Book Review: 'The Pincushion Effect'
July 3, 2012
Jeff Lucas has written a powerful book--one that all American surveyors ought to add to their libraries. It is a valuable collection of case law and history presented in such a way that it will likely make most diligent practitioners angry within the first two chapters. However, those who persevere into the rest of the book will be rewarded with a wealth of information.
Have you ever had a friend or associate with whom you shared a conclusion but whose argument supporting the conclusion grated on your nerves like someone’s nails screeching on a chalkboard? Lucas’ first chapters affected me that way. I like Jeff Lucas and consider him a friend. I was somewhat put off by the book’s title, “The Pincushion Effect,” but knowing I am more sensitive to literal subtlety than most, I dismissed that as a personal idiosyncrasy and took on the review assignment with enthusiasm.
Then I started reading. It took me awhile to work through the introduction. I put the book down on several occasions thinking, “Who is this surveyor he is describing? I don’t think like he says. I don’t know many who act like that!” I fear most diligent surveyors will react that way as well. But I eventually picked the book back up and read some more, and I’m glad I did. As I got into the third chapter and beyond, with only a few exceptional passages, the reading was worth the effort.
Somewhere in the middle of the book, I realized what had happened. Lucas is both a professional surveyor and an attorney at law. It is a weakness of the American judicial system that it is practiced as an adversarial system. There is a presumption that if we take a disagreement, frame it into diametrically opposed positions and insert a generous dose of hyperbole to the arguments on both sides, they will somehow balance and justice will be found in that balance. The prosecutor or plaintiff’s paraclete will address the court making exaggerated claims of wrongdoing by the defendant, later adding evidence and reason that is more substantial. That is how Lucas makes the arguments in his book. I think his point is clearly stated in a few pithy sentences:
In many cases landowners who once lived in peaceable coexistence hate each other for the rest of their natural lives and beyond as a result of pincushions. In other cases they litigate spending thousands and tens of thousands of unnecessary dollars, wasting years of their lives, and shedding untold tears and precious blood because of the pincushion corner. And in still other cases they shoot each other over the resulting boundary dispute. The average citizen reads the story in the newspaper or sees it on the evening news and wonders how such a thing could happen. This is the pincushion effect.
I cringed like an innocent defendant through his opening statements and was relieved as the meat of his evidence was presented. The book is filled with juicy bits ranging from very old case law to some not many months old. The 2009 Manual of Surveying Instructions by the BLM was being published as Lucas wrote his book, and it is referenced in several places. One refreshing aspect is the inclusion of pertinent example cases even though they had not been published (and thus setting precedent by higher courts) but that have excellent exposition of the law and the courts’ reasoning in application of the law. There is also a valuable explanation of the Chancery Court and the evolution of equity in the application of justice under common law.
Surveying is and always has been fundamentally a scientific enterprise, a seeking of truth and accuracy. Original surveyors sought to put boundaries where they were called to be by the conveyor. Very expert people, such as Charles Mason, Jeremiah Dixon, Andrew Ellicott and Benjamin Banneker, were engaged for important enterprises. Smaller tracts exchanged between individuals have relied on the services of less illustrious practitioners. The exchange is not of the surveyor’s property; it is the duty of the seller and buyer to show and agree to buy what they illustrate to each other. The surveyor acts in their stead to mark or ascertain that what is intended is factual on the ground. The purpose of monumentation is to make obvious to any layman the limits of rights and claims. The purpose of contracts and other legal documentation is to provide evidence of the parties’ intentions and to establish proof of the property in question.
Surveying is too often misdefined as the practice of expert measuring. Measurement is, of course, one of the most used tools of a professional surveyor, but it is only one tool. A great deal of the business has been to serve builders and engineers as their eyes on the ground by performing precise, consistent, accurate measurement activities. As a side effect of practicing surveying, the measurement skills of these professionals proved useful in other applications. With the ascendency of engineering in the public’s esteem, surveying came to be associated with the measuring made in conjunction with engineering projects, leading some (perhaps many) to believe measurement was the primary function of surveying.
Lucas fails to make this point clearly. However, he succeeds very well arguing that engineering curricula no longer address the educational needs of a prospective professional surveyor. This echoes precisely what was argued by Curtis Brown decades before regarding the need to recognize the distinction of surveying as a learned profession.
Lucas supports his point well when he shows how the courts have clearly and consistently described the responsibilities of professional surveyors as they retrace boundaries. I particularly liked his clarifying words about the difference between the “what” and the “where” of the property being surveyed. That is something that ought to be heavily stressed in the education of surveying students and the training of surveying interns. It is critical to the proper analysis of any apparent boundary conflict that surveyors remember they are seeking the “where” and carefully avoid attempting to change the “what.” The “what” is the purview of the owners and their counselors at law. The “where” is the purview of subdividing owners, their surveyors and, as a last resort, the courts.
Lucas also makes a very good and intriguing argument that there is never a proper occasion for a retracing surveyor to ever use double-proportion to establish the location of a corner. I’ve struggled to find fault in his argument but have not done so yet. He takes Curtis Brown to task many times as one whose writing is the basis for many who are guilty of setting pincushion corners. I was not persuaded by his arguments, reading into Brown’s words a reflection of the times in which they were written rather than an argument for creating confusion by surveying. I thought Lucas was a bit too hard on Brown.
Lucas applauds the development of the 2009 Manual of Surveying Instructions by the BLM but finds a two edged sword in one particular change. He notes “One of the problems with the 1973 Manual is the ‘beyond a reasonable doubt’ evidence standard … was ostensibly fixed in the 2009 Manual.” The IBLA found in a 1988 case that “The entire thrust of the Survey Manual is to recognize corners as existent, rather than lost, if at all possible. … Utilization by BLM of a substantial evident test [is standard] … a party challenging the correctness of a dependent resurvey must show error by a ‘preponderance of the evidence.’” This opinion is reflected in the 2009 Manual.
The present trouble he identifies is that there are now two, and sometimes three, standards in place. A survey that followed the 1973 Manual may have applied “beyond reasonable doubt.” The BLM working on the same survey may operate under “substantial evidence,” and if private surveyors were to challenge the BLM, they would be held to the standard of “preponderance of the evidence.” So in any case pitting a BLM survey versus a private survey, one may expect to find a thumb on the scales of Lady Justice.
One chapter discusses a variety of other surveying systems, illustrating the preeminence held by the intent of the parties to a transaction and the evidence of that intention contained in the documents, and, more so, shown on the ground evidenced by monumentation, use and dependence by owners and neighbors.
The last chapter discusses the advantages and disadvantages of various forms of remedy to boundary location problems. Lucas leaves the usual discourse on typical remedies for boundary disputes found in law to discussions earlier in the book and to others. These include quiet title action, ejectment, trespass fraud “and sundry other actions a resourceful attorney may be able to muster.” He spends time discussing accuracy versus precision (a most important distinction since accuracy is the only thing that matters for boundary surveying, while precision is the most important consideration when performing an engineering survey). He recommends possible regulatory remedies such as standards of care, not unlike some requirements of ALTA/ACSM standards.
Rewriting legal descriptions is covered, including cautions about certain phrasing that may change the “what” or the dignity of the property being described. He describes the dangers and probable overstepping of authority by surveyors to initiate quitclaim deeds. Doing so changes the “what” of the property rather than correcting an error in the “where”, and “places the land surveyor in the position of advocating a legal position as opposed to determining the fact of location.” He ends this final chapter with a sample boundary line agreement that in many cases may be appropriate to use.
The truth in his conclusion and undeniable value in his evidence would be a huge asset to have at the start of a career. However, I hesitate to recommend this book in its current form to any who may be contemplating study for the purpose of becoming a professional surveyor. While the information collected between its covers is of great value, the probability of developing a less than positive image of the profession is profound. Additionally, I fear the prosecutorial style of argument would be off-putting to those contemplating a career in surveying. I would like to see Lucas put the information into a text aimed at students under a different title and with less prejudicial argument.
Lucas’ book consists of 355 pages that are guaranteed to stir any practicing professional surveyor’s blood. It contains a treasure of wonderfully useful references and makes a great addition to his library. It suffers a few of the expected faults of a first edition of a few typographical errors and misplaced and misspelled words, but they don’t materially detract from the book.
Given a less provocative title and toned down prosecutorial rhetoric, this book should be a required text for every university surveying student.