If you had a yellow dozer, that you could just drive down the property line.... you'd solve all the problems! (must be yellow)
N
imaudigger, post: 344720, member: 7286 wrote: I cannot imagine how busy the county surveyors office would be if they were involved in resolving private boundary disputes these days. It would be a nightmare.
For a few years I ran the survey department for the firm that WAS the County Surveyor back in the day. Sitting and reading the old files was my favorite pastime. The firm was in pretty good demand in the fifties and sixties for boundary resolution. If the "County Surveyor" did the job, most folks would just roll over and give up if they had an issue. If it made it to court, a lot of times a summary judgment was entered. Mainly because the County Surveyor was the one the courts relied upon to settle disputes anyway.
PS - Don't ask Stephen Johnson what he thinks about that firm...unless you've got enough time to listen to him cuss a great deal. The firm had been ran by "the old man" and was a solid outfit. After the old man passed away "Junior" started running things and ran it right into the ground. Stephen was there before I was and I think the company still owes him thousands of dollars.
And Stephen, if you read this, hope I didn't open any wounds by posting this.....
JBStahl, post: 344695, member: 427 wrote: While it may seem that the State Board might be the logical ones to run to, keep in mind that they are not a civil court and cannot affect the boundary locations between the landowners. The only authority they have may extend to a disciplinary action against the surveyor for failure to conform to some standard of practice or professional misconduct (not to be confused with "negligence").
Any State Board action will do nothing to resolve the problem on the ground. That problem must be dealt with on a boundary-by-boundary process taking all of the evidence of reliance by the landowners in each case with each individual boundary.
There's a big difference between boundary law and administrative policies.
Exactly. What the administrative action against the surveyor does is give the next surveyor on the scene the credibility of the licensing board behind him when he explains why the later monument should not have been set in the first place. In some cases, specific circumstances which have occurred in reliance on the improper monument may warrant that it continue to be recognized as marking the boundary, but I suspect that would be the exception rather than the rule. As you, I, and several others have said, case-by-case basis.
While professional misconduct is not synonymous with negligence (an act of professional misconduct might be negligent conduct, but it can also occur as an act of fraud, slander, improper disclosure of confidential information, or in some cases, simple professional discourtesy), but a failure to conform to a valid standard of practice is negligent conduct if that failure had a significant potential to cause harm, there were no exigent circumstances that warranted deviating from the standard, and if in exercising reasonable care expected of a surveyor in similar circumstances, the deviation represents something more than a very minor oversight.
I have found several cases in which courts use Standard of Practice and Standard of Care interchangeably, and vaguely recall at least one case where the court opined that the terms were synonymous, but couldn't find that case recently. I don't recall ever coming across one where the court opined that the two terms meant different things. If you have a cite either way, please post it (I have something coming up that an opinion either way would be very helpful).
Our Board, in the Code of Regulations (Board Rules), defines negligence essentially identically as do the civil courts, but Board staff has tried to sell the idea that the Standard of Care and the Standard of Practice are very different things as it pertains to the expectations of the surveyor in the performance of his duty, yet they have been unable or unwilling to articulate how that translates to how the surveyor should practice so that he can expect to be seen as having performed his duty properly in either an Administrative or Civil Court forum. It seems to me that they toss this idea around as a smokescreen to explain away glaring inconsistencies in enforcement. But that's an entire set of topics unto itself.
teffinger, post: 344546, member: 2642 wrote: It's my understanding that when a common grantor subdivides and sells land, the original survey and the monuments set during that survey define the lots. The lots were laid out in blocks with common area surrounding the blocks. Sometimes the blocks of lots got off a little so when you try to lay them out again based on the boundary, you discover increasing errors as you work through the block. The original Surveyors traversed and closed the blocks so the monuments in the blocks agree with each other. The error in some blocks is large (50'-60'). Some of the lots in the blocks have been developed so when you lay them out "correctly" based on the boundary, you cause all sorts of problems. It has been the policy of most of us to hold the original pins and allow the error to be "absorbed" in the surrounding Common Areas. When the blocks abut the boundary of the subdivision, the monuments along the boundary are treated as "closing corners" allowing them to be adjusted to the true boundary. I'm thinking that if we tied out the errant corners knowing that they were set using improper methods, then remove them, we would be preserving the evidence but not leaving the crime. Does that make sense?
Tom
Read Lucas' book, 'Pincushion Effect' Specifically the chapter with the fictitious Garfunkel's Subdivision. It will get you thinking! Jp
eapls2708, post: 344788, member: 589 wrote: Exactly. What the administrative action against the surveyor does is give the next surveyor on the scene the credibility of the licensing board behind him when he explains why the later monument should not have been set in the first place. In some cases, specific circumstances which have occurred in reliance on the improper monument may warrant that it continue to be recognized as marking the boundary, but I suspect that would be the exception rather than the rule. As you, I, and several others have said, case-by-case basis.
While professional misconduct is not synonymous with negligence (an act of professional misconduct might be negligent conduct, but it can also occur as an act of fraud, slander, improper disclosure of confidential information, or in some cases, simple professional discourtesy), but a failure to conform to a valid standard of practice is negligent conduct if that failure had a significant potential to cause harm, there were no exigent circumstances that warranted deviating from the standard, and if in exercising reasonable care expected of a surveyor in similar circumstances, the deviation represents something more than a very minor oversight.
I have found several cases in which courts use Standard of Practice and Standard of Care interchangeably, and vaguely recall at least one case where the court opined that the terms were synonymous, but couldn't find that case recently. I don't recall ever coming across one where the court opined that the two terms meant different things. If you have a cite either way, please post it (I have something coming up that an opinion either way would be very helpful).
Our Board, in the Code of Regulations (Board Rules), defines negligence essentially identically as do the civil courts, but Board staff has tried to sell the idea that the Standard of Care and the Standard of Practice are very different things as it pertains to the expectations of the surveyor in the performance of his duty, yet they have been unable or unwilling to articulate how that translates to how the surveyor should practice so that he can expect to be seen as having performed his duty properly in either an Administrative or Civil Court forum. It seems to me that they toss this idea around as a smokescreen to explain away glaring inconsistencies in enforcement. But that's an entire set of topics unto itself.
While a violation of board rules is not negligence, it is admissible evidence of malpractice in a subsequent civil action. And vice versa. I like that the County surveyor is trying to address problem areas and bring them to the attention of surveyors in the area and the board. If it were a difference of opinion in retracement evidence, it would seem the surveyor would respond with their explanation of evidence held and rejected and why. Absent that, it looks like either knowingly re-subdividing the area for economic advantage in fees per lot, or not knowing the first thing about boundary surveying. Regardless of where the true boundaries are now, either situation gives grounds for both board and civil scrutiny. I don't have any cites for you but would equate standard of "care" with a civil action because it suggests a duty to another that is not exactly measured and requires a judgment by judge or jury, and standard of "practice" with a board action because it suggests tasks that could be clearly shown to have been done or not.
1: You could move to another county.
2: you could set these as caps on the bad irons, feel free to stamp an RLS number on them so Kent's happy:
We had a relatively (all-too) prolific former surveyor (1960s - 1980s, he was cheap and his technology old, as in chain and transit) around here, and here's the dirty little secret about his plats - they can have a foot or so from the calculated position. Sometimes it's a tough call between "has the iron been moved?" and "that's where it was set". Savvy homeowners could move their irons even a foot, and you'd be hard pressed to call them on it. I can't imagine the irritation if it were up to ten feet away. There's no excuse for work like that. I've worked on plats (and sections) that measure to the gnat's behind done in the 1850s.
The less said about the "mathematical model" guy, the better. He'd been better off (for all of us) as an accountant.
Still, I'd be hard pressed to tell you why I wouldn't accept the original (presumably unmoved) monuments as the lot corners. Other than, of course, it's more politically expedient to accept the less controversial "solution", which sounds like it varies from case to case. Would it matter if the landowner were well liked? His brother was a banker or on the city council? That's a tough road to go down and have to explain later.
One solution is to avoid working in areas like this. I've done that; I simply don't have the capital to spend a week or more on a job that I'll get paid lot price on. On the other hand, I've sometimes stepped up and "bit the bullet" too. It is tough to have to cover someone else's work when they've gotten paid and you're not going to. Especially if it happens on lots of their jobs. 1
The other is that it has to be treated as a systematic (and probably legal or even legislative) problem. In Wisconsin, we have an Assessor's Plat law when boundaries become too vague. Properly done, it is a good solution. Maybe you have one, but it doesn't sound like it. We even had a case where another, unnamed here, surveyor messed a plat up so bad that it had to revert to the county (had jurisdiction) for an Assessor's Plat. It was put out to bid, and guess who got the low bid? Yup, the original surveyor. "Insert picture of ice cream cone going to forehead here.)
If you feel some responsibility, I would opt for dealing with this in the larger sense, starting with a community meeting. You have some standing to do that. Land owners can't be expected to be concerned on a case by case basis, especially if a survey is a few doors down, but next door is a different matter. Once it's explained (how, why, and the legal background), you must keep the ball rolling. It needs to be done in a public setting, folks tend to be more polite and less greedy there. Myself, I'd have lunch with the judge, since that's where it may ultimately end up. Get your other surveyors on your side too. Be prepared to do quit claim deeds once folks are on board. Don't forget that it generally takes time for an unpopular idea(s) to become accepted. How will I get paid?
It's messy, but so's government most of the time.
My 2 cents, anyway.
teffinger, post: 344448, member: 2642 wrote: We have a situation here in Colorado:
Large Subdivisions were surveyed and all of the lots were monumented with capped pins in the early 1970s.
All of the lots were sold shortly after the surveys were complete.
About 30% of the lots have been developed.
The subdivisions have gone through booms and busts since then and lots have changed hands.
Many of the lots have been resurveyed over the years.
One Surveyor decided to resurvey interior lots by placing new pins where they should have been placed according to the plats instead of using existing pins as control.
He placed pins as close as 1' and as far as 10' from the original existing capped pins.
There is evidence that he never looked for the existing pins but set his pins based solely on his mathematical model.
He did many surveys over the years. Some of his pins have been in the ground since 1995.
Land owners are finding the new and old pins and are accepting the ones that make their lots the biggest.
He has been contacted but has refused to cooperate in a resolution.
Even if the errant pins are shown on plats, many landowners don't see the plats and pick the pins they like.
Young and out-of-area Surveyors are confused by the issue and unknowingly accept the errant pins for their work.
The lots are small and the errant pins have caused buildings to be placed inside of setbacks and in easements.
As land values increase, the problem threatens to get worse.
The State Board has refused to rule on "pincushion" type issues.As County Surveyor, I would like to fix the issue because of all that and it is becoming a boundary problem between landowners.
What are good courses of action in a case like this?
Can I encourage Surveyors to remove the bad pins as they discover the problem?
Can we remove pins set by another Surveyor if we know they were set improperly?
Should I go to my County Commissioners with the issue?
Should I contact my State Board for direction?
Should I just let it go and see what happens?I appreciate your opinions.
Thanks,
Tom
Who are you to decide these other pins are wrong? It seems like what you want to do is exactly what the surveyor you are complaining about did......decide that the existing pins are wrong.
If the guy is doing incompetent and inappropriate survey work, I would think this is a determination for a State Board or court of law to decide.
Also, keep in mind all the people who have relied on his pins and set fences and built to them. How can you possibly go in at a later date and tell them they were wrong in relying on a property pin that was set as their corner?
It's just too late for you to go in and tear out property pins set by a licensed surveyor. If his/her license should be revoked, that is another matter.
