I have never been much of a writer. I had always tried to shirk my way out of writing assignments in school, and avoided them as much as possible. Even taking the F for the assignment or occasional class just to keep from having to write. And when I did write it was more technical writing than descriptive. I had no problem writing instructions or lab reports, but if I was being asked to do “creative writing” I would avoid it like the plague.
Anyway, being new to this blogging/ writing thing I thought I would try to fill out my content with a series of related posts, which hopefully will give me more practice writing and will improve my style in the process. Though it may be hoping for too much. I think a good place to start is to analyze and review cases from the book “ND Land Surveyors Guide to the Supreme Court” by Brian Portwood, which will also help me in my knowledge. This book includes 100 relevant cases for a surveyor in North Dakota. While I may not review all 100 cases, it should be a good place to start.
We start with an introduction where Mr. Portwood speaks to why this book will be helpful to the surveyor and speaks to the importance of surveyors
The primary reason that the practice of land surveying is limited to those who have demonstrated that they are capable of functioning as professional decision makers, is to eliminate the negative consequences of incompetent boundary surveys, which can cause serious economic and social problems when improperly surveyed boundaries are relied upon in the use and development of land, by creating a group of qualified professionals that everyone can rely upon to deal objectively and diligently with boundary issues.”
Mr. Portwood certainly seems to be speaking of licensing and how that improves the qualifications of surveyors. My previous two posts, here and here, deal with the subject more than I am going to here. Though he certainly is correct to be concerned about incompetent boundary surveys and unusable or unreliable survey products. I am certainly glad he decided it was enough of an issue that he would publish a book about the necessary legal principles to provide competent surveying services. And I hope to demonstrate such competence.
Mr. Portwood continues to impress the importance of diligent and knowledgeable surveying practices.
[L]and owners expect the surveyor to provide a result that they can rely upon, because boundaries that they cannot rely upon are obviously of no value to them, and in fact can cause expensive problems, potentially resulting in liability for both land owners and the surveyor … Obviously, whenever a survey of an existing boundary is requested, it must be presumed that the land owner intends to rely on that boundary for some purpose, and therefore expects the surveyor to locate and mark the boundary in a manner that the land owner can make use of with complete confidence, so the essential question becomes whether or not the surveyed boundary is legally supportable, justifying the land owner’s belief that the corners and lines marked on the ground during the survey represent definite boundaries that the land owner can safely rely upon.”
That is an excellent point. The land owner needs to be able to rely on the definite boundaries, but how is he to do that in light of the continually shifting preferences of the government as it pertains to land owners? Well, one way is to, apparently, rely on surveyors who have studied the capricious nature of the courts and know how to side-step and resolve obvious foreseeable problems.
Engaging in education of this type is not intended to enable the surveyor to claim to be an expert on the law, it is intended only to familiarize the surveyor with the situations that are similar to those that the surveyor may encounter, so the surveyor can see how such situations typically play out, and can recognize the presence of important legal factors that may determine the outcome, when the surveyor is confronted with comparable circumstances.”
He continues to explain why this book is important for surveyors with a note to the nature of judicial rulings. These are descriptions of the arbitrary and capricious nature of judicial rulings in the name of equity. Explaining how judges will rule either with the explicit wording of the law in mind or with the implicit meaning of the law in mind. Ah but I suppose that is the nature of judges.
One elementary lesson of a general nature to be learned is that a simplistic understanding of the statutes, resulting from merely reading the statutes at face value is insufficient, because only the legal interpretation of the statutes performed by the Court itself fully captures the spirit of the law, which ultimately controls over the mere letter of the law. The law is not to be applied in unintended ways, and was obviously never intended to facilitate injustice, so the Court wisely follows the spirit of the law whenever necessary to achieve results that are in line with equity and justice.”
Mr. Portwood makes certain to remind surveyors that they do not work exclusively for a client, and that surveyors are not there just make use their of their expertise in using a ruler or tape measure.
“The surveyor is obligated to protect the land rights of all parties by retracing and resolving existing boundaries in a manner that is legally supportable, so that the surveyed boundary is of value, and the land can be safely developed without unfortunate legal consequences, rather than on measurements alone, in disregard for superior evidence… But boundaries, and in fact all of the many related land rights issues that surveyors often encounter, are controlled by evidence, making it essential for the surveyor to recognize the potential value of all the conditions observed on the ground by the surveyor as evidence, to appreciate the importance of discovering all the evidence, and to understand which evidence controls the boundary location.”
It is important to remember that a parcel line for one person is also a parcel line for their neighbor. This is of course hard to remember, and even harder to value.