I am fairly often asked whether I can produce a plan showing the division of someone's land (i.e. be the "subdividing surveyor"), where the entirety of the land has been retraced at some point in the past by another surveyor, sometimes still in business, sometimes not (who I will call the "retracing surveyor").
I understand that a retracement survey is not a conclusive determination of the boundaries of a property, and that to the extent that the retracing surveyor has erred in his determination, this error can be the cause of damages, potentially substantial, and that the retracing surveyor can be liable for those damages. As the concept of privity of contract appears to have been eroded by the courts over the years, this potential liability extends even to parties by which the retracing surveyor was not employed. And, statutes of limitations which might otherwise prevent a suit for damages against a retracing surveyor based on too many years having passed since the survey was conducted, might also fail to protect the retracing surveyor from liability if the "discovery" of the error is the trigger upon which the statute of limitations rests. So, the retracing surveyor has an obligation and duty to exercise a degree of care that is at least that of an ordinary prudent surveyor practicing in his area in his effort to determine the location of the boundaries. His failure to do so may result in unfortunate consequences.
But what of the subdividing surveyor that follows a retracing surveyor? Should he be, or is he, required to "reinvent the wheel" and tell his client that he has to perform his own retracement of the boundary of the parcel before subdividing it? (Potential clients don't really understand that - they "already paid for a survey!"). I can understand the subdividing surveyor's hesitance to potentially take on liability by accepting and relying upon the work of the retracement surveyor.
Still, can the surveyor effectively limit his liability in such circumstances?
Some methods for limiting that liability might be:
A) evaluating the work of the retracing surveyor, by:
- [INDENT=1]considering the reputation of the retracing surveyor[/INDENT]
- [INDENT=1]considering the plan which he produced[/INDENT]
- [INDENT=1]discussing the plan with the retracing surveyor (if he is still alive and willing).[/INDENT]
- [INDENT=1]while carrying out the work, evaluating the position of monuments set by the retracing surveyor relative to other physical objects[/INDENT]
- [INDENT=1]while carrying out the work, being alert for signs of inconsistencies, i.e. old wire fence or stone walls that do not coincide with the retraced boundaries.[/INDENT]
B) expressly stating in the contract that his subdivision survey will be based upon the prior survey, and that the work is subject to any errors or omissions shown on the prior survey.
C) expressly stating in the contract that the client understands that there is risk associated with relying upon a prior retracement survey, and that any damages that may be caused based upon this reliance are not the responsibility of the subdividing surveyor
D) expressly stating in the contract that the client, and his successors and assigns, will "indemnify and defend forever" the subdividing surveyor to the extent that his work depends upon the prior survey and to the extent that the errors shown on it are carried forward to the subdivision.
E) stating on the plan that "This survey is based upon the prior survey and subject to any errors or omissions that may be shown thereon".
There are other methods for limiting liability as well, such as providing a dollar limit for liability in the contract. But, if the terms of the contract make it clear that reliance upon the prior survey is not the responsibility of the subdividing surveyor, then such a dollar limit may not be applicable.
Separately, there is the question of what is required by the state's licensing board. Even if the above approach was used to limit one's liability, could it even so result in the loss of one's license to practice?
I would be very interested to hear other's thoughts about this subject.
Al
Don't think it would fly in Ga. You stamp, you own.
A typical PLSS scenario plays out as follows. In 18XX the government surveyors created Section 14. About 15 years later the County Surveyor established the center of section corner thus bringing order to the chaos caused by the oversight of the government to do so prior to providing land patents for quarter sections. At that point, the perimeter of the specific quarter section within Section 14 was set. Some time after that Farmer John sold the south half of his quarter section to newcomer Farmer Frank and had it surveyed by the County Surveyor. Eventually, one of Farmer Frank's descendants conveys a metes and bounds tract out of that south half of the quarter section. Twenty years later the nearby small town has grown into a city and needs to expand onto that metes and bounds tract. So the owner-developer has a surveyor create a plat of subdivision with lots, blocks, streets and alleys. Various lots and blocks are sold. One purchaser buys all of the lots in the south half of a specific block, maybe 12 of them each being 25 feet wide. He proceeds to sell lots and fractions of lots, by description only, to willing buyers. One ends up with Lots 16,17,18 and the west 11 feet of Lot 19. Some years later the adjoiner who has the remainder of Lot 19 and other lots has his property surveyed. Later the adjoiner who owns Lots 13,14 & 15 has his property surveyed. The owner of the tract between the two surveys now has monuments at all four of his outer property corners. He then calls you to come out and split his property along the line between Lots 17 and 18.
Question: Do you accept the four monuments and divide his property based on them? Or, do you reconstruct those two prior abutting surveys? Or, do you go to the perimeter of the entire subdivision and determine where the block corners were to intended to be and then reduce to your opinion as to the location of his current property? Or, do you recreate your own opinion as to the corners of the entire section and its proper subdivision down to the point where the subdivision was created and then further subdivide it down to the lots and blocks?
These are the questions that plague all boundary surveyors. What is certain? Why is whatever that is considered to be certain? Who would claim it to be uncertain and why? What is the inherent financial liability to the new surveyor taking on a project? What is the mathematical probability of any suit charging malpractice to be filed against said surveyor over the remainder of his lifetime?
Holy Cow, post: 334102, member: 50 wrote: The owner of the tract between the two surveys now has monuments at all four of his outer property corners. He then calls you to come out and split his property along the line between Lots 17 and 18.
Holy Cow, great example of a typical situation. I don't work in the PLSS states, but I agree nonetheless that your example illustrates many of the difficulties that boundary surveyors encounter. However, it is not precisely the situation I was describing. In the case you describe, it can be IMPLIED that the owner of the tract between the two surveys has had his tract surveyed, but the surveys were not done for him, but rather for abutting parcels of land. In the situation I was describing, a retracement survey of the subject tract had already been performed by another, and the subdividing surveyor is asked to divide that land. In the situation that I had described, the retracing surveyor had already wrestled with (or, should have wrestled with) many of the sticky questions that you raise.
Of course, I acknowledge that those who performed retracement surveys of abutting parcels should also have wrestled with the same sticky questions, so maybe it is immaterial whether the survey was done for the subject or the abutting properties.
Thanks for your post.
Big Al, post: 334100, member: 837 wrote: considering the reputation of the retracing surveyor
This is the one I most heavily rely upon.
I practice in Massachusetts, where the code governing professional practice has been recently and substantially revised.
250 CMR 6.02(2)(f) states:
"When the development of a Work Product is based upon a prior survey, the resulting
Work Product is presumed to comply with the provisions of these standards, regardless of
the standard of care associated with the prior survey."
The regulations go on to detail the standards for research, field work, computations, monumentation, work products, etc. While the above regulatory section does appear to indicate that a Work Product can be based upon a prior survey, it does not seem to protect the subdividing surveyor from any errors that may be shown thereon.
Everything we do is based on relying on the work of our predecessors. Excluding the work of certain predecessors may be desired for whatever reason seems convenient at the time. The problem is trying to explain that decision to a judge and a room half full of those who oppose your results from excluding said predecessor's work. "I heard he was a drunk.", will not suffice. Mathematical perfection is not an acceptable excuse when judged by those who chose to run away from math-based courses in their formal education. Whose rights are trampled upon when you exclude said predecessor's product? Why should they not bring suit against you?
General thoughts brought on by years of questioning myself and the work of my fellow surveyors.
If I subdivide a parcel, I must find the corners called for by deed, and verify that the corners
are in the correct location.
I know that many Massachusetts surveyors will use a prior recorded survey as a base boundary;
then subdivide the mathematics of the base boundary;
and place a note on the plan that reads "REFERENCE PLAN" and list the title of the recorded plan that was used.
Often a Massachusetts surveyor will subdivide a survey that was done by "an old timer" that was his mentor,
or subdivide a map brought to him by a client.
As far as I am concerned, the young surveyor is asking for trouble.
The last surveyor to "touch" the survey is responsible for all prior mistakes.
Lost quite a few subdivision projects because my fee estimate included surveying the parent perimeter- "but, its already been surveyed..."
I don't care if Lucas, or Kent, or Robillard, or Clark, or Dura already surveyed it, I'm going to satisfy myself that I'm starting with a reliable (to me) boundary.
(No offense intended to the above named folks)
Sergeant Schultz, post: 334126, member: 315 wrote: Lost quite a few subdivision projects because my fee estimate included surveying the parent perimeter- "but, its already been surveyed..."
I don't care if Lucas, or Kent, or Robillard, or Clark, or Dura already surveyed it, I'm going to satisfy myself that I'm starting with a reliable (to me) boundary.
(No offense intended to the above named folks)
Same here Sarge!
Sergeant Schultz, post: 334126, member: 315 wrote: my fee estimate included surveying the parent perimeter- "but, its already been surveyed..."
How far back do you go? The parent parcel? The parent of the parent? The parent of the parent of the parent?...
Jim Frame, post: 334138, member: 10 wrote: How far back do you go? The parent parcel? The parent of the parent? The parent of the parent of the parent?...
Aye laddie, and there's the rub, eh?
Doesn't that question pertain to any retracement survey? Isn't knowing where/when to draw that line part of being a professional? Personally, I stop when I'm reasonably certain my fat a$$ won't end up in court or spanked by NYSED/OP because of a colleague's/predecessor's screw-up.
Liability may be a state to state BOR decision......and/or State Law.
My belief is that when you accept something as is that you now own it like it is yours and are completely liable for it.
You can never reduce the amount of liability by excluding anything that you are required by your License Act and expected to preform according to your BOR.
To complete any survey, check everything, even what you did before.
Never assume anything..........
I consider everything I survey a retracement survey. Very rare to be the original surveyor these days. Most monuments used to control the new parcel must be retraced.
A Harris, post: 334152, member: 81 wrote: Liability may be a state to state BOR decision......and/or State Law.
My belief is that when you accept something as is that you now own it like it is yours and are completely liable for it.
You can never reduce the amount of liability by excluding anything that you are required by your License Act and expected to preform according to your BOR.
To complete any survey, check everything, even what you did before.
Never assume anything..........
I consider everything I survey a retracement survey. Very rare to be the original surveyor these days. Most monuments used to control the new parcel must be retraced.
"My belief is that when you accept something as is that you now own it like it is yours and are completely liable for it."
Walt Robillard told me this circa 1984. I've never had reason to doubt it...
Jim Frame, post: 334138, member: 10 wrote: How far back do you go? The parent parcel? The parent of the parent? The parent of the parent of the parent?...
As I understand it, the laws pertaining to the licensing of the surveying and engineering professions, were passed in order to protect the public. Indeed, if I, hanging my shingle as a surveyor, fail to perform an "appropriate" degree of research and field work related to a boundary retracement that I have agreed by contract to perform, and as a result of my failure to perform such research and field work, I come to an incorrect conclusion regarding the boundaries, and further that my client, or someone purchasing from him, acts in reliance upon my conclusion, and thereafter suffers damages, it could be argued that I should not be allowed to practice land surveying, for my behavior does not appear to be consistent with public policy.
But, considering the customer's perspective (the public we are chartered to protect), isn't there also, or shouldn't there be, a measure of concern for the economy of the customer? Say, for pure hypothetical example, that a property owner has a 1 acre tract of land, and wants to put up a garage. The parcel is in a very old part of town, and retracing the boundaries will require, according to the rigorous standards of the jurisdiction, thorough research back to the point of common ownership and field work searching for the ancient remains of monuments and their witnesses, fences, etc. As time goes on, performing that work will have a tendency, I think, to become more and more expensive, as the remaining evidence is deteriorated further. And, let's say the going price on a survey in this old part of town, according to the standards of the state, is $5K. And, let's say, the owner of the 1 acre parcel of land figures that he'll make the investment, dear though it may be, so that, once and for all, he and others purchasing from him, will know where the boundaries of the property are located. And so, he hires a surveying firm to perform said survey. He builds a garage on the basis of the survey, and all appears to be OK.
Several years later, the firm that performs the first retracement survey, because of a lagging economy, and the retirement of the principal PLS, goes belly up. A few years after that, the owner of the 1 acre parcel wants to put up a modest addition on the other side of his house, and goes to the building inspector with a plan for that addition, and shows the building inspector the prior retracement survey, but is told by the inspector that he needs someone to confirm the location of the boundaries on the ground, and that the proposed addition will comply with zoning setbacks, etc. The owner of the 1 acre parcel then attempts to contact the firm that performed the retracement survey, only to find out that the firm is no longer in business. Dismayed, but still wishing to go ahead with his plans to build the addition, he contacts another surveying firm to obtain the necessary services, but much to his surprise, is told by the surveyor at the new firm that despite his investment in a survey just 10 or so years earlier, and as required by the licensing regulations and technical standards which apply to his work, the new surveyor will have to come to his own conclusions about the boundaries of the property, and therefore will have to begin again with the research and field work necessary to support his ultimate conclusions. And, he informs the owner that he might even come to a conclusion which is different than the prior surveyor. The cost of the new survey, because of inflation and other factors, is quoted at $7K.
I could go on and on with this story, but my point is to raise a concern that at some point, the scale might be viewed as tipping in the other direction with respect to "protecting the public".
As I understand it, prior to laws related to the licensing of engineers and surveyors, the fundamental basis for determining whether an engineer or surveyor was liable for some error was the specific terms of the contract applicable to the work. Upon the basis that a property owner and a surveyor were each free to choose and negotiate the terms of their contract, it would have been possible during this time, and perhaps even proper, for the 2nd surveyor, in the story above, to base his survey upon the work of the 1st surveyor, and by contract, limit his liability thereby (as enumerated in one or more of the ways described in my original post). And, a property owner, understanding that there is risk associated with relying upon a prior survey without having performed independent research and field work necessary to come to a fully independent professional opinion of the location of the property lines, could weigh the pros and cons of such a proposal - namely, the pros being a lower price, and the cons being an increased risk that reliance upon the prior plan might result in damages. He might consider his perception of the quality of the prior survey, the type of work that he saw or was told had been performed, and the reputation of the prior surveyor. He might seek out advice from an attorney or another property owner facing a similar situation. And, in the end, he would be free to accept or reject the proposal of the 2nd surveyor.
But, if he accepted it, and let's say suffered damages thereby, couldn't it be fairly concluded that he should have to bear the burden of his decision? He was advised of the risk, and took it. Has the public been harmed by this in any way? He freely chose this path, knowing that there were risks, and he is one of the few (let's say 1 in 100) unfortunately, whose decision resulted in a bad outcome. Is it better for the public collectively to pay for 100 new and independent retracement surveys, or for this one individual to take his chances on a lesser standard, and unfortunately suffer a bad consequence?
But, now that most jurisdictions have passed laws governing the practice of surveying, the question of what the surveyor is responsible for has become subject to more than just the contract. He is responsible, still, for complying with the terms of his contract, but is at the same time also obliged, for the sake of "protecting the public", to comply with the technical standards of his jurisdiction, else potentially lose his license as a result of some complaint. As a result, the surveyor, in order to stay in practice, and keep his license, is inclined to comply both with the requirements of his contract, and with the requirements of the state licensing laws. As a result, he is not as free as he was before the adoption of the licensing laws.
And, as in Massachusetts, as the regulations governing the practice of surveying move more and more toward a standard of care which is highly protective of the public (i.e. there will be little tolerance for errors on the part of the practicing surveyor), the tendency will be for the cost of surveying services to increase. Perhaps even to the point where the total cost of surveying services (collectively) exceeds the damages that the public might otherwise suffer thereby.
Personally, I like the idea of using the contract as the basis for determining and assigning responsibilities. I have no problem with standards, and they can quite readily be incorporated into a contract. But, the idea that all surveys by licensing regulation have to meet the ultimate test (perfection), is one that seems at some point inconsistent with good public policy, especially as time marches on.
Thanks for all the good discussion to this point, and I look forward to further comments.
Overregulation is the current standard for almost everything in this today. We are regulating ourselves into oblivion while others, not hindered by such distractions, get along quite well. Another local service company (not survey-connected) went out of business recently because of practices dictated to them by Federal rules. They chose to close their doors rather than adhere to the BS. The owners will do fine with their other profitable ventures. Their former employees, on the other hand, are wondering how to pay their utility bills.
Idealism sounds great, it just doesn't work out very well in the real world.
Holy Cow, post: 334171, member: 50 wrote: Another local service company (not survey-connected) went out of business recently because of practices dictated to them by Federal rules.
Overregulation, or simply market forces at work? It's often a matter of perspective.
When considering how far back to go I stop at the point where, because of realiance and information in the public record, I would accept an existing corner even if I would have put it somewhere else.
For Jim Frame. No. There was virtually no significant competition for the business they were operating for a large distance. Quality goods, reasonable prices and a loyal clientele. They simply refused to raise the price of their goods by a factor in excess of 100 percent simply to stay in business while complying with certain mandates relative to their employees. Employees who were happy and loyal to their employer.
In large part, this discussion centers on the concept of negligence - there is a point at which, when performing a survey, failing to exercise a reasonable degree of care is imprudent. I was looking up the elements necessary to prove negligence (generally - duty, breach, causation, and damage), and came across the following page which gives an interesting economic analysis on the subject:
http://cyber.law.harvard.edu/bridge/LawEconomics/neg-liab.htm
Especially interesting to me was the following graph, where the y-axis might be viewed as the dollar cost of a survey, and where the x-axis might be viewed as the standard of care exercised on the survey. The B line shows that the cost of a survey increases as the standard of care increases. The PL line (the product of (P) the probability of loss, and (L) the dollar value of the loss) represents the risk - the idea that as the standard of care increases, the risk and the consequent cost decrease. And, at the point C*, there is reached the optimal balance point - that point, in surveying, where the risks of loss are balanced by an appropriate standard of care. As I see it, and as is suggested by the article, this optimal point would be beneficial for both the surveyor and his client.
