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Jeffery N. Lucas, PLS, Esq.Professional Land Surveyor

Attorney at Law© 2002‐2017 All Rights Reserved

E‐Mail: [email protected]

A New Practice ModelHow to Affect a Paradigm-Shift in the Practice of Land SurveyingJeffery N. Lucas, PLS, Esq.Professional Land SurveyorAttorney at Law© 2002-2017 All Rights ReservedE-Mail: [email protected]

DISCLAIMERI Am Not Your Attorney. This seminar is not intended to provide you with legal advice. Seek legal advice from an attorney who is familiar with your particular situation and the facts in your particular case. The example contract clauses contained herein (if any) are intended as examples only and should be reviewed and modified by competent legal counsel to reflect variations in applicable state and local law specific to your circumstances.

A NEW PRACTICE MODELAre we Destined to become the Buggy Whip Manufacturers of the 21st Century?

A NEW PRACTICE MODELTechnology Made Them Obsolete.

A NEW PRACTICE MODELThey Became Fodder for Museum Displays.

A NEW PRACTICE MODELThey Became Fodder for Museum Displays.

A NEW PRACTICE MODELSome Significant Problems with the Current Practice Model

OLD PRACTICE MODELCurrent Practice Model: Expert Measurer: It’s All About Measurements and Math. Stake the Client’s Deed as Precisely as Possible. Turn a Blind-Eye to Property Rights. Ignores Testimony Evidence. Practiced as a Belief System and thru Mythology. Can only Find Problems, Can’t Solve them. Leave Problem Solving to the Real Professionals (Attorney, Judges, etc.). A Commodity, not Professional Services.

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OLD PRACTICE MODELProblems with Current Practice Model: Expert Measurer: It’s All About Measurements and Math. If expert measuring ability is all we’ve got, then we’ve got nothing moving forward.

EXPERT MEASURING ABILITY“It is extremely likely that virtually anyone will be able to achieve positions accurate to less than half-meter (some believe even as little as 10 cm), in real-time at the 95% confidence level, and this will be possible in the not-so-distant future. Research indicates this may be achievable without the need for any form of terrestrial augmentation (CORS, RTN, the FAA’s WAAS, DGPS, or observations at passive control points), and that these observations will be made with relatively inexpensive units that could be whatever will pass as a smartphone in 2020.’”

David Doyle, A New Datum, Professional Surveyor Magazine, August 2013 at 14.

OLD PRACTICE MODELProblems with Current Practice Model: Stake the Client’s Deed as Precisely as Possible. Precisely staking the client’s deed is repugnant to the two fundamental principles of

surveying.

OLD PRACTICE MODELThe Problem:“In keeping with recent legal decisions, we have somewhat modified some of the terminology. For instance, seldom is the term property line or property boundary used. It is our belief that property rights, including property boundaries, are legal questions and as such are not addressed by land surveyors. Surveyors locate boundaries, or land boundaries or deed lines. They do not and cannot locate property rights.”Robillard, Walter G., Donald Wilson, Evidence and Procedures for Boundary Location, Sixth Edition, 2011, John Wiley & Sons, Inc., Hoboken, New Jersey, at 2.

OLD PRACTICE MODELBrown Recanted:“In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years, there have been cases, one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession.”Brown, Curtis M., Land Surveyor’s Liability to Unwritten Rights, 1979 “Surveying and Mapping,” Vol. XXXIX, No. 2, at 119-123.

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OLD PRACTICE MODELBrown Recanted:“Can a surveyor monument the lines of ownership obtained by unwritten means? To my knowledge absolutely nothing in the law prevents him from doing so. Clearly from my conversations with attorneys, this is not the unauthorized practice of law. If the surveyor chooses to claim that a possessory right has ripened into a fee title, he is certainly privileged to do so. The real question is What should he do?”Brown, Curtis M., Land Surveyor’s Liability to Unwritten Rights, 1979 “Surveying and Mapping,” Vol. XXXIX, No. 2, at 119-123.

OLD PRACTICE MODEL“This litigation grows out of a new survey recently made by the city surveyor. This officer after searching for the original stakes and finding none, has proceeded to take measurements according to the original plat, and to drive stakes of his own. According to this survey the practical location of the whole plat is wrong, and all the lines should be moved between four and five feet to the east.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by Cooley

OLD PRACTICE MODEL“Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by Cooley

OLD PRACTICE MODEL“Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by Cooley

OLD PRACTICE MODEL“If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.”Young v. Blakeman, 95 P. 888 (Cal.1908).

OLD PRACTICE MODELProblems with Current Practice Model: Turn a Blind-Eye to Property Rights. Rendering a well-reasoned opinion on the only question open to the land surveyor,

the location question, is nothing less than an opinion on the limits of property ownership and the associated property rights.

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OLD PRACTICE MODEL“In order to safeguard life, health, and property and to promote the public welfare, the practice of land surveying in this state is a learned profession to be practiced and regulated as such, and its practitioners in this state shall be held accountable to the state and members of the public by high professional standards in keeping with the ethics and practices of the other learned professions in this state….” Code of Ala.1975, Sec.31-11-2(c).

OLD PRACTICE MODEL“(a) In order to safeguard the life, health or property of the public, the practice of land surveying in this state is declared to be subject to regulation in the public interest.” § 62-18-101, Tennessee Statutes.

OLD PRACTICE MODEL“The purpose of the surveys in this boundary dispute is to locate accurately the boundary between the plaintiff's and defendants’ property.”Andrews v. Barton, 974 So.2d 1144 (Fla.App.2008).

OLD PRACTICE MODELProblems with Current Practice Model: Ignores Testimony Evidence. In most boundary dispute cases, the testimony of landowners, especially the parties

to the litigation and sometimes other locals with relevant knowledge about the property lines in question, is the determining factor in the case. Yet, this evidence is largely ignored by the retracing surveyor.

OLD PRACTICE MODELFed. Rules of Evidence Rule 801. Definitions The following definitions apply under this article:(a)Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal

conduct of a person, if it is intended by the person as an assertion.(b) Declarant. A "declarant" is a person who makes a statement.(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

OLD PRACTICE MODELFed. Rules of Evidence Rule 802. Hearsay Rule

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Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

OLD PRACTICE MODELCan “Sonny-Boy” (in the present day) testify as to where George Washington set the corner in 1748?

OLD PRACTICE MODELFed. Rules of Evidence Rule 803. Hearsay ExceptionsThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

OLD PRACTICE MODEL“On cross-examination, Mrs. Cotham affirmed that even though she did not know the exact lo-cation of the boundary line, she always believed it to be north of the ditch line due to her deed ref-erences. She said someone from Burns’ team measured the road frontage and told her there was an overlap of fifty feet.”Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470 (Tenn.App.2007).

OLD PRACTICE MODEL“Burns said he never measured the road frontage based on the Cothams’ deed. He admitted that one of his associates could have done such a measurement thereby resulting in the 68.62 overlap shown in the sketches. However, he denied any overlap in the two property lines according to his survey findings.”Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470 (Tenn.App.2007).

OLD PRACTICE MODEL“Burns admitted that his results were based in part on calculations (based on the deed) done by the computer.”Dowdell v. Cotham, 2007 Tenn.App. LEXIS 470 (Tenn.App.2007).

OLD PRACTICE MODEL“The direction in Irvin to establish lost corners by reference to known government corners requires, at a minimum, reference to an obliterated corner which is one whose location may be recovered beyond a reasonable doubt by the testimony of landowners, witnesses, or acceptable record evidence. The testimony of the surveyor is silent on efforts to take the testimony of knowledgeable landowners.”Dorsey v. Ryan, 442 N.E.2d 689 (Ill.App.1982).

OLD PRACTICE MODEL

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“As stated earlier, the Court believes that Mr. Resvick [the government surveyor] did an impeccable job in his physical search. He failed, however, to seek out live witnessesbefore determining the corner was lost. Had he consulted the witnesses and reexamined the survey testimony and other evidence in light of that testimony, the cohesive theory put forth by the Citkos may have become apparent to him.”U.S. v. Citko, 517 F.Supp. 233 (U.S.Dist.Ct.1981).

OLD PRACTICE MODELProblems with Current Practice Model: Practiced as a Belief System and thru Mythology. By and large, surveyors who subdivide sections over and over again, calling corners

lost and resetting them by proportionate measurements, can show no justification for these actions other than their belief that this is what they are supposed to do.

OLD PRACTICE MODEL“We agree. Gardner did not record his survey to advance the object of the litigation, that is, to resolve the boundary dispute. By his own admission, he filed it based on an erroneous perception of a misguided duty. And once he did so, the Nelidovs were impotent. Because they could not expunge the recorded survey while the quiet title action proceeded, the survey actually accomplished what the litigation might not—permanently clouding their title.” Zen Temple v. Nelidov, 2006 Cal.App.Unpub. LEXIS 2766 (Cal.App.2006).

OLD PRACTICE MODEL“Although respondent contends that [appellant’s surveyor] ought to have commenced his survey from the east in order to literally ‘follow in the footsteps’ of [the original surveyor], this argument is without merit. A survey from the nearest established corner is least liable to error.” Knerr v. Mauldin, 2006 Cal.App.Unpub. LEXIS 6749 (Cal.App.2006).

OLD PRACTICE MODEL“At trial, Emerson, [Coyle’s surveyor] could identify no reason why he relied on the metes and bounds description from the deeds rather than the actual center line in depicting the boundary line between the Coyle and Butler properties.” Butler v. Coyle, Nos. 29198-7-III, 29517-6-III (Wash.App.2012). Unpublished.

OLD PRACTICE MODEL“The district court was not persuaded by Grant’s arguments. The court found: ‘Grant’s credibility was diminished by his unbending mindset to pursue’ his philosophy that ‘it is more important to be correct in terms of where the actual measurement should be than it is to follow the footsteps of prior surveys.’” Appeal by Janet Reed, 243 P.3d 382 (Kan.App.2010).

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OLD PRACTICE MODEL“The plaintiff's surveyor testified that he had measured the entirety of Block 54 and found a discrepancy between the actual measurements of the land versus the land as shown on the plat. The surveyor's solution to this was to say that all of the lots in Block 54 would have to be reduced in width by 2.3 feet. The plaintiff's surveyor took that position even though there had been no proceeding to replat the block and even though the westerly property owners in Block 54 were not parties to this litigation.” Andrews n. Barton, 974 So.2d 1144 (Fla.App.2008).

OLD PRACTICE MODEL“Steensland testified that he was uncertain where the south line was located after he performed his 1980 survey, and he remains uncertain today where the south line is located. Consequently, Steensland testified, he could not opine that Kinsaul'sdetermination of the location of the south line was incorrect.”First Beat Entertainment v. ECC, LLC, 962 So.2d 266 (Ala.App.2007).

OLD PRACTICE MODEL“Mercer further testified that, for 20 years he had accepted Maurice Steensland'sfinding that the intersection was 156 feet north of the jog; however, in 1990, he had determined that the intersection was actually 165 feet north of the jog instead of 156 feet.”First Beat Entertainment v. ECC, LLC, 962 So.2d 266 (Ala.App.2007).

OLD PRACTICE MODEL“43 U.S.C. § 752 provides that the corners of a section and any other landmarks within the section established by the original government survey shall be adhered to in the future. However, it does not purport to state that every time a survey is made of a line dividing a quarter of a section into quarters, the original government survey of that section must be retraced. Moreover, First Beat has cited no caselaw holding that 43 U.S.C. § 752 requires such a retracing.”First Beat Entertainment v. ECC, LLC, 962 So.2d 266 (Ala.App.2007).

OLD PRACTICE MODEL“The reasonable inference to be drawn from the earlier surveys locating the south line and the iron pipes marking the termini of the south line was that earlier surveyors had located the termini of the south line and its location based on the location of the four corners of Section 26 as established by the original government survey of Section 26.”First Beat Entertainment v. ECC, LLC, 962 So.2d 266 (Ala.App.2007).

OLD PRACTICE MODEL“We know of no legal authority—and plaintiffs cite none—that holds that a mere reference to ‘the center’ of a section compels the conclusion, as a matter of law, that the parties intended to be governed by the mathematical center as it might be located in the future, rather than as it had been located. What sparse case law we can

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find is, instead, to the contrary.”Dykes v. Arnold, 129 P.3d 257 (Ore.App.2006).

OLD PRACTICE MODEL“In addition to not being legally warranted, such a presumption would also strain common sense, at least in the context of a case like this one. We would have to assume that, for about 70 years, local residents and the county used ‘the center of section 12’ as a reference point for boundaries, easements, fences, and so on without feeling a need to know where the center actually was.”Dykes v. Arnold, 129 P.3d 257 (Ore.App.2006), Footnote 11.

OLD PRACTICE MODEL“The legal presumption that plaintiffs urge would preclude us from asking and answering the questions: What did the parties have in mind when they referred to the ‘center of section 12’? Was it a known and identifiable place on the ground? Or did they intend it to be the center of the section as a survey some day would later establish it to be?”Dykes v. Arnold, 129 P.3d 257 (Ore.App.2006), Footnote 11.

OLD PRACTICE MODEL“It was only after the survey of Ron Milam that the Richardsons came to believe that they owned the land where the corrals are located. The court indicated that it found Milam’s surveying approach to be ‘inept.’”Larsen v. Richardson, 2011 MT 195 (Mont.2011).

OLD PRACTICE MODEL“Next, the Richardsons take the position that ‘near’ is ‘a relative term without positive or precise meaning’ and that the B-to-A fence ‘is more “near” the mid-section line than it is to the south section line.’ This argument is absurd, and we reject it for the reasons given by the District Court. (Recall that this fence is 1,150 feet south of the midsection line, nearly halfway between the midsection line and Section 13’s southern boundary.)”Larsen v. Richardson, 2011 MT 195 (Mont.2011).

OLD PRACTICE MODEL“Milam responded, ‘It’s near, yes. It’s nearer to the center than it is to the [south] section line.’ The judge observed that this ‘defies logic.’ He pointed out that the B-to-A fence is ‘a long way from the center of that section, you know, and you would describe it some way else, if it’s that far away. You would describe it in a measurement or something. But you can’t just say, nearer the center of a section, when it’s that far off.’”Larsen v. Richardson, 2011 MT 195 (Mont.2011).

OLD PRACTICE MODEL“This is not the only instance, however, in which Milam distorted deed language in order to prove the Richardsons’ claim.”

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Larsen v. Richardson, 2011 MT 195 (Mont.2011).

OLD PRACTICE MODEL“We find no cause for concern that the trial court found the testimony of the surveyor troublesome. The surveyor testified as to his results but noted that he had not conducted the actual survey.”Dowdell v. Cotham, 2007 Tenn.App. Lexis 470 (Tenn.App.2007).

OLD PRACTICE MODEL“The Court further finds that many surveys of the various property (even by the same surveyor) are totally inconsistent with one another and that pursuant to applicable Tennessee law, it is the Court's obligation and duty to look to the long established boundary line be-tween these parties as being their true, correct and accurate property line.”Jackson v. Bownas, 2005 Tenn.App. LEXIS 356 (Tenn.App.2005).

OLD PRACTICE MODELProblems with Current Practice Model: Can only Find Problems, Can’t Solve them. If all land surveyors can do is find people’s problems, then eventually land surveyors

will be the problem.

OLD PRACTICE MODEL“The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by Cooley

OLD PRACTICE MODEL“No rule in real estate law is more inflexible than that monuments control course and distance—a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned.”Diehl v. Zanger, 1878 Mich.LEXIS 375 (Mich.1878). Opinion by Cooley

OLD PRACTICE MODEL“To be a successful professional surveyor, one must have more than a narrow technical education. Technical education has to do with things. Employees at a lower professional scale deal with things; professionals deal with people, situations, and ideas.” Evidence and Procedures, 5th Edition, Page 484.

OLD PRACTICE MODEL“The surveyor, having made an evaluation of the evidence, forms an opinion as to where he believes the lines would be located if fully adjudicated in a court of law. The

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typical modern day surveyor sees himself as an expert evaluator of evidence. He strives to arrive at the same opinion of boundary location regardless of whether he was hired by his client or his client’s next door neighbor.”Williams & Onsrud, What Every Lawyer Should Know about Title Surveys, Reprinted in “Land Surveys, A Guide for Lawyers,” Real Property and Trust Law Section American Bar Association, 1986.

OLD PRACTICE MODELProblems with Current Practice Model: Leave Problem Solving to the Real Professionals (Attorney, Judges, etc.). This mentality relegates the land surveyor to permanent second-class-professional

status.

OLD PRACTICE MODEL“And I want to be very careful and to not violate the Supreme Court’s statement one time that the trial court can’t be a witness. But Mr. Parsons has testified in this court many times. I’ve had lots of problems with Mr. Parsons. … He [Parsons] has come into this Court with surveys where he did both of them and overlapped them.”Cupp v. Heath, No.E2010-02364-COA-R3-CV (Tenn.App.2011).

OLD PRACTICE MODEL“He’s [Parsons is] infamous for just letting somebody tell him where the corners are and not surveying and not having independent judgment. Furthermore, he’s not here as a witness, and I think if the parties of this lawsuit really thought that Mr. Parsons had a correct survey, that he would be here and he’s not.”Cupp v. Heath, No.E2010-02364-COA-R3-CV (Tenn.App.2011).

OLD PRACTICE MODEL“A review of Leggins’ testimony establishes, as the Trial Court properly found, that Leggins admitted to relying heavily upon a tax map and Shannon’s direction, and that Leggins was on notice that there was a dispute before he undertook the survey, and otherwise should have realized there was a problem when his survey found 57 acres where the deed called only for 14.”Watts v. Shannon and Leggins, 2005 Tenn.App. LEXIS 403 (Tenn.App.2005).

OLD PRACTICE MODEL“Without superior knowledge, we have an inferior profession. … One of the reasons for giving surveyors the exclusive privilege of marking boundaries is to prevent the unskilled from monumenting lines that encroach on the bona fide rights of others.”Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.

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“The major deterrent to our becoming a learned profession is our low requirements for the right to practice. So long as we have low admission requirements, we will have low standards of practice and low public opinion.”Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.

OLD PRACTICE MODEL“Differences between surveyors are a cause of degradation. We prove by our own survey monuments that we are incompetent, since we cannot all arrive at the same location using the same deed.”Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.

OLD PRACTICE MODELProblems with Current Practice Model: A Commodity, not Professional Services. We have a second-class profession that allows the most important work we do, the

determination of the location of property boundaries on the ground, to be performed by the most incompetent and unethical of all practitioners. This has turned surveying property into a commodity and not a professional service.

COBB’S VALUE CURVEDETAILED FUNCTIONS:1. The determination of the size and shape of the earth and the measurement of all

data needed to define the size, position, shape and contour of any part of the earth and monitoring any change therein.

2. The positioning of objects in space and time as well as the positioning and monitoring of physical features, structures and engineering works on, above or below the surface of the earth.

3. The development, testing and calibration of sensors, instruments and systems for the above mentioned purposes and other surveying purposes.

4. The acquisition and use of spatial information from close range, aerial and satellite imagery and the automation of these processes.

5. The determination of the position of the boundaries of public or private land, including national and international boundaries, and the registration of those lands with the appropriate authorities.

6. The design, establishment and administration of geographic information systems (GIS) and the collection, storage, analysis, management, display and dissemination of data.

7. The analysis, interpretation and integration of spatial objects and phenomena in GIS, including the visualisation and communication of such data in maps, models and mobile digital devices.

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8. The study of the natural and social environment, the measurement of land and marine resources and the use of such data in the planning of development in urban, rural and regional areas.

9. The planning, development and redevelopment of property, whether urban or rural and whether land or buildings.

10. The assessment of value and the management of property, whether urban or rural and whether land or buildings or landed interests.

11. The planning, measurement and management of construction works, including the estimation of costs.

COBB’S VALUE CURVECOMMODITY SERVICES:1. The determination of the size and shape of the earth and the measurement of all

data needed to define the size, position, shape and contour of any part of the earth and monitoring any change therein.



4. The acquisition and use of spatial information from close range, aerial and satellite imagery and the automation of these processes.


6. The design, establishment and administration of geographic information systems (GIS) and the collection, storage, analysis, management, display and dissemination of data.

7. The analysis, interpretation and integration of spatial objects and phenomena in GIS, including the visualisation and communication of such data in maps, models and mobile digital devices.

8. The study of the natural and social environment, the measurement of land and marine resources and the use of such data in the planning of development in urban, rural and regional areas.




COBB’S VALUE CURVEBRAND NAME SERVICES:

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COBB’S VALUE CURVEEXCLUSIVE SERVICES:5. The determination of the position of the boundaries of public or private land,

including national and international boundaries, and the registration of those lands with the appropriate authorities.

A NEW PRACTICE MODEL10 Principles of Retracement Surveying Which you May or May Not Know

JEFF'S 10 COMMANDMENTS onRETRACEMENTI. You are Either an Original Surveyor or You are a Following SurveyorThe fundamental precepts of boundary surveying are, your are either an original surveyor setting out new lines for the very first time for a common grantor, or you are a following surveyor finding where the lines have become established on the ground.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“While the original surveyor has a right or responsibility to establish new boundaries when he surveys previously unplatted land or subdivides a new tract, the sole duty of all subsequent or following surveyors is to locate the points and lines of the original survey by locating existing boundaries. No following surveyor may establish a new corner or line, or correct erroneous surveys of earlier surveyors, when they track the original survey in locating existing boundaries.” McGhee v. Young, 606 S.2d 1215 (Fla.App. 1992).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“It has been declared that all the rules of law adopted for guidance in locating boundary lines have been to the end that the steps of the surveyor who originally

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projected the lines on the ground may be retraced as nearly as possible; further, that in determining the location of a survey, the fundamental principle is that it is to be located where the surveyor ran it. Wood v. Starko, 197 S.W.3d 255, 259 (Tenn.App.2006). Citing 11 C.J.S. Boundaries § 3, p.540.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Any call, it has been said, may be disregarded, in order to ascertain the footsteps of the surveyor in establishing the boundary of the tract attempted to be marked on the land; and the conditions and circumstances surrounding the location should be taken into consideration to determine the surveyor's intent.” Wood v. Starko, 197 S.W.3d 255, 259 (Tenn.App.2006). Citing 11 C.J.S. Boundaries § 3, p.540.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground by his monuments, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.” Wood v. Starko, 197 S.W.3d 255, 259 (Tenn.App.2006). Citing 11 C.J.S. Boundaries § 3, p.540.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground by his monuments, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.” Olson v. Jude, 73 P.3d 809 (Mont.2003).

CUPP v. HEATHTENNESSE COURT OF APPEALSAT KNOXVILLEE2010-02364-COA-R3-CVAugust 11, 2011

BUTLER v. COYLEWashington Court of AppealsCase No. 29198-7-III, 29517-6-IIIFebruary 2, 2013

Butler v. Coyle“At trial, [Emerson, Coyle’s surveyor,] could identify no reason why he relied on the

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metes and bounds description from the deeds rather than the actual center line in depicting the boundary line between the Coyle and Butler properties.” Butler v. Coyle, Nos. 29198-7-III, 29517-6-III (Wash.App.2012). Unpublished.

JEFF'S 10 COMMANDMENTS onRETRACEMENTII. The “First Surveyor” Concept is Pure Surveyor MythologyDespite every court in every jurisdictions saying, basically, the same thing about retracement surveying, land surveyors had to interject a new surveyor-contrived concept—the “first surveyor” concept based on one misguided case and one misguided surveyor.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“When a parcel or parcels are created on paper, without a survey being conducted, and the surveyor is later requested to place one of these paper-described parcels on the ground, this survey should be considered the ‘first’ survey, in that it is the first survey to be placed on the ground after the description.”Robillard, Walter G., Donald Wilson, Curtis M. Brown, Evidence and Procedures for Boundary Location, Fifth Edition, 2006, John Wiley & Sons, Inc., Hoboken, New Jersey, at 310.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The difference is that whereas the original survey controls, the first survey is nothing more than an opinion by the surveyor of where the written description should be placed. As such, it is always open to collateral attack.”Robillard, Walter G., Donald Wilson, Curtis M. Brown, Evidence and Procedures for Boundary Location, Fifth Edition, 2006, John Wiley & Sons, Inc., Hoboken, New Jersey, at 310.

JEFF'S 10 COMMANDMENTS onRETRACEMENTThe results of this philosophy are not hard to find. The pincushion corner is the physical manifestation of our collective confusion over our duties and responsibilities towards property boundaries.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Always open to collateral attack.”Robillard, Walter G., Donald Wilson, Curtis M. Brown, Evidence and Procedures for Boundary Location, Fifth Edition, 2006, John Wiley & Sons, Inc., Hoboken, New Jersey, at 310.

JEFF'S 10 COMMANDMENTS on

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RETRACEMENTIII. The BLM Manual Repudiates the “First Surveyor” ConceptNot only does the BLM Manual not support the “First Surveyor” concept, it repudiates it.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“By law, (1) the corners marked in public land surveys shall be established as the proper corners of sections, or of the subdivisions of the sections, which they were intended to designate, and (2) the boundary lines actually run and marked shall be and remain the proper boundary lines of the sections or subdivisions for which they were intended, and the lengths of these lines as returned shall be held as the true length thereof….” 1973 Manual, Sec. 3-4; 2009 Manual, Sec. 3-4.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The original corners must stand as the true corners they were intended to represent, even though not exactly where professional care might have placed them in the first instance.” 1973 Manual, Sec. 3-4; 2009 Manual, Sec. 3-4.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The local surveyor is employed as an expert to identify lands which have passed into private ownership. This may be a simple or a most complex problem, depending largely upon the condition of the original monuments as affected principally by the lapse of time since the execution of the original survey.” 1973 Manual, Sec. 3-76; Also see 2009 Manual, Sec. 3-131 thru 3-136.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The work usually includes the subdivision of the section into the fractional parts shown upon the approved plat. In this capacity the local surveyor is performing a function contemplated by law. He cannot properly serve his client or the public unless he is familiar with the legal requirements concerning the subdivision of sections.” 1973 Manual, Sec. 3-76; Also see 2009 Manual, Sec. 3-131 thru 3-136.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The Bureau of Land Management assumes no control or direction over the acts of local and county surveyors in the matters of subdivision of sections and reestablishment of lost corners of original surveys where the lands have passed into private ownership, nor will it issue instructions in such cases.”

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1973 Manual, Sec. 3-76; Also see 2009 Manual, Sec. 3-131 thru 3-136.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Title 43 U.S.C. 752 and 753 (Rev. Stat. 2396 and 2397) contain the fundamental provisions for the subdivision of sections into quarter-sections and quarter-quarter sections. Sections are not subdivided in the field by Bureau of Land Management cadastral surveyors unless provision is made in the special instructions, but certain subdivision-of-section lines are protracted upon the official plat.” 2009 Manual, Sec. 3-99.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“In the public land survey system a corner is fixed in position by operation of law. Corners marked in official surveys followed by use are fixed in position by monuments. Only a small portion of corners are marked on the ground in original surveys. Subdivision-of-section corners are generally not marked. Their positions are fixed on the plat by protraction. Their positions are fixed on the ground by the survey process of running (and marking) line between marked corners, and setting monuments.” 2009 Manual, Sec. 3-99.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“A decision to set aside previously fixed local survey legal subdivision corners must be supported by evidence that goes beyond mere demonstration of technical error, reasonable discrepancies between former and new measurement, and less than strict adherence to restoration and subdivision rules.” 2009 Manual, Sec. 3-137.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The position of a tract of land, described by legal subdivision, is absolutely fixed by the original corners and other evidences of the original survey…. Under fundamental law the corners of the original survey are unchangeable. Even if the original survey was poorly executed, it still controls the boundaries of land patented under it.” 1973 Manual, Sec. 6-15.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Were the Federal Government obliged to open the question as to the location of a particular tract or tracts over technical differences or reasonable discrepancies, controversies would constantly arise, and resurveys and readjudication would be interminable. The law gives these activities repose.” 2009 Manual, Sec. 3-137.

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JEFF'S 10 COMMANDMENTS onRETRACEMENT“Always open to collateral attack.”Robillard, Walter G., Donald Wilson, Curtis M. Brown, Evidence and Procedures for Boundary Location, Fifth Edition, 2006, John Wiley & Sons, Inc., Hoboken, New Jersey, at 310.

JEFF'S 10 COMMANDMENTS onRETRACEMENTIV. The Standard is the Reasonably Prudent Practitioner and the Criterion is the Best Available EvidenceThese two factors put together create a litmus test for boundary surveying decisions. The practitioner gathers and weights the best available evidence as would the reasonably prudent practitioner in rendering a well-reasoned opinion on the location question.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“This court has not had occasion to define a particular standard of care for surveyors; to that extent, this is a case of first impression in the District of Columbia. However, from our own cases involving other professions and from pertinent cases in other jurisdictions, we conclude that a surveyor should apply the proper standard of care any other surveyor of ordinary skill and prudence would exercise under the same or similar circumstances.” Bell v. Jones, 523 A.2d 982 (D.C.App.1986).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Mere difference of professional opinion does not establish professional negligence. Moreover, professional negligence is not established by proving that a professional opinion turned out to be erroneous. Rather, to recover for professional negligence based on an incorrect professional opinion, one must establish that the professional fell below the standard of skill and knowledge commonly possessed and utilized by members within the profession when rendering his opinion.”Lawson v. Winemiller, 1995 Ohio App. LEXIS 2043 (Ohio App.1995).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Surveyors are not insurers. Their duty is to complete a survey using the best evidence available to them according to the accepted rules and regulations.”Yellowstone Basin Properties v. Burgess, 843 P.2d 341 (Mont.1992).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The surveyor must find the best available evidence that determines the location of

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the deed on the ground. In those areas in which there is widespread obliteration and loss of evidence, it may become necessary to accept evidence of an inferior type, such as hearsay and reputation, but whatever is accepted, it must be the best of that found after an extensive and complete search of the record, the ground, and adjoiners is complete.”Robillard, Walter G., Donald Wilson, Curtis M. Brown, Evidence and Procedures for Boundary Location, Fifth Edition, at 39.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“For a corner to be lost it ‘must be so completely lost that (it) cannot be replaced by reference to any existing data or other sources of information.’ (Citation omitted). The decision that a corner is lost should not be made until every means has been exercised that might aid in identifying its true original position.”U.S. v. CITKO, 517 F. Supp. 233 (U.S. Dist. 1981).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Even though the physical evidence of a corner may have entirely disappeared, a corner cannot be regarded as lost if its position can be recovered through the testimony of one or more witnesses who have a dependable knowledge of the original location.”U.S. v. CITKO, 517 F. Supp. 233 (U.S. Dist. 1981).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“There is no clearly defined rule for the acceptance or non-acceptance of the testimony of individuals. It may be based upon unaided memory…or upon definite notes and private marks. The witness may have come by his knowledge casually or…had a specific reason for remembering. Corroborative evidence becomes necessary in direct proportion to the uncertainty of the statements advanced.”U.S. v. CITKO, 517 F. Supp. 233 (U.S. Dist. 1981).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The young Civil Engineer with his diploma and precise instruments feels it beneath his dignity to get down to earth and scratch around and hunt and look until he finds the exact points, and then run backward and forward until he finds the true line and true variation from point to point and accept it as it is on the ground regardless of all scientific calculations and then be governed accordingly; and bear in mind that this alone constitutes a true retracement and correct survey. E.E. Todd, Letter to J.M. Faircloth, dated August 16, 1946.

JEFF'S 10 COMMANDMENTS onRETRACEMENT

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“I wish young surveyors could feel the joy I have felt by finding the proof as a section corner I had off and on looked for twenty-five years though I had been close to it all the time.”E.E. Todd, Letter to J.M. Faircloth, dated August 16, 1946.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The surveyor analyzes the evidence, and decides, on the basis of laws of surveys and court decisions, what weight is to be given to each fact, and how this will guide the resurvey. These decisions are subject to revision as new evidence is discovered. Most disagreements between surveyors arise from failure to find all available evidence.”Sipe, Henry F., Compass Land Surveying, 1974, McClain Printing Company, Parsons, West Virginia, at 115.

DILLEHAY v. GIBBSTennessee Court of AppealsNo. M2010-0170-COA-R3-CVJune 16, 2011

JEFF'S 10 COMMANDMENTS onRETRACEMENTV. Monuments are the Physical Manifestation of the True Intent of the Grantor and the GranteeThe only reason monuments have their superior standing is that the courts generally assume that they are the physical manifestation of intent.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Purchasers of town lots have a right to locate them according to the stakes which they find planted and recognized, and no subsequent survey can be allowed to unsettle their lines.” Flynn v. Glenny, 17 N.W. 65 (Mich.1883). Opinion by Cooley

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The question afterwards is not whether the stakes were where they should have been in order to make them correspond with the lot lines as they should be if the platting were done with absolute accuracy, but it is whether they were planted by authority, and the lots were purchased and taken possession of in reliance upon them. If such was the case they must govern, notwithstanding any errors in locating them.” Flynn v. Glenny, 17 N.W. 65 (Mich.1883). Opinion by Cooley

JEFF'S 10 COMMANDMENTS onRETRACEMENT

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“Where a plat delineates an actual survey, the survey rather than the plat fixes the location and the boundaries of the land. The plat is a picture, the survey the substance. In a conveyance referring to such plat, the lot bounded by the lines actually run upon the ground is the lot intended to be conveyed.”Neeley v. Maurer, 195 P.2d 628 (Wash.1948).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The plat may be all wrong, but that does not matter if the actual survey can be shown. Thus, where there is a dispute as to the boundary line between a street and the abutting lots, the original survey will control the recorded plat. Where a surveyor of the land marks the division lines on the ground by monuments, such lines control calls and distances indicated on his map.”Neeley v. Maurer, 195 P.2d 628 (Wash.1948).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Parol evidence is admissible to show the position of the monuments and boundary marks mentioned in a deed.”DD&L v. Burgess, 753 P.2d 561 (Wash.App.1988).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“In cases of conflicting calls, the priority of calls is: (1) lines actually run in the field, (2) natural monuments, (3) artificial monuments, (4) courses, (5) distances, (6) quantity or area.”DD&L v. Burgess, 753 P.2d 561 (Wash.App.1988).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“Where it is shown by competent evidence that a monument does not accord with a survey or plat, the monument as established on the ground must control.”DD&L v. Burgess, 753 P.2d 561 (Wash.App.1988).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“If the property is resurveyed, the resurvey must rediscover where the original surveyors placed the boundaries rather than determine where new and modern surveys would place them.”DD&L v. Burgess, 753 P.2d 561 (Wash.App.1988).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The surveyor who is attempting to relocate a tract of land must remember that the original survey is presumed to be absolutely correct, no matter how inaccurately the work may have been done. Thus, wherever an original corner can be found, that

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corner shall be considered correctly located.” Clark, Frank Emerson, Fundamentals of Law for Surveyors, 1939, International Textbook Company, Scranton, Penn. at 23.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained.”Theriault v. Murray, 588 A.2d 720 (Me.1991).

LARSEN v. RICHARDSONMONTANA SUPREME COURT2011 MT 195August 16, 2011

JEFF'S 10 COMMANDMENTS onRETRACEMENTVI. Retracement Surveying is Largely an Evidentiary Exercise, Not a Measurement TaskAn “original survey” is a measurement and math task; the object being to precisely set out new lines in accordance with the intent of a common grantor. A “retracement survey” is not dependent on measurements; the object being to find where the lines have become established on the ground.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“In resurveying a tract of land according to a former plat or survey, the surveyor’s only function or right is to relocate, upon the best evidence obtainable, the corners and lines at the same places where originally located by the first surveyor on the ground. … If the original corners can be found, the places where they are originally established are conclusive without regard to whether they are in fact correctly located.” Gilbert v. Geiger, 747 N.W.2d 188 (Wisc.App.2008).

BOAK v. BEAVERCircuit Court of Meade County46th Judicial Circuit - KentuckyCivil Action No. 10-CI-00269 September 10, 2015


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RETRACEMENT“Mr. Smith testified that when a surveyor is required to re-trace 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.” Boak v. Beaver, Civil Action No 10-CI-00269 (KY Cir.Ct.2015).

JEFF'S 10 COMMANDMENTS onRETRACEMENTVII. The Resolution of any Boundary Problem is a Two-Part Question: What is the Boundary and Where is it Located?The legal question is “what is the boundary?” the factual question is “where is it located on the face of the earth?

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.” Walleigh v. Emery, 163 A.2d 665, 668 (Pa.Super.Court. 1960)

McGHEE v. YOUNGFlorida Court of AppealsFourth District 606 So.2d 1215 October 7, 1992

JEFF'S 10 COMMANDMENTS onRETRACEMENTVIII. Answering the Location Question is Essentially a Determination of Ownership LimitsThe location of the property on the ground, is the identification of the limits of ownership. This is not a title or legal question; this is a factual question of location.

JEFF'S 10 COMMANDMENTS onRETRACEMENT“A survey of a description does not determine title to land but seeks to find and identify the land embraced within the description.” Gilbert v. Geiger, 747 N.W.2d 188 (Wisc.App.2008).

JEFF'S 10 COMMANDMENTS onRETRACEMENT“The mere matter of the locating the boundary of lands, however, does not involve the title. It relates only to the limit to which the land covered by the title extends.”Shaw v. State, 28 So. 390 (Ala.1899).


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RETRACEMENTThere are two things the public knows about land surveyors: Land surveyors are those people standing on the side of the road taking pictures;

and Land surveyors determine where their property lines is located.

JONES v. GRESHAMMississippi Court of Appeal965 So.2d 581August 21, 2007

JEFF'S 10 COMMANDMENTS on RETRACEMENTIX. The Boundary Establishment Doctrines are the Surveyors Tool-Kit for Rendering Well-Reasoned Opinions on the Location Question “In cases of disputed boundary, all evidence, whether documentary or parol, which bears upon the point in issue and which is not inadmissible on general principles, may be received in evidence, including records of original proprietors, their plans and maps and the location of lands by ancient settlers” Pounders v. Nix, 130 So. 537 (Ala.1930).

JEFF'S 10 COMMANDMENTS on RETRACEMENTThere are two types of Uncertainty:1. Subjective Uncertainty, and2. Objective Uncertainty.

JEFF'S 10 COMMANDMENTS on RETRACEMENTThe Boundary Establishment Doctrines:Adverse Possession – Title and Location DoctrineCommon Grantor Doctrine – LocationDoctrine of Monuments - LocationOriginal Surveyor/Following Surveyor – LocationAcquiescence – LocationOral Agreement – LocationPractical Location – LocationRepose – Location Estoppel – Location Junior/Senior Conveyances – Location Issue

JEFF'S 10 COMMANDMENTS on RETRACEMENTX. The Surveyor is De Facto Judge and Jury Over the Determination of Boundary Lines“The Surveyor in the field has no opportunity to consult authorities, to counsel with others, or hold under advisement for subsequent adjudication. He must think and act for himself, and that quickly and firmly. In the discharge of his duties he combines the

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three-fold character of attorney, jury and judge.” Enos, A.Z., The Early Surveyors and Surveying in Illinois, 1891, Springfield Printing Company, Springfield, Illinois at 7.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“Surveyors are not and cannot be judicial officers, but in a great many cases they act in a quasi-judicial capacity with the acquiescence of the parties concerned; and it is important for them to know by what rules they are to be guided in the discharge of their judicial functions.”Cooley, Thomas M., The Judicial Functions of Surveyors, reprinted in Surveying and Mapping, April-June 1954, Vol.XIV, No.2, pages 161-168.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“In an old settled country, the principal work of the surveyor is to retrace old boundary lines, find old corners, and relocate them when lost. In performing this duty, he exercises, to a certain extent, judicial functions. He usually takes the place of both judge and jury, and acting as arbiter between adjoining proprietors, decides both the law and the facts in regard to their boundary lines. He does this not because of any right or authority he may possess, but because the interested parties voluntarily submit their differences to him as an expert in such matters, preferring to abide by his decisions rather than go to law about it.” Hodgeman, F., M.S., C.E., A Manual of Land Surveying, The F. Hodgman Co., Climax, Mich. 1913, at Page 289.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“When a surveyor is employed to establish the position of a point or line in which two or more persons are interested he should act as an honorable, unprejudiced party and seek to find the true position, regardless of consequences. … It is therefore of the utmost importance that the surveyor should act in the same manner as does a judge on the bench rather than as a partisan employee of one of the persons concerned. By performing his duties in this way, the surveyor makes friends and also gains the reputation of being just.”Clark, Frank Emerson, Fundamentals of Law for Surveyors, 1939, International Textbook Company, Scranton, Penn. at 1.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“The surveyor, having made an evaluation of the evidence, forms an opinion as to where he believes the lines would be located if fully adjudicated in a court of law. The typical modern day surveyor sees himself as an expert evaluator of evidence. He strives to arrive at the same opinion of boundary location regardless of whether he was hired by his client or his client’s next door neighbor.” Williams & Onsrud, What Every Lawyer Should Know about Title Surveys, circa 1986.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“The surveyor makes so-called quasi-judicial decisions when he decides such items as

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a stone is the original stone, that a fence intersection is the best evidence of an obliterated corner, or that a north bearing in a description meant parallel to the east boundary of the section. Most of these decisions are never questioned, and if so never got to court, and become final.”Dean, Darrell R., Jr., and John G. McEntyre, “Establishment of Boundaries by Unwritten Methods and the Land Surveyor,” ISPLS Surveying Publication Series, circa 1974, page i.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“The surveyor therefore makes the final decision in most boundary cases. In reality these are final judicial decisions. The only factor which makes them quasi-judicial is that they are subject to review and possibly changed by the courts if a case goes to court.”Dean, Darrell R., Jr., and John G. McEntyre, “Establishment of Boundaries by Unwritten Methods and the Land Surveyor,” ISPLS Surveying Publication Series, circa 1974, page i.

JEFF'S 10 COMMANDMENTS on RETRACEMENTThe judicial system we inherited from England recognized two types of judges: The Law Judge, and The Equity Judge.

JEFF'S 10 COMMANDMENTS on RETRACEMENT“The object of the suit, therefore, is to ascertain the true boundary line between the contiguous estates, and not to try the question of title on either side of the boundary. All that a survey does is to establish the line, and it does not determine the title to the real estate.”Krause v. Nolte, 75 N.E. 362 (Ill.1905).

JEFF'S 10 COMMANDMENTS on RETRACEMENT“The object [of a survey] is not to try the question of title on either side of the line, but to mark the place of the old line, where the ancient monuments are gone. [Similarly a] court of equity will not try title to land in a suit to establish boundaries. This question, being purely legal, was one for the courts of law, assisted as they are in respect to the findings of fact by a jury.”Krause v. Nolte, 75 N.E. 362 (Ill.1905).

JEFF'S 10 COMMANDMENTS on RETRACEMENT“Law and equity do not undertake to do the same things. In equity the object of the bill is to ascertain and fix the boundaries, without reference to the possession, and without affecting any legal rights that either of the parties may have acquired. … It may be asked, of what avail is it to do this, if no conclusion follows as to title or possession? But this is a question with which we have nothing to do, as it affects the wisdom of the law.”Krause v. Nolte, 75 N.E. 362 (Ill.1905).

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A NEW PRACTICE MODEL10 Steps to a New Practice Model to Save Traditional Land Surveying

A NEW PRACTICE MODEL1. DIFFERENTIATE BETWEEN GOOD PRACTICE AND BADWe must differentiate between good surveying practice and bad practice. In other

words, Results Matter.

A NEW PRACTICE MODELDifferentiate Between Good Practice and Bad: We would do well to understand the difference between accurate results and

precise measurement.

A NEW PRACTICE MODELA New Practice Model is Already Out There: Have you really considered the requirements of the 2016 ALTA/NSPS Minimum

Standards?

2016 MINIMUM STANDARDSSec. 1. Purpose - … For a survey of real property, and the plat, map or record of such survey, to be acceptable to a title insurance company for the purpose of insuring title to said real property free and clear of survey matters certain specific and pertinent information must be presented for the distinct and clear understanding between the insured, the client, the title company, the lender, and the surveyor professionally responsible for the survey. [Emphasis added.]2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, Sec. 1, Para. 2. Effective Date of Feb. 23, 2016.

2016 MINIMUM STANDARDSSec. 1. Purpose… In order to meet such needs, clients, insurers, insureds, and lenders are entitled to rely on surveyors to conduct surveys and prepare associated plats and maps that are of a professional quality and appropriately uniform, complete and accurate. [Emphasis added.]2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, Sec. 1, Para. 3. Effective Date of Feb. 23, 2016.

2016 MINIMUM STANDARDSSec. 1. Purpose… To that end, and in the interests of the general public, the surveying profession, title insurers and abstracters, the ALTA and the NSPS jointly promulgate the within details and criteria setting forth a minimum standard of performance for ALTA/NSPS Land Title Surveys. A complete 2016 ALTA/NSPS Land Title Survey includes: …

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[Emphasis added, and a list of criteria follows.]2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, Sec. 1, Para. 3. Effective Date of Feb. 23, 2016.

2016 MINIMUM STANDARDSSec. 3. D. Boundary Resolution - The boundary lines and corners of any property being surveyed as part of an ALTA/NSPS Land Title Survey shall be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and fieldwork. [Emphasis added.]2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, Section 3.D.

2016 MINIMUM STANDARDSSec. 3. E. iii. Measurement Standards - … Relative Positional Precision is a measure of how precisely the surveyor is able to monument and report those positions; it is not a substitute for the application of proper boundary law principles. A boundary corner or line may have a small Relative Positional Precision because the survey measurements were precise, yet still be in the wrong position (i.e. inaccurate) if it was established or retraced using faulty or improper application of boundary law principles. [Emphasis added.]2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, Sec.3.E.iii.

2016 MINIMUM STANDARDSSec. 7. Certification –This is to certify that this map or plat and the survey on which it is based were made in accordance with the 2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, jointly established and adopted by ALTA and NSPS, and includes Items of Table A thereof. The fieldwork was completed on ___________. [Emphasis added.]2016 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, Sec.3.E.iii.

A NEW PRACTICE MODELAn Evidentiary Exercise, Not a Measurement Task: We need true “Standards of Practice,” not the technical standards we currently

have. We need recognize that the survey of property is an evidentiary exercise, not a

measurement task, and our standards of practice need to reflect this. We have to define the standard of care in our standards of practice. And we need to understand that the preponderance of the best available evidence

is the evidentiary standard.

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A NEW PRACTICE MODEL“I have been led to adopt in my own work the ‘Principle of Cumulative Evidence.’ It seems that, either rightly or wrongly, it is incumbent on the surveyor to collect all the evidence in each case and to carry his work along the lines of the preponderance of probability. In nearly all cases, while some of the data are either ambiguous or even conflicting, there is usually a large preponderance of evidence which point more or less clearly to one solution of the problem, and my own experience, containing some few examples, leads me to believe that this generally indicated solution is probably the right one.” Mulford, A.C., “Boundaries and Landmarks,” 1912, D.Van Nostrand Co., New York, at 42-43.

A NEW PRACTICE MODELStandard of Care: As true professionals, we have the privilege of liability. If not, we are mere

technicians.

A NEW PRACTICE MODEL“Since we as surveyors are liable, one of the greatest deterrents to substandard work is this liability. While liability to the individual may be considered a disadvantage, it is an advantage to a profession as a whole. Without liability, I fear that those willing to do poorer work for less money would soon ruin the professional standing of all land surveyors. And so I say, professional liability is a privilege tending to prove the land surveyor’s professional standing. Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.

A NEW PRACTICE MODELSurveying Property: After defining the standard of care, we have to define what it means to survey

property. Then, you are either surveying property or you are doing something else. How about some true in advertising?

TRUTH IN ADVERTISING

Deed-StakerorBoundary Surveyor?

A NEW PRACTICE MODELAlabama StatutesTitle 8. COMMERCIAL LAW AND CONSUMER PROTECTIONChapter 19. DECEPTIVE TRADE PRACTICES

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§ 8-19-5. Unlawful trade practicesThe following deceptive acts or practices in the conduct of any trade or commerce are hereby declared to be unlawful: …

A NEW PRACTICE MODEL(2) Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services. (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has sponsorship, approval, status, affiliation, or connection that he or she does not have.

A NEW PRACTICE MODEL(7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. …(9) Advertising goods or services with intent not to sell them as advertised. …(27) Engaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce.Tennessee’s Act is found at: § 47-18-104. Unfair or deceptive acts prohibited. Tennessee Statutes.

ADVERTISING DEFINED“To advise, announce, apprise, command, give notice of, inform, make known, publish. To call a matter to public attention by any means whatsoever. Any oral, written or graphic statement made by the seller in any manner in connection with the solicitation of business.”Black’s.

A NEW PRACTICE MODEL2. DEFINE WHAT IT MEANS TO SURVEY PROPERTYYou are either surveying property of you are doing something else.

A NEW PRACTICE MODELHere is the Problem:NCEES Model LawLicensure of Engineers and Surveyors110.20 DefinitionsB.4. Practice of Surveying—The term “Practice of Surveying,” as used in this Act, shall mean providing, or offering to provide, professional services …. Professional services include … information related to any one or more of the following: …c. Locating, relocating, establishing, reestablishing, or retracing property lines or boundaries of any tract of land, road, right of way, or easement

A NEW PRACTICE MODEL

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Here is the fix:NCEES Model RulesIntroduction210.20 Definitionsx.i. The terms “locating,” and “establishing” used in the NCEES Model Law, Section 110.20 para. B.4.c., refer to an “original survey” of property being conducted for the owner(s) of a parent tract of land in order to:a. delineate new property lines for a subdivision of the parent tract;

A NEW PRACTICE MODELHere is the fix:210.20 Definitionsb. re-configure existing property lines under common ownership for a new

subdivision of property; or c. subdivide a section or portions of a section of land as a part of the Public Land

Survey System (PLSS), that is under common ownership, where no such subdivision has ever been previously conducted on the ground.

The purpose of an original survey is to create an original subdivision or re-subdivision of land under common ownership.b.

A NEW PRACTICE MODELHere is the fix:NCEES Model RulesIntroduction210.20 Definitionsx.ii. The terms “relocating,” “reestablishing” and “retracing” used in the NCEES Model Law, Section 110.20 para. B.4.c., refer to a “retracement survey” of existing property lines or the boundaries of any tract of land in order to determine where the property lines have become established on the ground, either through a previous original survey of the property lines being retraced or by the application of appropriate boundary law principles governed by the facts and evidence found in the course of performing the retracement survey.

A NEW PRACTICE MODELHere is the fix:210.20 DefinitionsA proper retracement survey shall include, but is not limited to:a. appropriate record and field research; b. gathering and evaluating the best available evidence indicating where the property

lines being retraced have become established on the ground; c. if necessary, interviews with local landowners familiar with the property boundary

lines in the community; and

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A NEW PRACTICE MODELHere is the fix:210.20 Definitionsd. reporting these findings on an appropriate map of survey indicating the corners

and the lines retraced, the monuments found or set during the course of the survey, and an explanation of the boundary law principles employed by the surveyor in making such determination.

Any survey of property includes setting or resetting appropriate boundary monumentation, unless appropriate monumentation already exists.

A NEW PRACTICE MODELSurveying Property, or Doing Something Else: You are either doing that, or your are doing something else. If you are doing something else, you are not allowed to set monuments.

A NEW PRACTICE MODELSurveying Property, or Doing Something Else:Forensic Survey - The application of surveying science to the elucidation of questions before courts of law and equity. Forensic surveys are not boundary surveys and, as such, no opinions are given as to the status of property lines or property corners, nor are property corners established or re-established as a result. The most common utilization of forensic surveys is for courtroom exhibits to advance legal theories, to support facts to be proven and to buttress expert witness testimony

A NEW PRACTICE MODEL3. DEVELOP A NEW PRACTICE MODELWe need a New Practice Model that will level the playing field and increase our

success rate.

A NEW PRACTICE MODELA New Practice Model: Fence-Line Surveyor or Deed-Staker, works the same either way. In the vast majority of cases, there is always a status quo. Conduct your survey and you will either be maintaining the status quo or your will

not.

A NEW PRACTICE MODELMaintain the Status Quo: If the results of your survey maintains the status quo, there is nothing left for you

to do other than finish your survey and move on.

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A NEW PRACTICE MODELUpset the Applecart: If the results of your survey are going to upset the applecart (break the status

quo), then before the survey is completed the following actions must be taken:

A NEW PRACTICE MODELAction List:1. Consult all available boundary location doctrines to see if any apply that will

maintain the status quo. If not then,2. Explain to your client why you feel you must upset the status quo;3. Then have a conference with your client and any other affected landowner;4. Explain to all affected parties why you feel you must change the status quo. From

this conference will come one of three possible outcomes:

A NEW PRACTICE MODELThree Possible Outcomes: 1. They will agree with you.2. They will disagree with you.3. They tell you to go away.

A NEW PRACTICE MODELThey Agree with You: At this point your job becomes to help them memorialize the agreement and finish

the survey.

A NEW PRACTICE MODELThey Disagree with You: They disagree with you and want to maintain the status quo. At this point your job

becomes to help them memorialize their agreement to maintain the status quo no matter how much you want to upset the applecart.

A NEW PRACTICE MODELThey Tell you to Go Away: At this point you go away. No harm no foul.

A NEW PRACTICE MODEL4. OUR MANTRA MOVING FORWARD MUST BE: “MAINTAIN THE STATUS QUO.” Rightly seen, the Land Surveyors role in society is that of Stewards of the Nation’s

Property boundaries. As such, we should be focused on maintaining the status quo as opposed to upsetting the applecart.

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A NEW PRACTICE MODELStewards of the Nation’s Property Boundaries: “I see passion for this profession in the vast majority of surveyors I encounter. Without it, they wouldn’t be land surveyors. You could certainly make more money doing something else. We’ve got to channel that passion into why we do what we do. That discussion has to start with the word ‘because.’” Lucas, Jeffery N. , “Why? Because…” P.O.B. Magazine, August 2014.

A NEW PRACTICE MODELStewards of the Nation’s Property Boundaries: “Because land surveyors are the stewards of the Nation’s property boundaries. That’s why.” Lucas, Jeffery N. , “Why? Because…” P.O.B. Magazine, August 2014.

A NEW PRACTICE MODELStewards of the Nation’s Property Boundaries: Recognize first what our role in society is. We are the Stewards of the Nations

Property Boundaries. New mantra: “MAINTAIN THE STATUS QUO.”

A NEW PRACTICE MODEL5. STANDARD CONTRACTS FOR BOUNDARY SURVEYING SERVICESWe need standardized contracts, like the architects have, when performing property

boundary survey. This will help level the playing field and tend to ensure that all surveyors are all working off the same page.

A NEW PRACTICE MODELStandard Contracts Defines the services to be performedProfessional services—the rendering of a well-reasoned opinion on the location

questionContingency clause Termination clauseAddresses guarantees and warranties Limitation on liability Etc.

A NEW PRACTICE MODEL6. A TIERED LICENSEA “Masters” license for boundary surveying, whereby only “Master Property

Surveyors” can perform boundary surveying, mark boundary lines, set & rehabilitate boundary corners.

A NEW PRACTICE MODEL

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Master Property Surveyor (MPS) Boundary SurveysRight-of-Way SurveysLand Surveyor (LS) Topographic SurveysHydrographic SurveysGeodetic SurveysConstruction StakingRecord (As-Built) SurveysQuantity Surveys

A NEW PRACTICE MODEL7. A MULTI-JURISDICTIONAL LICENSEAllow the Master Property Surveyor to operate across jurisdictional boundaries.

A NEW PRACTICE MODELMaster Property Surveyor (MPS) Operate Across Jurisdictional Boundaries with Similar Land Tenure Systems This Would Help with our Critical Mass Problem This Would Help to Insure that Only the Qualified were Able to Practice Property

Boundary Surveying

A NEW PRACTICE MODEL8. WE WILL NEED TO DEVELOP NEW SKILLS MOVING FORWARDIn order to create a successful New Practice Model, focused on solving people’s

problems as opposed to just finding them, are going to need new skills moving forward.

A NEW PRACTICE MODELNeeds Moving Forward: ADR Training and Skills. Standardized Contracts. Contingency and Termination Clauses. Establishment Doctrines and How They Apply. Various Vehicles for Memorializing Boundary Agreements/Adjustments. Legislative Efforts. Revised Standards of Practice.

A NEW PRACTICE MODEL8. WE NEED TO CREATE A TIPPING POINT THAT WILL WIN PRACTITIONERS OVER TO

THE NEW MODELA Tipping Point is what got us into the mess we are currently in, we need to go back

to the way surveying was once practiced—before Brown.

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A NEW PRACTICE MODELHow do we Create a Tipping Point? How can we go from our current failed practice model to a new practice model in

keeping with why we do what we do?

A NEW PRACTICE MODEL9. WE NEED TO ADVERTISE OUR SERVICES BASED ON THE NEW PRACTICE MODELA Tipping Point is what got us into the mess we are currently in, we need to go back

to the way surveying was once practiced—before Brown.

A NEW PRACTICE MODELOur 30 Second Sound-Bite: “Buying a home, making improvements, putting up a fence? Do you know where your property lines are located? Land surveyors are the stewards of the nation’s property boundaries. We ensure the American Dream of real property ownership by providing reliable property boundary location services. No other professional can do that. Do not entrust your most valuable asset to chance. Call a licensed land surveyor today. And when you do, make sure they are a member of the National Society of Professional Surveyors.”

A NEW PRACTICE MODEL10. START WITH “WHY”“People don’t buy what you do, they buy why you do it.” Simon SinekThe “why” is your passion—you do what you do because of why you do it, not the

reverse.

A NEW PRACTICE MODELDoing Nothing is not an Option if we are to Remain Relevant well into the 21st Century.

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