JBS
I understand and agree with your opinion on the responsibilities of a professional surveyor regarding boundaries.
My question is: what are we to do with and how are we to process information provided us by other attorneys/judges?
A circuit court judge once told my boss that the surveyor was to record the facts; he (the judge) would decide where the boundary was.
Another well known attorney/surveyor stated,
"Given these reasons and others, it is often hard for some surveyors to accept
that a surveyor is without authority and may be liable for failing to disclose where
the lines of occupation differ from the location of the boundary as established by the
operative records...To summarize the surveyor’s responsibility, the surveyor should not take it upon themselves to apply equitable doctrines and determine when the lines of occupation are the lines of ownership and show the occupation lines as the boundary." (Knud Hermansen, "A Surveyor's Responsibility and Possession Boundaries")
I would make the argument that by showing record/measured distances, the surveyor is disclosing where the lines of occupation differ from the location of the record boundary. Why then, is it argued that it is not the surveyor's responsibility? If not the surveyor, then who?
I think a large portion of surveyors fail to understand the law. How can they understand it when they won't even pick up a book to read about it? I personally am fascinated by the law as it pertains to boundaries. I have studied and continue to study many hours, previous cases that have been decided, cases cited in those cases and opinions of other surveyors, attorneys and judges. How else are we to come to an understanding of what the law requires? How else is a surveyor supposed to make a difficult decision pertaining to a boundary?
Discussing this particular situation at the office this week, one surveyor had the nerve to laugh and say, "I hope you never run into a situation like that." Where does this come from?
JBS - Part II
Unfortunately in California the law is not all that clear on this issue.
It appears that our Appellate Courts have wrapped Estoppel, Acquiescence and Implied Boundary Line Agreements up into one doctrine. I googled it as a result of this thread. One legal scholar article I found (University of San Francisco) seems to think these common law doctrines are a way around the tax payment requirement of adverse possession in California. This seems to be an odd opinion to me since the tax requirement has only been in place since 1879 while the common law doctrines which are not related to AP have been around for close to a thousand years.
Then the California Supreme Court got involved in a case in 1994 locked the thing down even tighter. Stanley Mosk was very critical of this decision in his dissent (he was so well respected there is a statue of him outside the Courts building in Sacramento).
Frankly, I don't know if a Surveyor can untangle it all; the Attorneys and Judges don't even seem to understand it or even agree on what it all means.
Fortunately most boundary surveys I do amount to original boundaries which usually means the best, established, evidence of the original boundary. A few recent cases which shook up some Surveyors just steered clear of the doctrines mentioned above. The Appellate Courts won't even take it on if they can avoid it. One was a 1/16th line, well established that the Court just said that is where it is, deal with it. The other was a protracted Lot in a 1920s Tract which was monumented in 1989 and disputed in 2003 or so. That one was extensively argued on RPLS and the California Forum. I think the Court just said, there's the four corners, deal with it if I recall right.
A recent one I dealt with involves one established section corner and 3-1/16th corners set in 1972. I have talked to our private adjoiner several times and she knows and accepts the concrete monuments at the 1/16th corners. They are original monuments for those points.
JBS
> My question is: what are we to do with and how are we to process information provided us by other attorneys/judges?
>
We are the profession who is supposed to have the expertise in boundary law. We apply it every day on every boundary we ever determine. The attorneys and judges are not experts in the law. They are experts in civil procedure. They learn the law by reading the same cases which surveyors study, discuss and apply to their every-day practice. That's why surveyors act as experts in court. We are able to understand how the evidence is analyzed, weighed, prioritized and examined in order to determine the facts. We are expected to understand how the law is applied to the facts in order to determine the ultimate issue: "Where is the boundary?"
Unfortunately, instead of teaching surveyors what the law says, the more modern texts have boiled down the law into an oversimplified set of mantras which have elements of truth but don't always apply in every situation. That's why surveyors are confused when we find words like "except" and "depends." There's nothing wrong with the mantras, they are true, but they always aren't correct and always aren't applicable.
A couple of examples: "Original monuments control over course and distance." Surveyors can easily jump on this mantra and become the best damn monument hound in the county, retracing footsteps and recovering stones unseen for a century and a half. Do the candy dance, slather it in flo-pink, and declare the boundary by a solid dark line on your survey with bearings and distances labeled which will never match the record dimensions. Then we write a new description of what we've discovered, add the dashed line where the deed dimensions are calculated, cross-hatch the overlapping subdivision line which was laid out 50 years ago from another corner, and add the 80-year old occupation line that was ignored when the subdivision was surveyed while ignoring the very evidence that would prove the fact that all of the owners have recognized it as their boundary. But we found the "original monument;" it must control, the mantra says...
"Excess and deficiency must be apportioned between two found original monuments." Therefore, those found lot corners 0.16' to 0.27' out of position must be meaningless scrap iron because we found the four original block corners 950 feet apart. We won't even mention the 60 years of fences, driveways, homes and unknown surveys that were never filed. They just take too much time and effort to gather or consider (after all, the survey was quoted for $750). So we perform some quick mathematical gymnastics on our $5000 data collector and it will tell us precisely where to place our shiny new rebars and caps where no point has ever been placed before. Our seared conscience is placated by our mantra which says...
If surveyors actually would be taught and would learn the real laws upon which these over-simplified mantras were developed, we wouldn't need to rely upon the mantras and would become reliant upon the actual laws which clearly explain why the mantra works and under which circumstances it works and under which it does not. There are only five common law doctrines that a surveyor must know to understand 90% of the solutions to the evidence conflicts they uncover. There are only a few dozen maxims and fundamental principles. Yet, it takes years of study to develop an expertise of their intricacies and application. Why do we think that it should take years of college education and even more years of experience to become a licenses surveyor? Is it so we can understand how to design and build a gps unit from a pile of components? Is it so we can have years worth of repetitive measurement experience so we can dial that micrometer with ultimate precision? No. It's so we can know how to become a professional land surveyor who's principle duty is to locate land boundaries. That's a legal process because we are a part of the legal system. We are the experts who apply the laws laid down by the courts for the purpose of locating land boundaries on the ground.
We are the experts who should be explaining the laws, rules, and principles to the judges and attorneys. Because we have dismally failed as a profession in developing and honing that skill, the tables have turned and they have to repeatedly tell us over and over again how boundaries are determined. And they tell us the same thing every time. But, they're not the experts, so they often get just as confused as the surveyors who have not developed their own expertise.
> A circuit court judge once told my boss that the surveyor was to record the facts; he (the judge) would decide where the boundary was.
>
I'd be curious to know what decade this conversation took place. Prior to 1975, the expert witness was not allowed to express their opinion on the ultimate issue before the court. The question being asked (the ultimate issue) in a boundary case is, "Where is my boundary?" The surveyor, as the expert, was prevented from testifying as to the opinion they expressed on a daily basis outside of the courtroom.
Well, in 1975 that changed. The surveyor can not only testify as a fact witness, he can testify as to the evidence, it's weight and analysis, and the determination of the facts; but, he can also testify as to the ultimate issue. "In your professional opinion, based upon the facts presented and the rules of law governing the determining the boundary location, where is the boundary?" As an expert, in accordance with the Rules of Evidence, you are expected to have an answer. You are expected to explain that answer to the judge or jury. Yes. The judge and jury are there to ultimately decide. It is the expert's role to assist them in that decision. They aren't surveyors. They need our assistance to make that decision. That decision is governed by the law of boundaries in the courtroom the same as it is every day out there on the ground governing the surveyor's decision.
> Another well known attorney/surveyor stated,
>
> "Given these reasons and others, it is often hard for some surveyors to accept
> that a surveyor is without authority and may be liable for failing to disclose where
> the lines of occupation differ from the location of the boundary as established by the operative records... To summarize the surveyor’s responsibility, the surveyor should not take it upon themselves to apply equitable doctrines and determine when the lines of occupation are the lines of ownership and show the occupation lines as the boundary." (Knud Hermansen, "A Surveyor's Responsibility and Possession Boundaries")
>
I've only been able to attend a couple of classes taught by Knud during my career. I would love to sit under his tutelage in one of his boundary law classes. Unfortunately, we are separated by too many miles. I've read Knud's articles for years, never hesitating to comb finer points of the articles to gain more understanding and insight of the law on boundaries. I have great respect for the man and his opinions; however, I don't agree with them all. I don't expect others to agree with all of mine, either. In fact, I don't agree with opinions I, myself, held 10 years ago. That's all part of the quest for knowledge. The more you learn, the more you know; the more you learn, the more you learn you don't know. Learning and experience changes your understanding and it changes how you react to the circumstances which envelop you.
Our profession, in order to make sense of the ultimate issue limitations, seemingly divorced itself from the application of legal principles in their decisions regarding boundaries, thinking that the "application of law" equated with either the "practice of law" or "deciding the law." We've all seen the mantra, "Where boundaries are is a question of fact; what boundaries are is a question of law." It's been used to argue that the surveyor can show the "deed line" (a fact), the "survey line" (a fact), the "monument position" (a fact), the "occupation line" (a fact), the "improvement line" (a fact); but, the surveyor can't show the "ownership line" because that is, somehow, a legal question, not a fact. That, in my opinion, is not at all what the statement infers.
The location of the boundary is a fact. By definition, the boundary is the furthest extent of two contiguous estates. When a surveyor says, "Yep, there's your boundary," they are making a factual determination of "where" the boundary is. If the reason the surveyor determines that it's the correct position is because he found an unknown monument that was close enough to fit under his hat, the surveyor has based his decision upon his own made-up law. That's where the surveyor cannot go. We cannot develop our own "Surveyor's handbook of how the law should be." That's determining "what the law is." That's the domain of the courts (and the legislators), alone.
Once those laws are established (which they all have been) it is the responsibility and the duty of the surveyor to know the law, understand how the law is to be applied, and to properly apply the law when they derive their opinion with regard to the factual location of the boundary. The equitable laws regarding boundaries are designed to resolve all boundaries in all situations. Original monuments control because of the intent imbued upon them by the owners (the laws of equity; intent, representation, reliance). The apportionment rule should be applied (the laws of equity; equal time - equal right). The deed should be construed against the grantor (the laws of equity). Boundary laws are laws of equity and surveyors are expected to know the laws and properly apply them in their decision-making process.
JBS
JBS
> Unfortunately in California the law is not all that clear on this issue.
>
I totally agree, Dave. There are a few states, primarily since the 1980's who have become muddled and confused over the differences between the fundamental boundary doctrines. My take on the issue is that the surveying profession has failed to properly understand and apply the rules for enough generations, that the understanding has been entirely abandoned to the attorneys who read a few cases that can be twisted just enough to support their client's best interest. The briefs the attorneys prepare are submitted to the judge to decipher who is expected to become an expert in land boundary determination, an expertise which has taken a surveyor years to master.
Who is there in those situations who can provide the expertise? There's no surveyor present to consult with the attorney to help them understand the intricacies of the law. They've done their "job." They've staked the "deed line" and shown the "occupation line" and mapped the "encroachments." They've shown the "pincushion" of other surveyors' failed attempts at "proper" measurements. It's left to the attorneys and the courts to sort out as it's become the standard practice for the surveyor to FAIL at determining the "boundary." The only remedy left is in the courts.
> Frankly, I don't know if a Surveyor can untangle it all; the Attorneys and Judges don't even seem to understand it or even agree on what it all means.
Unfortunately, what you say is true. We are looking at the mass failure of the surveying profession. The failure of the only profession with the charge of society to care for and maintain the cadastre. The cadastre doesn't just include the methods and the monuments. It includes the proper application of the legal principles which support them. Our profession has lost its understanding and has shied away from that which it has failed to understand.
But, that's just my opinion. I've made it my life's passion to overcome my own lack of understanding.
JBS
JBS
The Courts are also naive about the state of the Title Records. They seem to think (from recent decisions) that the Title Records can be used as accurate Cadastral records which is simply not the case in my experience.
The Bryant decision started with a Land Surveyor staking out a so-called Deed line in which there was zero physical evidence at that location. Unfortunately both sides stipulated to the Survey which left the Judges with a conundrum. There was a physical boundary (probably the best evidence of the original) and a Surveyed boundary. We have a strip so it must be adverse possession, right? No, taxes weren't paid. OK it's acquiescence and implied BLA. The Appellate Court agreed with that (I know the concurring Justice, incidentally, he's now an Episcopalian Priest at our Church). Then the California Supreme Court, in all of its vast wisdom, and stepped in and said, no, you can't do that because you don't have evidence of a BLA and you can't infer it from the fence (which Mosk severely criticized in his dissent). Mosk seemed to be the only realist willing to apply common sense in that case.
Maybe I'm legally naive, but if a Land Surveyor had testified as an expert as to the location of the original boundary per the best available evidence (physical) then maybe the confused doctrines could have been left on the shelf and the case could've been resolved reasonably well instead what happened.
The Court in that case praised the decisions of some of our other Courts of Appeal (we have several) which called for holding the record numbers if at all possible which is just contrary to the law in my opinion. Not to mention that it is naive and a complete misunderstanding of how we get from 150 years to today as to where boundaries are located. We don't have some magic time machine that insures we are using exactly the same point on the ground that they did. I could go on and on.