Legal Boundaries

In the early part of my career as a land surveyor I got the impression that many of the licensed land surveyors I encountered in the workplace or at social gatherings had a sense of legal immunity when it came to the results of their boundary surveying work. I remember an instance at a society chapter meeting when an older surveyor stood up to let us all know his stance on the subject. 

He told us that if someone did not like the results of his survey, “they can sue me.” I thought to myself, that was a bit arrogant, and at the same time wondered if he knew something I didn’t. As time moved along, I heard many other surveyors express the same sentiment in similar terms. This needed further investigation. 

When I went to law school later in my career, one of the things I learned was, theoretically, nobody is immune to prosecution. I also learned if a plaintiff has enough money, anybody can be sued. 

Many years later I experienced that situation firsthand, but it’s a story for another day. The critical question is, will the lawsuit be successful? As I continued developing my legal education in the arena of all things involving land surveying, e.g., property law and other legal issues affecting land surveyors and land surveying, I was on a mission to prove to arrogant and wayward surveyors that they, in fact, can be sued over the results of a survey. 

That quest went on for a while, until I started seeing patterns in the cases I was studying. In most instances involving surveyors, the surveyor wasn’t the one being sued. Even though the surveyor was the catalyst for completely unnecessary and expensive litigation, the surveyor always walked away unscathed. It was as if negligent surveying producing incorrect results was irrelevant to the surveyor and just didn’t matter to the surveying profession. This does not happen in other professions where incorrect results are met with legal consequences and board action—the two policing mechanisms for the professions. 

Neither of these policing mechanisms works very well for the land surveying profession, especially litigation. A boundary dispute case is not a personal injury case, therefore there is no insurance money to fund the litigation and no big damage awards. 

The parties in a boundary dispute case are funding the litigation out of their own pockets, with little or no prospects for getting their money back even if they win the lawsuit. In addition, attorney’s fees and court costs are generally not considered recoverable damages, even though the bank account is on life support. From a monetary standpoint there is literally nothing to gain by suing a surveyor.

The negligence of a surveyor in a boundary determination can go undetected for years if not decades or possibly until after the running of a statute of limitations and now it’s too late. In many cases, negligent surveying work isn’t detectable by lay persons and not discovered until another surveyor works over the same ground.

In other cases, you get the sense that something is wrong with the survey when your neighbor starts moving your fences or the bulldozer shows up at your front porch. I’m referring to actual instances in cases I have covered. 

There are other obstacles to suing a surveyor, but one final consideration is worth mentioning. There is only one person who can successfully sue the surveyor for negligence, if they can afford the cost. It is whoever went into detrimental reliance on the surveyor’s work.

That’s usually the client, but it could also include others, like every entity named in the certification on the survey. Surprisingly, it does not include the next-door neighbor who is forced to sue the surveyor’s client over the resulting boundary dispute. The next-door neighbor doesn’t rely on the survey, the survey is being opposed. 

Are surveyors immune to prosecution? Try to sue a negligent surveyor, chances are you can’t. Is this good news? Not for a healthy profession it isn’t. Consequentially, the land surveying profession is slipping away right in front of our eyes, the question remains, are we going to do anything about it?

The purpose of this column is to encourage your questions on legal issues that affect the surveying profession. You are invited to send your questions to the editor of xyHt.