A “standard” is a “type, model or combination of elements acceptable as correct or perfect,” according to Black’s Law Dictionary. In the context of land surveying, a standard of professional practice would describe the acceptable elements of “correct” practice.
The idea of what is acceptably correct can’t be divorced from the professional standard of care. The standard of care for all professional service providers in all jurisdictions is the same. It is what the reasonably prudent professional would do under like or similar circumstances. In order to conserve space, I’m not going to cite the dozens of cases and secondary material that I have from all across the country that confirms this fact.
There is no set of instructions that has ever been written that can fully describe all of the circumstances that any given professional may encounter in the rendering of professional services and what the reasonably prudent practitioner would do under those circumstances; therefore, much is left up to professional judgment. Nevertheless, any attempt (and many have been made) to promulgate a “standard of practice” would certainly differentiate between “correct” practice and “incorrect” practice--or put another way, good practice and bad. This brings up the next question: What constitutes “correct” or good practice?
For example, if we turn to the medical profession, consider the amputation of a diseased leg that if not removed will eventually kill the patient. I don’t have to know anything about being a doctor to know that good practice would certainly include adhering to all of the technical standards for conducting the operation, but the “standard of practice” would also require the doctor to amputate the diseased leg and not the healthy leg. In other words, acceptable practice would mean that acceptable results are achieved. Likewise with the legal profession--if the attorney is defending the client for murder, the technical aspects of the filings, motions, proffering evidence, examining witnesses and conducting the case must be met, but if the attorney argues contract law instead of defending against the criminal murder charges, the wrong results will be achieved whether the criminal case could have been won or not.
Even without reading the doctor’s or attorney’s “standard of practice,” we know that in both cases the standard has not been met because incorrect results were achieved. Not even close, in both cases. Now, did the doctor follow the proper “technical standards” during the operation? We will need an expert doctor with a copy of the technical standards in one hand and a record of the operational procedures in the other to determine whether proper procedure was followed. Let’s say the attorney actually argued the criminal murder charges but still lost the case. Was the attorney negligent? A “standard of practice” would still differentiate between good and bad practice, but it would take another expert to determine whether the attorney in the case fell below the “standard of care.” However, if the attorney argued contract law in a criminal murder case, it is irrelevant if the attorney conducted the case in a technically correct fashion. The attorney would have been kicked off the case by the judge, sanctioned by the bar association and/or possibly disbarred.
What about surveying boundaries? I feel like I shouldn’t have to repeat the fundamental doctrines of surveying, but as the case we are going to review in this column once again illustrates, many surveyors still apparently do not understand why we survey property. The fundamental doctrine of land surveying is you are either an original surveyor setting out property boundaries for the very first time (an “original surveyor”) or you are a retracing surveyor “following in the footsteps,” finding where the property boundaries have already been established on the ground.
In resurveying a tract of land according to a former plat or survey, the surveyor’s only function or right is to relocate, upon the best evidence obtainable, the corners and lines at the same places where originally located by the first surveyor on the ground. The object of a resurvey is to furnish proof of the location of the original survey’s lost lines or monuments, not to dispute the correctness of it. If the original corners can be found, the places where they are originally established are conclusive without regard to whether they are in fact correctly located. The priority of calls is, first, the natural monuments to which it refers; second, the artificial monuments the surveyor places to mark the boundaries; and, third, the courses and distances marked on the plat or survey. 1
Therefore, “correct” practice for the retracing surveyor is to find the property boundary lines that have already been established on the ground, not to correct them. Now in Mississippi, they have promulgated the Mississippi Standards of Practice (MSoP). This isn’t unusual; many states have done the same thing, including my home state of Alabama. The question remains, however: Do these so-called “standards of practice” differentiate between good practice and bad?
Our case-in-chief, Jones v. Gresham,2 is very typical of boundary dispute cases found all across the country. Two surveyors, one working for the plaintiff and one working for the defendant, disagreed as to the location of the true property line between the parties. Or did they? Were both surveyors on a quest for the location of the true property line between Jones and Gresham? Put another way, does one surveyor display good practice and the other amputate the wrong leg? Certainly the MSoP will give us the answer.
In 1991, the Greshams purchased an interest in Lot 1221 of the Lake Arrowhead Subdivision in Union County, Miss. The next year, they bought the remaining interest in the lot. On the Greshams’ lot, there is a cabin with a deck and a small pier on the lake. At the time the Greshams bought Lot 1221, Lot 1222, located next door and to the east of Lot 1221, was owned by Mary Sue Parrish. Lots 1221 and 1222 have separate driveways that are very close together and were originally located so that they were splitting what was always believed to be the common property line between the adjoining lots. At one point, Parrish’s son and another neighbor built gates for the driveways and placed a metal gate post between the two driveways on what was believed to be the common property line. The two landowners lived in happy peaceful coexistence until Jones purchased Lot 1222 from Parrish, along with several other lots in the subdivision.
Sometime after purchasing Lot 1222, Jones commissioned a survey of the lot. Based on the new survey, Jones removed the gates and began to “reconstruct the driveway.” After Gresham stopped Jones from his reconstruction project, Jones told Gresham “they had two weeks to get a survey done to prove they owned the driveway.”3 The next day, Jones constructed a barbed wire fence along the common boundary line as surveyed by his surveyor, all the way down to the lake. The fence ran through a good portion of Gresham’s driveway, moved the common boundary about 7 feet to the west and cut off Gresham’s access to the lake. The Greshams commissioned their own survey, which revealed that the common property line was about 7 feet back to the east in its original location, indicating that the new fence was an encroachment and that the respective driveways were correctly located between the property line. The Greshams sued Jones to quiet title.
At trial, the Greshams asserted that the driveways had been in existence for more than 20 years, and that their surveyor had utilized original subdivision monumentation, including an original monument that was on the disputed common boundary line, to re-establish the property line. Jones’ surveyor utilized a forestry monument that didn’t exist at the time the subdivision was laid out and measurements from the plat to re-establish the property line. “According to Joneses’ [sic] survey, some of the iron pins should have been out in the road,”4 and the acquiesced boundary was 7 feet out of position. In reviewing the Foley survey, the trial court noted:
Foley’s survey is tied to an established section corner and accurately retraces the original plat. Accordingly, Foley’s survey … is representative of the location of the boundary line between the lots and establishes that the driveway in dispute is clearly within the boundary line of Lot 1221, and thus on the property of Gresham. 5
Surveying is an evidentiary problem, not a measurement problem. As the Mississippi Court of Appeals noted:
Foley was the … original surveyor who platted the subdivision in the 1960s. As his starting point, he used an established government corner which was in existence at the time of the original survey which established the boundary lines. He testified the original corners and boundaries were marked by iron pins and old iron bed posts. When Foley ran his recent survey, it coordinated with these original markers. In fact, some of them lined up perfectly with his survey and the rest came within two or three feet of his recent survey. One of these old markers was on the very boundary line that Foley contended was the Gresham/Jones line. Foley concluded from his survey that the boundary line between the Greshams’ and Joneses’ lots runs on the east edge of the disputed driveway. Therefore, the entire disputed driveway lay within the Greshams’ lot. On the other hand, the Joneses’ surveyor used as a starting point a forestry monument that was not in existence at the time the subdivision was originally plotted out. His survey also did not coordinate with the original iron pins. According to the Joneses’ survey, some of the iron pins should have been out in the road. In fact, on the ground the iron pins were near the side of the road. 6
Now the MSoP certainly differentiates between the good practice and correct results of Foley and the wild and fantastic results of Jones’ surveyor, right? After all, the results of the latter survey sent the parties to court, spending needless thousands of dollars over a non-issue. This is the surveying equivalent of amputating the wrong leg, is it not? Do we actually need to even consult the MSoP to know that one of the surveys met the standard and the other didn’t? Well, you can check them for yourself; they are available on the Mississippi Board's website. You can also obtain a copy of the case on the Internet.
What you are going to find after reading all of this is that both surveys could very well pass muster under the standards. It is also quite possible that Foley’s correct results are in violation of the standards. As a matter of fact, this seems to be what Jones argues in court. But we don’t know for sure because the MSoP are standards of practice in name only; therefore, we cannot tell if either survey passes muster under what are actually technical standards without a copy of the surveys in one hand and a copy of the standards in the other.
Mississippi is not alone with this type of “standard of practice.” Most of these so-called standards that I have had the occasion to review are similarly flawed. The result is that it is OK for land surveyors to amputate the wrong leg or try the wrong case, so long as technically correct procedures are followed. And we wonder why nobody wants to hire us to survey their property. Would you hire a doctor or a lawyer practicing under similar standards?
1 Gilbert v. Geiger, 747 N.W.2d 188, 194 (Wis.App.2008).
2 Jones v. Gresham, 963 So.2d 581 (Miss.App.2007).
3 Id. at 582.
4 Id. at 585.
5 Id. at 584.
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.
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