Homeowner can seek damages if surveyor's pin gets moved

MAILBAG

January 06, 2002

Dear Mr. Azrael

We had a house built and when the property was surveyed, metal boundary pins were put in. We knew where every pin was. My father would even scrape the mud off after it would rain so we could always find them. When the utility company came in to lay the cable for the house behind me, the pin disappeared. We called to complain and they passed us off to the subcontractor who did the trenching.

The subcontractor said the boundary pin was not there when they trenched.

This is absolutely wrong. Even the two neighboring houses knew it was there. Their houses were being constructed the same time as ours. You can still see where the trenching was done.

After nonstop phone calls to the utility company, they finally sent someone out to talk to us. However, this did not accomplish anything. They contacted the original survey company, who wanted to charge $400 for another survey.

The utility company will not pay to have this done.

Currently, there is a wooden stake in the ground, but we know this is not the right location. The neighbor behind my house just had a fence installed and is planning to have her stone driveway blacktopped. How are we to know if everything will be in the right location?

Arthea Bitzel

Westminster

Dear Ms. Bitzel,

Marland law recognizes the importance of preserving surveyors' pins and markers in place. Section 14-111 of the Real Property Code makes it a criminal misdemeanor for any person to willfully obliterate, damage or remove any marker or other landmark set in the property of another person by any civil engineer, surveyor or real estate appraiser or any of their assistants.

In addition, general common law principles of trespass and negligence would hold a person civilly liable for removing a surveyor's marker, even if unintentionally.

The problem, of course, is proving who removed the marker.

To establish a criminal violation, there must be proof beyond a reasonable doubt that the defendant willfully removed the landmark.

To recover damages, the plaintiff must show that it was more likely than not that the defendant caused the surveyor's pin or stake to be removed. Unless a witness actually saw the defendant remove the surveyor's marker, or the defendant admits that he did it, the injured property owner often faces a tough time proving a case.

You could sue the utility company and its subcontractor in small claims court for $400, which is the cost of resurveying and resetting the property marker.

And you may be able to present testimony and diagrams or photographs to show that the trenching was done close to the location of the missing surveyor's pin, that the pin was observed very close to the time the trench work was started and its absence was detected soon after the excavating was completed. Also, you could present a written estimate of the $400 cost to restore the surveyor's marker. This "circumstantial" evidence might be sufficient to persuade the court to hold the defendants liable for damages.

You might want to request that your neighbor have a surveyor verify the common property boundary before installing a fence or blacktopping the driveway. If the neighbor encroaches on your property, you can require the paving to be removed or the fence relocated.

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