Abandoning Evidentiary Retracement

What persuades surveyors to believe that boundary retracement must eventually be driven from evidence to mathematics?

Some introspective surveyors believe that within a generation we will be forced to conduct "the big survey" which will define all property lines mathematically from that point thereafter. This effort would complement the growing use of digital spatial data. Other surveyors recently bemoaned "the American surveyors’ preoccupation with boundary retracement," as if it were a matter of disdain, and went on to conclude that it is only a matter of time before the practice would be obsolete. Is this inevitable? What will be the catalyst?

I must confess that I am at a loss to understand why the reduction of boundary retracement to mathematics is such a popular proposal among surveyors. Are we afraid that technology will somehow pass us by? Is the confluence of GPS and GIS so compelling that we are willing to shelve centuries of history and turn ourselves into technicians? There are those among us, sadly, who are resigned to such a prospect. However, I don’t quite see it that way.

The Present Situation

Three things are apparent to me. First, the public does not consider boundary lines, as they currently exist, to be in need of redefinition. Although they command the rapt attention of many surveyors (myself included), boundaries are not a hot topic down at the local pub. Since politicians are interested in whatever voters are interested in, it comes as no surprise that no groundswell of support for redefinition looms from that quarter. Further, in this era of shrinking public budgets, only an acute emergency would justify funding the enormous cost of the surveys necessary as the basis for the redefinition.

Second, real property rights, including the location of boundaries, are in large part secured by the common law. While it is not inconceivable that statutes which discard the ancient rules could be enacted, any such statutes would have to be crafted in such a way so as to avoid Constitutional problems—such as depriving rightful owners of land by virtue of "reestablishing" (read: moving) their boundaries. To do so, the law would have to be couched in language stipulating that the lines, as thereafter established, had always been in that location. However, when confronted with indisputable, conflicting evidence of the original location, the courts would be reluctant to uphold the statute because of the Constitutional implications. If that were the case, the statute would really have no effect.

Third, whether the literati like it or not, boundary retracement is the centerpiece of the surveying profession’s contribution to society. While it is essential to explore providing additional services, it seems senseless to abdicate those we already furnish, especially when no one is asking us to. Unless I have completely misread the impetus behind this movement, it appears that the tools now available to us are its inspiration. No surveyor would argue that our tools will not continue to become faster, cheaper, more precise and easier to use. Yet our practice must not center upon our tools, but our tools upon our practice. The challenge ahead for surveyors is not to avoid new technology, but to use it in a manner that addresses the needs of our clients and society at large. It makes no sense to damage our profession in the process. If our goal were to convert retracement to a purely mathematical exercise, at some point we would become superfluous. Is this the zenith of a profession-wide inferiority complex, or what? Our proposing such a notion would certainly lend credence to the concept, since it obviously would be so damaging to our interest. You see, technicians who are adept at manipulating instruments and who are familiar with geodetic computations would be able to locate positions with high accuracy using no judgment. Where there is no need for professional judgment, there is no need for the professional. Why is this such an obscure concept?

What Is The Problem Here?

I am not sure why those convinced of the inevitability of redefinition believe the current situation is so problematical. It is possible that some who have been peripherally exposed to retracement (and its inherent dependence upon judgment) have concluded that mathematical definition (and its inherent independence of judgment) is in the public’s best interest. Observers of the legal process would smile at the discomfort felt by mathematicians. The law of boundary retracement, although one of the older facets of the law, is by no means unique in its imprecision when applying human judgment to the situation. In fact, quite the opposite is true: injecting precision into it would make it unique. The entire body of the law is imprecise—a result of imperfect mortals attempting to address the innumerable situations confronting the human condition.

When pressed on the absolute validity of the numbers, technocrats blush and murmur under their breath that the legal boundary line may not be where the mathematics indicate. No kidding. However, unless I have misunderstood our mission all these years, the public is interested in where the true boundaries are, not where the package would be mathematically tidiest.

Is This Inevitable?

It is curious that the only circle appearing to discuss this "inevitability" is the GIS/geodetic surveying/GPS community. Could it be that individuals at the center of these discussions are unaware of the delicate balance of real property interests honed through hundreds of years of court decisions? The ripple effects of this change would reverberate throughout the legal/real estate community. Mustn’t adverse possession, prescription and acquiescence also be extinguished? If by statute boundaries were governed only by mathematics, there could be no such thing as unwritten transfers. Wait until the law professors and supreme court justices weigh-in on the subject. If you think the hoopla over censorship on the Internet caused a stir, wait until it becomes apparent that fundamental property rights are at stake with this proposal. Perhaps inviting a broader range of participants to the conversation to lend insight on why things are as they are would be appropriate before reaching a conclusion.

Here is an invitation to those who believe boundary retracement, as we know it today, is doomed: write me with specific alternatives having the following characteristics:

• A means of implementing the alternative method without encroaching (no pun intended) on property owners’ fundamental due process rights guaranteed under the Constitution

• Enough money to fund it

My advice to those surveyors who have disdain for retracement? Find something else to do, and leave those surveyors who enjoy the practice alone. Boundary retracement never has and never will consume all the surveying resources in this country. However, discarding the practice would be far more damaging than maintaining it, both to surveyors and to society at large. If we do not understand that, how can we expect others to?

Copyright © 1997 By Joel M. Leininger, LS