I think I'm going to include that with my report on a survey I've been working on. Lots of fences between 2 cattle farms that just do not match the deed calls but that have been in the same location for at least 75 years, other areas with no evidence at all that matches the deed calls, and no surveys on either tract since the early 1800's. Might help them understand why I've dragged them both out there, and questioned them intensively on what they know or don't know about where the corners are.
Knud always seems to have a good perspective on surveying issues.
In agreement when occupation is clearly beyond a reasonable precision standard and obvious intentional occupation across a known line. Going to get some panties in a knot, but as always, it depends on experience and judgement. There are no hard and fast rules that fits all in Boundary Surveying, the promotion of rules being hard and fast is my biggest problems with what I sometimes read on this board.
jud.
I REALLY appreciated the analogy of the poice officer.
Geezer
WOW
To summarize the surveyor’s responsibility, the surveyor should not take it
upon themselves to apply equitable doctrines and determine when the lines of
occupation are the lines of ownership and show the occupation lines as the
boundary.
Right back to having the lawyer determine the boundaries and what authority is that?
Keith
I’m not sure at this point if I agree with the police officer analogy. Let’s look at it a little closer. The officer witnessed (or investigates) a crime (obtained evidence), and knowing the rules and decisions of the courts concerning probable cause and admissible evidence (a requirement for his position of authority), and knowing is he not the final authority in the determination of guilt and administering the penalty, the officer makes a decision (opinion) to arrest the person. He did not tell the person, “hey I think I have enough evidence, which I think may be admissible, to arrest you. But first I need to ask the city attorney to file a motion with the court to get a ruling to see if it is appropriate to arrest you, and I suggest you hire an attorney to look at if I can arrest you or not.”
Likewise, the surveyor has gathered all the relevant evidence, and knowing what the courts have ruled on in like and similar circumstances, formulates an opinion and expresses to the landowners. Isn’t that what he was hired to do? Isn’t what the officer did (make an arrest) what he was hired to do?
In the situation of the police officer, the arrest isn’t a final binding opinion of guilt and non-appealable administration of penalty, it is his opinion that he has the evidence and in accordance with the law, that he can arrest the alleged offender.
Similarly, the surveyor’s opinion as the location of the boundary line, in accordance with the evidence and his state laws, is not binding and final to all concerned. The landowners, just like the courts final authority in criminal cases, is the ultimate binding authority.
If the surveyor finds the evidence and applies the laws appropriately (state dependent), expresses his opinion to the landowners (note that infers all concerned landowners, not just the client) and if they accept his opinion, he finishes the survey, including a map, and monuments (and maybe a report), collects his professional fee and moves on to the next scene of a crime.
> Right back to having the lawyer determine the boundaries and what authority is that?
If I'm not mistaken:
Statutory Boundary Doctrines: Surveyors
Common Law Boundary Doctrines: Surveyors
Equitable Boundary Doctrines: Judges
Equity, by definition, is a judicial relief from common and statutory law based on a judge’s assessment of fairness.
:good:
You are absolutely right in your definitions and is poor wording in the quote that I gave.
Land surveyors do not survey for equity sake!
Keith
I have been lucky enough to have surveyed in several states, some west coast, and some east coast.
I also have been lucky enough to have worked for some excellent professional surveyors in these different areas. One thing for sure I have observed is that different states/ regions have different ways of dealing with this issue. Some regions demand measurement experts to lay out a description and are much more likely to go straight to litigation if a problem arises. Some regions are much more likely to approach the whole thing with more of a "what you see is the way it is" non-litigious attitude.
I believe some of this is wealth driven, people with more money seem more willing to spend it to let someone else fight their battles, but overall some areas are less friendly when it comes to “mine” than others. In all the situations I have encountered, the better the surveyor can communicate, the less litigation they seem to attract.
Great post!
Whew!!
So, Prof Knud thinks that I and my mentors before me have been doing it right lo these many, many years.
After following some of the discussions on this board, I was starting to wonder.
It should be made clear that an attorney, well versed in the law, is in no
better a position to decide on their own motion when the occupation lines are to be
treated as the boundary.
Right there on page 3.
The surveyor, as a fact finder, ought not to and can
not decide questions of law. Stated in other words, a surveyor is well within their
purview in sifting the facts and applying rules of construction to opine the record
boundary is at a certain location and the occupation line at another location — but
the surveyor should avoid deciding the ownership boundary is at the occupation
boundary or that certain improvements across the building set-back line or
boundary are there by parol license or may be maintained by some equitable
doctrine.4 (It should be made clear that an attorney, well versed in the law, is in no
better a position to decide on their own motion when the occupation lines are to be
treated as the boundary.)
Ok, then who is the person who can decide where the land owners land boundary is?
Wild guess, but I would say
1. If the neighbors agree on something, the land owners. This could be based on discussions of the matter with the surveyor. Or may be a resolution arrived at by lawyering up - but before going to court.
2. If they can not agree - the court system or an actual judge as opposed to a surveying field judge.
So your answer to my question is not a surveyor?
:good:
I am almost afraid to ask, but what is a "surveying field judge"?
My answer to your question is:
"Wild guess, but I would say
1. If the neighbors agree on something, the land owners. This could be based on discussions of the matter with the surveyor. Or may be a resolution arrived at by lawyering up - but before going to court.
2. If they can not agree - the court system or an actual judge as opposed to a surveying field judge."
