Surveying Law Articles - Confusion

I don't know what articles you are referring to, but commonly accepted "survey principles" are generally set by court decisions from the distant past, that have been cited and upheld (and written about in surveying books and mags) so many times that they have just become "common sense" for land surveyors. So even if you are not referring to any case in particular when you decide to hold an original monuments, or hold distance over bearing, or honor senior rights, etc., you are certainly following the common law, which is old case law. A think often times writers pull in old and new court cases for the purposes of showing that surveying principles haven't changed much, nor should they.

> I feel a little un-easy when I read Articles by Surveyors about Boundary Law . Seems they are pulling in Court cases like a preacher pulls in bible verses to suite the daily preaching . I have never once looked at a court case and decided on a boundary determination from this case . I have only used the Rules of Construction as we are required. And to show the facts as they present themselves .

Those "Rules of Construction" are a list compiled for use by the surveyor from years of case law. They are not set in stone, to be used like a checklist, starting at the top and going down the list. They are more of a suggestion that the surveyor may use in conjunction with the evidence discovered. It is best to know the case law behind them and the legal principles which support your decisions as to the location of any particular boundary.

> Dont get my wrong, I do think the quoted cases will give a legal determination how the courts may rule, if the situation makes it to court , but should the surveyor make decisions based on these cases if so give me examples of such .

Most boundary disputes don't actually make it to the inside of a courtroom. That is why surveyors are said to serve in a quasi-judicial capacity. When we make a decision, it usually becomes final, so that is their day in court. We should strive to make our decisions based on the application of supporting legal principles. We are not in the business of "should have been", we are in the business of "where it is". Only the application of the correct legal principles can answer that, not the application of trigonometry or geometry.

> My mentor said show the facts and let the Attorneys do their job.

I've had mentors tell me the same thing and I believed it for a long time. But after many discussions on this board and among other surveyors as well as my own study of the law in the states in which I am licensed, I have come to believe different. If you will allow yourself to think differently, study the law with an open mind and read cases in your state, I'm sure you will begin to think the same way. We are expected to be the expert in matters of boundary. You will find that you will become sought after in your area (by attorneys and clients alike) for your expertise in these matters. The fees that you can charge for this expertise will rise along with your reputation.

Very Well Stated, David! :good: :good: :good:

Every boundary ever determined by a surveyor required the application of a legal principle used to determine the boundary location. Facts don't tell you where to set your monument; the law makes the determination based upon the facts.

JBS

Very well stated David. It is always a judgment as to what the pivotal question is, and which rule of law applies and the ability of the surveyor to assign the proper evidentiary weight to each pertinent data and apply appropriate rules.

Pablo B-)

There are very few attorneys

There are very few attorneys who understand Land Law. I know of a few who profess expertise who fall quite short of the standard I would expect.

Massachusetts General Law 112, Section 81D

“Practice of land surveying”, any service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence to the act of measuring and locating lines, angles, elevations, natural and manmade features in the air, on the surface of the earth, within underground workings, and on the beds of bodies of water for the purpose of determining areas and volumes, for the monumenting of property boundaries, for locating or relocating any of the fixed works embraced within the practice of civil engineering, and for the platting, and layout of lands and subdivisions thereof, including the topography, alignment and grades of streets, and for the preparation and perpetuation of maps, record plats, field note records and property descriptions that represent these surveys.

A person shall be construed to practice or to offer to practice land surveying who engages in land surveying, or who by verbal claim, sign, letterhead, card or in any other way represents himself to be a land surveyor, or through the use of some other title implies that he is a land surveyor, or who represents himself as able to perform, or who does perform any land surveying service or work, or any other service designated by the practitioner which is recognized as land surveying.

And often you can keep the lawsuit from ever going forward.

Excellent response David.

"My mentor said show the facts and let the Attorneys do their job." I suggest a new mentor that is a Land Surveyor and not a "measurement expert."

The purpose of the rules of construction is to aid in determine the intent of the parties to the Deed. They may be overcome by superior evidence of intent. They are not absolute rules in themselves.

I am thinking you make lots of your boundary decisions based on case law, you just don’t know the references. Suggestion: Maybe next time you hear the preachers, you can take some notes on those Bible verses and do follow up research for yourself. It would be very good for you and your business.

Having been an expert witness surveyor in many court cases, I would have to tell you that the main reason so many solutions by the court matched my solution was the time I spent with the attorney. If I had only done the survey and then let the attorneys do their jobs, it would not have turned out so well. As an aside, I would have to say that it was the attorney who learned more than the surveyor on these occasions. The attorney has to understand both sides of the issue for each reason a decision is made during the construction of the boundary. The attorney has to know because they will be asking questions of each surveyor so that the judge can make the “right” decision. Most of the above comments support the idea that us surveyors should know the chapter and verse for our decisions. Of course that is my position too.

> I have never once looked at a court case and decided on a boundary determination from this case.
>

Ouch :'(

That is like taking only the preachers words as "gospel" and never reading from the "source". Independant research is the key to learning.

Show me a survey that references a court case on the face of the survey ...I would like to see it.

the courts say that we should apply the a Rules if Construction to Boundary determination not arbitrary a Court cases..

Also I'll admit that most of the articles I am talking about are from surveyors that make a living in court ..

I don't understand the above reference. But where is it "written" you apply your "rules of construction". To the best of my knowledge the 'rules' are a consolitation of court cases and even vary slightly from state to state. I don't believe the "rules" are written down in State Statutes in my state, but I believe some states may have some kind of statute on them.

If a surveyor didn't apply case law, then every stakeout would be dependent on the language of the deeds only with absolutely no leeway for accepting non-called-for monuments, or setting pins 0.05' from another property pin.

The "rules of construction" are rules for the construction of a deed. If one of your calls is not in the deed, then it wouldn't apply to your heirarchy of evidence. (If you found a pin where only a distance and bearing is called for on a deed is an example).

We have enough conflicting evidence in a survey retracement, that it would be impossible to actually set property corners in most cases if we did not resort to standards that come from case law.

I've also never seen a survey that directly cites a court case, but that doesn't mean that the surveyor's decision making in solving conflicting evidence isn't based in case law. In fact, I'd argue that if the decision making was not based in case law, then the survey it's likely to not be upheld if challenged in court.

I guess I stepped into it. I realize that Boundary law come from past cases o.O .I also forgot you guys love to pick meat off the bones .

I can go to my Boundary law books and find this or that as related to what I am doing . But I dont not look up the court case for it .

Let my focus my question a little tighter : In my initial question I was stating that the articles I read , the author references this case and that case . So what I do not understand how one picks this case over that case and is it correct application . Like a lawyer can pick this case as his defense . Why not reference our standard Boundary law books that we all studied .

Tom , I dont understand what you mean , The rules of Construction Would apply to the examples you mentioned. Senior rights step outside the Deed for example .

Most, if not all, of what a boundary surveyor does is defined, backed, or predicated by law. For starters, our license is a legal document that allows us to purport to the public that we have the legal qualificaitons to figure out where their legal property lines are.

Alas, I have seen a shocking number of surveyors quote "Boundary Control" or "the Manual" completely out of context. I have also seen attorneys misquote numerous legal principles. I have seen attorneys argue BOTH SIDES of a property issue because their client paid them to advocate for their interests. Indeed, niether attorneys OR the courts CARE about what a good surveyor does or should do.

Only surveyors CARE about proper surveys, and only surveyors SHOULD understand the legal principles and case laws that regulate our daily practice. It is all readily available. It does not take an attorney to understand case law - in context - any more than it takes an attorney to tell us how to drive a car even though we have a license to drive a car and we are expected to know the laws that pertain to driving.

I have produced approximately 3,000 boundary surveys. Two of these have gone to court (in both cases, case law we all know about prevailed). If I turned every job I have ever done to the attorneys, and ALL of our jobs require us to apply some degree of legal interpretation to the products we deliver, I would still be on about Job number 6.

I shudder when I think of letting attorneys do our jobs and thinking for us. They have no idea what we are talking about.

djames - You posted your last post before I had a chance to read it. I see what you mean. Sorry for my long rant. 😀

This is a timely thread.

I'm going to be talking about this very thing in Salem next Thursday. If you read a lot of cases addressing similar issues, you'll start seeing that the courts are generally pretty consistent in application within a jurisdiction, and pretty consistent in their interpetations of principles across jurisdictions as well.

The best thing about boundary law is that it is based on common sense principles rather than on complex technical considerations, and except occasionally where a boundary issue might overlap with a hot button land use issue (wetlands, private or public ownership of shorelines, etc.), is free of the pollution of political bias.

I'll have to print this out and use it as a basis of discussion next week.

The best thing about boundary law is that it is based on common sense principles and jurisprudence. You step beyond that and you get spanked!