I imagine most land surveyors don’t give the idea of committing fraud a second thought in their everyday practice. I know this because in my discussions with land surveyors over a 30-plus year career, and in traveling across the country and meeting surveyors at various conferences and other venues, I have yet to come across a surveyor who gave me the impression that they wanted to mislead their clients in any way. As a matter of fact, the vast majority of these surveyors seem to pride themselves in trying to do the right thing, even though as we know, the road to you-know-where is paved with good intentions.
This does not preclude the idea or even the fact that some land surveyors have intentionally misled clients and committed what most land surveyors understand to be fraud—intentionally misrepresentation or concealment. Unfortunately, intentionally misleading someone to their ultimate detriment is not the complete definition of fraud. Have you ever heard the term “unintended consequences”? Fraud can and does fall under this category of human actions and interactions as well.
Fraud has various definitions depending on whether you are talking about criminal fraud or the civil tort of fraud. For the purposes of this discussion we will limit our discussion of fraud to the civil context in which the land surveyor is most likely to find him or herself. For a generic definition of the civil tort of fraud we can turn to Black’s Law Dictionary where we will find the following: “A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.”
Black’s definitions of fraud and its many variants go on for nearly three pages. This alone tells us that fraud has many aspects, we come into contact with the elements in various and sundry interactions, and, in the words of Robert Palmer, nobody is “immune to the stuff.” This includes land surveyors. No one definition of fraud fits all, and what constitutes fraud under any particular set of circumstances is most often determined by the courts in the various jurisdictions. So, in order to study fraud in the land surveying context we need to pick a particular jurisdiction and a particular case and see if the land surveying activities subject the land surveyor to the charge of fraud.
For this we are going to go to Illinois where, last year, I had the privilege of working with the Illinois Professional Land Surveyor’s Association in preparing the text for the Illinois Boundary Law1 book, which we rolled out this past February in Springfield.
The elements of fraud were clearly defined under Illinois law in the case of Cwikla v. Sheir,2 as follows:
In order to state a claim for common law fraud, a plaintiff must allege that any misrepresentations were: (1) a false statement of material fact; (2) known or believed to be false by the party making them; (3) intended to induce the other party to act; (4) acted upon by the other party in reliance upon the truth of the representations; and (5) damaging to the other party as a result.
Elaborating on what constitutes false and misleading statements, Illinois law was laid down in the case of St. Joseph Hospital v. Corbetta,3 this way:
It is an old adage that half a truth is a lie. Thus, a statement which is technically true in fact as far as it goes may also be fraudulent, where it is misleading because it does not include all the material facts. …
One conveying a false impression by the disclosure of some facts and the concealment of others is guilty of fraud, even though his statement is true as far as it goes. Such concealment is in effect a false representation that what is disclosed is the whole truth. Id. [Emphasis added.]
When I was preparing the text for the book, I was introduced to the case of Dorsey v. Ryan,4 involving a land surveyor retracing a section line and related corners. Before we consider what happened in the case, let’s look at one particular ethical requirement that I have seen stated, whenever I have searched for it, in every code section or ethical standard related to any profession. Under the Illinois “Standards of Professional Conduct” it is stated thusly:
(b) The land surveyor shall undertake to perform land surveying assignments only when qualified by education or experience in the specific technical field of land surveying involved.5 [Emphasis added.]
Similarly, Canon 3 of the NSPS “Surveyor’s Creed and Canons” states:
A Professional Surveyor should accept assignments only in one’s area of professional competence and expertise. [Emphasis added.]
Fraud was the illegitimate first-born child or ethics, and the two will be forever linked. With these ethical considerations in mind and our elements of fraud in place, let’s consider what happened in the case.
Dorsey and Ryan are neighbors who are having a boundary dispute. We aren’t told what property Ryan owns, but Dorsey’s property is described as “beginning at the Northeast corner of the West half of the Southwest quarter of said Section Seven (7), and running thence West 80 rods, thence South 44 rods, thence East 80 rods and thence North 44 rods to the place of beginning, containing 22 acres, more or less.” (See figure 1). The dispute revolves around the location of the west quarter-corner of section 7.
The dispute ends up in court and under Illinois law a commission of three land surveyors can be appointed to determine the location of lost, obliterated or disputed corners when the landowners themselves are unable to agree. In this case, one surveyor was appointed (not three) by the court to find or re-establish the west quarter-corner.
The surveyor testified that he searched for but did not find either the southwest corner or the northwest corner of section 7. There is nothing in the opinion about his efforts to locate the quarter corner in question. The overwhelming inference to be drawn from reading the case is that he put no effort into finding it at all. To the west, in the next range, he testified that he found a stone at the southeast and northeast corners of section 12. These stones had been set by a county surveyor and used by others subsequently. In my neck of the woods these are referred to as locally accepted corners. In other areas of the country they are referred to as corners of common report.
The GLO notes and plat indicated that the east line of section 12 was 80 chains (5,280 feet). However, the distance between the stones was 5,208.28 (basically a chain short). As shown in figure 1, the GLO notes indicate the location of the southwest and northwest corners of section 7, relative to the corners of section 12. The GLO notes also indicate that section 7 was a little over one chain long. However, by utilizing the stones to locate the corners of section 7, the resulting distance was a perfect 80 chains.6
The surveyor testified that he searched a little more along the range line to find the missing chain, but to no avail (the court noted that this search was confined to one or two sections, not the entire range line). The surveyor set the southwest and northwest corners of section 7, based on the stones and GLO record relationship between section 12 and 7, then set the quarter-corner in question by measuring 2,640 feet north from the southwest corner of section 7—a corner that he set. This resulted in Dorsey being out of place by 35 feet (half a chain).7 (See figure 2).
Examining the results of the survey, the court referred to Illinois law (go figure), and to the instruction for the restoration of lost and obliterated corners prepared by the Bureau of Land Management (BLM). The court focused in on the surveyor’s almost exclusive reliance on the stones which had not been proven to be anything relative to the original GLO corners. “The surveyor seems to have placed reliance on the section corners of section 12 in the township adjacent to section 7, though the evidence clearly shows that these corners were neither original corners nor in agreement with the original field notes. … This we conclude was improper.” Improper procedure is an indication of, at best, error or being unqualified, or, at worst, incompetence. These are ethical violations.
Citing the BLM and Illinois law on the importance of the testimony of locals with relevant knowledge as to exiting boundaries and corners (not to mention the rules of evidence), the court also noted the surveyor’s total disinterest in the testimony of locals. “The testimony of the surveyor is silent on efforts to take the testimony of knowledgeable landowners.” Ignoring relevant evidence in rendering a decision on original corner locations is tantamount to a half-truth, misleading as to material facts, leaving a false impression, not the whole truth or even concealment. In other words, this is fraud.
You could say that maybe the surveyor didn’t know the importance of local testimony. Now we are talking incompetence and negligence, which is worse, because these torts are easier to prove than fraud.
The fraud cases against land surveyors are relatively small compared to other tort charges. That does not mean they are non-existent. This lack of cases, I believe, is due more to the difficulty in prosecuting the charge and/or that the cost-to-benefit ratio isn’t high enough to make it worth the effort. The latter being, to a certain extent, an impediment to prosecuting any case against a land surveyor. Another old saying comes into play here: You can’t squeeze blood out of a turnip.
Nevertheless, my research and experience suggests to me that there are probably just as many, if not more, cases of fraud against land surveyors that could have been prosecuted that were not. Situations where all of the elements of fraud were in place, but for whatever reason the case was not prosecuted. That is the situation we found in this Illinois case. Don’t worry, I have plenty more where that one came from.
6 Step back for a second and look at the big picture. The record indicates that section 12 was regular and section 7 was one chain long. The results of the survey are to completely reverse this situation. Section 12 becomes on chain short and section 7 become regular. We are full of old adages in this case, so here is another: Can’t see the forest for the trees.