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I wonder if Masson ever read Cooley?
@dave-karoly Rule Two says to mark property lines as described in the deed. Here is an example of why I do not subscribe to that Rule:
There is an area in which I have surveyed that looks like a subdivision. It is not, all conveyances were by sequential deeds. They all commence at the same point and follow a common line to points of beginning for each parcel, most of which are simple 4 or 5 sided parcels. The individual parcel boundaries do not close by 3 to 5 feet for some reason. The problem is that the closing call of one parcel might be the beginning call of the adjacent parcel. Following the deed on the ground theory, previous surveys had thrown the error into the closing calls of each parcel. As a result the search for 9 corners required for my survey resulted in the recovery of 28 monuments.
The solution was establish the junior/senior rights for 9 parcels and accept or monument accordingly and explain precisely on the plat what had been done.
No attorneys were involved.
@i-ben-havin That is scary. I have been cautioned about ‘practicing law without a license’ several times. Usually by an attorney. Sometimes by the same attorney that has just asked my advice on a survey law issue!
I do not think it is practicing law to know and understand and even study the statues and court cases that govern our profession. In my current position as an elected county surveyor I discuss statute and case law on a near daily basis with citizens, surveyors, county staff and even attorneys. I make them aware of certain cases and statutes and advise them to make sure their attorney looks at a certain case or statute that I think might be applicable to the situation at hand. I do not make legal decisions or offer legal advice for others.
@kscott I see no problem in a literal reading of Rule 2.
Here it is:
RULE TWO
It is the land surveyor’s duty to correctly locate and mark property lines as described in a deed furnished him and to relate lines of possession to title lines. The surveyor cannot and does not assume the responsibility of proving that a given deed is correct and legal; that is a function of an attorney or court of law.The decisions in this state have held that an agreed boundary is the same boundary as that called out in the Deed description despite any inaccuracy in its location. Therefore we are not disputing the validity of the Deed, we are merely further defining its location. Possession lines may vary from the established boundary in the field.
Proving a Deed is valid is a question of law generally confined to its 4 corners. Proving the location of the deed is an evidentiary question in which extrinsic evidence is not only allowed, it is required.
Granted I have not heard Madsen speak so he may mean something different but rule 2 as written is correct, in my opinion.
@dave-karoly Considering that the rule does state ‘correctly locate and mark’ you may be right in your opinion. I agree with Warren that sending every discrepancy issue in a deed to an attorney is not wise and in my opinion may be a disservice to our clients.
My issue with the ‘deed on the ground’ theory is that so many surveyors have interpreted that to mean you stake out exactly what the deed says in bearing and distance and if any conflict arises disclaim any professional responsibility by invoking an attorney. If I had practiced that way I would have had a note to see an attorney on practically every survey I ever did. In the example I gave a previous surveyor had such a note on his plat, explained that all error was left in the closing call and set a rebar within 3 feet of 2 plainly visible axles and 1 pipe. He was practicing the deed on the ground theory that seemed widely accepted in the late 20th century.
I think it might be semantics or interpretation we are debating as I get the impression from your writings that we have similar beliefs in our professional standards of practice. And I know you pay attention to court cases.
Knowledge of the law should be elementary for the work we do, especially for those involved in boundary work. What a disaster this profession would be if we actually were required to be ignorant of the law. I too have shared statute and case law with many attorneys throughout my career, including with my grandson who is a practicing attorney.
In fact, back in the 1970’s for prep work in an adverse possession case that would become a Florida Supreme Court landmark case, the young attorney representing my client allowed me to draft the questions I wanted him to ask me. In addition to simply writing the questions, I wrote out what my answers would be along with how the law guided those answers. I also gave him a list of questions I wanted him to ask all of the opposing expert witness surveyors. I had explained to our attorney there were a number of matters I would not want to be questioned about if I had taken the position our adversaries took. I also explained the possible answers he might expect from them, and also what laws they might have ignored or overlooked.
My testimony required 6 hours of court time, and the Florida Supreme Court accepted my survey. I hesitate to imagine what the outcome might have been had I been ignorant of the law.
Bill, I can think of a lot of things in my life I would have done differently if I had a do-over. And you are absolutely correct in what you wrote. The problem (for me) was that everything the complaint stated was true, so I wasn’t disputing a thing he said.
First true fact: I had agreed to do the survey for $1000. (Technically, I never ??promised?, but I had ??agreed?.)
Second true fact: I did not complete the survey.
I would add one note, I have generally learned good basics from all these rules which I’ve tried to refer to since meeting Mr Madson in 1986. I personally know two of the researchers who are listed in the book “on colorado real estate law”
I very often, when trying to resolve fatally ambiguous records, fall back on setting corners that are NOT in conflict with improvements, and have on several key moments, satisfied myself that my documents are what they “purport” to and have came through a few traps with that rule.
I have never, and never will, asked an attorney to tell me if a deed is “correct”. Nor do I give out legal advice. Take that out of “rules for surveyors” and I’m in.
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