I received an important comment to my recent post “Survey Says the Fence Encroaches – Now What?“. I think that commenter Scott D. Warner, R.L.S. Senior Director / Editor Land Surveyors United (www.landsurveyorsunited.com) has made such an important point that I want to reproduce it here, so that it won’t be overlooked. He states:
A survey should not say that something encroaches. In matters of encroachment, I would prefer that my peers in the land surveying profession refrain from using the term “encroachment” on survey maps, plats, etc. An encroachment is a legal condition, not a matter of survey, and thus should not be identified as such by a surveyor. A man-made structure, large tree, or anything else that a land surveyor can “see” during the course of a survey on the ground should be identified on the map, plat, etc. as exactly what it is, e.g. shed, tree, electric transformer; a distance should be denoted on the plat to the effect of the horizontal relationship between the boundary of the survey and the structure without expressing legal opinion.
Scott is absolutely correct! While surveyors identify ‘Potential Encroachments’ which appear to straddle boundary lines, whether ‘Potential Encroachments’ are ‘Actual Encrochments’ is subject to legal interpretation.
So, in these types of situations, the surveyor identifies relationships between the boundary line and ‘potential encroachments’ at a (relative) moment in time.
However, to identify whether these ‘potential encroachments’ are still encroachments or have served as facts sufficient to perfect possession by adverse possession (or one of the other lesser used non-written land transfer methods) or use by prescriptive easement, is the arena of the lawyers (i.e. the practice of law).
A layman may not be too keen on the separation of these two functions, but woe onto the surveyor who oversteps his or her mark into the domain of lawyers … this is considered practicing law without a license.
Just as pointedly, woe onto the attorney who – on behalf of his or her client – “advocates” for the land surveyor to dispense with their unbiased judgment and cajoles him or her to indicate a boundary line favorable to the client.
Thanks for your comment Scott D. Warner. I hope you will continue to offer your thoughts in the future and that others will as well. Cheers!