Going through some old files I found this I'd saved from the old POB Board in 2004. Not something I wrote but very interesting. My own understanding has increased many times since that time.
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Let us all agree that Justice Thomas M. Cooley was a great man with a great legal mind; legitimately one of the ÛÏBig 4Û of Michigan Jurisprudence. Law schools are named after him. He is regarded to be as influential as Oliver Wendell Holmes by many legal scholars; high praise indeed.
But letÛªs not forget where CooleyÛªs Dictum comes from. It comes from a speech he gave to a professional society. It is not stare decisis (case law); it is if anything, secondary authority, and probably not even that. Courts would not use it, and if you as a surveyor told the court you performed certain actions because of the way you interpreted a speech that Cooley made over a hundred years ago in a state that you are not even practicing land surveying in, the court would not be kind to you.
Many things that he said in the speech are similar to what he said in some court rulings, which are precedent setting. But I think that surveyors have misinterpreted what he said. I think many do this because in the speech he stroked surveyorÛªs egos a little bit and I think that we responded the way that most people would; we were flattered. He was also a little bit of a politician and was sought by many to give presentations. By all accounts they were well received.
But letÛªs examine a real Supreme Court of Michigan case; Poch v. Urlaub, 357 Mich. 261; 1959. The case is about a fractional section and lands along a shore line. The case is interesting partly because of a Cooley cite, but also because of the various surveyor cites. Read the quotes carefully; they reveal what the high court thinks of the Judicial Function of Surveyors. Following are direct quotes from the Supreme Court of Michigan.
ÛÏIt has been stated so often by this Court as to not require citation of authority that on appeal by plaintiff from direction of a verdict for defendant, the Supreme Court will view the facts in the light most favorable to plaintiff
In Diehl v. Zanger, 39 Mich 601, 605, Justice Cooley said
"Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity."
In Gregory v. Knight, 50 Mich 61, it was stated:
"Surveyors and commissioners of highways have no greater right than other persons to determine starting-points and boundaries; they cannot disturb vested rights in land or settle controversies as to titles and their ex parte action is entitled to no special authority in regard to true lines and the fact of encroachment."
In O'Brien v. Cavanaugh, 61 Mich 368, 370, the Court said:
"There was no testimony of any other right, except that of a surveyor, who undertook to change the line as the result of an ex parte survey, based on certain starting points, which threw out of place all the lots in the neighborhood.
"We agree with the judge below that this survey could not lawfully be regarded. A surveyor has no more right than any one else to decide upon starting points and other elements of location. We have had frequent occasion to refer to the mischief done by the officious meddling of such persons under some notion that it is within their province to unsettle possessions and landmarks."
In Fisher v. Dowling, 66 Mich 370, 371, 372, again the Court said:
"We have had frequent occasion to condemn the assumptions of surveyors in determining lines and landmarks according to their own notions. They have no such right, and their assumptions are not lawful. There are few evils more annoying to public or private peace than the intermeddling with land boundaries, and the disturbance of peaceable possessions."
In Jones v. Lee, 77 Mich 35, 41, the Court said:
"Whatever water-rights belong to any part of that subdivision must necessarily fall within those that belonged to the whole of it at the time when it was made ready for sale by the United States government, and no change, if any took place, in the shore line could enlarge that grant at the expense of any other. It is also beyond question that any owner of water-rights within that subdivision could determine for himself in what way he would subdivide and parcel out his own property ." (Emphasis supplied.)
And further, after commentation (p 42) on the surveyor's assumed technical knowledge of the right method of division, the Court said (p 43):
"We have had occasion, in several instances, to point out that a surveyor cannot be allowed, under any circumstances, to fix private rights or lines by any theory of his own."
This ends the quotes from the Michigan Supreme Court. These statements are what the highest court in Michigan thinks about the Judicial Functions of Surveyors. I would challenge anyone to find a case that used CooleyÛªs speech before the professional society to rule on a case.
One other thing; Cooley was a teacher, a lawyer and a judge; which some on this board do not think are necessary. On this point too, Justice Cooley would rule otherwise.
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Dictum is a passing comment in an Opinion which is considered persuasive but not binding.
Cooley's advice was simple, don't disturb settled boundaries based on measurements alone, particularly from monuments with an unknown connection to the original Survey, in fact the Surveyor has no authority to do that and is breaking the law. We have similar comments in our early Opinions too. Unfortunately our Courts are no longer putting a critical eye on these "fantasy boundary" surveys so it is imperative that we know the law and comply with it because the Courts have very little idea what to do.
Young v. Blakeman, 153 Cal. 477 (1908):
When the division line of adjoining owners is designated in their respective deeds as a line beginning at a specified distance from a fixed object, the only method of ascertaining the location of the line on the ground is by measuring the required distance from the object. Experience shows that such measurements, made at different times by different persons with different instruments, will usually vary somewhat. The position of the object or monument at which the course begins may also be changed and the change may not be known to the parties, or there may be no means of ascertaining its original position. If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
And
It may be remarked that there is no evidence that any subsequent survey has been made by which the true line is located at the exact point claimed by the plaintiff. There is a reference to a recent survey in the testimony of the plaintiff, but he does not give the results disclosed thereby. From the agreement between the heirs of Miller and Blakeman, to be hereinafter noticed, it may be inferred, by the aid of other evidence, that the true east line of the Blakeman lot is about seven inches east of the east line of his building. But this would not prove that the west line of his lot was an average distance of about eleven inches east of the west line of the building as claimed by plaintiff. The building is exactly twenty feet in width. There is a finding to the effect that a line 195 feet easterly from Grant Avenue would fall east of the agreed line the exact distance of the strip in dispute, according to the location of Grant Avenue as "established at the time when this action was commenced." No evidence appears corresponding to this finding. But conceding its truth, it does not follow that the line of Grant Avenue was at the same place as that occupied by Dupont Street in 1863 when the defendant's lot was first measured and located therefrom, or when the agreed line was established, or in 1884, when Apel received possession from Miller.
