I was involved in a similar situation where two surveyors were in disagreement as to the location of the boundary. The parties, after two years of protracted litigation, decided to mediate. The solution they came up with at mediation was that the boundary as described in the original deed was to be held as the boundary and the two surveyors were required to get together to determine where the boundary was. If they couldn't agree, a third surveyor would be called upon to make the determination. The parties agreed to be bound by their decision.
Well, the two surveyors both insisted that their solution was the correct location and couldn't agree. That's when I was called. I did my own independent research and review of the surveys and found them both to be wrong. Each surveyor was using a different line to control their basis of bearings. I ended up using "geodetic north" and found the fence in dispute to be right on the original line according to the deed.
I met with both surveyors, described my solution, One of the surveyors retracted their survey, the other amended theirs with all three of us signing and sealing the final survey for the record.
JBS
PS: Kent, Here's the citation:
Article 15th. It will be the duty of the surveyor before commencing any survey to see that adjoining proprietors are notified in order to promote the general harmony of the neighborhood.
Article 16th. Where a difficulty arises concerning the right of location of a particular place, it will be the duty of the surveyor to use all reasonable means in his power to induce the parties to settle their differences in an amicable manner.
… but, if the dispute is about a particular line and an amicable adjustment cannot take place, it will be the duty of the surveyor to desist from any attempt to survey until the dispute is settled. Any surveyor who shall continue the process of the (above) and, survey and return lands in dispute without notifying the commissioner and run disputed lines without the agreement of the parties interested, shall lay himself liable to the heaviest responsibility.
The “Regulations by which surveys will be governed in the location of vacant lands,” transcribed from a handwritten copy from the Center for American History, at the University of Texas, Austin, and filed with the General Land Office.
Everyone is entitled to the legal process. They are to be represented by attorneys, except in the rare circumstances when an individual chooses to represent himself. Attorneys play the game to win. They are interested in the outcome for their client only, not the outcome for the opposing side in a case. They may be interested in the outcome for themselves as well ($$).
Landowners can choose to heed the advice they get from their attorney (God bless them). Lawyer might need money, and might tell client that going to court is the best way to resolve the matter, meanwhile the legal fees build. There are relatively few land owners that understand the legal process well enough to understand what is at stake, and what their true options are. If they did, they could direct the attorneys to seek solutions through arbitration/mediation, or go directly to the other side and negotiate.
Unfortunately, the landowners feel they can do nothing without their attorney's approval, and same goes for the land surveyor, he is subject to the direction of the attorney. And so everybody sits around waiting for the attorney to decide. So, no matter what you feel is the "truth" in the case, you (the land surveyor) have very little power. You are one part of the system called the legal process.
By the way, I read the initial post, and immediately thought of JB.
>Here's the citation:
>
> Article 15th. It will be the duty of the surveyor before commencing any survey to see that adjoining proprietors are notified in order to promote the general harmony of the neighborhood.
> Article 16th. Where a difficulty arises concerning the right of location of a particular place, it will be the duty of the surveyor to use all reasonable means in his power to induce the parties to settle their differences in an amicable manner.
> … but, if the dispute is about a particular line and an amicable adjustment cannot take place, it will be the duty of the surveyor to desist from any attempt to survey until the dispute is settled. Any surveyor who shall continue the process of the (above) and, survey and return lands in dispute without notifying the commissioner and run disputed lines without the agreement of the parties interested, shall lay himself liable to the heaviest responsibility.
>
> The “Regulations by which surveys will be governed in the location of vacant lands,” transcribed from a handwritten copy from the Center for American History, at the University of Texas, Austin, and filed with the General Land Office.
Ah, just as I thought. There's no particular reason you should actually know anything about Texas surveying since you're licensed in Utah, so you get a pass. Also, it's a free country, so anyone can quote an instruction issued by an agent of the government of Mexico in 1827 and claim it governed the practices of the Texas General Land Office. I mean, how are you to know that Texas declared independence from Mexico in 1836? Can't, right?
Likewise, you'd have to actually research the laws of the Republic of Texas to know that the Texas General Land Office was created according to the Constitution and laws of the Republic of Texas . Hard stuff, so you couldn't know that the Texas GLO did not survey the public lands of Texas, but was merely an archive and central office, that the actual surveying was conducted by the County and District Surveyors scattered around Texas. Clearly, nobody really expects a seminar presenter to go to the trouble. I know I certainly don't expect you to.
> Unfortunately, the landowners feel they can do nothing without their attorney's approval, and same goes for the land surveyor, he is subject to the direction of the attorney.
Actually, I think that the best way to market this service would be through the district judges. They don't as a rule want to hear boundary cases and would love to thin their calendars.
> That is FUNNNNNNNNNNNNYYYYYY.
Yeah. The last mediation I sat in on was last month. The dispute was over a boundary about 125 ft. in length that wasn't perfectly well defined on the subdivision plat. One of the parties was contending that the line should be located by a method that produced a weird result that would only have laid the groundwork for further disputes were it to be adopted. Early on, yours truly deduced that the same party had a magic number that they were trying to hit in order to give a certain minimum width at the lower end of the lot. Everything else flowed from there.
The settlement paid the party whose title insurer had retained me a fairly healthy sum of money and gave her some other something of value. The other party got their minimum width so they could do what they wanted.
Basically, the whole process of litigation was an extremely inefficient process of conveyance that could have been done years ago for less than 2% of the cost of what was actually done, but that only popped up in mediation since the needy party had chosen to frame it as a boundary issue and had shopped for a compliant surveyor to support their unmeritorious claims.
BTW my fee for that whole dispute roughly amounted to what you'd get if you lined up hundred-dollar bills end-to-end along the boundary in question. The attorneys collected much larger sums, of course.
Damn. I thought we were going to get a thread along these lines.
http://en.wikipedia.org/wiki/A_Modest_Proposal
Arbitration
has become a problem of itself. You have a nice idea and it's worth a more serious reply. Based on the way the business of arbitration has grown and prospered in other areas of the law, I don't think it would turn out much different in the surveying arena.
What we could expect to see is an arbitration entity or company forming up or an existing one hiring new personnel. The title companies write contracts with these firms or business entities and request them to be appointed in the arbitration process. The more decisions favorable to the title company, the more they request that firms arbitration services. Title companies and lenders require binding arbitration in case of a dispute or no loan, no sale, no deal. So, the unconnected, weaker party is forced into a game where the deck is stacked against them.
Sounds like Frank Willis has experienced the capitalist arbitration system first hand. There are already some surveyors that travel the country serving the industry.
There are benefits to arbitration, but overall I'm not in favor of it because of the way corporate profit motives tend to take over the process in our system.
Recourse to the legal system has steadily been taken away from consumers in many areas of business dealings. While arbitration appears to be, and is touted as, an improvement or empowering the weaker party; in practice it has weakened the economic position of ordinary americans. I think it has gotten out of control and would like to see less of it rather than more of it.
Only the trial system garauntees an opportunity to be heard and judged in an unbiased fashion. Occassionally a judge is corrupted, but the opportunity for systematic, capatilistic bias is much less than in the arbitration process.
Anyone in favor of more arbitration should perform a bit of research into how it has worked and expanded over the past 40 years. Makes for some fascinating reading.
Arbitration (long)
I agree with you Duane. I always thought arbitration was a good thing, but now I think differently. Many years ago, my wife wanted a Cadillac Catera so she bought one. While signing the papers, the sales rep slid a page in front of us to sign which assured us that if anything ever went wrong with the car, that instead of having to hire an attorney to fight GM, that they would willingly enter into arbitration and would even pay for it themselves. We never figured that we would have any problems that serious with the car so we signed it thinking it was no big deal. Turns out the Catera model was one of their worst cars ever and all we ever had was problems with it. Cadillac dealers wouldn't touch it unless they were a certified Catera dealer and they all knew it was a lemon. The dealer my wife got it from was 125 miles away and was assured that service would be provided by any Cadillac dealer. We were having major problems with the car that would cause the car to shut down in traffic or while pulling into traffic and even unannounced extreme acceleration problems that the brakes could barely control. After about 5 visits to the certified dealers, they could only fix the problems long enough to get it home, so we requested arbitration to resolve the issue. I had to take a day off to go to the dealership 100 miles away for the arbitration. When we got there, it was only us and a person from the dealership in the room. When time came for the arbitration, the dealership man called up the arbitrator who didn't even have to show up. For all I know, he may have been another employee of the dealership in a different room. They were on much more than a first name basis and after they exchanged small talk and caught up on what each others families were doing, the arbitrator began asking us our problems with the car. When we explained the serious and dangerous problems that we were having and that we had found out on the internet that the Catera problems were well known by Cadillac, he seemed to be sympathetic to us. He then asked the dealership man if they had willingly worked on it each time it came in and had fixed the problem that it came in with and then told us that he didn't see any reason to do anything more than was already being done. We told him that we could barely get the car home before we had to bring it back (actually send it back with a wrecker because it couldn't be driven at all when the electronic accelerator stuck), but it didn't matter. I never wanted the accelerator to stick so badly as when we had to drive it in front of the dealership showroom window when leaving. Somehow we got rid of it, but I have never looked at arbitration again. I will hire an attorney and let them mess with it.
> Ah, just as I thought. There's no particular reason you should actually know anything about Texas surveying since you're licensed in Utah, so you get a pass. Also, it's a free country, so anyone can quote an instruction issued by an agent of the government of Mexico in 1827 and claim it governed the practices of the Texas General Land Office. I mean, how are you to know that Texas declared independence from Mexico in 1836? Can't, right?
Tell me something I didn't already know, Kent. I made no claim that this was a TX GLO instruction or that it governed their practices. I also made no claim that it was the US GLO. Of course it was a Mexican instruction to surveyors. Otherwise, why would it have been issued in Spanish? Just because I don't hail from the greatest state of TX, doesn't mean that I can't read, research, relate to or understand the words that were printed. Not every surveyor out here aside from yourself is a complete moron.
>
> Likewise, you'd have to actually research the laws of the Republic of Texas to know that the Texas General Land Office was created according to the Constitution and laws of the Republic of Texas . Hard stuff, so you couldn't know that the Texas GLO did not survey the public lands of Texas, but was merely an archive and central office, that the actual surveying was conducted by the County and District Surveyors scattered around Texas. Clearly, nobody really expects a seminar presenter to go to the trouble. I know I certainly don't expect you to.
Again, of course I know that. It's not rocket science, Kent. The "hard stuff" is pretty plain to me as well as anyone who knows the slightest bit about US, TX, and general world and survey history. I realize that "nobody really expects a seminar presenter to go to the trouble." That's why I do go to the trouble to research the laws and to learn what processes and procedures are followed in each state every time I make a presentation. That's how I learn and that's what I enjoy.
I'm not like you, Kent. I know the clear distinction between mediation and arbitration and I know a number of different approaches taken by the different jurisdictions based upon territorial as well as statehood constitutional processes. Just because I have a 12 x 14 office space that I work full+ time as a surveyor, doesn't mean that I don't get out of my chair.
I've been giving back to my profession for over 20 years as an adjunct instructor and have specialized in land boundary law for my entire career. I teach three boundary law classes in two colleges, one as a graduate level four-year degree program. I also do invitational speaking around the country which has really broadened my horizons and given me opportunity to see how the "rest of the world" surveys. But, I do that in my spare time because I'm a surveyor, just like most surveyors who work for a living.
But, I wouldn't expect that anyone such as yourself would have any respect for anyone outside of your own box full of "epiphanies."
JBS
Arbitration
Great post, Duane. I have similar views on typical arbitration. Really, I don't see much difference between arbitration (with a single arbitrator) and litigation (with a single judge), other than the judge has rules to follow where the arbitrator doesn't (at least to the same degree).
That's why corporate arbitration settings can so easily become biased. At least the courtroom setting is more formalized and the possibility of an unbiased judge is better.
The only viable format for arbitration that I've seen is through an arbitration panel. With a panel of arbitrators (typically three subject matter experts), there's a very good likelihood that the arbitrators will hold themselves to an unbiased position. The panel process helps to keep the experts in line. It's like the adage that you never take one Mormon fishing; he'll drink all of your beer. Two will keep each other in line. Arbitration works best with three as there won't be a tie when it comes to the end of the day.
There are a few states that have statutes allowing for surveyor arbitration by panel. Montana is one of them. They may have changed their law, but I haven't researched it lately. It was on the books about 10 years ago. Probably still is. Illinois is another. They have a statute similar to other states that define a process for what is commonly termed a "legal survey."
>"Whenever one or more proprietors of lands in this state, the corners and boundaries of whose lands are lost, destroyed, or are in dispute, or who are desirous of having said corners and boundaries permanently re-established, and who will not enter into an agreement as provided by section one of this act, it shall be lawful for said proprietor or proprietors that they shall cause a notice, . . . that, . . .he, she or they will make application to the circuit court of the county in which said lands are situated, for the appointment of a commission of surveyors to make survey of and to permanently establish said corners and boundaries, . . .." (Ill. Rev. Stat. 1987, ch. 133, par. 12.)” Kelch v. Izard; 590 N.E.2d 1050, 227 Ill. App. 3d 180, 169 Ill. Dec. 131, 1992.IL.0000590, (04/20/1992)
The surveyor panels aren't convened often as the parties generally view them as expensive because they have to pay for three surveyors to make the decision when paying for one to screw it up is believed to already have been too costly. Little do they understand that paying for three surveyors is still a fraction of the cost of paying for two years of attorneys' fees.
Of course, the attorneys aren't about to inform their clients about the option as they are left out of the loop except to assist in gathering and presenting the evidence (which most any surveyor can do and has done already). Unless the client is borderline indigent, there's nothing in it to dissuade the attorney from milking the client for as many billable hours as they can afford.
JBS
PS for Kent: Of course no one expects that a presenter not from Illinois would bother know that.
PS for everyone else: Don't tell Kent it wasn't his idea. He's in the middle of an epiphany.
> > Ah, just as I thought. There's no particular reason you should actually know anything about Texas surveying since you're licensed in Utah, so you get a pass. Also, it's a free country, so anyone can quote an instruction issued by an agent of the government of Mexico in 1827 and claim it governed the practices of the Texas General Land Office. I mean, how are you to know that Texas declared independence from Mexico in 1836? Can't, right?
> Tell me something I didn't already know, Kent. I made no claim that this was a TX GLO instruction or that it governed their practices.
So, when you posted above "The TX GLO surveyors recommended it as well (in fact they required surveyors to do it)" and cited the "law" that you did, you were just BeeEssing? Why would this be unsurprising?
> I'm not like you, Kent.
I think that's safe to say. And not like most of the Texas surveyors I know, either. As a rule we dislike dishonesty.
Arbitration
> has become a problem of itself. You have a nice idea and it's worth a more serious reply. Based on the way the business of arbitration has grown and prospered in other areas of the law, I don't think it would turn out much different in the surveying arena.
In a specialized field like surveying, though, there is nothing that would prevent any licensed surveyor from being selected as an arbitrator of a dispute between two or more other surveyors. As long as the method of choosing an arbitrator is by mutual consent of the conflicting surveyors, I can't see the problems you describe arising.
Arbitration (long)
> I agree with you Duane. I always thought arbitration was a good thing, but now I think differently.
Isn't the difference that you didn't have any say in who actually arbitrated your dispute with the car company, whereas in the preferred model of arbitration of disputes between land surveyors both parties would agree on an arbitrator. They would necessarily have reason to have confidence in the impartiality and judgment of the surveyor selected to act as arbitrator.
I'm thinking of the typical dispute where both of the conflicting surveyors honestly believe their solution to be correct and most consistent with the evidence. In that case, I would think that both surveyors would be able to name several surveyors who they believe would agree with them. That is what confidence in judgment amounts to. If they cannot settle on a mutually agreeable arbitrator, then the arbitration can't proceed and it's back to either some baby-splitting mediation or trial by combat at ruinous expense in the courtroom.
Arbitration
> As long as the method of choosing an arbitrator is by mutual consent of the conflicting surveyors, I can't see the problems you describe arising.
Considering how inflexible,stubborn, pig-headed, arrogant and that self-aggrandizing behavior that surveyors engage here... Why would you think that they would consent to a 3rd party.
I went to a seminar Dennis Mouland seminar many years ago where he got pretty passionate about how arrogant and wrong surveyors can be but they will not change because they have the 'power' of their license.
So I think, Once you threaten LSs that their license can be yanked, you may seem some change to these surveyors who say "I am right. Because I have a stamp that makes it right!)..
Arbitration
> > As long as the method of choosing an arbitrator is by mutual consent of the conflicting surveyors, I can't see the problems you describe arising.
>
> Considering how inflexible,stubborn, pig-headed, arrogant and that self-aggrandizing behavior that surveyors engage here... Why would you think that they would consent to a 3rd party.
Well, the topic of survey arbitration was on my mind because that is exactly what I and another surveyor agreed to in the course of a hearing in court on Friday. Both of us clearly think that the evidence supports our opinions and both of us agreed that a well-respected and knowledgeable colleague would give the matters upon which we disagree a fair hearing. I'm just hoping at this point that he'll be available to take this on. It's provided that he'll be paid at his usual rates for all the time involved, that he'll determine how to divide his fee between our clients based upon the principle of "least correct pays the most", and that if he determines that there is some point of law in doubt that he will refer it to the judge.
I expect that it will cost less than 10% of what slugging it out in depositions and court would.
Arbitration
Kent,
Check your email.
Frank
JB,
If often read your posts and enjoy them. But you ain't sounding much like a mediator or dispute resolver here in this thread! 🙂
Arbitration
> Check your email.
Frank, I think that the email sent me via beerleg.com is getting caught on the spam filter of the AT&T email server. I don't see anything in the inbox. Try kentmcm at swbell dot net.
My apologies, Frank. Been head under lately and haven't had time to really post thoughtfully lately. Been a bit stressed out and let Kent push my buttons.
:'(
JBS