I am not privy to any recent polling of the general public’s perception of surveyors. I do, however, have personal experience and anecdotal evidence that I will call upon to make some observations.
We can start with land surveyor’s perception of what they think the public thinks of them. In a nutshell, surveyors feel like they are the Rodney Dangerfield of the professions. To quote Rodney, we “get no respect” and nobody knows what we do or why we do it. This is largely a self-inflicted wound.
As a whole, the profession has done little to project a positive image. We don’t have a 30-second sound bite to explain ourselves. The CPA’s in my neck of the woods have a 30-second sound bite that makes it clear they help people build financial health and wealth. We don’t even have a tag line or catchphrase to express a positive image. “Lawyers Render Services.” It’s right upfront on the Alabama State Bar’s website and they offer a convenient link to find legal help.
What do landowners think?
We often find what landowners think about surveyors when litigation ensues as a result of surveying activity that upsets neighborhood repose.
Q: Okay. Now you know, I want to ask you something, Mr. Robertson. I mean, what I hear you saying is that if the legal description in your deed gives you a little more land, then what Mr. Ball [the surveyor] says, is what you want. Is that right?
A: Well, what Mr. Ball—according to Mr. Ball here, this is what I should have.
Q: Okay. And even though it goes beyond the pins, that’s what you should have because that’s what it says in the deed?
A: I should have on—what my deed says is what I want, and Mr. Ball has got it marked here right, and that’s what I want and that’s all, that’s it.”1 [Emphasis added.]
“‘It was only after the survey of Ron Milam that the Richardsons came to believe that they owned the land where the corrals are located.’ The court indicated that it found Milam’s surveying approach to be “‘inept.’”2
Landowners think surveyors determine the limits of ownership, and sometimes they are not so good at it. Curtis Brown made the same observation in an article he wrote in 1979.
“What did the client have in mind when he asked the surveyor to locate his boundaries? Was he asking the surveyor to locate his ownership? Or just the deed lines? As all surveyors should know, there is a vast difference between ownership and written deed rights. The written deed is merely evidence of ownership, not proof of ownership; title to land can be transferred by unwritten rights.3 From my experience with clients, very few know that there is a difference between the two; most clients want to know what they own.”4 [Italics provided emphasis added.]
This is the primary issue that drives boundary dispute litigation. When a new surveyor comes along and upsets the applecart, the landowners rightfully react because they see the results of the recent survey as a new claim of ownership rights.
Our Readers Aren’t Just Surveyors.
Recently a reader of the magazine wrote our Editor, Perry Trunick, an e-mail in reply to his May Editor’s Points column entitled, “In a Property Dispute, Land Owners Need to Ask the Right Questions.” Perry brought me in on the discussion, which turned out to be a long thread of e-mails between the three of us. The reader is a frustrated landowner who will remain anonymous, in a state that will remain unnamed. Her story, unfortunately, is not new or isolated. I have encountered the same story on too many previous occasions. A new surveyor comes along and upsets the applecart, and now the adversely affected landowner is trying to find a way to undo the damage that was inflicted. Needless to say, our reader has a low opinion of surveyors.
What she is finding out is that there is very little she can do to get the surveyor’s decision overturned, short of expensive litigation which she cannot afford. After all, surveyors determine ownership limits and a reversal is what is needed. She filed a complaint with the state Board, which, so far, has gone nowhere. She called the police to file a trespass complaint,5 they told her there is nothing they can do about it. She contacted the state Attorney General’s office, they told her to take a hike. As is often the case, she has conducted her own investigation and research on surveying and surveyors. This is apparently how she found Perry’s column.
Her basic problem is that her rights are being adjudicated without due process of law. Unfortunately, this constitutional protection is only applicable against state action, not the action of a private surveyor. Now, as something of a last resort she has contacted her state representative for some legislative action to halt lawless surveying activity. In an e-mail she copied me and Perry on, she wrote, among other things, the following:
“Is this what we want for the citizens of our state? I have checked everywhere - Atty general’s office, office of boards, your office and all say the same … I am up the creek without a paddle and my rights can be violated without any due process or procedures in place to protect those most valuable rights of our real property or our ‘castle.’ I know you are running for judge and know you to be a fair man … please help me get this ball rolling.”
This is not new either. A few years ago, I was involved in a boundary dispute case in another state where the aggrieved landowner actively pursued shutting down the land surveying business in that state by eliminating the Board of registration at the legislative level. People are frustrated with land surveyors.
Policing the Profession
The policing of a profession, any profession, happens in two basic ways. Litigation to punish the wrongdoer and Board action to discipline aberrant behavior. Unfortunately for the public and the land surveying profession, these two policing mechanisms are not very effective relative to surveying practice. A boundary dispute is not a personal injury case. No attorney in their right mind would take a boundary dispute case on a contingency basis, because there is no insurance money to foot the bill for the litigation. Title insurance doesn’t pay for boundary disputes.6 Even though the surveyor may have been the cause of the train-wreck boundary dispute, in most cases the surveyor walks because the surveyor has no insurance either. There is nothing to be gained by suing the surveyor.
The issue of policing the profession is an ethical problem that could be handled at the Board level, but most likely never will be. The “Ethics Code” or “Rules of Professional Conduct” from across the country are pretty much the same. That is because they were all fashioned after the NCEES Model Rules. As far as this issue goes, two rules stand out from all of the others: (1) the obligation to report violations of the rules and laws; and (2) the licensee shall take on assignments only when qualified by education or experience to do so.
A few years ago, the Alabama State Bar reported that the number one ethics violation of its members was the failure to report known violations of the rules and laws. Assuming that might be the case in the land surveying profession as well, then the number two most violated ethics rule is practicing boundary surveying while being unqualified to do so. I see it all of the time.
So why doesn’t the Board do something about it? Isn’t it the role of the Board to protect the public from bad practice? Well—yes—but how can the Board judge bad boundary practice when the Board members themselves do not comprehend the fundamental principles of boundary surveying?7 Surveying property boundaries is not an engineering project, although some treat it as if it were. In an article he wrote in 1969, Curtis Brown put it this way: “Ethics are often unenforceable. True professional stature arises from obedience to the unenforceable.”8
If you want proof that what I’m saying about our Boards is true, then just look at the definition of boundary surveying,9 also promulgated by the NCEES and adopted by regulatory Boards across the country.
“Locating, relocating, establishing, reestablishing, or retracing property lines or boundaries of any tract of land, road, right of way, or easement.”10
What do these words mean? Relative to the two fundamental principles of boundary surveying, this definition is nonsensical. Surveyors are “relocating” boundary lines all of the time, moving them to places where they have never been before, and the definition provides cover for the bad behavior. Just ask our reader. Her property rights are being violated, but the definition of boundary surveying is not. So, what is her recourse?
There will be no litigation, because she cannot afford to litigate; there will be no Board action, because there is no actionable offense. “We have found the enemy and he is us.” — Pogo.
- Harris v. Robertson, 813 S.W.2d 252, 255, 256 (Ark.1991).
- Larsen v. Richardson, 2011 MT 195, 20 (Mont.2011).
- The term “unwritten rights” is a misnomer, at best. The rights are written, it’s an interpretation issue. I covered the bases on so-called unwritten rights in my August 2018 column.
- Brown, Curtis M., “Land Surveyor’s Liability to Unwritten Rights,” Surveying and Mapping, Vol. XXXIX, No. 2, 1979, at 119-123.
- According to our reader’s research, the state where her property is located does not have a ‘right-of-entry’ law. I have not independently verified this and don’t need to because it is somewhat beside the point.
- As we discussed in my June column, it is possible for title insurance to pay for a boundary dispute if the ‘survey exception’ clause is removed from the contract, but that generally doesn’t happen.
- For our non-surveyor readers, the two fundamental principles of boundary surveying are: (1) original surveyor laying out new property lines for a common grantor for the very first time; or (2) retracing surveyor whose only function is to find where the lines were originally laid out by the original surveyor, not to correct them. There is a little more to it than that, but that is sufficient for this present discussion.
- Brown, Curtis M., “The Professional Status of Land Surveyors,” Surveying and Mapping, Vol. XXI, No. 1, 1969, at 63-71.
- For a full discussion on the definition of surveying, see my June 2015 column.
- Rule 110.20. B. (4.) (c.), NCEES Model Rules.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.