Traversing The Law: Remember, Surveyors, You Have A Job
The retracing surveyor’s societal role in the United States is that of steward of the nation’s property boundaries. We’ve discussed this on several occasions in this column.
We’ve also discussed, at length, the obligations that the surveyor has when it comes to retracing property boundaries. Even though the principles of retracement surveying have been laid down in no uncertain terms by the courts, in all jurisdictions, many surveyors still don’t “get it” … or they just refuse to embrace this role.
I do blame the teachings of the past for this shortcoming. I myself first became enlightened only after attending law school and then subsequently doing my own research into the subject and verifying that the law is extremely well-settled on the matter. The two fundamental precepts of property surveying are extremely easy to understand: Either, you are an original surveyor laying out brand new lines for the very first time for a common grantor, or you are a retracing surveyor whose only function is to render a well-reasoned opinion on where the lines have already become established on the ground. There is no in-between role.
An original survey is largely a math and measurement task; the object being to put the new lines on the ground in accordance with the intent of the common grantor as precisely as possible. In contrast, retracement surveying does not involve a common grantor and is primarily an evidentiary exercise. Math and measurements play a role, but only as mere evidence to be evaluated along with other relevant evidence in rendering a professional opinion. But, for well-documented reasons,1 the principles of retracement surveying, although ingeniously simple, are apparently extremely hard to put into practice. Again, this harkens back to what we were first taught and actually tested on when we took our licensing examinations.
In my early writings in this column, I was often highly criticized for pointing out examples (many examples) of the surveyor not properly performing the functions of the retracement surveyor and, as a result, actually trampling on bona fide property rights. Defiling bona fide property rights is the antithesis of our stewardship role. The maddening twist is that many surveyors — too many — believe that precisely staking out the geometry in the client’s deed is protecting his or her property rights. However, nobody has ever been able to explain to me how precisely staking out the dimensions in a deed that results in brand-new lines in places where they have never existed on the ground before comports with valid retracement principles.
The practice of precisely setting out measurements from a deed, in the retracement context, can best be characterized as a quasi-original survey; in essence, an arbitrary rule of surveying. I would refer to it as negligence. The problems with this type of practice are legion (we have gone over this ground many times), and I could spend the remainder of this column reiterating the major points. But not having that kind of time and space, I will limit my comments on this point to one question: Where is your common grantor? Your quasi-original survey, while it may please your client who is gaining more land, will displease others who are being dispossessed of land — at least according to the negligent survey.
When the case goes to court and is adjudicated in favor of the existing and established boundary lines (not the new ones), exactly whose property rights were protected? Precisely nobody’s!
Stewardship in Action
Following the principles of retracement surveying and thereby protecting the bona fide property rights of the landowning public is stewardship of the nation’s property boundaries.
If we are not fulfilling this function, then society simply does not need land surveyors. The people can just turn to the GIS professionals to have their deeds precisely plotted out on a map revealing all of the paper gaps and overlaps, and then head straight to litigation without the need to hire surveyors who, if not properly following retracement principles, will certainly add chaos to the confusion. And finding these discrepancies in paper-space is certainly much more cheaply done when compared to finding them in dirt-space.
In the case of Boak v. Beaver,2 we find an excellent illustration of the results of good stewardship in practice.
The “Richie Plat” is a subdivision of the old Redmon Farm in Meade County, Kentucky, and was created at least by 1970. Plaintiff Ingrid Boak purchased Tract 8 of the Richie Plat in 1978. Tract 8 originally consisted of approximately 28.6 acres, which Boak subsequently subdivided, but retains a residence at the northwest corner of the tract. Beaver, McLane and two other defendants (referred to in the case as the “Primary Defendants”) own properties that were subdivided in 1997 out of Tract 7 of the same Richie Plat that once consisted of approximately 30.8 acres. This subdivision is referred to as the “Turner Plat.” Tract 7 adjoins Tract 8 to the north, and the point of contention is the location of the division line between Tracts 7 and 8. See Figure 1.
Tract 7, according to both the Richie Plat and the deeds, has a frontage of 594 feet along Redmon Road, being the westerly boundary. Apparently, from the testimony at trial, the Turner Plat is somewhat non-committal on this point. However, the actual frontage if measured to the historically honored fences (fences that have been in place since the original subdivision of the Redmon farm) is 634 feet. After more than 30 years of occupation to the old fence lines and approximately 14 years of peaceful coexistence with the subdivision of Tract 7 — and even though there was no evidence presented at trial that Boak was deprived any frontage of her own — Boak got the idea that Tract 7 should only have 594 feet of frontage and not 634 feet.
In 2010, Boak hired a surveyor to survey the common boundary. At trial when asked about the significance of the frontage discrepancy, the surveyor “replied that he was ‘not sure.’ ” Note 5 from the survey states that the “surveyor makes no claim to actual property lines” between Boak and adjoiners to the north. On the stand, her surveyor said “he was not offering an opinion regarding the location of the boundary line between the Plaintiff and the Primary Defendants.” 3 Her surveyor also identified the area between the 594 foot and 634 foot lines as “in dispute.” See Figure 2.
In stark contrast, the Primary Defendants’ expert witness testified Boak’s “survey does not make any effort to identify the boundary line between Tract 7 and Tract 8.” He further testified by offering a “detailed explanation of the methodology that he is required to follow as a licensed surveyor in order to identify a boundary.” He “acknowledged that there is in fact approximately 630 feet of road frontage along Tract 7,” instead of the record 594 feet. But that this defect has existed from the beginning and that “nearly all of the calls in the Richie Plat were inaccurate.” In such a situation, “when retracement of a boundary is required that the order of importance holds that monuments, such as the fence which existed in 1970, clearly takes precedence and controls measurements.”
The Primary Defendants’ surveyor further testified that there was no mathematical explanation for the discrepancy, and that this created a “latent ambiguity” in the relevant documents. “Therefore, the question becomes, according to [the surveyor], where was the boundary in 1970 and how was it established?” This is when the Primary Defendants’ surveyor deepened his investigation, eventually turning to the fences as the best available evidence of the original location of the boundary line in 1970, when Tracts 7 and 8 were first created. He testified “that when a surveyor is required to retrace a survey, he is required to first find the line and then to measure it. A retracement of the survey does not mean that one measures to create the line, because the line is already there. Retracement surveys require the surveyor to find the line and then to measure it.” His results were further corroborated by other evidence that he gathered and evaluated.
When is a Fence Just a Fence?
If you want to know what a fence means, you have to ask some questions. This usually means talking to the present owners of the property and possibly to previous owners to find out what they know about the fence.
Mark Redmon testified at trail. He was the original owner of Tract 7 that he bought in 1970 from his great-uncle. He subsequently conveyed it in 1996 to Johnny Kinkead, who caused it to be partially subdivided in 1997 according to the Turner Plat.
“Mr. Redmon testified that there was never any doubt in his mind that the boundary was the fence line. He indicated that Ms. Boak never challenged or suggested that the fence line was not the boundary. Mr. Redmon testified that when he conveyed the property to Johnny Kinkead, he advised Mr. Kinkead that the boundaries were the fence line.” Redmon also testified that in 1988 he bought some cattle to run on Tract 7 and rebuilt the old fence at that time. When doing so, he consulted his neighbors on all three sides — including Boak — and no one objected to the fence location. He left the original corner posts and some line posts in place, and replaced the fence in its original position. In light of the discrepancies in the written documents and the “latent ambiguity” identified by the only surveyor to perform an actual retracement survey in this case, the testimony evidence of Redmon would be — and was — conclusive on the issue of the location of the property line.
There was more, but this is enough to get the point across. The proper performance of valid retracement principles protects the bona fide rights of landowners, and this is the job of the land surveyor in fulfilling the surveyor’s role as steward of the nation’s property boundaries.
This is the only reason land surveyors are licensed in the first place and the only thing that separates the surveyor from the other 800,000 professionals in the overall geospatial community — at least for now.
- Reasons that I have documented in this column for more than a decade.
- Boak v. Beaver, Civil Action No. 10-CI-00269, Meade County Circuit Court, Division 1 (KY2015). This is an unpublished trial court decision without precedential value. We are only considering it because of its clear illustration of the correct application of the principles of retracement surveying and the protection of bona fide property rights as a result of the good practice methods.
- This, of course, begs the question: Then what exactly was her surveyor doing? Certainly not a retracement survey.