by jeffery n. lucas professional land surveyor/attorney...

By Jeffery N. LucasProfessional Land Surveyor/Attorney at Law

© 2002-2014 All Rights ReservedE-Mail: [email protected]

WHAT WENT WRONG?A Study in Surveyor Errors and Omissions

By Jeffery N. Lucas

Professional Land Surveyor

Attorney at Law

© 2002-2014 All Rights Reserved

DISCLAIMERDISCLAIMERDISCLAIMERDISCLAIMER

I Am Not Your Attorney.

This seminar is not intended to provide you with legal advice. Seek legal advice from an attorney who is familiar with your particular situation and the facts in your particular case. The example contract clauses contained herein (if any) are intended as examples only and should be reviewed and modified by competent legal counsel to reflect variations in applicable state and local law specific to your circumstances.

JEFF’S 10 COMMANDMENTSJEFF’S 10 COMMANDMENTSJEFF’S 10 COMMANDMENTSJEFF’S 10 COMMANDMENTS

ON ERRORS AND OMISSIONSON ERRORS AND OMISSIONSON ERRORS AND OMISSIONSON ERRORS AND OMISSIONS

1. Errors and Omissions are

Mistakes,

Everyone Makes Mistakes

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COMMONWEALTHCOMMONWEALTHCOMMONWEALTHCOMMONWEALTH

v. v. v. v.

CJM, P.C.CJM, P.C.CJM, P.C.CJM, P.C.

Superior Court of Connecticut

Judicial District of Hartford at Hartford

2008 Conn. Super. LEXIS 2774



2. A Mistake Does Not Necessarily

Constitute Negligence, But

Negligence Will Always Hinge on a

Mistake

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“We note that a mere difference of professional opinion does not establish professional negligence. Moreover, professional negligence is not established by proving that a professional opinion turned out to be erroneous. Rather, to recover for professional negligence based on an incorrect professional opinion, one must establish that the professional fell below the standard of skill and knowledge commonly possessed and utilized by members within the profession when rendering his opinion.”

Lawson v. Winemiller, 1995 Ohio App. LEXIS 2043.

BELL v. JONESBELL v. JONESBELL v. JONESBELL v. JONES

District of Columbia Court of Appeals

523 A.2d 982; 1986 D.C. App. LEXIS 495

December 31, 1986

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3. You Must Know The Law That

Governs Your Practice

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“More specifically, the ancient equity maxim is ignorantijuris non excusat. This is commonly translated as ‘ignorance of the law is no excuse.’ This is not a new proposition. … A fundamental premise of our legal system is that parties are presumed to know the law, and ignorance of the law is no excuse. It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally. This concept is also applied in the non-criminal, regulatory law context.”

Wyoming Refining v. United States, 58 Fed.Cl. 409, 414, 416 (U.S. Claims 2003).



“Surveyors and engineers should be acquainted with those laws and practices that are closely associated with their profession. They should be familiar with their legal rights, responsibilities, liabilities, and duties under various

circumstances.”

Clark, Frank Emerson, Fundamentals of Law for Surveyors, 1939, International Textbook Company, Scranton, Penn. at 1.



“Understanding and applying the correct law (including the laws of evidence) are unquestionably part of the surveyor’s duties.”

Robillard, Walter G., Donald Wilson and Curtis Brown, Evidence and Procedures for Boundary Location, Fifth Edition at 39.

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GILBERT v. GEIGERGILBERT v. GEIGERGILBERT v. GEIGERGILBERT v. GEIGER

Court Of Appeals Of Wisconsin

2008 Wisc. App. LEXIS 21

January 9, 2008



4. Do Not Practice Outside Of Your

Area Of Expertise

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Ohio Administrative Code

The Engineer or surveyor shall:

(B) Undertake to perform assignments only when the registrant's consulting support are qualified by training and experience in the specific technical fields involved. …

4733-35-03. Responsibility to the public.



“Ethics are often unenforceable. True professional stature arises from obedience to

the unenforceable.”Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.

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BULL BULL BULL BULL

v. . . .

PINKHAM ENGINEERINGPINKHAM ENGINEERINGPINKHAM ENGINEERINGPINKHAM ENGINEERING

Vermont Supreme Court752 A.2d 26

April 21, 2000



5. Be An Expert Evaluator Of

Evidence, Not Simply An Expert

Measurer

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“I have been led to adopt in my own work the ‘Principle

of Cumulative Evidence.’ It seems that, either rightly or wrongly, it is incumbent on the surveyor to collect all the evidence in each case and to carry his work along the lines of the preponderance of probability.”

Mulford, A.C., “Boundaries and Landmarks,” 1912, D.Van Nostrand Co., New York, at 42-43.



“In nearly all cases, while some of the data are either ambiguous or even conflicting, there is usually a large

preponderance of evidence which point more or less clearly to one solution of the problem, and my own experience, containing some few examples, leads me to believe that this generally indicated solution is probably the right one.”

Mulford, A.C., “Boundaries and Landmarks,” 1912, D.Van Nostrand Co., New York, at 42-43.



“The surveyor analyzes the evidence, and decides, on

the basis of laws of surveys and court decisions, what weight is to be given to each fact, and how this will guide the resurvey. These decisions are subject to revision as new evidence is discovered. Most disagreements between surveyors arise from failure to find all available evidence.”

Sipe, Henry F., “Compass Land Surveying,” Henry Sipe, Elkins, West Virginia, 1965, at Page 115.

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“A surveyor may be able to compute, make drawings, use instruments, and stake precise engineering projects, but he or she is not qualified to make boundary locations without

understanding the laws of property and

boundaries and the laws of evidence.”

Robillard, Walter G., Donald Wilson, Curtis M. Brown, Evidence and

Procedures for Boundary Location, Fifth Edition, 2006, John Wiley & Sons, Inc., Hoboken, New Jersey, at 19.



“The typical modern day surveyor sees himself as an expert evaluator of evidence. He strives to arrive at the same opinion of boundary location regardless of whether he was hired by his client or his client’s next door neighbor.”

Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys, Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and Trust Law

Section American Bar Association, 1986.

STRANSKY v. GIRL STRANSKY v. GIRL STRANSKY v. GIRL STRANSKY v. GIRL

SCOUTSSCOUTSSCOUTSSCOUTS

New Jersey Superior Court

Appellate Division

925 A.2d 45June 15, 2007

30

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31

32

33

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34

35

36

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37



6. The Law Is The Law—Our “Rules

of Surveying” May or May Not

Coincide With The Law

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“We agree. Gardner did not record his survey to advance the object of the litigation, that is, to resolve the boundary dispute. By his own admission, he filed it based

on an erroneous perception of a misguided duty. And once he did so, the Nelidovs were impotent. Because they could not expunge the recorded survey while the quiet title action proceeded, the survey actually accomplished what the litigation might not—permanently

clouding their title.”

Zen Temple v. Nelidov, 2006 Cal.App.Unpub. LEXIS 2766.



“The plaintiff's surveyor testified that he had measured the entirety of Block 54 and found a discrepancy between the actual measurements of the land versus the land as shown on the plat. The surveyor's solution to this was to

say that all of the lots in Block 54 would have to be reduced in width by 2.3 feet. The plaintiff's surveyor took that position even though there had been no proceeding to replat the block and even though the westerly property owners in Block 54 were not parties to this litigation.”

Andrews v. Barton, 974 So.2d 1144 (Fla.App.2008)



“The district court was not persuaded by Grant’s arguments. The court found: ‘Grant’s credibility was diminished by his unbending mindset to pursue’ his philosophy that ‘it is more important to be correct in terms of where the actual measurement should be than it

is to follow the footsteps of prior surveys.’ The court further noted Schmitz’ and Walker’s testimony was that Grant’s survey would conflict with existing infrastructure and lines of possession.”

Appeal by Janet Reed, 243 P.3d 382, (Kan.App.2010)

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“He also opines “the deeded dimensions carry more legal weight than the monuments.” In fact, Stefanik opined that even if he had found the two pins from Clarke’s survey—located from the original Perry survey in 1975—it would not have made any difference to him in

preparing his survey. “I would have gone with the deeded dimensions that are in the public record.” When asked whether deeded distances rule over angles and bearings on map, he replied, “In the State of Connecticut, they do.”

Chebro v. Audette, 2010 Conn.Super. LEXIS 2449, 4 (Conn.Super.2010)



“In this boundary line dispute, the plaintiffs, through their expert witness, rely on a property survey, that utilizes fixed monuments identified in the deed while the defendant, through his expert witness relies upon a survey that utilizes only distances to formulate the property boundary. This court cannot ignore clear

Connecticut case law indicating that where there is a

conflict in identifying boundary lines, monuments will

control over distances.”

Chebro v. Audette, 2010 Conn.Super. LEXIS 2449, 17 (Conn.Super.2010)



7. The True Boundary Line Between

Two Coterminous Landowners is a

Question of Law and of Fact

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“The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.”

Walleigh v. Emery, 163 A.2d 665, 668 (Penn.Super. 1960).



“Texas law is well settled that unless the facts are undisputed, the location of a survey line, as it was run on

the ground by the original surveyor, is a question of fact for the jury. The Texas Supreme Court has explained that ‘as to what are boundaries, is a question of law for the determination of the court; as to where the boundaries are upon the ground, is a question of fact to be determined from the evidence.’”

TH Invest. v. Kirby Inland Marine, 218 S.W.3d 173 (TexasApp.2007)



“While the construction of a deed of conveyance is a legal problem, the actual location of the plot conveyed is a question of fact.”

Beck v. Brown, 73 A.2d 594 (N.J.Super.1950).

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McGHEEMcGHEEMcGHEEMcGHEE v. YOUNGv. YOUNGv. YOUNGv. YOUNG

Florida Court of Appeals

Fourth District

606 So.2d 1215October 7, 1992

49

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8. The Only Boundary Line that

Matters in a Boundary Dispute is

the “Property” Boundary Between

the Coterminous Landowners.

The Ultimate Issue Rule

You are Responsible for the “Ultimate Issue” in the Case

• The “Ultimate Issue” in any boundary dispute case is the “property” boundary between the disputing parties. No other line really matters.

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Federal Rules of Evidence

Rule 704.

Opinion on Ultimate Issue. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.


Ohio Rules

Rules of Evidence

Article 7. Opinions and Expert Testimony

Rule 704. Opinion on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable soleybecause it embraces an ultimate issue to be decided by the trier of fact.


“In all courts, evidence is the purview of the jury (or judge as ‘trier of the facts’ if there is no jury); the law is always in the purview of the court. A Georgia decision permitted the surveyor to testify as to his opinion on the ultimate issue of the case without invading the province of the jury, so long as the subject matter was an appropriate one for opinion evidence. This is quite unusual. North Carolina still retains the majority approach in that the expert land surveyor cannot give an opinion as to where a true boundary line is located, for that decision is the ultimate fact in issue to be determined by the jury from the evidence presented during the trial.”

Robillard, Walter G., Lane J. Bouman and Hon. Robert Shelton, Clark on Surveying and Boundaries, Seventh Edition at 49.

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“Rule 704, provides that opinion testimony ‘is not objectionable because it embraces an ultimate issue to

be decided by the trier of fact.’ This rule abrogates the doctrine that opinion testimony should be excluded for the reason that it goes to the ultimate issue which should be decided by the trier of fact.”

Green Hi-Win Farm, Inc. v. Neal, S.E.2d 614, 616, 617 (N.C.App. 1986).


“No witness can give opinions on the ultimate fact that

is being tried. Permitting an expert to tell the members of the jury what they must decide is usurping their exclusive rights. … The surveyor is more or less limited in the responses to the questions asked.”

Robillard, Walter G. and Donald A. Wilson. Evidence and Procedures for Boundary Location, Fifth Edition at 509-510.

The Ultimate Issue Rules

“A Mississippi court ruled on the question of whether the surveyor could be asked, ‘Where is the true line?’ The court replied: ‘This is not a matter about which

they could give their opinion.’”

Robillard, Walter G. and Donald A. Wilson. Evidence and Procedures for Boundary Location, Fifth Edition at 509-510. According to the endnotes, quoting from the case of Gichner v. Antonio Title Co., 410 F.2d 238 (Miss.1969).

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The Ultimate Issue Rules

Mississippi Rules of Evidence

Rule 704. Opinion on ultimate issue.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.



Commentary to Rule 704.

Rule 704 abolishes the “ultimate issue rule” which existed in pre-rule Mississippi practice. The ultimate issue rule was often unnecessarily restrictive and generally difficult to apply. More often than not the invocation of the rule served to deprive the trier of fact of useful information. Rule 704 clarifies much of the confusion over the ultimate issue rule. An opinion is no longer objectionable solely on grounds that it ‘invades the province of the jury.’



Commentary to Rule 704.

The abolition of the ultimate issue rule does not result in the admission of all opinions. It is an absolute requirement under Rules 701 and 702 that opinions must be helpful to a determination of the case before they are admissible. Furthermore, under Rule 403 evidence is excluded which wastes time.

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“The purpose of the surveys in this boundary dispute is to locate accurately the boundary

between the plaintiff's and defendants'

property.”

Andrews v. Barton, 974 So.2d 1144 (Fla.App.2008).



The Lone Detractor

“In keeping with recent legal decisions, we have somewhat modified some of the terminology [in this book]. For instance, seldom is the term ‘property line’ or ‘property boundary’ used. It is our belief that property rights, including property boundaries, are legal questions and as such are not addressed by the land surveyor.”

Robillard, et al, Evidence and Procedures for Boundary Location, 5th Edition.

Page 1.



Even Brown Recanted in Later Years

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“In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years, there have been cases, one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession….”

Brown, Curtis M., “Land Surveyor’s Liability to Unwritten Rights,” 1979. Reprinted in “State Manual, Surveying Society of Georgia,” 2000.



“Can a surveyor monument the lines of ownership obtained by unwritten means? To my knowledge absolutely nothing in the law prevents him from doing so. Clearly from my conversations with attorneys, this is not the unauthorized practice of law. If the surveyor chooses to claim that a possessory right has ripened into a fee title, he is certainly privileged to do so. The real question is What should he do?”

Brown, Curtis M., “Land Surveyor’s Liability to Unwritten Rights,” 1979. Reprinted in “State Manual, Surveying Society of Georgia,” 2000.



That Remains Our Question Today:

What Should We Do?

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It’s Clear Why You Are Licensed:

Ohio Administrative Code

In order to safeguard the life, health, property and welfare of the public and the state of Ohio, to maintain integrity and high standards of skills and practice in the professions of engineering and surveying, the following rules of professional conduct… . [Emphasis added]

4733-35-01. Preamble.



It’s Pretty Clear What Clients Want:

“On cross-examination, Burns stated that he had been retained by Dowdell to conduct a survey of the property because Dowdell wanted to know the location of his property line.”

Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470 (Tenn.App.2007).



It’s Clear What People Think We Do:

“In July 2001, the Jones’ purchased Parrish’s lot, along with eleven other noncontiguous lots. [Based on a survey of the property, Jones] removed both gates and had a bulldozer ready to ‘reconstruct the driveway.’ After [Gresham] told him that he could not give him permission to do that, [Jones] told the Greshams they had two weeks to get a survey done to prove they owned the driveway.”

Jones v. Gresham, 963 So.2d 581, 582 (Miss.App.2007).

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The Lawyers Think We Adjudicate Boundaries:

“The surveyor, having made an evaluation of the evidence, forms an opinion as to where he believes the lines would be located if fully

adjudicated in a court of law.

Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,

Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and Trust Law




The Lawyers Think We Adjudicate Boundaries:

“Merely locating the lines described in a deed on the

ground is not adequate for establishing the physical

limits of a property ownership. …”

Williams & Onsrud, “What Every Lawyer Should Know about Title

Surveys,” Reprinted in “Land Surveys, A Guide for Lawyers,” Real

Property and Trust Law Section American Bar Association, 1986.



Judges Think We Give Professional Opinions:

“It was only after Milam [Richardson’s surveyor] generated his opinion about the B-to-A fence that the Richardsons claimed they own the land north of that fence. The question remains

whether Milam’s analysis is legally correct.”

Larsen v. Richardson, 211 MT. 195, 27 (Mont.2011).

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“The flaw in Perry's methodology is the strength of Webber's. When Perry's opinion rests primarily (if not exclusively) on information derived from the deeds, Webber's analytical

base is more thorough.”

Farrell v. Gardner, 2003 Me.Super. LEXIS 250, 13 (Me.Super. 2003).




“He considered the record descriptions, as did Webber. However, Webber also took into account historical information of the type set out above and properly used it as extrinsic evidence to generate other important information, such as the location of a pin that, because it is a monument, is entitled to great weight.”

Farrell v. Gardner, 2003 Me.Super. LEXIS 250, 13 (Me.Super. 2003).




“Finally, a series of other factors, when viewed in

combination with the ones noted above, ultimately

persuades the court that Perry's opinion suffers from

flaws that render it less probative than the conclusions

reached by Webber. For these reasons, the court

accepts Webber's opinion regarding the location of the

disputed property line.”

Farrell v. Gardner, 2003 Me.Super. LEXIS 250, 14-15 (Me.Super. 2003).

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DOWDELL v. COTHAMDOWDELL v. COTHAMDOWDELL v. COTHAMDOWDELL v. COTHAMCourt of Appeals of Tennessee

2007 Tenn. App. LEXIS 470

July 25, 2007

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9. When The Storm Flags Are Flying,

This is a

Stop-look-and-listen

Moment—Not a Rush To Drive Irons

in the Ground.

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“This surveyor's mark was likely the spark that

ignited this dispute. When the marker was placed near the Cothams' fence, the Cothamschallenged the finding saying they had always owned at least to the ditch line and perhaps past the ditch line to the north.”

Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470, 28, 29 (Tenn.App. 2007).



“Burns testified as an expert at the bench trial but explained that the actual field work had been completed by his associates…. As to the final issue

of the location of the property line, the trial court weighed the testimony and noted the discrepancies in the surveyor's testimony.”




“Based on the testimony as a whole, the trial court weighed the evidence, adjudging the credibility of the witnesses. We find no cause for concern that the trial court found the testimony of the surveyor

troublesome. The surveyor testified as to his results but noted that he had not conducted the actual survey.”


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CAMPBELL v. CARLCAMPBELL v. CARLCAMPBELL v. CARLCAMPBELL v. CARLAlabama Supreme Court

395 So.2d 480February 27, 1981

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10. If Surveying Were Easy,

Anybody Could Do It.

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WHAT WENT WRONG?WHAT WENT WRONG?WHAT WENT WRONG?WHAT WENT WRONG?

“Without superior knowledge, we have an inferior profession. … One of the reasons for giving surveyors the exclusive privilege of marking boundaries is to prevent the unskilled from monumenting lines that encroach on the bona fide rights of others.”

Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.


“The surveyor does have moral obligations to the public and among them is the duty to never

subtract from the rights of adjoiners. Every boundary survey for a client establishes the boundary of an adjoiner.”



“The major deterrent to our becoming a learned profession is our low requirements for the right to practice. So long as we have low admission

requirements, we will have low standards of

practice and low public opinion.”


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KENDALL v. LOWTHER

Supreme Court of Iowa356 N.W.2d 181

September 19, 1984

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“When a surveyor is employed to establish the position of a point or line in which two or more persons are interested he should act as an honorable, unprejudiced party and seek to find the true position, regardless of consequences.”



“It is therefore of the utmost importance that the surveyor should act in the same manner as

does a judge on the bench rather than as a

partisan employee of one of the persons

concerned. By performing his duties in this way, the surveyor makes friends and also gains the reputation of being just.”


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FARRELL v. GARDNER

SUPERIOR COURT OF MAINE

2003 Me. Super. LEXIS 250

December 2003

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“A surveyor is guided by legal principles in his

evaluation of the evidence for a boundary line

location. One such principle is the presumed priority of

conflicting title elements that determine boundary line

location. … The resolution of conflicts between written

and unwritten rights is one of the most difficult

problems for both surveyors and lawyers. …”

Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,”





“If the surveyor’s evaluation of the evidence…is

eventually upheld in a court of law, it is because

the surveyor has arrived at a comprehensive and

well-reasoned answer rather than because he has

arrived at the theoretically correct answer. Again,

there are no ‘true’ answers waiting to be

discovered; only well-reasoned answers.”

Williams & Onsrud, “What Every Lawyer Should Know about Title Surveys,”



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RAPIDES PARISH RAPIDES PARISH RAPIDES PARISH RAPIDES PARISH

v. v. v. v.

GRANT PARISHGRANT PARISHGRANT PARISHGRANT PARISH

Court Of Appeal Of Louisiana,

Third Circuit

924 So.2d 357

February 22, 2006

All pictures and diagrams courtesy of Frank Willis and used with permission.

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by jeffery n. lucas professional land surveyor/attorney...

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