The surveying profession is a house divided. The ultimate ramifications for being in such a state should be well known to us all. In the meantime, however, society still needs us, even though a growing segment is beginning to ask why.[1]



The surveying profession is a house divided. The ultimate ramifications for being in such a state should be well known to us all.

In the meantime, however, society still needs us, even though a growing segment is beginning to ask why.[1] Our collective confusion over the issues that divide us results in a mixed message to the general public. Those who seek our services aren’t quite certain what they are going to get. We’re the “box of chocolates,” and they’re the Forrest Gumps. And in our present divided state, how can we present a clear message of “this is what surveying is, and this is why you need us,” if we’re not sure ourselves?

The issues that divide us are manifold, but they basically boil down to this question: What exactly is our duty and responsibility when it comes to boundaries? Boundaries, more than any other work we do, put us in direct contact with landowners and their worldly treasure. Who wants to chance that to the luck of the draw? To make an analogy with the medical profession, we aren’t just talking about differences of opinion. Imagine visiting two different doctors who each prescribe pills that look the same. But one doctor prescribed medications that have been studied, tested and approved by authoritative sources, while the other prescribed eye of newt, powdered bat wing and an incantation. Just as the pills look the same to you, survey maps look the same to landowners. They have no idea what’s in either one. That’s where we are as a profession.

Leave the Deed or Not Leave the Deed

Deeds are one example of a division in the profession. When is a deed a deed, and when is it a worthless piece of paper?

One camp of surveyors will work from any written description of property no matter how worthless it is--or how worthless it becomes--during the course of performing a property survey. This can include the description taken from a client’s deed or a description the client writes up on a barroom napkin. In other words, this camp of surveyors will survey property boundaries from a mere description of land that may or may not have anything to do with the identification of the true boundary line.

The second camp of surveyors realizes that no survey of property can truly begin without a close examination of the client’s deed and possibly the deeds of all adjoiners (as well as all other relevant evidence). This second camp of surveyors also realizes that the possibility exists that the client’s deed may end up being as worthless as the barroom-napkin-description deed that clients sometimes produce. And when the deed does lose its probative value, it must play a less significant role--or be cast aside altogether--in favor of relevant evidence leading to the identification of the true boundary line.

Imagine for a moment the resulting surveys from these two differing perspectives. Surveyor A performs a survey based on a description of property that the client coughed up, maps the results and calls it a boundary survey. Surveyor B, working from the client’s deed, considers all of the relevant evidence in light of the law and renders an opinion of survey, also known as a boundary survey. Surveyor A prescribed eye of newt. Surveyor B prescribed medicine that has been studied, tested and approved by authoritative sources. To the general public, these two pills look the same. This is a division in the profession, not simply a difference of opinion.

The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiff’s and defendants’ property. To do this, the survey must begin with an accurate description of what land the parties own.[2]

How can that purpose be accomplished without at least considering the client’s deed?

To be clear on this point, should your boundary survey result in a lawsuit between the parties, the only issue to be decided will be the true property boundary between the warring landowners. The bar-napkin-description deed will not withstand the scrutiny of the court in the cold light of day. Under the right circumstances, which we have discussed on numerous occasions in the past and cannot go into now, the client’s actual deed can receive the same treatment. And there you are, clutching it against your breast under a misguided sense of duty until they have to pry it from your cold dead fingers.

Don’t get me wrong on this point. If the client’s deed is clear and unambiguous and the results of field survey and record research do not reveal any latent ambiguities, then, by all means, stake the deed. The vast weight of legal authority on this subject is that the deed will be held in such a case--the fence is merely a fence, and the encroachment is just an encroachment. The fence and the encroachment may be indications of further problems that the affected landowners need to resolve and that the land surveyor could play a very important role in resolving, but do not leave the deed because the court will not leave it.

Following in the Footsteps

How much more basic can land surveying get? One of the fundamental precepts of property surveying is that we are to walk in the footsteps of the surveyors who came before us. Yet, here again, we have a division in our profession.

What constitutes the “footsteps” of the original surveyor? Are they where the surveyor actually stepped on the ground by way of on-the-ground surveying, or are they where he or she intended them to be by way of protracted lot lines on a map? This single question has stirred more angry debates and formed more impromptu lynch mobs than any other question I have discussed in my live seminars.

It is the survey as it was actually made, whatever it is, that controls. … In the sale of lands in sections, or subdivisions thereof, including lots, according to the government survey, the survey as actually made controls. It is the survey as it was actually run on the ground that governs, if the monuments, corners, or lines actually established can be located or proved. Courses and distances yield to such corners and lines so long as the latter can be located, and for the reason that the latter are the fact or truth of the survey as it was actually made, while the former are but descriptions of the act done, and, when inaccurate, they cannot change the fact.[3]

[B]ecause of surveying principles based on established surveying practices, the correct answer is that what the original surveyor actually did by way of monumenting his survey on the ground takes precedence over what he intended to do as shown by his written plat of survey.[4]

It seems pretty clear to me, yet the answer to this question leads to other secondary divisional issues such as: original surveyor versus first surveyor versus following surveyor; federal law versus state law versus survey law; and proration and proportional measure versus establishment and equity. The law has already settled all of these issues, yet we continue to deny that we have any responsibility to know and understand the law. Like witchdoctors in some ancient tribal ceremony, we chant our chants, rattle some bones, throw up some potions and a few notions and call it a boundary survey.

All of our supposed “rules of surveying” are only valid rules if they follow the law and equity. They will never trump real legal principles or equity when they cross paths. This is no different for the principle of following in the footsteps. It is based on the legal and equitable principles that monuments placed on the ground by the original subdividing surveyor will be seen by all subsequent landowners and potential landowners. They are physical objects that can be seen and can be relied upon for the establishment of boundaries and the peace and tranquility of society. Especially when placed contemporaneously with conveyances, they become the physical manifestation of the true intent of the grantee and the grantor.

Prima facie, a fixed visible monument can never be rejected as false or mistaken in favor of mere course and distance as the starting point, when there is nothing else in the terms of the grant to control and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificial monuments rests upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties. Monuments are facts; the field-notes and plats indicating courses, distances and quantities are but descriptions which serve to assist in ascertaining those facts. When there is a conflict between monuments and courses and distances, the latter must yield to the former. Marks on the ground constitute the survey; courses and distances are only evidence of the survey.[5]

Later notions of the rightness or wrongness of the footsteps of the original surveyor, who placed the monuments on the ground for all to see and rely upon, or of the equities in the case (e.g., it’s not fair to the current owner of the N.E. 1/4 of the section that the center 1/4 wasn’t correctly set 150 years ago) will be trumped by establishment, reliance, acquiescence and repose.

As already described, federal law specifically dictates that the boundaries and markers placed on the ground by federal surveyors are binding, even if the surveyor did not follow the instructions in the Manual or otherwise performed the survey inaccurately. In effect, the settled rule for federal government surveys accords dignity to the boundaries and monuments physically set on the land, even when not done pursuant to the applicable survey law. The rule is one of repose. … The appropriate inquiry in cases of this kind is not whether a survey is completely accurate, but whether the lots are purchased in reliance upon the boundaries which it establishes. When there is such reliance, to sanction the relocation of boundaries on the basis of subsequent surveys would defeat the intentions of the parties and subvert the security of possession.[6]

Surveyors are in two completely different camps on this issue. One camp maintains that the footsteps of the original surveyor are as he or she intended them to be as shown on a plat with protracted lot lines (either a modern-day subdivision plat or a GLO plat from the 1800s) instead of where he or she actually walked by way of an on-the-ground survey. The other camp maintains that there are no footsteps where none were left on the ground. Therefore, the original surveyor isn’t the one who created the map but must necessarily be the one who first entered upon the land and placed monuments. This is not a mere difference of opinion--this is a house divided. And a house divided--well, we all know the rest of that story. As for me and my house, we will serve the law and equity, especially when it comes to the protection of the public and treasured rights in real property.


References

1- See my previous columns “A License to Survey Property Boundaries,” POB September 2008, and “Alabama’s Rural Surveyor Controversy,” POB May 2008.

2- Andrews v. Barton, 2008 Fla.App. LEXIS 1836 (Fla.App. 2008).

3- Calder v. Hillsboro Land Company, 122 So.2d 445, 457, 458 (Fla.App. 1960).

4- Tyson v. Edwards, 433 So.2d 549, 551 (Fla.App. 1983).

5- Myrick v. Peet, 180 P. 574, 576 (Mont. 1919).

6- Dykes v. Arnold, 129 P.3d 257,274, 276 (Ore.App. 2006).


Author’s Note: I have had many requests for a more in-depth study of the law and the legal principles that affect our everyday practice. In August, I launched “The Lucas Letter,” a legal newsletter that will be the vehicle for that study. I invite you to join us at www.jnlucaspls.com/TheLucasLetter.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.