land surveying expert witnessThe Missouri Court of Appeals, Eastern District affirmed a circuit court’s decision that a land surveyor expert witness’s testimony should be admitted into evidence at trial for consideration in an easement case.

Appellants (dominant tenement owner) appealed from the trial court’s judgment in favor of Respondent (servient tenement owner) that the easement was valid.

A shared driveway between the homes of Appellant and Respondent divided the parties both physically and legally in a court case. Both lived in their homes for some time, and the shared driveway was created by an easement recorded nearly 50 years ago benefitting Respondent’s property and burdening Appellant’s. The driveway itself was wide enough for two cars side by side, but the parties feuded over each other’s uses of the driveway—including issues such as the spraying of pesticide, the shoveling of snow, and the placing of railroad ties—not to mention the pilfering of rocks.

At the bench trial, the trial court entered judgment in favor of the Respondent, holding that the easement was valid. The boundary line separating the properties was held to be the line determined by a land surveyor as set out in a survey, and as physically marked on the land by set iron pipes with licensed caps.

In the appeal, Appellant argued that the trial court erred by allowing the land surveyor to testify as an expert at trial because he was disclosed as an expert witness, and he had no personal knowledge of any of the measurements taken or work performed on the driveway. The appellant claimed that this made his testimony an inadmissible hearsay opinion.

The Court of Appeals explained that Rule 56.01(b)(4)(a) requires the disclosure of experts expected to be called to testify at trial. The court said an expert witness is a person retained by a party in relation to litigation and who, based on education or specialized experience, has superior knowledge on a subject the likes of which the average person with no particular training is incapable of forming an accurate opinion or of deducing correct conclusions. Also, the Court of Appeals wrote that a trial court has broad discretion in its choice of action in response to nondisclosure of evidence or witnesses.

Respondent here didn’t timely disclose his expert witness in response to Appellants’ requests in discovery, but did disclose his identity as an expert witness and his boundary survey in his motion for summary judgment filed more than eight months before trial.

As a result, the Court of Appeals held that the Appellant was not prejudiced by Respondent’s failure to disclose the land surveying expert witness during discovery. The Appellants had plenty of time to prepare a rebuttal to the land surveyor expert and his survey before the trial started. There was no unfair surprise or concealment, and that was the purpose of the discovery rule: to eliminate the element of surprise during trial and provide the parties with all relevant materials.

In addition, the appellate court noted that the expert’s testimony at trial was limited to identifying the survey he prepared, photographs of the property as surveyed, and explaining the process of compiling a boundary survey. The expert didn’t offer any opinions, and the 1967 Easement Deed was entered into evidence as self-explanatory.

With this in mind, the Court of Appeals held that the trial court acted within its discretion in allowing the land surveyor expert’s testimony and survey to be allowed into evidence at trial and in considering its ruling on a declaratory judgment.

By: Kurt Mattson, J.D., LLM