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I have always been intrigued by the law of easements, and how land surveyors need to understand the importance of easements in the preparation of a survey. In all of the many lectures that I give on the subject of easements, I always emphasize how the title to a parcel of land may be legally marketable, but if the parcel is cluttered up with various utility and access easements, then just how really good is the title? The title maybe "marketable," but the property owner may not be able to utilize the entire area of the parcel.

In my legal research of the appellate court decisions from around the country, I came across a 1979 case from the State of Washington, captioned as Jarrard v. Seifert, cited as 591 P.2d 809, which I thought would interest the readers of this magazine.

The facts are quite simple. The defendant engineering/surveying firm staked out a condominium site in such a way that a building encroached on an easement. The plaintiffs filed a suit claiming that they were entitled to rely on the superior knowledge of the various defendants, as the standard of care required them to check for and discover easements, and, if any were found, to bring that fact to the attention of the property owner.

The engineering/surveying firm was employed by the owner of the land to draw up a site plan, place the buildings on the property, lay out the parking, and secure the approval of the county authorities for a site plan. The defendants were further employed to prepare precise legal descriptions of each of the buildings and to place stakes on the ground in conformity with the descriptions. However, according to the testimony, the defendants did not check the preliminary title report or consult with the proper governmental offices to ascertain whether there were any easements crossing the parcel in question. At the time the stakes were set for one of the buildings, a manhole was discovered by the surveyor, who brought it to the attention of the contractor. This discovery was then brought to the attention of the water authority, whose maps did show an easement and a sewer line. But, nothing was further was done, the stakes were not removed, and later the contractor commenced constructing the buildings as staked. When the building was completed, it was discovered that one corner of it encroached on the easement, and as a result it was necessary to relocate the sewer line. The plaintiff paid the cost thereof, and then brought an action to recover that cost. The trial court entered judgment in the sum of $12,612.82 against the defendant engineers and surveyors.

One of the questions that the appeals court needed to answer was: did the trial court err in allowing the plaintiffs to present testimony on the standard of care (custom of the trade, common practice) in the engineering and land survey profession? The appeals court answered this question by stating:

The defendants were employed as professional engineers and land surveyors because of their superior knowledge in that field. The plaintiffs were entitled to rely on that superior knowledge and to expect that such professional would fulfill the duty with reasonable diligence, skill, and ability. The standard of care (common practice) required that the defendants check for and discover easements, and if found, bring that fact to the attention of the owner, preferably by letter, and if the property is staked for a building that the stakes be removed.

Paraphrasing the conclusion of the appeals court decision, it stated that the plaintiffs had a right to rely on the acts and judgment of the land surveyors, and that the surveyors failed to perform their professional duty with reasonable diligence, skill and ability.

Although the ALTA/ACSM Standard Detail Requirements were not mentioned in this opinion, it is always good to keep referring to those Standards in order to determine the responsibilities of a land surveyor. Specifically, concerning easements, like in this Jarrard case, there is a requirement that:

All easements evidenced by Record Documents which have been delivered to the surveyor shall be shown, both those burdening and those benefitting the property surveyed, indicating recording information.... Observable evidence of easements and/or servitudes of all kinds, such as those created by roads, rights-of -way, water courses, drains, telephone, telegraph, or electric lines, water, sewer, oil or gas pipelines on or across the surveyed property... shall be located and noted....

I am reasonably sure that all of the various state standards for land surveyors include a similar provision on easements as found in the ALTA/ACSM Standards. And, as I always advise my students (somewhat facetiously): keep a copy of your local standards under your pillow, and before you go to sleep each night, take another look at them. It may keep you from getting into too much trouble as a licensed professional.

Jim Demma is a Maryland licensed professional land surveyor and has practiced law in both the State of Maryland and the District of Columbia for more than 30 years. His extensive practice has included land use & development, real estate contracts and titles, condominiums, easements, land patents, boundary disputes, and all matters that touch and concern the land.

A 324Kb PDF of this article as it appeared in the magazine—complete with map—is available by clicking HERE