orange-big.png

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! orange-small.png

  • [Below Surveyor Scott Warner forwards a comment further clarifying this discussion. – RWZ]

    Kevin Biggs • Not to put too fine a point on it, but lawyers do not determine if it is an encroachment either, judges (and possibly a jury in a criminal case) do, lawyers express opinions, just as we fellow professionals do. Having said that, it is sound advice :)

    Scott Warner • Kevin, I like your comment, but nowhere in the post do I see any reference to lawyers determining encroachment. Surveyors may identify spatial relationships that may tend to become encroachments, and due to the quasi-judicial function of the surveyor in matters of boundaries, an attorney may use that information to construe and argue that the conditions on the ground as identified by an expert in such relationships, are, indeed, encroachments. I do, however, agree that only a Judge can make the determination in matters of encroachment, and also in matters of adverse possession, and generally speaking in matters of title. Do surveyors demarcate lines of title? No. Unwritten rights are beyond the matter of survey. Unwritten rights are a matter of Law.

    Here is the link:

    http://www.linkedin.com/groupItem?view=&gid=1330467&type=member&item=105153137&commentID=76565396&report.success=8ULbKyXO6NDvmoK7o030UNOYGZKrvdhBhypZ_w8EpQrrQI-BBjkmxwkEOwBjLE28YyDIxcyEO7_TA_giuRN#commentID_76565396

    And by the way look forward to the ACSM Bulletin.

    -Scott

  • Surveyors are best to keep to finding and displaying evidence in the form of maps and markers on the ground and/or in reference to a standard coordinate system.

  • David Hilbern

    I agree that we have to be careful how we label encroaching features. It all depends who made the encroachment. A section of a neighbors house that is over the property line is an obvious encroachment. A surveyors job is to make a determination of where the property line lies and show all factual information on the plan. Failure to do this is not a good thing for our reputation. A judge may latter rule on lines of possession, but until that point in time, we are the ones who determine the property lines.