A 70Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE
A few weeks ago, I appeared on NSPS Executive Director Curt Sumner’s radio show (broadcast weekly on AmericasWebRadio.com) along with well-known author and speaker Jeff Lucas and noted New Jersey surveyor Bruce Blair. The theme of the program was to encourage professional surveyors to broaden their view and understanding of the role they can, and arguably should, play in helping resolve boundary and title problems between property owners.
In order to begin a conversation on this topic, we have to acknowledge two key points. First, is that there are only two persons who can truly resolve a disputed boundary or title problem. Those persons do not include attorneys, title companies or surveyors. And, in a sense, they do not even include judges and juries–at least not of their own volition.
No, the only persons who can resolve such conflicts are the two owners involved. And they can do it one of two ways: the painless, low-cost way–by agreement–or by the expensive, painful litigation path–which is when judges and juries get involved.
The second key point–one that I believe is completely indisputable and critically important that surveyors recognize–is that the average land owner believes what a surveyor does is "tell me what I own." Of course, surveyors know that in the United States, they do not have the legal authority to determine ownership; but there is a distinct and serious disconnection when property owners think they do.
So if surveyors cannot determine ownership or resolve boundary and title problems, why promote the idea that they should take a more active role in doing just that? Michigan Supreme Court Justice Thomas Cooley in his seminal 1881 treatise entitled The Judicial Functions of Surveyors addressed this issue head-on by stating:
It is always possible … that the surveyor may usefully act as a mediator between parties, and assist in preventing legal controversies by settling doubtful lines.
It is a well-known fact that surveyors, in the process of conducting boundary surveys, very frequently encounter and identify potential boundary and/or title conflicts. Such problems most frequently manifest themselves as deed overlaps, ambiguous descriptions, potential claims of unwritten rights (typically adverse possession, acquiescence and parol agreements, but also including estoppel), and simple boundary disputes.
When faced with these problems, many surveyors go ahead and–based on the best available evidence–set corners representing their interpretation of where the record title lines and corners belong. The impetus for setting those corners, in many cases, may have been a state’s regulatory standards, although doing so is also an expression of the surveyor’s historical role. But, most often, setting those corners also results in lines that are contrary to what the owners–before the surveyor showed up–had believed to be their boundaries, and had acquiesced to.
In any event, the result is that one owner is inevitably left happier (and likely confused) and the other is left upset and confused. Why? Because the two owners believe the surveyor has just told them that one "owns" to the line marked–which, as often as not, is 5 feet over the fence and includes half of the neighbor’s driveway. One or both owners are now poised to spend tens of thousands of dollars litigating something that–until the surveyor showed up–was a boundary that had been mutually acquiesced in. And perhaps worst of all is that the surveyor’s guidance is often limited to the rather cavalier "You need to contact an attorney."
So, how do surveyors balance their responsibility to survey lines of written title, with the reality that in doing so they are often condemning owners to a litigation hell and neighborhood despair; all while keeping in mind that they themselves cannot determine ownership or resolve disputes? Join me next time when we will delve further into what Justice Cooley said, and explore how surveyors might apply `early intervention.’
Gary Kent is Director, Integrated Services at The Schneider Corporation in Indianapolis. He is past-president of ACSM and chairs the ALTA/ACSM Committee for NSPS and the Liaison Committee for ALTA. He is on the Indiana Board of Registration and lectures both locally and nationally.
A 70Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE