Legal Boundaries

There are many players in a boundary dispute case, the judge, perhaps a jury, the parties, the attorneys, and maybe some witnesses. When a surveyor is hired as an expert in such a case, it is not the surveyor’s responsibility to win a boundary dispute case, but the surveyor can play a significant part towards that end.

Even if not hired as an expert, a surveyor could also be called upon to defend a boundary determination previously made. Therefore, it is incumbent upon the practitioner to make every boundary determination as if going to court and defending that decision. With this assumption in mind, let’s look at a few things the prudent practitioner might want to consider.

To begin with, you need to assume there will be a competing survey performed by a competing surveyor if you go to court. This means that one surveyor is going to be a winner and the other will be a loser. If it’s not already obvious, you want to be the winner. Losing the case can have other negative repercussions.

If you are the only surveyor in court this is not necessarily a positive sign. It could mean one of two things: the other side can’t afford a surveyor or they think your survey is so bad they don’t need a surveyor. There are many example cases where there was only one surveyor in court and the client still lost the case–the primary reason being the surveyor didn’t make a boundary determination that could win in court.

You need to keep the ultimate objective in mind when you prepare any survey of property. It needs to be almost self-explanatory. This is a big job because few people outside of the surveying community can read a map of survey let alone understand the results, and your survey could end up in court before you or without you. Keep things as simple as possible. Use appropriate notes, accentuate the important, explain the results, and make sure your survey passes the commonsense test. For example, are you attempting to move that which should not be moved? That will not pass the commonsense test.

Once in court, the ultimate objective will be to lead the judge out of the case. Trust me, when it comes to boundary disputes and surveyors, judges want out. This objective is as applicable whether you are in court voluntarily or if you are there involuntarily. If you didn’t expect to be in court, then you were summoned because your survey is already part of the litigation and, at that point, your survey is what it is. If your survey is self-explanatory with well-reasoned results, it will come to your aid and not to your detriment. In any event, once in court you and your survey will need to make common sense out of what is often nonsensical.

You need to understand that any boundary dispute case can be solved by a judge with a plaintiff and a defendant. In a boundary dispute case, no attorneys are required, and surveyors are not a necessity. Now, most people wouldn’t go to court without an attorney and in a boundary dispute many feel they need a surveyor. Good for them. But neither is required which tells us volumes about resolving boundary disputes.

In a pure boundary dispute case, there are no legal arguments and measurements are not necessary for a resolution. An adverse possession case on the other hand is a title fight, but a pure boundary disputes case is a factual question of location. So, the ultimate test of your property boundary determination is: Did you correctly answer the factual question of location? That’s the only question.

Too often the surveyor in court can’t supply the way out for the judge because they can’t see the forest for the trees—trees being a metaphor for the measurements. The parties don’t have that disability and can focus on the issues that matter. This is why surveyors aren’t needed in a boundary dispute case and are often counterproductive when they are.

Surveyors try to explain the “what” and the “how” of the survey, and in the process tend to lose credibility with the court. When you lose credibility, the case is over. It is much more important to explain “why” the resulting boundary determination was made. Next time around we will look at addressing the “why” issue.

The purpose of this column is to encourage your questions on legal issues that affect the surveying profession. You are invited to send your questions to the editor of xyHt.