Anderson/Griffin Properties v. Wallace Construction & Barrett

Anderson/Griffin Properties v. Wallace Construction & Barrett was debated in North Carolina and settled about a decade ago. It’s still just a pup in “court years” and we are looking at the decision of an appellate court. Despite the simplicity of the decision there’s whole lot of monkey motion and organ grinding to tally up here. So, let’s start with this month’s totals.

• • 1 plaintiff
  • 2 respondents
  • 1 trier of fact
  • 1 order by the Clerk of the Court per North Carolina General Statutes § 38-3
  • 8 Surveyors as follows:

1.) Guy Fisher
2.) Jack Ritchie
2.) Jack Ritchie oops, he wasn’t licensed
3.) Jim Craddock
3.a) Jim Craddock, again.
4.) Carol Rushing
4.a) Carol Rushing, again.
5.) Greg Flow
6.) Thomas Harris
7.) Robert Spidel
8.) Mel Thompson

• 2 axles.
• An undisclosed number of timber hacks.
• 9 years of litigation.
• 54 findings of fact.
• 6 conclusions of law.
• 15 challenges to those findings of fact.
• 3 witness surveyors in agreement.
• 1 witness surveyor running it by the numbers.
• 11 specific citations of standards for the court to follow.
• 1 general citation of monuments controlling the calls.
• 2 statements that the objective of the survey is recovering corners not re-establishing them.
• 1 application of the terms “accretion” and “erosion”.
• 1 railroad.
• 1 U.S. Highway.
• 1 SDR (Stop, Drop, n Roll)
• 1 P.O.T.U.S. quote- that’s a rare treat in Decided Guidance.
• 2 citations of “What a boundary (is)…is a matter of law, where it is located…is a matter of fact”.
• 4 references to “walking in the shoes of the original surveyor”.

Boy howdy, that’s quite a list! I’m surprised that the petitioner’s consul didn’t object to the presumption that every surveyor can afford shoes to walk in. Buh-duh-dunt, “I’ll be at the comedy club all week, tip your waitresses well”. Okay, back to the day job, this case is Survey 101 stuff. Monuments control, mistakes are isolated as mistakes, and for gawd’s sake don’t expect the most ridiculous interpretation of a broken plat to serve as evidence of anybody’s intent.

So, let’s “go all NTSB” on this case and reconstruct the scene if the accident. “The hierarchy of evidence that surveyors typically use to draw a survey map gives artificial or man-made monuments precedence over courses and distances. However, Spidel used the courses and distances methodology to determine the corners of the property and the boundary between lots 97 and 98 because he thought this methodology was more reliable in this case.” The brake pads started to fade right here. The standard of care was disregarded and replaced with a personal preference. I get uneasy when my colleagues express results through some sort of clairvoyant decision-making process. They’re not necessarily wrong, but my rebuttal is “What evidence do you have to support that decision?” Evidence leads to fact, and fact leads to conclusions. We don’t have the authority to decide where a corner belongs, but rather the obligation to recover evidence of where the corner landed. This is best summarized by the honorable Chief Justice Thomas Cooley. ”When a man has had a training in one of the exact sciences, where every problem within its purview is supposed to be susceptible of accurate solution, he is likely to be not a little impatient when he is told that, under some circumstances, he must recognize inaccuracies, and govern his action by facts which lead him away from the results which theoretically he ought to reach. Observation warrants us in saying that this remark may frequently be made of surveyors.”

Smoke really started rolling off the petitioner’s brakes with this observation by the court. “…Rushing “built this line” by starting at a point to the north of Hwy 601 and proceeding with the distances of the other lots until he “established” the front common corner of lots 97 and 98.” The terminology emphasized here is synonymous with the tasks performed during a land partition rather than a retracement. I’m sure Rushing knew what he was talking about but I’m not sure the court interpreted his words the same. Remember when President Obama said, “You didn’t build that”? Well, in this case he’d be right, and this is a constructive place for a surveyor to stick that sound byte for future looping. The court then observed ”…Furthermore, Rushing also testified that he was hired to “reestablish” the line between lots 97 and 98. The trial court found that Rushing “tried to restore footage to petitioner’s lot 97,” rather than honor the original axle irons that marked the boundary of lots 97 and 98. That is, Rushing did not attempt to locate the original boundary line; he simply tried to restore the shortage that arose due to the floating error by establishing a new line.” The court concluded that Rushing may have not applied the appropriate standard of care.

We are privy to fifteen of the fifty-four findings of fact in this case. Although not a riparian case, somebody offered a riparian concept to support the position of a monument. “The existing rear axle iron contended by Wallace as the rear common corner of the parties is located on the north side of Muddy Creek. The C.M. Bost Estate map calls for an iron at the corner to be located on the north side of Muddy Creek. The existing axle iron is on the inside bend in the creek making it unlikely that the creek eroded the bank causing the iron to be moved over the years. Water in a creek erodes on the outside of a creek bend where the water flows faster. Accretion, not erosion, usually occurs on the inside of a bend in the creek because the water flow is slower.” This is solid testimony leading to a finding of fact. Sharing an understanding of riparian effects helped the court understand the natural conditions of the land.

This month’s S.D.R. lies within this observation. ”Rushing performed a survey of the disputed boundary line in 2000 before this litigation began, and Rushing re-did that survey in 2002 based on additional discoveries toward the southern portion of the lot.” I have no polite way to say this. You can’t un-shit your pants. I don’t mean to discredit Rushing because things do come up after we assemble our evidence packages. Furthermore, both of Rushing’s opinions straddled the proceedings which may have diminished the stability of his amended opinion. I’m merely speculating. However, for the cause I will urge everybody to exhaustively search for evidence and document every effort whether successful or failed. Our degree of diligence is paramount in supporting a conclusion of law. Good old Fred Boreman always said “If we can’t find it Jase, let’s dig deeper than anyone else to make sure they can’t find it either.” He applied that logic to both shoveling and research. The thought being that our conclusion would actually be conclusive and stable.

Beyond the obvious “monuments control” lesson here, we see the importance of diligence and perhaps the diminished force of an incomplete opinion. It seems like a “clerk appointed” survey holds no more water than any other survey. In this case, as observed by other courts throughout history, adding another surveyor doesn’t fix the problem. I can’t help but to speculate that the honor of serving the clerk of court might muddy the definitions of “ropes” and “robes” in the duty of a civic minded surveyor. The Appellate Court was quick to remind us that our function is retracement.

Sidebar:
Barbershop Barrister—An Item of Debate

First things first in the Barbershop. North Carolina Barbeque is hands down the best barbeque in the world. Carolina Barbecue is the original American barbeque and is served the way God intended pork to be eaten, with vinegar. The American Surveyor Magazine officially honors of the Tarheels’ perpetuation of this great American tradition. Okay, now onto my debatable point…

North Carolina General Statutes on Boundaries § 38-3 offers a land owner an opportunity to petition the Clerk of the Court and assert a boundary claim. The Clerk is authorized to adjudicate the location with the aid of the County Surveyor. The process seems like a good idea to quiet title where a defendant is a John Doe or silent. I’m not sure that happens with land except maybe with a gap or some ancient title defect, or maybe with someone deceased??? However, in Anderson it just seems like it prolonged the inevitable trial. It also forced an unnecessary eighth survey and no doubt cost somebody money and time.

From my perch it seems like attempts at legislating common law never really work. Maybe I only see the failed results, but when legal cookbooks fail, they fail big. Here’s my take after a few hours of watching C-Span in the 1990’s. A legislature tries to package the wisdom of the court in a shipping box. They must cut breathing holes in it, or the law will suffocate and die. After everybody gets their cut, we end up with a useless shell that doesn’t really hold anything in it or keep anything out, but it sure as hell makes it to our doorstep, half empty, soaking wet, and crushed. The moral is you just can’t automate the equity of a court.

In Anderson the Clerk faithfully followed the letter of the law and was stuck with forcing a non-binding opinion down the throats of anyone dumb enough to accept it or too poor to fight it. I like to think I’m the latter, btw. On the other hand, we’ve all had our share of crazy “boundary dispute” calls that have ended with the statement “Ma’am, you don’t need a Surveyor, you need the number of a good behavioral therapist”. So, if the process smokes out the riff raff then it might just serve a good and higher purpose. I suspect I’d take that good with the bad on this one. I also wonder if the attorneys are obligated to exhaust this precursory step or if they can skip it based on the merit of the case. North Carolina has about 390 years of experience at this game. I’ll yield to the General Assembly and grab another pulled pork sammich with a side of N.C.G.S. § 38-3:

(a) Petition; Summons; Hearing.—The owner shall file his petition under oath stating therein facts sufficient to constitute the location of such line as claimed by him and making defendants all adjoining owners whose interest may be affected by the location of said line. The clerk shall thereupon issue summons to the defendants as in other cases of special proceedings. If the defendants fail to answer, judgment shall be given establishing the line according to petition. If the answer deny the location set out in the petition, the clerk shall issue an order to the county surveyor or, if cause shown, to any competent surveyor to survey said line or lines according to the contention of both parties, and make report of the same with a map at a time to be fixed by the clerk, not more than 30 days from date of order; to which time the cause shall be continued. The cause shall then be heard by the clerk upon the location of said line or lines and judgment given determining the location thereof.

(b) Appeal to Session.—Either party may within 10 days after such determination by the clerk serve notice of appeal from the ruling of the clerk determining the said location. When notice of appeal is served it shall be the duty of the clerk to transmit the issues raised before him to the next session of the superior court of the county for trial by a jury, when the question shall be heard de novo.

(c) Survey after Judgment.—When final judgment is given in the proceeding the court shall issue an order to the surveyor to run and mark the line or lines as determined in the judgment. The surveyor shall make report including a map of the line as determined, which shall be filed with the judgment roll in the cause and entered with the judgment on the special proceedings docket.

(d) Procedure as in Special Proceedings.—The procedure under this Chapter, the jurisdiction of the court, and the right of appeal shall, in all respects, be the same as in special proceedings except as herein modified.