Having seen a great number of surveys in my career I have arrived at an observation that is, to me, somewhat humorous. And I will admit I am just as guilty as the next guy.
For instance, let's say there are six or seven tracts within a 40 or so acre tract. All written over a period of time by the owners themselves. Some are smaller subdivisions of a once larger tract. All described in the finest "farm to courthouse" metes and bounds by God-only-knows whom. All these tracts have existed over a long period of time and the "occupational" evidence is continuous and strong. Meaning there are no "range wars" going on between the adjoins.
Now none of theses deeded descriptions close and mathematically there are gores and hiatuses at every turn, measured in feet and tens of feet. What few "survey" monuments that can be discovered only add confusion to the cacophony of calls. Sometimes it seems like performing a survey in these areas will only foster animosity and hard feelings among the occupants.
The part that I think is hilarious is the way that some of us try and find some harmony between two fence posts and cling, like our life depended on it, to some measured relationship of bounds. And then try like hell to shove everything else into some "junior-senior" position.
I guess what I'm trying to say is in the face of all adversity, we still try and retrace; even when there never existed anything to retrace. Wouldn't it be more professional just to map (nee survey) the uncontested occupation evidence and prepare our plat?
I've done it myself. Try and try and try to find some logic in the conveyances, like there may exist a mysterious and higher answer or solution, when no solution or "master plan" ever existed at all. I guess it's the surveying version of chasing our own tails.:-S
Wouldn't it be more professional just to map (nee survey) the uncontested occupation evidence and prepare our plat?
That would be locating the established boundary, in effect a retracement of the original "owners" survey. Yeah, there isn't any "plat" or survey markers with a PLS number and all that BS, BUT there is the established boundary written in the dirt and the long time and usually original occupation. Why we as surveyors are reluctant to locate the established boundary and report its location on a survey plat is just a mystery, one for the reluctant nerds that want everything to be perfect in a non perfect or even chaotic world.
The biggest risk is not the landowners that are living in harmony on the land but other surveyors that just throw a fit when the math doesn't work just right, there are no called for corners in a simple description, no filed PLS surveys or plats. There is just landowners THAT OWN THE LAND doing what they have the right to do. For many surveyors that is just way over the line.
:good: 🙂
> I guess what I'm trying to say is in the face of all adversity, we still try and retrace; even when there never existed anything to retrace. Wouldn't it be more professional just to map (nee survey) the uncontested occupation evidence and prepare our plat?
> That would be locating the established boundary, in effect a retracement of the original "owners" survey. Yeah, there isn't any "plat" or survey markers with a PLS number and all that BS, BUT there is the established boundary written in the dirt and the long time and usually original occupation. Why we as surveyors are reluctant to locate the established boundary and report its location on a survey plat is just a mystery, one for the reluctant nerds that want everything to be perfect in a non perfect or even chaotic world.
That is a good portion of the problem in a nutshell. When the boundaries have been previously established by the landowners (who are the only ones who can establish boundaries), our ONLY JOB is to retrace them as they have been established!! Our job IS NOT to survey them “where they should have been”. Sadly, a great number of “professional surveyors” do not believe these simple, irrefutable facts, but where do we lay the blame? For many decades we have been told by “experts” who write and publish books and articles spewing wives tales, surveyor myths, legal fiction, and pure nonsense such as:
“Surveyors establish boundaries”
“Before a comer represents a deed corner in a first or dependent resurvey, it must be established using acceptable practices, procedures, and accuracies.”
“A monument can only be controlling is it is called for in the conveyance”
“The position of the monument currently in place must be evaluated against the accuracy requirements at the time the monument was put in place.”
"Surveyors cannot express opinions on “unwritten rights”
“A surveyors duty is only to present the facts and not express an opinion”
"The boundary line to be identified by the surveyor in conducting his or her retracement may be the deed line, a possession line, or a claim of ownership line."
"The deed line is factual, the possession line is legal, and the claim line is mental."
"no surveyor has the authority to identify and locate property boundaries"
Until we rid such nonsense from our professional minds, respected publications, educational institutions, and especially from our daily professional practice, this chaos will only continue. As soon as we realize that our job is to locate BOUNDARIES based on relevant evidence, in accordance with the long established principles of boundary surveying and boundary LAW (which is continually being beaten over our collective heads by the courts), maybe then the visitation of the surveyor will NOT be seen “as a great public calamity”.
Exactly right! Too many technicians thinking they are professionals. They need to read Cooley and Lucas, and the light might come on.
Ok Brian,
What you say makes sense, but, and this is a big but. What is the alternative? Who really surveys in any other way than the current practice? I look at dozens of surveys every month. In 17 years I have never seen even one that said: "Here is the fence. It is the boundary."
I am not talking about deeds that have calls to fences or other physical objects. I am talking about physical and/or testimonial evidence of common grantor, acquiescence and reliance or estoppel. I take it that these are what would be necessary to correctly locate the boundaries described in the initial problem posed by this thread.
I have never seen a single survey that indicated a boundary by these means.
Have I missed something?? Is there anyone out there who has performed such a survey?
Respectfully, Stephen Zitkovich
I ditto Mr. Zitkovich. Great in theory, but is anyone doing this in practice? Survived the litigation?
I put this question to Jeffrey Lucas during a break at one of his talks. He differentiated between "subjective ambiguity" and "objective ambiguity".
He defined "subjective ambiguity" as "the laymen could not know with certainty where the boundary was originally established, but a surveyor could." He defined "objective ambiguity" as "even a surveyor could not know with certainty where the boundary was originally established."
He posited that John Stahl's home state is one of only a couple where "subjective ambiguity" is sufficient for property owners to agree on a boundary and call it good, and where the surveyor would then have to accept that boundary.
He held that in other states, "subjective ambiguity" was insufficient, and that "objective ambiguity" was required. The primary reasoning for this is that establishing boundaries on the basis of "subjective ambiguity" would violate the Statute of Frauds, possible allowing the movement of boundaries over time with no written transfers and no court intervention (as is required for adverse possession, stautes of repose, acquiescence, etc.)
Apologies to Mr. Lucas if I'm misrepresenting... Knowledgeable responses requested!
Utah law can be found here:
In my opinion there is a vast divide between common survey practice (deed staking) and Utah law. It's getting better ssssslllooowwllyyy.
I plan on following the law until they take my license for doing it.
> Ok Brian,
>
> What you say makes sense, but, and this is a big but. What is the alternative? Who really surveys in any other way than the current practice? I look at dozens of surveys every month. In 17 years I have never seen even one that said: "Here is the fence. It is the boundary."
>
> I am not talking about deeds that have calls to fences or other physical objects. I am talking about physical and/or testimonial evidence of common grantor, acquiescence and reliance or estoppel. I take it that these are what would be necessary to correctly locate the boundaries described in the initial problem posed by this thread.
>
> I have never seen a single survey that indicated a boundary by these means.
>
> Have I missed something?? Is there anyone out there who has performed such a survey?
Stephen,
I use these principles all the time. By “these principles” I am referring to boundary and surveying principles and law. Shouldn't we all?
These not only include agreement, acquiescence, estoppel, and practical location, but especially correctly identifying the prior establishment of the boundaries. It is the latter that many people do not understand, and not only are these basic principles left out of most of the sources of surveyor education, most of the “teachers” and “experts” don’t have the first clue. See the quotes I posted above. Most of those are direct quotes from noted “authors” and “experts”. How many of those statements do you believe are true? How many of those statements can you find supported by the law? How many of those statements do we still apply everyday? Why? Because it is what we were taught. It is "the way we do it around here". It has become the norm. But is it RIGHT? Why should a licensed profession be so resistance to changing to doing what is not only right, but what the courts and landowners EXPECT us to do?
In the area I work in, there are nearly no records of past “surveying”. Nearly all the descriptions are metes w/o bounds and very, very seldom will you find a call for a monument. It is as Leon explained (he lives in a similar area), the landowners did their own surveying (or hired an unlicensed person to help), and wrote their own descriptions (sometimes maybe with the help of the assessor or a title company employee). The landowners then go upon the land, mark off their respective parcels, build fences, garages, irrigation systems, etc., and live in peace until the “expert” measuring surveyor shows up and sends the entire area into uncertainty.
In these situations it is very important that a retracing surveyor understands how boundaries are established and who can establish the boundaries. Surveyors do not establish boundaries. Records of surveys do not establish boundaries. The landowners establish boundaries. Once these principles and laws are understood, and the surveyor learns how to gather the appropriate evidence and apply these principles and most importantly can intelligently explain his professional opinion to the landowners, a “whole new world” opens up.
Believe me, I fully understand why many surveyors are afraid to properly apply these principles and instead keep on “slapping math on the ground”. The former is not understood by many colleagues and licensing boards. Who has several years and tens of thousands of dollars to defend their survey in front of a licensing board who doesn't know, doesn't want to know, and generally is filled with people who are under no expectation of knowing the law and surveying principles. I've been there, done that. It wasn't fun or cheap, but it was the right thing to do.
So the safe thing to do is keep being slaves to CAD and measurements. But at what cost? Are abundant pincushions, confusion, litigation, and roving boundaries worth it? Worth it to who? What about the landowners (you know, the ones we are supposedly protecting)? Yea, the surveyor may be safe for a while saying "the deed, Autocad, and Trimble or Topcon made me do it", but eventually it will catch up to us. In some ways it has already caught up with us; low pay, little recognition and lack of acceptance as being a "true" profession, and often outright scorn is what we have brought on ourselves.
But then comes another impediment, remember, a very, very, small minority of the surveys we perform are challenged in the courts. Usually the landowners accept the incorrect retracement, shake their heads in disbelief, and move their improvements and go on with life. A great many others simply ignore the modern survey, pay the bill, and our profession gets another invisible black eye.
Brian
I couldn't have said it better, and I tried. Thank you, you make a concise point.
Brian,
Thanks for the lengthy reply.
I would like to see some such surveys. Are yours usually recorded and online in a public repository?
Stephen
Mr. Z
Here is portion of an aerial transmission project we did a few years back that might be a good example of what I was trying to explain:
This is but one section of almost sixty miles of line that we bounded and prepared new RW documentation. The new RW was monumented in the field and the corners filed.
A calculated line from the west 1/4 cor. to the east 1/4 cor. falls some 80' north of the pull posts at the "center of section". There is a significant PI at each 1/16 corner along this line. The distance between each 1/16 corner varies significantly in the + or - range of 30' or so.
This 1/2 section line was originally ran by the GLO in 1874 and the records indicate the line as 80.40 ch. with the 1/16 corners placed evenly on a true line. The only existing monument found was the west 1/4 corner. A bearing tree from 1874 remained.
The line is fenced and has been since approx. 1890 as indicated by the 80 year old grandson of the original patentee. There are cross fences at every 1/16 corner.
As I said if the line was run today using only the GLO notes, the center of section would be 80' north of the fenced center posts, and some 30' west. Two of the corner posts at the 1/16 corners were the original virgin growth cedar posts, reported to have been placed in 1890. We found no other evidence of the original survey except the accepted occupation and a corner on the west end.
So I guess one could interpret this survey as, "Here's where the fences were so here is where I set the 1/16 corners." Although a simplistic explanation, that is where I determined the boundary to be.
> I would like to see some such surveys. Are yours usually recorded and online in a public repository?
>
All my surveys are recorded. However, none of the counties I routinely practice in have anything online.
The surveys look just like most of what you are used to seeing, perhaps with more notations such as "N 01°19'30" E - 505.20' Mea, (rec = North 30 rods)". What I have lacked in the past is providing enough notes and narratives identifying and explaining the evidence used and even lack of evidence in presumptive situations.
What I don't understand is why surveyors that are following the law seem to be expected to use more narratives, notes, and explanations outlining their procedures, logic and methods used than those that are not following proper survey principles and boundary laws and merely "slapping math on the ground" in violation of what we are tasked to do. Go figure.
I'd suggest, in the surveys we perform tomorrow and in the future, that we start paying attention and being careful not to fall into the above stated surveyor myths and legal fictions and start practicing as we should. Most surveys we currently perform are done correctly, it is the few that have ambiguities and complications that we tend to fall back on the myths as stated. Why? Because it is human nature that when things get complicated and confusing we fall back on what is comfortable. The key is becoming informed and experienced enough so that the correct procedures are the "comfortable" ones.
It really isn't that hard once you throw out the non-truths. The hardest part is first admitting that we have been practicing below what the landowners, courts, and our profession expect and deserve. That was a tough one for me, as I am sure it is and will be for everyone else willing to improve themselves. However, I think most would agree that if we are not learning and improving, why are we doing it?
Personally it has required thousands of hours over more than 14 years researching, reading, questioning, re-reading, more research, and pestering John Stahl enough to tax even his patience. And yes, even taking some heat along the way. I spent 3 years and over $60,000 dollars defending my good name and practice over this. Yes, I finally won, but at a great personal and financial cost, but it wasn't all in vain, I am definitely more knowledgeable than I was before the idiocy started.
Dang, I've been quite long-winded today haven't I?
Lucas is correct. The problem with the subjective theory is one could sell "the west 5 acres". Then later we have to ask what they meant by that when occupation is to a fence that encloses 4 acres. The grantor predictably says they meant to convey the area enclosed by the fence. Under a subjective theory the ambiguity is construed in favor of the grantor rather than the grantee. The theory extended to agreed lines does work well in limited circumstances where the folks on each side agree with each other about the location. In that limited circumstance is allows a surveyor to simply document their testimony and put the line where they want it, regardless of other evidence.
I posted such a survey last fall and it immediately got attacked mostly not for the content but because it didn't meet some ones drafting standards (good way to bury it, a survey done according to law).
I finally took down every thing I'd posted on forums that was being served by my website for about ten years.
Surveying by the law from state supreme courts is not much appreciated. Like I said in a previous post you can survey by the law until they take your license for doing it. Land surveying practice has gotten so far off track the last say 4 decades that the law and track is not even recognized. It's helped along by the title industry and public officials that are even less clueless (these folks don't even need to leave the office to slap math around). Land surveyors as a whole do more damage than good to the US land tenure system. Justice Cooley said it correct when he wrote that land surveyors are opinionated freaks of nature.
I'm seeing the tide change a bit but have serious doubts that the land surveying profession will be able to make the changes needed to survive as a needed function of society. The paper title may actually win the battle and almost all boundaries be forced to the math no matter what the damage is done to the landscape or how many centuries the occupation has been in place. I just hope surveyors are not dumb enough to be the hit men used to do the work but it seems they willingly volunteer other than being force drafted to do the killing.
I ditto Mr. Zitkovich. Great in theory, but is anyone doing this in practice?
Yes.
Just finishing up a 1/16 corner record holding old occupation evidence. Does it fit the perfect section breakdown? NO!
Like most sections that are this old do I have all 5 originals? NO!
As far as survived litigation, NO!
Why would you be taken to court when you are doing it correctly? Who's going to sue you some "perfect math staking surveyor"?
doubtful!!
Actually the courts are filled with cases that protect the established boundaries.
> It's helped along by the title industry and public officials that are even less clueless (these folks don't even need to leave the office to slap math around).
> I just hope surveyors are not dumb enough to be the hit men used to do the work but it seems they willingly volunteer other than being force drafted to do the killing.
Leon I agree. However, before demonizing the title industry too much, maybe we ought to stop and think about where most of the blame should lie. Who taught them the nonsense of "deed lines" aka "title lines" vs. boundary lines? In most cases it has been the surveying industry who has taught them this nonsense. If we had been doing our jobs correctly for the past 40 - 50 years, we wouldn't be having this problem. How many surveys do you see each week that show "deed lines" and "title lines" and "occupation lines" and never show a proper resolution to the ambiguity? I see them every day - heck I used to do this too! That is how I was taught to survey! That was the norm, it was "just the way it was done around here". My former "mentor's" policy was that whatever line worked against the client (" CAD generated deed line" or "occupation line") that was the line he held and monumented. Yes, the idiocy still lives on as another of his "students" now owns that business. Someone please show me the basis in law for that "logic".
I've seen that a lot. If the clients "whatever" line doesn't make it to the old fence they will stake the boundary in the field. If the "whatever" line extends over the fence (stuff going to hit the fan) they will stake it in the fence but maybe show the line (among the list of lines) on the other side of the fence. I think the logic is you can screw your client and get away with it but if you screw the neighbor there will be heck to pay. Is this surveying according to the law, no, but why should the law have anything to do with it. This isn't boundary surveying, this is surveying to generate fees. Professionalism doesn't have anything to do with it.
Yep. But that is all well and good (so we tell ourselves) until we are called to later survey the neighbors property. That is when the **** tends to hit the fan. :excruciating:
Talk about kickin' the can down the road.........
Brian
Thanks for the continuing explanation. The example proffered by Paden Cash was impressive. I don't think that I have seen any thing like that in my neck of the woods.
As you and Leon continued to bemoan the present state of surveying and boundary location (or the lack thereof), a thoughts stuck me.
I believe that the court cases that you cite are quite old. Justice Cooley certainly is. Laws can change. Have the laws changed? If not by statute, by practice?
Does society tell us how it wants us to act by how it litigates and punishes us?
Stephen
