Paper 282

Author: Devon Humphrey, President
Organization: Virtual Landscape Technologies, inc./GEOWAREHOUSE

150 Sunset Ridge
Dripping Springs, TX 78620

Phone: 1-800-704-6709
devon@geowarehouse.com

Title: GIS, GPS and Remote Sensing for Real Estate Litigation Support

ABSTRACT
Virtual Landscape Technologies, inc. (parent company of GEOWAREHOUSE) has been engaged as a qualified expert witness to supply GIS and GPS services for litigation support in a recent real estate case in Texas. The case involves access to landlocked property via easements. ArcView GIS, 3D Analyst and GPS were all used to visualize parcel maps, digital orthoquads, digital elevation models and to ground-truth these data sets and prepare legal exhibits.

VLTi President, Devon Humphrey, was engaged in a recent case in Texas, which introduced GIS into the courtroom. Serving as expert witness, we have been able to bring clarity to otherwise complex and three-dimensional issues. The basic challenge is to make maps easy for the novice to read. These maps, along with accompanying digital photos, GPS and digital remotely-sensed imagery allow the correct conclusions to be drawn.

The case involves access to a parcel of land via an easement that had been in use for years by the previous landowner. Access to this easement was suddenly denied by the neighbors, once the new owner bought the subject property.

The property in question is virtually landlocked and sits atop a large mountain with a world-class view of the Texas Hill Country.

While the plat of the subdivision shows access to the subject property via road frontage, the land actually drops off into a huge canyon immediately adjacent to the road. This causes access to be virtually impossible from this road. Even by foot, the terrain is treacherous and impractical to cross. A major engineering project would be required in order to establish access from this road and the resulting construction would destroy the scenic value of the mountain top and severely impact the enviornment. The cost of such access would probably amount to more than the purchase price of the property.

The previous property owner had gained access to the subject property via an easement across two neighboring parcels. An affidavit affirming this fact was obtained from the previous landowner. Suddenly, once the property changed hands, the two neighbors denied access to the new owner. The only conceivable reason for this was to retain the mountain as a private "back yard" for the neighboring properties and to avoid having a house built on top. (In fact, one neighbor told the new owner that he had attempted to purchase the property himself, but could not afford it and had instead decided that the access problem would keep anyone else from purchasing it. He thought that this would effectively prevent anyone from ever building on the land.)

VLTi was engaged to establish the inaccessibility of the property and validate the prior easement of necessity. Both opposing parties denied that the access had ever been supplied by this easement, which amounted to a dirt road through the neighboring land. One neighbor uses this road as a driveway to his cabin.

Digital Ortho Quads (DOQs) from the USGS Texas Orthoimagery Program (TOP) were obtained, along with Digital Elevation Models (DEMs) showing the neighborhood and easement in question. The photos were dated 1995 and clearly show the dirt road crossing both neighboring parcels and leading to subject property. A court order allowing VLTi to conduct a GPS survey of the road was issued and VLTi mapped the road and obtained GPS control points. These control points were used to geo-reference the subdivision plat and ground-truth the air photo and DEM. The road itself was mapped by walking the raod with a sub-meter accurate GPS unit connected to a laptop computer running ArcView GIS and GPSview extension. The GPS road overlaid the DOQ perfectly, clearly establishing that the road visible in the 1995 photo is still there and in use by one of the neighboring property owners. This refuted the assertion by one neighbor that the road did not exist prior to 1999.

The DEMs allowed VLTi to overlay the DOQ upon a terrain model (TIN) in ArcView 3D Analyst, resulting in a stunning 3D representation of the access problem via the subdivision road. The canyon can clearly be seen and this explains why while the plat shows road access, it is actually impossible, short of a major engineering effort. (Access is defined in Texas as "Reasonable Access" and if the cost of access amounts to a major proportion of the cost of the land, then an Easement of Necessity must be granted.)

The Arcview project files were prepared for demonstration in the courtroom on an SGI Visual Workstation. This computer allows for the real-time manipulation of the 3D model and provides a stunning representation of the real world.

Digital photos were also taken on the property and linked to GPS points, showing the subdivision road, access points, canyon and easement. These photos were hotlinked to the map in ArcView GIS. This allows the user to click on a point on the screen and see the digital photo for that location. The hotlinked photos were also placed on the hard copy map exhibits. While we were prepared to demonstrate this live in the courtroom, it became unnecessary once additional information was presented.

Geo-referencing of the subdivision plat was performed using the GPS control points and TAS extension. The resulting overlay of the GPS road upon the plat map from the county revealed a surprising fact. A platted easement for ingress/egress was already on the record. The signature of the same landowner that was now denying access to the easement appears right there on the plat! This ingress/egress easement does not follow the road across the neighboring properties, but instead follows the property on one neighbor's property, leading to the subject property. This neighbor had attempted to block access to this platted easement by placing barbed wire and barricades in the way, along with NO TRESPASSING signs. Once the existence of this easement had been established and the blocking of this easement demonstrated through hotlinked digital photos, a potential contempt of court issue arose against the neighbor. While the client actually has legal access to both easements, there is no arguing about the platted easement.

All of this information was presented at the pre-trial hearings and the case is being settled without going to trial. Pre-trial hearings have been occurring for almost a year, as legal tactics delaying the trial have been attempted by both neighbors on numerous occasions. Since the case is not completely settled as of this writing, the parties and location of this case is being kept confidential.

The main goal of using GIS and GPS in this case was making maps easy for the novice to read. A picture is worth a thousand words, and attorneys can use a lot of words. It is hard to argue with a government aerial photo and platted map. While judges, attorneys and jurors are rarely adept at map reading and remote sensing, ArcView GIS, 3D Analyst and GPS Mapping were used to present the information in a clear and effective manner and the case is being resolved. Had the case gone to trial, the exhibits would have been made available to all parties and the jury. Large plotted maps were prepared and small letter-sized maps were made for use as handouts.

Challenges encountered during the preparation of this case included endless legal delays and one false start to the court-ordered GPS survey of the easement. In that situation, the court had issued an order authorizing VLTi to perform the GPS survey on a particular date and time. When we arrived to perform this survey, the gate to the property was locked. This gate was previously unlocked. One option was to climb over the gate and risk hostile action by the property owner. This option was not chosen. The other option was to go back to the court and present the situation, asking for another date and requiring an unlocked gate. Digital photos of the locked gate were taken as evidence. The fact that the gate was locked was initially denied by the neighbor, until digital photos were produced. While this is clearly a case of contempt of court, it also caused a needless delay in obtaining the survey and cost the client an extra trip charge. VLTi had to return to the site after another court appearance for the purpose of obtaining another court order.

The GIS data search turned out particularly well, since the USGS and State of Texas had recently produced DOQs and DEMs of the county. These data products were obtained for the cost of reproduction as a part of the TOP. The county subdivision plat was obtained from the county courthouse and this was scanned and geo-referenced for use in the case. This availability of government data provided a source that was objective and without dispute. If such data had not been available, the cost of data acquisition could have been quite high and the resulting products might have been considered biased.

Another positive result for the client is the fact that the problem of access allowed for a lowering of the appraised value of the property by the County Appraisal District. This appraised value is used to calculate property taxes, which in Texas fund local government and education (there is no state income tax). The resulting lower appraised value resulted in lower property taxes to the landowner.

In conclusion, we have shown that GIS is an excellent tool for visualizing complex 3D real-world problems and GIS professionals can serve as Expert Witnesses in legal cases. GIS can bring out details that might be missed otherwise, even by those intimately familiar with the case.