articles
Ten Things Every Attorney Might Ask When Deposing A California Professional Land Surveyor
Co-written by Elizabeth Brekhus
Legal disputes with regard to construction and boundary are common and cover a broad area – only a brief overview is provided here and this is not intended to be all inclusive. You may be involved in litigation with regard to perceived errors by a Surveyor during construction. A typical example might be a dispute over an error in the height of a structure like a storm drain or a structure built in the wrong place. Beware a rush to judgment as you have to determine if the error was made by the Surveyor, designer or contractor after the Surveyor left the site. You can often determine the true facts in a construction case because the Surveyor has a permanent record of their work proving what they did. You may also be involved in a boundary or easement dispute where you have two Surveyors with widely disparate opinions. We will focus briefly on the more opaque boundary dispute here as it relates to Title.
Previous issues have detailed Title Insurance and what you should know about it.
There is a direct link between the Policy of Title Insurance (Title Report) legal description typically shown in Exhibit A and what a Surveyor can and should do meet the Standard of Practice on a boundary survey. It is the intent of the deed that the Surveyor is retracing starting chronologically with the oldest reference and moving forward in time. The Surveyors authority and liability extends only to the current Title Report legal description as it is written as the Surveyor is bound to survey the fee parcel and easements shown therein. A Surveyor who relies solely upon a deed may then fail to disclose an easement that would have been shown in a current Title Report. Of course, if the Surveyor discovers a typographical error, missing easement or an errant description that theTitle company is willing to address then the Surveyor should contact and work with that Title Company. This is important because there are often occupation lines that differ from the fee title or record boundary lines. The Surveyor only shows lines of occupation as it relates to the record title boundary line. The Surveyor is not authorized to and does not extend the ownership beyond the lines defined in the Title Report without a Lot Line Adjustment (if the adjoiners are amenable), Agreement line or Clients retention of counsel to process a Judgment to Quiet Title to unclaimed land.
DISPELLING A MYTH: While a Record of Survey imparts constructive notice since it is recorded it does not establish a boundary line. A Record of Survey is simply the opinion of the Surveyor who created it and it is recorded at his request with little or no input as to whether it is correct. Recording a Record of Survey ahead of another Record of Survey does not give it more weight. An incorrect opinion is just that, an incorrect opinion.
There are Surveyors who when confronted with a different opinion will simply dig in their heels and state they are right regardless of the facts. When you run into that type of Surveyor you have the obvious task of separating facts from fiction because you will have two opposing experts and you want to avoid having the experts cancel each other out. In the case of Surveyors who operate without Professional Liability Insurance you may find that they are doubly unwilling to admit a mistake due to lack of coverage.
It is not uncommon to depose an expert PLS who won’t budge from their stated opinions out of simple fear of liability or they may truly believe they are correct due to lack of education or understanding on how to retrace a survey. A Surveyor may really believe they are right even if they are completely wrong so it is up to you to work around that fixed opinion and dissect the facts. A Surveyor covering up a mistake may rely on the fact that it is hard for a judge or jury to discern the real reason behind their mistake. They won’t admit their mistake for fear of liability and Board action. Admitting a mistake opens up a can of worms so they may rely upon misdirection or simply state that they followed what someone else did before them. In the absence of clear evidence following what previous Surveyors have done may be the only solution but that approach is not good enough by itself if other evidence to the contrary exists.
Note that is reasonable for a Surveyor to state that his opinion may change if additional evidence (typically unrecorded) is brought to light that sheds more light on a situation. Beware the Surveyor who will not consider additional information and reconsider their opinion.
A common mistake by Surveyors is to simply follow what a predecessor Surveyor has done without following the intent of the deed language the Title Company insured.
Simply repeating the error of a previous surveyor does not relieve the Surveyor of their responsibility to perform a true and correct survey to the standard of practice. In fact, simply following a previous Surveyor without observing the intent of the deed opens them up to liability claims.
In my opinion the Standard of Practice requires them to start with the deed and move forward independent of the assumptions made previously assigning proper weight only to those items that support the deed.
It is important to realize that Licensure simply means that the Surveyor has met the minimum standards established by Board of Registration for Professional Engineers and Land Surveyors to practice. It does not mean that the Surveyor is infallible or that their opinion is fact. To quote several people each person is entitled to his own opinion but not his own set of facts. It is your task to grasp the facts in the case to discern why you have two disparate opinions on the same Title issue. A licensed land surveyor who does not fully understand the rules of retracement and independent surveys can do more harm than good as his opinion may be relied upon and taken as fact by his client simply because he is licensed.
To help ascertain the true facts it is helpful to get the following information.
1) Education, Experience, Date of licensure, Citations by Board of Registration for Professional Engineers and Land Surveyors, # of cases.
2) REQUEST COPIES OF ALL FILES AND CORRESPONDENCE IN BOTH HARDCOPY AND ELECTRONIC FORMAT INCLUDING BUT NOT LIMITED TO:
ALL DIGITAL DATA ON CD, ALL CORRESPONDENCE, EMAILS, PHONE MEMORANDUMS, AND NOTES, HARDCOPY PRINTOUT OF RAW DATA, COORDINATE DATA, ADJUSTMENT DATA, FINAL COORDINATES, AUTOCAD .DWG(S), PHOTOS, EMAILS, HANDWRITTEN NOTES, FIELD BOOKS, RECORD MAPS, UNRECORDED MAPS:
3) DID THE LICENSED LAND SURVEYOR WHO IS TESTIFYING ACTUALLY DO THE FIELD SURVEY OR DID SOMEONE PERFORM IT FOR THEM. (Hermance v. Blackburn (206 CA 653).
4) PROVIDE INSTRUMENT SPECIFICATIONS INCLUDING COPY OF LAST INSTRUMENT CALIBRATION REPORT FROM QUALIFIED REPAIR SERVICE – SHOULD BE CURRENT WITHIN ONE YEAR.
5) AMOUNT OF EXPERT WITNESS FEE
6) DID THE SURVEYOR PERFORM THOROUGH RESEARCH OF THE PUBLIC RECORDS AND QUASI-PUBLIC RECORDS PUBLICLY AVAILABLE.
7) DID THE SURVEYOR WORK CHRONOLOGICALLY FROM THE OLDEST RECORDS FORWARD? ( MAKE SURE THEY DID NOT BLINDLY ACCEPT RECENT WORK WITHOUT CONSIDERATION FOR THE INTENT OF THE DEED AND THE HISTORICAL RECORDS).
The attorney should pre-consult with his/her Surveyor to make sure that the right questions are answered to present the true facts of the case.
Remember: THE CONTRARY MAY BE SHOWN (Gurdon H. Watles)
(1) REFERENCES: EVIDENCE AND PROCEDURES FOR BOUNDARY LOCATION; (BROWN AND ELDRIDGE)
(2) WRITING LEGAL DESCRIPTIONS (Gurdon H. Wattles)
(3) BOUNDARY CONTROL AND LEGAL PRINCIPLES (Brown)
Stanley T. Gray is a California Professional Land Surveyor. He is a founder and Principal of Meridian Surveying Engineering, INC with offices in San Francisco and San Rafael California. Mr. Gray has 27 years of experience and holds a Batchelor of Science in Surveying Engineering from California State University, Fresno.
More information can be found at WWW.MERIDIANSURVEY.COM
Elizabeth Brekhus of Brekhus Law Partners has been practicing civil litigation with an emphasis on real property law in Marin County since 1997.
Previous issues have detailed Title Insurance and what you should know about it.
There is a direct link between the Policy of Title Insurance (Title Report) legal description typically shown in Exhibit A and what a Surveyor can and should do meet the Standard of Practice on a boundary survey. It is the intent of the deed that the Surveyor is retracing starting chronologically with the oldest reference and moving forward in time. The Surveyors authority and liability extends only to the current Title Report legal description as it is written as the Surveyor is bound to survey the fee parcel and easements shown therein. A Surveyor who relies solely upon a deed may then fail to disclose an easement that would have been shown in a current Title Report. Of course, if the Surveyor discovers a typographical error, missing easement or an errant description that theTitle company is willing to address then the Surveyor should contact and work with that Title Company. This is important because there are often occupation lines that differ from the fee title or record boundary lines. The Surveyor only shows lines of occupation as it relates to the record title boundary line. The Surveyor is not authorized to and does not extend the ownership beyond the lines defined in the Title Report without a Lot Line Adjustment (if the adjoiners are amenable), Agreement line or Clients retention of counsel to process a Judgment to Quiet Title to unclaimed land.
DISPELLING A MYTH: While a Record of Survey imparts constructive notice since it is recorded it does not establish a boundary line. A Record of Survey is simply the opinion of the Surveyor who created it and it is recorded at his request with little or no input as to whether it is correct. Recording a Record of Survey ahead of another Record of Survey does not give it more weight. An incorrect opinion is just that, an incorrect opinion.
There are Surveyors who when confronted with a different opinion will simply dig in their heels and state they are right regardless of the facts. When you run into that type of Surveyor you have the obvious task of separating facts from fiction because you will have two opposing experts and you want to avoid having the experts cancel each other out. In the case of Surveyors who operate without Professional Liability Insurance you may find that they are doubly unwilling to admit a mistake due to lack of coverage.
It is not uncommon to depose an expert PLS who won’t budge from their stated opinions out of simple fear of liability or they may truly believe they are correct due to lack of education or understanding on how to retrace a survey. A Surveyor may really believe they are right even if they are completely wrong so it is up to you to work around that fixed opinion and dissect the facts. A Surveyor covering up a mistake may rely on the fact that it is hard for a judge or jury to discern the real reason behind their mistake. They won’t admit their mistake for fear of liability and Board action. Admitting a mistake opens up a can of worms so they may rely upon misdirection or simply state that they followed what someone else did before them. In the absence of clear evidence following what previous Surveyors have done may be the only solution but that approach is not good enough by itself if other evidence to the contrary exists.
Note that is reasonable for a Surveyor to state that his opinion may change if additional evidence (typically unrecorded) is brought to light that sheds more light on a situation. Beware the Surveyor who will not consider additional information and reconsider their opinion.
A common mistake by Surveyors is to simply follow what a predecessor Surveyor has done without following the intent of the deed language the Title Company insured.
Simply repeating the error of a previous surveyor does not relieve the Surveyor of their responsibility to perform a true and correct survey to the standard of practice. In fact, simply following a previous Surveyor without observing the intent of the deed opens them up to liability claims.
In my opinion the Standard of Practice requires them to start with the deed and move forward independent of the assumptions made previously assigning proper weight only to those items that support the deed.
It is important to realize that Licensure simply means that the Surveyor has met the minimum standards established by Board of Registration for Professional Engineers and Land Surveyors to practice. It does not mean that the Surveyor is infallible or that their opinion is fact. To quote several people each person is entitled to his own opinion but not his own set of facts. It is your task to grasp the facts in the case to discern why you have two disparate opinions on the same Title issue. A licensed land surveyor who does not fully understand the rules of retracement and independent surveys can do more harm than good as his opinion may be relied upon and taken as fact by his client simply because he is licensed.
To help ascertain the true facts it is helpful to get the following information.
1) Education, Experience, Date of licensure, Citations by Board of Registration for Professional Engineers and Land Surveyors, # of cases.
2) REQUEST COPIES OF ALL FILES AND CORRESPONDENCE IN BOTH HARDCOPY AND ELECTRONIC FORMAT INCLUDING BUT NOT LIMITED TO:
ALL DIGITAL DATA ON CD, ALL CORRESPONDENCE, EMAILS, PHONE MEMORANDUMS, AND NOTES, HARDCOPY PRINTOUT OF RAW DATA, COORDINATE DATA, ADJUSTMENT DATA, FINAL COORDINATES, AUTOCAD .DWG(S), PHOTOS, EMAILS, HANDWRITTEN NOTES, FIELD BOOKS, RECORD MAPS, UNRECORDED MAPS:
3) DID THE LICENSED LAND SURVEYOR WHO IS TESTIFYING ACTUALLY DO THE FIELD SURVEY OR DID SOMEONE PERFORM IT FOR THEM. (Hermance v. Blackburn (206 CA 653).
4) PROVIDE INSTRUMENT SPECIFICATIONS INCLUDING COPY OF LAST INSTRUMENT CALIBRATION REPORT FROM QUALIFIED REPAIR SERVICE – SHOULD BE CURRENT WITHIN ONE YEAR.
5) AMOUNT OF EXPERT WITNESS FEE
6) DID THE SURVEYOR PERFORM THOROUGH RESEARCH OF THE PUBLIC RECORDS AND QUASI-PUBLIC RECORDS PUBLICLY AVAILABLE.
7) DID THE SURVEYOR WORK CHRONOLOGICALLY FROM THE OLDEST RECORDS FORWARD? ( MAKE SURE THEY DID NOT BLINDLY ACCEPT RECENT WORK WITHOUT CONSIDERATION FOR THE INTENT OF THE DEED AND THE HISTORICAL RECORDS).
The attorney should pre-consult with his/her Surveyor to make sure that the right questions are answered to present the true facts of the case.
Remember: THE CONTRARY MAY BE SHOWN (Gurdon H. Watles)
(1) REFERENCES: EVIDENCE AND PROCEDURES FOR BOUNDARY LOCATION; (BROWN AND ELDRIDGE)
(2) WRITING LEGAL DESCRIPTIONS (Gurdon H. Wattles)
(3) BOUNDARY CONTROL AND LEGAL PRINCIPLES (Brown)
Stanley T. Gray is a California Professional Land Surveyor. He is a founder and Principal of Meridian Surveying Engineering, INC with offices in San Francisco and San Rafael California. Mr. Gray has 27 years of experience and holds a Batchelor of Science in Surveying Engineering from California State University, Fresno.
More information can be found at WWW.MERIDIANSURVEY.COM
Elizabeth Brekhus of Brekhus Law Partners has been practicing civil litigation with an emphasis on real property law in Marin County since 1997.
Contact Us At: |
About Us:
|
Areas of Practice:
|
Brekhus Law Partners
1000 Drakes Landing Road Greenbrae, CA 94904 P: (415) 461-1001 F: (415) 461-7356 |
|
Copyright 2014 - Brekhus Law Partners, All Rights Reserved |
Brekhus Law Partners represents clients in Marin County, San Francisco, the East Bay, and the greater Bay Area. Based in Marin County, we proudly serve Ross, San Anselmo, Kentfield, Greenbrae, Larkspur, Corte Madera, Tiburon, Mill Valley, Sausalito, Novato, San Rafael, San Geronimo, Woodacre, Fairfax, Stinson Beach, Point Reyes, Tomales, Olema, Nicasio, Marshall, Lagunitas, Forest Knolls, Dillon Beach, Bolinas, and Belvedere.