The Surprise Easement
A surveyor is hired by a buyer to survey an 80-acre property as a pre-condition of sale. The surveyor performs the physical field survey, and he also researches the property records at the county office.
This is a surprise to the buyer, whose aim was to develop the 80-acre tract of land into a subdivision, and to site homes in the area that is traversed by the easement. The owner says he was aware of an old dirt road that, to his best knowledge, had been used as a logging road 50 years ago, but that road since has been largely overgrown with grass and trees.
Nevertheless, there is a legal issue. Can the easement be found to be legally abandoned—or could the county argue that it is still in effect and that, in an emergency, the county can legally traverse the property over the easement to get to the gravel pit?
This is an area of legal interpretation. If the buyer wants to remove the easement as a pre-condition of sale, it is likely up to the owner to meet with the county to get a written release from the easement. In terms of advisement, this becomes a job for an attorney, not a surveyor.
A Case of Unclaimed Land
A property owner wants to build a driveway to access a county road. The driveway routes across a small triangle of land that encompasses approximately 500 square feet. When the property owner looks at his property map, it appears that this miniscule triangle of land is part of the property owner’s property, because his property boundary borders the county road and the small triangle of land is on his side of the road. However, the property owner’s survey map shows that there is a section line that bounds the north side of the owner’s property. This section line ends about 15 feet short of the border of the county road, and does not include this very small triangle of land that the property owner wants to cross with his driveway.
The property owner goes to the county Assessor’s office. He wants to know who owns this small piece of land. The county assessor tells him that there is no tax record of anyone owning the land, that it is too small to even assess, and that, as far as the assessor is concerned, it makes the most sense that the property owner should own the land, since it is on his side of the road. The assessor then advises the property owner to check with the county recorder to see if there is any more information.
The property owner visits the recorder’s office. The recorder's records show that all of the land on the north the side of the owner’s property that is in the other section belongs to the State. Since the 500 square foot triangle of land is north of the section line, it is state property
The property owner wonders if he can just claim this land under the legal doctrine of Adverse Possession, since he has maintained it for 25 years, and the state has never done anything with it. He is thinking that he should just go ahead and build a driveway over the land, but he first calls the surveyor who performed his original land survey.
The surveyor confirms what survey bears out: that the property owner’s land ends at the section line, and that the property owner does not own this very small triangle of land.
The property owner explains to his surveyor that his intent is-to build a driveway to the county road that traverses that 500 square foot triangle of land anyway, that he found out that the land technically belongs to the State, but that it is so small that there really isn't anything the State could do with it.
At this point, the surveyor could opt to tell his client to see an attorney, and he does do this. However, the surveyor also has actual field experience with state land that he is comfortable in sharing anecdotally with his client, although he makes it clear he is not an attorney.
This client had been with the surveyor for many years, so there was a modicum of trust that has built up between them.
“This is unofficial and I am not an attorney, whom I advise you to see if you are interested in pursuing the driveway,” the surveyor says to his client. “You can contact the state to
to see if the state will grant you an easement, and you can contact the county to see if they will give you a right of way—but I can tell you from past experience, that dealing with the state on matters like this can be costly and time-consuming. In one case, I had a client who had constructed a septic system on part of what ended up to be state land. He tried to get a waiver, but the state was unsympathetic. The amount of red tape he encountered showed him that it would be years until he secured permission, if he secured permission at all. He ended up having to build an entirely new septic system that was entirely on his own land because that was the cheaper route.”
In this case, because the surveyor and his client had a longstanding, good faith relationship, the surveyor felt he could freely share from his own experience and by so doing, suggest to his client that going ahead with the driveway project would likely not be in the client's best interest. At the same time, the surveyor made it clear to his client that he as a surveyor was not advising his client on legal matters. If the client chose to go ahead with the driveway project, the surveyor recommended that his client consult a property attorney.
This is an example of a surveyor who knew how to render advice to a trusted client, while at the same time maintaining awareness that he did not “cross the line” into legal matters that are the proper domain of a property attorney.