A Second-Class Profession
Land surveyors are second-class professionals by their own choosing. The title “professional” is largely achieved through self-proclamation.
At least half, if not more, of our professional organizations have incorporated the word “professional” into their official names, and even more of the state boards have done the same. Curtis Brown spoke on this issue in 1961 in an article titled “The Professional Status of Land Surveyors,” which appeared in ACSM’s “Surveying and Mapping” publication:
Without superior knowledge, we have an inferior profession … One of the reasons for giving surveyors the exclusive privilege of marking boundaries is to prevent the unskilled from monumenting lines that encroach on the bona fide rights of others … The major deterrent to our becoming a learned profession is our low requirements for the right to practice. So long as we have low admission requirements, we will have low standards of practice and low public opinion … Differences between surveyors are a cause of degradation. We prove by our own survey monuments that we are incompetent, since we cannot all arrive at the same location using the same deed … Professional stature is not gained by self proclamation. Professional stature must be earned and can only be measured by what others think of us … If you want to be a professional man, earn that right.1
It is the low standards of practice due to our low requirements for the right to practice that I want to address. We have strapped ourselves into permanent second-class status by the so-called “standards” of practice2 that have been promulgated and thrust upon us through various lobbying, legislative and rulemaking efforts. A common theme of all of these standards is that there is no distinction between good practice and bad practice. In other words, completely invalid results can be achieved, and there are no repercussions under the standards. As I said in my April column in an analogy with the medical profession, the wrong leg can be amputated, but as long as the operation was performed correctly, it passes muster under the standards.
Missouri brings us our latest example in the form of a court case over the supposed requirements of the “Missouri Minimum Standards for Property Boundary Surveys.”3 I have placed emphasis on the word “property.” The case is Adamson v. Innovative Real Estate,4 a fairly recent case involving a protracted Public Land Survey System (PLSS) subdivision corner.
The corner in question is the northwest corner of government Lot 1, in the southwest quarter of Section 19, Township 38 north, Range 16 west, 5th Principal Meridian. This corner was not physically set on the ground by the government surveyors when the township was originally laid out, circa 1845. Keep in mind that was 167 years ago; as the saying goes, stuff has happened in the meantime.
The plaintiff/appellant in our case, Adamson, bought a parcel of undeveloped land in 1998. Adamson’s adjoiner to the east is one of the defendants/respondents in the case, Innovative Real Estate. In order to facilitate the purchase and improvements to the property, Adamson hired Robert Arnold & Associates Land Surveying, also a defendant/respondent in the case, to provide a survey of the property. The legal description of the property was by metes and bounds, and was tied to our corner in question with a call for an “existing pipe” at the corner. Also, keep in mind this is a called-for monument that has been in the chain of title for this and surrounding properties for “over fifty years.”5 Upon purchasing the land, Adamson immediately made the planned improvements.
At the time of the survey, there was an existing drive on Innovative’s property that was immediately next to where Adamson wanted his building constructed. Adamson and Innovative entered into a “Driveway Easement” agreement allowing Adamson to utilize the existing drive. The location of the easement was a function of the location of Adamson’s eastern boundary, which in turn was a function of the location of the corner in question--at least as far as the measurements in the metes and bounds description are concerned, all other evidence to the contrary notwithstanding. For reasons that are irrelevant to the present discussion, Adamson and Innovative got into a quarrel over the easement agreement and went to court twice, with Innovative finally extinguishing the easement through a court decree.
Shortly after losing the easement in the second case, Adamson hired another licensed Missouri land surveyor to “perform a boundary survey of the Adamson property.”6 [Emphasis added] This surveyor rejected the “existing pipe” as marking the true government corner, which he “determined to actually be located approximately 16.95 feet east and 35.23 feet north of the ‘existing pipe.’” (Id.) We are not told how he made this determination, but there is only one way to reject an existing monument that has stood as the true corner for more than 50 years within the PLSS--with new prorated calculations based on new measurements and a new paper subdivision of the section.7 In other words, course and distance are elevated above existing and called-for monumentation.
New corners are only established as part of an original survey; basic surveying retracement doctrine requires finding where the lines have already been established on the ground, not correcting them. The cases on this subject, in all jurisdictions, are legion.8 In the present case, the Missouri court agrees: “‘[I]t is one of the settled rules of the law of boundaries that calls for courses and distances, quantity, etc., will, in case of a conflict, be controlled by, and yield to, one for a natural object or landmark or permanent artificial monument.’”9 [Emphasis added.] The supposed reason for rejecting the “existing pipe,” and the point of this column, is that the Missouri standards required the surveyor to do so.
But the case even went beyond that. Arnold was charged with negligence for not complying with the standards and for producing an “inaccurate” survey. Let’s remember that when it comes to results of a “Property Boundary Survey,” which the Missouri standards are supposedly the minimum “guideline for adequate performance”10 of such a survey, accuracy in this context means correct results.11 The true and correct corners and boundary lines of the property being surveyed have been retraced. The other surveyor “testified that Arnold failed to meet the Minimum Standards in preparing his survey of the Adamson property and that, had he done so, the common boundary line would have shifted … [he] determined that if Arnold had surveyed the Adamson property in accordance with the Minimum Standards, the eastern boundary of the Adamson property would have been located fifteen feet farther to the east.”12 (See the illustration at left.)
All of this in light of the fact that the “existing pipe” was a called-for monument in the chain of title for the Arnold property and other surrounding properties for more than 50 years; that the other surveyor had used the same “existing pipe” in his 1987 survey of the same property; and that Arnold was actually retracing that same surveyor when Arnold first surveyed the property in 1992 and then later in 1998 with, as the court noted, “results that were nearly identical.”
Cited as the code sections being violated were CSR 2030-16.010 thru 16.030. Specifically, the other surveyor “testified that the existing pipe was not located on the government lot line and was not a monument properly tied to a government corner.” Let me translate this for you; I’ve been to Missouri, and I know the orthodox view on this very point. This means that Arnold didn’t mathematically “break down” the section to derive the “true” government corner (see Footnote 7). Of course, this begs a few questions. How many times does a section need to be subdivided? How many times has this process been done in that particular section over its 167 years of existence? How many more times will it need to be done in the future? Is the other surveyor’s new breakdown the final one or, if fault is later found, will it need to be done again? Do landowners have a say in this, or are they just supposed to lie back and allow the wrong leg to be amputated, over and over again, if necessary?
While Appellants argue that the Minimum Standards required Arnold to commence his survey from an actual government corner,13 rather than relying on the language found in over fifty years of deeds that each referred to the “existing pipe” as being the government corner, we cannot find, and Appellants do not point out to us, any such absolute requirement in the Minimum Standards.14
This is what the courts do; they interpret the law, statutes and code sections. There is no requirement that a section be mathematically broken down into its theoretical aliquot parts in the Missouri standards, in Missouri statutes,15 in the BLM Manual16 or by federal statute.17
Certainly the standards for property boundary surveys will answer our questions, not only for the practicing land surveyor, but also for the affected landowners. Certainly the standards will comport with the law of the situs jurisdiction when articulating a “realistic guideline for adequate survey performance.” Certainly adequate performance means the correct leg is amputated. Well, they fail on all counts. It is very likely that both surveys in this case pass muster under the standards. It is even possible that Arnold may be subject to disciplinary action under the standards even though his survey was accurate (correct results were obtained). We don’t distinguish between good practice and bad, and this is why we remain a second-class profession. Hopefully one of these days, maybe before it’s too late, we will decide the landowning citizens of this country deserve better.
For a more in-depth study of the legal principles that affect our everyday practice, subscribe to “The Lucas Letter” at www.LucasAndCompany.com.
- Brown, Curtis M., “The Professional Status of Land Surveyors,” 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.
- Commonly referred to as “standards of practice,” “practice standards,” “minimum technical standards,” or simply “technical standards.”
- Missouri Code of State Regulations, Division 2030 (CSR 2030). Available online at: www.sos.mo.gov/adrules/csr/current/20csr/20csr.asp#20-2030
- Adamson v. Innovative Real Estate, Robert Arnold and Robert Arnold & Associates Land Surveying, 284 S.W.3d 721 (Mo.App.2009).
- Adamson v. Innovative, at 733.
- Id. at 726.
- In common parlance, this is also referred to as a “breakdown” or “sizing” of the section based on other monuments deemed worthy of holding or a completely paper “theoretical” section.
- To name just a few, many of which we have gone over in this column in the past: Riley v. Griffin, 16 Ga. 141 (Ga.1854); Ayers v. Watson, 137 U.S. 584 (U.S. Supreme Court 1891); Myrick v. Peet, 180 P. 574 (Mont. 1919); Tyson v. Edwards, 433 So.2d 549 (Fla.App.1983); Wood v. Starko, 197 S.W.3d 255 (Tenn.App.2006); TH Investments v. Kirby, 218 S.W.3d 173 (Tex.App.2007); Gilbert v. Geiger, 747 N.W.2d 188 (Wisc.2008); Chebro v. Audette, 2010 Conn.Super. LEXIS 2449 (Conn.Super.2010); Northrop v. Opperman, 2011 WI 5, (Wisc.2011). Even the BLM Manual is in agreement. See Sec. 6-7, 1973 Manual and Sec. 5-14, 2009 Manual.
- Adamson, at 733, quoting Ollison v. Village of Climax Springs, 916 S.W.2d 198, 206 (Mo. Banc 1996).
- CSR 2030-16.101 Application of Standards, Purpose.
- For a complete discussion on the difference between accuracy and precision relative to boundary location, see “Missing the Mark,” POB, May 2009. Also see “The Pincushion Effect,” Chapter 9, Sec. 9.02, Lucas, Jeffery N., 2011, Lucas & Company, LLC, Birmingham, AL.
- Adamson, at 727.
- We can safely assume this is code-speak for a new “breakdown” of the section every time a survey is performed.
- Adamson, at 732-733.
- See § 327.272. Practice as professional land surveyor defined, Missouri Revised Statutes
- See “It was a Simple Plan,” POB, August 2010 and “Requiem for the First Surveyor Concept,” POB, September 2010.
- See Dykes v. Arnold, 129 P.3d 257 (ore.App.2006). “We know of no legal authority--and plaintiffs cite none--that holds that a mere reference to ‘the center’ of a section compels the conclusion, as a matter of law, that the parties intended to be governed by the mathematical center as it might be located in the future, rather than as it had been located. What sparse case law we can find is, instead, to the contrary.” See also First Beat v. ECC, 962 So.2d 266 (Ala.App.2007).
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.