JB,
I believe that surveyors in private practice do not have the authority to decide where the legal boundary is. A surveyor in private practice can obviously state his expert opinion as to where he believes the line to be, but I don't think a judge, if asked to adjudicate the location of said line will give over to the surveyor the authority as a judge. A judge will obviously rely on the evidence presented and the experts' opinions, but the authority to decide the location of the legal boundary is his and his alone (unless, of course, this is a trial by jury).
I believe that surveyors in private practice have the knowledge, training, equipment and expertise to locate and monument on the ground the deeded boundary line and they have the same abilities to locate and show an occupied line, or other lines (if different) with reference to the deeded line and possibly, he has the ability to gather facts about the locations of all).
I'll preface my opinions by stating that my beliefs extend only to surveyors in private practice within the great State of Texas, as I have no knowledge of any authority granted to surveyors in private practice in other states. I barely have the knowledge to speak about surveying here.
A definition of authority as printed in the current online Merriam-Webster dictionary
AUTHORITY
a (1) : a citation (as from a book or file) used in defense or support (2) : the source from which the citation is drawn
b (1) : a conclusive statement or set of statements (as an official decision of a court) (2) : a decision taken as a precedent
Please note that "citation", "conclusive statement" and "decision" all refer to decisions arriving as a result of court proceedings, not to those of an ordinary land surveyor in private practice.
Maybe I'm just arguing semantics, but I don't think so.
There are many flavors of law, and thus many flavors of jurisdiction. Common law, commercial law, equity law, maritime law, admiralty law, trust law, canon law, For our purposes they unfold in a certain order:
Common Law: All the stuff Richard Schaut reminds us of. Adjoiners can agree on occupation and access and it's a private matter requiring no paper. It's nobody's business but the adjoiners.
As soon as there is a mortgage, the jurisdiction changes and you are under Commercial Law (Equity law). Before the New Deal (1933ish) most people bought land & houses in cash, and owned in fee simple. Soon afterwards, most people had a mortgage, which puts you squarely under Commercial Law, because you are in a contract with the bank to borrow their equity. The attorneys make money from arguing cases under commercial law, so they made it enticing and trendy to get a mortgage rather than own in fee simple like good solid americans used to do almost exclusively.
If ANY of the adjoiners lawyer up, boom, it places the matter into Commercial Law jurisdiction, and all that Common Law stuff is pretty much out the window. So all those unwritten agreements about occupation and fencelines have no weight, unless a good surveyor mapped the discrepancies before they got bulldozed away, and interviewed all the 90 year old farmers. Which would put them on paper, (GOOD) and creating a potential contract (possibly not so good).
This is why recording can be good. It puts the maps of original intent and maps of discrepancies in the public record. This can protect your common law rights. If a good surveyor has done as Mr. Schaut says, and mapped the discrepancies from previous deeds, and written a revised legal description, the current generation is protected from ambiguities.
Unfortunately there is a common law myth that recording is bad, because it puts things on paper, thus creating contracts and taking you into lawyer-land, i.e., commercial law. This is related to how adjoiners will nurse a grudge for years but not get it surveyed and corrected because they are afraid of going to lawyer land when the adjoiners get pissed that you staked the deed line and go lawyer up themselves. I think this is why there is resistance to the idea of recording surveys in non-recording states. (other than keeping a monopoly on the data)
Been thinking about this for years, ever since encountering Mr. Schaut's perspective for the first time on the old board. This is my best explanation at present for the discontinuity between his valid perspective and the younger surveyors' "stake it and let the courts decide" perspective. Then last year I saw John Stahl's "Maxims of Law" presentation at ACSM Phoenix and it got me pointed towards the different bodies of law and their evolution.
I-am-not-an-attorney-and-the-entirety-of-this-writing-is-with-the-absence-of-legal-advice.
Thank you Richard Schaut and John Stahl for inspiration, and for getting me started on a lot of research about law.
I think that the example of what is wrong with the profession today is accurately shown by this thread, but for entirely different reasons than stated so far.
Somehow this has turned into a "deed staking" thread when it is nothing of the sort. Deed staking occurs when a technician marks corners according to the deed and no other consideration when no marks are quickly and easily found at the corners, or places new marks next to found marks which are 0.2' off the record distance. I don't see where anything like that happened in this case.
The OP went out and found established corner marks, checked them against local control to verify them, and simply attempted to put one line on the ground for starters.
Then what happened? It turns out that not all of the information he needed was brought to the job site, so that caused a delay. The client and a couple of fence contractors are looking over his shoulder and starting to make humorous comments. The client is standing there with a can of spray paint. The line stakes have been pulled out, but isn't that why he is here? And everyone here has assumed that the neighbor pulled them out, but there do not seem to be any witnesses. I have known neghborhood kids to pull out wood stakes to use as play swords. Others have found use as garden stakes.
So by this time the eyes of the garden gnomes are probably seeming to be following our poster around. His task suddenly seems much more complicated and stressful. This is where things go wrong. The choices he faces are: restake an already established line using generally accepted practices; tell the client that the gnomes and other items could well indicate an ownership right superior to a competent resurvey and he can agree to it with the neighbor or lawyer up; or walk away without completeing what the client has asked him to do.
He does not complete the job and thereby fails in his responsibility to the client to provide a professional opinion of where the line is located. That is the black eye. He is supposed to be the expert, but to the client, he appears indecisive and ineffectual.
Some in this thread have suggested that it was the poster's responsibility to view the evidence of occupation and decide whether that prevailed over the accepted found monumentation, and "correct" it. Nothing could be more dangerous or more likely to lead to a court case than to become an unasked advocate for, and judge, of a boundary adjustment. The surveyor has no right or responsibility to make such an adjustment without the agreement of the parties, and he can be pretty sure that his client will not agree!
"if this were my future stamp, I would be telling the client that I will not stake this line until I see them shaking hands with the adjoiner." Seriously, that's how it's gonna be. Whole new ball game for surveying."
I can guess what the client will say and do in response.
The best suggestion I can make for the OP, while he is studying more law, is to learn to be able to discern the difference between practicing surveying and practicing law. It will continue to be confusion until then.
Half
I didn't read any of the other responses, but I read your post three times. Here is my opinion.
First, you've had some damn good mentors. The reason I say that is that anyone can run a D/C, keep some notes, and make some calculations. Good surveyors know to listen to that pit in their stomach that says "Something's not right here dude." Your choice to go back and get more data probably lost all the profit in the job and pissed off your client. It also probably saved you from making a decision that would haunt your boss, you, or worse. You made a good call, plain and simple.
As to the answers to your questions, I can only offer this. I spent years listening to my two mentors argue over those question (they still do to this day). Then I spent years listening on this board about adverse possession from Leon, Richard and JB. The "agree team" as I called them, always had law on their side but was contrary to "general thoughts" on the subject. I then spent years reading Skelton, Brown, etc. and asking attorneys to get me cases upon cases.
Now, years later, I feel that I've wrapped my head around the subject. Do I understand every nuance or problem that can come up, no. Do I have a "nodding acquaintance" with the subject matter and know where to go look, hell yes I do.
Things I thought I knew, I now disagree with when it comes to unwritten rights. The are a highly unique area and most folks don't try to understand, but everyone thinks they know down to the ground.
In this particular case, someone's got to step out there and "stake the damn line" to kick in all of the unwritten rights in some way, shape, form or fashion. It's what you do after the fact that defines you as "other than deed staker". Did you visit with the clients, explain other avenues? Did you visit with the adjoiners? Did you find the problem, not stake the line, but call them all into your office for a counsel on neutral ground (this is my favorite)?
You can only help those that want help. You can only remedy problems that the landowners want fixed. If they're warring with one another, and you can't seem to help, do your job (be ready to defend it), and tell them to lawyer up. That is ALL you can do in our position.
Some may say that Cooley provides all the answers. He doesn't, nor does Skelton, Curtis, Robbilard or any other pontificating lawyer/surveyor. Each case is unique unto itself. There may be other cases that seem similar, but most of the land cases are so narrow, it's difficult to apply AP cases across the board. Other hallmarks and tennants of surveying cases are easier. This critter is tough.
My advice is to read all you can, ask everyone you can think of, especially when they give you answers that you don't agree with, and figure it out for yourself. Only THEN can you truly answer the questions as they come up. Like I said, you may not always have the answer, but you know where to look.
All in all, you made a good call. Have a brew on me dude.
The fence guy was bidding, not waiting on the line staking. As for the client with her can of paint, so what? I'm getting to be too old a dog to be rattled by that kind of thing anyhow.
It's not like they needed the fence in a hurry, having waited at least two years since the ROS that documented the discrepancy. Feeding into their urgency and crisis isn't going to bring any more peace to the neighborhood.
Your attitude about it is that of a tradesman, hired to perform. I am not that, and no boundary surveyor should ever be such. A boundary surveyor must do the right thing regardless of who is paying them or whether they are being paid at all. Perhaps a contruction surveyor is such a tradesman who stakes whatever they are told, because they are being paid, or somehow under contract.
It's a shame the client thought they had hired such a worker, indeed a shame that any client can assume they can hire any boundary-related surveyor under such an arrangement. It leads to the "my surveyor vs. your surveyor" syndrome.
I know of a few such examples locally where one surveyor recognized occupation and another staked a deed line, which led to a fence getting chainsawed down, lawsuits, etc. Everyone was "right" somehow but there was no meeting of the minds amongst the surveyors or anyone else.
This relates to the "only employees = direct supervision" thread. Two questions: If the client is paying the surveyor, does the client supervise them? And if the client has that privilege, does the client supervise the crew in the absence of the surveyor? Why or why not?
Half
Thanks Kris!
Quoting you here:
"You can only help those that want help. You can only remedy problems that the landowners want fixed. If they're warring with one another, and you can't seem to help, do your job (be ready to defend it), and tell them to lawyer up. That is ALL you can do in our position. "
This is it. This is the thing that we are missing, is that it seems like boundary surveyors are no longer really trained to do anything but stake the line, record the survey, and walk away, muttering about how you could get an attorney. What's sad is that seems to have become the norm, we don't think to do much else, and that the public doesn't know we could do more & does not ask that of us.
True, there are some people who just want conflict, and don't want help. What could be better than to screen those people out and politely decline their business? The "I'm not gonna stake that line until I see you shaking hands with the adjoiner" part of the contract will take care of that.
Half
I'm not so sure I agree with the whole "shaking hands with the adjoiner" business.
I'm trying to envision this if I were in the clients position.
Say I was raised on this land. While I was out raising kids and working, a few flat landers moved in from the city and started using more land than they owned. First they park a wrecked car in the vicinity of the edge of the property. Then some firewood gets stacked closer to our house. It slowly progresses from there. My parents were too old and are on a fixed income to do anything about it. They own hundreds of acres, so it is not that big of a deal to them. They are afriad to cause a conflict. After all, the previous owners were good friends with my family.
Well, my parent pass away and now I have to start taking care of the old home. The neighbors are disrespectful and downright threatening. I'm getting tired of looking at their junk yard. I decide I need to put up a fence to isoloate the neighbors. I dig up the corners myself and find that it "appears" that the neighbors are encroaching onto my property by 20'! I approach them with my map and show them the corners. They flat out tell me they do not care what the map says and threaten me with harm in a round about way. So I hire a surveyor to confirm what I was thinking. That is step 1. The surveyor determines that yes the neighbors have been encroaching, but he refuses to stake the line until the neighbors and I shake hands and agree. This is where I get kind of bent out of shape and request the retainer back. I know the neighbors will not respect my new survey. Nor do I want to concede any of my property. My only course of action is to have the line marked so we can see it on the ground, then get a court ordered judgement so the line will be legally honored. Now I must hire another surveyor AND argue with the first surveyor about how much money I owe them for a survey that they did not complete.
GunMan
I think you should hire a surveyor who will find the corners, stake the line, file the plat and send a copy to the neighbor.
Why shake hands when there is no agreement?
Keith
GunMan
That is what I would hire a surveyor for.
Each situation is different. Original monuments could be in place at each end of the line, the monuments might not have ever been set, they could be destroyed or moved.
Yes a surveyor should offer up potential solutions to the client. He should also take the time to explain his methods to the adjoiner. However refusing to perform a service because the outcome is causing conflict is just odd. Truth of the matter is, most surveys are either prompted by conflict or cause some sort of conflict. That is just the nature of the beast.
GunMan
Well ya, why else hire a surveyor?
Talk about hackles on the back of your neck!
These of course were answers given assuming the surveyor did his due diligence in proving himself right. I did not mean for people to think that we just send a tech out and stake it regardless. Am I to think that when someone asks a question like this on a surveyor's forum that they did not in fact do their due diligence and go on and on like some here have, about proving yourself? Or should we let it stand that they at least have done this minimal approach to their work before asking a question on here?
Half
Good point, Mr. GunMan. Different situation. More of a Three-S kind of thing. Also, I wouldn't charge a retainer or bid the job even unless I had seen the handshake already.
The handshake solution only works with some people.
Some people just are not emotionally available, no empathy. Maybe even mild sociopaths who have managed to not be locked up yet. Once you figure that out, it's onward to calling the sheriff for some company while you stake the line and build the fence.
My point is that there are a lot more situations in the world that could be solved with a handshake than has become the modern norm, and we have to at least try that rather than going thru the motions.
I'm wondering if one of the best tools a surveyor could buy would be a BBQ trailer. If someone is being stubborn, throw a block party, get the neighbors talking again.
GunMan
I followed your link to the wood workers page. I like working with wood. Not so much framing and such, but precise detailed woodwork.
A person I work with has a family stage stop that was recently listed as a historic landmark. There are several restored wagons and a few that were recently sold to people to restore.
Interesting stuff.
Not too much time anymore to take on any projects, but I hope someday I will be able to start up again. I bought a brand new large JET tablesaw when I first got married. It hardly got used and is now sitting is storage. It was the biggest saw I could afford at the time. JRL
GunMan
Thank you and you should get out that Jet saw and saw some big boards into little boards...
That is really a great saw and I have one too.
Half
Sometimes it is best to let a sleeping dog lie. In other words, you get the survey done, send the neighbor a certified letter giving them constructive notice that you would like to encroachments removed, then let it go.
My friend bought a house in town, his next door neighbor hired a shady surveyor who performed "half a survey" and showed the property line going part way through an open parking area where my friend parks his 5th wheel trailer. Over and over the neighbor would tease my friend that his trailer was actually on his land and he should start charging him rent. Finally my friend had enough teasing and hired my dad to do a survey. My dad does good work and guess what? The neighbors roof overhangs 8" onto my friends property as well as his fence. That shut the neighbor up fast and the dog went back to sleep. Did my dad mark the line up front and out back?? You bet he did! Did my friend try and make the neighbor remove the encroachment? Nope.
He should resolve the issue by doing an easement or boundary line adjustment. All boils down to $$
You brought up the subjects of the client with the paint can, the fence contractors, and the comments overheard in your first post. If it was not germane to your mindset, it shouldn't have been mentioned.
Belittling me personally as a "tradesman" is unprofessional and the practice is an unseemly reflection on yourself. As a registered surveyor for more than 30 years I have a good grasp of boundary surveying and have never been to court having to defend my own work. My insurers have never had to pay a cent in claims.
I get the feeling that you are lashing out in this thread, frustrated that what you have been taught in seminars has not helped you resolve field problems, but made them more complicated than necessary. This is a good example of the importance of the experience requirement for land surveyors. I sense in you a willingness for studying, but a discomfort level in a field situation which is fairly normal in the practice of boundary surveying. All evidence you find in the field does not have equal weight. You need to be able to sort it, prioritize it, and filter out things that have no bearing on you completing your task. The more experience you have, the easier it will become.
In starting a thread such as this, you need to be prepared for the differences of opinion which are likely to follow. A dismissive attitude toward differing opinions ends all learning.
Half
good example of a common law solution. they agreed to let it go.
the problem is when a city slicker moves in next door and finds that the discrepancies were already noted and not resolved, and uses that documentation against you as a timepoint towards some kind of adverse possession.
common law and commercial law are always at odds with each other, have been for centuries. what works as an amiable solution in one makes for a liability in the other. we as surveyors are stuck in the middle, and cannot simply choose one or the other. in fact, it could be said that a great deal of our expertise is in knowing how the two relate, but in the last 50-75 years we are doing that by recipe rather than by actual knowledge.
Half
While I understand what you're saying, I've stake a lot of lines where the adjoiners were pissed off before I took the job.
Always take a job where a surveyor has already been there and pisses your client off. Those are very lucrative and you get to have a much larger budget to work with so you can do it right.
Do what you can to keep the peace. Don't be an advocate for your client. Remeber who hired you. Sometimes walk away.
You're doing very well. Be proud of yourself, but don't cut a niche out of your market.
Carl Zeiss
I was very surprised at your post:
"by Carl Zeiss , Wednesday, June 15, 2011, 14:58 (1 day, 1 hours, 12 min. ago) @ Joe M
Stake it, and let the lawyers and judges decide who owns it.
Agree totally"
That is not land surveying that I believe in!
Keith
Carl Zeiss
Let me clarify my post!
I am sure that after many hours of research, and hours of locating all the necessary monuments on the ground, you make your judgement as to the boundary line location and then stake it.
And of course the courts always can make further judgements.
But your statement came across as the deed staker and left the implication that you did the technical part, monumented that technical opinion and left.
To me anyway.
Keith