Right of Entry?
Putting Rules in Context
Not so! Why do Surveyors Disagree?
The Purpose of Measurements
Jerry Broadus has researched Washington cases to the hilt. It is inexplicable to me, having practiced surveying in Washington for 20 years and attended so many of Jerry’s workshops and seminars, that Washington surveyors (including the Board by the way) still insist on staking the deed lines.
One of the cases Jerry cites, 21 Wash. 371, 58 P. 250 SENGFELDER V. HILL (S. Ct. 1899), goes to great pains to point out that the purpose of the deed description is to find the property in question – not to define its limits.
In Rucker v. Steelman, 73 Ind. 396, it is said: “It is not the office of a description to identify the premises, but to furnish the means by which they can be identified.” In Ames v. Lowry, 30 Minn. 283 (15 N.W. 247), it is said: “Parol evidence is, and must of necessity be, always admissible to identify the property described in and conveyed by a deed, to ascertain to what property the particulars of description in the deed apply.
Get it? Use the description to find the property and then use the measurements and descriptive terms to find the boundaries – monuments and such.
Maybe it hurts our self-esteem, it shouldn’t, but I was taught by my elderly boss’s father, in his book “A Handbook for Practising Land and Engineering Surveyors” by H.G. Foxall, http://www.amazon.com/Handbook-practising-land-engineering-surveyors/dp/0909761000 the purpose of a surveyor’s measurements is to help following surveyors find his monuments. That shouldn’t be a recipe for sloppy measurements, either, because if the monument is not found the measurement might be all that remains to identify where the monument was.
Surveyors are always complaining that anyone can write a legal description – and anyone does. Why would we then stake out that description as if it were divinely inspired and ignore conflicting evidence of where the true boundary actually lies?
Of Boundary Surveyors and Oxymorons
I’m confused. After surveying for 45 years on two continents I’m told by paragons of our profession that I may not call the lines I stake boundaries.
It happened at an annual convention I recently attended to further my continuing education credits. It happened more than once and I was confronted by several surveyors whose professional credentials are venerated.
The executive director of the surveyors’ board first broached the subject to me. At the next workshop the professional surveyor members of the board joined in. They were supported by a room full of my learned professional colleagues.
“But,” I protested with futility, “why do our codes define the practice of land surveying in terms of boundaries?” Those are the new boundaries we create in subdivisions, I was informed. Only attorneys, judges and title companies can determine existing title boundaries.
Undeterred, I confronted the nationally acclaimed surveyor/attorney who was giving a presentation on the new ALTA standards in the next workshop. “What do you mean that heavy line on our ALTA map is not a boundary? What layer is it on in ACAD?”
“When the engineers and architects design the Walmart Super Store using our base map will they read our disclaimers about the fine distinctions between deed lines and boundaries?” “Even if they do – will they be impressed?” “Where should I set the pins? Should I personally direct the bulldozer operators when they clear the site?”
“How is a title attorney in NY City more qualified to discern the boundaries of the site than a professional surveyor who has combed its surface and plumbed its depths?”
“What do you mean I can’t call them encroachments?” “If I decide they are encroachments I’ll call them out – if not, I’ll change the legal description and exclude them.” Wrong things to say in that room.
I first grappled with this unsettling conundrum back in the early 80s. A prescient surveyor named Chuck Karayan was delivering his “Initial Point Seminars” on the West Coast. Every modern surveyor in the county had a new top mount EDM and was an instant expert measurer. Chuck revolutionized our thinking about boundary surveying by insisting that we stake the actual legal boundary where we find it. “Otherwise, if it’s too hot for you get out of the kitchen.”
“What?” “Let me get this straight, are you saying that if we are staking out a minor partition and there is a 10 year old fence over the line we should set our pins under the fence?” “Yes!” “You stake the boundary and rewrite the legal description!”
Five years later the Washington Court affirmed the concept in 41 Wn. App. 457, HALVERSON v. BELLEVUE – title transfers the second ten years clicks over – with or without a court ruling to satisfy our Statute of Frauds penchant. “The law is clear that title is acquired by adverse possession upon passage of the 10-year period. EL CERRITO, INC. v. RYNDAK, 60 Wn.2d 847, 855, 376 P.2d 528 (1962); MUENCH v. OXLEY, 90 Wn.2d 637, 644, 584 P.2d 939 (1978). The quiet title action merely confirmed that title to the land had passed to Halverson by 1974.”
Of course, this was all quite dizzying to a burgeoning professional surveyor. Naturally, I talked about it with my wife. She was incredulous. “How can you call yourself a professional if your profession does not recognize your most basic function – to tell people where their boundaries are?”
“Look,” she said, “we want to know how much we owe in taxes, right?” “So, we go to a CPA and she does all her ciphering and fills out the forms for us.” “We ask – do you have the authority to declare that that is the full amount of what we owe the government for taxes?”
“No,” she says, “but my signature on the bottom of that form carries weight with the IRS and the courts.”
Nobody disputes that CPAs are professionals.