I am questioning my understanding of a Texas RPLS responsibility to research and show easements on a boundary survey with a standard certification of "certify that this survey was performed on the ground by me on this date and is true and correct to the best of my knowledge and belief."
I have printed and reread the TBPLS rules and they are very specific to the requirements for determining the boundary and adjoiners and the research to get the deeds necessary for that but I can't find any mention of the surveyors requirement to research easements and/or mineral estates. The rules of boundary construction start on page 48 of the Rules.
http://www.txls.state.tx.us/04_act_rules/rules2010.pdf
The rules say if you use a certification or specify that your survey is done to some other minimum standards then you must comply with those specification. A TSPS Category 1 certification requires the research of both easements and minerals but does not require a Title Report and the ALTA certification requires the plotting of any easements listed in the Title Report but does not require independent surveyor research.
Is the locating of easements a mandatory requirement in a Texas boundary survey?
I'm pretty sure the tsps cat 1a does require the title report be furnished to the surveyor.
As far as a plain Jane boundary, you're correct. However, if it is visible and could affect the boundary then I think you should show it. That doesn't mean you have to hunt up the document (most rea lines aren't recorded in my county) but someone driving across another's tract indicating a possible prescriptive easement, then you should show it.
This is the only reference I could find to research in the TSPS Cat 1A
SEC. 5 INFORMATION REQUIRED: Sufficient information to perform the
survey should be furnished by the client or his agent or acquired for
the client by the surveyor at an agreeable fee. The following data
must be considered and evaluated by the surveyor with respect to
satisfying these specifications. Copies of documents relied upon
should be maintained in surveyor’s records. Also see TBPLS rules for
this subject.
> I am questioning my understanding of a Texas RPLS responsibility to research and show easements on a boundary survey with a standard certification of "certify that this survey was performed on the ground by me on this date and is true and correct to the best of my knowledge and belief."
> Is the locating of easements a mandatory requirement in a Texas boundary survey?
No, of course not. The only reason to research easements and plot them on the survey map would be if one were certifying:
a) that some standard had been met that required identifying easements of record and such visible and apparent uses as would suggest the existence of rightd taken or granted, or
b) that he or she had made a survey of "the property" rather than the boundaries of the property ("the property" is an inclusive term that involves more than merely the boundaries.)
or if the boundary itself was dependent upon the location of an easement, as in the case of a county road, for example.
However, it would be a very good practice to include a note to the effect that the fact that no easements or evidences of use are plotted on the map shouldn't be understood to necessarily mean that none exist, that you were asked to determine only the shape and location of the tract boundaries, not investigate any easements to which the tract might be subject.
The basic idea I think is appropriate to keep in mind is the potential for misuse of a boundary survey map without making it abundantly clear that all sorts of other matters like easements, restrictive covenants, and zoning setbacks may affect the actual use of the land within the boundaries. A client may have requested "just a boundary survey" for some unstated use, possibly including presenting the property to a prospective buyer, but you need to remind both client and all users of the map of its limitations.
Even if you had a commitment for land title insurance in hand setting out all the easements that the title insurer had identified that the land was subject to, you'd still qualify the the map as merely showing those identified on such-and-such a commitment which you relied upon as being full and complete.
How do the needs of the client play into determining the scope of your survey? Our standards apply to all types of boundaries. If the client needs a survey for the purpose of constructing a home, for example, he'd need to know if an easement crossed the property. The needs determine the scope.
Whether the surveyor does the research or hires someone to do it wouldn't matter, but the professional is responsible to make sure the product fills the need.
JBS
> b) that he or she had made a survey of "the property" rather than the boundaries of the property ("the property" is an inclusive term that involves more than merely the boundaries.)
>
This is a very interesting statement that I don't think I have seen before, it's not that I disagree with it I just never made the distinction between "the property" and the "boundaries of the property" such as
"... do hereby certify that this survey was made of the ground of the property legally described hereon and is true and correct..."
Does it mean that this form of certification would imply that all easements and/or mineral interest were shown on the survey sketch?
><
That sounds like a disaster waiting to happen. Farmer Brown Sr. calls and wants to partition his land into three portions to give to his children so you survey the parent and provide a partition survey of the three tracts. Farmer Brown Jr. takes his tract and builds a house on it based on your stakes and then finds out he has built in the middle of a mineral interest drill site. Should you now be responsible for cost of the house being moved?
> > b) that he or she had made a survey of "the property" rather than the boundaries of the property ("the property" is an inclusive term that involves more than merely the boundaries.)
> >
>
> This is a very interesting statement that I don't think I have seen before, it's not that I disagree with it I just never made the distinction between "the property" and the "boundaries of the property" such as
>
> "... do hereby certify that this survey was made of the ground of the property legally described hereon and is true and correct..."
>
> Does it mean that this form of certification would imply that all easements and/or mineral interest were shown on the survey sketch?
I avoid the use of the all-encompassing term "the property" because it involves the whole bundle of sticks, both the land, all of the uses to which it is subject, and any appurtenant rights. I just state that the map "is a true and correct representation of the results of a survey made upon the ground under my direction", addressing the questions of access, easements and other matters of record (such as boundary agreements), and visible and apparent uses separately.
> That sounds like a disaster waiting to happen. ... Should you now be responsible for cost of the house being moved?
No. In your narrative on the survey you state what the purpose of the survey was and you certify to the standards that were met in its preparation. It's quite easy to state the purpose of the survey. The purpose defines what is required.
A boundary survey for the purpose of partitioning the land for transfer to three kids in accordance with the landowner's instructions wouldn't include anything other than the boundaries.
If the landowner came to you and said, I need a survey to partition my land so each of my three children can build a house, now you're talking about a whole new ball game. You'll need to know a lot more than the fact that there is a mineral interest affecting part of the property. You'll need to find out about regulatory issues, easements, utility service potential, and all sorts of other things that may affect the development of the property.
Who else can do that stuff?
JBS
> That sounds like a disaster waiting to happen.
Yes, I agree, Robert. A surveyor really needs to think ahead of the game instead of being a have-it-your-way-type operation. That's part of the reason why land surveying should be a licensed profession instead of the trade activity that some seem to think is acceptable.
I don't know, Kent
He did say "easements". Isn't a right-of-way without fee an easement and if such an easement crossed the land you were surveying, don't you think you would be obligated to show such an easement, especially if the landowner could then use said depiction (and hopefully, area calculation) as relief on his property taxes? I think that if an R. P. L. S. missed that, it would be a very serious matter, one that might even result in a complaint to the Board.
I don't know, Kent
> He did say "easements". Isn't a right-of-way without fee an easement and if such an easement crossed the land you were surveying, don't you think you would be obligated to show such an easement, especially if the landowner could then use said depiction (and hopefully, area calculation) as relief on his property taxes?
Well, easements that cross a property, including rights of way, don't normally affect the boundaries of the property. As long as the map bears the cautionary note about only showing the boundaries of some certain tract or parcel with no statement as to the existence or non-existence of easements, I don't see any problem at all. An example would be a ranch composed of various patented surveys that was also crossed by a public road in which the interest of the public was as an easement only.
The purpose of the map would typically be to exhibit the acreages within the original surveys. Some right-of-way easement is merely a distraction from that answer and typically doesn't affect any mineral leasing.
In Kentucky, the title companies do not guarantee anything
related to minerals, just surface rights.
Isn't it the same in Texas?
> In Kentucky, the title companies do not guarantee anything
> related to minerals, just surface rights.
>
> Isn't it the same in Texas?
No, most Texas land title insurance companies will write policies insuring titles to mineral estates.
In Texas at least when the Minerals are severed from the Surface the mineral owners rights are dominant to the surface owners.
Mineral Interests. The title commitment should reflect whether the mineral estate has been severed from the surface estate. In Texas, the mineral estate is dominant over the surface estate, meaning that unless the owner of the mineral estate has agreed otherwise, it may drill for oil, gas and other minerals anywhere on the tract. That broad right may pose a problem if a university is planning to construct its new building on the tract. Even if the mineral estate has not been severed from the surface estate, there may be outstanding oil and gas leases, which will also limit the use of the tract. If a severance of the surface and mineral estates has occurred or if any oil and gas leases are outstanding, these matters should be carefully evaluated for possible resolution before the closing.
> In Texas, the mineral estate is dominant over the surface estate, meaning that unless the owner of the mineral estate has agreed otherwise, it may drill for oil, gas and other minerals anywhere on the tract.
Except as a practical matter, there is the question of surface damages and the advances in drilling technology that mean that the well heads of oil and gas wells don't have to be directly over the target. You'll recall the provision of the subdivision statutes that allow a subdivider to designate drill sites within a subdivision.
We also have the various City Ordinances which try to limit drilling within the City Limits or at least keep drill rigs minimum distances from homes, this battle is still being fought and I am interested to see how it plays out. If a mineral owner wants to drill and exercise his rights to the minerals does the city have the right to deny that. The US government has decided they do in environmentally sensitive areas but it's not clear if Cities have the same authority. If the cities can limit drilling then does that extinguish the mineral right or surface use rights?
> If the cities can limit drilling then does that extinguish the mineral right or surface use rights?
No, it just limits their development. It's really just a land-use compatibility and possibly public safety issue. I don't think anyone would question whether a city has the right to limit open pit mining in a residential area. The noise and dust from gravel operations are recognized public nuisances that are taken in to consideration in issuing permits.
So, someone may own the sand and gravel, say, right beside a high-dollar residential subdivision but not be able to obtain a permit to mine it. That doesn't mean they don't still own the sand and gravel. They do own it. It just limits what they can do with it, just as many other land use restrictions in cities limit what may be done by the landowner.
