Servitude Surprise

These stories are based upon true incidences; names and some details have been altered to ensure confidentiality.

Marie buzzed the intercom. "Mr. Verrel, line one," she said. She must not have been able to drag much information out of Mr. Verrel because she usually adds more details about incoming calls. So, without a clue as to who Verrel was and why he was calling me, I picked up the phone.

"Mr. Estopinal," Verrel started, "I am representing Klein and Silverman Surveyors in a suit that has been filed pertaining to a professional service. I would like to know if you are available as an expert witness for this case."

"Call me 'Steve'," I said. "I'd like a chance to meet with you to go over the facts before I commit to anything, but, barring a conflict, I'm available." I knew of Klein and Silverman Surveyors, but they operated in a city far from my area. The possibility that a conflict of interest existed was remote.

Verrel filled me in on the plaintiffs, opposing counsels, the remaining defense counsels, and other general details. The case was filed in a parish where I did little work, so the judge and other counsels were strangers to me. I knew one of the other defendants, the local power company. In all, there were four defendants, Klein and Silverman, Roland Builders, the Power Company, and J.J. Shell, attorney, and all represented by counsel and those of their respective E&O companies. There was only one plaintiff (not counting the various potential cross suits as each defendant blamed others for the problem), J.Q. Jeanfreau and his wife Miriam Gillory. We scheduled a time to meet at my office.

Jerry Klein of Klein and Silverman joined me at the initial meeting with Verrel. The facts of the case were quite straightforward. Indeed, there seemed to be little dispute over what happened. The suit was going to decide who paid what to whom.

Klein and Silverman performed a survey on Lot 1, Square K of Crestwood Subdivision. Lot 1 faced Crestwood Drive and formed the corner of Crestwood Drive and Monet Lane. The subdivision was designed in 1956, but was developed in phases. It was not until 1966 that Lot 1 Square K came to market. Wally Roland's (of Roland Builders) father bought all the lots in Square K (and L) at that time. Roland contracted with the Jeanfreaus to build a house on this lot in 1980.

Klein and Silverman Surveyors had been performing pre- and post- construction residential surveys (K & S called them "builder's packages") for Roland for several years. Lot 1 Square K was only one of twelve builder's packages that K & S provided Roland. Earlier in the same year, K & S had mailed a form letter to all of their clients cautioning them that title examinations must be performed and provided to K & S on all boundary surveys.

The 1956 plan indicated that Lot 1 had a five foot (unnamed) servitude along the side opposite of Crestwood Drive (the rear line) extending from Lot 2 to Monet Lane. The K & S survey reflected this servitude along with monumentation, fences, and the power lines that were within the servitude.

Roland received the survey plat, builder's insurance policy, permits, and title abstract, and placed all in a file. He planned the Jeanfrau house with a garage facing Monet Lane, seven feet from and parallel to the rear line, built the house, and ordered the final survey one week before the act of sale.

The Jeanfreaus closed the sale on their old house, filled two storage sheds with their household items, and booked a hotel room at the Orleans Royal Hotel for one week in anticipation of moving in the morning after the sale closed on their new $450,000 house. K & S resurveyed Lot 1 showing the improvements and provided copies to Roland. Roland sent these to the Title Examiner and Mortgage Company. I imagined what the scene that followed must have been like.

Mr. Shell sat at his desk with a fresh cup of coffee when Lilly (the paralegal who really did whatever work was done) walked in. She had been the first one to compare the Title Abstract with the K & S survey.

"Mr. Shell," she cleared her throat, "something's funny here."

Shell gave a sigh. He resented having to explain everything. He leaned forward as Lilly pointed out COB 546 Folio 43. It reported a ten foot servitude had been taken by the power company in 1972 along the "rear 10 foot of Lots 1 through 33, Square K, Crestwood Subdivision." The act referred to a line "as shown in red on the plan by J.J. Sewart, dated May 5, 1956." It didn't matter to the power company that they had altered a 1956 subdivision plan more than 40 years after it was created and presented it as if it were Sewart's work. Sewart had died in 1968.

"Well, let's see," Shell said as he held the survey plat in one hand and the servitude document in the other.

"This survey says the servitude is only five feet," Shell said.

"But the garage is only seven feet from the rear line." Lilly said, pointing to the plat. "If the servitude is ten feet, the garage encroaches."

"K & S really blew this one," he said. "I'd better call Wally."

The call to Roland halted the act of sale and so began the injuries to Miriam and J.Q. Jeanfreau. Hotel rent, storage rent, pain, suffering, lost of consortium, and God knows what else. It began to add up fast. Fortunately, Roland had a spec house and he allowed the Jeanfreaus to move in rent free. He kept tract of what the rent would have been, just in case he could get it back.

It was about five years later when I found myself on the witness stand. I was an expert witness for K & S. The assertion by K & S was that they were not afforded an opportunity to review the title abstract and, therefore, should not be expected to have knowledge of the new servitude that overlapped the servitude shown on the subdivision plat. I had just finished answering the questions of Verrel in direct and was waiting for the Jeanfreau's lawyer, Mr. Gertt Steinhower, to begin his cross examination.

Steinhower was a slight, bookish looking man with a booming voice that did not match his appearance.

"Mr. Estopinal, is it your expert testimony that it is common practice for surveyors to fail to note servitudes of record?" Steinhower boomed with a hammy expression of amazement.

"No, sir. I think I said that surveyors are not title examiners. Surveyors rely upon the title abstract to provide notice of servitudes of record."

Steinhower asked the same question at least three more times. Each time it was phrased differently with the hope I might equally vary my answer to the point it could be twisted into an alternate interpretation.

After some other questions, that were either rhetorical to the point of being statements or simple reiterations, Steinhower returned to the plaintiff's table and grabbed a document.

"Mr. Estopinal, do you recognize this?" he asked, holding the paper high.

"Objection!" Verrel shouted. "What is that? It was not in discovery, your Honor."

"Goes to credibility, your Honor. This is a survey plat by Mr. Estopinal that was found in the public record."

"Overruled," said the Judge, without explanation. "Mr. Estopinal, examine the survey."

"That is a plat of a survey performed by me two years ago," I said.

"Please read for the court what is printed here," Steinhower said, indicating a small paragraph near the border of the drawing.

I read "Notice: Boundary surveys are based upon the recorded subdivision plat in cases of regular subdivision lots. Boundary surveys of properties not a part of a regular subdivision are based upon title information provided by the party requesting the survey. Boundary survey plats reflect information discovered by the surveyor in the normal course of work and does not necessarily show every possible condition affecting the property. Easements, servitudes, building ordinances, zoning, and other legal encumberments may exist. Consult a title attorney if you wish to discover all the legal encumberments attached to any property."

"You failed to inform the court of that standard practice, didn't you, Mr. Estopinal?" Steinhower bellowed in a tone that suggested that I deliberately kept it a secret.

"I answered all questions placed to me completely," I said quietly.

"Well, isn't it your practice to place such a notice ON THE FACE OF YOUR SURVEY?"

"Yes, sir, it became my practice after I became aware of this suit. That was not my practice at the time that Klein and Silverman surveyed Lot 1."

"No more questions," Steinhower said.

As it turned out, I was the last to testify and the question went to the Court.

Some months later, I bumped into Klein at a surveyors meeting.

"Did the case get decided or settled?" I asked. Often I never hear, or care, how court cases turn out. This one had implications for all surveyors.

"Decided," Klein laughed. "I got nailed for half of the judgment and Shell got the other half. Roland skated. Go figure."

I didn't ask how much the judgment was and Klein didn't offer. Go figure indeed.

About the Author

  • Stephen Estopinal, PE, PLS
    Stephen Estopinal, PE, PLS
    Stephen Estopinal, PE, PLS is assistant division manager and senior project manager at SJB Group, LLC in Louisiana. He has been involved in the practice of land surveying for more than 30 years and is the author of "A Guide to Understanding Land Surveys 3rd ed." John Wiley & Sons, Inc. 2009.

» Back to our March 2006 Issue