A newly coined term for folks who think that when they were issued a license as a Professional Land Surveyor that they also were issued a JD and had a swearing in ceremony as a judge.
The surveyor does have limited leeway about evidence and and how to use it, but he does not own the land and if significant differences between the record and occupation are found, it is time to be talking to the effected owners about solutions, what their rights may be including conveying some court actions in similar circumstances. If conciseness is reached to withdraw the encroachment, to exchange deed documents or replat the lots, the surveyor is obligated to assist in accomplishing their choice while getting the record into agreement with their solution. Owners and the courts can make decisions about boundary location within the terms of the applicable Laws. A surveyor making a decision that ownership lines have moved is denying the owners their rights and assuming authority he does not have. Sometimes hostility will lead to court action and I don't want to be required to explain why I assumed the authority to remove the owners and courts rights and obligation to choose a resolution that effects property rights to property I don't own, might end up buying the property without the right to possess title.
jud
I figured as much!
". . . A surveyor making a decision that ownership lines have moved is denying the owners their rights and assuming authority he does not have. . ."
Who is saying the surveyor is making a decision that the ownership lines have moved?
A surveyor is making the decision of where the ownership lines are!
Unless you go with the bogus theory of protraction lines are the ultimate boundary locaters and any position of the actual boundary is in a different position?
"Land surveyors do not survey for equity sake!'
AMEN!
Why are you a surveyor?
Whew!!
Yes,
Certainly refreshing.
😐
Jud,
It is not a personal insult, at least was not intended to be. It is just that most of these discussions come down to the supposedly fact that a surveyor can't make boundary determinations and it takes a judge to do so.
Why do you have clients that hire you to locate their boundaries?
If it takes a lawyer and a judge, then so be it.
I just get irritated with surveyors who cannot make a boundary line determination and stick to it.
Obviously, the first thing to do is talk to the client, landowner and proceed.
Keith
OK I edited my post. If you read what I was really saying you will probably find that we are not much different is our opinion. Surveyors do have limited leeway, but they are limited because they do not own the land and accepting a monument a half foot or so out from the ideal I have no problem with but when it gets out beyond that in a platted subdivision or other excessive amount depending on what the norm is, I do do not have the right or authority to choose who gains and who looses, I don't want that right either. I never have been talking about only accepting the absolute record, I have a time or two found that in the field, it is not the norm.
jud
I really don't think we are in disagreement. Just how some statements are made and interpreted!
Just too much talk on here about deed only measurements and protraction lines only.
And that is not what land surveying is about.
In my opinion of course.
Knud E. Hermansen always refers to two lines that exist in the field, occupation and record lines. In a perfect world record line and occupation lines would always be the same. As Surveyors we go out and hopefully retrace the line as originally run (record line) using the rules of construction and the common law for our jurisdiction. And yes sometimes the occupation may be the best evidence of the record line, but many times the occupation has nothing to do with the record line. Its in these cases where there is no question where the record line is that I believe Knud is talking about.
I build my fence over the record line onto your property, the fence now being the occupation line. Do you want the next surveyor in to locate the occupation line as the new record line even though the original record line is not in question. Only the landowners or the Court can apply Equitable Boundary Doctrines. Even though you may have the opinion that a Court would put the boundary at the occupation line maybe the landowners would agree to the record line, that's their right, not ours. Its their land.
The one thing I have learned about Court decisions, especially at the Trial level is that anything can happen. As you know decisions are sometimes more affected by who the Attorneys and Expert Witnesses are, then by the facts.
Knud E. Hermansen always refers to two lines that exist in the field, occupation and record lines.
Oh really?
And back to the ole bogus theory of protraction lines only for evidence and ignore the actual boundaries that have been established.
Been hearing this bogus stuff for years and it is still bogus.
There are no two lines and that premise is very confusing and detrimnetal to stable boundaries.
Protect the plat is another bugga boo that has no meaning.
Keith
The police officer analogy is a good one.
"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.”"
This is exactly what the police officer does, with the exception that they don't tell the person. But they must present what they found to the prosecutor who then must present it to a "neutral judge" (one who would not be later hearing the case), and the judge must decided if there is probable cause for a warrant; if not, the case can not go forward. Unless the officer is personally witness to a crime in progress.
The surveyor provides the evidence to the client, who then provides it to the court if they wish. The court makes a preliminary finding of whether there is enough evidence to proceed with the action. If not, the case will be dismissed.
Knud Hermansen summed up the prevailing conventional wisdom in the profession today.
The obvious problem with this is 99% of boundary surveys are not litigated.
If I am arrested by a police officer I get my day in court (or accept a plea).
On the other hand, the Land Surveyor has no authority to impose a solution either way.
The thought seems to be that it is acceptable to draw the heavy line at the record line (and monument it) which is imposing an expensive burden on the losing party to prove the line is elsewhere such as at an occupation line.
I realize the boundary settlement doctrines can be difficult to apply. The trial court sees it one way, the appellate court sees it the other way. California has probably thousands of published agreed boundary doctrine cases and sometimes similar fact sets get decided in opposite directions by different opinions; the differences can be subtle.
We don't seem to have a good practice model at this point. Part of the problem is the Professionals who discuss this matter in a serious, published manner can be counted on one hand.
If only property owners would simply use the monumented boundaries and record changes and agreements then life would be simpler. It would help if we didn't hide the monuments. If I ran the world every lot corner would have a big, obvious concrete monument (or Stainless Steel) and property owners would be educated on boundary issues.
So a quick example, two 200' by 200' parcels. Parcel A to the left and parcel B to the right. The owner of parcel B hires Joe the fence guy to put up a fence on the line between parcels A & B. Joe was once told that the power company all ways puts the poles on the property line so he starts at the road by the pole and builds the fence 200' towards the rear. 15 years pass and the owner of parcel A needs a survey for some project he is doing. You go out and find the original surveyors corners on all of the corners of both parcels A & B (record lines). Low and behold the fence (occupation) is actually 10' onto parcel B based on the original surveyors corners.
Do you just say based on the laws of my jurisdiction the boundary is now the fence line, stake that line, issue a plat and leave? I don't. You explain the facts to your client, explain your opinion as to what a court of law may say and explain to him his possible options. He may decide to do nothing and acquiesce to the fence line, he may wish to enter into a boundary line agreement with parcel B, maybe the owner of parcel B is willing to relocate the fence or maybe the owner of parcel A is willing to give B permissive use of the property. The key is these are decisions for the land owners to make not the surveyor.
You do not hire a professional, be it a Doctor, Lawyer, Accountant or Surveyor to make decisions for you, but rather to advise you, so that you can make educated decisions.
:good:
Good post.
> The surveyor does have limited leeway about evidence and and how to use it,...
I agree with your post, Jud.
It may surprise some, but I would even go so far as to remove the word limited. It is up to the surveyor to analyze the evidence and provide his professional opinion on the boundary location.
But the only thing the surveyor has provided is an opinion. The surveyor does not have any authority beyond that opinion and that opinion is not binding on any of the property owners involved. Hence, the people who have the authority to make such decisions are the property owners or the court system.
First, do no harm...
I think it comes down to what is best evidence of the boundary in any given case.
1. If you have reasonably certain physical evidence of a line such as original monuments then that is likely to hold over a fence because property owners can't use a boundary line agreement to transfer property.
2. If you have physical or documentary evidence of a survey which established a different location than the Deed measurements would indicate today then I feel it is right to follow the old survey especially if it has been in place and accepted for decades.
3. If you have a Deed measurement which can be tied to a physical monument known to be the same monument or in the same location as when the Deed originated then stake it unless there is a serious reason not to, such as buildings over that line.
4. If you have a deeded lot width and there is an occupied lot of that width which would be shifted to a different location by a remote tie then the remote tie would probably yield.
5. If the boundary can't be staked with objective certainty then the Land Surveyor should use the best available evidence which includes physical lines of occupation and witness testimony.
These are just general guidelines and I am sure there are exceptions available. If it was all chiseled in stone they wouldn't need us. The first smartphone that comes out with centimeter level positioning would end our profession. Obviously it isn't a measurement issue, though, it is one of judgment.
I think too there is some confusion caused by the ultimate issue rule which doesn't allow anyone to testify to what the law is, not even Attorneys. This would lead to a competition to see who could get the most Attorneys to testify as experts in the law and would usurp the Judge's authority to instruct the Jury. Obviously rules of evidence and procedure apply to cases being litigated in a Court room but not necessarily in cases not being litigated such as an ordinary boundary survey where no one objects to the findings. Even Attorneys give opinions they would not be allowed to utter as Experts in a trial such as in Title Opinions in some States.
