The Quasi-Judicial Role of the Land Surveyor

Selected Quotes From:
“Legal Principles of Property Boundary Location on the Ground in the Public Land Survey States” by Ira M. Tillotson, PE, RLS

(Some text is highlighted herein for emphasis)

What is Title to Land?

“Many people think that a good title to land automatically gives boundary security, but it does not. Good title is based upon an unbroken chain of documents in the official records showing the ownership from the first patenting down to the present time. A chronological set of copies of these documents is called an abstract. The actual, claimable, sueable, legal boundary on the ground may not coincide at all with the title boundary. This fact is little understood by lawyers, abstractors, title insurance people, engineers, real estate dealers, land owners, and many licensed land surveyors. The abstract probably won’t pay any attention to the deed records of adjoining properties if they have a different title history. It is not unusual for two properties to overlap on the ground but have perfectly clear individual titles.

The boundary on the ground is determined by the law, and according to the evidence of the writings in the deed records of your property and all adjoining properties. These writings must be related to monuments on the ground and to the past actions of surveyors and landowners in the immediate area.

Deed writings that can’t be related to the ground are voidable under the Statute of Frauds as being too vague.”

What effect can a bad survey have on your property?

“The actions of a subsequent surveyor may change your boundary. For instance, if your neighbor hires a surveyor to establish the common boundary between the two of you, and that surveyor is in error, his erroneous line probably well become the boundary unless you take appropriate action. You should never acquiesce in a boundary determination unless it is the best possible location of the true title boundary. If you discover that your boundary does not agree with your long-continued occupation lines, take some action with your neighbor. Neither one of you has good title to the overlap – in most states – and in effect, the land isn’t completely useable by either of you. Investigate the situation jointly with him, and hire a surveyor together, Take his results to a lawyer and have him formalize and record a title change or boundary agreement, and get copies into both abstracts. Remember, you will both lose if a court must resolve your disagreement.”

How do my actions affect my property lines?

“The common law holds that long continued use of land can give a title to that land that supersedes written title. Prescriptive and adverse titles are gained by such long use. However, these titles are questionable until formalized in writing and recorded.

You may lose land by your own acts. For instance, if you build a fence several feet over on your own side of the boundary, and your abutting neighbor is led to believe that the fence is on the line, and he acts on that belief, such as building a house across the actual line, your side can be stopped from going into court and testifying to the true position of the line. The actions of surveyors and landowners have a large effect on property boundary locations.

A property boundary can be easily determined on the ground if there is an official record showing an unbroken chain of evidence of monuments, surveyor actions, and landowner actions. Unfortunately, this official record usually does not exist. The only persons who can straighten out the mess and bring the record up to date, short of court action, are a thoroughly competent, professional land surveyor and a lawyer, working together.”

Doesn’t Title Insurance protect my boundaries?

“Regular title insurance doesn’t insure anything as to your boundary on the ground. Special policies covering the boundary on the ground are very expensive and of questionable value. The best boundary insurance a landowner can get is the preservation of all the original survey markers and records and a jealous supervision of his boundaries to make sure no surveyor or landowner encroaches in any way whatever. If anyone such as a builder or contractor destroys one of your property corners, see your attorney immediately. He may wish to force re-establishment of the corner at the builder’s expense or bring a suit for civil damages. You may lose considerable land because of this destruction. Don’t forget that a corner that has been destroyed and subsequently re-established is not free from the possibility of an encroachment suit from the adjoining landowner unless he signs an agreement. Bear in mind that someone, sooner or later, will have to pay for re-establishment of a lost corner at a cost of from a few hundred to several thousands of dollars. Make the culprit who destroyed it put it back at his own expense immediately. This applies to destruction by city, county, state and federal employees as well, and they are the usual malefactors.”

How can I protect my property boundaries?

“You must check on the activity and results of surveyors operating on adjoining properties. Right-of-way survey parties often tie a suggestive pile of stone as being the corner when the real corner exists and lies several hundred feet away. If the real corner should become lost, that erroneous tie may be construed as the nearest and best evidence of the true position of the original corner, and you may lose land.

Do not let people use your land for any purpose without a written recorded lease. If the public habitually uses your land as a pathway, or roadway, that use may ripen into an easement by prescriptive right. The signed lease stops the running of prescriptive rights and adverse possession.

If your neighbor grazes or cultivates some of your land, or drives over it habitually, or builds a fence on it, take action. If you don’t necessarily want him to stop, make him sign a lease, perhaps for a consideration as little as one dollar.

Take care to point out your boundary to your neighbors, and occupy your land up to your boundaries. If you are not sure of your exact boundaries on the ground, hire a really good surveyor. …”

How can a surveyor help me protect my property boundaries?

“The question often arises as to whether a private land owner can legally perpetuate the Public Land Survey corners and other property corners that control the boundaries of his own land. The answer is simple; yes, he can. In fact, if he doesn’t see to it no one else will. If perpetuation requires the creation of new accessories or references, you should hire a surveyor to do it. The reason you need a surveyor is that this kind of perpetuation is of little value unless it is made a part of the public record in some manner. The surveyor will know how to get this into the record, and his statement in the record will be believed by the courts and other surveyors without question if it is properly done. Your own statements will carry less weight.

You may perpetuate your own corners without a surveyor by drawing people’s attention to the corner so it will not be destroyed inadvertently. You can do this by piling a ring of stones around the corner, painting bearing trees, erecting guard posts, building enclosures around the corner, and pointing it out to your interested neighbors.”

What is the role of the surveyor with respect to my property?

“A competent property surveyor is in effect a minor court. He must decide questions of fact and questions of law. He must search the records for all pertinent deed writings, survey records, and court records and relate these records to evidence he finds on the ground. He seeks and takes the testimony of everyone who has knowledge of the problem at hand. He evaluates all the evidence he can gather from the record, the ground, and from testimony, and makes his own decision. He marks his decision on the ground by durable, exclusively identifiable monuments and accessories. He assumes the responsibility for his work by showing all the pertinent data such as records, evidence, reasoning, and old and new monuments on a plat which he signs, dates, seals, and publicly records. His plat is “… an edited, accurately scaled, dimensioned, pictorial representation of his original notes and record research in sufficient detail that the retracement surveyor or reviewing lawyer need have no further recourse to his original notes.”

The ethical surveyor is impartial and will make the same decisions whether he is paid by one landowner or the other. He must make his decision in such a way that it will be upheld by the court, if tried. Obviously he must know property boundary law. In the words of the late Justice Cooley, of the Michigan Supreme Court:

“Surveyors are not and cannot be judicial officers, but in a great many cases they act in a quasi-judicial capacity with the acquiescence of the parties concerned and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions … “     …”



Selected Quotes From:
“Papers from the 1968 National Fall Convention; American Congress on Surveying and Mapping” by Ira M. Tillotson, PE, RLS

The Property Surveyor and the Law

“  The property surveyor is charged with “following in the footsteps” o the original surveyor in making a retracement survey, if the boundary he is seeking is governed by an original survey. Even new surveys have some elements of retracement because original corners must be found, judged, and tied to. When “following in the footsteps,” the surveyor must gather all the evidence he can – – notes, plats, testimony, deeds, court decisions, and on the ground observe distances, angles, monument lines, accessories, fences, use lines, hedges, buildings, and roads. Some of this evidence will be of record and some not, but almost certainly it will be conflicting. This evidence must be gathered as to all abutting properties, as well.

Then the surveyor must correlate all this evidence and decide which is controlling with due regard to the common sense-common law rule that he must use the “nearest, best, most material, least given to error.” His decision must be, of course, exactly the same whether he is paid by property owner “A” or abutting owner “B”. Next the surveyor documents his decisions by placing permanent, exclusively identifiable, hard to remove monuments on the ground, and records them on a plat. This plat should be a pictorial, accurately scaled, edited representation of his field notes and evidence collected, in sufficient detail so that the following surveyor will need no other recourse. Now he should attempt to record this plat in the public records.

In this process of the replacement survey I have just described, the surveyor has been a judge; He has performed the same function as a judge sitting in a court of law. The surveyor’s courtroom is the field. But he is presented with certain facts in a given situation, just as is a judge, and he renders an impartial opinion, just as does a judge. It is important to realize that the surveyor gathers the physical evidence and makes the scientific measurements, but his decision is distinctly legal, not scientific in nature. His plat of his survey is a legal judgment as to the meaning of the scientific facts before him, based on his knowledge of the 1 aw of property and boundaries.

This function is precisely the function of a judge in a court of law. It is a tremendously important function in today’s society. I know of only one other profession, that of attorneys themselves, and one occupation, that of the police, in which the members are called upon to make judgments regarding the law. Attorneys, like surveyors, review facts placed before them and advise their clients of the legal requirements dictated by the facts. Their job is to make an educated guess as to what a court of law would state on the same set of facts. The police, of course, constantly make legal judgments as they enforce the law, determine what arrests can be made, and what actions can be .legally taken. Whether one is an attorney, a police officer, or a surveyor, he will eventually have to justify his legal judgment to a colleague, a client, the public and finally the court itself. Of course, judicial functions in this country are vested in the courts of law; surveyors cannot actually assume the authority of judge, although his function may be the same. When determining property lines the surveyor places his stakes and presents a plat showing where he believes that the property lines should be, his belief being founded upon what he thinks the court will uphold in the event of litigation involving his survey. He is constantly interpreting what the statutes say and what the courts have determined to be right and wrong, but such interpretation is correct only to the extent to which the courts will uphold it. He is in the unfortunate position of being the middleman who must determine for a client what he thinks the court will accept.

Once the survey is completed, the judicial determination by the surveyor has been made, and his plat recorded, the surveyor may find that he has to defend his judicial determination. He may have to justify his survey to another surveyor who surveys an adjoiner. He may be involved in
a boundary dispute, in which his client and a neighbor have a disagreement over the boundary. His survey may support his client, and he may
find himself in a position of having to take sides. His work may be questioned in other ways. However it may come about, the surveyor may
sooner or later find himself in a court of law, testifying in order to defend and explain his survey.  …”