Traversing the law: Fear and Loathing in Land Surveying
Imagine for a moment a totally deregulated land surveying profession. It’s not hard to do given some recent events. The Texas Board of Professional Land Surveyors was almost defunded in April and continues to face the prospect of consolidation with other state agencies. In Florida, legislation to totally deregulate land surveying (a.k.a. “surveying and mapping”) was only just narrowly averted. Perhaps by the time this goes to press, other states may have followed with similar moves of their own. Why would states want to deregulate land surveying?
The symptoms may vary from state to state, but the underlying cause will be the same. There is no perceived value in land surveying, so why should states spend their precious time and resources on it? Of course, this begs the immediate follow-up question: Why isn't land surveying perceived as valuable? The answer to this question isn’t hard to find. I read about it almost daily as I go about my business, and I’ve been putting out the warning for years although it appears to largely fall on deaf ears. The root problem is two-fold: We don’t believe our own foundational principles, and we are addicted to math and measurements to the exclusion of common sense.
The foundational principle of land surveying is that you are either an original surveyor setting out original lines for the very first time, or you are a retracing surveying “following in the footsteps” of those who have gone before. I have been bringing the cases to the readers of this magazine since 2004 demonstrating how the courts have articulated this principle time and time again, in all jurisdictions, and I have also brought you the cases where the land surveyor routinely ignores this principle in favor of math and measurements based on what can be best characterized as “an erroneous perception of a misguided duty.”1 “The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely [precise] survey would locate these lots, but how the original stakes located them.”2
Since Texas and Florida are up for discussion, how do their laws weigh in?
When finding the lines of a survey, the cardinal rule is that the footsteps of the original surveyor, if they can be ascertained, should be followed. The primary objective in locating a survey is to “follow the footsteps of the surveyor”; by which is meant to trace on the ground the lines as he actually ran them in making the survey. If the actual lines and corners run by the original surveyor can be found, they are controlling, even if they are inconsistent with the calls and references in that surveyor’s field notes. The footsteps of the original surveyor are controlling and prevail over calls for course and distance. When the actual lines run by the surveyor can be found, they constitute the true boundary and cannot be made to yield to course and distance calls. … Although the original surveyor’s marks and calls are generally controlling, when the surveyor’s marks have disappeared over time, the lines and corners of the survey may be established using any evidence tending to show their location that is the best evidence of which the case is susceptible. Courts generally consider the “best evidence” to be that evidence which is the more specific and definite as against that which is merely general and indefinite or descriptive.3
While the original surveyor has a right or responsibility to establish new boundaries when he surveys previously unplatted land or subdivides a new tract, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey by locating existing boundaries. No following surveyor may establish a new corner or line, or correct erroneous surveys of earlier surveyors, when they track the original survey in locating existing boundaries. This is so because man set monuments as landmarks before he invented paper and still today the true survey is what the original surveyor did on the ground by way of fixing boundaries by setting monuments and by running lines (“metes and bounds”), and the paper “survey” or plat of survey is intended only as a map of what is on the ground. [Emphasis provided.]4
Even though the courts in all jurisdictions say basically the same thing, the land surveyor doesn’t believe these doctrines of the law. I could spend the rest of this column and several more giving you example after example of these principles being ignored by land surveyors, resulting in landowners going to court for no good reason at all, but I don’t have to do that to prove my point. All I have to do is ask one simple question: Why do we have pincushion corners?5 If land surveyors truly believe that they are either original surveyors setting out original lines for the very first time or following surveyors whose only duty is to find the marks that are already on the ground, then there would not be one pincushion corner set by a land surveyor. Given that pincushion corners not only exist, but exist in such vast numbers that I expect to find one every time I survey property, the only conclusion to be reached is that land surveyors, on the whole, do not believe in their foundational principles.
Our addiction to math and measurements usually comes at the cost of common sense. When you are jumping over a boundary line that has been established for over 30 years under two previous surveys and driving irons 147 feet inside a property and clouding the landowner’s good title because the math told you to do so, common sense is a casualty. Property owners shouldn’t have to spend hundreds of hours attending multiple depositions, answering interrogatories and producing documents, nor should they have to spend thousands of dollars in attorney’s fees and costs associated with clearing the title to their property, as Karen Nelidov was forced to do in Buddhist v. Nelidov.1
|A pincushion corner where three monuments set by land surveyors all ostensibly represent one corner position. What service is being provided here that could not be provided by the cheapest expert measurer?|
When your client’s deed only calls for 14 acres but upon his insistence and using the measurements he tells you to use, your survey results in 57 acres, common sense should force you to examine where the additional 43 acres is going to come from. In the case of Watts v. Shannon and Leggins, the 43 acres belonged to the next door neighbor, Watts. “Following a trial, the Chancellor issued an Opinion from the bench, and noted that the discrepancy in acreage on Mr. Shannon’s deed and the survey prepared by Leggins was ‘hair raising.’ The Trial Court said that the surveyor had an absolute duty to do his own surveying and not let someone else show him where the lines were. The Court found that Leggins, knowing there was a problem, had relied on what Shannon had told him.”6 Not only is common sense out the window in this type of case, but the courts, the legal profession and the surrounding landowners get the idea that a survey of property not only has no value, it’s a liability.
When you know that there is a boundary dispute beforehand and that is the reason you were hired in the first place, common sense would dictate that a hands-on approach to the problem is warranted and even an onsite inspection of the premises is in order before rendering an opinion on the property boundaries involved. But when the results of your survey of property are “based in part on calculations (based on the deed) done by the computer”7 to the exclusion of the best available evidence in the case because the land surveyor never left the office, common sense was never considered. “We find no cause for concern that the trial court found the testimony of the surveyor troublesome. The surveyor testified as to his results but noted that he had not conducted the actual survey.” Id. Why should it be surprising that: “This surveyor’s mark was likely the spark that ignited this dispute.” Id.
These are not isolated cases. The problem has reached the point where it is common knowledge within the legal profession--at least that part of the profession that deals with real property--that no two surveyors are likely to agree on any given property corner. Landowners who have had any experiences with land surveyors in the past generally feel the same way, especially when they already have three monuments set by surveyors all ostensibly representing one corner (see Figures 1 and 2). Why is a fourth survey needed? It would surely result in a fourth monument. None of this is good for the profession.
A pincushion corner where two monuments, more than 20 feet apart, represent one section corner. The monument in the background (a pipe next to the prism pole) was identified as a property corner when the landowner bought her property in the early 1950s. Then, in the 1980s, a contractor working for the forest service came along and set a “new corner” by proportionate measurement (the monument in the foreground). Again, what valuable service is being offered that cannot be provided by the cheapest expert measurer?
We’ve billed ourselves for decades as expert measurers and finders of problems--only. With the advances that have taken place with technology, especially within the last several years, anyone with the right tools can also be an expert measurer. If land surveyors are only expert measurers, what will separate the land surveyor from the other expert measurers who will certainly enter the market in a deregulated profession? The vast majority of the perceived problems land surveyors find aren’t problems at all; they only exist in the land surveyor’s mind when the reality on the ground doesn’t match the math and measurements in the deed. Measurements are the lowest form of evidence, but the land surveyor elevates them to the highest because the land surveyor is much more comfortable with measurements than with what the law dictates.
Regulation is a crutch that the land surveying has come to lean upon. If we truly had valuable services to offer the courts, the legal profession and the land owning general public, then we wouldn’t need the monopoly that regulation provides. (We also wouldn’t be facing the possibility of deregulation in the first place.) Deregulate the medical profession, and people would still seek out the best services available because of the perceived value. The best doctors would not only survive deregulation--they would thrive. Deregulate the legal profession, and people wouldn’t hire an attorney who could only tell them what their problems are with no possibility of solving them; they would hire an attorney who is an expert in the law and not only understands the problem but offers viable solutions.
If the only difference between any two given surveys is the price of the survey, then we do not have a valuable service to offer; all we have is a commodity that will go for the lowest price. In that case, deregulation of the profession would cause the best surveyors to be run out of business in favor of the cheapest expert measurer. If, on the other hand, we have a valuable service that the market wants, then we have nothing to fear from deregulation.
I’m afraid the land surveying profession, as it is presently practiced, has much to fear.
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.
- Buddhist v. Nelidov, 2006 Cal.App.Unpub. LEXIS 2766 (Cal.App.2006).
- Diehl v. Zanger, 1878 Mich. LEXIS 375 (Mich.1878).
- TH Investments v. Kirby Inland Marine, 218 S.W.3d 173 (Tex.App.2007).
- McGhee v. Young, 606 So.2d 1215 (Fla.App.1992).
- “Pincushion corner.” Multiple monuments set by land surveyors representing one corner. See Figures 1 and 2.
- Watts v. Shannon and Leggins, 2005 Tenn.App. LEXIS 403 (Tenn.App.2005).
- Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470 (Tenn. App.2007).