- SPECIAL REPORTS
- THE MAGAZINE
I read a letter to the editor in the June 2006 POB [that] makes an argument against monumenting possession rights and makes the concluding comment, "...our professional training and area of recognized expertise is in understanding the record and determining where the deeds put the line on the ground."
Hopefully I have not misunderstood the author's intent. Assuming that I have not, I respectfully disagree. The statement causes me to wonder what is being referred to as "recognized expertise." I believe this statement goes back to the mistaken idea that surveyors are only technicians, and as stated in the letter, "A surveyor has no authority to decide that the fence trumps the deed."
My question is, if the surveyor cannot make that decision, then who [can]? And if it is only the courts, then what good are surveys or surveyors? I could cite many sources and cases [that] contradict these notions and discuss the role the surveyor takes in society, but space does not permit a detailed discussion on the matter, so let me offer the following.
Utah has at least two Supreme Court cases [that] deal with the issue of deeds and surveys. The court, quoting an older Utah case, (Colman v. Butkovich, 556 P.2d 503 (Utah 1976)) reemphasized the point that "The test is said to be whether a surveyor ... with the deed before him and with or without the aid of extrinsic evidence can locate the land and establish the boundaries." Ault v. Holden, 2002 UT 33; 444 Utah Adv. Rep. 3.
This statement is made in reference to an argument made in the case that the deed should be invalidated because it does not close. Of course, the court rejected that argument by stating the purpose of a survey is that of establishing boundaries.
Surveyors know that deed descriptions are full of errors and mistakes. If our job as surveyors is only to determine where the deed is mathematically on the ground, how is that to be accomplished with descriptions that do not close, have typographical errors, missing courses, omitted bounds or mistakes? When faced with these problems, the surveyor is forced to "look outside the deed" to develop extrinsic evidence that will rectify these issues.
"It is not the office of a description to identify the premises but to furnish the means by which they can be identified." Sengfelder v. Hill, 58 P. 250 (Wash. 1899). Thus, deed descriptions are evidences of intent utilized by a surveyor to identify and establish land boundaries.
The purpose of a resurvey is defined in a federal case (and all surveys are resurveys when identifying the boundaries of a deed description): "The purpose of a resurvey is to retrace the footsteps of the original surveyor. When the marks of his footsteps are found, they control. When they cannot be found, old use and occupancy, old recognition, must suffice." Ballard v. Stanolind Oil & Gas Co., 80 F.2d 588 (1935). I know this case deals specifically with the original sectionalized system (PLSS); however, the principle is the same for subdivisions of that system be they by plat or metes and bounds.
"In case of a deed to real property, it has always been competent to prove the facts and circumstances surrounding the transaction in order to ascertain the premises intended to be conveyed." Sengfelder v. Hill, 58 P. 250 (Wash. 1899).
These are directives from the courts to surveyors as to what our responsibility is in conducting resurveys, that being to identify and establish boundaries. Not just any boundary but the first or original boundary and to find and perpetuate prior surveys [that] have vested rights attached thereto. And then there is the matter of unwritten title rights and what [effect] the actions of the landowners themselves [have had on] their boundaries. These are issues [that] at a minimum a surveyor must consider during the process of a survey.
The purpose of a deed is that of being evidence as to boundaries. While what I would consider to be a "rogue" case can be found [that] contradicts these statements, the fact remains that the vast majority of cases are consistent with those quoted above. Far too often a "rogue" case is used by surveyors to perpetuate the idea that, [as the author of the letter noted], "We as surveyors get to second guess the courts... ." Actually, we do not second guess courts. Our professional responsibility is to conduct our surveys in a manner that will identify and establish land boundaries consistent with the law and legal precedent. Otherwise, it cannot be defended [when] challenged in court.
Now, lest the reader be left with the false impression that I am advocating the position of being a "fence staker," let me conclude that caution must be exercised in boundary retracement. It is not the surveyor's job to assume a line of occupation to be the legal boundary. There must be justifiable evidence of such, and yet producing a map that does nothing more than show where the mathematical location of a deed falls in relation to occupation is not a survey. A proper survey will give due consideration to the written record (recorded or unrecorded), extrinsic evidence to identify intent, prior surveys, unwritten title rights and subsequent actions of the landowners. When occupation and record descriptions do not coincide, it is paramount that the retracing surveyor develop a preponderance of evidence to locate the correct and legally defendable boundary because a court may just ask, "What were you thinking?"
It never ceases to amaze me how often we as surveyors are willing to acquiesce our professional status to that of a simple technician and in some cases outwardly promote such in spite of the extensive writings and teachings on the subject.
Ernest D. Rowley, PLS
Utah, Nevada, Illinois
Point of ViewMay 2006
I agree 100 percent with Mr. Mokanyk's column concerning surveying fees. I have had the same experiences with mortgage inspection surveys so many times now it is like a broken record.
There are other factors contributing to our dilemma in this profession that Mr. Mokanyk did not touch upon. First of all, we are our own worst enemies. In a day when surveyors are more educated, more engaged in the land development process and incur much more liability than our predecessors did, we still have guys showing up at meetings with field pants and printed T-shirts. We still have surveyors with grandfathered status doing transit and tape work based on the current deed only. We still have state employees doing weekend work at bargain basement prices. It is our responsibility to marginalize these folks and encourage (or better yet, demand) our young surveyors meet a higher standard. We should "follow in the footsteps" when retracing boundaries, but not when setting standards of professionalism.
Another way we fail ourselves is the lack of policing on the part of our state boards of registration. I was astonished recently to browse my states various boards' records and view the disciplinary actions taken against other professionals in recent years ([with] very little on surveyors). I personally know surveyors [who] would have had their licenses revoked under the same standards used by other professions, yet they are still active and I have to compete with them. In all fairness to the board, the problem may lie in the fact that the violations never get reported. Because of the relative nature of boundary surveying and the dubious "local standard of care," many clients don't even know when they are being ripped off. To compound the problem even more, many surveyors are more than willing to "hold" another surveyor's work without performing the required research to verify that it was done competently and correctly.
The root of the entire problem, however, lies in public perception. Surveying is a very visible profession and surveyors are usually observed working on roads. People slow down and turn their heads. Hopefully they see clean-cut men and women dressed in professional work clothes, with safety vests and expensive-looking equipment set up behind visual barriers. Unfortunately, they sometimes see rag-tag flunkies with ripped jeans, AC/DC T-shirts and no safety garments at all, with equipment they don't even have enough respect for to place a few road cones in front of. What they don't see is the college grad surveyor back at the office poring over ancient deeds or performing least squares adjustments on complicated survey data. It is because of this perception that people don't expect to pay a surveyor as much as an engineer or architect.
As a capitalist at heart, I like to think that the tried-and-true dynamic of supply and demand will eventually raise our fees to where they belong. My state, like most others, is not replenishing the supply of surveyors as it should be. Land has doubled and tripled in value in the last 10 years, and title attorneys, realtors and architects have all benefited. Why is it that we surveyors can't seem to get it together? We need to stop blaming others and start fixing the problem within our own offices and field crews.
Andrew J. Nadeau, PLS
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