I was hoping that you would post an example.
I have one, the surveyor A found the field notes from the original surveyor, found the original monuments, reconciled the deed line just the way you suggest. Record vs measured. Same line, different numbers, who cares?
Enter surveyor B. He makes it look like there is a gap/overlap. He showed the dashed line from the surveyor A , and in a big bold line, the "math'ed" in fictional line. The title company comes unglued. Now us, surveyor C, and our client spending thousands because the second surveyor wouldn't do what you said.
Like I said, I was pretty sure we were on the same side.
[Dang! I done it again and typed too much. I apologize in advance for the length, but I have to break this up into multiple posts - EAP]
dmyhill, post: 359884, member: 1137 wrote: Ok, I am not trying to start a war, but this is an important discussion, and I have questions...
No war. We're just having a discussion. To give you a frame of reference, my earlier training in this profession had me thinking just as you are. My boundary training at that point was a few college courses (some with instructors that were quite knowledgeable but kept class content on a more basic level commensurate with the level of knowledge of the average student, and one or two who should not have been teaching the subject), the knowledge handed down from my employers, and an occasional search for a quick answer from one of the "Brown" books.
It wasn't until I went back to school to complete my degree in my mid-30s when I had a very good instructor for a boundary law class. The best and most basic lesson he taught was that there are no absolute rules when it comes to boundaries and the answers can often change on facts that may not be obviously pertinent at first glance. The most valuable exercise he assigned was to have us pick a boundary topic and research the law on it at the County Law Library. I had about 12 years of experience behind me at that point, but that exercise really opened my eyes that I knew a hell of a lot less about boundary surveying than I thought I did, and that much of what I knew, which was perhaps what the majority of practicing surveyors accept as true, was wrong.
I was surveying according to the rules of surveying rather than the laws governing boundaries and boundary location. Every rule of surveying has it's initial root in a legal concept, but has grown a life of its own apart from the law it was originally intended to reflect through poor instruction, misunderstanding, and lore passed down from a respected mentor to a young LSIT who eventually becomes someone else's respected mentor repeating the cycle.
When I began reading court opinions rather than relying on my limited understanding of the passages I had read in my books and what other surveyors were telling me, I found that the courts have often discussion in their opinions that are meant for direct consumption by surveyors, informing us what our duty is. These discussions often come at the expense of some poor sap who was certain that he had done the right thing because he limiting himself from fulfilling his actual duty and was working according to the rules of surveying.
It's not my intent to belittle you or to accuse you of incompetence, but in reading your posts, I can tell that you practice by the rules of surveying exactly as I understood them to be 20-some years ago, and that you are just as absolutely certain that you are doing it right, just as I was; just as many of my mentors were - surveyors I hold in high regard, but who I have come to understand as I continue to learn, didn't have as great an understanding of their duty as boundary surveyors as I once thought.
dmyhill, post: 359884, member: 1137 wrote: I can obtain and offer evidence, and even expert advice concerning that evidence, but I know of nothing about my license or profession that allows me to determine the fence or hedgerow to be the boundary in fact. Perhaps I am ignorant of where that power comes from, if that is the case, I greatly appreciate any references to the applicable laws.
That statement illustrates a common misunderstanding by adherents to the rules of surveying when they hear or read something that contradicts some of the basic tenets of the rules. I did not say that the surveyor would determine that the fence or the hedgerow is the boundary. The fence or hedgerow may however be the best evidence of the true boundary location. The only way to know that is to investigate the history of the fence, hedgerow, wall, or whatever it is that may indicate the presence of an established location of the boundary. You need to find out when it was placed, who placed it, by what means did they determine the location to place it, did landowners on both sides recognize it, etc.
Courts have repeatedly told us that our duty when surveying an existing boundary is to find the location where it was originally established on the ground. They have further been very clear that it is not our duty nor our right to locate a boundary line where our measurements indicate it was supposed to be if that location is in conflict with evidence of the boundary established in a different location.
PM me and give me your email. Rather than providing a handful of cases to illustrate the point, I'm going to send you a portion of American Jurisprudence where it discusses locating existing boundaries. The best way to get started researching law on a topic is to first look the topic up in a legal encyclopedia like Am Jur. They explain basic principles in a few sentences and provide several citations to the court cases where the principles were explained. You then go to those cases and can expand your search by pulling the cases referenced in the case your reading, or by looking to see which cases cited the case you are reading and going to them to see if they elaborate, or how the principle may have been applied to slightly different facts.
dmyhill, post: 359884, member: 1137 wrote: It is the purview of the court, not the surveyor to determine the fact of the boundary. I do not own the property, nor do I have judicial power. I am not aware of any power that I have to grant anyone any land. In fact, that is the argument of the original OP's article. Surveyors should offer what they CAN do, which is a BLA, etc.
Yes, it is the purview of the trial court to determine and rule on the relative value of evidence to ascertain the facts of the case. But I don't know where you have found it written that the surveyor is powerless to determine the facts as well, although I know that is a basic tenet firmly rooted in the rules of surveying. While you will be able to find cases that tell the surveyor to determine and consider as many relevant facts as possible, I'm quite certain that you will not find a single appellate level case that says that the surveyor may not determine the facts.
Surveyors do not have judicial power in that they cannot bind landowners to the decisions made during the survey as a court can bind parties to their decisions. But surveyors do have and must exercise "quasi-judicial" powers. That means that they must investigate and consider all of the relevant facts and apply the law as instructed to do by courts through past published decisions. If the landowners accept the results, then our decisions have the same effect as those of a judge. If one or both landowners challenge our decisions, then our survey is subject to review by a court of competent jurisdiction. Our survey may be upheld, or it may be overruled.
When you do find discussion in court opinions about matters of law vs matters of fact, it will always be in the context of the role of the trial court vs the role of the appellate court. At that point of the discussion, they aren't giving the slightest thought about what the surveyor did or should have done. They are discussing whether or not the appellate court has jurisdiction. If the appeal is on a point of law, the appellate court has jurisdiction. Unless the trial judge made a clear error in determining the facts, the appellate court has no jurisdiction. In most cases, they must accept the facts as determined by the trial court.
The trial court will make decisions as to the facts and as to the law. The trial court does not refrain from making decisions on law simply because the appellate court has superior jurisdiction on matters of law. The trial court fully makes its decisions on fact and law with the goal of leaving no grounds for appeal, or if there are grounds for appeal, so that their decision will be upheld by the higher court. If the trial court declined to apply the law because the appellate court has jurisdiction over matters of law, they practically force the parties to go to the cost of appealing the decision to get the right answer.
That would make no sense whatsoever. Likewise, when the surveyor claims to have no authority to determine the facts or to apply the law, they are telling the landowners that if they want a definitive answer as to where their true boundaries are, they need to go to the expense of hiring lawyers and going to court. It makes no sense but it is the thing to do according to the rules of surveying.
eapls2708, post: 359925, member: 589 wrote:
It wasn't until I went back to school to complete my degree in my mid-30s when I had a very good instructor for a boundary law class. The best and most basic lesson he taught was that there are no absolute rules when it comes to boundaries and the answers can often change on facts that may not be obviously pertinent at first glance. The most valuable exercise he assigned was to have us pick a boundary topic and research the law on it at the County Law Library. I had about 12 years of experience behind me at that point, but that exercise really opened my eyes that I knew a hell of a lot less about boundary surveying than I thought I did, and that much of what I knew, which was perhaps what the majority of practicing surveyors accept as true, was wrong.
Evan, this is amazing. I had the exact same experience with probably the same professor. I always think of this when surveyors start demeaning the boundary knowledge that surveyors acquire through getting a degree.
[Part 2]
dmyhill, post: 359884, member: 1137 wrote: Why wouldn't I fully investigate it? I hope everyone would. And in the end I place my marks where, in my professional opinion, they belong per the deed. The question is whether a deed is a mere suggestion, and we are to divine the real thoughts of the grantor?
The assumption is that the deed indicates what they intended (or it would be invalid or fraudulent.) If there are called out monuments, certainly they control, but then, they are part of the deed, aren't they? Perhaps you are assuming that I am looking for an easy way out? Or that I am advocating poor surveying. I am not. I am saying I have no power that I know of to grant land.
There's that clear illustration of misunderstanding in hearing or reading something that was not said. No one said anything about divining thoughts. You can only find evidence of intent. The deed is primary evidence, but courts have long understood that reducing a boundary to words is a very difficult task that few do with a high degree of accuracy or fully effectively. Anytime a description is dependent upon measurements, you are guaranteed to have some level of latent ambiguities.
With such a description, the first questions you need to ask are: Who made the measurements? What was their level of skill? What equipment did they use? Was that equipment in good condition? What were the site conditions and weather at the time those measurements were made? Did they correctly identify their starting point? Did they close their measurements? What was their error of closure and did they adjust the misclosure? How did they adjust the error out? Did they really measure at all or did they look at a record map and make assumptions about directions and distances based on those even older measurements?
Most often, you won't be able to determine the answers to most (or any) of those questions with reasonable certainty. The important point is that you must realize that the dimensions in the description are not absolute known quantities. They are based on measurements made at some time by somebody. The older the description, the more error there is likely to have been in those measurements. Any time, every time you are surveying an existing boundary defined by dimensions, you need to consider the errors that were likely to have existed in the original measurements.
Consider the hypothetical: In 1875, a surveyor (no licensed surveyors or recorded maps in WA in 1850) is hired to mark the boundaries of a parcel that is 10 ch long by 5 ch wide. His equipment is a staff compass for line and a 16.5' pole for distance. He brought these with him when he emigrated from NY where he had worked as a surveyor for many years. His compass reads to the nearest 1/4 degree and has no vernier for finer measurements. It can be set for declination and he has estimated that declination to be 10 degrees east of north. He bought the pole new when he first went into practice and it has served him well for many years. Unfortunately, he has not considered shrinkage of the wood or taken note that the ends have worn down a bit. If he were to check it against a calibrated pole or chain, he'd find that it's now 16.4' long.
His POB is a mound of stone left by the GLO to mark a section corner and after laying the pole down 40 times, he sets a stake and proceeds around, setting a stake for each corner. The grantor and grantee are satisfied. The description included in the deed reads "Beginning at the SE section corner, thence west along the south line of the section 10 ch, thence north 5 ch, thence east 10 ch, thence south along th eeast line of the section 5 ch to the POB."
After the surveyor leaves, the grantee builds a fence, taking care to line it up between the surveyor's stakes, setting the corner posts right where the surveyor set his stakes. Grantor observed and was satisfied that the grantee was diligent to stay on surveyor's lines. The fence has been rebuilt a couple of times since, but the corner posts have always been reset precisely in the holes where the old posts were.
In 2016, the current owner, the 100 year old grandson of the original grantee wants to divide the parcel into 5 1-acre parcels so he hires a surveyor. Since there was no recording law in place, there is no filed map of the original survey. Since the original grantor and grantee simply wanted to see the corners on the ground in order to build the fence, they did not pay the original surveyor to make a map. There is no record of the original survey other than the indication that measurements may have been made to use in the description. The 2016 surveyor finds that the fence encloses an area of about 656' x 328' rather than the record 660' x 330'.
By the rules of surveying, the surveyor in 2016 is supposed to stake out a 660' x 330' rectangle, show the fences to be off the lines, and when asked about the difference by the client, tell the old geezer to hire a lawyer because a judge needs to sort it out. Nevermind that going that route to find out where his boundaries really are and what he really owns is going to take at least 5 years and cost him over $100,000, or that the stress alone is going to kill him well before the matter is resolved. The surveyor is satisfied that he has done exactly what is expected of him and done it well.
But if the surveyor, upon discovering the discrepancies between the fence locations and the distances he measured, decides to investigate the history of the parcel and the fences, he finds that the parcel has been in the same family since 1875, with only three transfers since (original grantee to son, son to son's widow by will, son's widow to grandson & current owner). Upon speaking with the client to see what he knows about the history of the property, he finds that the grandson remembers grandpa talking about how he spent his life savings as a young man to buy the land and have it surveyed, remembers grandpa saying he put his fence corners right where the surveyor's stakes were, remembers his dad describing replacing the fence as a boy, and remembers himself with his dad doing it again about 70 years ago, taking care to put the new corner posts in the exact same place as the old posts.
If the surveyor is practicing according to the laws governing boundary location, the primary purpose of his licensing, he will determine that the fence corners are the best evidence of the corner locations intended by the original grantor and grantee and report his findings accordingly.
If the surveyor is practicing according to the rules of surveying (which are not found anywhere in the law), even being aware of this history, he will declare the boundary to extend 4' farther west and 2' farther north, locations where it never has previously existed (and so create new boundaries contrary to his duty to only find the existing original boundaries), and still direct the client toward a journey he is ill equipped to make and shouldn't have to consider.
When surveying boundaries where significant discrepancies are found between deed dimensions and physical evidence on the ground, the surveyor needs to view the task not as one of merely identifying, measuring and reporting evidence to reconstruct a geometric figure, but of determining the facts to reconstruct how, when, and by whom that figure was first constructed on the ground. The more of the story you can put together, the more comfortable you will be with your decisions to accept or reject certain evidence.
dmyhill, post: 359884, member: 1137 wrote: Are you advocating that I stake an AP line as the boundary prior to the bringing of any suit, much less the adjudication of the case?
I would rather not...do you do this?
That is yet another statement commonly heard by the adherents of the rules of surveying that is not actually said by those who advocate properly applying the law to the facts.
I'll counter with my own question: Why would you automatically assume that when an established line is found to not match up with deed dimensions that it is an indication of possible AP? Why wouldn't you consider that it may be an indication of the result of the measurements of the described parcel by the original surveyor or by the original grantor & grantee?
There are those instances when a visible line of occupation is in a different location than the true boundary as indicated by stronger evidence. The occupation in those cases may be the basis of a potential claim of title by AP. But even if I ascertain that all of the elements for AP appear to have been satisfied, I'm not going to monument that line and call it the new boundary.
If the landowners agree to move the boundary to that location, I'll assist them in executing a lot line adjustment. But I won't call that line of occupation the boundary until the landowners execute an LLA or a court of competent jurisdiction files a ruling on the matter.
We're not talking about AP here though. We're talking about appropriately established boundaries which are not described with perfection.
[Double Dang!! Still too long.]
[Part 3 - and the last part. I promise]
dmyhill, post: 359884, member: 1137 wrote: And...Why wouldn't you do the full work? I am curious what about my statement makes you think that there wouldn't be a full investigation?
I'm not questioning your diligence, but I do think that perhaps you don't recognize what that full investigation is because you may not recognize what facts may be relevant and valid for you to consider.
A surveyor practicing according to the rules of surveying locates a fence in the vicinity of the boundary. There is no mention of a fence in the description, no monuments remaining at the corners, and the fence location is somewhat off from where the deed dimensions, if taken as infinitely accurate (as the rules require) would place the boundary. For this surveyor, the answers to the questions of who, when, why, and how are irrelevant to his boundary decisions. He may show the fence location, and may report some of the "who, when, why, and how" if he happens to have learned some of that as side info in conversations with the client. But in the end, he considers the effect of those facts to be solely the province of a judge. According to the rules, it is not for the surveyor to consider these things.
For the surveyor practicing according to the laws governing boundaries, the answers to these questions, and not the surveyor himself, will determine whether the fence is reliable evidence of the original boundary location (the one the law directs him to locate), or if he needs to look to other evidence.
If I am left with nothing but the deed dimensions to place the boundary, I've either failed in my investigatory duty or there is nothing reliable left to find. Where the courts have weighed physical evidence against measurement evidence, they have universally recognized that measurements have repeatedly been shown to be prone to error and should be resorted to only in the absence of physical evidence of the actual line on the ground.
dmyhill, post: 359884, member: 1137 wrote: It is the ONLY thing to do, perhaps. If I tell a person that their best option is a BLA, haven't I started giving legal advice? This guy is saying that the surveyor shouldn't say it is the best way, a BLA, but to confidently start off and offer it as a solution, rather than "punting" to the legal eagles. I think I agree with him. A profession of trouble makers is destined to be hated and to fail. We should be solution providers. But, advocating sticking your head in the sand as a solution (eg call the fence line the deed line, when there is no fact of it being the deed line) simply creates additional problems. We clean those up as well, BTW.
In this statement, I think you will find that we are very much in agreement if we can just dispense with one fundamental misunderstanding.
No one (save Richard Schaut, RIP) has advocated that you call a fence line the deed line, or even that you call it the best evidence of the true location of the deed line without proper supporting information. When you determine the intent of the original parties, it is not an exercise of divining. No Ouija boards, no Kreskin's pendulum, and no wild azz guesses have any place in the process. It is a matter of investigating historical facts to recreate the scenario as closely as you can so that you can show definitively, or have enough info to make solid presumptions based on facts that you do know.
Put yourself in the position of being Joe Landowner, original grantor (or original grantee) at the time of the original conveyance. How would you have established the boundary if you had limited survey knowledge and limited tools? Look for indications that those types of actions had been taken and then look for signs of actions and ask questions to gain info to see if any of it validates any hypothesis you can think of by which someone might make a good faith attempt to place the lines and corners on the ground. If you find enough evidence/info to validate one of those hypotheses, you've probably found the true boundary as it exists. Report it as found, not where dimensions would have put it had those original measurements been made with unattainable perfection.
If after the full exercise of investigating the boundary location, the surveyor finds that there are still problems with discrepant title lines vs occupation, or problems with the description itself, the surveyor should offer to help facilitate an appropriate solution.
Suggesting one or more appropriate solutions is not the practice of law. It's one of the things a surveyor should be able to do. One crosses into the practice of law when one begins advocating for his client's interests regardless of what he believes a complete consideration of all the evidence directs the result to be. The attorney advocates for what his client wants, highlighting or inflating the significance of favorable evidence while downplaying the significance or trying to get the court to overlook unfavorable evidence. The surveyor must view it more like the judge is supposed to, giving appropriate weight to all relevant evidence without bias for or against any affected party.
dmyhill, post: 359884, member: 1137 wrote: What would be best, for me to understand what you are talking about, is for you to post an actual factual survey that you did, where you applied those principles. I am guessing that we aren't too far off each other's view. (Just a link or recording number would work as well.)
I'll see what I can find over the next few days that illustrates my points fairly well. I'll also look to see if I have copies of any of the maps of surveys I worked on under the guidance of a previous employer when I worked according to the rules of surveying.
Apparently, my part of the conversation was much longer than I thought. I even communicated things I never said, nor thought.
I humbly submit that your previous approach to surveying is unique to people with your type of outlook. That is not me.
I quickly skimmed your diatribe/confession/manifesto, but didnt see any answers to my honest questions.
So, please, the best way to teach me is to simply post one of your surveys that illustrate your approach. For instance I would love to see where you held a hedge over a clear deed, with original centerline or PLSS monuments present and in good shape. I am quite curious how things are done by others.
dmyhill, post: 359943, member: 1137 wrote: Apparently, my part of the conversation was much longer than I thought. I even communicated things I never said, nor thought.
I humbly submit that your previous approach to surveying is unique to people with your type of outlook. That is not me.
I quickly skimmed your diatribe/confession/manifesto, but didnt see any answers to my honest questions.
So, please, the best way to teach me is to simply post one of your surveys that illustrate your approach. For instance I would love to see where you held a hedge over a clear deed, with original centerline or PLSS monuments present and in good shape. I am quite curious how things are done by others.
Sometimes the same things are said different ways or we, in our binary, side taking ways ascribe thoughts to someone they don't have.
My only point to put across is the law is readily available, now more than ever before, we should study the actual law and apply it to the ground. I don't take sides in the sense of always or never occupation or always or never record title lines. Boundary location is a question of fact.
If I was practicing in Washington I would look at this treatise at the law library:
http://legalsolutions.thomsonreuters.com/law-products/Practitioner-Treatises/Real-Estate-Property-Law-and-Transactions-2d-Vols-17-and-18-Washington-Practice-Series/p/100001813
Look up boundaries, adverse possession, deeds, and easements to start.
dmyhill, post: 359943, member: 1137 wrote: I quickly skimmed your diatribe/confession/manifesto, but didnt see any answers to my honest questions.
So, please, the best way to teach me is to simply post one of your surveys that illustrate your approach. For instance I would love to see where you held a hedge over a clear deed, with original centerline or PLSS monuments present and in good shape. I am quite curious how things are done by others.
That you would ask me to post a map of a survey where I would hold a hedge (or other line of occupation) as the boundary indicates to me that even your quick scan of my diatribe/confession/manifesto failed to catch any of the points I made. Had you read it, you would have found that I did address your questions, unless those questions were a veiled attempt to pull out a "gotcha".
Let me help you with the "gotcha". I have never performed a survey where I held a hedge as the boundary as I cannot recall ever surveying a parcel that was described as having a hedge control part of the boundary.
If you don't understand how that statement stands in agreement with my diatribe, then you've illustrated the depth of reading that surveyors who subscribe to the rules of surveying normally put into boundary texts. You say that I've made unfounded assumptions about how you practice, but your response indicates that I pegged it.
For someone who says they didn't want to start a war (and I responded assuming you actually were interested in learning something), throwing a thoughtful response in the figurative garbage without even reading it clearly says otherwise.
Posting any maps to illustrate the points I made will do no good as you will not look at them to understand those points. Likewise, any additional explanation will fall on blind eyes, so I see no point. I'm done here.
I thought the purpose of this site was for the exchange of ideas, opinions, and knowledge, not to attack other members.
billvhill, post: 360244, member: 8398 wrote: I thought the purpose of this site was for the exchange of ideas, opinions, and knowledge, not to attack other members.
To criticize one's point of view is one thing, but to attack the person is unprofessional.
It must be okay because its not you thatÛªs under attack and then to start another blog and be proud to be a part of that. I see many blogs about how surveyors are not considered professionals like other professions and most of the blame is placed other surveyors who don't know how to survey or conduct themselves. I think it time to look into the mirror and see what's your participation in this.
billvhill, post: 360363, member: 8398 wrote: To criticize one's point of view is one thing, but to attack the person is unprofessional.
It must be okay because its not you thatÛªs under attack and then to start another blog and be proud to be a part of that. I see many blogs about how surveyors are not considered professionals like other professions and most of the blame is placed other surveyors who don't know how to survey or conduct themselves. I think it time to look into the mirror and see what's your participation in this.
Maybe I am the insensitive a$$ my wife claims. I didn't see any attacks in this thread, saw some criticism of external data but no direct attacks against fellow beerleggers. [USER=10323]@James[/USER] certainly didn't seem to interject hostility.
vern, post: 360413, member: 3436 wrote: [USER=10323]@James[/USER] certainly didn't seem to interject hostility.
No Vern, he's right.
billvhill, post: 360363, member: 8398 wrote: I see many blogs about how surveyors are not considered professionals like other professions and most of the blame is placed other surveyors who don't know how to survey or conduct themselves. I think it time to look into the mirror and see what's your participation in this.
I spent much of last night in deep self examination and I've come to the unfortunate, yet obvious, conclusion that the problems confronting the profession today neither stem from lack of education, poor mentoring, an over reliance on technology, or any other idea that's been tossed out over the years. No, the root cause of all our problems is...me.
What will I do to solve this problem you ask?
VERN
So if youÛªre quitting the life, whatÛªll you do?
JAMES
ThatÛªs what IÛªve been sitting here contemplating. First, IÛªm gonna deliver this survey to Marsellus. Then, basically, IÛªm gonna walk the earth.
VERN
What do you mean, walk the earth?
JAMES
You know, like Caine in ÛÏKUNG FU.Û Just walk from town to town, meet people, get in adventures.
VERN
How long do you intend to walk the earth?
JAMES
Until God puts me where he want me to be.
VERN
What if he never does?
JAMES
If it takes forever, IÛªll wait forever.
VERN
So you decided to be a bum?
JAMES
IÛªll just be James, Vern ÛÒ no more, no less.
VERN
No James, youÛªre gonna be like those pieces of s#&t out there who beg for change. They walk around like a bunch of f#@$inÛª zombies, they sleep in garbage bins, they eat what I throw away, and dogs piss on Ûªem. They got a word for Ûªem, theyÛªre called bums. And without a job, residence, or legal tender, thatÛªs what youÛªre gonna be ÛÒ a f#@$inÛª bum!
JAMES
Look my friend, this is just where me and you differ ÛÒ
VERN
ÛÒ what happened was peculiar ÛÒ no doubt about it ÛÒ but it wasnÛªt water into wine.
JAMES
All shapes and sizes, Vern.
VERN
Stop f#@$inÛª talkinÛª like that!
JAMES
If you find my answers frightening, Vern, you should cease askinÛª scary questions.
Maybe he's speaking of my last post. It could be seen as an attack, but wasn't meant that way. I was expressing frustration of having spent a fair amount of effort trying to explain how boundary surveyors should approach their work, and the evolution of how I got from the point of view behind the method of practice indicated by another participant's posts to having learned from more knowledgeable surveyors to my current (and still progressing) level of knowledge, and in response to his requests for such explanations, only to have those explanations ignored and essentially defecated upon.
I'll take a lot of time and put in a decent effort when someone is actually interested in learning something, but have come to get a bit short tempered when they expose their motives as something else. I feel no need to apologize for my frustration.
James, I'll share the blame with you, but I'm not going to walk the Earth with you and be a bum. It would be a less stressful existence, but I think my kids would still manage to track me down and demand money from me - or roll me for the spare change that others toss at me.
eapls2708, post: 359925, member: 589 wrote: [Dang! I done it again and typed too much. I apologize in advance for the length, but I have to break this up into multiple posts - EAP]
No war. We're just having a discussion. To give you a frame of reference, my earlier training in this profession had me thinking just as you are. My boundary training at that point was a few college courses (some with instructors that were quite knowledgeable but kept class content on a more basic level commensurate with the level of knowledge of the average student, and one or two who should not have been teaching the subject), the knowledge handed down from my employers, and an occasional search for a quick answer from one of the "Brown" books.
It wasn't until I went back to school to complete my degree in my mid-30s when I had a very good instructor for a boundary law class. The best and most basic lesson he taught was that there are no absolute rules when it comes to boundaries and the answers can often change on facts that may not be obviously pertinent at first glance. The most valuable exercise he assigned was to have us pick a boundary topic and research the law on it at the County Law Library. I had about 12 years of experience behind me at that point, but that exercise really opened my eyes that I knew a hell of a lot less about boundary surveying than I thought I did, and that much of what I knew, which was perhaps what the majority of practicing surveyors accept as true, was wrong.
I was surveying according to the rules of surveying rather than the laws governing boundaries and boundary location. Every rule of surveying has it's initial root in a legal concept, but has grown a life of its own apart from the law it was originally intended to reflect through poor instruction, misunderstanding, and lore passed down from a respected mentor to a young LSIT who eventually becomes someone else's respected mentor repeating the cycle.
When I began reading court opinions rather than relying on my limited understanding of the passages I had read in my books and what other surveyors were telling me, I found that the courts have often discussion in their opinions that are meant for direct consumption by surveyors, informing us what our duty is. These discussions often come at the expense of some poor sap who was certain that he had done the right thing because he limiting himself from fulfilling his actual duty and was working according to the rules of surveying.
It's not my intent to belittle you or to accuse you of incompetence, but in reading your posts, I can tell that you practice by the rules of surveying exactly as I understood them to be 20-some years ago, and that you are just as absolutely certain that you are doing it right, just as I was; just as many of my mentors were - surveyors I hold in high regard, but who I have come to understand as I continue to learn, didn't have as great an understanding of their duty as boundary surveyors as I once thought.
That statement illustrates a common misunderstanding by adherents to the rules of surveying when they hear or read something that contradicts some of the basic tenets of the rules. I did not say that the surveyor would determine that the fence or the hedgerow is the boundary. The fence or hedgerow may however be the best evidence of the true boundary location. The only way to know that is to investigate the history of the fence, hedgerow, wall, or whatever it is that may indicate the presence of an established location of the boundary. You need to find out when it was placed, who placed it, by what means did they determine the location to place it, did landowners on both sides recognize it, etc.
Courts have repeatedly told us that our duty when surveying an existing boundary is to find the location where it was originally established on the ground. They have further been very clear that it is not our duty nor our right to locate a boundary line where our measurements indicate it was supposed to be if that location is in conflict with evidence of the boundary established in a different location.
PM me and give me your email. Rather than providing a handful of cases to illustrate the point, I'm going to send you a portion of American Jurisprudence where it discusses locating existing boundaries. The best way to get started researching law on a topic is to first look the topic up in a legal encyclopedia like Am Jur. They explain basic principles in a few sentences and provide several citations to the court cases where the principles were explained. You then go to those cases and can expand your search by pulling the cases referenced in the case your reading, or by looking to see which cases cited the case you are reading and going to them to see if they elaborate, or how the principle may have been applied to slightly different facts.
Yes, it is the purview of the trial court to determine and rule on the relative value of evidence to ascertain the facts of the case. But I don't know where you have found it written that the surveyor is powerless to determine the facts as well, although I know that is a basic tenet firmly rooted in the rules of surveying. While you will be able to find cases that tell the surveyor to determine and consider as many relevant facts as possible, I'm quite certain that you will not find a single appellate level case that says that the surveyor may not determine the facts.
Surveyors do not have judicial power in that they cannot bind landowners to the decisions made during the survey as a court can bind parties to their decisions. But surveyors do have and must exercise "quasi-judicial" powers. That means that they must investigate and consider all of the relevant facts and apply the law as instructed to do by courts through past published decisions. If the landowners accept the results, then our decisions have the same effect as those of a judge. If one or both landowners challenge our decisions, then our survey is subject to review by a court of competent jurisdiction. Our survey may be upheld, or it may be overruled.
When you do find discussion in court opinions about matters of law vs matters of fact, it will always be in the context of the role of the trial court vs the role of the appellate court. At that point of the discussion, they aren't giving the slightest thought about what the surveyor did or should have done. They are discussing whether or not the appellate court has jurisdiction. If the appeal is on a point of law, the appellate court has jurisdiction. Unless the trial judge made a clear error in determining the facts, the appellate court has no jurisdiction. In most cases, they must accept the facts as determined by the trial court.
The trial court will make decisions as to the facts and as to the law. The trial court does not refrain from making decisions on law simply because the appellate court has superior jurisdiction on matters of law. The trial court fully makes its decisions on fact and law with the goal of leaving no grounds for appeal, or if there are grounds for appeal, so that their decision will be upheld by the higher court. If the trial court declined to apply the law because the appellate court has jurisdiction over matters of law, they practically force the parties to go to the cost of appealing the decision to get the right answer.
That would make no sense whatsoever. Likewise, when the surveyor claims to have no authority to determine the facts or to apply the law, they are telling the landowners that if they want a definitive answer as to where their true boundaries are, they need to go to the expense of hiring lawyers and going to court. It makes no sense but it is the thing to do according to the rules of surveying.
I just re-read this thread and find it very interesting and very enlightening. Evan can you please give the name of the professor and college please. I'm thinking it is Professor Schultz at Oregon State University. Thanks, Jp
Jp7191, post: 380178, member: 1617 wrote: I just re-read this thread and find it very interesting and very enlightening. Evan can you please give the name of the professor and college please. I'm thinking it is Professor Schultz at Oregon State University. Thanks, Jp
I'm going to guess Earl Burkholder or Mark Ager at Oregon Institute of Technology.
Cheers Evan, and please know that your efforts and words herein are definitely appreciated.
"...I had a very good instructor for a boundary law class."
I was referring to Mark. He rarely answered a question in class directly, with his favorite first response being "That's a grey area..." and then giving his students information to consider to guide them into thinking it through and answering the questions themselves.
The only class that I had Earl for was Geodesy, and that was during his last quarter at OIT. Up until then, I had heard a lot of stories about what a tyrant he was as an instructor - very demanding and with little patience for anything less than 100% effort. I must have been lucky to have him as an instructor during his short-timer period and for his favorite subject because the Earl who taught that geodesy class was very little like the Mr. Burkholder who I had heard of. He explained everything quite well, showed no impatience with those who struggled with the topic and seemed to have a lot of fun teaching the class.
From my perspective, anyone who had Mark or Earl as instructors for the subjects they specialized in were very fortunate survey students.
eapls2708, post: 360197, member: 589 wrote: That you would ask me to post a map of a survey where I would hold a hedge (or other line of occupation) as the boundary indicates to me that even your quick scan of my diatribe/confession/manifesto failed to catch any of the points I made. Had you read it, you would have found that I did address your questions, unless those questions were a veiled attempt to pull out a "gotcha".
Let me help you with the "gotcha". I have never performed a survey where I held a hedge as the boundary as I cannot recall ever surveying a parcel that was described as having a hedge control part of the boundary.
If you don't understand how that statement stands in agreement with my diatribe, then you've illustrated the depth of reading that surveyors who subscribe to the rules of surveying normally put into boundary texts. You say that I've made unfounded assumptions about how you practice, but your response indicates that I pegged it.
For someone who says they didn't want to start a war (and I responded assuming you actually were interested in learning something), throwing a thoughtful response in the figurative garbage without even reading it clearly says otherwise.
Posting any maps to illustrate the points I made will do no good as you will not look at them to understand those points. Likewise, any additional explanation will fall on blind eyes, so I see no point. I'm done here.
I'll say I'm glad you responded to his questions with your diatribe/confession/manifesto. He had a pretty rude response to the well thought out advice/explanation to his own questions.
eapls2708, post: 380190, member: 589 wrote: "
From my perspective, anyone who had Mark or Earl as instructors for the subjects they specialized in were very fortunate survey students.
As someone who was lucky enough to have Mark Ager as a professor, I could not agree more. I feel extremely lucky to have learned boundary surveying from him. Mark had a great knowledge of boundary law, but was a real "dirt surveyor" not an academic. While we are lauding OIT profs, I have to say that Earl's replacement, Dennis Findorff, is THE best teacher that I have ever had in my life. Having him for a class was "Like trying to drink from a fire hose". He had an amazing intellect and passion for surveying. He moved on to a higher calling and that was a great loss to the surveying profession.
I owe them both a huge debt of gratitude.
Ed
I was lucky enough to sit through Paul Cuomo's classes at the local JC in Southern California in prep for my LS. Another was Gerald Stayner who was The Riverside County Surveyor who also taught at the local JC occasionally. I can not forget the host of this sites dad Skip Harness who taught our local 12 union classes, one sharp man. I wonder who will ever replace these guys. Jp
