Professional Land Surveyors Cannot Abdicate Their Responsibilities - Complete Research.
Updated: Sep 23, 2019
Limiting liability is a legitimate concern for surveyors—and for professionals across the spectrum. However, it is also important to remember that recognition as a professional brings with it a level of responsibility that cannot be avoided by quick disclaimers or clever denials. Thorough research and professional results are mandatory rather than optional.
When considering the necessary time and effort to invest in research, and analysis, surveyors tend to focus on standards of practice set by a Board of Examiners. However, courts and judges have their own expectations that often exceed those set by licensing boards.
Consider this quote from the Texas decision Scheller v. Groesbeck, 231 S.W. 1092 (1921): “That in the construction of written instruments the cardinal rule to be followed is to arrive at the intention of the parties and that all parts of a deed shall be given effect if possible, and where there is a particular description followed by general description the latter shall yield, though where it is possible the real intent must be gathered from the whole description, including the general, as well as the special, and that all instruments in a chain of title when referred to in a deed will be read into it, are all rules of law so familiar that citation of authorities is unnecessary.” Implicit in this passage is the recognition that, in order to properly interpret an ambiguous description, prior conveyances in the chain of title also must be reviewed. In order to properly retrace boundaries, surveyors must understand and conform to this important common law principle.
Land surveyors cannot abdicate their responsibility to know, understand, and apply appropriate rules of construction. This standard was highlighted by the California courts in Iacovitti v. Fardin: 127 Cal. App. 2d 348; 273 P.2d 926 (1954): “The surveyor testified that, according to his survey and calculations, the precise frontage actually conveyed was 25.81 feet or 25 feet 9 3/4 inches, which is some 9 inches more than 25.03 feet “more or less” mentioned in the deed. The surveyor also testified that appellants’ lot with the claimed encroachment still has a frontage available for building of 25.10 feet, which is .07 of a foot in excess of the 25.03 feet mentioned in the deed. The surveyor admitted that his calculations were predicated on the metes and bounds descriptions in the appellants’ and respondents’ deeds and disregarded the Southern Pacific deeds and the intent on the part of that company as disclosed by those deeds to divide the original area into two equal grants to Steele and Schafer; that if such intent were considered a different result might follow; that it was not a matter of surveying but of interpreting the deeds; that, according to his interpretation, there was an 8-inch overlap, but that according to the interpretation of respondents’ surveyor there was no overlap.” [Emphasis added]
This case is remarkable for the casual attempt by the surveyor to dismiss any express or implied responsibility for knowing and applying appropriate rules of construction. The maps and conclusions of the surveyor quoted above were dismissed as being contrary to established legal principles. The work of the respondents’ surveyor—who correctly determined the significance of all relevant deeds—was upheld.
In an explicit recognition of the concept of constructive notice, the Tennessee court concludes that individuals attempting to determine the limits and nature of railroad rights-of-way have constructive notice of all language in the original state railroad charter, as seen in Railroad v. French: 100 Tenn. 209; 43 S.W. 771 (1897): “A person who builds upon the right of way of a railroad does so at his peril, no matter what paper title he may have from a third person. And all persons are affected with notice of the extent of the right of way when it depends upon the charter provisions.” [Emphasis added]
This quotation refers to the numerous legislative acts that are generally critical for determining property rights along railroad corridors. It explicitly includes “all persons,” including surveyors, attorneys and landowners.
In Roll v. Bacon: 160 Ohio Misc. 2d 23 (2010), the Ohio court condemned the work of three separate surveyors who had researched deeds back as far as 1906. Their work was rejected as incorrect because they should have pursued the chains of conveyance for the relevant tracts back to the ultimate source descriptions circa 1860: “The court finds that the surveys conducted by AAAAAA, BBBBBB, and CCCCCC do not reflect the intent of the grantor, as evidenced by the chains of title. In the original deed from Sims to Brown, dated April 30, 1860, the grantor states that the property is conveyed “Reserving the right of way along Smith’s line to the Williamsburg road.” From this, the court finds that Sims intended to convey the property with a reservation of a right of way along Smith's line, which became the Old Schoolhouse Lot.” [Note that, in this quotation, the names of the surveyors were intentionally omitted]
The Ohio court also observes that attempted reliance on the Marketable Title Act is misplaced. In determining original intent, the act has no relevance.
In the recent Tennessee decision Whitelaw v. Brooks: 138 S.W.3d 890 (2003), a surveyor was found guilty of negligence for failure to conform to existing standards of practice. The surveyor: “…in derogation of the rules promulgated by the Tennessee State Board of Examiners for Land Surveyors, failed to create his survey using the latest recorded deed to the property and instead utilized a tax map provided by the Tax Assessor's office. Hall's survey resulted in an encroachment on Whitelaw's remaining parcel of land.”
This case provides yet another unfortunate lesson to those licensees who prefer quick and easy jobs to professional-level performance.