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 "We agree with the judge below that this survey could not
lawfully be regarded. A surveyor has no more right than
anyone else to decide upon starting points and other
elements of location. We have had frequent occasion to
refer to the mischief done by the officious meddling of such
persons under some notion that it is within their province to
unsettle possessions and landmarks."
Kristopher M. Kline, P.L.S., G.S.I.  In Fisher v. Dowling, again the Court said: "We have had
frequent occasion to condemn the assumptions of surveyors
[email protected] in determining lines and landmarks according to their own
notions. They have no such right, and their assumptions are
not lawful. There are few evils more annoying to public or
private peace than the intermeddling with land boundaries,
and the disturbance of peaceable possessions."”

 Licenses to practice professional engineering or  In the light of these tenets we have no difficulty in
professional land surveying are required as a matter of determining that the State Board acted appropriately
public policy of this State "[i]n order to safeguard life, within the jurisdiction conferred upon it. Its finding of
health and property, and promote the public welfare * appellant's tainted character and reputation supported
 Like the profession of engineering, we regard that of by ample proof of his convictions warranted the
land surveying as "no ordinary trade or calling." revocation within the legislative authority.
 It involves not only skill and knowledge, but certainly  In the first place, it would appear to be incongruous
honesty, integrity and reliability. that one must have a good character and reputation in
 The products of land surveyors are cornerstones of order to qualify for a license, but need not continue to
titles and are relied upon by real estate purchasers, enjoy the same character and reputation once the
lenders and title insurers. license is issued.

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 that the parties employed a surveyor FFFFFFF to survey  that all the parties relied on this erroneous and incorrect
and divide the land into two tracts of equal acreage; information, by mutual mistake accepted the field notes
 that relying on the field notes of the surveyor the parties as equally dividing the land as to acreage, and executed
executed warranty deeds to each other conveying to the their deeds to each other for 120 acres each, based on
other what was thought to be one-half of the H. A. J. and such erroneous information;
Mary Snellings land;  that plaintiffs learned by a later survey that the total
 that surveyor FFFFFFF erroneously computed the acreage acreage is only 229.24 acres, and that the part deeded
of the land to be 240 acres, and erroneously computed his to A.O. Snellings was only 94.08 acres, while the part
division of the same, which was conveyed by the parties to deeded by A. O. Snellings to defendants contained
each other, to be two tracts containing 120 acres each; 135.16 acres. ;

 Beyer relied on a survey by Arthur James Schappell, Jr.,  1. affidavits from DDDDDD, a surveyor who had
a licensed land surveyor, conducted extensive boundary and highway research
 Schappell testified that while preparing the survey he in the Town of Barnard, stating that he had examined
recorded the location of a dust bin, a building, a the Barnard Land Records and the area of the
number of concrete pads, a dumpster set against one disputed roads in 1985 and had uncovered (a) a
of the buildings, and piles of stacked pallets, all of survey of the Wheat Road dated September 17, 1816
which had been encroaching on the roadway. and recorded in the Barnard Land Roads and Villages
Book at Page 39 on January 1, 1817, and (b) a survey
 Schappell noted that the encroaching objects were not
of the Park Hill Road dated September 9, 1788 and
included on the 1990 survey, but acknowledged that
their absence from the survey did not mean those recorded in the Barnard Land Roads and Villages
items were not on the property at that time. Book at page 5;

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 2. affidavits from CCCCCC, a registered land surveyor in  The defendants fire a battery of frivolous challenges at the
the State of Vermont, stating that (a) in 1985, he affidavits of CCCCCC and DDDDDD. Suffice it to say that
supervised a survey of the "so-called Wheat Road's" the affidavits show that the affiants were qualified to
present centerline and the "so-called Park Hill Road's" testify as to the facts the court used the affidavits to
present centerline; and (b) in the process of conducting establish. DDDDDD, an experienced surveyor, testified as
the 1985 survey, he found (i) clear evidence of Wheat to the results of research he personally conducted.
Road's and Park Hill Road's continued existence and (ii) CCCCCC, a registered land surveyor, testified as to the
that the centerline of the current roadbeds closely results of a survey he personally supervised.
followed, for the most part, the path of the same laid  …Defects in other information contained in the affidavits
out in 1816; are irrelevant since that information was not relied on by
the court in its decision. …(where an affidavit contained
certain objectionable statements, the court struck those
statements but considered the remainder of the affidavit);

 "The court may properly admit expert testimony only

from a witness it has first determined to be qualified
to testify on a particular matter."

Getting in to the Process 


…"Generally, expert testimony is admissible if
(1) the witness has a special skill or knowledge
directly applicable to a matter in issue,
 (2) that skill or knowledge is not common to the
average person, and
 (3) the testimony would be helpful to the court or jury
in considering the issues. . . .

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 Articles Written  Every “Smart Remark” that you wish you could
 Presentations at Chapter or state meetings make needs to be completely out of your
 Committee Postings for State Society system when you testify!
 Awards received  It is better to know the Judge than the law…
 Continuing Education Classes  You can have as much justice as you can
 Projects with Challenges – court testimony afford.
 Make sure to build an exhaustive CV and…  Following the Presumptions of the court
doesn’t mean you’ll win…
 Keep it current!

 …If the boundaries could not be ascertained, the statute

created the "presumption that an existing highway was  Frohock's lot depth to its back boundary as shown
originally laid out as a three-rod road … in the 1977 survey was entirely dependent upon
 …If the party opposing the presumption could show that GGGGGGG’s assumption that Railroad Street
the centerline of travel in fact had moved from its Extension was three rods wide.
original location, then the presumption would disappear,
and the court would have to find the location based on  That assumption, in turn, was based on his
all the evidence. knowledge that town highways were typically three
 19 V.S.A. § 32. Section 32 now reads: rods wide. That these assumptions were reasonable
 A roadway width of one and one half rods on each side
did not mean the surveyor was necessarily correct.
of the center of the existing traveled way can be
assumed and controlled for highway purposes whenever
the original survey was not properly recorded, or the
records preserved, or if the terminations and boundaries
cannot be determined.

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 1. What tone will you set at your initial Who will control the various aspects of the
meeting? case?
 2. Who are you actually working for? Complete Cooperation and understanding
 3. How will you be paid? between the Attorney and the Surveyor is of
 4. Are you being appointed by the Court? key importance – cases have often been lost
 5. What is the REAL ISSUE for the client? because the Attorney did not know what
questions to ask.
 6. Do you want to be involved, and in what
capacity? Note: This may not be the Attorney’s fault!

 Both…It is easy for the surveyor to get so  This would seem to be a great honor, and
wrapped up in the game that he or she looks good on your resume…
forgets that this is of major importance to the  This also allows you the unique opportunity
client. to be used as a hockey puck by all parties.
 However…Quite a bit of the arguments and  The Attorney who seems to be your ally at the
apparent antagonism in the courtroom is for beginning of the process may become your
the benefit of the jury. opponent.
 Appearance is everything!!

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 It is not unheard of for rival attorneys to The Attorney may have already performed
attempt to obtain proprietary information research on the project when you are first
from the surveyor by the age-old tactic of contacted. You will probably need to perform
using an offhand approach, “oh, we just need additional research because the title search
a copy for our records” frequently ignores references to adjoiners not
 It is prudent to ALWAYS ask your attorney in the direct chain of title of the client.
before releasing any information to anyone. Attorneys and Surveyors tend to look for
different aspects when performing deed
research.

 Make sure to get copies of any affidavits or

depositions by various witnesses; valuable  The surveyor stated in his affidavit that he prepared
his survey based on the property description
information can be found which may well
contained in plaintiff's deed as well as those of her
strengthen (or undermine) your boundary predecessors in interest,
analysis.  …certain highway appropriation, county acquisition
 “Dumpster Diving” in clients personal files and tax maps, and other relevant agreements and
(with their permission!) may yield valuable documents. He detailed the means by which he
information not on the public record. located certain markers, monuments and lines
referenced in the property description, …
 Old U.S.D.A. aerial photographs can be
critical!

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 …and opined that plaintiff's property clearly includes  Defendants also provided an affidavit from a surveyor
the disputed parcel and plaintiff is the owner of that purporting to critique the methodology of plaintiff's
parcel. surveyor.
 Finally, he stated that he had reviewed the deed by  However, defendants' expert did not actually review
which McChesney acquired title to her real property, any of the underlying surveys or deeds, and offered
and opined "with certainty" that the disputed parcel no opinion as to ownership of the disputed parcel.
was not included in the property description Instead, his affidavit consisted solely of a response to
contained in McChesney's deed. a hypothetical question posed by defendants'
counsel.
 Based upon assumed facts, defendants' expert
opined that…

 It is common practice for the attorney  Never put anything in an email that you
working against the surveyor in question to would dislike seeing on a billboard
do everything possible to set that surveyor at  The recipient of the email can read neither
ease – in the hope that he or she will make your body language, facial expression, nor
some unguarded or inaccurate statement your tone of voice. This is not to say the
which can later be used against the surveyor effective email communication is impossible,
in the courtroom. but it requires extra care.
 Depositions are now commonly run through a  Type your email and then re-read your own
word and phrase analysis, and cross work before you hit the “send” Button.
referenced for all significant words.

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 There now exist corporations and software devoted  Most states have written requirements stating
exclusively to “mining” various on-line resources for that the surveyor shall be able to
information on rival attorneys, witnesses, and
communicate effectively, but in a courtroom
experts.
scenario, this is more critical than ever.
 Numerous articles have been devoted to the absolute
necessity of ensuring that information which could be  The Virginia Standard: 18VAC10-20-55.
used to embarrass or compromise a witness (expert Language and comprehension.
or otherwise) be removed from public internet access.  Every applicant applying for licensure or
certification shall be able to speak and write
English to the satisfaction of the board.

 Actionable negligence presupposes the existence of a

legal relationship between the parties through which
the wrongdoer owed a duty to the injured party.
The duty may be imposed by contract or, irrespective
Negligence and the Surveyor

of privity of contract, by law. Thus, although
contractual privity assures a sufficiently close nexus
between the parties upon which fairly to predicate
liability, it is not, as DDDDDDD argues, indispensable
to the imposition of a legal duty of care.

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 Although we have found no Texas case holding a  Hutchinson v. Dubeau, 161 Ga.App. 65, 289 S.E.2d 4
surveyor liable in negligence to a third party, other (Ct.App.1982) (surveyor liable if knew or should have
jurisdictions have imposed liability on surveyors, and known third person would use and rely on plat in a
the rationale is applicable to the instant case. subsequent transaction involving the property);
 First, the transaction indirectly was intended to  Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969)
benefit Larson, and the harm was reasonably (tort liability measured by scope of duty owed rather
forseeable. than by artificial concepts of privity);
 The survey plat was addressed "TO ALL PARTIES  Tartera v. Palumbo, 224 Tenn. 262, 453 S.W.2d 780
INTERESTED IN PREMISES SURVEYED" and bore the (1970) (defendant knew survey would be used in
following warranty: describing property in warranty deed).

 DDDDDDD argues that the evidence was legally or

factually insufficient to support a finding of gross  Whether a party owes a duty of care is a question of
negligence. We agree. law, while breach of the duty and causation are
 Gross negligence is "that entire want of care which would questions of fact.
raise the belief that the act or omission complained of  We have not had the occasion to state the standard of
was the result of a conscious indifference to the right or care owed by a land surveyor.
welfare of the person or persons to be affected by it."  "standards for demonstrating the elements of
 What lifts ordinary negligence into gross negligence is professional negligence do not differ from profession
the mental attitude of the defendant; that is what to profession."
justifies the penal nature of the imposition of exemplary
damages.

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 The plaintiff in a professional negligence action must  Both Maryland and North Carolina state that a surveyor
establish the appropriate standard of care, must "exercise that degree of care which a surveyor of
demonstrate that the defendant deviated from that ordinary skill and prudence would exercise under similar
standard, and prove that the deviation caused the circumstances." --Reighard v. Downs, 261 Md. 26, 273
plaintiff's damages. A.2d 109, 112 (Md. 1971); Associated Ind. Contractors,
 Courts in other jurisdictions have articulated the duty Inc. v. Fleming Eng'g, Inc., 162 N.C. App. 405, 590 S.E.2d
of care of land surveyors in similar ways. For example, 866, 870 (N.C. Ct. App. 2004)
in West Virginia a surveyor is held to the standard of  (providing nearly identical language). We agree with the
care that a "reasonably prudent surveyor" would have Superior Court that the duty of care a land surveyor is
applied with regard to the same project. obligated to provide is that degree of care that an
ordinarily competent surveyor would exercise in like
circumstances.

 The court reformed a deed establishing the disputed  It is generally recognized that under certain
boundary line and dismissed the appellant's third-party circumstances a surveyor can be held liable for failure
complaint against the prior owners of her property and to exercise due skill and care in making a survey…
against a surveyor of the property. The appellant had  However, many circumstances affect the potential
claimed that the prior owners were obligated to her liability of the surveyor. For instance, the connection
under a covenant of general warranty and that the between the surveyor and the injured party has been
surveyor had negligently surveyed the line in dispute. recognized to have some bearing on the case.
 It appears that xxxxxxxxxxx did not lay the boundary  Whether the surveyor's error proximately caused the
line out in the manner in which XXXXXXXX's mother and injury is relevant…
aunt had intended it to run and that as a consequence a  Likewise, whether the surveyor has deviated from the
garage, which was supposed to be on the aunt's lot after standard of care applied to his profession has some
partition, was actually on XXXXXXXX's mother's lot. bearing on his liability.

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 In examining the record presently before the Court, this  In 1985, plaintiff purchased a structure on Washington
Court believes that the record was not sufficiently Street, Cape May, for the purpose of operating a
developed on the facts relating to xxxxxxxxxxx’s survey beauty salon and guest house.
to determine whether it is potentially liable to the  She contacted SURVEYOR, a professional land
appellant and that, at very least, inquiry concerning the surveyor, to prepare a survey of the property for
facts is desirable to clarify the application of the law. submission to the Cape May Zoning Board of
 Accordingly, the Court concludes that the granting of Adjustment for a special reasons variance and site
summary judgment on the third-party claim against the plan waiver in order to utilize the structure as a beauty
surveyor was inappropriate and that the relationship shop.
between the appellant and the surveyor and the  The survey dated February 12, 1985, was submitted to
surveyor's survey of the boundary line in dispute should the Zoning Board.
be developed further.  The survey located a thirty-inch diameter maple tree
on the site.

 ARCHITECT testified that he relied on the SURVEYOR  He also opined that "a prudent architect would go to
survey "as the basis" for the … site plan because it the site and make sure that he knows where that tree
contained all of the information required by the City of is, because all his work is going to revolve around that
Cape May. Specifically, ARCHITECT relied on the survey tree."
for the outline of the lot and location of physical  Expert also testified that SURVEYOR's 1985 survey was
prepared for a special reasons variance and site plan
features, including the maple tree.
waiver.
 …the SURVEYOR survey and … site plan situated the  Therefore, there was no need to include vegetation in
tree between eleven and fourteen feet from where it the survey, and thus SURVEYOR's mislocation of the
actually stood. …prepared a new site plan on January maple tree had no impact on the validity of the survey.
14, 1992.  According to EXPERT, unless specifically requested to
do so, land surveyors do not indicate vegetation on a
survey.

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 In a professional negligence case, the standard of care  In other words, plaintiff must produce expert
must normally be established by expert testimony. testimony upon which the jury could find that the
 This is so because a jury should not be allowed to consensus of the particular profession involved
speculate, without expert testimony, in an area where recognized the existence of the standard defined by
laypersons have insufficient knowledge or experience. the expert.
 Moreover, opinion testimony "must relate to generally  It is insufficient for plaintiff's expert simply to follow
accepted …standards, not merely to standards slavishly an "accepted practice" formula; there must be
personal to the witness." some evidential support offered by the expert
establishing the existence of the standard.
 A standard which is personal to the expert is
equivalent to a net opinion.

 The crux of EXPERT's testimony was that ARCHITECT  No reference was made to any written document, or
deviated from accepted standards of architectural even unwritten custom or practice indicating that the
practice by failing to make a site inspection of consensus of the architectural community recognizes
plaintiff's property to verify the location of the thirty- a duty to make a site inspection for "small sites.“
inch diameter maple tree when he prepared the April  In fact, N.J.A.C. 13:27-7.2(a)1 provides that existing
16, 1991 … site plan. conditions and physical features of the site denoted on
 It was his view that when a plan involves a small site, a a survey "may be transferred to the site plan if duly
"prudent architect would go to the site and make sure noted as to the date of the survey, by whom, and for
that he knows where that tree is, because all his work whom."
is going to revolve around that tree."
 The problem is that EXPERT presented no authority
supporting his opinion.

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 1. The Owner shall furnish a legal description and  defendants' expert, testified that these provisions in the
certified land survey of the site, giving as applicable, SFA were essential because an architect, in preparing a
grades and lines of streets, alleys, pavements and site plan, necessarily relies on surveys to locate the
adjoining property; right-of-way, restrictions, easements, physical features on the lot in question.
encroachments, zoning, deed restrictions, [boundaries]  This is so, …because by law architects cannot denote
and contours of the site; locations, dimensions and such features on a site plan and thus depend on their
complete data pertaining to existing buildings, other locations as depicted by a licensed surveyor.
improvements and trees; …
 5. The services, information, surveys and reports required
by Paragraphs 1 through 4 inclusive shall be furnished at
the Owner's expense and the Architect shall be entitled to
rely upon the accuracy and completeness thereof.

 We conclude that the "reliance" provisions in form B-141

of the SFA, and in the written agreement …  (a) Showing existing conditions and exact location of
 …gave defendants an unqualified right to rely on the physical features including metes and bounds,
SURVEYOR survey and [THE] site plan in preparing their drainage, waterways, specific utility locations, and
April 16, 1991 revisions. easements: By a land surveyor.
 It also nullifies EXPERT's unsupported conclusion that  1. Survey information may be transferred to the site
defendant had a duty to make a site inspection to check plan if duly noted as to the date of the survey, by
the accuracy of the physical features contained in the whom, and for whom. A signed and sealed copy of the
SURVEYOR survey. survey shall be submitted to the reviewing
governmental body with the site plan submission.

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 (b) Vegetation, general flood plain determination or

general location of utilities, buildings or structures: By
an architect, planner, engineer, land surveyor,
landscape architect or other person acceptable to the
reviewing governmental body.
Some Procedural Hints

 Where and how tax maps, photos, and other  This is frequently a very good idea, but consult
documents are archived or stored can make a with your attorney before signing and sealing a
report. It may contain information, analysis, or
big difference on it’s admissibility. conclusions that should not be released
 Documents archived through a state or prematurely.
federal agency are generally admissible  If your report in it’s early stages is maintained as
(U.S.D.A., county deed room, tax office, etc.) a draft report or as your persona notes, it is
much more difficult for rival attorneys to
 Documents archived privately (Businesses,
subpoena.
individual landowner, law firms) may be  A signed and sealed report or plat can
harder to get into the courtroom. legitimately be acquired by other attorneys
through the process of discovery.

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 In his recent book on Forensic Surveying, Don  Make sure that your storage is as inaccessible
Wilson recommends that the surveyor as possible – Be able to state with surety that
photograph any significant evidence on the these are your original unedited photos.
first trip to the survey site.  Cloud storage of photos may compromise the
 Digital cameras have made it easy to take and admissibility of the images as evidence.
store large numbers of photographs, so don’t
be reluctant.

 Take additional photographs throughout the  Make sure to participate in all phases of the
survey process; you may be able to document survey process – I’ve been questioned regarding
changes to the job site due to: appearance of terrain, undergrowth, and general
appearance of a tract in an apparent attempt to
 Illegal (?) grading
show that I had not, in fact, exercised
 Iron pins or other evidence which responsible charge and visited the site.
mysteriously appears, disappears, or moves.  Additional redundancy is a definite necessity
since, in the event where two surveyors disagree
over relative location of features, things can
quickly degenerate into “He said,…she said…”

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 10/22/2015

 Defendant's surveyor stated in an affidavit that all

the posts are either on defendant's property or are
bisected by the property line.
 Plaintiff's surveyor noted on the map that the posts
are on plaintiff's property.
 Thus, the question of exactly where defendant's
fence is situated has not been resolved, and
defendant has failed to establish as a matter of law
that she is not trespassing on plaintiff's property

 Mr. J. A. Simpson, a land surveyor for 50 years and

County Surveyor of Tom Green County for the last 27
years testified that he had done considerable surveying
work in the Minter Addition, Miles Addition Acre Lots
The Surveyor on the ground and Robertson Subdivision of Acre Lot 6.
 We quote the following from the testimony of Mr.
Simpson not only to show that the west line of the Acre
Lots was located but to show that Minter Street can be
definitely, accurately and easily located from the
judgment:

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 10/22/2015

"I have seen the original plat of the Robertson "I have surveyed that property on the ground.
subdivision. The first time I saw it was about October In 1926 I made a plat of the Robertson subdivision
1928. * * * That strip you show me on the plat indicates showing a street between that and Minter Addition and
a street, the way interpreted by me; I left it there as a Acre Lot 8 of Miles Addition.
street on both sides in the Minter Addition and Plaintiff's Exhibit No. 5 is a plat I made myself; I do not
Robertson subdivision. think it is to scale because I just placed it over the map
That black line would be the actual east line of the on record and traced it.
Robertson subdivision; the field notes of Acre Lot 6, At that time I located the Robertson subdivision on the
which is a Robertson subdivision shows it to be a ground, including the east line of that subdivision,
subdivision of (five) Acre Lot 6, Miles Addition, and the which would be the east line of Block 21.
field notes on that are practically the same as shown on
this map here.

I also located the west line of Minter and of Acre Lot 8, "I have my field book which contains a plat of the
Miles Addition; there is a strip in there between the two Robertson subdivision, work I did for Mr. Hunter in
different additions. It is a street on the ground and I 1945.
made the plat. * * * This field book is made up directly on the basis of the
"Thereafter I made a plat of the Robertson subdivision original deeds. The plat in my field book is the same as
showing the east line of the subdivision, I believe in the plat introduced in evidence.
September 1952. My records show that I made five surveys in that
Plaintiff's Exhibit No. 6 is that plat which I made; the plat Robertson subdivision, beginning back in 1928; I
accurately shows the position of the east portion of the probably have made more than that. Every time I have
addition as I found it on the ground, exactly like I staked been on the ground and surveyed the property in and
it off. about Minter Street I have always found a street there

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 10/22/2015

Calculator
 Scale
 Protractor

On the Stand  Laptop computer

 Laser Pointer
 Copies of your deeds, worksheets, plats
 Prints of some of your own Photographs.

What facts or assumptions or surmises can be obtained The historical hallmark of crime-scene investigation
from the examination of one of more physical items has always included close observation, well-paid
gathered… attention, and the application of common sense and
What is the likely basis for such assumptions or logic to solving the crime…
projections, or guesses? State and Federal courts in both civil and criminal cases
How dependent is the power of forensic evidence on are increasingly occupied with cases centered on the
the traditional observation by eyewitnesses? need for an encompassing and practice-oriented
How much of forensic analysis and comparison definition of science and scientific method as an
testimony have to do with scientific theory or essential precursor to the admissibility of opinions of
recognized scientific methodology? experts based upon that science.

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 Indispensable evidence: Evidence without which a  Petitioners next argue that the circuit court erred in
particular fact cannot be proved.
 Conclusive evidence: Evidence so strong as to overbear placing no weight on the survey performed by
any other evidence to the contrary. xxxxxxxxxxx “simply because of Mr. xxxxxxxx's
 Prima Facie evidence: Evidence that will establish a fact or demise and hence inability to appear in Court to
sustain a judgement unless contradictory evidence is testify regarding said survey."
produced.
 Primary evidence (best evidence): Evidence of the highest  Respondent argues that petitioners failed to
available quality. present any expert testimony to counter the
 Secondary evidence: evidence that is inferior to the testimony of his expert surveyor Mr. XXXXXXXX.
primary evidence, but becomes admissible when primary
or best evidence is inaccessible.
 Direct evidence: Evidence based on personal knowledge
or observation
 Indirect (circumstantial) evidence: Evidence based on
inference and not on personal knowledge.

 If the original monuments are no longer discoverable, the

 The Surveyor needs to consider all available evidence – question of location becomes one of evidence merely. It is merely
Deeds, conversations with neighbors, Sketches on grocery idle for any State statute to direct a surveyor to locate or
bags, as well as all physical evidence on the ground. Balk "establish" a corner, as the place of the original monument,
lines, old creek beds, fences, age of trees, creek fords, according to some inflexible rule. The surveyor, on the other
old road beds are all helpful. hand, must inquire into all the facts, giving due
 Compare magnetic variation with original time of survey; prominence to the acts of parties concerned, and
find multiple avenues to prove your analysis. (Virginia like always keeping in mind, first, that neither his opinion
most states, takes judicial notice that magnetic nor his survey can be conclusive upon parties
declination varies over time) concerned, and, second, that courts and juries may be
 The idea is to build a “high degree of professional surety” required to follow after the surveyor over the same
by developing a strong preponderance of evidence. – ground, and that it is exceedingly desirable that he
translation: swat a mosquito with a sledgehammer. govern his action by the same lights and the same
rules that will govern theirs.

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 10/22/2015

 Both parties submitted into evidence the testimony of  Where a surveyor, whose qualifications are accepted by
surveyors. The defendants' surveyor failed to search back the court, has made a map showing the sum of various
the title to determine the source of the Benning parcel. acquisitions based upon an examination of the chain of
 The plaintiffs' surveyor searched title back as far as the title of all the parties affected, a review of the maps of
mid-1850s, also inspecting the deeds of adjoining record and information in the town records, an
neighbors. On the basis of his search of the deeds, maps inspection of the property in question, field work and
of record, assessor's information, his inspection of the calculations, his testimony may be accepted as that of an
property, the field work and calculations done by his expert.
associates and his own experience as a registered
surveyor, the plaintiffs' surveyor determined that the
disputed portion of land was within the plaintiffs'
boundaries.

 An opposing attorney during cross-

His opinion "requires not merely a knowledge of the
examination wants to create an “aura” around

principles and practices of conveyancing as far as they
enter into the interpretation of deeds, the surveyor which implies dishonesty,
 …but also the power to compare and coordinate various unreliability, and\or ignorance
descriptions of the land in question and of other adjacent  Your attorney, of course wants you to appear
lands and to fit together the boundaries, monuments and wise, noble, and in all ways the greatest thing
other indicia of location so as to apply the terms of the since sliced bread.
deeds to the actual ground as represented upon a
properly authenticated map.  Your speech, appearance, and bearing go a
 Such a function is so much a matter of special training long way towards cementing your reputation.
and experience as to fall within the proper range of
expert knowledge."

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In reaching this conclusion, the Superior Court Justice

accepted the testimony of the witness surveyor that  The bulk of landowner's arguments surround the
he could find the starting point in the deed. credibility the trial court gave to testimony from
The surveyor had traced the title back to 1852. surveyor AAAAAA, surveyor BBBBBB, and several
Furthermore, the Justice may have taken into
consideration the fact that the title to the described former Bethel townspeople.
land had been researched by attorney and that a  It is the trier of fact, however, who evaluates the
certificate of title had been given. credibility of the witnesses and the persuasive effect
The weight to be given to the opinions of surveyors, of the testimony. Cabot v. Cabot, 166 Vt. 485, 497,
as well as the credibility of any witness, is the 697 A.2d 644, 652 (1997) (noting that as the trier of
prerogative of the trier of facts, here the single
Justice. Rusha v. Little, Me., 309 A.2d 867 (1973); fact, it is the province of the trial court to evaluate
Perkins v. Conary, Me., 295 A.2d 644 (1972); Sowles the credibility of witnesses).
v. Beaumier, Me., 227 A.2d 473 (1967).

 In July 2010, Johnson filed a motion to continue the On deposition, AAAAAA testified that, to do an
scheduled hearing on the Elliotts' second motion for apportionment survey, you must find the original bank and
partial summary judgment, requesting time to allow establish endpoints to establish where to begin and end
his newly-retained surveyors (BBBBBBBB and the apportionment calculation. He admitted that, to find
CCCCCCCC) to complete a second apportionment his endpoints, …
survey. Johnson asserted the newly-retained experts he "started at the bridge--which that's a good spot to
were necessary because his original surveyor, start, because that's where [he] had to unload to get out--
AAAAAAA, had been discredited. [n]ow at the time, not knowing, really, where it all tied back
 Summary judgment evidence established that, on in, that's just where I started, at that time." He confirmed
deposition, AAAAAAA "admit[ted] he had failed to his survey was based in part on GPS shots taken while
comply with reasonable survey standards" and failed flying over the area in an airplane to "fill in what voids I
to establish a critical survey point on the ground by might have" where he "couldn't get to it" despite having
simply picking his point of beginning at random. agreed with counsel that the survey points should be
located on the ground.

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There is no evidence other than that set out above to  “The Center of the Universe”
show a formal dedication of the strip in suit.  The one who yells in your face
Opposing this is a survey made by W. S. Chunn, licensed ◦ Corollary: Answer my question, “Yes” or “no”
land surveyor, in 1955.
 The number cruncher
He testified, without contradiction, that the strip in suit
was not in the Wise-Burleson Addition but was in the  The snide insinuator
George Rae Addition and that from an examination of  The calm collected professional
the deed records he found no street or space for a street
left where appellants claim it to be.

 Using a base layer such as U.S.D.A. aerial  It is not unusual to see case law cited by
photographs or U.S.G.S. quad sheets starts you counsel for plaintiff or defendant which has
off with a familiar and dependable starting point been overturned by later decisions
upon which it is very difficult to cast any doubt.
 Alternatively, you may see a quotation in a
 Build your case in an orderly manner; lay the later case which, upon careful consideration
groundwork.
of the original opinion, never reflected the
 Don’t talk over the heads of the Jury! They don’t opinion of the justices in the earlier case.
care about what type of GPS equipment you used
to establish your base control points.
 Show some humility

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 Option 1: Since you should be judged on your  When testifying in court, it is important to adjust your
expertise rather than on your appearance, delivery to the audience – for a summary hearing before a
judge, you can be more technical.
Wear comfortable clothes.
 On the other hand, a jury will almost surely be composed
 Option 2: Nice Slacks and a Polo Shirt (clean) entirely of individuals with no familiarity with the
 Option 3: Wear your best suit and Tie as a surveying profession.
sign of respect for the institution of the  (You can just about count on the last; at least one of the
Courts. Attorneys involved has a vested interest in making sure
that there is no relevant expertise on the jury.)
 Option 4: Whatever your Attorney tells you to
wear.  Weissman’s hay only fools Russian…

 The professional is not required to answer with a  What is the content of your response?
simple “yes” or “no”, and may elaborate on his
 How sure are you of your answer – are there
explanation. This does not stop attorneys from
attempting to channel you to one word answers. multiple pieces of evidence supporting your
 Never allow the cross-examining attorney to phrase position, or just one or two?
your answers; a difficult task since this can be done  It is not necessary nor desirable to be
quite subtly. completely passive.
 Be clear and concise – Judges (and juries) do not want  Projecting confidence is fine, but projecting
to spend more time than necessary on a given case.
arrogance will ultimately hurt your client.

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 Useful evidence may be obtained by the surveyor  The number one tactic of the attorney in the
before the trial begins if transcripts of all of the courtroom: take a complex situation involving
depositions is made available to you. conflicting evidence, gray areas in the rules of
 It is permissible to sit in the public portion of the construction, and multiple descriptions; distill
courtroom and listen to testimony of other experts.
the problem down to two or three lines in one
Take notes; what they say may be useful when you

deed; and then demand a yes or no answer to
are questioned.
a simple question.
 Listen to what everyone says; not just the witness.

 Seeking the intent of the parties as manifested by an

 Appellants contend that the survey was inaccurate instrument, the court is not, under the established rules
because the surveyors did not produce "closure" of construction, to be tied down to the terms and
calculations at trial. Closure is a term used to expressions referred to. Especially is it not at liberty
describe calculations relating to the accurateness arbitrarily to break up the intimate companionship of
of the survey. words and lop one member of a sentence from another.
 The surveyors testified that they did make closure  The maxim is, noscitur a sociis. It must consider all the
calculations and that their survey was accurate. language employed--the instrument as a whole and
every part of it. The general intention to be collected
Nothing in the record before this Court contradicts
from the whole context, and every part of a written
that testimony. instrument, is always to be preferred to the particular
expression.

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 Where the language purportedly granting an easement is  The primary duty of a court when construing such a
ambiguous or in dispute, "[t]he primary rule of deed is to ascertain the intent of the parties from all of
construction is that the … the language in the deed by a fundamental rule of
construction known as the "four corners" rule.
 …intent of the conveyor is normally determined by the
language of the conveyance read as an entirety and in the  "That intention, when ascertained, prevails over
light of the surrounding circumstances." arbitrary rules."
 The court, when seeking to ascertain the intention of the
parties, attempts to harmonize all parts of the deed.
 "[T]he parties to an instrument intend every clause to
have some effect and in some measure to evidence their
agreement."

 It is extremely important at the outset to review  No principle is better settled, said Justice Elmer, or
historically the manner in which these grants of land more important to be faithfully adhered to by the
originated and attempt to retrace the steps of the courts called upon to enforce written statutes, than
original surveyors and determine, if possible, the that, in the absence of ambiguity in the language
intent of the grantor. used, …
 The rules for the construction of grants, is  …no exposition shall be made which is in
determined in this fashion. Once the intention of the opposition to the express words; or, as the maxim
grantor is definitely ascertained, all else must yield. is sometimes expressed, …
 …it is not allowed to interpret what has no need of
interpretation.

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 Proof of declarations of persons since deceased, in  In such cases, …being the mere voluntary statement of
respect to private boundaries, to be admissible in a stranger, not under oath, or in presence of parties,
evidence, … cannot, under any rule of reason or safety, be
 …must have been made by a declarant in possession regarded as competent testimony upon which to
as owner at the time, … determine private title to lands, …
 …and while engaged in pointing out the boundary in  …and whether made ante or post litem motam, are
question, and such declarations need not be against equally objectionable and illegal; and while the courts
interest or in disparagement of title; … of some states have, as it would seem, been willing to
 …they are received when nothing appears to show an receive such testimony, in this state we have not gone
interest to deceive or misrepresent. so far.

 An attorney may walk you through a step by step  Attorneys will frequently modify the tactic
analysis of a survey that is incorrect (in your opinion)
while carefully leaving out the one crucial item with
described above by following a sequence of
which you disagree; this encourages you to give an questions towards a goal, but omitting the
answer that sounds favorable to the opposing crucial final question, leaving the jury to feel
attorney since it appears to the jury that you have that they have come to a conclusion
agreed with his analysis.
 One possible answer that, while you can answer his themselves rather than having been
hypothetical question, he has left out so many factors manipulated by the attorney.
from the totality of the analysis as to make the
answer meaningless in the real-world situation that is
being tried. This is a variation of the next item on my
list, and probably the …

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 Niccolo Machiavelli, a diplomat in the pay of the  At some point, if you understand the direction in which
Republic of Florence, wrote “The Prince” in 1513 after the cross-examining attorney is taking you, and it is
the overthrow of the Republic forced him into exile. It inevitable that an awkward piece of information will come
is widely regarded as one of the basic texts of Western out, it is often better to present the data in a forthright
political science, and represents a basic change in the manner, rather than having it appear a reluctant
attitude and image of government. (Paul Halsall; admission.
November 1996 [email protected])  Then move on to a new topic.
 One of his guiding principles was (paraphrase) to get  Topics that Attorneys love to win admissions on include
past the bad experiences as quickly as possible; by  A. How much you are (will be, have been) paid.
contrast, one should attempt to make the good times
 B. Your long working relationship (if any) with your client.
last as long as possible.
 C. General personal information which might be
construed to create a conflict of interest.

 The surveyor may not be aware that, when he or she is  The Jury is seated in a separate section, and there
in the “witness box” one can ask permission to get up is a “magic line” which the expert cannot cross;
and go to your exhibits in order to better answer never attempt to hand anything across that line,
questions. including photographs or other exhibits.
 This request can be made more reasonable on the
pretext that, by using exhibits on stands close to the
jury, that your answers will be more clearly
understandable by the jury.

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 Getting your goat!  Using map copies that are intentionally

 Accelerating the pace of questioning in hopes blurred, vague, or otherwise confusing
that you will rush your answers. example: can pull out your own photos if the
 The Expert is not required to answer with court copies are unclear, or ask to use a
extreme speed; you are allowed to collect different exhibit.
your thoughts before answering, but it can
 Using a web of numbers to confuse both the
feel awkward until you get used to everyone
staring at you. Remember: they are not jury and the surveyor. Example: adding up
paying you to break the land speed record. old slope distances to compare with modern
 Variation: quick subject shifts to keep you off horizontal measures.
balance.  Just Say “No”

 The disputed portion of the boundary was marked by

a visible line in the form of a stonewall for at least the
period from 1924 to 1964. Although the stonewall in
this area was not as high as other portions of the
Aerial Photographs stonewall (testimony indicated that the height of the
wall in the disputed area was no more than one and
one-half to two feet), the fact remains that the
stonewall was visible.

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 On this issue of the visible line, the aerial photograph  Moreover, the aerial photograph is the best response
used by plaintiffs' surveyor to plot the course of the to defendants' thoughtful argument that plaintiffs
missing portion of the stonewall was indispensable to should be precluded from arguing the doctrine of
plaintiffs' case. Its availability corroborates the acquiescence in this case because the stonewall in
testimony about the existence of the visible line, and the area in dispute no longer exists. Defendants see
its use by the surveyor to plot the course provides the the possibility of fraudulent claims when the
court with an accurate basis for making a judgment monuments or fences that mark the visible lines are
on the proper boundary description. The flawed gone. However, the aerial photograph again
recollection of the plaintiff and his witnesses about corroborates beyond any question the testimony of
the precise location of the boundary would not have those who claim that the visible line was there.
provided an adequate basis for such a judgment.

 Plaintiffs also claim that the municipal defendants  …"Parking Analysis Report" of the Driftwood Motel
ignored their repeated complaints concerning the property prepared by Ray Carpenter, a licensed
Driftwood's unlawful expansion of its impervious professional engineer with R.C. Associates Consulting, Inc.
surface area by replacing the wood plank boardwalk  Carpenter reviewed "historical aerial photography …to
with a concrete patio. determine the history of the parking lot at the site." Using
 According to the surveyor who examined and an aerial photograph of the property taken in 1978,
compared the data, the 1989 survey showed that the Carpenter established that the "overall dimensions of the
percentage of total impervious lot coverage was parking lot have not changed to date[,] however no stall
75.9%. By contrast, the survey completed in 2010 delineation/stripping was evident."
showed the percentage of total impervious lot  The earliest evidence showing designated spaces in the
coverage as 85.92%. motel's parking lot is a 1988 aerial photograph depicting
twenty-eight delineated parking spaces.

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 Trial courts are expected to perform a gatekeeper role

in determining whether there exists a reasonable need
for an expert's testimony, and what the parameters of
that testimony may be.
Frye Test &  Consistent with Evidence Rule 702, a trial court must
be satisfied that the expert's knowledge and
Daubert Test experience is reasonably required to inform the jury
on a matter that may be beyond the jurors' ken and
will help jurors understand the evidence or determine
a fact in issue.

 Expert testimony, including opinions that embrace "The rule is that the opinions of experts or skilled
ultimate issues, is permitted when the testimony has witnesses are admissible in evidence …
value in assisting the jury's understanding of facts and …in those cases in which the matter of inquiry is such that
their significance, and when the trial court finds that inexperienced persons are unlikely to prove capable of
that testimony is not unduly prejudicial. forming a correct judgment upon it, …
…for the reason that the subject-matter so far partakes of
a science, art, or trade as to require a previous habit or
experience or study in it, in order to acquire a knowledge
of it.
[KK continued]

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When the question involved does not lie within the range while courts will go a long way in admitting expert
of common experience or common knowledge, … testimony deduced from a well-recognized scientific
…but requires special experience or special knowledge, principle or discovery, …
then the opinions of witnesses skilled in that particular …the thing from which the deduction is made must be
science, art, or trade to which the question relates are sufficiently established to have gained general acceptance
admissible in evidence." in the particular field in which it belongs.

"Relevant evidence" is defined as that which has "any under the Rules the trial judge must ensure that any and
tendency to make the existence of any fact that is of all scientific testimony or evidence admitted is not only
consequence to the determination of the action more relevant, but reliable.
probable or less probable than it would be without the the requirement that an expert's testimony pertain to
evidence. "scientific knowledge" establishes a standard of
If scientific, technical, or other specialized knowledge will evidentiary reliability.
assist the trier of fact to understand the evidence or to Expert testimony which does not relate to any issue in
determine a fact in issue, a witness qualified as an expert the case is not relevant and, ergo, non-helpful
by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or
otherwise."

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Faced with a proffer of expert scientific testimony, then, Ordinarily, a key question to be answered in determining
the trial judge must determine at the outset, pursuant to whether a theory or technique is scientific knowledge
Rule 104(a), that will assist the trier of fact will be whether it can be
…whether the expert is proposing to testify to (1) (and has been) tested.
scientific knowledge that… "Scientific methodology today is based on generating
(2) will assist the trier of fact to understand or determine hypotheses and testing them to see if they can be
a fact in issue. This entails a preliminary assessment of falsified; indeed, this methodology is what distinguishes
whether the reasoning or methodology underlying the science from other fields of human inquiry."
testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to
the facts in issue.

Another pertinent consideration is whether the theory or Finally, "general acceptance" can yet have a bearing on
technique has been subjected to peer review and the inquiry. A "reliability assessment does not require,
publication. although it does permit, explicit identification of a
…in some instances well-grounded but innovative relevant scientific community and an express
theories will not have been published, determination of a particular degree of acceptance
…Some propositions, moreover, are too particular, too within that community."
new, or of too limited interest to be published. Widespread acceptance can be an important factor in
…But submission to the scrutiny of the scientific ruling particular evidence admissible, and "a known
community is a component of "good science," in part technique which has been able to attract only minimal
because it increases the likelihood that substantive flaws support within the community," … may properly be
in methodology will be detected. viewed with skepticism.

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Throughout, a judge assessing a proffer of expert Vigorous cross-examination, presentation of contrary

scientific testimony under Rule 702 should also be evidence, and careful instruction on the burden of proof
mindful of other applicable rules. are the traditional and appropriate means of attacking
shaky but admissible evidence.
Rule 703 provides that expert opinions based on
To summarize: "General acceptance" is not a necessary
otherwise inadmissible hearsay are to be admitted only
precondition to the admissibility of scientific evidence
if the facts or data are "of a type reasonably relied upon under the Federal Rules of Evidence, but the Rules of
by experts in the particular field in forming opinions or Evidence -- especially Rule 702 -- do assign to the trial
inferences upon the subject." judge the task of ensuring that an expert's testimony both
rests on a reliable foundation and is relevant to the task at
hand. Pertinent evidence based on scientifically valid
principles will satisfy those demands.

 Evidence Rule 56(2) provides:  …The facts or data in the particular case upon which
 A witness qualified pursuant to Rule 19 as an expert an expert bases an opinion or inference may be those
by knowledge, skill, experience, training or perceived by or made known to him at or before the
education… hearing.
 … may testify in the form of opinion or otherwise as to  If of a type reasonably relied upon by experts in the
matters requiring scientific, technical or other particular field in forming opinions or inferences upon
specialized knowledge … the subject, the facts or data need not be admissible
 …if such testimony will assist the trier of fact to in evidence.
understand the evidence or determine a fact in issue.

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 the Court explained that in determining admissibility  "generally three ways in which a proponent of expert
of expert testimony, the field of science … testimony or scientific results can prove the required
 …"must be at a state of the art such that an expert's reliability in terms of its general acceptance within the
testimony could be sufficiently reliable." scientific community:
 Reliability can be established by demonstrating  (1) the testimony of knowledgeable experts;
"general acceptance" of the expert's opinion or theory  (2) authoritative scientific literature;
within the scientific or professional community.  (3) persuasive judicial decisions which acknowledge
such general acceptance of expert testimony."
 We have followed that approach for determining
reliability of expert evidence in a variety of contexts.

 New Jersey Rule of Evidence 702, which is virtually  In effect, this rule imposes three basic requirements
identical to former Evid. R. 56(2), governs the on the admission of expert testimony:
admission of expert testimony. The rule provides:  (1) the intended testimony must concern a subject
 If scientific, technical, or other specialized knowledge matter that is beyond the ken of the average juror;
will assist the trier of fact to understand the evidence  (2) the subject of the testimony must be at a state of
or to determine a fact in issue, … the art such that an expert's testimony could be
 …a witness qualified as an expert by knowledge, skill, sufficiently reliable; and
experience, training, or education may testify thereto  (3) the witness must have sufficient expertise to
in the form of an opinion or otherwise. explain the intended testimony.

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 we continue to apply the general acceptance or Frye  In 1993, the United States Supreme Court abandoned
test for determining the scientific reliability of expert Frye's general-acceptance standard as the exclusive
testimony. In Frye, … the court wrote: test for admitting scientific testimony in favor of the
 [W]hile courts will go a long way in admitting expert more relaxed standards of Federal Rule of Evidence
testimony deduced from a well-recognized scientific 702.
principle or discovery, the thing from which the  Even before the United States Supreme Court decided
deduction is made must be sufficiently established to Daubert, this Court had relaxed the test for
have gained general acceptance in the particular field admissibility of scientific evidence in toxic-tort cases.
in which it belongs.  We have been cautious in expanding the more relaxed
standard to other contexts.
 Thus, the test in criminal cases remains whether the
scientific community generally accepts the evidence.

 A proponent of a newly-devised scientific technology  The Dispute: This case involves a dispute over the
can prove its general acceptance in three ways: ownership of the 14-foot right of way reserved in the
 (1) by expert testimony as to the general acceptance, Sims deed. Over the years, all parties and their
predecessors in interest have used the right of way at
among those in the profession, of the premises on
issue for ingress and egress to the adjoining properties.
which the proffered expert witness based his or her
analysis;  There have been multiple surveys performed in this
case. Each of the surveys performed used a line within
 (2) by authoritative scientific and legal writings inches of the others to mark the western boundary of
indicating that the scientific community accepts the the property to the immediate east of that property
premises underlying the proffered testimony; and owned by the plaintiffs and the defendants. In other
 (3) by judicial opinions that indicate the expert's words, these surveys use a similar line to mark the
premises have gained general acceptance. western boundary of the Old Schoolhouse Lot.

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 The court finds that the surveys conducted by  Although the language in the deed may have changed,
XXXXXXXX, XXXXXXXXXX, and XXXXXXXX do not reflect the intent of the original grantor, Sims, to convey the
the intent of the grantor, as evidenced by the chains of property subject to a reserved right of way across the
title. In the original deed from Sims to Brown, dated plaintiff's property and connecting the defendant's
April 30, 1860, the grantor states that the property is property to the main road is clearly reflected in the
conveyed "Reserving the right of way along Smith's line language so chosen.
to the Williamsburg road." From this, the court finds  The court finds, however, that the intent of the grantor
that Sims intended to convey the property with a was lost within the defendants' chain of title; and this is,
reservation of a right of way along Smith's line, which perhaps, the reason that the surveys concluding that
became the Old Schoolhouse Lot. the defendants own the land do not echo the intent of
the original grantor, Sims.

 From this, the court finds that the intent of Sims in the  Upon reviewing the first deed for the "tract or strip of
Bess deed was to convey the Bess property with an land for a Right-of-Way," the court finds that Beck did
assignment of the use of the right of way across the not intend to convey fee simple title in the strip of land
Brown property. This specific language is also used in but instead made a conveyance of the use of a right of
the deed from Bess to Beck, recorded on February 5, way across the adjoining property. This is evidenced by
1869. the language used, i.e., "for a Right-of-Way"
 The confusion in the defendants' chain of title appears  However, many of the deeds subsequent to the March
to have arisen on March 13, 1906, when Beck conveyed 1906 deed dropped the "right-of-way" language, and
a "tract or strip of land for a Right-of-Way" to C.W. they appear to convey fee simple title to the 14-foot
Jordan (the "first" deed). That deed appears to indicate, tract of land. This "third tract of land" appears in the
at first glance, that Beck owned the property outright. conveyance from Jordan to Hughes, recorded February
26, 1914…

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 In most cases, the surveyor is testifying in

civil court, rather than criminal court, so
“beyond a reasonable doubt” is not required.
 “A high degree of professional surety is what
we need to strive for, where there is a heavy
Rules of Evidence
preponderance of evidence on one side or the
other of any decision.
 Are you positive??

 The last assignment of error is the refusal to allow C. E.

 "An expert witness ordinarily may not express an Krebs, an engineer, to answer a question as to how he
opinion on an ultimate issue of fact, which must be would locate the disputed corners. His answer was vouched
decided by the trier of fact. on the record to be: "If I were permitted to locate this line
 . . . An expert may, however, give an opinion on an having the point designated in the question, I would locate
ultimate issue where the trier, in order to make the county line, and from that county line I would extend
intelligent findings, needs expert assistance on the the line N. 23 W. the distance it scales on the map from the
precise question on which it must pass . . . ." county line, which, in this direction, is 240 feet and I would
locate that as the northeast corner of lease No. 4. Then I
would go to the forks of Tom's Branch and locate the other
corner of this line, and run the line from the forks of Tom's
Branch to the point 240 feet north of the county line, on the
line extending N. 23 [degrees] W."

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 A registered or licensed surveyor may testify as an expert  The danger of unfair prejudice can be lessened with a
witness, and is admissible in determining the boundary "limiting instruction that impress[es] [up]on the jury its
between properties. right to reject the opinion of an expert."
 A surveyor can testify as an expert about work performed by  Ultimate issue expert opinion testimony "generally is
other surveyors, and he or she can testify as to his or her to be admitted provided the trial court is satisfied that
own survey performed on the property in dispute. The the testimony will assist the jury in resolving material
surveyor's expert opinion can be based on deed descriptions, factual issues," and so long as the court has a
field notes, maps, other surveys, points on the ground, facts "heightened awareness" of the potential for prejudice.
proved by other witnesses, and hearsay evidence, …Concerns about unfairly prejudicial ultimate issue
 but if a surveyor does not have a factual basis for his or her expert testimony can
location of the property line, his or her conclusion is not
evidence of the location of the boundary.

 …  Review Court Orders which may amend this Rule

 adequately…be addressed by the trial court's
qualifying instruction to the jury, framed in the  Rule 702. Testimony by Experts
context of the specific testimony adduced at trial
 …convey[ing] to the jury its absolute prerogative to  If scientific, technical, or other specialized
reject both the expert's opinion and the version of the knowledge will assist the trier of fact to understand
facts consistent with that opinion, or to rely on that the evidence or to determine a fact in issue, a witness
opinion in resolving the material factual issues. qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form
of an opinion or otherwise.

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 Review Court Orders which may amend this Rule  As we said in Warren v. Waterville Urban Renewal
Authority, 1967, Me., 235 A.2d 295:
 "The opinion of an expert is not necessarily rendered
 Rule 704. Opinion on Ultimate Issue inadmissible or incompetent because it may be based
on knowledge of facts gained from hearsay sources.
 Testimony in the form of an opinion or inference  Any expert worthy of the name must of necessity
assimilate prior learning derived from the experiences
otherwise admissible is not objectionable because it of others. As an expert witness he draws upon various
embraces an ultimate issue to be decided by the trier sources of information whose credibility or
of fact. trustworthiness he must determine in the light of his
expertness. It would completely frustrate the use of
expert witnesses if they were obliged to substantiate
each single factor upon which their ultimate opinion
must depend upon firsthand personal knowledge or
personal experience…

 If some of the expert's factual information is derived  Remember: “It is better to know the Judge
from sources fairly trustworthy though hearsay and he than the Law
has as such the ability to co-ordinate and evaluate that
information with all the other facts in his possession  Generally, the textbook response is “No”, and
secured through personal observation, the trial court it is frequently true
may in the exercise of a sound discretion permit the
expert's ultimate opinion to be considered by the jury  If the Judge wants to hear your comments,
[the factfinder]."
 The defendants' counsel was within his rights in cross-
you will be allowed to answer questions
examination to bring out before the factfinder some of regarding questions of title.
the hear-say sources tapped by the surveyors to support
their ultimate opinion, but, having done so, he cannot
now complain about the hearsay, provided their ultimate
conclusion was actually based on their own independent
investigation and calculations.

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 Absolutely! (but think twice before printing it

on a map…)
 You may need case law on subjects that, to Lessons in Common Law
you, seem to need no clarification, such as
junior-senior title, or that the call for a creek
&
carries to the center of the creek. Case Studies
 If your case hinges on a principle, come
prepared with proof that the principle in
question is applicable to your state.

 Harkness testified that the Hill property was originally part  Harkness testified that the last call of the triangle fell within
of the premises referred to as the parent parcel and that the the area of Tunnel Hill Road but that the vast majority of
first conveyance of what is now the Hill property occurred in decisions made in Ohio and other states transfer property to
1949. He further testified that the records reflect that this the center of a road unless otherwise indicated.
was the first conveyance of property from the parent parcel  We find that the testimony of Charles Harkness established
and therefore senior in priority. that he conducted his survey in accordance with surveying
 Harkness stated that in order to determine the starting standards. Harkness researched and utilized other sources
point, he attempted to find monumentation that would have of information to determine the intent of the parties in
existed in 1949. He testified that in order to determine creating the original boundary lines consistent with Ohio
monumentation you must research how people use property Adm. Code 4733-37-02. Furthermore, he relied on feasible
and particularly how this property was used in 1949. monumentation both natural and artificial.

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 XXXXXXX, an engineer and land surveyor, who was a  When and where petitioner starting shooting at
consultant in the reconstruction of accidents, was decedent were highly contested at trial.
called as an expert witness for Seay.  We agree with the circuit court's reasoning and find
 He had conducted tests and made observations to that it did not abuse its discretion in excluding Mr.
determine sight distances from the intersection. He XXXXXXXXXXX’s testimony.
found that in daylight he could see a target placed at  Mr. XXXXXXXXXXXX is a surveyor, not a crime scene
the height of headlights on Route 220 at a distance of reconstuctionist or an expert in firearms or
1,480 feet north of a point in the crossover through ballistics. Therefore, the probative value of his
the median strip. At night he could see the glare of testimony was substantially outweighed by the
headlights on Route 220 1,700 to 1,800 feet north of danger of confusing the issues or misleading the
the same point.
jury.

 Mr. xxxxxxxxxx 's 1983 survey was admitted into evidence  The defendants' surveyor, YYYYYYY, was of the opinion
as Plaintiff's Exhibit A. Mr. xxxxxxxxxx first testified that he that the disputed boundary line would lay "roughly" 70 feet
found a closure error in both the Landis deed and the Keller north of the line "x - y" designated by Mr. xxxxxxxxxx. He
deed when he calculated the deed descriptions for their reached this conclusion by running a line from a single
degree of accuracy. Following his survey, he mathematically point in the line "x - y" to posts set near a cemetery on the
corrected the descriptions involved to make them close and northern boundary of the Keller property and finding the
then attempted to place a line that would agree with both line to the cemetery to be 70 feet short.
descriptions accurately. To ascertain the disputed boundary  He did not survey the entire tract of land and although he
line, Mr. xxxxxxxxxx conducted a traverse survey using walked certain distances to measure certain hash marks
stones and natural monuments and measured the distances and other identifiable marks, he did not measure those
called for in the deeds to compare the actual land to its distances. Mr. YYYYYYY testified that using his calculations
stated description. He found the fence lines and angles and moving the line 70 feet north, the area of land in
basically consistent with the deed calls. dispute would consist of approximately nine acres.

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 Second, the court found that the survey performed by  that the parcels of land involved in this dispute were both
xxxxxxxxxx was an accurate survey and further, that first surveyed and described in 1931 out of a common
although the defendants' surveyor, Mr. YYYYYYY, partition suit with each parcel of land being described as
took issue with the line found by Mr. xxxxxxxx, the approximately 33 acres. The defendants' surveyor would
defendants failed to state any boundary markers or alter that acreage by as much as nine acres. Like the trial
directions to enable the jury to ascertain the true court, we find this an incredible result.
location of a line if they should prevail.  …the defendants failed to present evidence from which the
 Because of the lack of evidence presented by the jury could have established the boundary line. The purpose
defendants to establish a boundary line, the court of the lawsuit was to fix the exact location of the disputed
line. The vague and uncertain testimony of the defendants'
concluded that should the jury return a verdict for the
surveyor that the appropriate line would be "roughly" or
defendants it would have to be set aside as contrary
"approximately" 70 feet north of where plaintiffs' surveyor
to the law and the evidence.
placed the line is inadequate to support a verdict.

 In 1975, she sold to a neighbor, Arnold Preston, a  Beginning at a point in the northerly line of Town Highway No.
parcel of land to the west of her residence, retaining 4 on Chelsea West Hill at a corner of land nor or formerly of
ownership of her house and other lands. The Wheelers Buxton; -----Thence in a northeasterly direction along said
Buxton land along a line marked by a fence line a distance of
now own the parcel she sold to Preston, and the
1150 feet, more or less, to an iron pipe at land now or formerly
Hoffmans now own her house and the lands that of James Lazarus; -----Thence turning a right angle to the
remained after a second sale of another parcel to the right and running along said Lazarus land a distance of 400
east of her house. feet, more or less, to a point; -----Thence turning in a
 The issue in this case is the location of the common southerly direction along land retained by the grantor a
boundary that was created by the deed of Catherine distance of 1150 feet, more or less, to a wooden stake in the
Crouse to Preston on October 28, 1975. northerly line of Town Highway No. 4; ----Thence turning a
right angle to the right and running along the northerly side of
said Town Highway No. 4, a distance of 300 feet, more or less,
to the point of beginning. Containing 10.1 acres, more or less.

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 Both surveyors agree that it is not possible to lay out on  The Wheelers' surveyor, SMITH has located the
the ground a parcel of land with the dimensions stated in northeast corner at an iron pipe 551.8 feet from the
the deed description and have a perimeter that closes. northwest corner (rather than 400 +/- feet according
 Both agree that it is their professional responsibility to to the deed call), and the southeast corner on the town
endeavor to determine the intent of the grantor from the road at an iron pipe a distance of 291.7 feet from the
language in the deed to determine the location of the point of beginning (rather than 300 +/- feet according
boundary line. to the deed call). His survey produces acreage of
 Both agree on the location of the point of beginning, the 10.095 acres.
location of the first course along Buxton land and its
termina-tion at a pipe at the northwest corner of the
Wheeler parcel, and the direction of the second course
along Lazarus land.

 He relies heavily on the statement in the deed that the  The Hoffmans' surveyor, JONES has located the
property contains 10.1 acres as expressing the intent northeast corner 400 feet from the northwest corner,
of the grantor, as well as three identical iron pipes he and has located the southeast corner 300 feet from the
found at the northwest, northeast, and south-east point of beginning on the road. The resulting common
corners he marked as indicating the property corners. boundary line along the third course indicates acreage
He also relies on the existence of state subdivision of the Wheeler parcel of approximately 8.4 acres, less
regulations in 1975 that exempted parcels over 10 than the 10.1 acres stated in the deed and less than
acres from complying with state subdivision the 10 + acres required for the division of the Crouse
regulations concerning water and sewer systems, land to be "not a subdivision" under the state
subdivision regulations.

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 Mr. Preston testified that when he bought the parcel from  In determining how far to run the second course,
Catherine Crouse, he was not shown the boundaries. He SMITH continued past 400 feet to an iron pipe he
knew that the parcel consisted of 300 feet along the road found in the ground at approximately 552 feet. He
and 400 along the back line, as stated in the deed apparently treated the iron pipe as if it were a
description, and that it was said to contain 10.1 acres. monument, but it is not a monument, as there is no
 There is no evidence showing who placed those three reference to an iron pipe at that location in the deed
pipes there. description.
 Thus, as to the pipes SMITH found at the northeast and  SMITH also apparently treated the iron pipe he found
southeast corners he depicted on his survey, it is near the town road as a monument. However, although
unknown when they were placed in the ground or by there was an iron pipe there, there was no sign of a
whom or why. There are no pipes referenced in the deed wooden stake in the vicinity, which was the actual
description at the northeast and southeast corners. monument in 1975.

 The court finds the boundary line between the parcels to be  Rule 703 of the West Virginia Rules of Evidence provides
the one determined by JONES, as his is based on required as follows: The facts or data in the particular case upon
priorities in determining deed descriptions. which an expert bases an opinion or inference may be
 SMITH contends that the intent of the grantor controls, and those perceived by or made known to him at or before
that his line is consistent with the intent of Catherine Crouse the hearing. If of a type reasonably relied upon by
to convey 10.1 acres. However, the intent of the grantor that experts in the particular field in forming opinions or
is relevant is the intent as to location of boundaries, not intent inferences upon the subject, the facts or data need not
to avoid regulations. be admissible in evidence.
 In this case, the evidence is clear that Catherine Crouse  In effect since February 1, 1985, this Rule is clearly
intended to avoid compliance with state subdivision applicable to the present case. Cases decided prior to
requirements, the Rules of Evidence are still applicable in analyzing the
 …but as to the location of boundaries, her intent was that the underlying basis for an opinion.
shape of the property would be determined by measurements

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 It is a well-settled practice in locating lines for the  We have held that the construction of a deed is wholly
purpose of a survey to begin at a known corner and a question of law for the court. Brady v. Reiner, 157
locate the other corners by courses and distances… W.Va. 10, 29, 198 S.E.2d 812, 824 (1973). In
 When a party's surveyor states that he ran the survey in discounting the opinion of the plaintiffs' surveyor,
the manner he did in order to make a line come where which was of a type not reasonably relied upon by
the party hiring him claimed it was located, such experts in this field,
evidence should be discounted…  and in accepting a 1948 survey done on the property
 The plaintiffs' surveyor relied upon representations of which met all standards for recordation, we find the
one of the plaintiffs below in determining the boundary circuit court committed no error.
line and ignored the boundary description in the deed.
Clearly, the plaintiffs' surveyor did not run his survey in
conformity with generally accepted practice.

 The appellant's first contention in the present proceeding is  Also, a map made by a surveyor, although not
that the trial court erred in admitting the plat into evidence and evidence independent of his testimony, is properly
allowing the jury to consider it as a basis for the its verdict. In admissible in connection with his testimony for
arguing the point, however, the appellant does not focus on the illustration and explanation of his evidence. As stated
admissibility of the survey, but rather on the surveyor's
in syllabus point 1 of Covert v. Chesapeake & Ohio
conclusion as to the location of the boundary line in dispute.
Railway Co., 85 W.Va. 64, 100 S.E. 854 (1919):
 In the course of the trial Mr. XXXXXX, the surveyor for the
xxxxxx’s who had prepared the map, explained how he had  A map or blue print made by a surveyor, though not
surveyed the line in question and how he had drawn his sketch. evidence independently of his testimony, is properly
He indicated that during his survey he had located certain iron admitted in connection therewith for illustration and
pins noted on his plat. explanation of his evidence.
 He explained how his survey findings differed from what the
appellant claimed, and he indicated that the plat showed how
he thought the lines ran.

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 It appears that Surveyor XXXXXX explained in Mr. GGGGGGGG affidavit stated he is an engineer and
considerable detail how he conducted his survey and surveyor licensed to engage in such professions in the
how he reached his opinions as to the location of the State of Texas and that he had been hired by Mr. Neal to
boundary line in question. conduct a survey to determine the exact location of the
 He used the plat to illustrate his testimony. Under the common boundary between the Neals' property and the
circumstances, the trial judge did not abuse his adjoining property, owned at that time by Mrs. Dodd.
discretion in admitting the plat into evidence. GGGGGGGG stated he conducted the survey …
Although Surveyor XXXXXX's findings were contrary to …but the Neals were unhappy with the result, insisting,
the appellant's belief as to where the boundary line instead, that the boundary was located further south onto
ran, he was a licensed surveyor in the State of West Mrs. Dodd's property.
Virginia.

Mr. GGGGGGGG stated in his affidavit that he could not A de novo review of the record reflects that there were
find any legal basis for this claimed variance despite a three surveys of the Neal and Machaud properties and
diligent search in the official records of Guadalupe that in each survey, the boundary lines were depicted
County and after examining preexisting monuments virtually identically.
and/or markers located on the properties in question. Further, previous owners of both properties testified that
Mr. GGGGGGGG further stated that Mr. Neal requested he they were aware of the encroachments and permitted
move the pins along a line defined by Mr. Neal and that them, although no one ever asserted a claim to another's
he then survey this line. property or dispossessed another or otherwise excluded
another from any portion of their property.

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Although Mr. Neal claimed that he and Mr. Dodd had an

oral agreement regarding the boundary, no written  Concededly, the description and respective chains of
document supports the purported conveyance. title do not definitively establish the boundary lines
"[a]lthough acquiescence and recognition may be between the lands of the contending parties.
evidence of an agreement fixing a boundary and may  Nor could that line be determined on the basis of
support a inference or presumption that there has been historical usage or from the deed descriptions of named
such an agreement, this presumption will not apply . . . abutting lands. Consequently, resolution of the dispute
when the true boundary is established conclusively by hinged upon the weight to be given the opposing
undisputed evidence." opinions of the parties' experts. The record amply
"When there is no doubt as to the true location of the supports Supreme Court's decision to accord greater
boundary line, mere proof of acquiescence in an weight to the opinions of plaintiff's three experts and
erroneous line will not support a verdict." the surveys upon which they relied than to that of
Braley's expert.

 For instance, Braley's surveyor opined that the  Moreover, the description of the western boundary of
Lubianetsky survey correctly depicted the boundary line plaintiff's land in the various successive deeds into
between the lands of plaintiff and the Shuldiners. the deed of plaintiff calls for only two course
 However, the Lubianetsky survey represents an attempt directions, while the stone wall has numerous drastic
to follow the description in the deed to the Shuldiners changes in direction.
and, as previously noted, no one was able to find the  Finally, fixing the western boundary of plaintiff's
source of that description in any chain of title. It is… parcel at the stone wall, as urged by Braley's expert,
 … particularly incongruous that the stone wall claimed would effectively excise at least one third of the 32
by Braley's expert to be the historic boundary line is acres called for in all of the deeds to the parcel going
never referred to in the various chains of title, despite its back to 1841.
prominency as a potential monument for a property line.

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 Although the surveys relied upon by plaintiff's  "The boundary dispute cases do not lend themselves
experts also present some discrepancies and to simple characterization. The analysis is very much
uncertainties, on balance we conclude that Supreme based on a fact-specific assessment of each dispute.
Court's determination is supported by the weight of  To the extent any general rule can be derived, it is
the credible evidence. Moreover, the trial court's one that holds the party who can show physical
assessment of the credibility and weight to be evidence (i.e. a monument of some sort) plus use
accorded an expert's testimony in a nonjury trial is most often prevails."
entitled to deference by a reviewing court

In a boundary dispute, the ultimate object of the trier of Although the parties do not direct us to, nor can we
fact is to determine the "true location of the line in find, any Texas case interpreting the phrase
dispute." …Moreover, "substantially correct" as used in a boundary dispute
[w]hen this cannot be done with reasonable certainty jury charge, courts have clarified the phrase in other
due to the lapse of time or the obliteration of the contexts.
evidence of the original locater, … Substantially correct . . . does not mean that it must be
it is not only permissible, but, out of necessity, required absolutely correct, nor does it mean one that is merely
that the courts resort to any evidence tending to sufficient to call the matter to the attention of the court
establish the place of the original footsteps of the will suffice. It means one that in substance and in the
surveyor which meet the requirement that it is the best main is correct, and that is not affirmatively incorrect.
evidence of which the case is susceptible.

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 …entire case began because there is a belief that the  It is also pertinent to note that the defendant's family
original survey done by Mr. Mastrangelo in 1969 engaged two of the surveyors, Mr. Pivovarnick and Mr.
appeared to the plaintiffs to be incorrect. Sperling of LGA. As a result, the defendant finds herself
 Then began a series of additional surveys. We have the in the rather unique position of having engaged two
Newell survey, the Harris survey, the two PJE surveys, experts that agree with the plaintiffs . . . .
and the final survey, the Pivovarnick survey.  …[defendant is unable] to produce anyone with an
 Each of those were dealt with at length [already] and I engineering background or a survey background to
am not going to dwell on them any further except… support [her] claim.
 … to point out that [all four] as well as the conclusion  This is not because defendant didn't try. It is because
of the two surveyors on the Commission, Mr. Smith on several occasions people with the expertise to
and Mr. Sypniewski, all came to the same conclusion conduct surveys and analyze drawings and
regarding the situation in question. . . . The strip in measurements in a professional capacity did not agree
question is the property of the plaintiff[s]. with her assertions regarding the thirty-three foot strip.

 So that not only is there an inability of the defendant to  QUASI-JUDICIAL CAPACITY OF SURVEYORS
produce expert testimony to support [her] position, but  “I have thus indicated a few of the questions with
the defendant would ask … which surveyors may now and then have occasion
 …that the court essentially disregard the findings of six to deal, and to which they should bring good
experts, two on the Commission, two surveyors, two sense and sound judgment. Surveyors are not
hired by each of the parties, all of which come to the and cannot be judicial officers, but in a great
same conclusion, …
many cases they act in a quasi-judicial capacity
 …and allow her assessment as a layman having no with the acquiescence of parties concerned; and
expertise in that field to triumph. That is essentially the
it is important for them to know by what rules
proposition that the defendant seeks to have the court
[accept].
they are to be guided in the discharge of their
judicial functions.”

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