» THE CASE FOR CARRYING E & O INSURANCE, from page 13 “I told that surveyor that I had some information which might prove valuable to him, but he just looked at me like I was from another planet! Let me show you what I was perfectly willing to share.” He bends over and extracts a yellowed sheet of paper from the folder lying on the porch. Unfolding it, you can see it’s an old, blueline reproduction of a survey map. Upon closer inspection, two things catch your eye. First, it is definitely a copy of a subdivision plat. Though primitive, it shows iron pipes set at the corners of each tenacre tract within the section (type and size are omitted, but there is a symbol noted in the legend for set monuments, and that symbol is drawn in at every parcel corner). Second, you immediately notice that the bearings and distances match those shown on the recorded deeds! The damning evidence is the surveyor's seal. It’s the same surveyor whose stamp was on the old record of survey you’d already found, the old timber cruiser who has a historical reputation of not doing very high quality work! Trying your best not to disclose your excitement at seeing this map, you ask the hostile neighbor if you can borrow it to make a copy for your records and for recording with the County Surveyor. Of course, he’s reluctant to do so, but you tell him that had this map been a part of the public record prior to the adjoining purchase by his new Californian neighbor, this whole situation may have been avoided. That seems to get his attention. You promise to get the map back to him the following afternoon, shake hands and leave, thinking that you may have gained yet another modicum of respect for your professional standing from an unexpected corner of the state! After recording this map with the County Surveyor, you call the potential client from California and explain to her that your research has uncovered some interesting infor ma tion that you feel compelled to share and could you meet to discuss the situation considering your results. Naturally, you’ve galvanized her interest and she wants to meet as soon as possible. You set up a meeting for the following afternoon. The meeting You shake hands and, to put you at ease, she graciously offers coffee and cookies before you sit down to discuss your findings. It’s obvious this woman has a great deal of money as you can’t help noticing the original artwork hanging on the walls, the tastefully appointed furnishings and the complete absence of disorder, likely indicating the services of housekeepers. Accepting the coffee but avoiding the cookies, you spread your research out on her expansive table. You begin by explaining your conclusions drawn from the deed records, your curiosity regarding the found iron pipes shown on the work map, and finally, unrolling the copy of the now recorded subdivision plat representing all the 10acre tracts within her section. You specifically emphasize the abundance of iron pipes set to define the boundaries of each parcel. Interestingly, each one of the 10acre tracts on the formerly unrecorded subdivision shows a lot number, something that has been conspicuously omitted from the deed records! Clearly, the original intent was to monument the boundaries of each 10acre tract and these monuments would serve to delineate the boundaries prior to sale. You tell the California The Oregon Surveyor | Vol. 38, No. 5 14 lady that had the fenceline surveyor seen this survey plat prior to commencing his work, he would most likely have arrived at a different conclusion regarding the location of her boundaries and would have held the found iron pipes as the basis for marking the lines for the construction of her fences! Such a posture might have avoided any disputes with her neighbor. Considering her neighbor had been living on his property for more than four decades and knew of the existence of these iron pipes, he had accepted their existence as defining his boundaries. He had attempted to raise his concerns with her fenceline surveyor (who happened to be reluctant to talk with him due to the already evident tensions over the boundaries) without success. You remark that it would be unlikely if the outcome of any quiet title action would result in a decision in her favor. The cost of litigating a resolution would likely far exceed the cost of moving the fences to the more defensible location based upon the old plat record, and would result in virtually no change in the area she purchased. Without further thought, she says she wants you to perform the survey to rectify the situation and as far as she’s concerned, the fenceline surveyor is termi nated. You explain that this will require removing the new fences and placing them in their proper position. As a courtesy, you must contact the fenceline surveyor and explain what you’ve been contracted to do. She understands and states unequivocally that she doesn’t like the situation but just wants to be done with the conflict so she can move on to the business of breeding and raising her animals. Concluding your discussion, you tell her you’ll draw up a contract and get back to her in a couple of days with the price. She thanks you and wants to know when you can start? You can’t help but wonder whether she’d pay whatever price you quote, recognizing that this could represent an opportunity to recoup some of the losses you’ve incurred on other projects that suffered overruns, but that is only a fleeting thought. Better to take the high road, preparing an accurate and fair estimate. This woman seems like just the type who, if wronged, might come back to haunt you in ways you never imagined. You set up another meeting and deliver the proposed contract together with your fee. The California lady wants a day to have her attorney review the contract but assures you that there’s no problem with the fee! How often have you heard that? You wonder, “What did I miss?” Strangely, the phone never rings the next day, or even the next. Instead, a certified letter arrives in the mail several days later, return receipt requested. You immediately recognize that it’s from an attorney, apparently her attorney. After regurgitating the salient facts as you related them to this prospective client, you see your fee go up in smoke. The attorney has advised his client that the fenceline surveyor is responsible for rectifying his mistakes without additional cost (at least not to the California client). If he is unwilling to do so, then litigation will follow. Because you know this fenceline surveyor and can make some suppositions regarding how he runs his business, you imagine that it’s unlikely he carries E & O insurance. You can’t help but think the cost of resolving this mess could approach tens of thousands of dollars (if not more if a civil suit ensues that awards punitive damages for the emotional trauma along with all costs
PLSO Issue 5 2015 September October
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