Editor’s note: This past May, Ambrose Gmeiner completed his Professional Science Masters Degree from the University of Maine. His final paper, “The Land Surveyor as a Project Lead and Providing Professional Testimony,” is the source for this series of articles on increasing the skills, strengths, and credentials of the professional land surveyor.
There are many different forms of testimony. Testimony comes from statement of facts, typically from an expert witness, and it is given during board meetings, at professional presentations, and in court. A land surveyor can be an effective provider of testimony, and once familiar with the forms of testimony, you can perform research relevant to the particular field and add this to your list of skills.
An expert witness is determined from the basis of professional knowledge, professional experience, professional license, and knowledge of the topic. “For the surveyor, mere licensing is not proof of competence. An expert is one who can demonstrate real knowledge, experience, and wisdom on the point in question” (The Land Surveyor as Expert Witness, Thomas Strong, PLS).
Basic testimony requires being deemed an expert in front of the board or agency at hand. For example, if a land surveyor is involved in a development and has prepared a site development plan and subdivision plan, he or she would be knowledgeable of the subject matter relative to the plans.
In one of my experiences, I was sworn in to give testimony at a township planning board meeting required for a subdivision review and approval. The subject was a large tract of land being divided into two lots. This case was somewhat unusual in that part of the tract would remain for the owner’s use, which was a quasi-public utility, and the remaining tract would be restricted within a conservation easement.
The board members had no objection to my credentials and accepted me as an expert witness.
I described the property in detail: its terrain, size, existing buildings, utilities, etc. I also testified that the plans depict the neighboring properties, existing easements, proposed subdivision line, as well as a bypass area, and I gave details on the sanitary sewer easement and line, a storm drain line, a right-of-way dedication from the County for a road, etc.–all the details a surveyor familiar with the area would know.
As a licensed surveyor, I could state, to the best of my personal knowledge and professional opinion, that the plat and plan accurately depicts the parcels of land as shown.
Providing this type of testimony offers a learning process for something as simple as public speaking, but it also gives you experience in conveying information relative to the project to those who are unfamiliar with it. Furthermore, the professional is accepted as an expert, and he or she has the opportunity to interact with attorneys and board members.
Testimony can also be in the form of a presentation to an agency regarding a particular firm’s professional expertise in order to win a new contract or project.
For example, my firm routinely provides its qualifications in the form of presentations in order to compete for a project. Once, in New York, I gave testimony on the qualifications of my firm in order to be selected for a project requested by an agency’s board. I was among a group of six in a presentation using the visual tool Prezi instead of the traditional Power Point, so preparing and presenting took creativity and practice.
I went into great detail on my qualifications and responsibilities for the project, and I described our team’s applicable hardware, software, and expertise. I also presented descriptions of past projects that are similar and our success with the projects. I learned later in the year that we had won the contract.
The most prevalent form of testimony is relative to cases heard before the courts. These are especially critical because many decisions become precedent and are cited time and time again.
Here is why land surveyors are crucial as providers of testimony in court. The technology to provide anyone with property corners on a touch screen is available now. Apps available for smart phones allow for tax map parcel outlines, aerial imagery, and coordinates to be directly available to the layperson. Also, anyone can peruse the county clerk’s office on the web to access land records that were once available only to a keen researcher or abstracter.
Imagine the land owner purchasing a UAS with an inexpensive lidar system and mapping his or her own back yard. One can also download tax map parcel data, aerial imagery, and lidar data to compile a plan without having to leave one’s laptop. As a result, the land surveyor’s role becomes more important to help sort the interpretations of the layman and provide testimony or opinion of where lines should fall relative to the legal principles and records.
There are numerous case law and summary judgment opinions relative to boundary disputes or related issues. In most cases, the land surveyor offers testimony either on his own behalf or related to his findings or opinion of the evidence reviewed in a particular land boundary issue.
Testimony in court is a legal process during which you’re being asked to help make a case built by the attorney. The objective is to answer the attorney’s questions as clearly as possible.
The following are all topics about which the land surveyor may be called upon to provide testimony or to present on as an expert witness. Certain states and commonwealths deal with these issues more than others, but the land surveyor practicing in areas that cover these topics should be versed and familiar with them.
Who but a land surveyor can understand matters relating to properties and boundaries? The land surveyor can offer his or her opinion of facts related to the records as they concern the land, although he or she will not be practicing law.
There are certain terms and facts regarding a survey that affect the property being surveyed; they include the Marketable Title Act, practical location, acquiescence, express agreement, estoppel, laches, repose, reversionary clause, and statutory period to file notice to occupy the property. The ALTA/NSPS Land Title Surveys may show possible encroachments, unrecorded easements, or uses.
Additionally, there is the Public Trust Doctrine established for beach access that describes such terms as foreshore, dry sand, and reasonable access to beaches. The doctrine allows use of land below the mean high water and use of upland sand for limited access of the beach.
There’s also the Doctrine of Merger that describes the extinguishing of an easement over an adjoining property once the adjoining property owner purchases it. Within the idea of easements and right of ways, there are certain unwritten rights, which is the primary reason a land surveyor is careful not to define use. A land surveyor must be learned in all the topics relevant to the case.
A land surveyor should take care to avoid using terms such as who owns the property and the purpose of an easement. Case law helps define boundary precedence, and the surveyor is not a lawyer. There are title issues that are legal and there are survey issues that are based on facts. Title issues could force the removal of unreasonable restrictions. Additionally, the U.S. land tenure system does not provide for guaranteed ownership except where title was originally issued.
Editor’s note: Testimony in court is not an opportunity to promote surveying; it is a legal process during which you’re being asked to help make a case built by the attorney. The objective is to answer the attorney’s questions as clearly as possible. Doing so takes training.
Unfortunately, it seems land surveyors face an uphill battle relative to a new monster called Slander of Title. Slander of Title cases are becoming more prominent as a result of errors in the reestablishment of boundary lines by surveyors. The land surveyor needs to follow the “reasonable man” standard andÊbe sure to follow in his or her practice what a prudent surveyor would do under like or similar circumstances.
Leave no stone unturned. Leave no resolution to question.