OK - I'm going to do it again. Have at me.
Many on this board and TOB over the years have cited these sources as if they are gospel and law. Why? Who says?
To my knowledge not a single state has adopted them as law for surveyors and courts to abide by.
Yes, they do give good references and general principles, but that is all.
Yes, they do cite some case law examples, but those examples may only apply in the state where issued.
Yes, they are a good beginning point for research in YOUR STATE, but they do not have the effect of law.
So why do so many people think they are law?
They Are Cited As Expert Opinions
Too often the Law as established by court decisions is the result of non experts doing what they think is right, not what is right.
In my opinion Robbilard has changed the books his name is attached to that the previous names should be detached.
Paul in PA
Standard of Practice.
I have used them as references in court cases, providing copies of the title page and various sections.
They have been quoted in some of my cases.
Don
All good references and excellent guides, but the personal experience you have gathered in your specific area cannot be overlooked. I use them to help further a direction I might not have otherise thought about.
> So why do so many people think they are law?
Why do you think that people think they are law. I would propose that the vast majority of posters understand the difference between primary and secondary legal source and they quote secondary sources for the exact reason they exist; as an easy way to express a generalized point of law.
I don't think a single poster who quotes a secondary source would make the case that they are quoting law or doesn't realized that in some instances another jurisdiction's established case law may contradict what they posted (at least I hope not)
A quick search of the term "secondary source" would lead one to the conclusion the the "collective knowledge" of this board understands their limitations
>I'd direct them to the primary source of the law, rather than a secondary source such as we find in the surveying textbooks...
>If it is in the statutes, that is better than going to a secondary source like Brown because Brown and other texts...
>First off, text books are secondary sources. I find a great number of misstatements in the text books I teach from. Test your textbook against the primary source...
>Remember too, Brown's is not a primary source or even a secondary source. It is educational and has some credibility but is not effective where it contradicts established law...
>In the past, surveyors have only been expected to use secondary sources such as Clark, Brown/Robillard, etc.. But this might change if free internet legal research becomes commonly available and commonly used in the profession...
>There is no general statement of law we can throw out that can't be shown contrary in one court or the other. And the secondary sources such as Clarks have an awful lot of opinion on how things should be...
>an opinion of the author but it is not an actual authority to be extrapolated from...
Because they were first. I know, they weren't the first to write legal books for land surveyors, but they have the effect of being first because they loom so large in the collective mental landscape of the land surveying community. Which gets us to the place known as 'standard of care'; what would a reasonably prudent land surveyor do in like circumstances? Well, he wouldn't be too much of a rebel if he were to consult those textbooks and find guidance there. I do think that they are basically very good books, by the way, and as you mentioned, they contain many useful cites.
It's kind of a variation on "show up for the meetings, because those who do get to rule the world." Those books served a generation or two of land surveyors, and while not perfect and on a couple of noteworthy occasions were dead wrong, they were 'it', they became the standard.
We are fotunate that there are new leaders who are committing to authorship who hopefully will become the standard of care for present and near future land surveyors.
Stephen
Skelton and Clark (Robillard now) are legal treatises which are secondary sources of law. A court will go to the primary sources for their state first which are statutes and common (case) law. If the issue is not addressed in the state's primary laws, the courts will head to other states' laws and secondary sources such as legal treatises. Many surveyors are taught survey law just from Brown's books which while not legal treatises but are a compilation and/or summary of all state laws and survey principles. Fortunately, many surveyors know this and are aware that their state laws may vary from these books. However, we do have to have a place where beginning survey law students can start learning survey law. They do have to be taught to compare and contrast the individual state laws with these books.
I teach directly from the State Civil Code and from the State Statutes. I recommend those secondary sources as an excellent way to begin to understand how to think the way many Courts have ruled. By reading many secondary sources the student becomes aware of the uncertainties of the Law and that there are seldom (if any) absolutes in the Courts.
"So why do so many people think they are law?"
Who thinks they are law?
> So why do so many people think they are law?
I venture that only a very small percentage of licensed surveyors have ever been to a law library, fewer still have been to one recently.
Try me. Ask the next licensee you meet to name 3 cases from your state decided in the last 10 years.
Indeed, few have picked up their copy of Brown since the night before their last test. Any Surveyor who can quote Brown is a step ahead of 95% of their competition.
I agree. When I was teaching I also directly used the state statutes, regulations, and case law in addition to one of Brown's books. In boundary law II I let the student choose which state they wanted to research. I tried to get them to realize that there was usually not a black and white answer, and gave points for how well they reasoned and supported their answers. I found I usually learned something new from the students.
:good: (I mean that I agree with your comment, but it's actually sad. - Probably one of the biggest reasons for multiple monumentations and the fact that if you have two different surveyors survey your property, you will more than likely get two different results)
The law is 100% man made and is a work in progress.
People like Robillard who testify in Court participate in the modification of the law over time.
Here in California one Land Surveyor misunderstood his duty and the other side stipulated to his survey ultimately resulting in a landmark California Supreme Court decision known as Bryant vs Blevins. So what we do can have big repercussions even though we think we just "present the facts" or "don't make boundary decisions, that is for the Judge to do."
> Here in California ... decision known as Bryant vs Blevins.
Bryant v. Blevins cites Brown and Clark in the dissent, thus acknowledging their stature as standard and authoritative texts.
Well, you can cite a court case from the highest court in your jurisdiction, but still not everything in it may be controlling law. All sources are useful. If you think a textbook cite is wrong in a particular discussion, simply provide a better cite.
Most of the disputes I have looked at stem from surveyors clinging desperately to one principle or court case that seems to them to control all. Teaching from the textbooks first is crucial to a broad in depth understanding of the history, evolution, and basis for legal decisions. Then we move on to research of particular recent decisions and see how they fit and why they are decided as they are. To start at the end leaves a huge intellectual gap of misunderstanding in my view. But this is an old legal education debate. Should the graduate have memorized current procedures and codes such that they are ready for practice or should they have a deeper broader understanding such that they can figure things out and learn more?
In any event, a cite to one of those books by a surveyor is perfectly fine. A statement of "that's the way my boss always did it, and she was the best surveyor I ever knew" is not going to cut it.
Mosk pretty much shreds the majority in the dissent. I think the majority is extremely naive about the state of boundary control out in the real world.
