Guest Column: Our Nation's Discrepancy on Discrepancies
Surveying our practice with the scope on discrepancies
I am trying to highlight an area of concern that relates every day to us as land surveyors across these United States. My intent with this article is to turn the scope to the subject of discrepancies and related mapping processes. With more discussion and exposure to this topic, we may all benefit in our practice of surveying as we encounter such situations.
- Why Look Outside Your State?
- Filing is Not Recording
- Can Only Two States be Right?
- Mutual Cooperation and Respect
- Professional Practice Committees and the State Boards
- Can a Material Discrepancy be Measured?
You’ll notice this is not an article on the subject of boundary line determination; such topics are common and prolific, as we all know from our readings. I have always wondered why the related subject of discrepancies is rarely found in articles per se, nor commonly treated in seminars. “When does a discrepancy become material in nature?” is an important question, because at least 30 states use the term or a similar term in their codes, regulations and statutes to indicate their level of concern with the subject. Black’s online law dictionary in part defines material as something “important, having influence or effect, evidence that is substantial … has a bearing on a case.” More on “material” later.
In addition to my own research of the various state licensing board websites and the links to their various statutes and rules, I was able to interview or receive responses to my questions by email and via surveyor blogs from a number of land surveyors, in both the private and public sectors.
Just as a refresher, statutes are broad laws that have been legislated to provide government agencies with the legal power to safeguard the public and carry out the public’s business. Administrative codes are the specific rules written by these agencies and various professional boards in order to carry out those laws in a regulatory manner. This is a national standard for local and state government.
By looking at practices and rules outside of our own particular state, through comparison and contrast, we may be able to get a better perspective for evaluating rules and practices, with an eye toward always improving the “system in place” for the surveyor and the public in our own state. I have realized since I undertook this long and curious journey across the 50 state licensing board websites (of which only a portion can be covered in this current article) that I had been completely insulated from survey codes, requirements and the “grey area” of submittal review or oversight, if any, outside of my state. I think now I am able to more objectively evaluate the system in place in my own state, as well as related mapping practices. For example, what I have since found to be the case in my own state is an unmatched level of scrutiny at the local county level that is not commonly found elsewhere.
Hopefully by being familiar with some of the mainstream rules and practices (and some not so mainstream), you may also have a better footing for evaluating what you have or don’t have in your state. This can lead to starting a local dialogue with your fellow surveyors, or working within your own state association for possibly helping you to improve certain aspects of the system in your state if needed.
Most of us have noticed that the terms “filing” and “recording” are used interchangeably. It may be more helpful to reserve the word “recording” for the official public archiving of our documents performed by county recorders or county auditors in some states. An alternative practice mandated by some states is for surveyors to “deposit” their survey plat map directly with the county surveyor office. For example, five years ago when I began this “survey,” I sent questions to a number of county surveyors, one of whom was the county surveyor for Grand County in Colorado. Warren Ward was very helpful in explaining what is in place there: “By deposited, in Colorado it means generally when a land surveyor sets a monument in the course of a boundary survey (including subdivisions that are at least 20 years old), they must prepare a land survey plat that meets minimum statute requirements and file or deposit in the county surveyor’s office. The county surveyor does NOT check land survey plats. In fact, they were required to check deposited plats when the law was introduced in 1987, but that was repealed in 1988 because the surveyors did not like the way this was done. This was because of the phenomenon of overchecking.” In my opinion, Ward’s comment on overchecking or over-review is in of itself worthy of an article devoted completely to that subject.
“To me, the key word is recording,” he continued. “If a plat is recorded, then it affects title and a check is warranted as the best way to protect the public. In Colorado, we deposit plats that do not affect title. Faulty surveyors are troublesome, but it is not as grave a problem as a recorded plat that is faulty. I have found enough errors from good surveyors, not to mention bad surveyors, to prove that a check on recorded plats is warranted. Ironically, most often the real bad errors occur when landowners go with a lowbid surveyor. They run out of money, and when I cite problems that need to be fixed, the landowner is the most vocal objector. It is a sensitive subject.”
An example of mandatory filing for all surveys is found in Nebraska’s Chapter 81-8,122.01, which states in part: “Whenever a survey has been executed by a land surveyor … a record of such survey … shall be filed in the survey record repository.” I went to the state repository website and was impressed to see the consolidation of all survey records in the state available for viewing. This reminded me somewhat of the statewide records system maintained in Massachusetts.
Iowa is one of the very few states that has an official recording requirement for all surveys, regardless of material discrepancy. Administrative Rule 193C-11.5 (542B) Plats states in part: “A plat shall be drawn for every property survey performed showing information developed by the survey. … The surveyor shall record every plat and description with the county recorder.”
The various state laws are diverse regarding mandatory boundary survey recording laws or provision for depositing of plats. In fact, by a slight majority, most states have no such requirements.
Maps produced by surveyors in the 50 states are variously called land records, corner records, records of survey and plats of survey, just to name several of the map formats. Although it is not within the scope of this limited article to cover subdivision maps, tract maps, partition plats, parcel maps, long- and short-form plats, etc., these land divisions are commonly checked for non-survey related items by unlicensed personnel in planning departments. For example, in Tennessee, planning departments perform this function. Other states have municipal and county survey departments that perform a full map check for divisions of land.
California and Oregon are the two states that require a review by a county survey department and subsequent recording of a Record of Survey map when discrepancies or alternate positions are found during the course of a survey.
As will be touched on shortly, several other states including Washington, Idaho, Alaska, Nevada and Arizona have a mandatory recording requirement when a material discrepancy is found during the course of a survey; the main difference being there is no statutory review or signature of a county surveyor on the Record of Survey or Plat of Survey. Nevertheless, private surveyors and county surveyors have told me that some counties in Washington perform an optional review not mandated by statute.
My take on the answer to the question raised earlier is that review or oversight is a fine line to walk. Some map checkers in Oregon have told me they make suggestions, but keep them clearly separate from which is a code requirement.
The state of Alaska code section 34.65.030 is identical to California’s Business and Professions Code, section 8762(b)(1),(2) and (3), which deals with material change, material discrepancy and alternate lines respectively. Alaska does not have California’s (b)(4) which addresses lines not shown and not ascertainable from existing record maps, nor our (b)(5) which is the requirement to record the Record of Survey for deed lines not shown on a record map. The licensed surveyor in Alaska files the Record of Survey directly with a “district recorder.”
The Revised Code of Washington, RCW 58.09.040 is in part as follows: “Records of survey - After making a survey in conformity with sound principles of land surveying, a land surveyor may file a record of survey with the county auditor… (1) It shall be mandatory, within ninety days after the establishment, reestablishment, or restoration of a corner on the boundary of two or more ownerships or general land office corner by survey that a land surveyor shall file with the county auditor … a record of such survey, in such form as to meet the requirements of this chapter, which through accepted survey procedures, shall disclose: (a) The establishment of a corner which materially varies from the description of record; (c) Evidence that reasonable analysis might result in alternate positions of lines or points as a result of an ambiguity in the description.” Discrepancy is further defined by RCW 58.09.090 (1) (d) (iii): “The presence of any physical evidence of encroachment or overlap by occupation or improvement; or (iv) Differences in linear and/or angular measurement between all controlling monuments that would indicate differences in spatial relationship between said controlling monuments in excess of 0.50 feet when compared with all locations of public record. That is, if these measurements agree with any previously existing public record plat or map within the stated tolerance, a discrepancy will not be deemed to exist under this subsection.” This numerical specification deserves special attention later in this article.
The state of Idaho’s mandatory requirement for discrepancies is covered in Title 1 Chapter 2, 10.01.02 - Rules of Professional Responsibility, and is in part as follows: “If a Licensee or Certificate Holder, during the course of his work, discovers a material discrepancy, error, or omission in the work of another Licensee or Certificate Holder, which may impact the health, property and welfare of the public, the discoverer shall make a reasonable effort to inform the Licensee. The discoverer may notify the Board in the event a response does not answer the concerns of the discoverer is not obtained within 40 days.”
As for mandatory mapping, portions of Idaho Title 55-1904 are related to our discussion. According to Records of Survey - When Filing Required, “After making a land survey in conformity with established principles of land surveying, a surveyor shall file a record of survey with the county recorder … within ninety (90) days after completing any survey which: (1) Discloses a material discrepancy with previous surveys of record” and “(4) produces evidence or information which varies from, or is not contained in, surveys of record relating to the public land survey.”
The state of Nevada’s mandatory requirement for mapping discrepancies, Nevada Revised Statute 625.340, states in part: “Record of survey: Filing; disclosures. After making a survey in conformity with the practice of land surveying, a professional land surveyor shall, within 90 days after the establishment of points or lines, file … a record of survey relating to land boundaries and property lines, which discloses: 3. Material evidence which, in whole or in part, does not appear on any map or record previously recorded or filed in the office of the municipal engineer, county recorder, county clerk, county surveyor, or in the Bureau of Land Management of the Department of the Interior; 4. A material discrepancy with a map or record described in subsection 3; 5. Evidence that, by reasonable analysis, might result in alternate positions of points or lines; 6. The establishment of lines not shown on any map or record...” Codes NAC 625.680, 625.140, 625.250 go on to state: “If a professional land surveyor has a material disagreement with the measurements or monumented corner postions of another land surveyor … contact the other land surveyor and attempt to resolve the disagreement.”
The state of Arizona mandatory requirement for mapping discrepancies is found in the Land Surveying Minimum Standards as follows: “7. In the event of a disagreement with the measurements and/or monumented corner positions of another registrant, the land surveyor must make and document all reasonable efforts to contact the other registrant in an attempt to resolve the disagreement. The other registrant(s) shall make all information relevant to the disagreement available, to explain objections, and afford an opportunity for discussions, explanation and corrections necessary; 13. The land surveyor shall ensure that the appropriate survey drawing(s) is (are) recorded whenever any of the following conditions are encountered: E. Any difference as measured between the land boundary or property corner monuments, where the new measured distance, as compared to a previously determined (“record”) distance, where such difference exceeds +/- 0.25 feet, plus 100 parts per million (PPM), of the overall distance between the points.” Again, this rare numerical specification deserves special attention later in this article.
In the state of Indiana, Board of Regulations Code 865 IAC1-12- 11(4) states in part, “when in the opinion of the licensed surveyor, a survey is substantially at variance with subdivision plat, previously recorded survey or monument, recording of the survey plat is required.”
The Montana Rule 24.183.1001 mandates a corner record to handle discrepancies: “Corner Records - Information to be included (i) if portions of the found evidence cannot be reconciled with the record, then the disregarded record must be noted, and if possible, an opinion as to its cause narrated.”
As seen in so virtually all states’ rules, it is the practitioner’s professional duty to make the correct judgment call as to what is a material discrepancy and then follow the particular state’s particular requirement to address the issue, if there is such a requirement. The most common requirement is notification.
The words contact, inform and notify are common words throughout at least 35 state codes for dealing with material discrepancies. Most state boards expect us to cooperate with each other to resolve differences in survey results that reach the level of being significant or material. In my opinion, such requirements seek to protect the public by maintaining professionalism and promoting communication between surveyors. This is by far the most common requirement nationally.
For example, in Massachusetts, Code of Regulations 1986 states in part, “in the event of a substantial discrepancy with the work of another surveyor, contact the other surveyor and investigate the disagreement.”
In North Dakota, the Administrative Code of Ethics, Title 28-03.1-01-13, subsection 4, states in part, “if a registrant … discovers a material discrepancy, error or omission in the work of another registrant which may impact property … discoverer shall make reasonable effort to inform in writing the registrant whose work is in error. Failure to respond shall be considered a violation.”
In Ohio, Sect. 245.15-13-2(b) states, “in the event of material disagreement with another surveyor, contact him.”
Oklahoma has Title 245 Subchapter 13: 15-13-2 Minimum Standards: “(b) Research and investigation - In the event of the discovery of a material disagreement with the work of another surveyor, the surveyor shall make reasonable efforts to contact the other surveyor in an attempt to resolve the disagreement. (c) Minimum technical standards for land or boundary surveys - (9) Where evidence of inconsistencies is found, such as overlapping descriptions, hiatuses, excess or deficiency, or conflicting boundary line or monuments, the nature and extent of the inconsistencies shall be shown on the drawing.”
So far in my research, I have not found a single state that instructs us to resolve discrepancies and issues via a “professional practice committee” (PPC). Not withstanding that, surely a PPC can be a great discussion forum for exchanging viewpoints.
One of my own personal experience of going to a PPC was not for an opinion on a boundary determination; it was simply an attempt to get an opinion or peer review of a code requirement and if I had chosen the correct map document format per that code. My short-form survey plat showed a material discrepancy that had been indicated on a previously recorded map; thus, the state code exempted me from the long-form map. My own county surveyor had been satisfied with the map and document format, and had signed and filed it on the first submittal without comment. Since an irate neighbor had filed a complaint with the state about the survey, I had hoped for additional comments from a group of my peers. The prior month, the group had given me the last 10 minutes of the meeting to present my survey plat. The next month, I returned to the meeting to continue and hopefully receive comments. Two members announced at the start of the meeting that they had met just prior to the meeting and had decided the county surveyor who had signed my plat was wrong, and the matter would not be discussed further at the meeting. At the end of the meeting, a number of people walked up and apologized for the way the matter was handled, with no chance for input from the other 10 people sitting around the table. I realize there may be varied responses from people who wish to protect the turf of PPCs, and I don’t believe such behavior to be a common occurrence, but maybe the state boards know something.
It may be best to limit the meaning of material discrepancy to that of significant gaps and overlaps between properties. The emphasis is placed on the origin and solution for alternate lines that may stem from conflicting descriptions and procedures, rather than from minor measuring differences.
In my state, the County Engineers Association of California has a pamphlet, “Guide to the Preparation of Records of Surveys and Corner Records, 2009 edition.” It offers a definition for material discrepancy as “any discrepancy in dimensions or positions occurring between the current survey and a survey or map of prior record such that alternate or varying conclusions or interpretations might arise between the two.” The guide reminds us that “factors such as the date(s) of the survey(s), the survey methods and equipment contemporary with said date(s), land values and the requirements of the survey(s), would combine to determine the seriousness of the discrepancy, at which time a professional judgment would be rendered to justify the course of action.” The guide is silent on whose judgment shall be used, but maybe the answer is right there in the title. Since the word preparation is used, not the word review, the intent would be for the preparer of the survey map, the actual surveyor, to make such a decision, and not the reviewer.
As we have seen, only two states attempt to define “material discrepancy” by using a numerical value. In Washington, statute RCW 58.09.090(iv) calls “differences in spacial relationships in excess of 0.50 feet from record” a discrepancy. In Arizona, minimum standard 13E calls for recording “appropriate map when differences from record exceed 0.25 feet.”
These two specifications may be appropriate in those states if you are not comparing apples to oranges. Hopefully, these code sections refer to differences between modern-day maps, not retracements of pre-electronic era surveys. It is unrealistic to expect a modern survey employing electronic equipment to match dimensions of a survey performed in an earlier technological era. In general, the measurement of lines by electronic distance meters became common in the industry by the early to mid-1970s. The use of GPS equipment became more common in the survey profession 15-20 years after that. Therefore, it is almost the norm to expect modern-day measurements to differ, sometimes appreciably from the earlier era of mapping. Those old surveys are not erroneous simply due to their inability to achieve today’s precision.
As we recall from our boundary legal principles studies, regardless of variances in dimensions and lack of precision, the original survey is the only truly accurate survey since it set the original corner, thereby fulfilling the intent of the original subdivider.