For one surveyor, it can mean simply utilizing the measurements (bearings and distances) in the client’s deed, acquiring a starting point and an azimuth, and then with a blind eye to all other evidence, expertly and precisely “staking out” that geometry on the ground. On the other extreme would be an occupation survey that ignores all other evidence save occupation. Obviously, between these two extremes lies the answer.

Unfortunately, the former extreme seems to be supported by our various and sundry technical standards, while the latter extreme is supported by the law.   

A perusal of some of our technical standards that I am familiar with reveals the following samples:

Rule No. 1.03 Boundary Survey for Field and Office (Map, Plat, and Drawing). 6. The surveyor shall make an accurate determination of the boundary in as complete accord as possible with the description of the property surveyed. (Standards of Practice for Surveying in the State of Alabama)

Of course the easiest way to accomplish this is to simply stake out the deed. Florida has a similar provision:

5J-17.052 Minimum Technical Standards: Specific Survey, Map, and Report Requirements. (2) (a) 1. The surveyor and mapper shall make a determination of the position of the boundary of real property in complete accord with the real property description shown on or attached to the survey map or report. (Florida Administrative Code)

The Florida code also comes with a handy-dandy checklist to see if you achieved a technically correct map of survey. It appears to be somewhat irrelevant if correct results were obtained (i.e., a well-reasoned opinion on the location of the subject property). The Mississippi standards of practice do not address the issue of correct results at all. They simply state that “[w]henever a surveyor conducts a land survey of properties in Mississippi, a plat showing the results of this survey shall be prepared, and a copy furnished to the client.” The standards then go on to outline the technical requirements of the resulting map.

In New Jersey, when it comes to the issue of correct results when performing a survey of property, the applicable regulation tells us the following:

§ 13:40-5.1. Land surveyors; preparation of land surveys. (c) When a property survey is to be performed, a field survey must be made of the property in question and such field survey shall include all measurements and recording of all data as may be necessary to perform an accurate survey. (New Jersey Administrative Code)

What on earth does that mean? The technical term for this statement is gobbledygook. If a surveyor goes to the field and precisely stakes the measurements in the client’s deed, even if not on the client’s true property corners and property lines, one may maintain that the client’s property was surveyed because her title documents were put on the ground. If another surveyor goes to the field and precisely measures the client’s occupation lines, claiming them to be the true representation of the client’s property corners and property lines, one may maintain that the client’s property was surveyed because the limits of her ownership were identified on the ground. If they in fact turn out to be the true property lines, correct results were achieved whether by accident or otherwise. This of course begs the question: Are we in the business of giving title opinions or answering the factual question of location?

I’m not trying to pick on Alabama, Florida, Mississippi or New Jersey. I could certainly bring other jurisdictions into the discussion with the same result. To a greater or lesser degree, these examples are representative of the typical technical standards that are out there. The fact is that all of our standards are technical standards written by technicians for technicians. With the possible exception of the 2011 ALTA/ACSM standards, they are all focused on measurements and the technical aspects of measurements—that is to say redundant measurements, closures, closure ratios and accurate measurements, as opposed to accurate results (i.e., a well-reasoned opinion on the location of the subject property lines).

Fence line surveying, which is the way many surveyors in various areas of the country used to survey (and some still do), got a bad reputation in the latter part of the 20th century. I think some, if not most, of this negativity came from the new movement to “stake the deed.” Most of the evidence points to Brown as the guru of that movement. Anybody could measure the incidents of occupation—it took a real surveyor to precisely stake the muniments of title. Another reason the “stake the deed” movement was eagerly embraced is because it turned boundary surveying into a math and measurement problem. What self-respecting surveyor doesn’t like math and measurements? However, both of these are extremes, even though both of these extreme activities can produce correct results.

In the case of measurement stakeouts, the property on the ground can actually match the geometry in the deed, although this “match” will never be perfect. That’s when we get into asinine arguments over how close is close enough, and pincushion corners are started or expanded when only one corner exists under legal contemplation. But why is it that this extreme activity is not frowned upon with the same intensity as applied to fence line surveying when the law favors occupied lines over force-fit title lines? Not only is deed staking not frowned upon, it appears to be required practice in some jurisdictions as the Missouri regulations seem to indicate:

20 CSR 2030-16.030 General Land Surveying Requirements (2) The Field Survey. The registered land surveyor or a person under his/her direct personal supervision, shall … (F) Reach a conclusion on the location of record title boundaries and set monuments as required. (Missouri Code of State Regulation)

In the vast majority of actual court cases, when the title documents do not comport with established property lines on the ground, it’s the title documents that yield to the on-the-ground location of the property. In the world of real property, the old adage that “possession is nine-tenths of the law” is absolutely correct. On a percentage basis, the land surveying profession, as a whole, would be better off extolling its practitioners to find ways to support the on-the-ground location of established property lines and maintaining the status quo, rather than slapping precise math stakeouts on the ground, sending the parties into, what is often, needless litigation. And when the parties go into litigation because the land surveyor doesn’t have a clue, the entire profession takes another hit, and we convince that many more people that we don’t know what we are doing. 

In the case of fence line surveying, at the very least, this activity should receive the same treatment as the deed stakeout. In both cases, only one form of evidence is being considered by the land surveyor. In the case of the deed stakeout, it’s the lowest form of evidence—measurements. In the case of the fence line surveyor, we are at least dealing with the highest form of evidence—occupation.

If we are not going to teach land surveyors how to survey property, or at the very least, define what it means to survey property and then make sure we are all on the same page and not playing the charade that is the current practice of land surveying, then why not give the fence line surveyor a little respect? After all, the fence line surveyor is probably getting it right more often than the deed-staker and isn’t causing the same RP nightmare the deed-staker is causing (e.g., needless litigation, pincushion monuments, surveyors don’t know what they are doing, “the great public calamity,”1 etc., etc.). 

Let’s go ahead and pick on Missouri. If we look at the legislation that enables the administrative regulation we looked at earlier, in pertinent part we find the following:

§ 327.272. Practice as professional land surveyor defined 1. A professional land surveyor shall include any person who practices in Missouri as a professional land surveyor … the adequate performance of which involves the special knowledge and application of the principles of land surveying, mathematics, the related physical and applied sciences, and the relevant requirements of law … that affect real property rights … which service or work involves: (1) The determination, location, relocation, establishment, reestablishment, layout, or retracing of land boundaries.

OK, I’m not really picking on Missouri;  everybody’s legislation says just about the same thing. Surveyors establish, in the first instance, property lines on the ground. This is what is referred to as an original survey. After the original survey, the surveyor’s role is to find where the lines have already been established by retracing the original survey. In the first instance, the deed-staker has a very good chance of getting it right. In the second instance, the fence line surveyor is more likely to get it right.

Of course, all of this assumes that what the surveyor does or does not do has any significance at all with regard to the establishment of property boundaries. Original surveyor, following surveyor; we couch it in those terms—I’ve used those terms—but in the final analysis, it is almost irrelevant what the surveyor does. What is significant relative to the establishment of property boundaries is what the landowners do as a result of the survey.

Boundary establishment and how boundaries become established are the critical questions. And those are the questions we are going to address next time.


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.

 

Reference
1. Justice Cooley’s words, not mine. Diehl v. Zanger, 39 Mich. 601 (Mich.1878). I could bring the endless example cases to the table, but you don’t want me to do that, and I don’t want to do that. Life is too short.
 

Don't miss Jeffery Lucas’ latest book, “The Pincushion Effect.” The book can be purchased through the AEC Store at www.aecstore.com/pincushioneffect.