I recently attended two separate board of licensure meetings in two different states, both of which I’m licensed in. One board regulates both land surveyors and engineers, so it is made up of mostly engineers. The other board is a surveying board made up of surveyors.

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At both meetings, the discussion turned to surveying standards of practice, testing, attrition rates, and the various and sundry problems facing the surveying profession which no one seems to have answers for. At one of the meetings, an engineer member of the board finally pronounced: “This sounds like a profession in crisis.” Welcome to the 21st Century, Mr. Board Member! I’m glad you are at least awake.


Fundamental Problem in a Nutshell

I’m going to cover some old ground here, but my observation is that this ground needs to be gone over and over again until something starts to happen. There is only one reason that land surveying is a regulated profession, and that is for the protection of the public. If that is not happening (and that is a board responsibility), or if the way surveying is practiced actually harms the public (this also should be a board responsibility), then either changes need to be made to ensure the public is protected or land surveying needs to be deregulated, caveat emptor.

Everybody’s enacting legislation says basically the same thing:

In order to safeguard life, health, and property, and to promote the public welfare, the practice of land surveying in this state is a learned profession to be practiced and regulated as such, and its practitioners in this state shall be held accountable to the state and members of the public by high professional standards in keeping with the ethics and practices of the other learned professions in this state.1 [Emphasis added.]

The boundary surveyor, in contrast to other related professionals such as engineers, photogrammetrists, cartographers, geodesists, GIS professionals, etc., comes into contact with the public and their real property and real property interests more often than all of these other practitioners combined. My own experience in researching case law shows me that surveyors are involved in, or are the root cause of, more lawsuits than all of these other professionals as well. There are two reasons for this, and in reality the ultimate reason is a combination of both.

It is because surveyors come into contact with the real property interests of individual landowners more often than their allied professionals do that they end up being involved in some way with more lawsuits. The other reason, which reveals itself when you read these cases, is that surveyors don’t know what they are doing. They create problems that did not exist until the visitation of the surveyor. Both of these circumstances combine in a sort of perfect storm event, bringing surveyors into lawsuits, or surveyors causing lawsuits, more than all of their brethren. 

And this is in spite of the fact that not every landowner who is wronged can institute a lawsuit. As my old law professor told us, and experience has verified, the vast majority of triable offenses never see the light of day in a courtroom. Of those that do, only a small fraction of trial court decisions ever go up on appeal where an opinion might be written up that gets published. Even with all of these factors that suppress the number of court cases that get published, the number of cases involving surveyors and boundary disputes are legion. 

In many instances, there is nothing to be gained by suing the surveyor because the surveyor has no assets. Unlike malpractice suits against other professional service providers (e.g., doctors, lawyers, etc.), there may be no insurance coverage to pay the freight for the legal action, so there is no legal action. The title company isn’t going to foot the bill over a boundary location dispute, because in most instances that is not a title problem. Besides, the survey exception in the title insurance policy exempts from coverage anything that an accurate survey might reveal but that nobody bothered to get a survey for.

Finally, and most importantly, even though the surveyor is the source of the lawsuit because the surveyor slapped some math on the ground and brought chaos into the neighborhood, what did the surveyor do wrong? What rule was broken? Where is it written that blatantly incorrect surveying results constitute malpractice? It’s not. Yes, it is perfectly OK to amputate the wrong leg in the surveying profession as long as you do it with precision. This is the problem in a nutshell, but nobody who matters (let’s say, maybe, your board of licensure?) wants to do anything about it.


Do Nothing Boards, Do Nothing Standards

This is where I get the term “do nothing boards.” They do nothing to stop these surveying practices that are actually harming the public. Now, most of these boards have adopted so-called standards of practice that dictate how to survey, right? Well … no … actually these so-called standards are part of the problem. The vast majority of them actually provide cover for the very practices that are harming individual landowners.

First of all, they are not “standards of practice,” even though the trend seems to be moving away from calling them “minimum technical standards.” As the old saying goes, you can put lipstick on a pig but it’s still a pig. They are “standards” in name only. They are really glorified mapping requirements. None of them address the real issue at hand. Has the practitioner protected or harmed the landowners affected by the results of the survey?

None of the standards differentiate between good practice and bad. This is because none of them really define what it means to survey property. Is slapping math on the ground surveying property? Well, if we don’t say it doesn’t, then the argument can be made that it does. Besides, what rule was violated in the “standards”? Well … none … because there is none.

The standards not only allow but guarantee the least qualified and most unethical surveyors will be hired to do all of the smaller surveying projects involving unsophisticated clients. This puts them in direct contact with the people and the property rights our boards are supposed to be protecting. These unsophisticated landowner-clients call around until they get the lowest price they can get, and the cheapest surveyor is the one who does the job. And that surveyor goes to work under the guise of performing a boundary survey, slaps some math on the ground, sets new pins at every corner even though pins already exists at each corner, and leaves a little or much chaos in his wake. Is that really surveying property?  

These “standards” provide cover for consumer fraud. One surveyor slaps math on the ground and calls that a “boundary survey.” Another surveyor does the hard work of gathering and evaluating the best available evidence that leads to a well-reasoned opinion on the only question open to the land surveyor: Where has the property become established on the ground? This too is called a “boundary survey.” See any problems with this? It’s called deceptive trade practices (a.k.a. “consumer fraud”) and most jurisdictions have enacted legislation that deals with it. There are at least five violations of the Deceptive Trade Practices Act under Alabama law on this one example. But our standards provide cover for this activity. This is where I get the term “do nothing standards.”


Simply, a Good Place to Start

Simply defining what it means to survey property would go a long way towards solving at least this one problem with the surveying profession and the way it is practiced.

We could start with the two fundamental principles of surveying — the surveyor is either an original surveyor setting out new boundary lines for the very first time, for a common grantor; or the surveyor is a retracing surveyor finding where the lines have already become established on the ground. These principles are so well established under American property law they hardly need citation, so for the sake of brevity I’m not going to list citations. 

Given these two fundamental principles, an original survey creates new tracts of land for a common grantor, and is largely a measurement and math task. The object is to, as precisely as possible, “stake out” the geometry from the plan of subdivision on the ground. In contrast, the object of a retracement survey is to find where the boundaries were previously “staked out” or otherwise established on the ground. This is largely an evidentiary exercise as opposed to a measurement task. Were we to define these two functions in our standards, this would leave little or no room for doing something else, like slapping a deed on the ground while performing a retracement survey. (See the sidebar article for proposed definitions).

Along with these definitions, there would need to be training in the “appropriate boundary law principles,” but this is not unprecedented. The American Land Title Association (ALTA) standards already call for an understanding and application of these principles, as we discussed in my column back in April. I believe forcing the surveyor to explain the boundary law principles employed would go a long way towards ending the practice of setting new pins in the ground when pins already exist at the corners. What boundary law principle would the wayward surveyor cite? The doctrine of monuments!

The real question is: Are we ready for the land surveying profession to actually take a stand on what it means to survey property? Or are we just going to muddle along until society finds a better way?

I pray for the former, but anticipate the latter.
 


New Definitions

Legal columnist Jeff  Lucas believes a clearer definition of surveying products is a good starting point for fixing what ails the profession. He has some suggestions:

  • Boundary Survey — A survey of property that is either characterized as an “original survey” or a “retracement survey.”
  • Original Survey — A survey of property being conducted for the owner(s) of a parent tract of land in order to: 1) delineate new property lines for a subdivision of the parent tract; 2) reconfigure existing property lines under common ownership for a new subdivision of property; or 3) subdivide a section or portions of a section of land as a part of the Public Land Survey System (PLSS), that is under common ownership, where no such subdivision has ever been previously conducted on the ground. The purpose of an original survey is to create an original subdivision or re-subdivision of land under common ownership.
  • Retracement Survey — A survey of existing property lines or the boundaries of any tract of land in order to determine where the property lines have become established on the ground, either through a previous original survey of the property lines being retraced or by the application of appropriate boundary law principles governed by the facts and evidence found in the course of performing the retracement survey. A proper retracement survey shall include, but is not limited to: 1) appropriate record and field research; 2) gathering and evaluating the best available evidence indicating where the property lines being retraced have become established on the ground; 3) if necessary, interviews with local landowners familiar with the property boundary lines in the community; and 4) reporting these findings on an appropriate map of survey indicating the corners and the lines retraced, the monuments found or set during the course of the survey, and an explanation of the boundary law principles employed by the surveyor in making such determination.

 


Footnote

  1. § 34-11-2(c), Code of Ala.1975.

 

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.