September 01, 2004

Advanced Survey Examination Issues (2004, 17:05)

Advanced Survey Examination Issues

Probate and Property, September/October 2004, Volume 18, Number 5

By Richard F. Bales
Richard F. Bales is an assistant regional counsel in the Wheaton, Illinois, office of Chicago Title Insurance Company. This article and the accompanying illustrations are adapted from the book, Residential and Commercial Surveys in Illinois, by Richard F. Bales and Michael Filipski, published by the Illinois Institute for Continuing Legal Education (2004).

To a large degree, the process of examining surveys of commercial property is very similar to the examination of residential plats of survey. Is there a building line violation? If so, can it be endorsed over on the title insurance policy? If there is an encroachment on adjoining property, can it be endorsed over? Although an encroachment on the land in question cannot be endorsed over on an owner’s title insurance policy, will the parties sign an easement or license agreement? All these items have to be considered when reviewing the commercial survey.

To a large degree, the process of examining surveys of commercial property is very similar to the examination of residential plats of survey. Is there a building line violation? If so, can it be endorsed over on the title insurance policy? If there is an encroachment on adjoining property, can it be endorsed over? Although an encroachment on the land in question cannot be endorsed over on an owner’s title insurance policy, will the parties sign an easement or license agreement? All these items have to be considered when reviewing the commercial survey.

The review of a survey of commercial property, however, requires more than merely looking for encroachments and building line violations. The attorney must also be aware of a myriad of other matters, items, and concepts, some of which are rather subtle. These advanced survey examination issues are discussed in this article.

The Survey Seal, Certification, and Notes

When reviewing a plat of survey, the attorney should not ignore the surveyor’s seal, certification, and any notes that may be appended to the plat. The attorney should be concerned if a plat of survey does not have a raised or inked seal or if the seal looks “fake.” On occasion surveyors’ clients have altered a completed survey or plat of subdivision, photocopied the plat, and then passed it off as the original. To combat this problem, many surveys customarily will contain a disclaimer, indicating that they are not valid unless they have a raised seal. Some states may have legislation that addresses the problem of plat alteration. For example, Illinois law provides that only the surveyor or his or her designee can record a plat of subdivision. 765 Ill. Comp. Stat. 205/2.

A suggested survey certification is included in the 1999 ALTA/ACSM land title survey standards. The certification reads as follows:

This is to certify that this map or plat and the survey on which it is based were made in accordance with “Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys,” jointly established and adopted by ALTA, ACSM and NSPS in 1999, and includes Items _____ of Table A thereof.

Appended to the 1999 ALTA/ACSM land title survey standards is a “Table A” of “optional survey responsibilities and specifications.” This is a list of 16 optional items that can be included on the land title survey upon request. The list includes such matters as a location map of the property, parking areas, flood zone designation, and land area.

The attorney should always read the survey certification of any survey he or she is reviewing and should examine closely any certification that deviates substantially from the ALTA/ACSM certification. Generally speaking, the plat of survey should contain words to the effect that the surveyor has surveyed Blackacre. If instead the plat indicates that the surveyor has platted or located Blackacre, the attorney should ask the surveyor to clarify the certification.

Consider, for example, the following survey certifications:

I, ______, hereby declare that this plat is a correct representation of a survey made from existing plats and records.

This certification suggests that the surveyor was never in the field at all. It is clearly ambiguous and should be explained.

Another variation of this certification is the following:

I, ______, hereby state that this map or plat was based upon existing maps, plats and surveys previously prepared by this office to ALTA/ACSM standards.

A nonstandard survey certification is not necessarily an indication that the surveyor is trying to limit his or her liability. It is possible that because of either time or cost considerations, the surveyor’s client has asked the surveyor to perform nonstandard services.

For example, a surveyor wrote the second of the above two certifications after the surveyor was given only two days to survey a large tract of land. The surveyor had surveyed the property a year earlier but was not able to resurvey the property in the time allotted. As a result, the surveyor updated the survey without performing additional field work. Unfortunately, a title company might not accept a survey with such a certification unless the company is provided additional assurances.

Finally, consider this certification:

I, _____, a professional land surveyor, hereby certify that the parcel plat hereon drawn has been prepared under my direction and this plat is a correct representation of the property described therein.

When the surveyor was asked to explain this certification, he replied that his “survey” was actually a drawing based on a proposed plat of subdivision that he had prepared for a developer. Again, a title company will probably not accept such a certification.

Any “surveyor’s notes” should be read carefully. Most of the time these notes will aid the attorney in better understanding any issues or problems that the surveyor encountered while surveying the property. In addition, surveyors will often include information for the convenience of the client. This additional information might include the common address of the property or the identification of title commitment Schedule B exceptions. If the survey’s legal description differs from the legal description in the title commitment, the surveyor might add a statement explaining why this is the case.

It is possible, however, that a surveyor will include a note that limits the assurances of the survey certification. Again, this may be because of the demands of the surveyor’s client. For example, “observable evidence of utility easements is not shown pursuant to the client’s request.” Clearly this note almost emasculates the certification of the land title survey.

On the other hand, surveyors will sometimes add notes to their surveys that limit their liability under the land title survey certification. Consider the following survey note:

No statement is made concerning subsurface conditions, the existence of underground or overhead containers or facilities which may affect the use or development of this tract. The underground, surface and overhead utilities have been located from field survey information and existing drawings. The surveyor makes no guarantees that the underground, surface and overhead utilities shown comprise all such utilities in the area, either in service or abandoned. The surveyor further does not warrant that the underground utilities shown are in the exact location indicated, although he does state that they are located as accurately as possible from information available. The surveyor has not physically located the underground utilities. The surveyor makes no claim to specific knowledge regarding the usage or type of overhead wiring shown hereon.

It appears that by adding this note to his survey the surveyor has placed himself in an interesting dilemma. Generally speaking, the land title survey standards require that the surveyor show only observable evidence of utilities on the plat of survey. But once the surveyor decides to show the location of underground utilities, what is the liability of the surveyor?

This surveyor, by adding this note,  has attempted to limit his liability. But the note also refers to above ground utilities, and by adding this reference the note takes away some of the assurances of the land title survey certificate. For example, by indicating that “no statement is made concerning subsurface conditions, the existence of underground or overhead containers or facilities which may affect the use or development of this tract,” it appears that there may be other overhead utilities on the property that are not shown on the survey. Such a statement dilutes the survey certification because paragraph 5(h) of the survey standards require the surveyor to show “observable evidence of easements and/or servitudes of all kinds.”

Instead of drafting a note that may cause problems at closing, the surveyor should instead consider including a “Table A” reference to item 11 in the survey certification. Item 11 requires the surveyor to show on the survey the “location of utilities . . . existing on or serving the surveyed property as determined by: . . . observed evidence together with plans and markings provided by client, utility companies, and other appropriate sources (with reference to the source of information)[.]” Item 11 sufficiently protects the surveyor, as it limits the surveyor’s liability regarding the location of underground utilities to observable evidence of the utilities and to plans provided by the client and other sources.

Fences

Boundary lines are nonphysical lines that have no width. Fences by comparison are physical objects that do have a width. Many surveys will indicate that a boundary fence is “on line,” that is, the fence has been constructed along the boundary line of the property. But how can a fence be “on line” without some portion of the fence being across the boundary line and encroaching on adjoining property?

A fence is “on line” when any visible part of the fence is on the boundary line of the property. If, for example, three-fourths of the width of a board fence is on adjoining property, but the remaining one-fourth is on the land being surveyed, that fence is still “on line.” Only when the fence is completely on the adjacent property, with no part of the fence “on line,” is there a fence encroachment. See Stephen V. Estopinal, A Guide to Understanding Land Surveys 132–34 (1989).

Note that when surveyors survey land, they will usually not know who owns a fence. Therefore, fences will not be labeled as “encroachments” on the plat of survey. That is, there will not be a statement on the survey that “A’s” fence encroaches on “B’s” property. Rather, surveyors will usually simply depict the location of the fence and indicate the distance from the fence to the boundary line of the land.

When reviewing a survey of unsubdivided land (for example, a quarter quarter section, or approximately 40 acres), the attorney may want to question a survey that discloses a boundary fence that is “on line” relative to an interior section line, such as a quarter section line or a quarter quarter section line. (See Figure 1.) These interior lines were never surveyed by the original government surveyors; they can be located only by protracting (that is, by measuring and then establishing on the ground) the original section. Often landowners would construct boundary fences by running a line inward from the north, south, east, or west quarter section corner. (See Figure 1.) But because these interior lines were never surveyed, these interior boundary fences were not always constructed on these interior lines. A survey that shows a fence “on line” relative to an interior section line might be an indication that the surveyor merely assumed that the fence marked the location of the interior line.

On the other hand, the exterior section lines and all eight exterior section corners (see Figure 1) were plotted by the government surveyors. Many times fences located along these exterior lines are the only remaining evidence of these section lines. It is possible that a fence constructed along an exterior section line accurately marks the location of the section line. Nonetheless, the attorney may want to question a survey that shows a fence “on line” relative to an exterior section line or discloses a fence along an exterior section line but that gives no dimensions relative to the location of the fence and the section line. Again, it is possible that the surveyor assumed that the fence marked the exterior section line without performing the necessary field work to verify the location of the section line.

Although fences constructed along interior section lines may not be accurate evidence of the location of these section lines, the attorney and the surveyor should not automatically dismiss these fences as irrelevant and unimportant. As shown in Figure 1, these fences may tie into the north, south, east, or west quarter section corners, which were established by the original government surveyors. Although these fences may not be constructed along the interior section lines, they may aid in the location of these exterior section corners.

“Actual” and “Occupied” Boundary Lines

The attorney should question a survey that discloses two identically named section lines or record monuments—for example, the south line of the northwest quarter and the south line of the northwest quarter as occupied. (See Figure 2, next page.) Strictly speaking, this notation is incorrect; there can be only one section line, as this is a record monument or title line that never changes location. On the other hand, the location of ownership lines can change because of such legal doctrines as adverse possession.

For example, Jane owns the northwest quarter of section 3. The four boundaries of this quarter section are title lines; the location of these lines cannot change. Jane fences in and adversely occupies a portion of the adjoining quarter section, the northeast quarter of section 3, for 20 years. It is possible that because she has adversely occupied a portion of the northeast quarter for the statutory period, her ownership lines have changed to include this additional land.

Although the identification of section lines and lot lines “as occupied” is, strictly speaking, incorrect, a survey disclosing the use of this term is probably not defective. For example, it is possible that the surveyor who surveyed the property shown in Figure 2 realized that there could be only one south line of a quarter section, but wanted to point out that the field location of the fence traditionally thought to be located along the quarter section line and the location of the actual quarter section line, as determined by the surveyor, are not in one and the same place. When used in this manner, the identification of a section line or lot line is an acceptable “phrase of convenience.” Nonetheless, the attorney should not assume this to be the case, but, instead, should ask the surveyor to explain his or her use of the term.

Consider the survey of the following described property (see Figure 3, next page):

Beginning at the southwest corner of Blackacre Subdivision; thence south 5 degrees east to the south line of the southwest quarter of Section 1 as occupied; thence east along said south line to the west line of Plank Road; thence north 20 degrees east along said west line to the southeast corner of lot 10 in Blackacre Subdivision; thence west along the south line of said Blackacre Subdivision to the point of beginning.

This is another example of a survey that discloses two south lines, one actual south line and a south line “as occupied” by a fence. But here the surveyor has actually amended the legal description to reference the south line of the southwest quarter, “as occupied.” Again, perhaps the surveyor knows that there can be only one south line of a quarter section but wanted to point out that the fence, which third parties thought was built along the quarter section line, and the actual quarter section line are not in the same location. In this instance and in the previous example, the attorney will have to work with the surveyor and the title company to resolve this apparent conflict.

How can this matter be rectified? The surveyor should examine the legal descriptions of deeds of the adjoining properties and compare the descriptions to the legal description of the land in question. Are there any gaps or overlaps? The surveyor should talk to other surveyors who have worked in this area and, if possible, examine their surveys. How did these surveyors address this problem? Did their legal descriptions monument to this occupation line? Have improvements been constructed along this occupation line? Because there can be only one quarter section line, the surveyor may want to rewrite the legal description. For example, the surveyor could either eliminate the reference to the south line of the southwest quarter, as occupied, or reference the location of the “occupied” south line relative to the location of the “real” south line.

“Record” vs. “Measured” Distances of Land Boundaries

Plats of surveys will sometimes show “record” and “measured” distances. That is, a lot line might have a platted or “record” dimension of a certain number of feet. When the surveyor goes out into the field and actually measures this lot line, the surveyor discovers a “measured” distance that may be more or less than the actual record distance. This difference between record and measured distances is sometimes due to the greater accuracy of new technology.

The attorney, however, should question large variations of “record” and “measured” distances. For example, a surveyor is hired to survey a lot in a small five-lot commercial subdivision. The record dimension of each lot is 50 feet in width, for a total of 250 feet. The surveyor goes to the property and locates iron pipes set near each corner of the lot in question. The surveyor then measures the distance between the two pipes and determines the width of the lot to be 49.5 feet. The surveyor indicates on the plat of survey that the width of the lot is “50 feet record, 49.5 feet measured.” But it is possible that if the surveyor had measured the entire width of the subdivision, the surveyor would have found original lot corners indicating that the subdivision was indeed 250 feet in length and that the lots were all 50 feet in width. Such a finding would suggest that at least one of the iron pipes the surveyor measured from was in the wrong location.

Experienced surveyors know that a pipe in the ground is not sacrosanct. Lot corners are often moved; common culprits are utility companies, cable companies, and fence installers. Also, subsequent surveyors (usually called retracement surveyors) may not find an original lot corner monument in the ground when performing their field work. Rather than perform the necessary field work to properly restore the lost corner, they may instead place a new pipe in the ground at what they feel is the lot corner. Indeed, surveyors often tell of locations where two or more pipes can be found at a lot corner. A measurement taken from the wrong pipe can obviously produce a difference between record and measured distances.

So how much of a difference between record and actual measurements is questionable? Even three-tenths of a foot in a 100-foot length might be considered a substantial deviation in some cases. Although a marked difference between record and measured distances does not automatically mean that the survey is defective, the attorney may want to ask the surveyor to explain, if possible, the reason for the difference between the two distances.

But the attorney should realize that the issue of record and measured distances is extremely subjective. For example, sometimes the age of the subdivision is a factor. That is, there might be a rather large (but still legitimate) difference between record and measured distances in a very old subdivision. Unfortunately, there is no “table of tolerable deviation” to which the attorney can refer. Every situation is different.

When land surveying was in its infancy, the Gunter’s chain and compass were used to measure distances and bearings. Surveyors today have electronic wonders such as global positioning satellites (GPS) and electronic distance measuring instruments (EDMs) at their disposal. Is it any wonder that there are differences between record and measured distances and bearings? But should these differences be memorialized in the public record? That is, should legal descriptions be amended to reflect both the record and measured distances and bearings?

For example, consider this record description:

thence North 30 degrees 46 minutes 18 seconds East 246.00 feet to the east line of the northwest quarter of Section 6; thence . . . .

After the surveyor surveys the land and discovers a difference between the record distance and the measured distance, the surveyor revises the description to disclose both these record and measured distances:

thence North 30 degrees 46 minutes 18 seconds East 246.00 feet record (246.59 feet measured) to the east line of the northwest quarter of Section 6; thence . . .

This issue of amending legal descriptions to reflect differences between record and measured distances is an extremely controversial one, especially among land surveyors. Some people feel that the record description is virtually sacred and that any revised description should contain the original record distances and bearings. On the other hand, others believe that if the legal description contains references to artificial, natural, or legal monuments, the legal description can be amended without including the old record distance or bearing, as these monuments take precedence over the original distance or bearing.

Note, for example, how the second description may be revised to delete the references to the original distance:

thence North 30 degrees 46 minutes 18 seconds East 246.59 feet to the east line of the northwest quarter of Section 6; thence . . . .

The Apportionment Rule, Also Known as the Proportional Measurement Rule

One possible explanation for differences between record and measured lot distances may be because of record and measured differences between subdivision corners or block corners. When a surveyor uncovers original subdivision monuments or is able to reconstruct original monumentation and thereby discovers legitimate differences between record and measured distances that are between subdivision corners or between block corners, the surveyor will use the Apportionment Rule to apportion these differences among the various lots. That is, the excess or deficiency that the surveyor discovers is added or subtracted to each lot in direct proportion to the size of each lot. Thus, if lot 1 is 100 feet wide and lot 2 is 200 feet wide, lot 1 gets one-third of any excess or deficiency and lot 2 gets two-thirds of any excess or deficiency. This only makes sense; because lot 2 is twice as big as lot 1, lot 2 gets twice as much excess or deficiency as lot 1. Rarely, however, are excess and deficiency problems as easy to solve as this.

The land surveyor will use the Apportionment Rule to identify lot boundaries and not change lot boundaries; therefore, the surveyor can unilaterally apply the rule without first requiring deeds from the lot owners.

EXAMPLE: Blackacre is a four-lot, platted industrial park. The subdivision is rectangular in shape. The lots have record widths of 50 feet, 100 feet, 100 feet, and 350 feet. Thus, there is a record distance of 600 feet. The surveyor locates the four original subdivision corners, however, and determines that the measured length of the subdivision is actually 603 feet. There is 3 feet of excess within the subdivision. This 3 feet of excess length must now be apportioned between all four lots. The procedure is as follows:

First, take the excess (or deficiency, as the case may be), which in this example is 3 feet, and divide it by the record subdivision distance (or block distance, if one is apportioning the distance within a block):

3 ÷ 600 = 0.005; this figure is called the constant.

Now multiply the constant (0.005) by the record width of each lot. This is the proration that is added to each lot. The record distance plus this proration is the measured distance:

0.005 x 50 = 0.25; therefore, the 50-foot lot has a measured distance of 50.25 feet.

0.005 x 100 = 0.5; therefore, the 100-foot lot has a measured distance of 100.5 feet.

0.005 x 100 = 0.5; therefore, the 100-foot lot has a measured distance of 100.5 feet.

0.005 x 350 = 1.75; therefore, the 350-foot lot has a measured distance of 351.75 feet.

Note that if these measured distances are added together, the total is 603 feet, which is the measured distance of the length of the subdivision:

50.25 + 100.5 + 100.5 + 351.75 = 603.

If there is a street or alley within the block or subdivision, however, one does not prorate the width of the right-of-way. The surveyor’s rule (which dates back to old English common law) is: Streets and alleys get their full measure because the “sovereign” cannot be dispossessed of its land.

EXAMPLE: A block in Whiteacre Subdivision has four lots; each lot is 50 feet wide. A 16-foot alley runs through the middle of the block. The surveyor finds the original block corners and determines that although the record distance of the block is 216 feet, the measured distance is actually 214 feet. That is, there is a 2-foot deficiency within the block.

But because “streets and alleys get their full measure,” the deficiency is apportioned only to the four lots and not to the 16-foot alley. The width of the alley remains the same. Therefore, to compute the constant, the surveyor must first deduct the width of the alley before dividing the deficiency by the (adjusted) record block distance:

216 (record block distance),

less 16 (width of alley),

is 200 (adjusted block distance).

Again, divide the deficiency by the (adjusted) record block distance:

2 ÷ 200 = 0.01.

Now multiply the constant by the record width of each lot:

0.01 x 50 = 0.5.

Now deduct 0.5 from the width of each lot:

50 – 0.5 = 49.5 feet.

The measured distance of the block is 214 feet. Each lot in the subdivision has a measured distance of 49.5 feet. The width of the 16-foot alley is not adjusted; it remains the same. Therefore:

49.5 + 49.5 + 49.5 + 49.5 + 16 = 214.

Note that the above examples are given only to illustrate the concepts set forth in this section. The differences between “record” and “measured” distances within subdivisions are not usually as severe as the differences in these examples.

Measured Distances from Improvements to Property Lines

When reviewing a survey, the attorney should be concerned if there are no “ties,” or measured distances, from any building on the property to the boundary line of the land. This could be an indication that the surveyor did not perform all the necessary field work. Similarly, the attorney should question a plat of survey that depicts a fence along a property line but does not disclose either that the fence is “on line” or the distance from the fence to the property line.

Note that paragraphs 5(g) and 5(i) of the ALTA/ACSM land title survey standards require that the surveyor show building and fence ties on the plat of survey. If the surveyor has not shown this information, it is possible that the surveyor’s client requested that this information not be disclosed, perhaps because of either time or cost considerations. If this is the case, however, the surveyor will probably qualify the survey certification accordingly. The title company may question any amended survey certification.

Evidence of Adverse Possession

Figure 4 (previous page) indicates that the owner of the adjoining property to the north has been mowing and landscaping a portion of the land in question. This owner has also placed plastic playground equipment on the property. The owner to the east has placed planting material in the southeast corner of the land. Another owner has dumped yard waste on the land.

Could this be evidence of adverse possession? In Joiner v. Janssen, 421 N.E.2d 170 (Ill. 1981), the Illinois Supreme Court found there were sufficient acts of adverse possession in that the “[p]laintiffs mowed the grass on the 14-foot strip in question, raked leaves, planted and removed trees, bushes and flowers, gave away trees, bushes and flowers from the land as gifts, buried their pet dog on the strip when it died, shoveled snow from the walk in front of the strip, and generally maintained the property . . . .”

Note that the surveyor has a duty to show evidence of adverse possession on the land title survey. Paragraph 5(f) of the ALTA/ACSM land title survey standards provides that “[t]he character of any and all evidence of possession shall be stated and the location of such evidence carefully given in relation to both the measured boundary lines and those established by the record.”

So how can a title exception relative to the possible possessory rights of adjoining neighbors be waived from the title commitment? In the above instance, the attorney for the seller went to the site and talked to the owners of the land to the north and to the east. Neither neighbor was attempting to acquire any ownership rights to the land. As indicated by photographs taken by the attorney, the property was simply a huge tract of weeds and brush that the two men were using as a dumping ground for yard waste. These pictures, together with the attorney’s letter of explanation, convinced the title company that it need not be concerned about these neighbors attempting to acquire an ownership interest in the land.

Unrecorded Easements

As noted above, the examination of surveys of commercial property is more than just looking for encroachments and building line violations. Even such seemingly simple matters as unrecorded easements take on a whole new dimension when working in the commercial arena.

The survey of an industrial building in Figure 5 indicates that an adjoining commercial structure was built along the east line of the property in question. Note that the surveyor has indicated that two doors along this east line swing out and thus over the surveyed property. As the easterly portion of this property is a parking lot, it appears that the owner of this building (and possibly the owner’s customers) has been walking back and forth over the property in question to enter and exit this east building. If this is the case, then it is possible that the land in question is subject to at least two unrecorded easements—an easement for the two doors that swing out and over the land and an easement for pedestrian access. And are the owner and the owner’s customers parking their cars on this parking lot? If so, there may be a third easement.

Is there any way that a title insurance company might underwrite these survey matters to the satisfaction of its insured’s counsel? Perhaps with appropriate affidavits wherein, for example, the owner of the adjoining property affirms that he and his customers do not normally use the doors, the title company might be willing to raise an exception but also include an endorsement indicating that as of the date of policy there has been no easement created as a result of the doors swinging out onto the insured land. Such an endorsement might read as follows:

The Company hereby insures the Insured against loss or damage that the Insured shall sustain by reason of the entry of any final judgment by a court of competent jurisdiction, determining that as of the date of policy the owner of the adjoining land to the east has acquired an easement (by prescription or otherwise) over the land described in Schedule A , as noted in Schedule B at exception _____ and as shown on the land title survey of _____, dated _____, job number _____.

The title company will probably want the seller’s assurances that he or she will pay all defense costs in the event that the neighbor later litigates the right to use the doors for ingress and egress. These assurances are usually memorialized in a document called either a personal undertaking or unsecured title indemnity. In the event that a court later determines that the neighbor had already established an easement over the insured property as of the date of policy, the title company would have liability under the endorsement.

Note that the endorsement would be applicable only to the possible creation of an easement before the date of the title policy. The endorsement would not protect against the court-ordered determination that an easement was created sometime after the date of the policy.

The ALTA/ACSM land title survey standards impose a duty on the surveyor to disclose these doors, even though they are appurtenant to a building that is located on adjoining property. Paragraph 5(i) of the standards provides as follows:

The character and location of all walls, buildings, fences, and other visible improvements within five feet of each side of the boundary lines shall be noted. Without expressing a legal opinion, physical evidence of all encroaching structural appurtenances and projections, such as fire escapes, bay windows, windows and doors that open out [shall be shown on the plat of survey].

Note that paragraph 5(i) also offers an enlightening observation on what the surveyor should not show on his or her survey. This paragraph provides that the surveyor should disclose encroachments “without expressing a legal opinion.” Thus, the surveyor will indicate on the survey of the land that the doors “swing out” onto the adjoining property without adding that “the neighbor to the east has acquired an easement by prescription over a portion of the surveyed property.”

Surveyors will normally avoid making such legal conclusions. Most surveyors are not lawyers and therefore do not have the legal training to make such statements. In addition, it is possible that the provisions of their errors and omissions insurance mandate that they show only facts on their surveys and that they do not draw legal conclusions from these facts. Therefore, surveyors may show physical evidence of encroachments or easements, but they will not make any conclusions relative to this evidence. For example:

• Although the surveyor may show an encroaching building onto adjoining property, the surveyor will not state on the survey that “the owner of the land described on this plat now owns by adverse possession the land underneath the encroaching building to the east.”

• As mentioned above, although a surveyor may show an encroaching fence on the plat of survey, the surveyor will not normally indicate who (for example, the landowner to the north) owns the fence.

• Although the surveyor may show a vacated right-of-way appurtenant to other surveyed property, the surveyor will not state that “upon vacation of the right-of-way, the owner of the adjoining property acquired a fee simple interest in said right-of-way.”

• Although a surveyor may indicate on the plat of survey that a driveway encroaches onto the land in question, the surveyor will not label the encroachment a “prescriptive easement.”

Conclusion

This article taps only the surface of advanced survey issues that the attorney might encounter when reviewing a commercial plat of survey. Other matters, for example, include riparian rights, gaps and overlaps, and boundary concerns relative to the determination of the center of a section of land or the center of an undedicated road. Accordingly, the real estate attorney accustomed to reviewing residential plats of survey may feel at first that the commercial survey is a minefield of potentially explosive issues. This really is not the case. If the attorney encounters a problem while examining a plat of survey, however, he or she should contact a title officer at the local title insurance company or the surveyor who prepared the survey. Either party should be able to address the attorney’s concerns.