The Surveying Profession And The Defense Of Property Rights
The NCEES is causing the slow and miserable death of the land surveying profession.
If you are a fan of college football, as I am, then you have no doubt heard the call for the NCAA to shut down or otherwise get out of the way due to its failed policies and rules that do not benefit its member institutions or the athletes. The same can be said for the NCEES: it is time for it to shut down or otherwise get out of the way due to its failed policies and rules, at least with respect to the land surveying profession. I will not pretend to speak for the engineers — they can speak for themselves — but the NCEES is causing the slow and miserable death of the land surveying profession.
The Premise of Surveying Land
Let’s start with the basic premise of surveying land. The core issue for land surveyors, the only reason surveying is a regulated profession, is the protection of private property rights. If surveyors are not doing that then all of the other functions of surveying can be handled by others — licensed surveyors are not needed. The NCEES once recognized this vital role of the land surveyor. In the 2010 NCEES Model Law we find the following under the General Provisions:
“Regulation of Engineers and Surveyors — In order to safeguard life, health, and property and to promote the public welfare, the practice of engineering and/or the practice of surveying in this jurisdiction is hereby declared to be subject to regulation in the public interest.”1 [Emphasis added.]
Tangentially, surveying practice does have an impact on the life and health of our landowning citizens. When you are being sued by your neighbor because of bad surveying practice it has an impact on your life and health. Being sued causes stress and anxiety, especially when what you always believed to be your property has suddenly been challenged. The most stressful aspect is trying to figure out how you are going to pay for the defense of your property. Boundary dispute cases are not personal injury cases where there will be insurance money to pay for the litigation and there is a lawyer willing to take the case on a contingency basis. You’re on your own and will have to pay for the cost of litigation out of your own pocket. None of this activity promotes “the public welfare.”
At some point between 2010 and the 2018, NCEES changed the Model Law by removing “property” as an imperative for regulating surveyors.
“Regulation of Engineers and Surveyors — In order to safeguard the health, safety, and welfare of the public, the practice of engineering and/or the practice of surveying in this jurisdiction is/are hereby declared to be subject to regulation in the public interest.”2
What is it about safeguarding “the health, safety, and welfare of the public” that requires surveyors to be licensed and the profession regulated? There are plenty of other people and professions that can do that quite well — surveyors aren’t needed. No, the removal of the word “property” is a tangible sign that the NCEES doesn’t know what it is doing. The NCEES does not know what surveying is all about and certainly does not know why surveying even exists as a regulated profession. Why is this critical? Because the vast majority of regulatory boards across the country adopt and adapt their laws and rules based on the NCEES Model Laws and Rules.
The Definition of Surveying
If this were the only problem then I could probably ignore it, but it gets worse — much worse. Let’s turn to the basic definition of the practice of surveying. Staying with the 2018 Model Law, the definition lists seven activities considered to be the practice of surveying. Only two of these activities touch on the core issue of surveying (i.e., the protection of property and associated rights). An argument can be made that the other five can be and are being provided by others who aren’t encumbered by regulation. Google, Esri, GIS and anyone with an FAA Remote Pilot Certificate to fly a commercial drone come to mind. The two core issues are: “c. Locating, relocating, establishing, reestablishing, or retracing property lines or boundaries of any tract of land, road, right of way, or easement” and “d. Making any survey for the division, subdivision, or consolidation of any tract(s) of land.”3
The two fundamental principles of surveying land are: (1) the surveyor is an “Original Surveyor” laying out new lines and corners in a subdivision of land for a common grantor, or (2) the surveyor is a “Retracing Surveyor”4 whose only function is to find where the boundaries have become established on the ground, not to correct them. These two principles cannot be seriously challenged because they have been repeated for hundreds of years by the courts in every jurisdiction. These principles are the foundation upon which the entire Public Land Surveying System (PLSS) stands and were codified in the federal Act of 1805. Unfortunately, the NCEES doesn’t understand these two principles or has never heard of them.
Considering the two definitions above, we will take the second one first (subparagraph d.). This is obviously an attempt to describe an original survey of land. As we know, an original subdivision of land is a measurement and math task. The goal is to, as precisely as possible, lay out the geometry from the plat. In contrast, a retracement survey is an evidentiary exercise. The geometry from the deed (description of the property) and measurements made in the field are merely evidence, and generally not the best available evidence. So, what is the first of those two definitions (subparagraph c.) describing?
The word “locating” is straightforward enough and seems to describe an activity related to a retracement survey. During a retracement survey you would presumably locate existing boundary lines and corners. What about the word “relocating”? What does it mean to “relocate” property boundary lines? It tells me that, as a retracing surveyor, I can relocate the property lines to the places where they should have been set in the first place — ostensibly correcting the mistakes of the original surveyor. This definition is one possible explanation for ‘deed staking.’5
What about “establishing” and “reestablishing?” The use of these terms makes it crystal clear that the NCEES has no idea what it is doing with this definition. Surveyors do not establish property boundary lines and they certainly can’t reestablish them either. Surveyors establish nothing relative to boundary lines. The surveyor is just a tool in the establishment of boundaries.
Property boundary lines are established by the activities and inactivity of the landowners. The lines and monuments laid out by the original surveyor become infallible, not because of the actions of the surveyor, but by the reliance of the landowners and the subsequent attachment of their property rights. When reliance sets in and the property rights attach, the property lines become established on the ground, almost irrespective of what the title documents purport say. The use of “establishing” and “reestablishing” in a definition of surveying practice is irresponsible and dangerous. The troublesome part of this is that the NCEES seems to be totally oblivious to its own folly.
The final blow is landed with the terms “or retracing property lines.” Since subparagraph d. seemingly defines an original survey, the reasonable inference to be made about subparagraph c. is that it should be defining a retracement survey, but this is not what it is doing because of the “or retracing” language. If we ignore the ‘establishment’ type language (something the surveyor has no power to do) and chalk it up to simple nescience, the definition is actually describing two types of surveys: (1) a “relocating” survey to move established property lines, or (2) a “retracing” survey. The latter being a legitimate survey, the former being illegitimate but allowed under the definition.
Deceptive Trade Practices
Ignorance of the boundary establishment doctrines and promulgating definitions that provide cover for bad practice is not just egregious, it is borderline criminal. Many states have enacted consumer protection statutes such as the “Deceptive Trade Practices Act” in Alabama, Texas and Colorado, to name a few that are very similar. The Act is aimed at deceptive trade practices relative to goods and services, such as land surveying services. There are several passages in Alabama’s Act that are troublesome relative to this discussion but one, in particular, hits the nail squarely on the head.
“Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.”6
Passing off an illegitimate “relocation” survey as a legitimate retracement of property boundary lines (i.e., a boundary survey), is a violation of the Deceptive Trade Practices Act constituting consumer fraud. This definition has been around in our licensing laws for as long as I can remember and has inflicted untold damages on American consumers.7
This is why, among other reasons I couldn’t get to, the NCEES needs to go, along with its damaging policies and rules. As far as surveying goes, the NCEES is less than useless, it’s a liability.
- 1§ 110.10, A., NCEES Model Law, 2010.
- 2§ 110.10, A., NCEES Model Law, 2018.
- 3§ 110.20, B.4.c. & d., NCEES Model Law, 2018.
- This is sometimes referred to as “following in the footsteps” of an original surveyor. As we know, however, not every property line has been laid out by an original surveyor. Nevertheless, every property line has become established on the ground through the activities and acquiescence of the landowners themselves, and by operation of law and equity. The test for the truth of this statement would be to take any boundary dispute to a court of competent, with or without surveying evidence, and see how many lines you come out with. It will be one—and that will be the true and correct property line between the plaintiff and the defendant.
- ‘Deed staking,’ refers to the illegitimate practice by some surveyors of simply taking the geometry from the client’s deed and precisely staking it out on the ground with little of no consideration of other evidence of location. All that is needed is a starting point with a geometric connection to the property being surveyed and an azimuth for direction. This is not an original survey and it is not retracement surveying. This is an illegitimate practice with no supporting principle but covered as acceptable by the NCEES’s definition of surveying.
- 6§ 8-19-5. (7), Code of Alabama.
- If you don’t think being in a lawsuit is damaging, then you haven’t been in a lawsuit.
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.