Court case completed

may the coolest heads prevail

> The judge wold not let me testify as to the doctrine of 'practical location'

I'm sure that the judge prefered to keep that duty for himself.

Were you testifying as an expert witness? If so, I would have thought you could have given your opinion on the "practical location".

Let us know the outcome as it appears on first blush, that it is a debate between numbers and walls?

Keith

I think that you could say "In my opinion this is a case of practical location", but the judge is going to want to reserve unto himself just what the law of practical location is.

Yeah, the Judge is the expert on the law. But I have been allowed to testify in similar circumstances. You need to phrase the question differently. For instance, line up the elements of practical location in your State. Then have the attorney question you on each in order. The Judge will catch on.
You can even testify as to the fact that the line is per practical location in your opinion, you just can't give an expert opinion on what the law is (neither can an attorney btw).

A: what did you determine about the deed lines.
You: they are ambiguous because of....
A: but you did determine the line and the note on your map says per practical location
You: yes
A: did you find improvements indicating occupation
You: yes, this that the other thing....
A: did you find evidence of how long they have existed
You: yes, testimony, moss coverings, building permits,..... whatever
and so on

the attorney usually needs to file a brief with the court on the law he hopes to rely on and the surveyor can certainly help with that. But the Judge will research it further and decide just what the law is.

Yes, I was testifying as an expert.

I was able to get the points necessary for practical location across, I think.

But, as a surveyor, I believe that I should be allowed to explain the principals involved and the judge can then decide weather I applied them correctly.

And Yes, a post trial brief is standard and I will be assisting in the preparation.

I have been allowed to testify as to standard doctrine and practice previously, just not with this judge.

The attorney my not have allowed you to give testimony concerning “practical location”, because he is looking out for the interests of his client. In so much, that if his client does not prevail in the case, you may be left in holding the bag and the losses of the client who relied upon you to establish the limits of his property.

Practical Location (of course) varies between jurisdictions. However the basic foundation is that adjoining property owners enter into an act of mutual distinction of the line that divides their respective lands. Generally speaking, practical location requires the cooperation of both parties, such as the rule of a consentable line or time immemorial, where as the act must be mutual by both parties, not unlike acquiescence. Therefore if you have adjoining owners who are fighting over an area of land, they certainly are not in agreement of practical location.

> I did have one surprise though; The judge wold not let me testify as to the doctrine of 'practical location' after objections were raised from the plaintiff's attorney. Apparently we can not testify as to doctrines used in our determination of property lines.
That's really not quite true. Had your attorney been prepped for the objection, he likely could have successfully had it overruled.

What I have done in past cases, is approach the doctrines as "survey principles" (call them Principle #1, #2, #3, etc.) designed to assist the land surveyor in determining the location of boundaries (after all, that's our duty). In order to perform our duty, we must understand these "principles" and understand the evidence necessary to determine whether a boundary has been established through fulfillment of the required elements. At that point, you can list the required elements (which are taken verbatim from the jurisdictions prior rulings), then state how you analyzed each piece of evidence which fulfills each element.

Of course, there may be several "principles" which govern the boundary location. Each one should be defined by their separate elements, then the evidence discussed which fulfills each. Most cases (and it sounds like this one too) could win on any one of several "principles."

Once you've presented the principles, the evidence which supports or fulfills them, you can summarize by expressing your professional opinion as to the location of the boundary "as established on the ground" (the "ultimate opinion" which is unobjectionable). Once the boundary has been established, it's the surveyor's duty to "retrace" the boundary to discover its location. If the opposing attorney raises an objection, have your attorney prepped with Rule 704 (or its equivalent rule). Also make certain the attorney prepares a pretrial brief containing all of the "principles" with their complete citations to your jurisdiction's laws. Then the judge can follow along with a checklist of elements necessary for each.

The court's (and especially the other attorneys) don't appreciate it when you state "what the law is." Couch the law as a surveying "principle" or "directive" and you'll be able to testify. Your attorney needs to know that, as a surveyor, you are educated about the principles, study the principles, are tested on the principles, and are expected to apply the principles on a daily basis as you perform your duty to locate land boundaries. Once you state the principles and the individual elements to prove them, let the judge connect the dots and see that you've obviously obeyed a strict law which the judge can apply to the "facts of the case" and determine the boundary in the same manner as you have done.

> I will furnish a copy of Justice Cooley's treatise to the attorney and will forward a copy to the Land Court Chief Justice for her "amusement." (Once the decision is issued)
It would have been better to have had your attorney present a copy of Deihl vs. Zanger (Cooley's 1878 decision which prompted his treatise) along with a copy of the treatise as part of the pretrial brief. My philosophy is, if you teach the law first, then follow up with the evidence second, it's pretty easy to determine the proper location of the boundary. Most of us were taught to gather the evidence first, then guess (and we've all been told we can't second-guess the court). Very unfortunate for our profession.

One of my favorite lines in Cooley's treatise is: "The surveyor, on the other hand, must inquire to all the facts, giving due prominence to the acts of parties concerned and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon the parties concerned, and second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs." Once the judge (and the attorneys, and the surveyors) understands this, it becomes absolutely clear that the duty of the surveyor is to apply the rules of evidence, the rules of civil procedure, and the rules of law regarding boundaries in every boundary determination that they make. The court needs to know what footsteps were left by the surveyor in order to determine what footsteps to follow in the "same lights ... and rules."

JBS

In my opinion, Mr. Stahl, you are a "Professor"....not to hash up old posts on another site...very informative post...

Great post!

May I copy it for my "Surveyors reference" file?

Have a great week!

Court case completed>6th

You missed the point in my post... the JUDGE would not allow me to testify as to practical location and why I thought it was applicable in this instance.

Also, the neighborhood is old, 1867 was the first lot out, with a dwelling. The argument is between neighbors, one of which is brand new and needs to have over 5000 SF to create a condo out of the dwelling. Currently he has about 4,900 and if he prevails then he will have 5,100 SF...

not quite sure what you were responding to, but not the facts that I presented in my first post.

don

Court case completed>Interesting concept

One of the points that I was able to make was "following int he footsteps of the original surveyor." In this case, Ben Lancey bought two vacant lots in 1867, he then had dwellings built on the lots and conveyed them out, one by one, by deed. A very clear line of Sr. rights were presented int he deeds.

However, the dimensions varied in the deeds, between abutting sidelines, as well as the over all frontage and rear dimensions.

So, in following Mr. Lancey's footsteps, I verified the deed dimensions to the beginning points, from both directions, and the dimensions were close enough. They fell on the face of the low retaining walls I mentioned previously. But the walls diverge towards the rear on the first lot out, and converge towards the rear on the middle lots.

The hedge, that I held to be ours, matches deed dimensions coming from one way (at the rear) but not the other direction.

My presumption is that the previous owners established the property lines by use and occupation.

Dtp

Court case completed>6th

My point is that the attorney’s duty to present what is in best interest of the client. Your duty is to (in your opinion) tell the client where his property line is. Your methodology is not being tried here (or was it). The reason that the judge did not want to hear your methodology is less material than the fact that the clients’ attorney did not present your methodology.

An attorney will never ask question that he does not already have an answer to. Ergo he had a logical reason for not presenting the ‘practical location’ argument in a way that the court would have heard it.

I know, they all do things a little different, even in the same jurisdiction. The one thing they are all aware of is what it takes to be overruled, and that's their worst nightmare. The question you say the attorney asked you is really not much of a problem unless there was a jury present. In that case to allow it would have been grounds for a new trial. Only the Judge can instruct the jury on the law. Even so, if the opposing attorney objects, the safe thing for the Judge in this example is to sustain, jury present or not.

On the other hand, in the case of most evidence and testimony the safe thing to do is let it into the record. Unlike your example, usually if the evidence shouldn't have been allowed it still doesn't rise to the level of swaying the case so far that it needs to be dismissed for new trial. It's much more likely that evidence not allowed should have been, in which case it's an automatic re-trial.

I know you have a bunch of experience at this too. It's a game and we learn something new every time (at least I seem to).

That's what I was thinking. It's OK for the surveyor to state what doctrine he applied. It's up to the court to define the doctrine and then determine whether the surveyor's application was correct.

We must know and properly apply the law to our work, which means we must know the definitions of and differences between the various doctrines which should direct our decisions, but giving our definitions to the court or to the jury is potentially putting our toe across the line into advocacy, which is not our role. We follow the interpretations of law given us by courts, and interpret law for ourselves for application, but interpreting the law for others to apply is the role of the attorney out of court and the role of the judge in court.

Good try though, Don.

Did the judge offer an explanation of the doctrines or explain the differences to the jury?

Court case completed>Interesting concept

> My presumption is that the previous owners established the property lines by use and occupation.
>
> Dtp

Thanks for starting this thread. This is the kind from which I learn.

Another "presumption" that could be made (in my mind), is that the extremely old occupation evidence may be the best available evidence and/or monuments of the originally laid-out corners. Even if you don't have a copy of a survey plat or some first-survey notes, the owners must have figured out where there property was some way, and this might be the last evidence of the corners as originally, or "first", staked-out.

Thanks to JB Stahl for another great educational post.

Tom

Surveyors in the colony states have a unique responsibility to know and understand the rules that govern their land courts. While our founders were trying to establish a country ruled by the citizens rather than a central soveriegn authority, some of the early 'states' tried to preserve some vestige of common authority over the land. In those cases, a series of 'rules' were developed to govern the activities of these land courts. Knowledge of this body of 'rules' for these courts is mandatory for any surveyor engaged in boundary determination.

Along with the above, knowledge of fundamentals is crucial. Knowing that we are governed by the same fundamentals that govern the courts, we can refer to these fundamentals to explain our decision making procedure.

Black's law dictionary is a prolific source such as the definition of 'Fee Simple', the catagory of land ownership here which is defined as one where the owner has the 'unconditional' right of disposition, (not use),and the definition of 'Alienation' that refers to every form of parcel creation by acts of the parties as opposed to those created by law.

Using these fundamentals, the judge can apply the wording, (acquiesence, practical application, estoppel, etc.), that applies in their jurisdiction.

Try to remember the caution expressed by Cooley in his treatise, 'Some Suggestions for the Study of the Law', which is the preface to the 4th ed. of his "Cooley's Blackstone':
All history teaches us that different peoples, or even the same people in different stages of advancement, are not to be governed by the like modes and forms; and while we all concede this as a general rule, we are too apt, perhaps, when we compare with our own the system which prevails in the country from which we have mainly derived our ideas of government and law, to forget that we erected our structure on foundation ideas of democracy which never pervaded in the governing classes in Great Britian, and that the aristocratic sentiment, which is there controlling, is here, in a political point of view, insignificant.

I'm reminded of the old adage that,'You can't make a silk purse out of a sow's ear'. In this case, the silk purse was to be the American legal system and the sow's ear is English common law. Warren Burger, Chief Justice of SCOTUS pointed out in his 1984 report on the state of the judiciary that the american legal system was no longer acceptable for a civilised society which seems to indicate a certain 'lack of success' in the process so far.

Understand and use the same fundamental legal references that judges use. The fed gov't, @1974, passed an alternate dispute resolution law and, since then, every state also has a body of statutes defining how, absent any criminal activity, parties can resolve their differences without the interference of lawyers and courts. A mediation process based on established legal principles and court decisions that have clearly explained the application of these principles can be documented in such a way that any judge in a court of competent jurisdiction will uphold the mediated decision of the parties to the 'dispute'. Nolo Press has some very good mediation handbooks at reasonable prices, check them out.

Richard Schaut

I testified in a bench trial; it was an easement case.

The other side (defense) objected to the plaintiff's attorney questions.

The Judge upheld the objection. He obviously understood the case because he started asking me questions. Eventually he saw that I had a file with all of the documents organized in it so he just borrowed it, had the clerk copy the whole file and ultimately decided our way.

It doesn't matter how you get there as long as you get there.

I don't think Judges and Attorneys understand that boundaries can't be surveyed without reference to some law or other. I think they think it is some sort of magic we do and the law doesn't have anything to do with it. I think they just aren't educated but occasionally you get a Judge that is savy on real property issues.

> I testified in a bench trial; it was an easement case.
>
> The other side (defense) objected to the plaintiff's attorney questions.
>
> The Judge upheld the objection. He obviously understood the case because he started asking me questions. Eventually he saw that I had a file with all of the documents organized in it so he just borrowed it, had the clerk copy the whole file and ultimately decided our way.
>
> It doesn't matter how you get there as long as you get there.
>
> I don't think Judges and Attorneys understand that boundaries can't be surveyed without reference to some law or other. I think they think it is some sort of magic we do and the law doesn't have anything to do with it. I think they just aren't educated but occasionally you get a Judge that is savy on real property issues.

I might usually agree with you on the level of understanding of Judges and Attorneys, but in this case the trial is being held in MA, which has a land court dedicated to real estate disputes.

I'd be willing to bet that your analogy can be reversed; that many surveyors don't fully understand the reasons behind why Attorneys and Judges do certain things.

I'm not picking on Foggy or anyone else here; I've never been to trial, much less served as an expert witness. I just wanted to put some state specific perspective on the discussion.