damage caused by those bad actors.
Case in point: Politics & the Economy. But we can't talk about that...
I had a similar situation 15 years ago. Tagged rebar on R/S declared null and void by the trial court. I told client I can’t touch it but after I leave you are free to pull it if you want to, it’s on your property.
I had a similar situation 15 years ago. Tagged rebar on R/S declared null and void by the trial court. I told client I can’t touch it but after I leave you are free to pull it if you want to, it’s on your property.
Had a similar situation come up at the Board about 7-8 years ago. Surveyor called saying that court ruled accepting one survey or the other (both recorded maps) and judge told surveyor to pull his monument (section corner by the way). Surveyor asked if he was allowed to do that. After I reviewed the two surveys and the judgement recognizing that the court ruled solely on what were the property corners without ruling whether those or the other monuments were aliquot corners, I advised the surveyor to just walk away and tell the property owners they could do whatever they wanted after he left since its their property, but he shouldn't remove the monument.
I hope you gave the judge a courtesy call.
Nope. That would had just turned into a educational session for the judge and I'm not doing that for free
Surveyor called saying that court ruled accepting one survey or the other (both recorded maps) and judge told surveyor to pull his monument (section corner by the way). Surveyor asked if he was allowed to do that. After I reviewed the two surveys and the judgement recognizing that the court ruled solely on what were the property corners without ruling whether those or the other monuments were aliquot corners
Interesting. Were they not shown as aliquot corners on the ROS?
...actually, as I am typing this, was the PLSS monument really a lost corner restored by the surveyor, as opposed to being recovered?
Surveyor called saying that court ruled accepting one survey or the other (both recorded maps) and judge told surveyor to pull his monument (section corner by the way). Surveyor asked if he was allowed to do that. After I reviewed the two surveys and the judgement recognizing that the court ruled solely on what were the property corners without ruling whether those or the other monuments were aliquot corners
Interesting. Were they not shown as aliquot corners on the ROS?
...actually, as I am typing this, was the PLSS monument really a lost corner restored by the surveyor, as opposed to being recovered?
I don't recall the exact specifics since it was quite a while ago...but I recall that the ruling did not state that the corner in question was deemed the aliquot corner in terms of an official PLSS corner. More like the judge was deciding whose property was whose in a "Solomon" kind of fashion to resolve the dispute.
@MI-Other-Left.
Reading your most recent post, it looks like you, I and Old pacer have been mostly talking around each other while mostly agreeing on the underlying understanding of the roles of trial and appeals courts.
I, agree with you that the courts of appeals will very rarely, to the point of almost never, revisit the determination or veracity of facts recognized by the trial court, including the perceived reliability of witnesses. There must be clear error in that regard, and when found, results in the case being remanded. When a case is remanded for the trial court to redetermine the facts, it is almost always because the trial judge improperly excluded testimony or admission of facts which properly should have been considered. Or, even less common, because the trial judge improperly gave weight to some fact(s) which should have had no weight in light of the legal principle applicable to the case.
When retried, the result may or may not change and the evidence admitted at trial on remand may or may not be convincing to the trial court to reverse its prior judgment.
After having given nearly 8000 published cases at least cursory review and something nearing 2000 fairly thorough to very thorough review, I don't recall ever seeing one where an appellate court took in and based a ruling on evidence that the trial court did not first admit into evidence. So they do not take in new evidence.
I believe we are entirely in agreement on that point. Am I right or wrong?
However, all published opinions I've reviewed do review the trial court's application of law to the facts as determined by the trial court. Does your experience comport with mine in that regard?
Like Dave Karoly (I wouldn't be at all surprised if he has reviewed quite a bit more published case law than I have), I have not done a quantitative analysis of affirm/overturn rates. Bit those aren't the only two possible outcomes. A case can be partially affirmed and partially overturned, it can be partially affirmed and remanded for further trial level consideration of one or more aspects of the case, or it can be remanded for a complete retrial with the appellate level court opining not on the substance of the case at all but only on the procedural and/or legal application roles of the trial court.
Anecdotally, I'd estimate that (and this is limited to cases where the central issues are boundary and other land survey related matters) well over half are affirmed on all aspects. By no means have I been arguing that a case is likely to be overturned simply because it's been appealed.
I'd estimate that behind full affirmation, the next most common result is partial remand/partial affirm. Most of these tend to be affirmation on the core issue, sometimes finding some error with some aspect of the judgment yet deeming it to be harmless error by the judge. The most common remand seems to be on the matter of costs - whether the prevailing party is entitled to recover their legal fees and other costs related to the litigation.
Although it is less common that the trial court is overturned or the case remanded for reconsideration of some aspect of the central subject matter of the case - the boundary, it does occur often enough that I certainly would not consider it to be extremely rare. I'd guestimate that while a case being completely overturned on the substance is probably less than 5%, being partially overturned and particularly being remanded for some substantive matter has probably occurred in somewhere between 10% to 20% of the cases I've reviewed. Not enough to be considered common, but enough to not be considered rare.
As I stated previously, these instances are typically that the trial court either improperly applied the law of a boundary principle at question or perhaps applied the wrong principle and hence the wrong law. Sometimes this occurs when the judge is not familiar with the area of boundary law, one or both attorneys and maybe their experts either did little to clarify the law, or worse, tried to obfuscate it to hide the weaknesses of their clients' cases rather than showcase the strengths, and the judge attempts to essentially play Solomon by giving a little to each party, hoping the matter just goes away after trial.
Less commonly is it because the trial judge may have committed error as to the facts or evidence. In those instances, the error can more accurately be viewed as a procedural error. That is, not admitting evidence or testimony which should have been admitted (with the issue preserved by an objection in the record as MI-Other Left correctly stated) or allowing some fact or testimony in and improperly giving it weight in the judgment when it should have been irrelevant to the legal principle cited by the judge.
By way of analogy which may or may not make sense to you: If we are running a traverse with our total station, we will typically double (or repeat) our angles. If we're just doubling - this isn't for precise control, just our typical boundary survey - the primary reason isn't to attain a more accurate angle measurement, although that is one of the results. Modern equipment is such that the additional accuracy of that 2nd angle is typically marginal. The primary reason is to detect error in the first angle. And likewise, closing the traverse is primarily for error detection. The vast majority of the time, our second observed angle merely verifies that our first was turned with reasonable care and accuracy. Even if we find that we blow 1 angle in 1000, we still do it. Why?
Prudence. Even if on appeal (if appeal occurs) there may be only a 1%, or 0.1% likelihood that the survey accepted at trial is determined to be faulty because the surveyor failed to recognize the applicable boundary principle or ignored pertinent evidence and the survey rejected by the trial judge prevails in the end, why should a surveyor or landowner wait for the outcome of appeal or expiration of appeal period?
Prudence to avoid potential costly error on a matter that might still be ever so slightly open.
Nice dissertation Evan. I agree with your analysis re. appeals. With respect if it is acceptable to remove the pin that lost at trial the owner should simply ask the trial court that made the ruling. As a surveyor I would rather it stay for possible future reference but that's just my preference. Chances are slim either way that it will cause confusion or be appealed and remanded. Most owners wouldn't ask.
Although it is less common that the trial court is overturned or the case remanded for reconsideration of some aspect of the central subject matter of the case - the boundary, it does occur often enough that I certainly would not consider it to be extremely rare. I'd guestimate that while a case being completely overturned on the substance is probably less than 5%, being partially overturned and particularly being remanded for some substantive matter has probably occurred in somewhere between 10% to 20% of the cases I've reviewed. Not enough to be considered common, but enough to not be considered rare.
I disagree. Maybe Florida Laws are poorly written, causing a great number of appealed real estate, cadastral and water boundary cases to be further reviewed and statutes better applied in the appellant court. Because of the amount of Case Law in Florida, and its repetitive reaffirming, I survey different now than when I started surveying. There are survey rules on Section breakdown, fence occupation and environment jurisdiction, that if you follow and go to Circuit Court, you could win, but you WILL LOSE upon appeal.
Maybe I misspoke and I should have said ‘Florida’. I think if you did any quick research on “Florida Laws” “Florida Water Boundaries” or googled ‘case law’ on ‘boundaries’, ‘Section Line’, ‘riparian’, ‘right-of-way’, ‘subdivision’ or ‘easement’, you would find more than you expect.
As a surveyor I would rather it stay for possible future reference but that's just my preference.
I would prefer it be tied on a survey and either lowered a foot below grade or removed altogether. Conflicting evidence (to homeowners, especially future ones with no knowledge of the current proceedings) is never good. I have had all sorts of goat stakes assumed to be "the real corner" by one party or another.
Tie it on a survey, record the location in some manner, and its location is available to any future surveyor. In WA, the law would indicate that you would need to document the destruction of the monument, which would be a perfect way to accomplish the record.
When I became Morgan County Engineer in '98, the Common Pleas Judge, who wanted to meet me, came into my office and said "Welcome aboard! Here's a court order." I laughed and then read the order and discussed the issue with him to get some background. The important part, however, was the fact the dispute had been running for two years, and two surveyors had been involved, both of whom had set pins differing by a couple feet at one point. The Court ordered I determine the section line, monument it and remove all monuments that conflict with my determination.
Any court that deprecates a monumented boundary should order that conflicting monumentation be removed. If a surveyor wishes to locate the conflicting monuments of some reason, I don't see a problem, but conflicting monumentation is confusing for those following and should not be left in place.
@oldpacer Yep, FL water boundaries, based on the little bit of research I've done w.r.t. FL seems to have been in a state of flux in recent years. Not sure if it's just since the beach replenishment controversy from a few years ago or if it's gone on longer than that.
The things I've liked about boundary law is that it tends to be stable, in most aspects is fairly consistent between most jurisdictions, and usually boils down to common sense. I think a large part of the reason is that there isn't a political football involved so the legislatures and congress have little reason or incentive to mess with the principles.
Water boundaries though have locations and time periods where they have become political, and so inevitably, legislatures and activist judges have made law to change how they are handled and sometimes remove some of the sense from the attempt to locate them.
But FL water boundary rulings are more outlier than they are normal, so for the majority of boundary matters, for most jurisdictions, I stick with my previous observations.
The contrary can always be shown.
