Chapter9, 1st Edition, BC&LP (1957)

The Surveyor and His Duties

261. Purpose of a Boundary Survey. A boundary survey may be for any one or all of the following purposes: (1) to mark an existing property description on the ground; (2) to establish new lines relative to existing title lines; (3) to determine the line of possession relative to title lines; (4) to file a permanent record of where an existing title description is located on the ground.
New lot boundaries established for the first time are often regulated by state laws. Such regulations may be for safety (maximum grade, minimum curvature, etc.), aesthetics, expense, future development, and like considerations. They involve the utilization of surveying equipment, the running of traverses, the computation of closures and areas, the measurements of angles and distances, the proper alignment of streets with acceptable grades, and the development of building sites. The scope of this book excludes a discussion of these factors.
If the purpose of the survey is to establish existing title lines, it must be remembered that, in the absence of adjoining property owners agreeing upon a disputed line, the only proper location of the disputed line is in the position that a court of competent jurisdiction would decree. Thus surveyors, when establishing boundaries, are obligated to familiarize themselves with the law as it exists. The client expects the surveyor to establish the correct legal position of his property lines. If a line is incorrectly delineated because of lack of experience and knowledge of law, the surveyor may be the cause of an aggravated condition between neighbors. And if the matter is disposed of by the courts, the client would plead upon a losing ground.

The possibility is always present that over a period of time another line, through action of law, has replaced the original property line. There may be occupancy over a period of time, a neighbor may be estopped from asserting the true line, or former owners might have agreed upon another line. The title to the old line is then gone. For the surveyor to re-run the original deed and mark the lines on the ground is of no avail; another line that may be entirely dependent upon unwritten conveyancing is the correct boundary. Thus the occasion might arise when it is unnecessary to establish the original deed lines; a survey for the purpose of describing where the line of possession exists may be sufficient to support litigation in matters involving unwritten conveyances.

262. Land Surveyor. The land surveyor is a professional man who has specialized in the application of law, mapping, mathematics, and instruments to the problem of positioning land boundaries. The ability to use instruments, measure angles, and locate objects relative to one another is not the sole qualification for claiming the title land surveyor. Carpenters in establishing building lines, aircraft workers in setting up jigs, and civil engineers in determining the position of bridge abutments all use surveying instruments; but this cannot be considered land surveying. Most engineers are qualified to make measurements, use instruments, design buildings and structures, but few of them have sufficient training in the laws that determine the location of property lines to be considered proficient land surveyors. To refer to an engineer as a land surveyor is similar to calling a surgeon a dentist. A land surveyor may also be an engineer; many are not.
The surveyor is a fact finder. He goes upon the land armed with all the documentary evidence that is available and searches for markers, monuments, and other facts. After all the evidence, facts, measurements, and observations are assembled, the surveyor must come to a conclusion from the facts. Which monuments can be accepted and which must be rejected? If there are conflicting terms in a deed, which is correct? If there are conflicts between measurements and monument positions, which hold? The ability to arrive at a conclusion and answer such questions elevates the land surveyor from the status of a technician to that of a professional man. He is exercising independent judgment.

263. Duties of the Land Surveyor. It is the land surveyor’s duty to correctly locate and mark property lines as described in a deed furnished him and to relate lines of possession to title lines. The surveyor must be able to interpret the meaning of the terms of the
deed and must be able to use surveying instruments to enable him to locate and mark the deed terms upon the ground. The surveyor cannot and does not assume the responsibility of proving that a given deed is correct and legal; that is a function of an attorney or court of law. But after a deed is furnished and he is told to mark the property on the ground in accordance with the terms of the deed as furnished, the surveyor must certify that his marks are in accordance with the terms of the deed. If there are conflicting terms within a deed and if the surveyor sets his marks in accordance with one of the conflicting terms, he is assuming responsibility for his decision. If the property lines, as described in the deed, encroach on others or if others encroach on the property lines described, the surveyor should note the encroachments.

264. Title by Possession. Many times in establishing boundaries, a surveyor will find others occupying his client’s land as indicated by a fence, a house, a well, or cultivation. If a person occupies a parcel of land long enough and complies with certain acts of the law, or if there is an agreement over a disputed boundary, he may have the right of title to the land that he is occupying. Only by a court order or by a written agreement between the adjoiners can the written title be changed. The surveyor may not take over the judicial functions of the court and determine what the unwritten title rights are, but he may determine by measurements the relationship between the written title and the line of possession. If a surveyor is hired to establish the boundaries of a parcel of land in accordance with a legal description furnished him, he should follow the exact instructions written in the deed. If the adjoining owner probably has adverse rights to a strip of land which the written deed gives to his client, the surveyor may not establish the boundary so as to exclude that portion claimed by another. Likewise, a surveyor should not include within the boundaries of his survey, that portion of land that his client adversely claims. But if a surveyor is employed to measure and mark the line of possession, nothing should prevent him from so doing as long as he clearly indicates on a plat that the markers represent only the line of possession. Assuming that a surveyor may mark property in accordance with possession, and there is authority that under certain circumstances a surveyor should do so, what are the effects of such markers and what ethics are involved? Normally it is presumed by the public, and often by surveyors themselves, that all property markers found represent points set in accordance with written deed lines. If an owner, whose stakes have been set in accordance with a line of possession, points out to his neighbor a survey marker and states, “This is my property line,” deception can occur. The adjoiner, assuming that the surveyor may not declare that a line of possession is the true title line, is apt to be misled. If the adjoiner discovers the truth, i.e., that the markers are merely lines of possession, he will more than likely seriously question the ethics of surveyors. The Technical Standards for Property Surveys as adopted by the American Congress on Surveying and Mapping states, “Every parcel of land whose boundaries are surveyed by a licensed surveyor should be made conformable with the record title boundaries of such land.” That is a wise policy for every surveyor.

265. Liability of Surveyors. Liability results when the surveyor fails to do correctly the thing that he purports to do. If the owner instructs the surveyor to survey his land in accordance with his written deed, and the surveyor does precisely that without error, no liability can ensue. If the owner tells the surveyor to survey his land in accordance with his lines of possession regardless of the written title lines and the surveyor does just that, no liability can ensue. But in the event that the surveyor establishes lines in accordance with possession he should be prepared to prove that he properly notified the client of such fact since the burden of proof would probably be his.

The surveyor, as a professional man, is bound to exercise that degree of care that a skilled surveyor of ordinary prudence would exercise under similar circumstances. The surveyor is not liable for the absolute correctness of a property line; he is liable if he fails to establish the line as a reasonably prudent skilled surveyor would do. Where a surveyor is notified that a large building is being erected exactly on the property line, he would be expected to exercise greater care than under other conditions.
Normally it is presumed that the surveyor’s liability is limited to the person who pays him the fee. Title companies limit their liability to those whose names appear on the face of their policy. To limit liability in a like manner, it is good form for the surveyor to state on his plat presented to the client “for the exclusive use of John Doe.”

In Washington, where the surveyor erroneously marked a lot 5 feet into the street, the plea that the survey was not guaranteed was of no avail. The court observed,

It is also argued that the trial court erred in striking a portion of the answer, to the effect that it was the custom to guarantee the accuracy of surveys by certificate for which a larger fee was charged than in cases where the boundaries are ascertained without reference to the improvement of the lot, and that the survey made in this case was of the latter kind, and the smaller fee was charged, and, also, that the court erred in excluding evidence to the same effect. We think the court properly excluded such evidence. It was conceded upon the trial that the defendants were employed to make an accurate survey. Whether they gave a certificate or not, or whether they received a large or small fee, would not change the liability so as to relieve them from negligence. It was shown that the surveyor overlooked the parking strip or misread the figures upon the chain, and that in this way the mistake occurred. This was clearly not due care.

For a fee of $12 (in 1911) the surveyor paid $1,267.50 to move an apartment house.

In Michigan the commissioner of highways employed the county surveyor to survey properly the quarter line of section 31. The surveyor was said to have so negligently and unskillfully performed the work that he failed to ascertain said quarter line by his survey, thus rendering it necessary to make a new survey, and abandon a large amount of road constructed at large expense. The court in ordering a demurrer overruled noted,
Whether he was a professional or official surveyor, or represented himself as such, his undertaking was that he should bring to the work the necessary knowledge and skill to perform the same properly and correctly; and if he failed so to do, and the employer sustained damage in consequence of such failure, the plaintiff will be entitled to recover.

In Connecticut a surveyor, hired by Mr. Ferrie established the property lines in accordance with a written deed. After a building was commenced upon the line, the neighbor brought suit for ejectment and won on the basis of an old fence that formerly stood for 30 years. The fence was missing at the time of the survey. Mr. Ferrie, upon suing the surveyor, was awarded damages. The supreme court of Connecticut in ordering a new trial observed,

Having accepted the services of a client, the surveyor was bound to exercise that degree of care which a skilled surveyor of ordinary prudence would have exercised under similar circumstances. This being the rule, it was important that the jury should know what such an ordinarily prudent surveyor would do under the circumstances of the case. Might he simply examine the land records and monuments of title and observe the fixed monuments and evidences of present occupancy and ownership; or was he bound to scour the neighborhood to learn whether there had been adverse occupancy and claims of ownership of any part of the premises covered by his client’s deed by others than the latter’s predecessors in title appearing of record?

In this action against a surveyor for negligence in locating a boundary line, the exclusion of evidence as to what an ordinarily prudent surveyor would do under the circumstances, and as to what the requirements of such practice are, was erroneous.
When a surveyor fails to include all the land owned by his client, he is not liable for damages since the omitted land may be recovered; however, the client can sue to recover the fee paid for services rendered.

From the above cases it is obvious that to avoid liability the surveyor should err on the side of safety. This applies particularly to facts of record, evidence of occupancy, and other things that his eyes and ears can detect. In other words, try to do a little more than an ordinarily prudent surveyor would do under the circumstances.

TRESPASS RIGHTS OF SURVEYORS. The right of a surveyor to trespass upon another’s land for the purpose of searching for monuments and recording measurements is presumed by all surveyors. It is common practice for the surveyors to enter upon a parcel of land, without the consent of the owner, and make those measurements that are necessary for the survey being performed. Foundation for this right is lacking in common law. In the absence of a statute law giving a surveyor trespass rights, a surveyor who enters upon the land of another without permission is an intruder without rights, and the mere trampling of herbage or grass may be sufficient cause for damages.

266. Question of Law and Facts. In court cases the judge decides questions of law. Upon request of either party to a suit, questions of facts are determined by the jury, but, in the absence of a request for a jury trial, questions of facts are decided by the judge.
What are the boundaries of a particular tract of land is a question of law, but where the boundaries of a particular tract are is a matter of fact.
The surveyor determines facts when he identifies monuments, retraces former surveys, and measures angles and distances to known objects. If there is a conflict between a found monument and a measured distance, where the monument is located and its distance from other objects is a question of fact, but what are the boundaries, the monument, or the distance is a question of law. The surveyor must interpret many questions of law before he can correctly establish property corners. To refuse to establish a corner because the judge has the final authority on the question of law involved is like refusing to make a measurement because the jury makes the final interpretation of what the facts are. To try to interpret every question of law is asking for liability. Although a surveyor should know and be able to interpret most of the laws, it is doubtful if he will know them all.

In positioning a property the surveyor sets his lines in accordance with the location that he thinks the courts will uphold as law and fact. In court cases the surveyor’s conclusions and testimony, as those of a man of science, are receivable in connection with the data of his survey. If a conclusion is stated, it is totally worthless without distinct proof of measurements, data, and observations; such proof will enable the judge and jury to decide for themselves what is the proper result. A surveyor cannot be allowed, under any circumstances, to fix private rights or lines according to any theory of his own. He must present a plan and/or testimony so as to enable any one else to test his accuracy, or to determine how far his conclusions were correct in accordance with the law.

EXPERT WITNESS. Any person skilled in any trade, occupation, and/or science may become an expert witness, who is permitted to testify to facts within his special field and knowledge, and who is permitted to give opinions based upon hypothetical or assumed facts. A surveyor of experience is eligible to act as an expert witness and is often asked to do so. An ordinary witness is permitted to testify as to facts and not permitted to give conclusions from facts.

Opinions may be given by experts where the opinion requires a person of particular skill or knowledge in a certain field such as surveying. Thus, if an original map recorded the fact that a 2 inch X 2 inch plug was set at a property corner and a 2 inch X 2 inch wooden stake was in fact found, the surveyor could give an opinion as to whether the word “plug” meant a 2 inch X 2 inch wooden stake and whether in his opinion the 2 inch X 2 inch wooden stake was old enough to be the original stake set by the original surveyor.

An expert may testify as to what might have caused something; but not what did cause it. Thus a surveyor may testify that the improper location of a house might be caused by measuring from an incorrect monument located 10 feet from the correct monument. He cannot say that it was the cause; that is for the jury to decide. To say that a 2 inch X 2 inch pine stake located at a property corner would completely disappear in 30 years owing to decomposition, termites, etc., would be improper. To say that at all locations where pine stakes were originally set none were found that were over 30 years old, and that those older than 10 years were in a bad state of decomposition would be proper. The question “whether the 2 inch X 2 inch stake found was the original property corner” is for the jury to decide.

EVIDENCE AND MONUMENTS. The connecting links between the written description and the boundaries as they exist on the ground are monuments. Every survey starts from a monument; the only question is, which monument? Most differences between surveyors arise from varying opinions as to which monument should be used for a particular description. If a surveyor uses a certain monument as his beginning point, he has the “burden of proof,” that is, he must be prepared to present evidence of the correctness of his contention. A mere statement that a given monument is the one referred to in a deed, without valid reasons for the statement, is insufficient to prove the correctness of a monument. For every survey the surveyor must be prepared to prove by satisfactory evidence, usually in the form of monument evidence, that the precise positions in which he has established lines are correct and excludes other possibilities.

The following kinds of evidence are used to prove the position of a monument referred to: (1) physical characteristics of the monument itself; (2) testimony of a person or surveyor who saw the monument placed or in place; (3) hearsay evidence; (4) proximity of the monument to the theoretical location; (5) reputation evidence; (6) reference points set to mark an original monument.The physical characteristics of the monument, i.e., its shape, size, the material of which it is composed, its apparent age, and its markings are the most common forms of evidence used to identify a monument. Such factors should be carefully and permanently recorded at the time of observation. The testimony of a surveyor who set the original monument or found the original monument is highly acceptable in the event of litigation. Persons who saw the original and remembered its position are given consideration by the courts. Even hearsay evidence, what one person heard another say, is admissible under limited conditions, such as the sayings of a deceased person.
Monuments found to exist in the vicinity of the measured distance are given greater consideration than those found in unlikely positions. If a monument is found considerably out of position, a greater amount of evidence is required to prove that it has not been
disturbed and that it is in fact the original. A monument 1,000 feet out of position presents grave doubts, but one a half foot out of position presents no problem.

Often the only evidence that establishes a monument is reputation. Thus, if for years a monument has been accepted as the true section corner, and especially if surveyors have accepted it, the monument becomes the corner by common repute. In such cases it is important to show that many persons have used the monument in question.
Perhaps the best evidence of the position of an original corner is reference points set by surveyors to mark the position of a monument.
The identity of the position of an original monument is dependent upon the chain of records that describe where and what the original monument was and what has replaced the original monument. Titles are dependent upon a continuous chain of ownership records from the first sale; likewise, identity of an original monument’s position is dependent upon a continuous chain of records. If a monument is reset, satisfactory proof of the fact that the new monument occupies exactly the same spot as the old monument must be preserved. Surveyors are responsible for identifying and determining the position of old monuments, and, if they replace an original monument, it is their duty to file a permanent public record of such fact. The laws require property owners to file all deed transactions and keep a continuous record of titles. Likewise, the law should require a surveyor to file public records when he resets a monument in place of an original monument and when he replaces any monument of record representing the position of a property line.

A property owner when requesting a survey wants permanent assurance that he is occupying the land to which he is entitled. The maintenance of secret survey records and secret original monument positions by surveyors assures future boundary disputes. Another survey or, starting from a different point, will find a different location for a property.
The time to determine the position of a monument is when it is in existence, not after it has disappeared. The certainty of permanent land location is wholly dependent upon the certainty with which monuments can be replaced in the event that they are lost, and the certainty of replacement is wholly dependent upon the accuracy with which existing monuments are tied to other permanent monuments. If existing monuments are related accurately to a network of Lambert or Mercator grid monuments, and if the coordinates of the existing monuments are made a public record, permanency of location and freedom from dispute by other surveyors at any future date are probable.

267. Initial Steps in Making a Survey. Prior to a property line survey, the surveyor must obtain from the owner a copy of the description of the property to be surveyed and obtain from various sources copies of all maps, adjoiner deeds called for, and records of other surveys in the vicinity. It is the duty of the property owner to furnish a written description of the land to be surveyed, and it is the duty of the surveyor to locate properly the land described.

268. Research. An examination of all maps and documents called for in the deed together with an examination of all adjoiner maps, city or county surveyors’ records, township plats and filed notes, if any, utility maps, record of surveys, and all other known records must be completed before the start of the field work. Knowledge of the order of seniority of deeds is essential, if lines are to be correctly run. The surveyor locates the property described, but does not guarantee the title. A title insurance policy states the order of seniority of deeds and should be used, if available, as a foundation for a survey.

269. Legal Description. The landowner, not being a surveyor, has little or no concept of the necessity of furnishing a correct and complete legal description of the land being surveyed. Because deeds are usually stored in a safe deposit box, the owner frequently attempts to use a tax statement or other incomplete document to define the deed terms. The surveyor should insist on the true deed, or, what is better, the title of policy insurance. A deed may have a perfect perimeter description of land yet be in error because of the existence of senior rights determinable from an inspection of a title insurance policy.

270. Tie-In’s. Every survey plat of a boundary survey should show the relationship of the land to all monuments called for, to all roads and easements mentioned, and to all senior properties. The relationship should be shown by bearing and distance ties and a note of the bearing equation, if any, that exists between the adjacent and instant property.

271. Basis of Bearing. No other factor has caused more confusion than the omission of the basis of bearings on many survey plats. In old deeds the usage of the magnetic compass was common; yet many of the deeds gave no basis of bearings. Even in modern surveys where the deflection method of survey is normally used, the surveyors are often guilty of failure to state on what basis they derived their bearings.

272. Arbitration. In the vast majority of surveys no difficulty with the adjoining property owners is encountered by the surveyor. If an overlap on another’s line of possession occurs, or if there is an argument between neighbors, it should be the duty of the surveyor to attempt to bring the parties to a reasonable understanding before diplomatic relations rupture. It is far easier to prevent an argument than it is to stop one. If an agreement can be reached, proper deeds can be negotiated. In the event that no solution can be attained and the matter is referred to the courts for final judgment, the surveyor will find himself spending considerable court time, often without the benefit of fees. Except for very valuable lands in litigation derived from boundary disagreements, even the winner loses financially.

273. Oaths and Parole Evidence. Since monuments as set by the original surveyor are usually considered correct, whether set in accordance with the recorded distances and bearings or not, it becomes essential that their location be preserved. A monument that has disappeared from view cannot be considered lost, if a person who had knowledge of its position can testify to its correct position. Occasionally it becomes necessary to determine a location from some old resident who can positively state a corner’s former location. In such a case, the surveyor takes an oath from the person stating the following facts: (1) What the corner looked like. (2) The number of years that he resided in the area. (3) His name, age, and whether he is a citizen. (4) The date. (5) How he knew that it was the corner. (6) When he last saw the corner. These statements should be written in a field book, signed by the person and followed by a notation by the surveyor that: (1) The person was placed under oath. (2) The person made the above statements. (3) The person is believed to be of sound mind and of good character. (4) What the surveyor placed at the spot pointed out. The surveyor then signs the statement along with the date of the oath. After taking an oath the surveyor should file a record of survey showing a copy of the oath as recorded in the field book.
Although such an oath is hearsay and not admissible in court as long as the person is living, it serves two purposes: (1) the oath is admissible after the death of the person and (2) it prevents the changing of testimony at a later date.

274. Quasi-Judicial Functions of Surveyors. Judicial functions in this country are vested in the courts; surveyors cannot assume the authority of a judicial officer. The taking of testimony from witnesses placed under oath and acting as an arbitrator in boundary disputes are quasi-judicial functions. When determining property lines the surveyor places his stakes and presents a plat showing where he believes that the property lines should be, said belief being founded upon what he thinks the court will uphold in the event of litigation involving his survey. He is constantly interpreting what the statutes say and what the courts have determined to be right and wrong, but such interpretation is correct only to the extent to which the courts will uphold it. He is in the unfortunate position of being the middle man who must determine for a client what he thinks the court will accept.

275. Summary. The duty of a land surveyor in making a survey is to locate the land in the position that a court of competent jurisdiction would decree. He must exercise the degree of care that an ordinary prudent surveyor would use under the circumstances. Although the degree of care required may vary from state to state, it is advisable for the surveyor to do a little more than is necessary within the particular area in which he is working.