In my last two columns, I asked the question, What is it that we are surveying? When we are dealing with boundaries, are we surveying property or simply putting math on the ground?
In my last two columns, I asked the question, What is it that we are surveying? When we are dealing with boundaries, are we surveying property or simply putting math on the ground? I don’t have empirical data to back it up, but anecdotal evidence indicates to me that about half of the licensed land surveyors in practice today are in the business of putting math on the ground and have little or no interest in surveying property boundaries.
In some cases, there are whole states dedicated to the idea that math and measurements are paramount to all other considerations when it comes to boundary surveying.1 Another segment of the profession−one that is of unknown size but sufficiently large to have a voice−sees no difference in these two concepts. Finally, there is a large and growing number of surveyors who see that there can be, and often is, a vast difference between surveying property and simply placing math on the ground.
If you are in any group but the last one mentioned, it’s time for you to wake up and join the 21st century. That is, unless you are in one of those states that have regulated and relegated the land surveyor to permanent status of technician with no leeway for professional judgment. Here are the telltale signs that you are in such a state:
- Your state board insists (and the state surveying society wholeheartedly agrees) that a section has to be broken down, resized and re-subdivided every time a 10-acre aliquot part description of property is surveyed, over and over if necessary, until someone finally “gets it right.”
- Your state legislature, at the insistence of misguided surveyors, has legislatively mandated that the BLM Manual (a set of instructions for original surveys) is to be used to conduct retracement surveys (in other words, let’s drive this square peg into that round hole).
- Your state surveying society is on record supporting the proposition that the original subdividing surveyor is the surveyor who drew lines on a map and not the one who actually went to the field to cut and blaze the lines and set monuments in place. (Your state board may, and probably does, hold the same opinion.)
- The majority of surveyors that you know ask the question, How close is close enough? (Hint: This is an irrelevant question.)
- And, the majority of surveyors you know don’t see the pincushion as a problem but simply as a difference of opinion.
This isn’t an exhaustive list. With the ratification and promulgation of the 2011 ALTA/ACSM Standards,2 there can be little doubt or argument that, at least as far as the standards go, we are to survey property and to survey it accurately.3
In order to meet such needs, clients, insurers, insureds, and lenders are entitled to rely on surveyors to conduct surveys and prepare associated plats and maps that are of a professional quality and appropriately uniform, complete and accurate.4 [Emphasis added.]
|In Figure 1, the red lines indicate the occupied boundaries, and the black lines indicate the platted boundaries by dimensions.|
The boundary lines and corners of any property being surveyed as part of an ALTA/ACSM Land Title Survey shall be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and survey.5 [Emphasis added.]
Where the 2005 Standards used terms like “survey boundary,” “boundary represented,” “surveyed tract,” “premises,” “plot” or “parcel,” the 2011 Standards replaces these terms in every instance with terms like “surveyed property” and “property being surveyed.” No longer are we simply surveying a premises, plot or parcel of land, when conducting a 2011 ALTA/ACSM Land Title Survey we are surveying property. So what is the difference between surveying a plot of land and surveying property?
Let’s go back to Garfunkel’s Subdivision, which we visited in POB’s December issue (see Figure 1). As you may recall, we were surveying Lot 9. Based on the best available evidence−which included accessories to the original monument location (blazed lines), after-erected improvements standing as silent witnesses to the original monument location (fences, etc.), and testimony evidence that pointed to the original monument location−we determined that the original lines and monuments of the original subdivision of the land was in accordance with the red lines shown in Figure 1. We also learned how the original boundary lines and corners were established. Although they were not set with precision6 vis-à-vis the recorded plat, they are 100 percent accurate as to location since they are the original lines and monuments and they represent the true corners of the property boundaries. We also found that property law supports the red lines and not the black ones. So, an accurate survey of Lot 9 of Garfunkel’s Subdivision under the 2011 Standards has nothing to do with precision and everything to do with locating the true boundary corners and associated property lines.
|Figure 2 is an enlarged version of the plat focusing on Lot 9.|
Figure 2 is a blowup of Lot 9. For ease of illustration, I have left off the angular component of these lines, but it should be abundantly clear that the distances and bearings do not match the plat. If our task is to survey property lines, then the black lines in Figure 2 do not exist and are somewhat irrelevant. The differences between the actual measurements of the property lines and the record measurements for the property lines have to be noted per the standards, and a survey of the property known as Lot 9 of Garfunkel’s Subdivision would look like Figure 3. The proper interpretation of the deed that simply describes the property as “Lot 9 of Garfunkel’s Subdivision” has to be made with reference to the recorded plat; all of the monuments that were set during the original subdivision of the land are automatically written into the deed as called-for monuments; monuments are superior to bearings and distances; monuments do not lose their superior status even when they disappear if their former location can be ascertained; and the evidence standard in play is the best available evidence of the true property boundaries.
There aren’t too many surveyors who like these results. Even the surveyors in the third group that I described at the beginning squeal like schoolgirls when the math and measurements are tortured to this extreme. For most land surveyors, there is an overwhelming desire to save the math and the measurements from this torment and right all the wrongs of the past with new and better math and measurements. Regardless of these feelings, the red lines in Figure 3 answer both the legal and factual question as to “what” the property boundary is and “where” it is located. The red lines are still the property lines of Lot 9, even though they do not match the land surveyor’s precision expectations, and they tell us where those lines are located on the face of the Earth. The black lines in Figures 1 and 2 exist only in the land surveyor’s imagination. They do not exist under the law and the facts in this case.
Even though we have correctly resolved this boundary in Figure 3, we still have a problem, don’t we? Our problem isn’t the landowners; they are happy and living in peaceful coexistence. They don’t know that the black lines exist, until some surveyor comes along and tells them that they do. Our biggest problem, then, is the next surveyor coming along who has no intention of surveying property and slaps some math on the ground, sending the entire neighborhood into chaos and possible litigation. If you ever find yourself in this situation, you will likely be in the unenviable position of trying to explain property law to a judge, two attorneys (yours and theirs), and the land surveyor on the other side, none of whom have a clue.
A commonly touted “solution” to this perceived problem is to show both the red lines and the black lines, as in Figure 2, and label the problem areas. This isn’t a solution at all; it is simply an opinion that a problem exists (when it really doesn’t), and it certainly isn’t a survey of property. Another so-called solution is to recognize the red lines as the “property lines” but not the “true boundaries” of Lot 9 and then to set about rewriting the legal descriptions of the lots in Garfunkel’s Subdivision. Such a legal description for Lot 9 would start something like this: “A parcel of land being a portion of Lot 9 and Lot 5 of Garfunkel’s Subdivision… .” This solution is worse than the perceived problem. Now the surveyor is saying, in essence, that “what” the boundary is has changed; that a conveyance of land has taken place outside of the deed. Instead of properly interpreting the deed in light of the surrounding circumstances, the surveyor is now advocating a legal opinion−a legal opinion that happens to be wrong.
|The red lines in Figure 3 indicate the true property lines of Lot 9.|
Paid advocacy of legal opinions is the practice of law. Proper interpretation of a deed by applying the law and the facts is the practice of land surveying and, when properly carried out, will result in a survey of property. I have long advocated that this is the duty of the land surveyor; with the 2011 Standards in hand, I don’t see how surveyors can continue to deny that this is their responsibility. The best possible solution is an agreement between the owners of Lots 4 thru 10 as to location or even an amended plat. Boundary line agreements are not and should not be conveyances. They simply settle the location question; they don’t change the “what” question. An amended plat will require the cooperation of all of the owners in the subdivision. Both of these solutions require effort. Prior to the introduction of the idea some 60 years ago that surveyors are merely finders of problems, the land surveyor solved boundary problems.
I’ll close with a quote from Hodgman that provides a glimpse of where we used to be as a profession.
In an old settled country, the principal work of the surveyor is to retrace old boundary lines, find old corners and relocate them when lost. In performing this duty he exercises, to a certain extent, judicial functions. He usually takes the place of both judge and jury, and acting as arbiter between adjoining proprietors, decides both the law and the facts in regard to their boundary lines. He does this not because of any right or authority he may possess, but because the interested parties voluntarily submit their differences to him as an expert in such matters, preferring to abide by his decision rather than go to the law about it.7
Notes and References
- 1. By this I mean that through a combination of state statues that have been promulgated to override common law property doctrines and generally accepted practice endorsed by state boards and state surveying societies, the prevailing attitude of the surveyors in the state is in keeping with this statement.
- 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys (hereinafter, “2011 Standards”). Adopted by ALTA on Oct, 13, 2010, and by NSPS on Nov. 15, 2010, with an effective date of Feb. 23, 2011.
- This isn’t an article about the 2011 Standards. To review the standards yourself, visit the ACSM’s Web site (www.acsm.net) and click on “Standards.”
- 2011 Standards, Section 1, third paragraph.
- 2011 Standards, Section 3, D. “Boundary Resolution.”
- They were set with a Boy Scout compass for alignment and pacing for distance.
- Hodgman, F., “A Manual of Land Surveying,” The Hodgman Co., Climax, Mich., 1913, at 289.
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.