PLSO The Oregon Surveyor November/December 2021

15 Professional Land Surveyors of Oregon | www.plso.org Featured Article Adverse Possession, since he has main- tained it for 25 years, and the state has never done anything with it. He is think - ing 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 the 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 sur- veyor 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 techni- cally 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 anec- dotally 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 attor - ney, whom I advise you to see if you are interested in pursuing the driveway,” the surveyor says to his client. “You can con- tact the state 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 cli- ent 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 sep- tic 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 rela- tionship, the surveyor felt he could freely share from his own experience and by doing so, 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 survey- or 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 maintain- ing awareness that he did not “cross the line” into legal matters that are the prop- er domain of a property attorney. Protecting Yourself From Legal Liability Even if a surveyor is well-heeled in drawing the line between factual survey matters and interpretive legal matters about property, there is always the possibility of litigation if a client feels that he has been misled by his surveyor. How Do You Protect Yourself if Something Like This Happens? Liability Insurance. Professional liability insurance protects you from errors and omissions in your work, and provides coverage for negli- gence, bodily injury, and property injury. It can also cover your legal defense costs. General liability insurance protects you from claims of property damage, bodily injury, and any associated medical costs. Although, there is some overlap between these two insurances, it is wise to have both in place, as both protect you from liability arising from lawsuits. Summary The job of a surveyor is to discover and document everything factual that they learn about boundaries, characteristics, and histories of the properties they sur- vey. These elements are documented in formal surveys and reports they re- lay to clients. When the facts uncover a hidden ease- ment or an inaccurate boundary, an opening is created for a potential legal dispute. This is the “fine line” that the sur - veyor must stop at, and the point where a property attorney should get involved. The professional responsibility of the surveyor is to be continuously mindful of this fine line as he does his work, and to also be aware of special circumstanc- es that may allow him to cross that line. For example, if the surveyor is surveying a large parcel of land for timber cutting, it is likely that his client also expects him to know about a local ordinance that pro- hibits the cutting of trees too close to a boundary line. In the great majority of cases, legal inter- pretations should stay with attorneys and surveyors should stick to the facts. This is a fundamental guideline, and it has kept many surveyors out of legal hot water as they perform the important task of doc- umenting each property they survey. x Editor’s Note: This article is reprinted with permission from Point of Beginning: https://www. pobonline.com/articles/102417-the-fine-line- between-surveying-and-the-law. It has been slightly edited from the original. The author is president of Transworld Data, a technology ana- lytics, market research, and consulting firm. Even if a surveyor is well-heeled in drawing the line between factual survey matters and interpretive legal matters about property, there is always the possibility of litigation if a client feels that he has been misled by his surveyor.