"However, the exact same thing could be said about the boundary shown on your survey."
This is where we differ. I see a clear distinction between the process of determining a boundary and determining the quality of title within that boundary.
The first is objective analysis resulting in a quasi-judicial opinion. The second is a subjective analysis resulting in a fully judicial opinion.
JBS said "If the circumstances surrounding the placement of the fence isn't a concern of the surveyor, then why do the courts place so much importance on occupation lines when determining the location of the boundary?"
I would take that one step further though; The courts look to us as expert witnesses and public servants, almost as if we are officers of the Court.
If we perform a survey, we have made determinations during that survey. If they are not defensible then you have failed in that service. Each survey should be able to stand the test of a trial.
If you are not confident in your decisions then you are in the wrong Profession.
We do present the facts, but also our opinion of the impact those facts may have on property owners.
Judges listen to us, you should always keep that in mind when you're surveying, and especially when preparing the plats!!
How does "this structure is 1.2 feet east of the property line" have any less certainty than "this structure encroaches 1.2 feet"?
So, is that what you keep repeating when you are asked by the client: "so is it on my property?" What about when he asks "Does he have a right to have it on my property?" If you have been hired by a client who thought you would be telling him or her where the property line was and showing any easements on the plat, then have you truly served your client? Did you provide what the client expected you to provide?
I don't see a difference Angelo.... You have made a determination in either instance.
> How does "this structure is 1.2 feet east of the property line" have any less certainty than "this structure encroaches 1.2 feet"?
The difference, as I see it, is that in the first instance, the surveyor hasn't made any effort to determine if the the structure is there by permission or not. It's left up to the reader to guess. In the second instance, the surveyor has made the determination. The structure is not there with permission and is encroaching.
JBS
Don,
I agree with pretty much everything you said. The problem is I am always confident that structures over the line can have many possible outcomes. I explain the possiblities and try to arrange agreements but if it goes to court sometimes the Judge surprises everyone.
In one case I testified at the Judge granted a prescriptive easement to a structure. He said no maintanence allowed and the use would stop whenever the stucture failed. Neither I nor any of the several attorneys or surveyors involved could have foreseen this. I guess the structure is not an encroachment until it collapses or is condemed. I understand the case was appealed all the way and held up.
In another the Judge granted a temporary easement to a well for a specified period of time. Again, how would I note that this is an encroachment six months from the date of this survey but not until then? How could I guess that and expect it to stand the test of trial?
It may be that in some jurisdictions these questions are so carefully codified and equities so removed from the process that outcomes are more predictable than in NY.