Anyone ever put case law citations right on the face of the record of survey?
I did that today as part of the narrative for why I accepted the fences. Never seen anyone do it unless it was to label a line on the survey, "this line per Superior Court Cause #xxxxxx" or to label a ROW take. In this instance it is to give the legal principles for why one might accept an erroneous section breakdown many years later.
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You are way ahead of most since you are explaining your decision.?ÿ
Proceed with caution though. From your posts here I would wager you got it right, but I have encountered many surveyors who?ÿ read one case and think they understand, without investigating the many conflicting cases, or try to fit one decision based on a unique set of facts to a different set of facts.?ÿ
I think a surveyor should if it defines the conclusions. There are two court rulings in my area that uphold my pins. In the fantastic drive for some surveyors to justify their pincushions, they actually cited these two cases INCORRECTLY on THEIR plats. I have another case where a surveyor incorrectly cited one of these cases in a meeting with our county attorney in his effort to discredit me, but in fact confirmed my opinion on a case, while managing to thoroughly confuse an entire county and every landowner in the block. He managed to convince his own client that he had 20 feet less, and that landowner thought he had 20 feet more. Someday I'll post the county public minutes of these discussions for an example of a fantastically confused landowner and county officials, led by a misinformed surveyor citing my own court ruling in an inapplicable and moot manner, and if everyone would have just shut up and listened for one minute, my correct surveyor would have given the landowner a lot more acreage than they snatched from the jaws of truth!
Early in my party chiefdom, a neighbor came out to tell me how the 16th I was GPSing was "11.5 feet wrong, we had to move our fence, everyone had to move their fence, the last guy against the road lost 11.5 feet!"
Which made an impression, because I had only just discovered how the N/4 had been moved 42.5' East back in like ... 1947 when they oiled the road. And if only the newly licensed guy, who had just convinced half a dozen people to move their fences and accept a new section breakdown, had done the slightest bit of research.
Being unlicensed at the time, and being as how they had already moved all the fences JUST ON THE SAY SO OF THE SURVEYOR AND WITHOUT A SECOND OPINION, I have shut up until repose set in. But I know the story. And I know why all the fences are off by a calculable amount in that section.
One of the most painful things to watch in a land dispute is two attorneys trying to sway a judge using case law. Neither the attorneys, judge, jury or landowners have any idea what we are talking about
In 2019 I did a boundary survey concluding that an inferred agreement 100+ years ago fixed the line at the location of the current fence line.?ÿ In the boundary determination narrative on my draft Record of Survey I had a section several paragraphs long citing the 3 published cases I relied upon in formulating my conclusion.?ÿ The attorney representing my client advised me to delete that section from the ROS, as he believed it was better to deal with those details in court.?ÿ He said that committing the application of the court decisions to text on the filed map would make it easier for the opposing side to attack my survey, and that it would be easier during testimony to anchor the citations in the realm of boundary surveying rather than in the interpretation of legal opinions.
Maybe it was just a knee-jerk territorial reaction on his part ("I'm the lawyer, you're the surveyor"), but I followed his advice and left that section off of my ROS.?ÿ
For what it's worth, the judge agreed with my conclusion, but the case is currently under appeal.?ÿ I spoke with the appellate attorney representing my client, and he said he's 90% certain he can win the appeal, but that it may be financially advantageous to my client to settle.?ÿ The plaintiff, who lost the Superior Court case, had rejected several settlement offers, so he not be willing to accept an offer now.?ÿ The matter is scheduled for mediation as part of a routine recommendation from the appellate court.
Thankfully, Oregon law requires the inclusion of a narrative.?ÿ Some people tend to include the bare minimum.?ÿ Personally, I like to get into the details of what was done.?ÿ If I used case law in my reasoning, I would state it.
Sounds like his argument was "don't show your cards until time to play them."
Sometines at least one if the attorneys will just be throwing outlandish?ÿ stuff out hoping it will stick
This is probably good advice when you know the issue is already being litigated, but we do our clients and profession a disservice by not explaining our reasoning when there isn't a judge waiting to explain everything to the world.?ÿ
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Its gonna sound like I'm picking on you but I'm not, biggest problem I have is highlighted below, as far as a statement on an RS, that's our Duty, blab your brains out.?ÿ?ÿ
new section breakdown
@pls9196?ÿ
In 1947, the land was cheap and nobody cared. They put the brass cap back in 42.50 E of the original position, at the edge of the road. The immediate area had previously been timberlands and was now surveyed in -- from the "new" N/4 -- as 5 acre parcels. Nobody thought to check the "new N/4" against the existing 16ths.
60 years later, new LS calls the 16th corner 10.5 feet "wrong" and gets an entire block to move their fences. No litigation, no court cases, apparently all privately negotiated and settled. Not even two surveyors, just "Hey, y'all let's move all the fences!"
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Bear in mind that the average attorney begins with the presumption that surveyors have never bothered to read the law.....
@john-putnam Exactly. That is what a narrative is for. What evidence was used and how was it treated...
And the average survey surveyor begins with presumption that the attorneys have never read boundary law.?ÿ
@jim-frame we had an experience like that a few years ago. I bungled an answer rather badly. Our attorney didn't follow up on it. 30 minutes later opposing counsel asked the same question phrased slightly different and I skewered him. I wanted to send him a thank you note but my boss wouldn't let me...
One of the most consistent mistakes I've made is caving to lawyers who want me to remove "unnecessary" information. I call it "necessary and professionally required". I told one lawyer "I'm willing to put my name on THIS document and you can retype it any way you want". Most of the times ive caved I would later regret. But so far I've not been asked to remove a case law cite. In fact I posted one of my postcards about how the attorneys and planner could not fathom why I would accept monuments that don't "match" the plat and I often wonder if I should add that case law answer in a standard note?
This answer may not be the one I would have once given. Time changes things. We may want be careful about making case citations. A citation certainly can be useful to keep in your back pocket when working with council. But let them decide how to use it.?ÿ
Pointing to a specific case in a narrative is not wise. State the facts that support your location based on the law but not a case that supports the law. Just about any lawyer could argue against the application of the cite to your survey but not the facts. It may be the cite you make may not be the best one out there or there are other things in it that don't particularly apply to your situation.?ÿ You may be painting yourself into a corner.?ÿ
