Our technical standards, as they exist today, simply provide cover for bad practitioners who are able to break the law, damage property rights and adversely affect the well-being of our citizens—with impunity. No other profession allows similar activity to go unpunished, and we wonder why we get no respect.
There are at least 50 jurisdictions that regulate the practice of land surveying. I can’t spend 50 columns going over the problems associated with the technical standards that have been promulgated in each of these jurisdictions. POB wouldn’t publish them and you wouldn’t read them. So, we are going to pick one bad apple, and you can extrapolate the affect of your own state’s technical standards from there. And don’t be fooled by the cover of the book. My own state’s technical standards are called “Standards of Practice for Surveying in the State of Alabama.” You can put lipstick on a pig, but it’s still a pig.
I spent my entire column in March of 2012 on what a standard of practice is or should be. The bottom line on that discussion is that a “standard” is a “type, model or combination of elements acceptable as correct or perfect” (Black’s Law Dictionary). A standard of practice, therefore, would differentiate between “correct” practice and “incorrect” practice. Our technical standards do not—and this is how we know they are technical standards. They define correct practice by how well you can measure. Under this rubric the expert measurer is the model practitioner.
The only problem is that this is not the essence of land surveying practice. If it is, then we have nothing going forward. We will be completely irrelevant in just a handful of years because the technological advances that are being made will soon render anyone with the right tools an expert measurer. When that day comes, our technical standards can join the technical standards for manufacturing a buggy whip on a shelf in the museum of the irrelevant. Unfortunately, many surveyors reading this will not even know what I’m talking about.
So who is the bad apple we are going to talk about? Before we go there, let me just reiterate. I could pick any jurisdiction and to a lesser or greater extent prove the same points I’m going to make in this example. The recent Florida case of Beckham/Tillman v. Bennett,[i] however, gives us a hot-off-the-press illustration of what I’m talking about. The appellate court opinion is very short and really does not provide us with the material we need to make the case. If you are familiar with appellate court opinions, they never give us all of the details we want to know and I often receive the flaming-arrow email telling me how I do not know all of the facts in the case. These emails, though, usually refer to “facts” as seen through the eyes of the beholder.
However, the Beckham/Tillman case is not your average bear. The entire case was submitted to the trial court summary judgment style, based entirely on the depositions of the two surveyors and the survey exhibits. There was no trial, no oral testimony on the stand, no missing or unobtainable “facts” that we can’t know about. The only question in the case was which survey was correct. As the appellate court put it: “In essence, we are asked to decide which of two surveyors properly located the correct boundary line between the two parcels of property.”[ii] Aha, it seems that in the eyes of the law “correct” results do matter.
So, to see the same exact “facts” that the trial court saw and the appellate court ultimately decided on, all we need are the depositions of the two surveyors and copies of the surveys. So I called up the clerk of court and ordered them. For ease of identification we will refer to Bennett’s surveyor as “Expert Measurer” (Expert) and Beckham/Tillman’s surveyor as “Retrace Surveyor” (Retrace).
The essence of the boundary dispute is that Expert was hired in 2001 by Bennett to—you guessed it—survey his property. Beckham/Tillman’s property had already been surveyed at least two times previous; first by the original subdivision surveyor in 1965 and again in 1999 by a following surveyor. The surveying problem is that Bennett’s south property line is a function of the south boundary of “Plat of Townsite of Port Dixie” (Port Dixie), recorded in 1929. Beckham/Tillman’s north property line is a function of the north boundary of the “Jonita Estates” subdivision, recorded in 1965. These two subdivisions ostensibly abut, at least on paper.
Expert found three existing monuments that he described on his survey as representing the north boundary of Jonita Estates. He admittedly found no monuments that he considered representative of the south boundary of Port Dixie, at least not any that he showed on his survey. He stated that he had found other monuments that he did not show on his survey—but could not definitely testify to—that supported his ultimate results. So finding no monuments he considered representative of the south boundary of Port Dixie, he began at the northwest corner of that subdivision, almost 5,000 feet away, accepted a then existing monument as the same section corner called for on the 1929 plat, and set the south boundary of Port Dixie by measuring the plat distance with expertise to a point five feet south of the existing north boundary of Jonita Estates, thereby creating an overlap between Bennett and Beckham/Tillman. In contrast, Retrace retraced the 1965 and 1999 surveys in Jonita Estates. We now have our boundary dispute.
The core of Expert’s survey can be found in the following testimony from his deposition:
Q. And so based on that … if the Court said we’re going to strike this old [Jonita Estates] line, and we’re going to use your line for the north boundary for Jonita Estates, would that reduce the size of these lots by about five feet in Jonita Estates?
A. It would reduce them on the ground. But if there’s enough land in the subdivision, what it might do would be to push all of the lots south five feet. So there might still be the appropriate amount of land for each lot. It’s just, you know, what we don’t know is that you would have to survey Jonita Estates to determine if maybe the whole subdivision is just five feet further north than it should be. And if that was the case and you pushed it south five feet, then there would be no loss of land. It would just be five feet south from where it currently appears to be on the ground. …
Q. Okay. And so do you know approximately how many lots there would be south of your line that would be affected if the Court found that your line was the proper line?
A. No. …
Q. Can you—I mean, from your experience in that area, can you guess just approximately? I mean, I’m not going to hold you to it. [Note to readers, we are talking about 29 lots.]
A. I really don’t know. It could affect all of the lots in the subdivision, theoretically.
Q. Okay. And assuming if they have mortgages, affect their lenders, as well?
A. That’s outside of my expertise.
In contrast, Retrace essentially testified as follows:
Q. So go ahead, just state your opinion.
A. Well, I believe that in this case, most cases these days, we’re acting as retracement surveyors. And our duty is to follow in the footsteps of the surveyors that came before us. And I believe that that monumented line is evidence of the prior—of the previous surveyors—and that we should follow that line. The monumented line prevails over the deed line as drawn on a plat. And there’s case law and surveying principles that confirm that.
Passing judgment on the two depositions and the two surveys, the court of appeals reiterated the existing law of the land:
A surveyor cannot set up new points and establish boundary lines unless he is surveying unplatted land or subdividing a new tract. Subsequent surveyors may only locate the points and retrace the lines of the original survey; they cannot establish new lines or corners. After carefully reviewing the deposition testimony of each surveyor, we conclude that only Beckham/Tillman’s surveyor conducted a proper retracement utilizing the original monuments. [Emphasis provided in the original.]
And why is this the law? Because to do otherwise damages property rights and adversely affects the well-being of our citizens. And when a land surveyor does that, the surveyor is breaking the law. Beyond breaking the law, let’s step back a second and consider the consequences to the people involved. The survey that started the controversy was performed in 2001. This case was not finally adjudicated until July of 2013, over a decade later. If you don’t think that this lawbreaking activity adversely affects the well-being of landowners, then, obviously, you have never been involved in a lawsuit.
So what are the consequences of Expert’s incorrect results? If we check Florida’s Minimum Technical Standards, this issue is not addressed at all. The closest we come to it is in the following section:
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.
Both surveyors in this case can claim compliance. To determine if Expert (or Retrace) violated the standards we have to examine his map and field notes to see if he has a north arrow and achieved a proper closure. This is totally irrelevant to the achievement of correct results, that is to say, a well-reasoned opinion on the factual question of location. As I have stated on many occasions, if the medical profession were like the land surveying profession then anybody with a medical license could perform heart surgeries, whether trained in heart surgery techniques or not, because correct results are irrelevant so long as the chest was cut open with precision.
The reason our technical standards need to be jettisoned is to take away the crutch that allows bad practitioners to damage our citizens with impunity. They need to be replaced with a true standard of correct practice focused on the only question open to the retracing land surveyor—where has the property already been established in the ground. Everything else is irrelevant window dressing.
[i] Beckham/Tillman v. Bennett, 2013 WL 3770840 (Fla.App.2013).
[ii] Id. at 1.