As I read the NCEES response to my April 2020 column about the problematic definition of the practice of surveying as contained in its Model Law, I was reminded of the difference between a reason and an excuse. “Reasons become excuses when they are used to avoid responsibility.”[i]
The response states that the “Model Law reflects best practices as determined by NCEES member boards and is a model for state practice legislation.” The column goes on to imply that NCEES has little or no control over the actions of its member boards and gives numerous excuses for how the Model Law and Rules are promulgated. But the problem with the definition of the practice of surveying was completely ignored.
The problem with the definition is that it provides cover for aberrant practice, permits an open assault on property rights and sanctions borderline criminal activity. The definition — besides the fact that it has been around way too long — was born in an era when surveyors were taught that issues involving property rights were beyond their comprehension and probably the illegal practice of law. This was an era when surveyors mindlessly believed that all they can do is measure expertly, and civil engineers would survey property boundaries. This was all explained in detail in my April column and all ignored in the response piece because the NCEES has no reasons. Just excuses.
Putting that all aside, I will offer again the solution to the problem in this open letter to the NCEES and the readers of POB magazine. Before I do that, however, I will say this: Surveyors do not need any advice from engineers on how to survey property boundaries, even engineers with surveying licenses. Surveying property boundaries is not an engineering project, though too many so-called surveyors treat it as such. It is an evidentiary exercise, and measurements are mere evidence and generally not the best. In this fundamental role of boundary retracement surveying, surveyors have more in common with lawyers and investigators than with civil engineers. I could go on, but I have probably said enough.
The solution to the definition of the practice of surveying in the Model Law is relatively simple, based on already established principles of property surveying. My fear is that there is no will-power to make it happen on the part of surveyors, and a severe lack of understanding on the part of engineers, attorneys and bureaucrats who are involved in decisions made by our regulatory boards.
Definition of the Practice of Surveying
The NCEES Model Law provides the detailed definition of what the practice of surveying consists of, and most regulatory boards have caused that definition to be legislatively enacted in state statutes. This speaks to the influence the NCEES has over regulatory boards. The most problematic language in the Model Law are the terms “[l]ocating, relocating, establishing, [and] reestablishing,” as found in Section 110.20 subparagraph B.4.c. (2018 Model Law). What do these terms mean?
“Locating” can be used in the context of retracement surveying where the object of the survey is to locate the established property boundary on the ground. On the other hand, it can also be used in the context of an original survey where the object is to, as precisely as possible, locate the future property lines on the ground in accordance with the geometry from the subdivision plat.
However, original surveys seem to be covered in subparagraph B.4.d. which describes “any survey for the division, subdivision, or consolidation of any tract(s) of land.” This tends to blur the lines between retracement surveying and original surveys.
“[R]elocating” is a problem in that it suggests the established property lines can be relocated to new positions, ostensibly to correct perceived errors from the past. This is repugnant to retracement theory. “[E]stablishing” and “reestablishing” demonstrate a misunderstanding of the role of the retracing surveyor. Surveyors establish nothing relative to property boundaries. The landowners establish property boundaries through their activity and inactivity, acquiescence, recognition, and reliance on the lines and corners on the ground, thereby causing the property rights to attach to those lines and corners. Surveyors do not participate in these matters.
The definition goes on to add “or retracing property lines ….” The “or retracing” language suggests that any or all of the activities are acceptable under the definition including “relocating” established property lines to a more correct location. This is the cover the definition provides for aberrant retracement practice and possibly sends the ‘deed-staker’[ii] surveyor close to the brink of deceptive trade practices (i.e., consumer fraud); which practices are illegal in most states. This is far from “best practices” the NCEES proclaims in its response.
A Simple Fix to Defining the Practice of Surveying
The fix to the most egregious problem is simple. We all know that the two fundamental principles of property boundary surveying are that the surveyor is either an “original surveyor” or a “retracement surveyor.” These principles are unassailable because they have been articulated by our courts in all jurisdictions for 100’s of years.[iii] While I do not like the terms in the Model Law and would change them if I could, the simple fix is to define them in the Model Rules and encourage regulatory boards to adopt them into their administrative code. This would avoid unintended consequences in the legislature to correct one problem while possibly causing a dozen others in the process. The definitions are as follows:
Original Survey - The terms “locating,” and “establishing” used in the NCEES Model Law, Section 110.20 para. B.4.c. [replace with appropriate statutory reference], refer to an “original survey” of property being conducted for the owner(s) of a parent tract of land in order to:
a. delineate new property lines for a subdivision of the parent tract;
b. reconfigure existing property lines under common ownership for a new subdivision of property; or
c. subdivide a section or portions of a section of land as a part of the Public Land Survey System (PLSS), that is under common ownership, where no such subdivision has ever been previously conducted on the ground.
The purpose of an original survey is to create an original subdivision or re-subdivision of land under common ownership.
Retracement Survey - The terms “relocating,” “reestablishing” and “retracing” used in the NCEES Model Law, Section 110.20 para. B.4.c. [replace with appropriate statutory reference], refer to a “retracement survey” of existing property lines or the boundaries of any tract of land in order to determine where the property lines have become established on the ground, either through a previous original survey of the property lines being retraced or by the application of appropriate boundary law principles[iv] governed by the facts and evidence found in the course of performing the retracement survey. A proper retracement survey shall include, but is not limited to:
a. appropriate record and field research;
b. gathering and evaluating the best available evidence indicating where the property lines being retraced have become established on the ground;
c. if necessary, interviews with local landowners familiar with the property boundary lines in the community; and
d. reporting these findings on an appropriate map of survey indicating the corners and the lines retraced, the monuments found or set during the course of the survey, and an explanation of the boundary law principles employed by the surveyor in making such determination.
Any survey of property (original or retracement) includes setting or resetting appropriate property corner monumentation, unless appropriate monumentation already exists.
There is also a need for a third definition of surveying that involves property boundaries where the surveyor is neither an original nor a retracement surveyor. This would most commonly occur in, but not necessarily limited to, an adverse possession case. In such a case, there is generally a need for a court exhibit to graphically identify and describe in writing the adversely possessed land without giving an opinion on the location of the property lines involved. That exhibit would be a forensic survey:
Forensic Survey - The application of surveying measurement and mapping techniques to the elucidation of questions before courts of law and equity. Forensic surveys are not boundary surveys and, as such, no opinions are given as to the status of property lines or property corners, nor are property corners necessarily recovered or set as a result. The most common utilization of forensic surveys is for courtroom exhibits to advance legal theories, to support facts to be proven, and to buttress expert witness testimony.
I am aware that the NCEES feels it has little or no control over the acts of the regulatory boards, and the Model Law and Rules are just suggestions. I believe that the NCEES underestimates its influence with the regulatory boards across the country. Even if true, the NCEES is the only organization in position to fix the mess with the definition of surveying at the national level.
Without NCEES backing, I could go to every regulatory board in the country, explain the problem and offer the solution, and get positively nowhere. I have tried this — to no avail. The engineers didn’t understand the question and the dual registrants thought I was the man from Mars.
I offer my assistance in any way I can to solve this problem before it is too late. Eventually landowners are going to get sick and tired of surveyors “relocating” their property lines and messing around with their associated property rights, just because they can. If surveyors are not protecting the property rights of the people, then they are no longer needed for the job of locating property boundaries.
GIS practitioners can take over that job for a fraction of the cost, and, if there is a problem the people can go straight to litigation to have their property rights adjudicated without the added expense of a survey. When the people perceive that a GIS map is as good as a survey — then it will be.
[i] Dave Anderson, Leadership Author, Speaker, Trainer and Character Evangelist.
[ii] I’m assuming that I do not need to define this term for our readers.
[iii] Citations are almost unnecessary, but the following are just a few notables: Cheery v. Slade’s Administrator, 7 N.C. 82 (N.C.1819); Riley v. Griffin, 16 Ga. 141 (Ga.1854); Diehl v. Zanger, 39 Mich. 601 (Mich.1878) (opinion by Cooley); Cragin v. Powell, 128 U.S. 691 (1888); Young v. Blakeman, 153 Cal. 477 (Cal.1908); Akin v. Godwin, 49 So.2d 604 (Fla.1950); Dykes v. Arnold, 129 P.3d 257 (Ore.App.2006); Wood v. Starko, 197 S.W.3d 255 (Tenn.App.2006); First Beat Entertainment v. ECC, LLC, 962 So.2d 266 (Ala.App.2007); etc., etc.
[iv] The application of the “appropriate boundary law principles” in the determination of the location of property boundaries is already a requirement of the 2016 “Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys” and has been since 2011. If you don’t know what the boundary law principles are and how to apply them, then you probably should not be surveying property.