You can state your professional opinion but since you don't own the land, the owners are not bound by that opinion. Your professional opinion only gains legal and enforceable status by the acts of the owners, time, and by their acceptance of your opinion. Landowners and the Courts can define ownership, the surveyor might influence that decision, but he can not make it, it is not his land and he does not enjoy the rights of ownership.
jud
Believe what you will, all I offer in defense is the fact I love land surveying, compared to construction it is far more intricate and mentally stimulating, as well as rewarding on a personal level.
Put me waist deep in the worst the Mobile Delta has to offer, fighting mosquitoes and moccasins, looking for evidence relating to a Spanish land grant corner set in the 15th century, and I'm a happy camper.
The problem is, neither I nor the RLS's I've worked for have figured out how to make a consistent living from it.
Mr. Parsons,
You have said that your are not a licensed professional and your main purpose of posting here is to learn.
I have learned a great deal from Mr. Stahl. I am a licensed professional surveyor working in a different State than JB. I will point out that he is a surveyor that has the opinion he represents, and is a very successful surveyor. Getting problems straightened out by a professional is the best, and probably the least expensive, thing the landowner can do for himself. The land owner does not need a guy coming in and saying "this is where your math places the line based on this monument I found, and this here fence is also evidence of the line, and that line over there is based on this other thing." He needs to know where his property is for the improvement he needs to build or whatever reason he called you out. He needs the opinion of an expert and not that of a measure-technician.
We had a number of surveyors, here, that over a few decades setting corners by the math and not respecting previously-set monuments by other surveyors and fences, and landowner testimony. The result of this has wreaked havoc in land surveys today. We find multiple property corners, multiple section/aliquot corners, original monuments gone, double-sets of fences. It is a problem that will not get worked out for many years to come, and even longer if surveyors don't start becoming more professional and working with the owners to make things final and correct.
If you go on to get a license, or if you start to work for a licensed professional like Mr. Stahl, I would advise you also learn their reasonings, and surveying philosophies.
Just my 2¢
Excellent!!
> 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.
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> 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.
I don't have to imagine it, I live it every day, well except the fiction part. When the GLO performed the original surveys in this area settlers were already here with irrigation systems, fences, fields, and towns, who knows how many corners were moved, adjusted or destroyed after the GLO left the area? What we have know are usually long held corners without a complete written history and all the people with direct knowledge of the corners are long dead. Acquiescence is the norm, except where "surveyor-mathemagicians" have tried to undo what was long ago done, and "put everything where it was supposed to be". Yep, as predicted by Couley many years ago - chaos has ensued.
> 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, I am aware of the meaning of a hostile witness, but am glad you attempted to clarify it for many who may not. Technically, a hostile witness is one who is being evasive or refusing to answer direct questions. The witness may then be declared a hostile witness and leading questions are then allowed. It's in the Rules.
>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 maneuver, 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. Knee-jerk 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.
>
I guess I just don't understand what you're getting at. You seem to be saying that testimony is hardly ever needed, and when it is, it's wholly unreliable and non-repeatable. I have seen the opposite when it comes to both landowner interviews and courtroom proceedings. Discussions with landowners at the outset of the survey set the tone for the survey. Introductions are made, notices are given, and permissions are granted. Concern for the adjoining owner is voiced through the questions asked. They perceive from those questions, the importance of what they know. They are given a business call and are told to call if anything comes to mind after I leave or if they have any concerns. I don't want "knee-jerk" reactions. I want clear, well thought out evidence BEFORE I start the survey, but I'll settle for evidence at any time during or after the survey as well. Testimony can often be the most vital key to the boundary location. All the surveyor has to do is ask a few questions and the information obtained might save the budget.
> 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 hearsay 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.
>
The point of questioning the witness is to gather the evidence, not to "catch them in a misspoken moment." Allow them time to recall the events, sometimes it takes a while. That's why you leave a business card with contact information. They'll often call a couple of days later and will have remembered something that may or may not be important. The weight and analysis of the evidence is the surveyor's job. Gathering the evidence is his responsibility.
Yes, the evidence we gather through parol testimony is hearsay. So is the deed you use, the prior survey you rely upon or the monument you recover. It's all hearsay evidence unless you're the one who said it, you're the one who surveyed it, you're the one who wrote it, or you're the one who set it. That's whys the Rules of Evidence clearly except any evidence regarding boundary locations from the hearsay rule. Again, surveyors are simply following the rules laid down by the courts.
>> "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".
>
Sorry, Duane, I disagree in part. "Acts of parties" includes their written and oral statements as well as their physical actions. Expressed evidence is often more telling than physical actions; sometimes it's just the opposite. Their actions are only truly important when either, 1) there is an patent ambiguity in the words expressed in the written document (practical construction), or 2) when there is a latent ambiguity found on the ground where extrinsic evidence might be used to resolve the ambiguity (practical location). In both cases, parol testimony corroborated by the physical actions may be considered to resolve the conflicting evidence.
Testimony is not considered "highly suspect" by the courts. It is extensively relied upon by them to assist in resolving boundary conflicts. The fear of the surveyor should be in watching a parade of witness come forward, all of which were readily available, to tell their story of what they know (which directly contradicts the findings of the surveyor who never interviewed them). The second fear is that the landowner will take the seat at the witness stand and weave a story concocted by the coaching of the attorney that stitches together a chain of evidence that cannot be countered, simply because the surveyor failed to gather the contrary evidence when it was untainted and pristine (as it was the day the surveyor first ignored them because they were too busy and couldn't be bothered while surveying).
We can't have it both ways. Evidence is important and the methods we use to gather it are equally important. We need to learn the rules and understand how to apply them in our every-day practice. Why would we not? We can start by learning how to ask very important questions and by learning what governs the asking.
JBS
Agreed, and I have the upmost respect for Mr. Stahl. He gets it as far as boundary issues are concerned, that it is not simply a technical exercise staking the deed and is as much art as science.
Understand here the state is run by the insurance lobby, and the surveying lobby is essentially impotent when it comes to protecting either themselves or the public domain. We are a state of the lobbyists, by the lobbyists, and for the lobbyists, with Big Timber running a close second to the the insurance companies.
If I sound a bit cynical, it is because I have watched time and time again, true professionals I consider both mentors and friends struggle to eak out an subsistence living when they should be respected and prosper due to their talents, skills and abilities.
The survey mills will inherit the earth, because they are the only ones who can afford the mortgage. The insurance and legal lobby love them, because they create more work for the insurance companies and lawyers, which is the only reason most of the population exists and is suffered to live.
It's not a matter of simply declaring the fence the boundary. There must be supporting evidence based on both historical and empirical data that gives reasonable expectation everything involved supports the fence.
If the legal description and the fence do not agree, further work is justified. I'm just saying here I watch time and again the surveyor do all the legwork at a loss and still end up the one in court because little Suzy Bowhead realtor told the client when they bought the place the line ran from the power pole to the little pine tree.
They build according to little Suzy Bowhead's opinion, are found to be over the line, and then want to sue somebody because they were damaged. I am in their corner at this point, however little Suzy Bowhead is not the one that gets sued. She waltzed off with her 6 percent at closing never to be heard from again, and the poor stiff that bothers to keep up his E and O is the one who gets sued. Forget the fact he gave Bowhead a free copy of a 15 year old survey because they go to the same church and he is a nice guy, now he is the one hiring an attorney he can't afford and defending a problem not of his making.
I'm saying it is time to either cowboy up as a profession, or go mix paint at Home Depot.
I only wish I could get the fees for solving problems that JB Stahl gets. And be swamped with work at the same time. There is a whole world out there for professionals that really know their stuff and actually provide a service valuable to clients resolving problems. I know JB personally and a bit about his work. A more professional and successful surveyor doesn't exist. If anything limits his income it would be all the time he gives away helping guys like me and the rest of the profession. JB is one to emulate. His business model doesn't suffer at all.
Actually the more problems there is related to surveying a state has the more potential there is for someone that does what JB does. Someone that can actually solve a clients boundary problems instead of just adding to the pile. The folks in the know will pay big bucks for that service.
P.L.,
I get it that your state has problems, and that the insurance lobby, realtors, lawyers, and others walk all over the surveyors. Don't think you are alone there. Maybe it's worse there than other places, I don't know, but it is a tough situation everywhere. Each of these other fields of work outnumber the surveying population by a huge amount. You are with a minority breed (so to speak) in the workforce. That might be what makes the typical surveyor a fairly independent and outspoken lot. But the real professional has to rise above all that.
My point is, that the professional surveyor in any state, needs to start surveying with boundary and boundary rights foremost in his (or her) mind. You can't overcome the lobbyists and the quasi-boundary experts without being able to speak with some authority and confidence in discussions with them. Surveyors that can do that, bring up the profession and the view of the profession from the rest of the public in related fields.
It is we that have dug this hole for ourselves, where engineers, realtors, title agents, and lawyers think they are better than us and know more about what we do than we do ourselves.
"Yep, son, we have met the enemy and he is us." (Kelly/Pogo)
Tom
Well, all I can say is you're living in a different universe of law there in Utah. But if it works for ya it's all good.
Duane
> Well, all I can say is you're living in a different universe of law there in Utah. But if it works for ya it's all good.
The references to the Rules of Civil Procedure and the Rules of Evidence are references to the federal rules which have been adopted almost universally across the states. There are few exceptions and modifications that are typically quite insignificant when it comes to boundary evidence.
Duane, can you point to any other law, rule or regulation (where you or anyone else practices surveying) that governs how land surveyors should conduct themselves when gathering evidence regarding boundaries?
Or, do we just make stuff up on the fly based upon individual circumstance?
JBS
> Or, do we just make stuff up on the fly based upon individual circumstance?
^THIS^
Might I add, "That's the way we do it 'round here".
Sure, but I would just be repeating myself, and I'm sure you would find a way to spin it. I don't want to discourage surveyors from following your pet project of performing more thorough investigation via questioning witnesses. However, there are obvious differences between your area and those I work in. Apparently those in Utah are all pure as the driven snow, don't have disagreements, and all are nuetral and harmonious. The courts follow you around in the field with their rules, the attorneys objecting at the proper moments, and all is very controlled. Everyone believes each other, so the normal rules of contracts don't apply.
I merely offer up some caution to those practicing in areas where all that may not be true. Other forms of evidence may have some (more) value, and other forms of questioning may be more productive of the truth and more reliable in the long run when not dealing with the saints of utah in a big sky court.
Duane
Duane, I think the moral of the story is to interview adjoiners (or other witnesses) BEFORE forming an opinion.
Not all situations are going to require this. Like Andy mentioned earlier, and I have witnessed myself as I am sure others have as well, some properties just don't require the interviewing of witnesses. When you work in an area that has been surveyed every 5 years or so when that property changes hands, most of the monuments are existing and just require recovery and measurement. I worked around Atlanta for 12 years and had to gather parole evidence twice.
Now, I have moved to West Virginia, the properties haven't been surveyed in 100 years, if ever. EVERY boundary survey I perform, I have to spend at least a half a day, usually more, speaking with adjoiners and just listening to what my client has to say about the property.
When the boundaries are described as: Beginning at a hog waller, thence along Smith's line to where ol' Joe's horse once stood, thence along ol' Joe's line to a large rock...
The only way you are going to know where any of that was is by talking to people who have lived there for awhile. That is the norm here.
For example, I just completed a 30 acre boundary survey, dispute situation, that I had about 7 days of work in (Day 1: research; Day 2: interviewing witnesses; Day 3: more research; Days 4 and 5: taking measurements; Day 6: computations, evidence evaluation, more questions for neighbors and client; Day 7: meet with client, set corners, deliver plat). I knew where that boundary was before I took any measurements. The measurements were just to report my opinion. I would not have known half of it without interviewing the people with relevant information BEFORE forming my opinion.
> Sure, but I would just be repeating myself, and I'm sure you would find a way to spin it. I don't want to discourage surveyors from following your pet project of performing more thorough investigation via questioning witnesses.
No spins intended at all, Duane. Just a simple question: "By what rules are we governed as surveyors?" Are there rules that are intended to govern our profession, or do we just make up whatever seems right for the circumstance?
> However, there are obvious differences between your area and those I work in. Apparently those in Utah are all pure as the driven snow, don't have disagreements, and all are nuetral and harmonious.
Don't we wish! If it were that way, my principal line of business would be gone. That's primarily what I do; settle disputes between often warring neighbors. You know what the biggest cause of the warring neighbors is? Surveys. Bad old surveys and bad new surveys. Not to say all surveys are bad. Contrarily, the vast majority of them are good. It's the bad ones that lead to conflicts. It's faded evidence that leads to conflicts. And, it's the unavailability of prior survey records that is the leading cause.
The fact that landowners in Utah are just like landowners everywhere, dependent upon surveyors to determine their boundaries, that makes surveying in Utah very similar to surveying everywhere. We all need to learn to deal with them. They're our clients and they're the reason we have a profession at all. It's our duty to provide them with the best professional service they can afford short of suing each other so they can ask a judge where their boundary is located.
> The courts follow you around in the field with their rules, the attorneys objecting at the proper moments, and all is very controlled. Everyone believes each other, so the normal rules of contracts don't apply.
>
The courts don't need to follow us around. They've already spoken and they continue to speak directly to the surveying profession. They've set the rules for us to follow. What boundary can we determine that doesn't directly apply those rules? Where else do the rules come from? We seem, as a profession, to assume at times that we govern ourselves through minimum standards and codes of ethics. That's not the case at all. This is not a self-governing profession. We are governed by centuries of land boundary law that has been laid down by the courts. They have given us direction. When we fail to follow those directions, we can be sanctioned for negligence and slander of title. There are consequences for not following the rules. Those consequences should come through the judicial process, not administrative processes.
> I merely offer up some caution to those practicing in areas where all that may not be true. Other forms of evidence may have some (more) value, and other forms of questioning may be more productive of the truth and more reliable in the long run when not dealing with the saints of utah in a big sky court.
>
I am merely offering up encouragement to land surveyors to study the laws, rules and regulations so they can learn and understand the reasons behind them and so they can best apply them in the ways they were intended. When there's no reason behind the rules, the rules cease. It's one of the foundational truths in our law.
A post such as this one which asks, "What are proper questions for a surveyor to ask a landowner," is a prime opportunity to discuss the rules which guide us and assist us in understanding "why" we ask questions in certain ways. Learning the rules which govern us helps us to understand the "why."
I agree that not every survey requires the surveyor to interview the landowners. The vast majority (depending on the area) of them do not. However, when the need does arise, the surveyor should be properly schooled on the process. The surveyor should know the "why" along with the "how" to formulate their questions.
Again, what rules do you suggest we follow?
JBS
P.S. The Big Sky courts are held in Montana, where I originally hail. I don't find the typical Utahn to be that "saintly." I do find typical landowners who are very concerned about their property rights, however. I'm sure the same can be said of landowners from your area as well.
Hostile discussion
Just wanted to throw in my 2¢. A hostile witness is what JB said, being evasive as a witness, choosing words carefully to not reveal things they don't want revealed, possibly being angry but not necessarily. Someone who it's hard to get answers out of.
Hostile when it comes to land...as in adverse possession, is kind of like Duane said. It is taking action against the land boundary. It is doing things on land that the person knows is not his. Encroaching (purposely) is an example of being hostile against the land. It can include personal hostility and being angry against the other owner, but that is not necessary for an adverse possession action to be hostile. (if I am not mistaken.)
In the mean time, good discussion, Duane and JB. It is very informative...maybe anotehr keeper in the threads I cut and save.
(Subject Hostile discussion.....get it? double-innuendo)
JB, It is fine for surveyors to learn the basic rules of law regarding civil procedure and evidence. However, both those areas of law are specialties that any decent law firm would have covered by individuals who do nothing but that. It is not simple at all and not something a surveyor can be expected to be an expert in.
In my opinion, if you have waited until court to stir up your witnesses and see how they might testify, you are asking for trouble. Leading questions are always allowed on cross exam, and surveyors should be examining and then cross examining their witnesses before they use any statements made. This is standard practice for any people in investigative work.
The judge or jury has no business taking a surveyors word about what was said over that of the one testifying. There is nothing in the rules that allows such a poor practice. The surveyors testimony could only be considered in relation to judging the credibility of the witness and not for purpose of proving the truth of what was claimed to have been said.
Mostly, boundary cases are tried with a bit of slack. Lot's of rules ignored because of lack of interest on the part of judges or lack of expert counsel because of lack of money. In addition, lower courts will be automatically overturned if they don't allow something in that they should have. On the other hand, if they let something in that shouldn't have been, the case is not automatically overturned, instead it still must be shown that evidence was enough to change the outcome. So, safer to let it in. IN other words; sure the surveyor can go into court and play the he said/she said game. See if you can sway opinion one way or another. I would rather know before I make any decisions. That is the way to avoid the who said what game that never looks good for an expert to take part in.
Surveyors need to know next to nothing about the rules of evidence and civil procedure in order to perform their investigative and quasi-judicial functions in the substantive area of boundary law. In fact, knowing a little about it may be more detrimental than knowing nothing at all.
Of course, if a surveyor can just get the witness to affirm a statement under oath with acknowledgment (notarized in some states, witness will do sometimes) (an affidavit) then the whole discussion we have engaged in is pretty much moot:)
> The judge or jury has no business taking a surveyors word about what was said over that of the one testifying. There is nothing in the rules that allows such a poor practice. The surveyors testimony could only be considered in relation to judging the credibility of the witness and not for purpose of proving the truth of what was claimed to have been said.
>
What??? Then just what is the expert witness, who presumably properly gathered, analyzed, and applied the evidence and facts, supposed to testify to? Just the measurements or the deed recitations?
Yes, the trier (judge/jury) can choose to believe whomever they want, but how could they properly weight the evidence without receiving all of the evidence, including whatever the experts can provide? Courts, righfully so, tend to believe statements and positions of the litigants that were expressed before the dispute started (that's why I started this thread, to get information and opinions on how best to obtain untainted, unbiased statements/evidence). Who better to gather that evidence and preserve it than a licensed professional?
> JB, It is fine for surveyors to learn the basic rules of law regarding civil procedure and evidence. However, both those areas of law are specialties that any decent law firm would have covered by individuals who do nothing but that. It is not simple at all and not something a surveyor can be expected to be an expert in.
Wow! First I've heard of that! As a professional, licensed surveyor, we are expected to be experts in evidence gathering procedures. I don't understand that point of view at all Duane. It sounds like an excuse, and a poor one at that.
