The NYS conference just ended and it seems that Jeff and others are convinced that the land surveyor should not just measure and map then hand it to the powers at be anymore. We need to state our opinion, I always did anyway.
I agree with that, but we still need lawyers or a court action in NYS to change anything on a boundary. Most lawyers in my area still think old school and say we should not state our opinions. Times are changing...
The Cyclopedia of Law and Procedure Volume V, The American Law Book Company, 1902 Province of Court and Jury- “What are boundaries is a matter of law for the court; where they are, a matter of fact for the determination of the jury, under proper instructions by the court.” This was based on over 100 years of U.S. common law in 1902. It wasn't new then.
And it is nothing new now. A failure to understand the role and function of the boundary surveyor has lead and will continue to lead to the public's treatment of the profession as a trade practiced by tradesmen. Are we strictly "measurers" of land [Agri- Mensor’s] or do we determine boundaries of real property? The answer is a cloudy area somewhere in between the two, and lead Justice Cooley to state in the late 19th Century, “Surveyors are not and cannot be judicial officers, but in a great many cases they act in quasi-judicial capacity with the acquiescence of parties concerned; and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions.” “Cooley’s Dictum” is often cited in Court cases throughout the nation. In essence, it is the Boundary Surveyor who exercises their “special knowledge and relevant knowledge of requirements of law acquired by education, training, experience and examination that affect real property rights”. We are not hired by a client to represent their interests or to provide a product. We are commissioned by a client or clients to fulfill certain duties and special charges required of a professional.
Sorry, rambling a bit this morning...
An attorney told me once that he practiced law and I applied the law. When you think about then that is how we arrive at our decisions. I've always offered my opinion and it's usually backed up with steel in the dirt.
Our opinion deals with the recognition of legal boundaries of parcels created by acts of the parties as opposed by parcels created by law. It is referenced in Blacks definition of Alienation:
Alienation
In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.
Restraint on Alienation
A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.
Remember, we are not governed by feudal law, therefore our land is not feudal land; it is allodial land and that means that the owner is responsible for the location of his property boundaries, not the law or the state.
Physical evidence, in place and unchallenged for the time period specified in statutes of repose or limitation, mark the legal boundaries and they overcome any boundary indicated by an interpretation of the description.
A 'bogus' survey is one where the surveyor ingores established evidence of prolonged occupation and control in favor of his interpretation of the record description.
Deed staking is not the practice of professional land surveyors.
Richard Schaut