Why is it for the courts to decide?

Well now, that's exactly why I decided to become a trained Mediator. Although I volunteer monthly in the local court for small claims and landlord/tenet disputes I have yet to get a call to mediate a real estate issue.

I have found that with real estate issues the parties are so stuck in their mind that they can't see the bigger picture and always think that they will win. With Judges trying to find an equitable solution the law will get mixed up and the decision doesn't always follow the course of "law." Basically a judge will garner those facts that support their decision and use those facts in their written decision.

One of my favorite seminar presenters is a local attorney that will show us the facts in one case and the judges decision, and then another case with identical facts and an opposite decision.

I agree in that we, as land surveyors, may be in a better position to decide these cases, or mediate them!

Dtp

LRDAY, I like your post. As I have gotten a little more advance in my experience, I have tried to be less ambigious for the reasons you stated. If you have ever sat through a Jeff Lucas seminar, he echos a lot of the same things you have just said.

Does anyone know of any recent cases where a judge has decided on a boundary definition?

All the case law that applies here is very old. Has any judge set a recent precedent?

I don't quite understand your gripe. Of course, if I can get two adjoining landowners to file a boundary line agreement when there is a fence issue I would most certainly go that route. There are, however, cases where the two parties cannot come to an agreement. That is what the court system is for. Adverse possession is a claim filed in court. Are you saying we should all be fence surveyors to avoid these disputes? The land surveyor is to report the record as it relates to evidence in the field. If there is a fence 20 feet off the record line, we disclose this on the survey. We do not have the authority to change the record or grant land to somebody who does not have title to it. If this can't be explained adequately to the landowner then the surveyor has not done his or her job. It would be great if everything was black and what but that seldom happens. You are saying the landowner expects the surveyor to fix everything. That's like expecting a doctor to cure you of all your ills.

I don't quite understand your gripe. Of course, if I can get two adjoining landowners to file a boundary line agreement when there is a fence issue I would most certainly go that route.

That is certainly the route that should be taken in certain circumstances.

There are, however, cases where the two parties cannot come to an agreement. That is what the court system is for. Adverse possession is a claim filed in court.

Adverse possession is not a boundary location doctrine. I'm fairly certain that AP is generally not the problem that Leon is talking about.

Are you saying we should all be fence surveyors to avoid these disputes?

Please. No one has every proposed that we should hold fences as boundaries in every case. That straw man is getting really, really old.

The land surveyor is to report the record as it relates to evidence in the field.

I disagree. The duty of a boundary surveyor is to answer the "where" question - "Where is the boundary located on the ground"? The answer is found in the evidence and the applicable boundary laws. Numerous courts, professional authorities, and even many statutes have laid this out so often it is not even arguable anymore. If I could, I'd require every surveyor to read Cooley's "The Judicial Function of Surveyors" often. I think that this is part of Leon's "gripe".
Our report is how we present/preserve the evidence, and our professional opinion of the location of the boundary.
Sometimes the "record" is where the evidence can be found, many times it is elsewhere, and can only be found by a proper investigation and evidence gathering.

If there is a fence 20 feet off the record line, we disclose this on the survey. We do not have the authority to change the record or grant land to somebody who does not have title to it.

Merely disclosing ambiguities is not what we should be doing. Our job is to find the boundary, if at all possible.
Title? I'm not in the business of guaranteeing title - I do however, find boundaries. Once I realized that boundary surveying has little or nothing to do with "title", my duty as a surveyor became much clearer. The only times I've ever granted land to another was when I owned it and I was selling it. Granting land is a conveyance, and only a landowner can convey land. I've never heard anybody claim that surveyors can grant land they do not own.
I still haven't found the definition of the "record line" - besides, our duty is to find the boundary line, not to merely place the courses and distances found in the description onto the ground. In most cases, nearly all evidence is better than course and distance. This again, I believe, is part of Leon's "gripe".

If this can't be explained adequately to the landowner then the surveyor has not done his or her job. It would be great if everything was black and white but that seldom happens. You are saying the landowner expects the surveyor to fix everything. That's like expecting a doctor to cure you of all your ills.

I agree with most of this. Sometimes we cannot "cure" everything. But, what I have found over the past decade is, if I do my job correctly and professionally, there are not many problems I can't solve. Where I discovered this "power" is when I started understanding that I needed to investigate, gather evidence, analyze the evidence, and properly apply the law just as if I was the judge and jury.
In explaining the results to the landowners, I've found that if I wait until I believe I have found all the evidence and have reached a well reasoned opinion before I disclose anything, my job is much easier. I would strongly suggest that we NEVER disclose "a fence is 20 feet off the record" unless and until we have all the available evidence and properly applied the applicable law(s), especially any evidence the landowners may possess.

When I go to a doctor, I certainly don't expect him to merely tell me what is wrong and "go to the judge" to find relief or a cure. I certainly won't tolerate him making the problem worse by not providing a professional service to the best of his ability.

As a landowner what I'd expect from a land surveyor is locating the boundary. The boundary I'd expect would be the one according to my states law. You refer to a record line and a fence line and disclosure of their locations on a survey plat. So where in your opinion and based upon the law in your state is the boundary line?

As a surveyor you can't deed anything to any landowner (well maybe land you own). The courts can't either. Hopefully the courts will apply the correct law in a boundary dispute. A land surveyor should have done the same prior in their boundary opinion. If you can't determine the boundary with enough confidence that it is correct you probably shouldn't express an opinion. Take some other route to resolution or withdraw from the survey.

I'd say if you mark it on the ground you've issued an opinion on the location of the boundary. Putting several lines on your plat and stating that maybe the boundary is elsewhere and sending them to court, I just don't see any value in that. If there is a record line and a fence that looks like an occupation line shouldn't you gather the evidence and facts and apply the law to sort out where the boundary line is? If the boundary line is established by law and it's not where you plot out the record line you don't deed anything by holding the boundary line.

That' one of the things that always gets thrown in these discussions. The surveyor can't deed property by a survey. I agree with that. But if the boundary is in some other location than some plotted record line, showing the boundary as the record line and not the boundary line, is that where this surveyors deeding idea comes into play (deeding from the boundary line to the record line).

I don't see anything magical about a record line. Your mileage may vary but much of the record lines in may area is pretty messed up. To put it on the ground you'd first need a time machine to find parts of the original survey, then you'd need to sort out all the 1320 club deed's that don't fit with the proper section breakdown, then you'd be looking at all the surveys which were never done by a competent surveyor but by landowners themselves (with no record whatsoever except on the ground in improvements). Once you got through all of that then you could start on all the record gaps and overlaps, light up your plat like a Christmas Tree. I suppose at that point you could throw up your hands and tell them to get a judge to decide and it happens. Actually it doesn't happen that often in my area because the same old problem from day one exists today, and that one is either the land isn't worth what a competent survey would cost or at least the area of the line between a competent survey and a landowners DIY'r clearly isn't worth what a survey would cost. So they didn't do it and still don't want to. The county itself doesn't see the value of maintaining the original surveys and providing funding for that. Unless forced by a well healed landowner, most won't get a judge to decide and will knuckle under and give up the land other than pay for a court case (many times the cost of the competent survey they couldn't afford).

I'm in Utah, and maybe we are a little bit different, but the high courts have recognized all this. The courts put the maintenance and location of boundaries clearly on the backs of landowners. DIY'rs sleep in the beds the make. Treat a line like a boundary for 20 years and you have a boundary (the line does need physical expression which the record usually doesn't). It's not all bad as that strip of land you gave up wasn't worth all that much, less than the survey. You can gold plate that strip with a "get a judge to decide." I find many surveyors are still decorating the Christmas tree and it's a lot of work, I've decorated some grand ones. I just seems like I was never honestly able to put the star on top.

It's really not my gripe but rather my experience's conclusion.

A land surveyor cannot tell a land owner where he or she owns to. Surveyors can only put the deed on the ground and that is only a professional opinion. Surveying is subjective and open to interpretation. That's why we have a court system to make them determinations.

Surveyor In Training, post: 345920, member: 10308 wrote: A land surveyor cannot tell a land owner where he or she owns to. Surveyors can only put the deed on the ground and that is only a professional opinion. Surveying is subjective and open to interpretation. That's why we have a court system to make them determinations.

Daniel,
What Arkansas case, Arkansas statute, or scolastic reference do you base this statement?

DDSM:beer:

Dan B. Robison, post: 345922, member: 34 wrote: Daniel,
What Arkansas case, Arkansas statute, or scolastic reference do you base this statement?

DDSM:beer:

Lol many years of a father pounding it in my head.

Surveyor In Training, post: 345924, member: 10308 wrote: Lol many years of a father pounding it in my head.

No disrespect intended to you, your Dad, or your mentors, but what are y'all basing this 'only place the deed on the ground' statement on??

Curious minds and all that...
DDSM:beer:

Dan B. Robison, post: 345925, member: 34 wrote: No disrespect intended to you, your Dad, or your mentors, but what are y'all basing this 'only place the deed on the ground' statement on??

Curious minds and all that...
DDSM:beer:

The deed is evidence of boundary location

Your father is in numerous company with that opinion. And I don't say that it is entirely wrong. It's just that the whole truth is more nuanced than that. A surveyor does have a certain amount of responsibility to exercise what Justice Cooley called "quasi-judicial power". There is always some, and sometimes quite a lot, of judgement involved in interpreting the true meaning of a deed description. It is far more than just running out mathematical dimensions.

Mark Mayer, post: 345927, member: 424 wrote: Your father is in numerous company with that opinion. And I don't say that it is entirely wrong. It's just that the whole truth is more nuanced than that. A surveyor does have a certain amount of responsibility to exercise what Justice Cooley called "quasi-judicial power". There is always some, and sometimes quite a lot, of judgement involved in interpreting the true meaning of a deed description. It is far more than just running out mathematical dimensions.

I totally agree but it is hard to get everything you know into a post for people to know exactly what you mean.

Surveyor In Training, post: 345920, member: 10308 wrote: A land surveyor cannot tell a land owner where he or she owns to. Surveyors can only put the deed on the ground and that is only a professional opinion. Surveying is subjective and open to interpretation. That's why we have a court system to make them determinations.

I suggest that you re-read Leon's and Brian's posts carefully and learn the knowledge that they are trying to pass on.

Think very carefully before answering this: Where is the record boundary?

You can't begin to answer that question until you are able to answer "What is the record boundary?"

Is the record boundary precisely where your measurements, following the directions and distances recited in the description indicate it is? If so, what if my measurements following the same dimensions indicate a slightly different position? Which one of us correctly identified the "record" boundary? Is your iron pipe an encroachment or is mine?

If that's how we determine the "record" boundary location, then we both need some remedial boundary training.

American Jurisprudence 2d, å¤51, Resurveys

In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, the surveyor has the right to use the field notes of the original survey.

The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located. This rule is based on the premise that the stability of boundary lines is more important than minor inaccuracies or mistakes.

A resurvey not shown to have been based upon the original survey is inconclusive in determining boundaries and will ordinarily yield to a resurvey based upon known monuments and boundaries of the original survey. However, where it is shown that there are gross errors and mistakes in an older survey which render it unreliable, a more recent survey may be used.

Note that Am Jur equates an original survey with the first surveyor on the ground and does not hold to the more restrictive interpretation found in some surveying text books that in order to be considered an original survey of a boundary, the survey must have occurred prior to the conveyance and must be called for in the conveyance. There are some jurisdictions that may hold to that, but more subscribe to the less rigid definition that recognizes the first actual on the ground establishment of the boundary. That's the more sensible interpretation as it's more likely to locate the boundaries as the parties to the original conveyance intended and recognized them to be. In most cases, the description is an attempt to describe the boundaries that the original parties placed on the ground either just prior to, or shortly after conveying the land.

Also note that the law is consistent in recognizing that the dimensions in a description must yield to physical evidence of the boundary as originally established on the ground. These are principles that most landowners might see as common sense. The common law developed in the courts was developed for the orderly interactions of common people, not to create subtle nuances ascertainable only by those with a law degree, or for those in related professions to quibble about. If you read some of the boundary survey works of the early 1900s and earlier, you see that the authors were well grounded in this "common" sense that the common landowner could make sense of. Cooley's address to the surveyors of Michigan reflected this and advises us to not lose sight of that common sense. I think that the near total absorption of surveying into civil engineering through state boards and academia throughout the middle of the last century got surveyors more into the mindset that the plan must be applied to the ground, trust the numbers, math doesn't lie, and so forth.

The basic, and possibly most important facts of boundary establishment - who established them, how were they established, and for whose benefit are they established, got lost in the fascination of technical gadgetry, precise measurement, and complex mathematical adjustment methods. Which brings us to a bit of common sense written in 1912 that every boundary surveyor should be made to recite upon being granted a license:

It is far [better] to have faulty measurements on the place where the line truly exists, than an accurate measurement where the line does not exist at all.
- A.C. Mulford, Boundaries and Landmarks

While many define the "record" boundary as the locations where the dimensions in the description land according to recent measurements, I define it as the place where the affected landowners first established and recognized the boundary, or caused to become established and accepted on the ground, either in a reasonable attempt to apply the terms of the description in the conveyance between them, or prior to the conveyance in which case the description was an attempt to put the established boundary into words. In either case, the writings in the record point toward the boundary location and it is up to the surveyor to properly investigate the full set of facts to find the precise location of the boundary. A written description can only take you so far in the real world.

I've been surveying for 35 years and licensed for nearly 20. The longer I do this, the more I realize that whether we have been granted a license that attests that we are at least minimally competent to practice or we are still aspiring to that first license, we should all remain "in training", which is one of the definitions of "practice", is it not?

The Court system only gets involved if the parties have a dispute which they can't agree to settle.

If the parties to a dispute can reach an agreement then there is no need to go see a Judge. The Land Surveyor either determines the agreeable line is truly uncertain and a boundary line agreement needs to be executed or if it is clearly a change in location then a boundary line adjustment needs to be done (.such as in the case of a land swap to cure an encroachment).

In our system title and location are handled as separate issues. Title is who owns it whatever it is and location is where it is located on the ground. Land Surveyors do location. I have personally never seen a Judge out there surveying the boundary, they expect us to do that BECAUSE IT'S OUR JOB! In the case of litigation we may be called upon to give our expert opinion and reasoning as to where the boundary is located.

Remember, generally, proof of title requires clear, convincing and unequivocal evidence while boundary location only requires a preponderance of the evidence which is a "more likely than not" standard of proof. The legal description is only one piece of evidence and it is no where near the top, physical evidence being much more heavily weighted. The primary purpose of the description is to identify the property which is the subject of the title document to which it is attached.

In boundary cases hearsay evidence is admissible therefore Surveyors should consider relevant parol testimony but most of all the Land Surveyor should properly weight the evidence and not give undue weight or exclusivity to the legal description.

An example. The deed says a property is the NE1/4SW1/4. You run out the theoretical deed and find a straight, tight, and very long standing fence, with obvious evidence of occupation on both sides, and very old iron pipes 5-10 feet from the theoretical lines. Your client, an sharp minded 80 year old, relates how he was born on the property and the fence has always been where is is and has always been regarded by all adjoiners as the boundary. His Daddy, who was in his 70's himself when your client was born, told him that the fence had been there when he was a boy. All adjoiners have similar stories and are satisfied with the current conditions. You are doing the survey to split the property into parts for the client 50 year old children.

Are you really going to just run out the deed and place your shiny new monuments 5-10 feet from the existing ones?

The deed is only a portion of the available evidence.

eapls2708, post: 345929, member: 589 wrote: I suggest that you re-read Leon's and Brian's posts carefully and learn the knowledge that they are trying to pass on.

Think very carefully before answering this: Where is the record boundary?

You can't begin to answer that question until you are able to answer "What is the record boundary?"

Is the record boundary precisely where your measurements, following the directions and distances recited in the description indicate it is? If so, what if my measurements following the same dimensions indicate a slightly different position? Which one of us correctly identified the "record" boundary? Is your iron pipe an encroachment or is mine?

If that's how we determine the "record" boundary location, then we both need some remedial boundary training.

American Jurisprudence 2d, å¤51, Resurveys

In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, the surveyor has the right to use the field notes of the original survey.

The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located. This rule is based on the premise that the stability of boundary lines is more important than minor inaccuracies or mistakes.

A resurvey not shown to have been based upon the original survey is inconclusive in determining boundaries and will ordinarily yield to a resurvey based upon known monuments and boundaries of the original survey. However, where it is shown that there are gross errors and mistakes in an older survey which render it unreliable, a more recent survey may be used.

Note that Am Jur equates an original survey with the first surveyor on the ground and does not hold to the more restrictive interpretation found in some surveying text books that in order to be considered an original survey of a boundary, the survey must have occurred prior to the conveyance and must be called for in the conveyance. There are some jurisdictions that may hold to that, but more subscribe to the less rigid definition that recognizes the first actual on the ground establishment of the boundary. That's the more sensible interpretation as it's more likely to locate the boundaries as the parties to the original conveyance intended and recognized them to be. In most cases, the description is an attempt to describe the boundaries that the original parties placed on the ground either just prior to, or shortly after conveying the land.

Also note that the law is consistent in recognizing that the dimensions in a description must yield to physical evidence of the boundary as originally established on the ground. These are principles that most landowners might see as common sense. The common law developed in the courts was developed for the orderly interactions of common people, not to create subtle nuances ascertainable only by those with a law degree, or for those in related professions to quibble about. If you read some of the boundary survey works of the early 1900s and earlier, you see that the authors were well grounded in this "common" sense that the common landowner could make sense of. Cooley's address to the surveyors of Michigan reflected this and advises us to not lose sight of that common sense. I think that the near total absorption of surveying into civil engineering through state boards and academia throughout the middle of the last century got surveyors more into the mindset that the plan must be applied to the ground, trust the numbers, math doesn't lie, and so forth.

The basic, and possibly most important facts of boundary establishment - who established them, how were they established, and for whose benefit are they established, got lost in the fascination of technical gadgetry, precise measurement, and complex mathematical adjustment methods. Which brings us to a bit of common sense written in 1912 that every boundary surveyor should be made to recite upon being granted a license:

It is far [better] to have faulty measurements on the place where the line truly exists, than an accurate measurement where the line does not exist at all.
- A.C. Mulford, Boundaries and Landmarks

While many define the "record" boundary as the locations where the dimensions in the description land according to recent measurements, I define it as the place where the affected landowners first established and recognized the boundary, or caused to become established and accepted on the ground, either in a reasonable attempt to apply the terms of the description in the conveyance between them, or prior to the conveyance in which case the description was an attempt to put the established boundary into words. In either case, the writings in the record point toward the boundary location and it is up to the surveyor to properly investigate the full set of facts to find the precise location of the boundary. A written description can only take you so far in the real world.

I've been surveying for 35 years and licensed for nearly 20. The longer I do this, the more I realize that whether we have been granted a license that attests that we are at least minimally competent to practice or we are still aspiring to that first license, we should all remain "in training", which is one of the definitions of "practice", is it not?

If you think that I am talking about laying off courses and distances only on the ground off of a deed you have misunderstood my previous comments. I guess that is my fault.

The deed is evidence of title.

eapls2708, post: 345929, member: 589 wrote: I've been surveying for 35 years and licensed for nearly 20. The longer I do this, the more I realize that whether we have been granted a license that attests that we are at least minimally competent to practice or we are still aspiring to that first license, we should all remain "in training", which is one of the definitions of "practice", is it not?

Thank you Evan...
Even with my 30 years as a professional surveyor, I am still 'in training'.
DDSM:beer: