Easement from 1968

Potentially everyone, but if "Miss Utility" was not called the contractor is probably responsible for damage to the line. Others will probably share various responsibilities for any diminished value to the lot. And all will try to avoid responsibility by blaming the other.

The landowner, unless they contracted with someone to look for such things.

Surveyors, Attorneys, Contractors all offer differing services and differing levels of service. The question is always about how much the landowner or developer is willing to pay to mitigate risks such as this one. The more complete the service the more it costs and the more likely it is that something like this will not happen.

The answer to your question lies in your contracts.

All of the above (including the landowner/developer) could also be liable for negligence. But there are no facts in this post (as yet) to indicate a negligence claim.

Thanks everyone. I am wondering how far a surveyor is required to go back in his research in easments. I am in NC. Does a surveyor have to do a title search back to 1968 or further each time he surveys a property producing a map? The way I understand it in NC,
the surveyor should research all current deeds & recorded maps including adjoiner's maps & deeds. Again nothing appeared in the current deeds & maps showing this easment for water lines recorded in 1968.

This is a big problem in rural NC, we never get title reports or abstracts and finding easements is often hit or miss. This is why I always note that no title search was done and the property is subject to any facts a search may reveal. Not that the note would protect me. But it does point out to someone that they might need to do a search.

I doubt there is a statutory time. After all, what would it be and how would one come up with it? Why would it be 20 years instead of 100? Abstracts of title usually do have a statutory time because they are tied to the time in a jurisdiction within which a lien can be enforced.
If the legislature were to require something similar for easements, the time would be unlimited because an appurtenant easement is unlimited in duration. Hence, the development of title insurance (among other reasons).

If the surveyor is provided with a research package and retained to perform the survey per that package from the legal experts, then they have performed reasonably. Usually this leads to title insurance that would cover something like you describe.

If the surveyor is not provided with the research and it is not mentioned in the contract, then they are required to search as diligently as is the ordinary practice of other surveyors in that geographic area. In this case I think it would be hard to claim the surveyor should have searched further than an attorney for a matter such as this.

Of course I would have found it, as would many others on this board. But you wouldn't have retained my services because my fee would have been at least three times other quotes you came up with and you wouldn't have known that there is any difference in the service no matter how hard I tried to explain.

It's all about risk management. Consumers need to be careful when considering who to retain to provide professional services such as law and surveying.

Who Is Easement20 ?

The above identity was created solely for the purposes of this question.

One might assume that Easement20 is a board brother who is now in deep doo doo and cares not to be outed.

Paul in PA

Don't forget the owner of the property and whoever was responsible for for getting that nifty lowball survey.

As far as the broken water line goes ... If the contractor ordered a utility mark-up, then the utility damage is probably on the utility company. If not, then the contractor is liable, I'd think. But, the contractor may turn around the sue the construction surveyor who placed the piling stakes, the engineer/arch. who designed designed the plans, the surveyor who did the topo/boundary, and/or the abstractor who missed the easement, and probably has a good case to recover their damages against one of those parties.

The bigger issue, which will probably dwarf the cost of fixing water line, are issues related to the land owners being this far into the building process, and finding out there is an easement that cuts through their property, making their preferred building site useless, and the costs they have so far into building this house wasted.

Were you the construction surveyor, the boundary/topo surveyor, or both, or neither?

Who's liable?

That question would probably best be answered by a judge.

A recorded and active easement is still just that, no matter how many times it isn't mentioned.

IMHO the primary culpability lies with the piling contractor, unless he indeed had a utility locate that did not mark the waterline. Everybody else involved needs to lawyer up, for sure, though.

Who's liable?

For those mentioning contractor liability for not getting a utility markup.

I didn't know a markup was required for digging a hole in the middle of a private land tract? When is "the call" required in your jurisdiction? I would think it would be limited to a certain distance from roads or "known" easements.

If I'm in the middle of a hundred acre rural wooded tract, the attorney does not find an easement and none is shown on the survey, do I still need to call for a utility markup if I'm the contractor?

Who's liable?

Technically speking, in Virginia we're required to call Miss Utility everytime we push a 6" spike in the ground for a traverse station. Never mind drive a piece of rebar for a corner or anyone start digging a hole in the ground.

Here in hydrocarbon country...

there are thousands of miles of pipelines with markers that are either non-existant, stolen, or so faded you can't read them. There are also a lot of dead people that thought they could dig with reckless abandon in the middle of nowhere...

Ditch-Witch Trencher Company Test Proves Fatal

Who's liable?

Anytime you dig a whole, you need a utility mark-out. CBYD (Call Before You Dig) runs ads all the time stating that, from fence posts to foundations, its law...call CBYD.

Who's liable?

Oh, yeahhhhh! Dig any time, any where at your own risk.

We normally provide only a service that locates the property boundaries only. That is made very clear. Should the client desire other relevant issues, such as easements and rights-of-way to be located, additional charges will apply.

One time and one time only we were setting corner bars on a typical town lot when the bar starting bouncing back up as we attempted to get the last six inches of a 24-inch bar to be flush with the grass. This was in an area of naturally deep soils. The stupid installer of the underground electric service to the nearly new house had angled directly from a pole in front of the adjoiner's lot to a point on the house. Any further to the north and the line would have been crossing the neighbor's lot. Fortunately, that small town had passed an ordinance requiring all underground electric service lines to have a four-inch thick concrete cap directly above the line. The client was on-site. He noticed our predicament and said, "Oh! I meant to tell you about that."

> Who is liable? The surveyor, contractor or attorney?

In order to determine "liability," one has to determine "negligence." In order to determine negligence, you must prove three things: 1) duty, 2) breach of duty, and 3) a causal link between the breach and the damages incurred. Really, in a case such as this, it really doesn't initially matter who is considered "liable" as they are all going to be sued (along with a list likely including the engineer, the architect, and the title company).

Who was in the best position to have determined that the waterline and/or easement existed? Who had the duty to discover it? Who had the knowledge, skills and training (expertise) to discover it? As much as we'd like to point fingers at others for their failure to discover the easement, we're standing in the same lineup.

Was the easement discoverable? Yes. How could a surveyor have discovered it? By simply inquiring whether or not a title search had been completed. Who would the surveyor have asked? The client/landowner who they've contracted with. If they had been asked, what it the likelihood that a title policy was available? I haven't seen a closing yet that didn't require or involve a title insurance policy issued. Chances are most likely that there is a title policy and chances are the easement is included. If a policy (by slim chance) wasn't available, what would be the cost for obtaining a preliminary report? About $150 in most instances, maybe more. Did the surveyor ask for one? Had the surveyor asked, would it have been produced? If it wasn't produced, should the surveyor have required one before proceeding with the construction layout? Who else on the list would have the expertise to ask, or the expectation (duty) to ask? The engineer or the architect? Possibly so. If they failed to ask, does that absolve the surveyor from asking? Likely not.

We too frequently want to "run home" to our standards of practice for boundary surveys and point out that the standard "product" of the surveyor involves the boundaries and not easements. When you perform a construction layout, is your duty defined in the standards of practice for boundary surveys? No. Your duty arises from the nature of the project. When you are contracted to perform a survey for the design and construction of a home, don't things like, contours, topography, existing improvements, utility services, boundary locations, easement locations, setbacks, etc. affect the project and your end product? Who is in the best position to determine what services will be required in order to fulfill the needs of the client? The professional (surveyor, engineer, architect...)?

Will the inclusion of disclaimers on your survey protect you from being included in the lawsuit? No. Will the disclaimer act as your "get out of jail free card?" Likely not. A professional cannot absolve themselves from responsibility by simply disclaiming their professional duty. It is possible to negotiate the duty by contract which equates to making sure that a title search is done by someone, if not done by you. Does the [surveyor, engineer, architect] need the information in order to provide the proper service? Yes. Which on has the greatest level of expertise when it comes to determining the extent or location of an easement? The surveyor. Can their ommision absolve themselves from the duty? No. Can a disclaimer on the survey absolve them? No. Can a clause in their contract stating that the owner shall provide a title policy, and a notation on their survey which states: "Title search provided by xyz title company, Policy number nnn," best protect the surveyor? Absolutely.

Whatever product you are supplying, make certain that it will meet the needs of your client. That's your professional duty.

JBS

Thanks everyone for the feedback. A very interesting issue.

I do not think the answer lies in the contract, I think that the answer lies in legal obligation.

REALLY?

You NC guys must have it easy.

The lawyers go back 50-60 years or to a warranty deed.

We go back to the operative document. In some cases, you can terminate the search early, but in others you have to trace it back as far as you can.

We had an ALTA with a little problem. We knew about the parcel from the 1880's located in the middle of the lot that was never conveyed into the chain. The fancy pants attorney was awestruck that his 'complete' title report missed this critical. Adverse possession was obvious but nobody ever filed for action to quiet the title. It had been covered in the previous property owner's title insurance policy, so you would think the new attorney would have been given a big clue.

> Of course I would have found it, as would many others on this board. But you wouldn't have retained my services because my fee would have been at least three times other quotes you came up with and you wouldn't have known that there is any difference in the service no matter how hard I tried to explain.
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