Recent Cases Illustrate How Legal Concepts and Lessons Can Be Applied to Land Surveyors.

By Sarah A. Johnson, Esq.

Although this newsletter tends to focus on engineers, this article examines some claims against and defenses by land surveyors in recent cases. While the exemplar cases in this article do not necessarily present unique concepts, they illustrate how certain legal concepts and lessons can be applied to surveyors.

In Stevens v. State, the Superior Court of California found that there was substantial evidence to support most of the California Board of Professional Engineers, Land Surveyors and Geologists’ (the “Board”) substantive findings in connection with the Board’s decision to cite and fine a licensed land surveyor, who relied on an unrecorded survey from 1939 that conflicted with a prior deed, two subsequent surveys, and two subsequent deeds.¹ Property owners engaged the surveyor’s services to complete a boundary survey in conjunction with a planned remodel of their house.² Upon reliance on the 1939 survey, the surveyor initially prepared a topographic map that depicted the western boundary line as a couple of inches shorter than it actually was, which resulted in the property owners’ architect stating that the planned remodel would not fit within the boundary line.³ Upon further investigation, the surveyor conceded that the longer boundary line was “defensible” and ultimately showed the longer boundary line on his survey.⁴

After the surveyor initiated arbitration against his clients to resolve a billing dispute, the property owners filed a complaint against the surveyor with the Board.⁵ The superior court found substantial evidence to support the Board’s bases for the citation, including that the surveyor’s reliance on the 1939 survey was erroneous as was his rejection of the subsequent surveys and further that the surveyor failed to locate proper monuments.⁶

The outcome of the Stevens case highlights the importance not only of utilizing all available information and documentation but also giving the available information and documentation the appropriate weight when completing survey work. Another more subtle issue illustrated in Stevens relates to the fact that the surveyor’s clients only initiated the Board complaint after the surveyor brought a demand in arbitration against the clients in order to obtain his fees. Claims by a professional to recover his/her fees are often met with claims by clients for malpractice or even, as shown in Stevens, licensing complaints against the professional. All professionals, including land surveyors, should do a risk-benefit analysis prior to asserting fee claims as the resulting malpractice and/or licensing claims can be more costly both financially and reputationally.

In McGowan v. First Midwest Bank, the Appellate Court of Illinois held that a land surveyor’s contract determined its duties.⁷ The case involved a claim of negligence by the plaintiff purchasers against the defendant surveying company.⁸ After the plaintiff property owners purchased a 14.1-acre tract of unimproved land, they found that a sewer line constructed by the neighboring property owners diverted into and discharged onto the 14.1-acre tract of land owned by the plaintiffs.⁹

The plaintiff purchasers hired the defendant surveyor to survey the property and provide said survey in advance of closing on their purchase of the property.¹⁰ The plaintiff purchasers argued that the surveyor was negligent in failing to include underground structures, easements, and outflows of liquids or solid objects onto the property.¹¹ The trial court granted the surveyor’s motion to dismiss, which was predicated on the argument that the surveyor owed no duty to identify the sewer line or its terminus as the contract between the plaintiff purchasers and the surveyor expressly excluded underground investigations of the utilities (among other grounds).¹² The appellate court upheld the dismissal, finding that the terms of the survey agreement governed and that the plaintiff purchasers’ claim was thus barred by same as the claim was premised on underground services that were expressly excluded therefrom.¹³

As illustrated in McGowan, the scope of the professional surveyor’s services as described in a written contract can serve to limit the surveyor’s potential liability by imposing a duty only to perform those services that it actually contracted to perform. McGowan serves as a reminder to professionals, including land surveyors, to clearly and effectively describe the scope of their services in a written contract prior to performing any services.

¹Stevens v. State, No. 34-2016-80002334, 2018 Cal. Super. LEXIS 28893, *2-7, 55-56 (finding that the surveyor failed to convince the court that the Board’s findings were not supported by the evidence, with the exception of the finding that the surveyor failed to have a written contract in place before providing professional services).
²Id.at *5.
³Id.at *5-6.
⁴Id.at *6-7.
⁵Id. at *7.
⁶Id.at *8-10, 22-49.
⁷McGowan v. First Midwest Bank, No. 3-22-0347, 2023 IL App (3d) 220347-U, ¶¶ 75-76.
⁸Id.at ¶ 6.
⁹Id.at ¶¶ 4, 9-12.
¹⁰Id.at ¶ 4.
¹¹Id.at ¶ 14
¹²Id.at ¶¶ 23-26, 35.
¹³Id.at ¶¶ 70, 75-76.