... If a surveyor sets an iron, accurately or not, that none of the adjacent land owners knows is there and they by their actions recognize a corner somewhere else, then by that theory the iron would not control anything.
Courts will state that "Farmer Jones surveyed his property. To do so he employed Surveyor X" as opposed to "Surveyor X surveyed Farmer Jones' property". When it comes to resurveys it's not about the surveyors monuments, its about what the property owners do with them.?ÿ
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"Meeting state minimum standards is not enough."
Meeting minimum standards is enough to keep your license from being jerked. It's not enough to keep you in business.?ÿ People expect more.?ÿ If meeting minimum standards is your baseline then from time to time you will drop below it.?ÿ
Cleaning up the record is great, but please find a better way than a quit claim deed.
Resolving ambiguities does not transfer property. If done properly it simply recognizes what the actions of the owners have accomplished. Prepare a document that explains that, or get an attorney to do it. Don't subject your client to the whims of p and z when it shouldn't go there..
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No liability for surveyor 1 and 2 because everyone's entitled to their expert opinion.?ÿ In NY that includes non-licensed techs who are able to testify as expert surveyors in court even without a license or a degree (presumably one would need to at least know how to set up a tripod and plot a deed, but not sure now with GPS and deed plot technology).?ÿ
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I agree with all of this except for the "no liability" paragraph.?ÿ Everybody is entitled to an opinion.?ÿ In general, a personal opinion has no expectation of correctness.?ÿ An expert opinion, however, does.
A professional is entitled to their expert opinion as long as it is not expressed negligently or fraudulently, and the conclusions it represents were not arrived at negligently, incompetently, or fraudulently.
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On the contrary, expert opinions are expected to differ.?ÿ And yes, I've seen the worst opinions stated as fact right in the court room proceeding.?ÿ Never seen any liability attached.?ÿ It's a surveyors opinion.?ÿ If it was an engineer, doctor, etc. then things are different.?ÿ That's the strange thing about it.?ÿ Probably part of the difference, as stated in your case quote, is surveyors tend to be arrogant and declare how it is.?ÿ Most other experts would frame it as a probability based on the evidence (not state anything as a material fact).
Forming a professional, or expert opinion competently and without negligence does not mean following a prescribed set of steps or rules.?ÿ And it does not mean that all competent professionals will come to the same conclusions.?ÿ It means that the professional will have exercised at least the amount of care that a competent professional in similar circumstances would have exercised to determine the facts relevant to the decisions made to arrive at conclusions, and apply reasonable logic to the analysis of those facts.
In the OP, Surveyor A accepted the fence corner, which means that he opined that the original monument no longer existed.?ÿ In that 2-part opinion, accepting the fence corner as the most reliable existing perpetuation of the corner would have had far more leeway as a professional opinion if the first part of the opinion, that the original monument was obliterated, was solid.?ÿ The first part of the opinion, the loss of the original monument, is one that can, actually must be treated as material fact before the 2nd part, accepting the fence corner, can be considered.
That surveyor C found the original corner without having to go to extraordinary effort speaks to whether Surveyor A was reasonably diligent in forming his opinion that the monument was obliterated.?ÿ Though not dispositive, Surveyor C's success in finding the original undisturbed monument is evidence that is difficult for Surveyor A to overcome to show that he did exercise reasonable care to properly ascertain facts prior to opining the monument to be obliterated.
Without exercising the requisite level of care to determine the existence or non-existence of the original monument prior to opining that the fence corner perpetuated the section corner, Surveyor A made an invalid "professional" opinion upon which others would rely.?ÿ
One presenting themselves as an expert are not free to negligently make opinions for non-experts to rely on.
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No liability for surveyor 1 and 2 because everyone's entitled to their expert opinion.?ÿ In NY that includes non-licensed techs who are able to testify as expert surveyors in court even without a license or a degree (presumably one would need to at least know how to set up a tripod and plot a deed, but not sure now with GPS and deed plot technology).?ÿ
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I agree with all of this except for the "no liability" paragraph.?ÿ Everybody is entitled to an opinion.?ÿ In general, a personal opinion has no expectation of correctness.?ÿ An expert opinion, however, does.
A professional is entitled to their expert opinion as long as it is not expressed negligently or fraudulently, and the conclusions it represents were not arrived at negligently, incompetently, or fraudulently.
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On the contrary, expert opinions are expected to differ.?ÿ And yes, I've seen the worst opinions stated as fact right in the court room proceeding.?ÿ Never seen any liability attached.?ÿ It's a surveyors opinion.?ÿ If it was an engineer, doctor, etc. then things are different.?ÿ That's the strange thing about it.?ÿ Probably part of the difference, as stated in your case quote, is surveyors tend to be arrogant and declare how it is.?ÿ Most other experts would frame it as a probability based on the evidence (not state anything as a material fact).
Forming a professional, or expert opinion competently and without negligence does not mean following a prescribed set of steps or rules.?ÿ And it does not mean that all competent professionals will come to the same conclusions.?ÿ It means that the professional will have exercised at least the amount of care that a competent professional in similar circumstances would have exercised to determine the facts relevant to the decisions made to arrive at conclusions, and apply reasonable logic to the analysis of those facts.
In the OP, Surveyor A accepted the fence corner, which means that he opined that the original monument no longer existed.?ÿ In that 2-part opinion, accepting the fence corner as the most reliable existing perpetuation of the corner would have had far more leeway as a professional opinion if the first part of the opinion, that the original monument was obliterated, was solid.?ÿ The first part of the opinion, the loss of the original monument, is one that can, actually must be treated as material fact before the 2nd part, accepting the fence corner, can be considered.
That surveyor C found the original corner without having to go to extraordinary effort speaks to whether Surveyor A was reasonably diligent in forming his opinion that the monument was obliterated.?ÿ Though not dispositive, Surveyor C's success in finding the original undisturbed monument is evidence that is difficult for Surveyor A to overcome to show that he did exercise reasonable care to properly ascertain facts prior to opining the monument to be obliterated.
Without exercising the requisite level of care to determine the existence or non-existence of the original monument prior to opining that the fence corner perpetuated the section corner, Surveyor A made an invalid "professional" opinion upon which others would rely.?ÿ
One presenting themselves as an expert are not free to negligently make opinions for non-experts to rely on.
Surveyor B agreed with surveyor A.?ÿ That is evidence that the normal competent practice in similar situations does not find the buried stone.?ÿ So A and B are not negligent.?ÿ Surveyor C is exceptional and a true expert.?ÿ
These stories are so common across the country, and documented in thousands of court cases (not just conjecture), that it would be hard to argue otherwise. Standard, competent practice misses evidence because of not knowing what to look for, not knowing how or when to look further, not knowing evidence when found or what to do with it.
The question is how does the average consumer differentiate and find surveyor C if they really are interested in finding the true boundary??ÿ
Hint for consumers if you're reading this: don't put out a low bid process for a professional opinion, whether it be an attorney or a land surveyor or a doctor. And get a second opinion if you're not comfortable with the first.
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I guess I fall between Duane and Evan. Even the best of the best will occasionally miss a monument that the next surveyor will have no trouble finding. Missing one does not amount to negligence; however, Suveyor A's response to being told he missed one shows he didn't even look for it. That is negligence.
Surveyor 2 has a little more excuse. Are we expected to double check every survey that came before us? The problem for her is the lack of information presented in Suveror 1's documentation. I dont think accepting a corner just becasue a surveyor said so is proffesional practice. Accepting a corner becasue the previous surveyor gave a good reason for it is understandable, accepting it becasue he filed a piece of paper with no explanation is not. A surveyor's opinion is only as good as his/her justification.
Setting aside the Surveyor negligence question for a moment...
I'm interested in whether the property owners are charged with knowledge of the original monument so that they are not uncertain? Their Deed description refers to Section, Township, and Range which refers to the Plat and the Official Field Notes which describe the marked corners. Experts of course know how to obtain those documents and implement procedures to find the monument but clearly most property owners don't.
The facts in one case I recall is that the property owners knew where the Section line was located because the Deputy U.S. Surveyor had just flagged it so their agreement to a line 10 chains to the south was invalid because there was no conveyance. Another case from the late 1980s involves a fence offset from monuments, the Court refused to accept the fence as the boundary making the monuments the default boundary but it's not stated whether they were original or hidden, presumably one of the parties had a surveyor find them.
Some States have very liberal acquiescence doctrines but even then it has to be proven that the fence was treated as the boundary, a surveyor marking a fence corner would not necessarily be sufficient. Several States in the middle have virtually the same simple description of acquiescence but then there is quite a bit of variation in what is acceptable evidence of an established boundary in Court.
I've been of the opinion that there is only one corner, the only way to have a second corner between two owners is Adverse possession. This is because our Doctrine requires mutual uncertainty and mutual agreement to establish the corner. In other States uncertainty isn't mentioned in the acquiescence doctrine. We do have subjective uncertainty, that is the property owners don't have to get a survey but I'm just not completely sure about the case where the original monument is existent but unknown or difficult to find.
The question is how does the average consumer differentiate and find surveyor C if they really are interested in finding the true boundary??ÿ
Hint for consumers if you're reading this: don't put out a low bid process for a professional opinion, whether it be an attorney or a land surveyor or a doctor. And get a second opinion if you're not comfortable with the first.
Yes, that is the question!?ÿ How does the average consumer (even even an advanced, knowledgeable consumer) know enough to select a good surveyor??ÿ It seems that once you know enough to be able to select a good surveyor, you're close to being a surveyor yourself.?ÿ What if surveyors had to hire novelists??ÿ How would that work??ÿ
Looking at tree cutters and arborists is an interesting comparison.?ÿ No license or certification is needed to cut trees and you don't need to be good at it or know anything.?ÿ That's fine, perhaps some people are shopping for the cheapest way to have their tree come crashing down.?ÿ But maybe some other people are looking for an expert who really knows the proper way to care for their trees that they want to last a lifetime or have safety concerns with proximity to their house.?ÿ Those who obtain additional qualifications may be certified arborists.?ÿ It seems that certified arborists do a lot of peer policing and reporting and there are few bad certified arborists.?ÿ They want all certified arborists doing high quality work, and if a certified arborist isn't doing good work, that person gets their certification removed.?ÿ Hiring a good arborist may be much easier for the average consumer than hiring a good surveyor.?ÿ In the case of arborists, instead of licensing being required to cut trees, certification is used as an optional distinguishing mark of skill and quality.?ÿ
?ÿBest regards, Eli
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Setting aside the Surveyor negligence question for a moment...
I'm interested in whether the property owners are charged with knowledge of the original monument so that they are not uncertain? Their Deed description refers to Section, Township, and Range which refers to the Plat and the Official Field Notes which describe the marked corners. Experts of course know how to obtain those documents and implement procedures to find the monument but clearly most property owners don't.
The facts in one case I recall is that the property owners knew where the Section line was located because the Deputy U.S. Surveyor had just flagged it so their agreement to a line 10 chains to the south was invalid because there was no conveyance. Another case from the late 1980s involves a fence offset from monuments, the Court refused to accept the fence as the boundary making the monuments the default boundary but it's not stated whether they were original or hidden, presumably one of the parties had a surveyor find them.
Some States have very liberal acquiescence doctrines but even then it has to be proven that the fence was treated as the boundary, a surveyor marking a fence corner would not necessarily be sufficient. Several States in the middle have virtually the same simple description of acquiescence but then there is quite a bit of variation in what is acceptable evidence of an established boundary in Court.
I've been of the opinion that there is only one corner, the only way to have a second corner between two owners is Adverse possession. This is because our Doctrine requires mutual uncertainty and mutual agreement to establish the corner. In other States uncertainty isn't mentioned in the acquiescence doctrine. We do have subjective uncertainty, that is the property owners don't have to get a survey but I'm just not completely sure about the case where the original monument is existent but unknown or difficult to find.
As you pointed out there are significant differences between states when it comes to unwritten boundary changes, but even under the most restrictive rules requiring mutual uncertainty and an agreement, a section corner and a property corner can end up in different places.
Consider the extrmeme case of?ÿ a legally lost corner with the uncertain landowners at the corner agreeing to a convenient location for their?ÿ fence corner in a manner that meets their state's requirements for an unwritten boundary change. In this case you likely have two corners. The agreement between the four landowners does not bind owners on the other side of the section. The lost corner would have to be replaced by the best evidence, perhaps even resorting to a double proportion, to control any other aliquot parcels in the section.
Setting aside the Surveyor negligence question for a moment...
I'm interested in whether the property owners are charged with knowledge of the original monument so that they are not uncertain? Their Deed description refers to Section, Township, and Range which refers to the Plat and the Official Field Notes which describe the marked corners. Experts of course know how to obtain those documents and implement procedures to find the monument but clearly most property owners don't.
The facts in one case I recall is that the property owners knew where the Section line was located because the Deputy U.S. Surveyor had just flagged it so their agreement to a line 10 chains to the south was invalid because there was no conveyance. Another case from the late 1980s involves a fence offset from monuments, the Court refused to accept the fence as the boundary making the monuments the default boundary but it's not stated whether they were original or hidden, presumably one of the parties had a surveyor find them.
Some States have very liberal acquiescence doctrines but even then it has to be proven that the fence was treated as the boundary, a surveyor marking a fence corner would not necessarily be sufficient. Several States in the middle have virtually the same simple description of acquiescence but then there is quite a bit of variation in what is acceptable evidence of an established boundary in Court.
I've been of the opinion that there is only one corner, the only way to have a second corner between two owners is Adverse possession. This is because our Doctrine requires mutual uncertainty and mutual agreement to establish the corner. In other States uncertainty isn't mentioned in the acquiescence doctrine. We do have subjective uncertainty, that is the property owners don't have to get a survey but I'm just not completely sure about the case where the original monument is existent but unknown or difficult to find.
As you pointed out there are significant differences between states when it comes to unwritten boundary changes, but even under the most restrictive rules requiring mutual uncertainty and an agreement, a section corner and a property corner can end up in different places.
Consider the extrmeme case of?ÿ a legally lost corner with the uncertain landowners at the corner agreeing to a convenient location for their?ÿ fence corner in a manner that meets their state's requirements for an unwritten boundary change. In this case you likely have two corners. The agreement between the four landowners does not bind owners on the other side of the section. The lost corner would have to be replaced by the best evidence, perhaps even resorting to a double proportion, to control any other aliquot parcels in the section.
If the section corner is truly lost then the property owners can establish it, they don't have to get a survey. This does not affect the other owners not a party to the agreement same as a Superior Court Judgment doesn't bind people not a party to the case. Even if the Judge rules on the location of the corner based on whatever evidence he finds acceptable it does not affect others not in the Courtroom. This is what I mean by the PLSS being in motion, anyone can make their own case. Maybe in 100 years the agreement on the fence corner is forgotten and it is assumed that the resultant fence corner is best evidence of the original corner. In much of boundary law it seems to me movement is the elephant in the room the law does not talk about, since it is built on the fiction it has not moved.
