Locating Liberty

December 2005
I enjoyed Mr. Babcock's article on "Locating Liberty." I was particularly interested and puzzled by the "Philadelphia Foot." Those early surveyors may have known how long a foot was, but the problem could have been that the hooks on the links that made up the chains tended to straighten, making a longer chain with use. About two-hundredths of an inch per link would do it.

Paul Beckham

Author Todd Babcock, PLS, responds:
Mr. Beckham is correct in his observation that it is possible that the chain would have been stretched by use, thus causing the chain to be longer. I think, however, that there is more to it than that. Before commencing the survey between the Ritten-house Observatory at Norriton and the State House Observatory in Philadelphia, the surveyors determined the variation of the compass with the Meridian and then noted: "We then carefully measured our chain, and adjusted it to the exact standard of 66 feet." They also noted that they "superintended the stretching of every chain, and the levelling and plumbing it, whenever there was any ascent or descent in the road."

Certainly the wear and stretching of the chain must be considered as a possibility; however, this would occur over a period of time. The variation of the distances, if attributed to wear of the links, would be the exception and not the rule. This is a matter that has been debated by Philadelphia surveyors for many years. The point I was hoping to make is that this is something that may not be confined to Old City Philadelphia. During colonial times, there was little standardization of weights and measures. As surveyors, this is something we must understand and consider when performing retracement surveys.

Traversing the Law

January 2006
I have read Mr. Lucas' latest installment and am compelled to comment. First, I agree with at least one thing that Mr. Lucas [wrote]:
"... there are licensed surveyors who should not be practicing boundary survey work." Unfortunately, I do not agree with many other points that Mr. Lucas has made to support this statement.
Mr. Lucas says that surveyors suffer from too much of the technical side of surveying and there is not enough emphasis of the legal principles involved with determination of boundary lines, and specifically unwritten or occupational rights. It is my experience that the majority of surveyors performing boundary survey work in my area (New Jersey) suffer from a shortcoming on both fronts. Although it pains me to say this, it is my opinion that you give surveyors more credit than I would with regards to the measurement capabilities (the technical side). It has also been my experience that most surveyors performing boundary survey work (again, in my area) have little knowledge of or concern for junior/senior rights issues, let alone unwritten or occupational rights. These same surveyors are normally outspoken opponents of statewide standards and the requirements for a four-year degree. They are also performing most of the "boundary" surveys that are used in common residential title transfers and are doing so for a ridiculously low fee.

Mr. Lucas feels strongly that we surveyors are somehow responsible for creating litigation and "pitting neighbor against neighbor" by ignoring the "king of all boundary lines." Based on my understanding of real property law (I am not an attorney), I understand that this type of boundary, if proven, would prevail in a court of law and would be, therefore, the "true and correct" boundary line. As a surveyor, I cannot see how this can possibly be "determined" by a common (or even a diligent) land survey. Common in all the cited court cases are the criteria that (1) the line be well defined, (2) the parties both occupy to these lines and acquiesce to this occupation and that (3) this condition be continued for some length of time. As the surveyor[s] visiting the propert[ies], it is our responsibility to identify and locate the well-defined line per the physical occupation, but the other aspects of the proofs required for such a boundary to hold are beyond the responsibility of a normal land survey. To prove such a boundary would require research into previous surveys (and possibly aerial photography) to establish the length of time that this well-defined line has been in place and parol evidence from current and previous land owners to their state of acquiescence and its duration. Only after the collection of this evidence and a case law comparison of the facts at hand could a surveyor claim with any confidence that this boundary line should trump a clear interpretation of the written intention of the parties. It is my opinion that this is far beyond the responsibility (or professional purview) of a typical boundary survey. At a minimum, this effort certainly exceeds the typical $500-$700 that a homeowner pays for a typical title survey!

Mr. Lucas [wrote] that many surveyors may "lack the artistic aptitude to see the whole picture and to bring the canvas to life." This is the first time that I have heard of legal interpretation and judicial authority referred to as "artistic aptitude." To suggest that surveyors are remiss in not finding the correct boundary line location based on acquiescence and all the legal proofs required to support it is, in my opinion, not very sound judgment and is inconsistent with the delineation between the practice of land surveying and the practice of law. I understand that Mr. Lucas' dual credential may put him in a better position than most to cross this line, but I have no such luxury. Would I not be equally open to liability if I were to determine that occupational rights trumped the unambiguous written rights, well supported by physical evidence, and my legal analysis (which I am not professionally qualified to make) was flawed?

Ignoring Mr. Lucas' patronizing sarcasm, his closing thoughts include his opinion that "many surveyors have focused too much attention to paper and theory, and lost touch with the physical and reality." I believe that too many surveyors have focused too much attention on the bottom line and increasing profits (or simply realizing one!) and have lost touch with paper, theory, the physical, the reality on the ground and overall professionalism. We have done all this under the thumb of the consumer, the banks and the legal profession, all of whom currently control land transfers and fight tooth and nail to keep our fees below those of the attorney, the title company, the home inspector and every other service related to the transfer of land. Surveyors have acquiesced to this pressure and the entire profession has suffered as a result.

Andrew Clarke, PLS, PE
New Jersey

Author Jeff Lucas responds:
I appreciate Mr. Clarke's comments. Whether practicing surveyors get enough compensation for the services they provide, or should provide, is beside the point. Whether surveyors are providing the services that they should and in the manner that they should is exactly my point.

Contrary to Mr. Clarke's feelings on the subject, it's unquestionable that the majority of the commentators on surveying issues feel that it's the land surveyor's responsibility, at a minimum, to interpret legal descriptions. Further, most insist that the surveyor should also be able to interpret a deed and even resolve junior/senior issues, if and when those issues come up. I agree with him on this point. Many surveyors providing boundary surveying services lack the ability (or seemingly lack the ability) to perform these tasks. That goes to the heart of my comments concerning licensed surveyors who should not be offering boundary surveying services. They seem to lack some basic understanding relative to boundary survey law, let alone more advanced concepts.

And that leads directly into my next point. Simply knowing how to interpret a legal description and/or being able to make a determination relative to junior/senior rights will not always lead to the determination of the true boundary line between two coterminous landowners. And here's my question: What other line really matters? If land surveyors are incapable of making a correct boundary determination, then where are people to get their boundary determination? Must they go to the courts in order to get a determination of their boundary lines? If that's the case, why do we need boundary surveyors?

I'm trying to give boundary surveyors information that they need, or at the least, information they should be aware of as they practice their profession. What they do with that information is up to them. Interpretation of a legal description taken from a deed is only part of the equation. That information alone is akin to giving someone a gun without explaining what bullets are, how they are loaded and the consequences of pulling the trigger. Yes, it is my belief that surveyors oftentimes are the catalyst for litigation. I have the case law to back up this belief. In many of those situations (hindsight always being 20/20), the surveyor could have played an important role in solving the problem but didn't.

The attitude of many surveyors across the country is that the surveyor needs only to be a fact-finder and leave the problem solving to the real professionals who handle these kinds of things, primarily lawyers and judges. At the same time, many of these same surveyors join the chorus when it comes time to lament our second-class status among the professions.

The ideas and opinions expressed by our readers do not necessarily reflect those of POB. Send your thoughts to the editor at hohnerl@bnpmedia.com or mail to: Letters, POB magazine, 2401 W. Big Beaver Rd., Suite 700, Troy, MI 48084.