SURVEYOR A and SURVEYOR B
- by Warren Ward, PLS
Surveyor A: Makes diligent research efforts, and diligent field searches for evidence of a parcel established long ago, makes a determination, and sets a monument in the field that somehow, sometime later, turns out to be in the vicinity of an existing monument not found at first try.
Surveyor A humbly and professionally realizes that he has made an honest error. Then ties in that found original monument, changes his plat, and after ascertaining that no landowner has used his own erroneous monument, pulls it out and of course sends no bill to his client along with a letter of explanation and revised plat.
Surveyor B comes along a few years later, evaluates the same documentation, finds the same original monument and declares that it is wrong, because it does not fit the calculations. He sets his new monument in the calculated position, and shows the original monument on his plat as being "not accepted".
Surveyor B explains to the angry landowners who have built improvements in the setback based on the original monument that it is "out of position", and that his survey is "right", and that he will defend it to the gates of hell and back, before he accepts this or any monument that is out of position.
Surveyor B's landowner can not sell his property, because the title insurance company will not insure with an ongoing survey conflict. Surveyor B's landowner hires a lawyer known for being tough especially in divorce cases, and the title company lawyers up when the same landowner threatens to sue.
Over the next few months, several meetings are held with surveyor A and Surveyor B in roomfuls of lawyers, some who know nothing about surveying, and some who know just enough to misunderstand surveying completely. Each meeting takes hours of time to attend, and hours of research to prepare for. The lawyers are getting paid. The surveyors are not.
Finally, about a year later, Surveyor B's landowner realizes that he has not only lost his sale, but the surveyors have done nothing but stonewall each other. The City Attorney has contacted the landowner and explained that unless he cuts off the improvements in the setback, or applies for a variance, or re-subdivides his property, the City will soon assess a $500 per day fine.
The only viable option left for Surveyor B's landowner is to threaten to sue surveyor A. Surveyor B’s lawyer advises not to go to court, because they might lose, and then he’s out another 30k. Surveyor A has spent a year, weeks of non-paid time, explaining to numerous lawyers that he is required to retrace original property lines on the ground, and he has successfully done that, and is not liable for the encroachments or the survey conflict. That the existing monument is a legally perfect “property corner”.
According to Surveyor A, a property line does not lie in the head of some future surveyor. There is no law or reason for Surveyor B to intentionally set a new monument in conflict with the existing monument.
Surveyor B spends the same amount of time explaining that the original monument is "out of position" and there is no way in hell he will revise his survey because his measurements are exact, to within 0.01'. Besides, he doesn’t know who set it, so how can he accept it. Besides, the original surveyor surely MEANT to set it right where Surveyor B’s pin correctly locates “the corner”.
Surveyor B's landowner gets a bill from his lawyer for $22,210.05, for doing nothing but attending meetings and an hour or two of online case law research.
Throughout the whole process, all the land owner’s and title companies’ and city lawyers, even though they have no idea how to make measurements on the ground, or what the funny numbers on the pieces of paper means, or what surveyors even do, realize in very short order that there is solid long standing case law that says monuments prevail over measurements in the event of conflicts.
But that is not the objective. It is the lawyers duty to represent his client and his clients rights to the best of his ability, and by stating out loud that they understand surveyor A was right, they are legally defeating their client's best interests, so they all remain silent and prepare to remain silent unless their client is asked the question about monuments under oath in court.
Surveyor A, stressed out and out of money due to the bad publicity he is getting causing his phone to stop ringing, and because he is spending all his time working on this case gratis, gets a divorce. He is granted possession of all his survey equipment, his 1998 Suburban, and his office building, which was a small one bedroom house converted into an office with a nap room and shower.
Surveyor B gets an influx of survey orders from high pay clients who hear from the lawyers that this Surveyor makes "exact measurements", as opposed to that other loser in town, who accepts monuments that are xx out of position. Surveyor B hires another crew and buys an all new Trimble setup and Ram 2500 truck, just to invest all his extra cash so the IRS doesn’t take it all because of his new elevated tax bracket.
Eventually, after another $3000 worth of lawyer meetings, the landowner files suit against Surveyor A for damages, cost of tearing down improvements, and all lawyer bills, total estimate of $81,423.00. He also serves notice that he intends to file a complaint with the State Board.
But, the landowner adds one caveat and gives Surveyor A a way out: The lawsuit and complaint will be dropped if Surveyor A revises all his work to match Surveyor B's monument, and apply for a city amended plat, and will only have to pay current lawyer bills but he will give him a great deal at just $2000 per month for 5 years. .
Hmmmm, Surveyor A adds up the fees for doing this and comes up with about $2000 of application fees, and about 1 week of time dealing with city planning.
Surveyor A has no choice. He sells his Topcon Robot, goes to the city planning department, and fills out the subdivision amendment application.
Ww CO PLS
- Have a nice day! Or, may your monument prevail over some guy's touchscreen.
p.s. This is not far-fetched fiction. It is based on my observation of more than a few cases.
Having a license does not give Surveyor B enough snuff to say that an existing monument is wrong. That is his opinion.
An experienced judge will see this and throw out any stonewalling by Surveyor B and side with Surveyor A because he did a proper survey.
Poof, all the lawyers heads explode.
😉
just curious on the difference between the original monument later found by Surveyor A and the new monument set by Surveyor B? obviously a significant amount?
Sounds like Surveyor B is an a%&hole.
And to change the subject ....
I see you're running for (county) surveyor. Good luck.
In this case - the difference is due to the difference in tools used long ago vs today, so I did not put an exact figure. There is no material legal conflict, only a difference caused by the normal imperfections of survey tools.
And to change the subject ....
I involved in something like that right now.
Nate
And to change the subject ....
thanks Dave!
No, to go to trial the lawyers get paid for several more months of prep and appearance time (including innumerable continuances), get a ruling against them, maybe frown once, and smile again when they deposit the last check.
I was at a seminar a few months ago, a Laywer was teaching a topic on easements and such. He said his cost of going to trial over a land boundary dispute starts at $250,000
Sounds like a great excuse for a beer summit! Don't invite the lawyers though.
Just because I'm paranoid, doesn't mean they aren't out to get me.
Surveyor A should have never gone to any meeting for free.
I've had my survey questioned by Attorneys. You want to ask me questions, subpoena me or pinch me and I'll have my Attorney there and ask away. You will pay me for my time.
I worked for someone like surveyor B once, He set out to prove the other surveyors in town were wrong and would go miles to try and prove it. He never made any money and in fact last I saw him he was surveying out of rusty 15 year-old minivan with his current girlfriend as his rodman. he was using a 20 yr old Topcon 2B for a gun. Surveyor A should have carried insurance.
I don't know about these particular Surveyors A and Surveyors B, but I find that more often than not the Surveyor B will have a different story. Most surveyors I know won't dispute original monumentation in its original location philosophically speaking. In most cases it has more to do with the surveyor B not having found the original monument, or having reason to believe it is either not the original monument or perhaps reason to believe that it is not in its original location. I see many more uncalled-for, non-original, monuments these days than I find originals.
More often than not, too, I figure if there are more than one monument for any corner, there is also evidence to substantiate both locations. The fact is, when you have two positions, it is much better to resolve the dispute early on. If the corner location is "unknown" because the description is ambiguous, it is probably time for a "boundary line agreement" instead of lining many lawyers with your, and your client's, hard-earned money. What constitutes not being surveyable on the ground? I don't know precisely, but I would say that if two surveyors can take the same deed and the same evidence, and come up with two different locations, you have a pretty good case for a corner-location being considered ambiguous.
Sometimes disputes like this are not ever resolveable, but it would certainly have been much better for a resolution to have been made way before hundreds of thousands of dollars have been run through. Surveyor A would have been much better off giving in much earlier, or better yet, both surveyors should have come to a more agreeable solution much earlier. Maybe both are too hardheaded than they care to admit. ?
Just some thoughts to ponder....
Tom
Surveyor A has error and ommission insurance, but the insurance company informed him that he is not liable for damages, becuase he made no error. The certified plat that he revised was accurate, and he was in compliance with all legal standards and laws.