Traversing The Law: Do Surveyors Commit Consumer Fraud?
How about we come up with solutions, before someone else does?
In my early columns, I primarily focused on court cases involving land surveyors and the legal issues facing them, and by extension, all of us. I garnered a lot of criticism for only pointing out the problems in the profession and not the good things. Unfortunately, there are very few court cases involving the good things. And the reality is you can’t talk about solutions to problems if nobody believes they have any problems.
That perception is still out there that we don’t have any problems, however it is not as widespread as it used to be. But it is still there. Just try to institute some change in — oh, I don’t know — maybe something like the minimum technical standards and you will quickly see how widespread the perception is; we can’t have change. And therein lies yet another problem: Change is coming whether we want it to happen or not.
The second half of my career at POB has been to not focus so much on the problems in the profession as to focus on solutions to those problems. But the solutions will require changing how we do things, and change, in the minds of too many, is to be avoided at all costs. So, once again, I have to talk about a problem before we can discuss a solution.
Given all of the problems facing the land surveying profession we could discuss, in my estimation the one that exceeds all of the others is our perpetration of consumer fraud, or at the least, what could be characterized as deceptive trade practices. The fundamental principles of boundary surveying are not in serious dispute by the courts, although they are always disputed by land surveyors:
“In making a resurvey, the question is not where an entirely accurate survey would locate the lines, but where did the original survey locate such lines. The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. It is generally held, therefore, that a resurvey that changes lines and distances and purports to correct inaccuracies or mistakes in an old plat is not competent evidence of the true line fixed by the original plat.”1 (Internal citations and quotation marks omitted.)
“When finding the lines of a survey, the cardinal rule is that the footsteps of the original surveyor, if they can be ascertained, should be followed. The primary objective in locating a survey is to ‘follow the footsteps of the surveyor;’ by which is meant to trace on the ground the lines as he actually ran them in making the survey. If the actual lines and corners run by the original surveyor can be found, they are controlling, even if they are inconsistent with the calls and references in that surveyor’s field notes. The footsteps of the original surveyor are controlling and prevail over calls for course and distance. When the actual lines run by the surveyor can be found, they constitute the true boundary and cannot be made to yield to course and distance calls.”2 (Internal citations and quotation marks omitted.)
I could go on, ad nauseam, but I shouldn’t have to. If you are not onboard with these principles, then we have identified the problem and it is you. A restatement of these principles would be that you are either an original surveyor setting out original lines for a common grantor for the very first time, or you are a retracing surveyor gathering and evaluating the best available evidence in order to render a well-reasoned opinion on where the boundary lines have already been established on the ground. This, by definition, is boundary surveying and no other activity should go by the same name.
Since the vast amount of boundary work being conducted today is retracement as opposed to original layout, then true retracement work (boundary surveying) requires finding where the lines have already been established, not setting new corners and marking new lines. Nevertheless, this is exactly what is happening in many, if not most, of the boundary surveys being performed today. The question is, why is it allowed to happen?
DEFRAUDING THE PUBLIC
As boundary surveying is currently practiced, one surveyor bids a job at a price based on the amount of time it will take to stake out the geometry from the client’s deed and another surveyor quotes the potential client a fee for conducting a retracement of the property boundaries in keeping with the above stated principles. Guess who gets the job? The problem is that these two completely different services are both called by the same name — they are both called “boundary surveys.” What’s wrong with this picture?
What’s wrong is consumers are being defrauded. As a general proposition, consumers of land surveying services call up a land surveyor because they want to know where their property lines are located. Although, it is true, many consumers do not know or fully understand what we do or how we do it, at the very least they think that we determine where their property lines are located on the ground:
“The Robertsons then employed another surveyor, Samuel Ball, to conduct a complete survey of their property and plot the results.”3
“Mr. Dowdell hired registered land surveyor, Mike Burns, to conduct a survey of his property in an attempt to resolve the dispute.”4
“In July 2001, the Joneses purchased Parrish’s lot, along with eleven other noncontiguous lots. Lynn [Jones] removed both gates and had a bulldozer ready to ‘reconstruct the driveway.’ After Abner [Gresham] told him that he could not give him permission to do that, Lynn told the Greshams they had two weeks to get a survey done to prove they owned the driveway. The next day, Lynn constructed a barbed wire fence that ran down the left side of the disputed driveway, all the way down to the lake. This moved the Greshams’ eastern boundary seven feet to the west.”5
“It was only after the survey of Ron Milam that the Richardsons came to believe that they owned the land where the corrals are located. … It was only after Milam generated his opinion about the B-to-A fence that the Richardsons claimed they own the land north of that fence. The question remains whether Milam’s analysis is legally correct.”6
So, when a consumer calls up a surveyor and asks for a boundary survey of her property and the surveyor offers what amounts to a math stakeout instead (calling it a boundary survey, yet knowing that a math stakeout is not a boundary survey), the consumer rightly goes into reliance on the math stakeout, thinking the surveyor is determining the limits of her property. If the consumer then suffers damages as a result of her misplaced reliance, all of the elements of deceptive trade practices are in place.
Deceptive trade practice acts and consumer fraud legislation will have variations from state to state, however Texas has a fair representation of the basic elements. Under Texas law, the elements of the Deceptive Trade Practices Act (DTPA) are as follows:
“The elements of a claim under the DTPA are (1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a producing cause of the consumer’s damages. Reliance is a necessary element of a DTPA claim based on false, misleading, or deceptive acts. A DTPA claim may also arise from breach of express or implied warranties or from any unconscionable action or course of action.”7
All of this is allowed to happen because our various and sundry minimum technical standards and so-called standards of practice provide cover for such activity. By and large, they do not differentiate between practicing boundary surveying and staking out math, consumers do not know the difference between the two, and we don’t explain the difference. This is consumer fraud.
The solution to the consumer fraud issue, which is also the solution to many of the problems associated with boundary surveying, is simply “truth in advertising.” If consumers really only want to pay for a stakeout of their deed, along with all of the associated conflicts and pitfalls that I have been writing about for 10 years, then let’s make it crystal clear to them what they are buying and what they are not buying.
Figure 1 is an example of what I’m talking about. The “math stakeout” survey drawing would have a bold title stating what it is and what it is not. It would also have to have a BOLD warning label to further explain its limitations.
In contrast, the “boundary survey” would look something like Figure 2, making it clear that the surveyor is rendering an opinion on the only question open to the surveyor by definition: Where are the boundary lines located on the ground? This would resolve all doubt in the consumer’s mind when comes to deciding on a service provider and the services being provided. Let fully informed consumers decide what level of services they want to buy, instead of deciding between alternatives they don’t really understand. What other profession operates this way?
Of course, this simple fix (or something like it) may require more will power than the collective profession can muster. It will require enough surveyors to recognize that we have a problem and that the problem needs to be fixed before somebody fixes it for us. I don’t think we are going to appreciate the changes that get imposed upon us by outside forces, either through class-action litigation, legislative initiatives, or events just passing us by as we wallow in our irrelevance. It’s time to wake up and fulfill our calling as stewards of the nation’s property boundaries, or find a new niche and move on, because we are failing miserably at this one.
1 Wood v. Starko, 197 S.W.3d 255, 261, 262 (Tenn.App.2006).
2 T.H. Investments v. Kirby Inland Marine, et al, 218 S.W.3d 173, 204 (Tex.App.2007).
3 Harris v. Robertson, 813 S.W.2d 252, 253 (Ark.1991).
4 Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470, 3 (Tenn.App.2007).
5 Jones v. Gresham, 963 So.2d 581, 582 (Miss.App.2007).
6 Larsen v. Richardson, 2011 MT 195, ¶¶’s 20, 27 (Mont.2011).
7 Garza v. Garza, No. 04-11-00310-CV (Tex.App.2013).
Jeff Lucas is in private practice in Birmingham, Ala. He is president of Lucas & Co. LLC and publisher of “The Lucas Letter,” a legal newsletter for the surveying and engineering community. He can be contacted through www.LucasAndCompany.com. For a more in-depth study of the legal principles that affect our everyday practice, subscribe to “The Lucas Letter” at www.LucasAndCompany.com.
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.