How does the following comport with your view of the role of the surveyor?
“We have had occasion, in several instances, to point out that a surveyor cannot be allowed, under any circumstances, to fix private rights or lines by any theory of his own. Before a surveyor's evidence can be received at all, it must be connected with a starting point or other places called for by the grants under which the parties claim. His duty is neither more or less than to Measure geometrically in accordance ~with those data, and his science goes no further. It is not his business to decide the questions of law, or to pass upon facts that belong to the tribunal dealing with the decision of facts. His testimony, as a man of science, is never receivable except in connection with the data from which he surveys, and if he runs lines they are of no value unless the data are established from which they are run, and those must be distinctly proven, or there is nothing to enable anyone to judge what is the proper result.”
-Jones v. Lee, 77 Mich 43.
My view is that landowners would like a professional OPINION as to where their property lines are, as he can get not get such an opinion anywhere else, short of a court action.
Since we should not (per that cite) use legal principles to take an educated decision on what monuments to hold, or opine as to where the correct location of the line is, we should just provide field notes on what was found, and let the lawyers use their vast experience to decide where the property lines are located on the ground.
Land Surveying is obviously all about the proper use of scientific instruments. Cooley was wrong: the man of science should disrupt the entire neighborhood.
I can only base my OPINION on the evidence I've found and it's relationship to the job I've been hired for, based on the information derived from my scietific instruments.
It is my professional JUDGEMENT that determines the validity of the evidence and the reliability of the scientific measurement.
I say bullshi.............
The Attorneys and Judges don't bother to follow the law so why should a Land Surveyor?
The actual reference is JONES V. LEE, 77 MICH 35 (43 N.W. 855)
The critical issue here is that the surveyor came up with his own basis for how to resolve a riparian boundary, and after doing so failed to supply data to back up his determination.
That is why the reference states “…to fix private rights or lines by any theory of his own…”
Since the surveyor didn’t provide the data, his determination is solely his unsubstantiated opinion, and cannot be admitted (or reviewed) by the court.
If the surveyor had supplied data to the court, it could have been reviewed, and either approved or rejected.
As to the reference “It is not his (the surveyor’s) business to decide the questions of law, or to pass upon facts that belong to the tribunal dealing with the decision of facts.” This is a true statement. Surveyors research and recover fact evidence, review said facts, and apply existing law to our determination. We are not deciding questions of law, rather applying law to our surveys.
It's really an interesting situation...
A surveyor will be retained by a property owner, but ultimately, his responsibility is to the evidence, not the owner. He should not be letting his judgement be skewed to favor anyone.
> The critical issue here is that the surveyor came up with his own basis for how to resolve a riparian boundary, and after doing so failed to supply data to back up his determination.
>
> That is why the reference states “…to fix private rights or lines by any theory of his own…”
> Since the surveyor didn’t provide the data, his determination is solely his unsubstantiated opinion, and cannot be admitted (or reviewed) by the court.
>
> If the surveyor had supplied data to the court, it could have been reviewed, and either approved or rejected.
Courts are funny places, I know of at least one case involving a fairly prominent still currently practicing surveyor where a plus or minus 20 y/o survey was challenged.... the surveyor never found out about the challenge until AFTER his survey was ruled against... L@w^er$ make the decisions on what arguments or explanations to bring up in court, you can't defend your work if not put on the stand.
I don't know what happened in the case that started this thread....
but-
I am really hesitant to call any boundary case precedential unless it has been tested or cited more than once.
The notions regarding the duty of a surveyor emenate from a source or sources. These notions gain a foothold in society and in the education and training and ultimately the mind of the practicing surveyor. In the nineteenth century Cooley either coined or advanced the term "expert measurer". It is oft repeated today. Some of these notions are less than useful,but at the same time if a practioner were to stray to far out side one of the boxes that we have been placed in, that there will be hell to pay in terms of exposure to liability.
“We have had occasion, in several instances, to point out that a surveyor cannot be allowed, under any circumstances, to fix private rights or lines by any theory of his own.
This may be true in theory, but not in practice. When the line is screwed up, we will set new monuments and blaze it.
In my practice I've always tried to keep it simple. I can research my clients deed(s). I can research the adjoining deeds. I can keep my equipment calibrated. I can practice due diligence using my equipment. When discrepancies in descriptions appear I can communicate those discrepancies to my client and affected adjoiners. I can make my decisions based on case law and the desires of the affected parties if need be. But, there are times when circumstances dictate the ultimate decisions of line or corner locations become "a matter of law". It is then simply out of my hands. Period.
In court I can only testify to what I know. This is where liability comes into play. If what I 'know', and testify to, is 'all wet' due to my incompetence, fraud or some other blue meany on my part then I'm screwed and suffer the consequences. Beyond that, I don't have another role.
Just my take on the subject.
Take care,
Ed
Dave
A little cynical this morning eh?
There have been a lot of rule changes in the court since 1889 when JONES V. LEE was decided. The expert witness was virtually unheard of back then, and the idea of expressing your opinion on the "ultimate issue" was strictly forbidden. In the courtroom, the judge was king. The surveyor's job was to present the evidence and to tell what facts he discovered to base the survey on. The results of the survey were nearly irrelevant as the judge was asked to render that opinion.
Times have changed, especially since around 1972. The rules of civil procedure are quite different now, especially with regard to evidence and its disclosure. Expert witnesses are governed by a specific set of rules which have recently undergone more changes in the last couple of years. Make sure you know what the rules are and how to play by the rules. Those are the rules your survey will be tested against, not something you learned in a textbook (unless it was a good, up-to-date, textbook).
JBS
Perry, the issue wasn't that the lines were screwed up, and the surveyor fixing them by setting new monuments.
The court came down hard on the idea that a surveyor went beyond what he was licensed to do. The surveyor attempted to fix private rights by his own theory of a riparian boundary resolution, and not supplying data to back up his opinion.
Thanks JB
I always wonder if some case or citation in a textbook represents the current state of the law. I still wonder, even though Jones is outdated, if there are judges and clients and possibly some surveyors think "His duty is neither more or less than to Measure geometrically in accordance ~with those data, and his science goes no further."?
Thanks JB
> I always wonder if some case or citation in a textbook represents the current state of the law. I still wonder, even though Jones is outdated, if there are judges and clients and possibly some surveyors think "His duty is neither more or less than to Measure geometrically in accordance ~with those data, and his science goes no further."?
The message in Jones isn't really outdated. Many have misread the Jones v. Lee case and understood it to say that surveyors only determine the facts, not boundaries. The law is really quite clear. It provides direction to surveyors for the sole purpose of determining land boundary locations. The Jones court is clear that surveyors can't make up their own law to follow. They are bound by the law as determined by the court. We surveyors cannot "decide questions of law." A boundary location isn't a question of law; its a question which requires application of the existing law to the given facts. The Jones court was reprimanding the surveyor for making his own law and not following existing laws established by the court. Likewise, surveyors cannot pick and choose which laws they want to apply and which they don't. We must be able to understand ALL of the laws and apply the appropriate law to the given fact situation.
Surveyors don't "decide questions of law." They apply the law to decide locations of boundaries.
JBS
Thanks JBS
Thanks again, I came across the citation in an early edition of Brown and it was used to bolster the propostion advanced in that text on the surveyor's duty in court...." just the facts ma'am".
> It's really an interesting situation...
>
> A surveyor will be retained by a property owner, but ultimately, his responsibility is to the evidence, not the owner. He should not be letting his judgment be skewed to favor anyone.
If memory serves, it has been stated that unlike several other professions, a surveyor is NOT an advocate for his client. He is to be an impartial arbiter of the facts as found at the time of survey and his professional opinion should likewise be impartially formed.
My personal statement on this when dealing with dueling neighbors is:
I do not care if either one of you is right. I just care to make sure that I am right.
SJ
