Over the past few months, we’ve been concentrating on the problems that surveyors encounter and create. But surveyors also have an opportunity to become problem solvers, not just problem finders.
We all know the potential problems we face in dealing with boundaries. Many landowners actually cringe at the thought of a land surveyor on or around their property because they have the feeling--from past experience or general perception--that trouble is on the way.
By and large, society does not like troublemakers--and this includes those who point out problems and deliver the bad news, especially ancient problems that have lain dormant for decades or even centuries. Both state and federal legislative bodies hate ancient controversies; they actually pass laws either to resolve them or render them moot. Such laws are referred to as statutes of limitations. Judges also hate ancient controversies; they create rules against them, as well. In the context of boundaries, these rules include repose, laches, estoppel, prescription, acquiescence--and the list goes on.1 And of course, the general public hates ancient controversies; they break out guns, hire lawyers and spend their treasure defending against them.
This ancient controversy quest we find ourselves bent on pursuing, of course, leads us directly to the other professional allied in this cause: the lawyer. Lawyers who deal with these issues don’t mind ancient controversies because they are a source of revenue. Many will tell you that it’s our duty as land surveyors to find these problems and bring them to the legal profession for proper resolution. While that may be exactly what needs to happen in many situations, I believe that the solution to the vast majority of boundary dispute cases is within the reach of the first professional on the scene--the land surveyor.
Every time I discuss resolving boundary problems, or even knowing and applying the law, the comment, “Isn’t that practicing law?” inevitably gets thrown out. First, let’s deal with the concern about knowing and applying the law. All citizens, not just professional service providers, are charged with knowing and applying the law.
More specifically, the ancient equity maxim is ignoranti juris non excusat. This is commonly translated as “ignorance of the law is no excuse.” This is not a new proposition. … A fundamental premise of our legal system is that parties are presumed to know the law, and ignorance of the law is no excuse. It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally. This concept is also applied in the non-criminal, regulatory law context.
It therefore follows that the professional land surveyor, who has a heightened duty and obligation to the citizens of the state, must also know and apply the law.
Protection of the public shall be the highest priority for the Board for Professional Engineers and Land Surveyors in exercising its licensing, regulatory, and disciplinary functions. Whenever protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
The surveyor shall: Make interpretation of location in accordance with law and/or precedent, and finalize the establishment of the property lines.
So let’s dispense with the lame argument that surveyors aren’t supposed to know the law and apply it. We are not only supposed to know the law and apply it--we must also recognize it is our duty to do so.
Then what about the legitimate concern over where the practice of surveying ends and the practice of law begins? Without doing a 50-state survey (no pun intended) on the definition of practicing law, I’ll use my own law in Alabama as the example. Whittled down to the essentials that might involve surveyors, that code section reads:
(b) For the purposes of this chapter, the practice of law is defined as follows: Whoever, (1) In a representative capacity appears as an advocate … before a court or a body, board, committee, commission or officer … having authority to take evidence in or settle or determine controversies in the exercise of the judicial power … or (2) For a consideration, reward or pecuniary benefit … advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to secular rights; or (3) For a consideration, reward or pecuniary benefit … does any act in a representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishment of a right; … is practicing law.
Boiled down to its essentials, the practice of law includes client advocacy and, in exchange for “consideration, reward or pecuniary benefit,” dispensing legal advice, preparing legal documents for others, or representing others. We have discussed client advocacy on many occasions, and I have pointed out the pitfalls and torts awaiting the surveyor as advocate. Under Alabama law, it is illegal for anyone other than a lawyer to give legal advice, prepare legal documents and represent others for “consideration, reward or pecuniary benefit.” If you don’t charge for these things or if you do them for yourself and not others, it would appear that you are not practicing law.
The Boundary Dispute
In a perfect world, the land surveyor would be a totally disinterested third party surveying any given boundary line, as equally dedicated to the client on one side of the line as to the client’s neighbor on the other side of the line. This tends to remove the surveyor from the practice of law because no advocacy takes place as the surveyor moves down the line knowing and applying the law. But we all know we don’t live in a perfect world, and our clients haven’t read Section 34-3-6 of the Alabama Code. They want us to be their advocate. They certainly don’t want us talking to their neighbor about anything, let alone a boundary problem. They want free legal advice (since it’s free, I guess it can’t be construed as the practice of law). These are tough situations without easy answers. I’ve never said surveying is easy or for the faint of heart.
Assuming a legitimate boundary dispute involving either the legal question of what the boundary is or the fact question of where it is located (not some surveyor-contrived dispute that really doesn’t exist), the landowners involved will have a problem on their hands. It may be relatively small, or it could be huge. First, we have to realize that we may or may not be able to help them. But I am of the opinion that we have an obligation to try. The surveyor is the first professional on the scene and will, more than likely, set the tone for the events that follow. Driving irons, chopping the line through Maynard Carl’s barn and letting the “chips fall where they may” will set one tone. Presenting the problem first to your client with an explanation of the need to involve the neighbor and then to the neighbor in the spirit of problem resolution will set another tone.
The possible avenues that can be taken to resolve the problem are too numerous to discuss in detail in this short article. Since our focus is on the line between practicing surveying and practicing law, we will direct our attention there. First, the preparation of deeds, corrective deeds, quit claim deeds, boundary agreements and other such “legal” documents will all fall under the practice of law if the surveyor prepares these documents for others and/or is paid for these services. If these documents are provided free of charge and the parties fill them out, ostensibly, it’s not the practice of law. This is a fine line in a gray area that is highly subjective. Surveyors who find themselves involved with these issues should associate with lawyers who understand these problems and who want to solve them as opposed to litigate them. Then, working together, the surveyor and lawyer will render a valuable service to the parties involved and possibly avoid a shooting war.
Boundary disputes that are resolved by way of survey maps and plats can be just as effective as those decided through the previously discussed “legal” documents, and the surveyor can charge fees to prepare maps and plats. In most states, this responsibility is part of the very definition of surveying. The big problem with resolving issues in this manner is whether other surveyors can find the documentation. Surveys are recorded in some states and not in others. In some states where maps are recorded, the recorded maps constitute “constructive notice.” In other states, they don’t. One common thread that seems to run throughout all jurisdictions is that the recording of a subdivision plat constitutes constructive notice. When coupled with deeds that refer to the plats, subdivision plats that reform the boundary lines end the boundary dispute once and for all.
The Surveyor as Mediator
A service that can be added to our practice almost immediately is mediation. You don’t have to be a lawyer to be a mediator. If you have ever broken up a fight between your kids, you are a mediator. Some people are more suited than others for this type of work. In our role as discoverer of ancient controversies, it’s tough to take that hat off and immediately begin to think about mediating the controversy between what could soon become warring tribes. The reason it’s hard to do that is because underneath the discoverer hat is the advocacy hat. Immediately upon discovery of the ancient controversy, our first inclination is to take our client’s side. After all, that’s where the money is coming from. Once you take a side, however, you are no longer useful as a mediator.
In the legal system, mediation is a form of alternative dispute resolution that the courts encourage to avoid full-blown litigation. There are formal mediator rosters maintained by the various bar associations across the country. Getting on the bar association roster involves formal training and an application process, but none of this requires being a lawyer. From what I have seen and the cases I have read involving surveyors and boundary disputes, landowners with boundary problems could benefit immensely from mediation. Surveyors and the surveying profession could benefit, as well. Surveyors as mediators bringing parties together to resolve disputes−as opposed to finding and, in some instances, creating them−can only help to change the perception of the surveying profession as a whole. The only downside I see is that there will be fewer cases for me to write about. Don’t worry, though. I’ll get over it.
1- Please refer to Black’s Law Dictionary or Wikipedia, the free online encyclopedia, for definitions of these legal terms.
2- Wyoming Refining v. United States, 58 Fed.Cl. 409, 414, 416 (U.S. Claims 2003).
3- 8710.1. Protection of the public as highest priority. California Business and Professional Code.
4- 250 CMR 6.00: Procedural and Technical Standards for the Practice of Land Surveying. Rule 6.01(1)(d)(3). Code of Massachusetts Regulations.
5- 34-3-6. Authority to practice law--”Practice of law” defined. Code of Alabama 1975.
6- Please note that this definition will vary by state. Check your state’s code for the definition that applies in your jurisdiction.
7- Campbell v. Carl, 395 So.2d 480 (Ala. 1981).
8- As defined by Black’s Law Dictionary, constructive notice is information or knowledge of a fact imputed by law to a person (although he may not actually have it) because he could have discovered the fact by proper diligence, and his situation was such as to cast upon him the duty of inquiring into it.
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.
This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.