Traditionally, and almost universally, professional surveyors have been taught to survey the written title and to direct their client to seek the advice of an attorney for guidance regarding any potential title or boundary conflicts. Likewise, surveyors have—virtually across-the-board—shied away from giving opinions as to ownership where there are conflicts, other than possibly with regard to junior/senior rights. There are, however, a number of authoritative sources that would tell surveyors otherwise.
Before we explore those sources, however, we first need to consider why the average property owner hires a surveyor. Is it to learn where their written title lines are? Or do they really want to simply know what they own? Most surveyors will agree that it is most assuredly the latter. The problem lies in the fact that while surveyors know that clients think we are telling them what they own, we also know that’s not what we are doing. But seldom do surveyors explain the difference between written title and ownership in a way that will help their clients understand that difference.
An underlying problem is that the average property owner equates their deed, and surveyor’s markers on the ground, with ownership. How many of you have set a monument 6 feet over a fence and had the client ask, “You mean I own 6 feet on the other side of the fence?!” And when you explain to them that you are not telling them what they own—you are merely marking where their deed line is—they are left completely baffled because they think ownership and their deed are one and the same. At best the client will later tell her affected neighbor that he needs to move his fence back ٦ feet. And we know the worst thing that will happen—the client tears the fence down before her neighbor even returns from work that day. The ensuing litigation will engulf both neighbors for years.
How can surveyors help clients and neighbors avoid costly mistakes and the angst of litigation?
If you are wedded to the idea of simply surveying the written title, one very simple thing to do is to make absolutely certain that the client understands what you are doing and what you are not doing when you perform a boundary survey. They need to understand that there is frequently a difference between what their deed says and what they actually own; and how and why that can happen. Surveyors must be confidently knowledgeable about, for example, acquiescence, adverse possession, and practical location—how they operate, what the requirements are, and how ownership can move from the written title line to a line of possession or occupation.
If the client’s written title has potentially been affected by one of those doctrines, give them your opinion (but not legal advice) based on your experience and knowledge as to what their situation might be. You should also, as Jerry R. Broadus, Esq., LS, wrote, “Tell your client in advance what services you can provide and how you can help resolve conflicting evidence, and that in some cases an attorney should be consulted before the survey is finalized.”1
On the other hand, if professional surveyors want to enlarge the scope of their practice, there is plenty of support—at least in some cases—for giving opinions on, and actually surveying to, what they believe to represent the ownership line.
What kind of support exists for this sort of practice? We might start with the Federal Rules of Evidence.2 Rule 702 states, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.”
And Rule 704 follows with this, “An opinion is not objectionable just because it embraces an ultimate issue.”
When considering what those Rules mean in the context of a surveyor’s expert testimony, we need to ask ourselves, what is the plaintiff asking the court to do in a title or boundary dispute? Do they want the court to merely tell them what their deed says? Or are they asking the judge to rule on what they own? Just as property owners are expecting the surveyor to tell them what they own, they are likewise asking the court to do the same. They could not care less what their deed says, they want to know what they own (as noted above, they most likely do not even understand the difference anyway).
That being the case, the Rules of Evidence say that—assuming they are qualified pursuant to Rule 702—experts may give opinions on the ultimate issue before the court, which is ownership! And if we look a bit more broadly, what is a boundary survey other than a professional opinion? If you can give an opinion in court as to ownership, what is there to prevent you from opining on ownership with your survey itself?
Curtis Brown, who had spent much of his professional life writing and teaching to the contrary, suggested the following to surveyors in a 1979 paper, “Nothing in the law prevents the surveyor from deciding who has ownership to encroachments, and he may monument ownership lines rather than written title lines.” He followed with “In some circumstances the surveyor may be justified in monumenting the line that he believes to represent [the] true ownership line.”3 (Before going further, it is important to note that in the same paper Brown also stated that in cases involving contentious relationships like adverse possession and estoppel, “the surveyor is probably foolish to try to establish ownership.”)
What other support is there for taking a more assertive stand on ownership? Dr. John G. McEntyre, LS—lead professor of land surveying at Purdue University in the 1970s, 80s and 90s—wrote along with graduate teaching assistant Darrell R. Dean, Jr., LS, “[T]here is support for the land surveyor to take an affirmative and responsible position with respect to identifying and making recommendations concerning boundary lines established by unwritten means.”4
There is plenty more including the fact that there are many court cases that also point the surveyor to ownership. But the purpose of this column is to simply raise professional surveyors’ awareness as to possibilities that they may not have heretofore considered. Can professional surveyors be far more helpful to their clients than they generally have been? The answer is a resounding, Yes.
1 Washington State Common Law of Surveys and Property Boundaries, Jerry R. Broadus, 2009
2 Check your own state’s Rules of Evidence; most are identical or very nearly so
3 Land Surveyors’ Liability to Unwritten Rights, Curtis M. Brown, NMACSM Legal Seminar, January 1979
4 Establishment of Boundaries by Unwritten Methods and the Land Surveyor, John G. McEntyre and Darrell R. Dean, Jr., Indiana Society of Professional Land Surveyors and School of Civil Engineering, Purdue University, circa 1976.