@eapls2708 Always appreciate the time and efforts you put forth. Cheers.
@dmyhill I agree.?ÿ The point I was trying to make here was in context of citing case law in a situation that could easily turn on a fact that very well could exist that would change the light of the entire fact set.
It's probably true that the vast majority of us who have a few year or more experience have completed more than a few surveys where the preponderance is there but slim, and several that after completing, we walked away knowing that there very well may be evidence that would completely change our opinion if it truly exists, but we were either unable to uncover it with very diligent efforts, or it was otherwise unavailable to us (i.e. a neighbor refused to talk to us or did not disclose the existence of an unfiled map of original survey they have in a box in the attic, or perhaps there was a monument we wanted to tie but lacked both a right of entry law and permission to go onto private property to tie the monument), or if we simply were unaware of an additional source, such as the 90 year old neighbor in the example I gave.
In an instance like that, I would not cite a case where the case was decided on a very specific set of facts which closely match what I know of the survey I'm performing, but for which I don't have a high degree of confidence that all of the pertinent facts were available to me as I completed the survey.?ÿ
In fact, for a survey like that, I have in the past included the statement that additional facts later brought to my attention might cause me to alter some or all of my conclusions.
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A good example of a survey where it would be an excellent opportunity to cite case law would be in an area where all of the monumentation had been long since destroyed but there is a definite pattern to the improvements in the neighborhood.?ÿ Streets can be located, side fences, driveways, houses and garages appear to show a pattern of occupation.?ÿ Using a published case that states that there are instances where the improvements are the best evidence of original lot lines, and tying that together with the lack of survey monumentation and the measured patterns of long-standing improvements is a great way to support why you resorted to re-establishing lines per improvements, thereby preserving the status quo and stability in the neighborhood.
In a case like that, you are relying on physical evidence, are quite sure that there is not superior physical evidence as you have found no evidence of other surveys, filed or unfiled, and the circumstances seem very unlikely to be changed by someone's account of how improvements had been made without regard to boundaries.?ÿ You are very confident in the fact set and of the applicable principle.?ÿ and you are very confident that there is not a superior principle that could be applied.
If at all uncertain, run any other methods or principles another surveyor in the area might try to apply.?ÿ Try to build the logic for the other methods.?ÿ Try to find the case law that supports other methods.
For the record, I do not believe I have ever cited case law on a survey.
@bstrand If a judge would smack down a professional for applying the principles of that profession as those principles had been developed in case law, that would be a sign of a judge who felt rather insecure either in his position or in his knowledge required to adequately fill his position.
Any reasonable judge would realize, as surveyors should that all boundary principles are a result of or were developed through common and case law.?ÿ All of them!
Judges and surveyors should also realize that relatively few, fewer than 1% of boundary surveys are brought before a judge presiding over a court.
What that means is that we, the surveyors are, whether some of us want to accept the truth of it or not, the judge of lowest competent jurisdiction.?ÿ That doesn't mean that we have any authority to make the landowners accept our opinions, or that our opinions are binding in any way.?ÿ
But like the judge in a court, we must weigh the evidence we have and render an opinion by applying the applicable principle or principles to the evidence.?ÿ As licensed professional surveyors, we are expected to apply those principles competently.?ÿ That is the same role as the judge fills should the survey ever be weighed by a court and the same performance standard the judge is expected to perform to (competence in applying the applicable principles).
Since all boundary principles come from common and case law, we are applying legal principles in order to reach our conclusions.?ÿ We are making both technical and legal conclusions every time we set a monument and every time we sign & stamp a map.?ÿ You can deny it, but it doesn't make it any less true when you do it as when I do it knowing that I'm doing it.?ÿ If you deny it, it does make it less likely that you are applying the correct principles as consistently as surveyor who realizes that they are applying legal principles and accordingly studies the defining qualities and application of boundary principles from primary sources as well as from the commonly accepted texts of our profession.
If you don't believe that all boundary principles come from common or case law, fine, you have the right to be wrong.?ÿ Oh wait, you don't have that right when practicing a licensed profession - that would be otherwise called incompetence.?ÿ But if you want to argue that they don't, try making a list of boundary principles?ÿ that originated somewhere else.
@warren-smith Fortunately for us, boundary law is extremely stable as compared to many other areas of law.
