Second Thoughts: The Land Surveyor's Rules of Evidence
Professional Surveyor Magazine - January 2001
Wilhelm A. Schmidt, PLS
Ever since Curtis M. Brown introduced the rules of evidence into surveying parlance (Evidence and Procedures, First Ed., 1962, chapter 2), we surveyors speak of evidence without so much as blinking an eye. The less we know about the rules themselves, the more we tend to agree with Brown's premise that the land surveyor "is not qualified to make property locations … until he understands … the law of evidence" (p. 12). By that standard, however, there would be few qualified surveyors—only the handful of us that are also members of the Bar.
For the record, Brown himself expressed reservation about the claim. Surveyors, he said, cannot give the appearance of practicing law: we are to know these rules, but apply them without proper authority. The co-authors of the latest edition of the book (Third, 1994) have completely backed away from the claim, if they ever accepted it to begin with. Both Walter G. Robillard and Donald A. Wilson have conceded over a brew that surveyors do not really follow these rules in their daily practice, and have dropped the quoted passage from the book.
Why then do we speak of evidence so freely? Because it feels right!
In the strictest sense, it isn't. Evidence is "material … legally presented at the trial of an issue … [to prove] the truth or falsity of … an alleged fact." (Black's Law Dictionary, Sixth Ed., 1990, p. 555a). According to this definition, the information gathered by surveyors is properly called evidence only when it is used in court.
Still, we speak frankly about evidence outside of court. In a previous column, I stated that much of what we call evidence actually serves as notice, directing us—like detectives—to look for further information, documentary and physical. At least some of this information forms the basis for our decisions about the correct location of boundaries. To that extent, the information is, in the ordinary sense of the word, evidence—literally, that out of which something is seen.
In this sense, the word is often used in conjunction with judgment. We all form opinions or make decisions on the basis of the information available to us, which we then call evidence. These opinions and decisions lack strict logical certainty, but are conclusions drawn on practical grounds. They are declarations of what we think is right. We surveyors have less authority than judges to make such declarations, but more authority, at least in our area of expertise, than other people. Since our judgments mimic those of judges, our authority is said to be quasi-judicial.
But does this authority imply that we must follow the rules of evidence? No. These rules are a compilation of rulings made by judges over the years about the orderly presentation of evidence in court. What led Brown to claim that we must "obey" them? "Nearly all evidentiary rules were derived from common law until the Uniform Rules of Evidence were published in 1954" (Gilbert Law Summaries. Evidence, Sixteenth Ed. 1992-93). At the time, Brown was working on his first book and must have realized that surveyors ought to be made aware of these rules. But he overstates their significance. They were meant to be followed in court. But even in court, they are not binding. "Although influential, few jurisdictions adopted the Rules" (Ibid.). Why should they be more binding on surveyors, who have no control over the presentation of evidence in court? All that can reasonably be said is that surveyors should know them in order to be effective as expert witnesses.
Even if we need not follow these rules, shouldn't we do it anyway? No, for the simple reason that our conclusions must be right, no matter what the outcome might be. The rules are followed by lawyers in their advocacy of a case, but surveyors must be impartial. Our public trust is to establish the one true location of property lines, irrespective of the consequences.
But do we not follow these rules anyway? In the back of our minds, we always know that we may have to explain what we did in court. Still, they are the last thing on our mind when we think the evidence through on our own; and when a dispute lands in court, their application is often mystifying. The rules have to do with the admissibility, relevancy, and conclusiveness of the evidence (Brown, First Ed., p. 22). I have had information on which I based my conclusions ruled inadmissible, and I have had information that was admitted ruled irrelevant. Moreover, I have had information that I considered irrefutable ruled inconclusive. Boundary disputes are civil cases, and I have seen disputes resolved on the basis of the preponderance of evidence, rather than what I considered to be the most sound evidence available. That's being at the mercy of the court!
Everything is Relevant
What rules do we follow? The rules of construction. To the extent, however, that we treat the facts at our disposal—monuments and measurements—as evidence, how do we deal with it? In a method that is contrary to the rules of evidence. For us, there is nothing that is not admissible. We cannot prejudge the value of any piece of information. Moreover, there is nothing that is not relevant. We have constructive notice to discover every piece of information that may put us on the right track. Finally, unfortunately, there is nothing that is not disputable. Our professional opinions are always open to question. Even if we can retrace boundary lines in accordance with the rules of construction, other laws establishing ownership may invalidate these lines.
If there are rules of evidence for surveyors, these are it, not the legal rules. Having said that, I must also say that my disagreement with Curtis M. Brown's claim does not diminish my respect for him. He is a venerable man, on the "principle" that zealousness in the interest of the profession is no vice.
About the Author
Wilhelm A. Schmidt, PLSWilhelm Schmidt is the former owner of the surveying firm Bascom and Sieger in Allentown, Pennsylvania. You may contact him at email@example.com.
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