I have had the opposite reaction, Duane. When I begin a boundary survey, my first day on site is spent knocking on doors and speaking with adjoiners. They are usually glad to know what you are up to and very helpful, even when there is a dispute. Most of the time, this is their day in court, as a majority of boundary disputes never see the inside of a courtroom. These questions are meant to gather information that will assist in your determination of the location of their boundary.
Sure, I have the opposite reaction too. But I think we are straying from the original premise now. Maybe I've miscontrued it. Neutral questions are good in neutral situations. Every investigation has different stages and different tactics. One can not simply believe everything they are told, nor let others direct the evidence to their own percieved best interest.
:good: That is what the OP was asking; how do we word our questions so that we can gather unbiased (or as unbiased as possible) information. It is up to as, the experts, to wade through what is BS and what isn't.
David, I guess what I'm trying to say is we don't always want to let the testimony take a course directed by the imagination of the witness. In the questions I proposed above, you will note that I used the word "appears". I would not (as JB misunderstood) tell a person what my decision is and then ask for their testimony about that decision. I am fully aware that those I propose the question to will take it as JB did. I do want to see what direction a person will take given a little leeway. The truthful testimony is hard to determine, but I think we should strive to know what the testimony might be in court if the thing goes there. So, my questions could be very neutral and they can be very leading. Depends on what I want to know and where we are with the project.
Good discussion topic, and one that has no bright line answers in my view. Parole testimony is the least reliable evidence available, but can be very convincing to a jury (not so much to a judge). Typical investigative questions are many times in the form of "when did you stop beating your wife?". Is there really any such thing as a completely neutral question or answer? I think an investigator has to adjust to the situation as it plays out.
If both are willing to amend existing legal instruments to reflect harmony between not only the adjoiner's deed, but their own as well, sure.
I can count the number of times I've seen that happen on one hand.
They will balk at the cost of doing it correctly, then spend ten times as much on legal fees that drag on for years gleefully suing each other.
> If both are willing to amend existing legal instruments to reflect harmony between not only the adjoiner's deed, but their own as well, sure.
There is no need to amend existing deeds. If the actions of both landowners suggest that they have established the boundary, where they believe their deeds describe it, there is no additional action required.
> They will balk at the cost of doing it correctly, then spend ten times as much on legal fees that drag on for years gleefully suing each other.
That only happens when an unknowing surveyor causes a problem by staking out distances recited in a deed, or when a surveyor doesn't charge enough up front to do the job correctly.
I will willingly concede if I am wrong, as the entire point of me posting on this site is an effort to gain knowledge, but at least here in Alabama the job of the surveyor is to report the facts. If the fence deviates by .2' or 200', the surveyor's responsibility is to provide factual data to the client, so clarity of title can be achieved. We are just part of the process in land management, not the end all be all.
As much as I hate to admit it, realtors, title companies and attorneys have a lot more pull as relates to property than surveyors. We have to render unto Caesar that which is Caesar's, and that means at least here we are technocrats with advanced knowledge and all the liability.
As I said, that means we locate the fence and let the actual property owners decide if there is a conflict.
In the reality of how to survive as a business, that means another trip in the field and additional billing.
> As much as I hate to admit it, realtors, title companies and attorneys have a lot more pull as relates to property than surveyors. We have to render unto Caesar that which is Caesar's, and that means at least here we are technocrats with advanced knowledge and all the liability.
>
> As I said, that means we locate the fence and let the actual property owners decide if there is a conflict.
P.L. is, sadly, correct. The surveying profession, in general, seems to have been so worried about liability for making tough decisions, they've relegated their work product to that of a lowly technician (technocrat). Being too fearful of stepping out on the limb and potentially taking responsibility for our decisions, we've set standards which seemingly protect us from having to make the all-important decision: "Where's my boundary."
Instead we've become complacent with a standard which allows us to "just report the facts" and leave it up to the "realtors, title companies and attorneys" to determine where the real boundary lies. Who's job is it, anyway? Which of those professions has a license to determine boundary locations?
How can the landowners make important decisions regarding their boundaries without being given the information they need to make such decisions. Which profession has gathered, processed and analyzed the information they need? They need and rely upon the help of the professionals. If they can't get that help from surveyors, then to whom do we expect them to go?
My entire career has been based on the simple fact that I'm willing to stick with the owners, continue to work with them (before the survey is completed), and assist them in resolving whatever is necessary for the problem at hand. My job typically starts when surveyors, like P.L., have "finished" their job and walked away with a check big enough to buy a bag of peanuts.
Sometimes, I've spent a few hours resolving an issue, but most times I'll spend months, years and occasionally decades resolving issues. Just last week I met with a landowner who has been through 4 surveyors, each has done their "job" and walked away leaving the problem just as it was before they arrived. Some of those surveyors documented the problem very well. Good surveyors. I left that meeting with a laundry list of unresolved problems that they need someone to assist them with (and a $1000 retainer to get started). No bid, no estimate, just a retainer based upon my reputation and multiple referrals along with a few hours of interview to gain their confidence that a surveyor is the right person to assist them.
If I think we need an attorney involved in some of the resolutions, I won't hesitate to recommend several. Primarily, however, the vast majority of boundary issues are survey related and can and should be dealt with by surveyors who have the knowledge to properly address the issues. When it comes to dealing with the neighbors, who better than a disinterested third-party who is licensed to protect not only the interests of their client, but the interests of the neighbor and the public. Who better than someone who is trained and experienced in recognizing problems and knowing which solutions should be chosen to resolve them.
Not to sound arrogant, but a professional land surveyor is above the pay grade of a "technocrat." There is no law that prevents surveyors from taking back what has been relegated by some to the "realtors, title companies and attorneys." There is no law that prevents surveyors from being involved in the solution process.
JBS
JBStahl,
How do you document the interview (or whatever you call it).
ie: take notes as they're talking, tape the interview, write up a complete narrative later? Just ask and write it down later from memory?
Thanks, MC
> JB, if I have to resort to questioning witnesses, then they are hostile. Surveying is not a court of law as you seem to believe. It is an investigation. The rules are different. I want to see what the people will say when prompted, because they certainly will be before they ever testify in court. Court testimony is prepared in order to comply with the court rules of leading questions and such. Witnesses will tell you different things before and after they have consulted an attorney.
Duane, If you are "resorting" to questioning witnesses, then it's no wonder they are hostile. When you tell them your opinion of the boundary location just to see what reaction you'll get, you're going to get a lot of defensive and hostile reactions.
You've just walked up to an owner and, from their perspective, challenged their opinion without even taking the time to garner it. You can expect nothing but a hostile reaction. Instead of gathering untainted and unbiased evidence, you've turned it into a confrontation. That's what happens when leading questions are asked.
As a surveyor, I simply need evidence. I want to gather that evidence before any opinions or conclusions are reached. When that witness gets on the stand, I want to be able to tell the judge and jury, "Yes. I heard that testimony. But that's not the evidence they gave me when I was interviewing them before this dispute arose." Who is the judge/jury going to believe? The testimony of the surveyor who asked the right question in the right way, or the self-serving testimony of the witness?
I disagree that "surveying is not a court of law." I believe that it is nothing less. The vast majority of landowners live by the decisions derived by surveyors marking their boundaries. They need to know where their boundaries are located; they call a surveyor. The surveyor has a responsibility to the client and their neighbor to protect both of their interests by locating their boundary in accordance with the law. The surveyor's pending decision is likely the only "day in court" they'll ever receive. Is that daily decision not worthy of a proper and just determination?
Law... that's a big word that includes all sorts of statutory, regulatory and common law. Surveyors are trained in these laws. They have always been the subject of surveyor conferences, textbooks and education programs. As surveyors, applying legal principles every time we determine a boundary location, we need to understand the laws which govern our decisions. Yes, laws govern the decisions of land surveyors.
Why do we think that Thomas Cooley, standing before a group of surveyors at their annual conference, said: "The surveyor, on the other hand, must inquire into all the facts; giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned; and, second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs."
Surveyors are governed by the rules laid down by the courts. The courts, when deciding a boundary location, are governed by the same rules. Why would the rules for surveyors to gather evidence be anything different than the rules for the court? In fact, they are not different rules. They are the same rules. Just as the evidence itself is governed by the Rules of Evidence, the Rules of Civil Procedure govern the methods used to gather the evidence.
The Rules of Civil procedure state their goal as: "they shall be liberally construed and applied to achieve the just, speedy, and inexpensive determination of every action." Landowners deserve a "just, speedy, and inexpensive determination" of their boundary every time the surveyor slams an iron into the ground. By following these rules and applying these rules in our boundary determinations, we can be assured of reaching that goal.
JBS
JBS
Excellent!
I am coming to believe more all the time that surveyors are becoming "technicians" because of the fact that if they make a judgement decision, as they should, that they put themselves in danger of being sued and their liability jumps up.
It could be looked at as the job of the party chief; isn't that exactly what the duties of a technician party chief would be? He/she performs the measurements, observes the evidence on the ground, which includes monuments, fence corners, road intersections, plowed fields and turns that information over to the land surveyor for a judgement on where the boundary is.
Think about it.
Keith
> ... but at least here in Alabama the job of the surveyor is to report the facts. If the fence deviates by .2' or 200', the surveyor's responsibility is to provide factual data to the client, so clarity of title can be achieved. We are just part of the process in land management, not the end all be all.
>
Where is this written? I am not licensed in Alabama or 47 other states, but I am kinda curious about boundary law in most all of the states. This isn't the first time that statement has been written on this board and/or stated emphatically in conventions and whereever surveyors happen to congregate. Would someone, anyone, please post the source that specifically states that "surveyors can only report the facts" and cannot express their professional opinion as to the location of the boundary line??
If this is the case, then why in the heck are we licensed?
> How so? It is just a fence, unless elevated to monument status by either a deed call or shown on a previous survey as being the boundary.
>
> Chip shot here in Alabama, locate it, describe it and if the client or adjoiner has any questions that is another trip and another billing.
Interesting....a previous surveyor can show it as a boundary
"monument status" but you can't. Why can't you be the 'previous surveyor'?
Maybe if some would actually think about the duties of a party chief and is that what is being accomplished by some surveyors?
Maybe it is written in some States' Board on Surveying rules?
I know that at least one Board has some strange concepts on what constitutes a land survey!
Just a thought?
Keith
JBS
It seems as though that a surveyor can't answer some direct questions on why a certain procedure is done that way, and the fall back answer is: That's the way it is done around here!
First and foremost, let me re-emphasize I am not a registered surveyor (or mapper, or PSM,PLS, or RLS) in any state, although I have worked for all of those mentioned in 17 different states. I am exactly what I have always represented myself as being, simply a career party chief who jumped ship to construction because it paid better than land surveying.
Having said that, the great companies I've worked for in the past that had the attitude Mr. Stahl represents are for the most part, no longer in business. As one of the greats I've worked for in the past so eloquently pointed out to me, "You can be the best surveyor ever, but if you don't get paid, how can you serve the public domain when you went bankrupt and are no longer in business?"
This was because as a career party chief, I actually bothered to read the 1973 BLM manual and thought Curtis Brown hung the moon. I was just not cost efficient, because I spent WAY too much time in the field trying to resolve every potential conflict before it became an issue.
First, imagine an environment where the original field notes from both BLM and GLO are total fiction, no monumentation was ever set or recovered.
Next, interject 100 years where the cost of a legitimate survey typically exceeded the value of the land in question.
Then factor in the lowballers that ruled the land for the next 50 years, creating controversy and dissention where none previously existed.
Welcome to Alabama.
"If you are "resorting" to questioning witnesses, then it's no wonder they are hostile. When you tell them your opinion of the boundary location just to see what reaction you'll get, you're going to get a lot of defensive and hostile reactions.
You've just walked up to an owner and, from their perspective, challenged their opinion without even taking the time to garner it. You can expect nothing but a hostile reaction. Instead of gathering untainted and unbiased evidence, you've turned it into a confrontation. That's what happens when leading questions are asked."
JB, you are misunderstanding the post. Hostile has a specific meaning in the legal arena regarding land boundaries. It means the witness is claiming for their own; not that they are violent or confrontational. Yes, most boundaries can be surveyed without the need of witness testimony (believe it or not). In the rare event that testimony is needed, I absolutely do want to know what the witness will say, given a little room to manuever, a suggestion or two, and some time to think it over. Why would you want to base a decision on something that will never be repeated? The witness should be given time to think about the answers and contemplate differing scenario's. Kneejerk reactions to neutral questions are not getting at the truth. And this does not mean that people will all lie if given the opportunity. Quite the contrary is true. People will many times get closer to the truth given some prompting and time. And the truth is what they remember, which is usually what is most beneficial to them. It's just the way the brain works. Those that have made even a cursory study of witness testimony know that it is hardly ever correct when it can be checked by more objective evidence.
"As a surveyor, I simply need evidence. I want to gather that evidence before any opinions or conclusions are reached. When that witness gets on the stand, I want to be able to tell the judge and jury, "Yes. I heard that testimony. But that's not the evidence they gave me when I was interviewing them before this dispute arose." Who is the judge/jury going to believe? The testimony of the surveyor who asked the right question in the right way, or the self-serving testimony of the witness?"
So you want to catch them in a misspoken moment and hold them to it whether that testimonial evidence is any good or not. The judge/jury will believe or not believe the witness testimony. Your heresay should not be allowed. If it is allowed under one of the exceptions, the witness can simply say you misunderstood. And in the case you mention where your statement is at odds, then you are obviously just as biased because your survey is wrong if the judge/jury does not believe you. Your testimony is just as self serving as the witness.
"Why do we think that Thomas Cooley, standing before a group of surveyors at their annual conference, said: "The surveyor, on the other hand, must inquire into all the facts; giving due prominence to the acts of parties concerned, and always keeping in mind, first, that neither his opinion nor his survey can be conclusive upon parties concerned; and, second, that courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that he govern his action by the same lights and the same rules that will govern theirs.""
I know why he said it, and know why he put a caveat at the end of the speech indicating he did not believe surveyors in general would understand what he said. Notice he said "acts of the parties" and not "testimony of the parties". Deeds are contracts and as such are governed by the objective standard of evidence evaluation. Testimony is highly suspect and the good investigator will make sure to carefully question the witness in such a way as to get at what the witness will be eventually testifying to, because "neither his opinion nor his survey can be conclusive".
Duane
I appreciate your comments as a party chief and hope my comments make sense to you.
If what you post is true about survey companies going out of business because they were following the correct procedures; then the profession is in trouble.
I don't think I believe all of that!
Keith
