How Private Are Records?

Many surveyors routinely research private surveying records in the course of conducting boundary surveys. After instrumentation, knowledge of boundary law, and recorded evidence (all of which have been covered by standards for some time), unrecorded survey evidence ranks as having the most profound impact on the accuracy of the final outline. The concept of evaluating unrecorded records in the course of conducting boundary surveys has been in place for generations. Indeed, in some areas, property retracement is impossible without the use of unrecorded data. Consider any corner created by a private transfer of land before 1900; in some areas, before 1960!

Common Surveying Custom

Even in areas where there is an abundance of recorded calls, the custom of surveyors is to consider unrecorded data when it is available. Let’s explore that for a moment. When you are retained to conduct a boundary survey of a particular parcel, one of the first things you are likely to consider is whether you have had occasion to work near the parcel previously. If so, the data from that former survey may be of use in the current effort. The fact that the former survey might never have been recorded is not an issue. In older states such as Maryland, most surveys have gone unrecorded. To consider those older surveys as irrelevant risks the dismissal of valuable evidence necessary for correct retracement. I have yet to encounter a surveyor who ignores his own prior work in a particular area simply because it is unrecorded. Nor do surveyors ignore the work of others when available.

But there is a larger issue at work here. The public expects surveyors to retrace property lines in such a way that if the work is ever disputed it has a reasonable chance of being upheld by the courts. The public also expects the surveyor to know what he or she needs to know to be able to do that. In addition, public policy dictates that no single source of surveying talent monopolize the market. In general, the public expects that all surveyors available for hire are able to perform generally the same standard of work using generally the same methods and materials. This is a gross oversimplification of the actual state of affairs, but I believe the public has that expectation.

The general assumption is that the records used or considered during a survey are the same from competent surveyor to competent surveyor. In other words, if your private survey records are of value to you on a particular project, they must be of value to any reasonable and prudent surveyor on the same project. (The reverse must also be true—unrecorded surveys which are not in your possession may be essential to your project.)

The Value of Your Records

Therefore, if you generally your competitors from access of your records, you strip the records of any value to yourself. Ponder that for a moment. Let’s suppose a dispute arose over the location of a boundary line and your location of the line differed from that of another surveyor. If you relied on records that were not of record and were unavailable to other surveyors, you would in all likelihood lose the court case, even if you had the superior retracement. The reasoning behind this is simple: public policy discourages unregulated monopolies. If a boundary can only be correctly retraced using your private records, and you are the only one with access to those records, you have a monopoly over the correct retracement of that property. Notice I did not say you had an actual monopoly over the retracement of the property. But no other surveyor could correctly retrace the lines.

Now, when it became apparent to the court that the records used were proprietary, the court probably would strike down the monopoly and render your records—and hence the survey based upon them—ineffectual.

I am not intending to show here that private records are automatically to be honored during a retracement. All data collected during a survey—including private records—must be evaluated by the surveyor and a judgment rendered. It may turn out after evaluation that the private record evidence is overshadowed by other evidence uncovered during the survey. The essential tenet is for the retracement surveyor to have all the evidence pertinent to the problem. One cannot evaluate evidence one does not have.

The courts in my state of Maryland have had occasion to address the issue of private survey records. In 1946, the correct solution to a boundary dispute in Gilesv. DiRobbio et al., 46 A.2d 611 (Md.), depended upon private records. Briefly, the dispute arose between adjacent lot owners in a subdivision platted in 1919 by Thomas H. Disney. The plat was deficient from a surveyor’s viewpoint, particularly in that sufficient calls necessary to retrace the lots (either monuments or courses and distances, or both) were missing. Graphically, however, the lots were depicted consistent with the general custom at the time. Giles engaged a surveyor, who attempted to retrace the lines of his lot using a combination of evidence on the ground—pointed out by Giles—and the notations on the plat. Using this evidence, he arrived at a boundary location which disrupted the possession of several adjoining lots, including DiRobbio’s. DiRobbio then retained one Mr. Sisson, who had access to Disney’s records.

"Mr. Sisson, a surveyor associated with Coonan and Company, and who testified for the defendants, produced in court the field book used by Mr. Disney at the time he made his original survey … in March 1919. … [Sisson] located the westerly line of that lot from the fence and apparent line of possession there being, and from the stump of a cherry tree shown by Mr. Disney on his field book, at a point 5 feet northeast of the line and 503 feet from the road" (emphasis added). The plat contains no reference to the tree stump. Using the book, Sisson retraced the outlines of the lot.

No Fault Found

It is interesting to note that the court did not find fault with the original plat prepared by Disney. It simply assumed that the survey was correct as run and that any admissible evidence available to shed light on the survey was welcomed. The opposition objected to Sisson’s use of the book (since it destroyed their case). The court disagreed:

"Objection was made to Mr. Sisson’s use of Mr. Disney’s field book. The book was definitely proved to be the book that Mr. Disney used when he made the survey in 1919. Mr. Sisson, while testifying, referred to Mr. Disney’s notes in this book. We can see no reason why this was improper, and the court was correct in overruling the objection made by appellant. Sisson’s survey confirms the original survey made by Disney."

One might argue that only lines created by the survey in question enjoy the option of field notes and other unrecorded evidence being used to clarify the survey, but this apparently is not so. In Dundalk Holding Co.v. Easter, 73 A.2d 877 (Md. 1950), conflicting surveys resulted in a boundary dispute. In sifting through the testimony, the court said:

"Moreover, the witness Tustin, a partner in the firm of Martenet and Co., testified for the appellees that he verified on the ground the survey made by his partner Sutton, who prepared the description for the Gulf Oil Corporation deed. It was permissible for him to use the field notes of this prior survey."

Having seen the files on the survey, I can report that Sutton did not create the lines in question, but merely retraced them and prepared a description from his survey. Thus, it would appear that the Courts permit using unrecorded files and other data in the retracement of property lines.

Usefulness of Unrecorded Data

The usefulness of the unrecorded data is not limited to the retracement of old surveys. The information transmitted in our legal descriptions and on our recorded plats today is but
a small part of the massive amount of data accumulated and analyzed during the course of a typical survey. The balance of that information remains in the files of the surveyor for later use. It is also apparent that as field evidence gets obliterated over time, as it will do, the evidence that is both on the ground and mentioned in recorded documents will dwindle—sometimes to the point of untraceability. In most areas it has not been the custom of surveyors to call monuments honored which do not fall on the outline of the property. The retracement surveyor, having only the recorded information to rely upon, will not know that the survey honored those monuments, and is thus deprived of useful evidence.

Basically put, private records are an essential ingredient in most boundary retracements. Their use, however, presents dilemmas—for the surveyor possessing the records and for the surveyor needing the records. The surveyor possessing the records may not, at first, believe he or she is faced with a dilemma—that is until a competitor who has a lower price asks for the data. What would you do? You have been asked to update a survey on which you lost money in the initial effort. When, three years later, the client asks for an update, you reason that the later effort could allow you to recoup some of your loss. You notify the client of the price to update the work and await the notice-to-proceed.

A week later the surveyor down the street calls to ask for the data on the three year old survey and says that your former client has retained him for the current work. Naturally, you want to tell your competitor to fend for himself. However, if you refuse him the records, he cannot be expected to consider the work in his analysis. In effect, you rob yourself of the value of the records. (I do not mean monetary value here, but importance.)

During the course of their careers, surveyors not only earn a living, but also build a base of information on properties in the area where they practice. Thus, even when a surveyor collects no money on a particular project, it may not be a total loss. The surveyor still has added to his or her base of information. This, in part, is what separates surveyors from ordinary businesspeople. The first rule of business is to make money; if an endeavor fails to earn a profit, the business probably would have been better off not to have attempted it in the first place. Surveyors, of course, are not completely immune to the necessity of earning a profit, but the intellectual property generated in the course of a survey has value which, over the years, accrues to the surveyor’s benefit exclusively. Yet its full potential is realized only if others consider it valuable too. In addition, the value increases exponentially if the courts consider it essential to successful boundary retracement.

Two Problems

The surveyor needing the records is faced with two problems. The first is identifying whether private records which could aid his retracement are available. Here is where geographic familiarity becomes of real importance to the retracement surveyor. It boils down to this: if you are working in an unfamiliar area, you’re not likely to identify any unrecorded surveys which could help you. In view of the court decisions above, surveyors should consider carefully whether to accept work in unfamiliar territory. If a local surveyor later disputes your results, you’re not likely to prevail. The second problem is financial—research takes time and time is money. Traveling to the offices of three other surveyors to conduct research will certainly have an impact on the project’s budget.

How, then, shall we serve the public while protecting our own interests? First, the surveyor possessing the records should adopt a policy of whether or not records will be shared (and at what price). While it is not imperative that firms share the data (after all, it does belong to the firm), the decision not to share the data has an undesirable side effect, in that other surveyors will be able to ignore the old surveys with impunity. Since all surveyors are presumed to use the same information when retracing boundaries, surveyors who refuse to disclose data may be on thin ice by using the data. Second, a surveyor must be consistent in the policy. Either the data is available, or it is not. The cost must be consistent for all parties, and must be fair.

Cost May Be Involved

Incidentally, in the past many firms have made their records available to other surveyors at no cost. While infrequent queries about prior surveys present no problem to this practice, more frequent requests could pose a problem. When a firm receives three to four requests a week for information, as could well be the case, it won’t be long before the firm will be forced to make a business decision—either charge for the service or stop the service. Since firms are unlikely to allow outsiders free rein through their files, someone employed by the firm will have to search the files to look for the requested data. It is not unreasonable for the firm to charge for this time. The surveyor requesting the information should pass the cost on to the client, who will end up with a more complete survey.

The surveyor needing the data first needs to know the sources of information in his area. What competitors share data? Which surveyors are active in the area? Who has the deceased surveyors’ records and what shape are their files in? Second, he needs to anticipate that additional research may be necessary to obtain the data required to correctly retrace the boundary. His contract also should provide for research costs. Third—and this is most important—he needs to recognize that finding unrecorded survey information may be one of the most important phases of the project, potentially saving time and money on the effort, and rendering him a nearly bullet-proof determination of where existing property lines lie.

The surveyor needing the data is potentially at risk when he attempts to uncover private data and it is denied him. When this occurs, it is imperative that he document the attempt, either through the use of conversation logs or preferably through a signed letter from the firm denying the data. While the use of such a letter is virtually unheard of at present, it should be given in the future as a protection for those surveyors who cannot get the data they request. Firms would be reluctant to issue those letters to competitors even when they deny them data, but state boards of registration could require a yes/no response.

The public we serve is entitled to the most proficient retracements surveyors can render. Surveyors have made great strides forward in many areas, including instrumentation, techniques and analysis, but little has been done about uncovering most of the written evidence available about former surveys—notwithstanding the fact that this evidence is the foundation upon which present and future surveys are built. We can change this situation by formally recognizing the weight that private survey records enjoy in the retracement process. In the long run, we will have greater protection by doing so.

Copyright © 1995 By Joel M. Leininger, LS