Traversing the law: A license to survey property boundaries.
August 29, 2008
Should every surveyor with a license be allowed to survey property boundaries? Clearly, the answer to this question is no.
For the last year or more, I have been making the case that not every surveyor with a license should survey property boundaries. I have given example after example of surveyors working with property boundaries who don’t have a clue about property law or who display blind adherence to misguided “rules of surveying” and trample on landowners’ property rights in the process. I can’t recap all of that now, but you can check the POB Web site for my earlier articles and supporting documentation for this column.
If you are a landowner seeking to hire a surveyor so that you can know where your property boundaries are, beware: Your surveyor may or may not actually intend to render that service. By my unscientific account, I would say your chances are about 50-50. If you are hearing this for the first time, it may come as a shock. You expect your doctor to understand medicine and your attorney to know the law, but you might know more about property law and boundaries than your surveyor. If not, the information you seek may be readily available from cheaper sources.
The day is coming--if it isn’t already here--when a landowner, fully intending to make it a “do-it-yourself” weekend project, will head to his nearest Wal-Mart, buy a hand-held GPS and then proceed to the tax assessor’s for a “map” of his property. The general public now has the idea that surveying is something that anybody can do--or, at least, not do any worse.
Anyone with a License
Ethical prohibitions notwithstanding, anyone with a surveyor’s license generally may survey property boundaries. The evidence I have presented in previous columns clearly demonstrates, however, that not everyone with a surveyor’s license should be surveying property boundaries.
This is the crux of the problem. Anyone with a surveying license has been allowed to deal with property boundaries--even though he or she might not be specifically qualified for this task. This is not a new problem; it has plagued the profession for a long time.
As one surveyor in Alabama noted in 1946:
It is regrettable, with what negligence, carelessness, and lack of information, land line surveying has been treated in the past, both by County Surveyors and graduate Civil Engineers. And not until 1935 did the Legislature of the State of Alabama concern itself to pass a law safeguarding land line surveying in the State, though land is the most stable of all possessions. My sixty years of practice, observation and careful study of land lines and reestablishment of original Government survey, by retracing entire Townships, has shown that anyone in the past who could read and write and had compass and chain, was accepted as qualified to survey land in Alabama.
Some states−South Carolina and Texas to name two−have taken a few steps toward a tiered license. A tiered structure would allow for the possibility that not all surveyors with a license can or should perform all of the services that fall under the broad umbrella known as “surveying.” Florida, some years ago, renamed the profession to “surveying and mapping.” This is probably appropriate given that most of our educational surveying programs across the country (based on my perusal of their Web sites and course descriptions) seem to be focused more on math, technology, tools and mapping than on the law and how it relates to surveying and property. A typical surveying curriculum appears to use “Evidence and Procedures” as the law course. This is also supported by anecdotal accounts of numerous graduates who tell me that their only exposure to the law has been Brown.
With all due respect, “Evidence and Procedures” was an excellent textbook back in the day and in proper context, but it is full of errors, omissions and contradictions. If this is the only law course our students are getting, it’s little wonder confusion abounds. In all fairness to Brown and others, it is an impossible task to write a law book for the land surveying community at the national level. Even though property law is about as vanilla as the law comes, there are still too many nuances and exceptions as it relates to boundaries to be treated at the national level.
Alabama’s rural surveyor bill, which I wrote about in my May 2008 column, was not the first attempt by a legislative body to dumb down the license requirements for land surveying. At the New England states’ convention earlier this year, I heard talk about similar efforts being attempted on their turf and in other areas across the country. Alabama’s attempt will not be the last time a legislative body tries to ease the requirements for a land surveying license. As the number of licensed surveyors continues to decline along with the number of those surveyors who can provide competent boundary surveying services, the instances of bad encounters with surveyors will increase as will the number of boundary disputes started by surveyors. This will not go unnoticed by those affected, especially when the cost of surveying land or dealing with the results of land surveying activity approaches the cost of the dirt.
The issue of unqualified surveyors being allowed to survey property has been around a long time, and the surveying community has failed to address it. It may be that it is now out of our hands. In the May 2008 edition of Forbes magazine, columnist Peter Huber is on to the idea that property boundaries are readily discernable from existing and soon-to-be-developed data sources. In other words, determining property boundaries is purely a technical problem (as opposed to a problem requiring professional judgment) and as such will soon be resolvable through the Web.
In his article, titled “Good Data Make Good Fences,” Huber writes:
Deciding who owns what in dirt-space has been slow and expensive for as long as people have relied on paper rather than force to decide it. The process still often begins with a search for a musty sheaf of papers buried in some distant archive. Then, from another source, come the paper maps needed to locate the dirt in question.
At the risk of overstating the obvious, Huber is referring to surveyors here. Then who are the future surveyors in Huber’s world?
Digital technologies are now easily powerful enough to draw precise boundaries around anything, anywhere, and instantly link the delineated space to any written record that affects ownership and use. The boundary lines come from companies like Garmin and Trimble, which make the GPS hardware that can report exactly where anything is located in dirt-space.
Huber is describing what amounts to a virtual “deed-staker” in cyberspace. He goes on:
Google, Microsoft and Oracle have what it takes to provide instant, intelligent access to every registry, court record, contract and government pronouncement that affects who claims what interest in this particular acre or building, or the oil under this dirt, or the fish or shipwreck under these waters.
I imagine that this is good news for those of us who believe that surveying property boundaries is easy and simply requires a deed and some coordinates. In Huber’s world, the courts will be on board as well. “The objective should be a system so wired that courts won’t enforce any claim that isn’t digitally recorded and linked to every sliver of dirt-space it targets,” he notes. Who will benefit from all of this technology and precise-record-dirt-space synchronism? “The cost of getting official clearance to build, develop, fence off, subdivide, mine, buy, mortgage, sell or inherit will drop sharply. The poor will benefit the most,” Huber says.
Not the poor! Please tell me not the poor! The only worse fate would be if it were for “the children.” Once politicians in Washington, D.C., and state capitals across the country grasp onto the concept that this will benefit the poor, we will fondly wish for the day of the Alabama rural surveyor. At least there were still surveyors back then.
The typical boundary dispute case I write about involves two surveyors who come into court; one ends up being right, and the other is wrong. I write about the case, point out the errors made by the surveyor who was wrong and get a seemingly endless stream of e-mails and letters explaining how the court got it wrong, the surveyor got it right, and I’m the one who’s misguided. The arguments range from “the surveyor has no duty to know the law” to “the surveyor understands the law but the judge doesn’t” to “there is no way Jeff Lucas can know the law in Minnesota because he lives in Alabama.” That’s fine. We can continue to argue about this while we rearrange the deck chairs. But in the meantime, the ship has hit an iceberg and is sinking into the frigid waters of irrelevance.
The time to act was yesterday. Clearly we must start with some realizations of the real world around us. We don’t operate in a vacuum. What we do and how we do it affects people, their lives and their property. We don’t prepare survey maps for landowners. We prepare them for boards of licensure, for other surveyors, for future court exhibits and to cover our rear ends. This drives up the cost of surveying because we feel the need to re-subdivide sections that have already been subdivided, cloud title to property out of a misguided sense of duty, create bogus surveys that purport to follow in footsteps that were never on the ground and apply math instead of good judgment. All of this is directly attributable to a misunderstanding of our duties and responsibilities as land surveyors, our lack of knowledge of property law and operating outside of our areas of expertise. Under most state rules and regulations, operating outside your area of expertise will either be an ethical violation or an outright violation of the law.
Clearly, the Internet and other information technologies allow average citizens to become very knowledgeable about many different things--including surveying and property law. Twenty years ago, when a surveyor told someone he didn’t own property that he always believed that he did own, he had two choices. He could ignore the results of the survey and pronounce what may well become the swan song of the land surveying profession: “No two surveyors could ever decide on the same corner position.” The other option would be to fight the results, sometimes leading to litigation. A sad reality is that the modern-day surveyor is as likely to start a boundary dispute as to resolve one.
Today the affected parties go to the Internet and research their options. Not happy with either the cost or the results of surveying activities, some landowners are turning to self-help options. Others will, too, in ever-increasing numbers as we move forward from here. Landowners can now turn a survey task into a Home Depot weekend project. If Huber’s predictions are correct, these options will be readily available at the click of a mouse in the very near future--if not already.
Hey, maybe I’ve been wrong all along. Boundary surveying is easy because anybody can do it.
1. Todd, E.E., Letter to J.M. Faircloth, University of Alabama School of Engineering, dated August 16, 1946.
2. Robillard, Walter G., Donald A. Wilson, Curtis M. Brown, “Evidence and Procedures for Boundary Location,” Fifth Edition.
3. Peter Huber, “Good Data Make Good Fences,” Forbes, May 19, 2008. www.forbes.com/opinions/free_forbes/2008/0519/104.html .
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.