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According to the National Society of Professional Surveyors (NSPS), boundary surveyors "…compare and analyze all of the data gathered and reach a professional opinion as to the most probable location of the corners of the property" (from Model Standards for Property Surveys see more at www.nspsmo.org). When it comes to retracements, we gather data in large part by following in the footsteps of the original surveyor. But what to do when those footsteps are crooked? And faded? Hard answers can be hard to come by. Our detective work would be far simpler if only we knew why our predecessors did what they did. But often we don’t. Furthermore, real world cases sometimes involve troubling twists that preclude textbook solutions. The surveyors of old didn’t always follow standard conventions; time was money then, too. The monuments we find may lack documented provenance. What impact will this have on our opinion? And what about pins that don’t stay where the original surveyor set them? Boundary surveyors are obliged to search for the truth of the matter, regardless of how crooked or faded the clues may be. Following are four examples of retracement surveys in which I grappled with such dilemmas.
Case 1: Local Knowledge May (or May Not) Make All the Difference
In this first case my client’s land was described by metes and bounds. The only monument, physical or otherwise, referenced in his deed was a steel pin at the point of commencement, far from the subject property. After several commencing courses, his parcel was "swinging in the breeze," as we say. My client owned the property for over fifty years, and believed a certain axle to be his property corner. His new neighbor’s surveyor disagreed. The problem was that the axle was not called for in the deeds. Not only that, but its position did not comport with record courses. Without relief my client’s driveway would be over the property line. He was not at all encouraged when my field measurements agreed with the fellow he thought was wrong. It was only then that he shared his compelling story.
He told me that he was the last remaining member of a group of people who, some fifty years prior, pooled their resources and bought a piece of land together. Over the following several years they split the property and each took their separate lots. Here’s the rub. In an effort to save money, he and his partners hired an unlicensed surveyor who was moonlighting after his day job. The unlicensed moonlighter surveyed the community property and then wrote the deeds for the new lots. But he never prepared a map or called for boundary monuments in the deeds. Every parcel was "swinging in the breeze," just like my client’s. However, my client claimed that the axle in question was set by the original surveyor, and had thereafter been relied upon by succeeding property owners for the construction of improvements. The issue was further complicated by the fact that my client was the sole survivor of the original developers. There was no one left to corroborate his testimony. And far from being a disinterested party, he stood to gain (to his neighbor’s detriment) by the acceptance of the axle as a property corner. What crooked footprints do crooked footsteps leave.
Case #2: It Helps if There’s a Map
This case concerns a lot retracement in a 1950s-era subdivision. The construction of improvements obliterated many original monuments, but there had been disparate lot surveys over the years. Some benefitted from public documentation; most did not. There were no remaining monuments on my client’s property, so I ventured further afield. A neighbor volunteered that she had her lot surveyed several years earlier, and she offered to show me her property corners. Off to a good start! She led me to her backyard and pointed to a rebar tucked against a rotten stump. "There’s one," she said confidently. I noticed another pin several feet away. It was nearly hidden among the leaves of an old hedgerow. "What about that one?" I inquired. Her confidence evaporated. She wasn’t so sure anymore. She told me that her surveyor said there was a bum pin in the backyard, so he set his own in the correct position. Problem was she didn’t remember which one was which. It would have been helpful if he provided a map, sketch, or written report along with his invoice, but she assured me he had not. Perhaps he didn’t figure that into his estimate. After inadvertently ruining the poor woman’s morning, I continued my reconnaissance elsewhere. When the footsteps are but faded there is still hope. When they’re invisible it’s time to move on.
Case #3: Center of Section Headaches
Public Land Survey System retracements have their own unique challenges. In this case my client’s land was a portion of the southeast quarter of a regular section. Her northwest corner was also the northwest corner of the southeast quarter, that is, the center of the section. Her property had never been surveyed of record, and no physical monuments were called for in her deed. The northwest corner of the land was rugged and mostly undeveloped, but there were costly improvements to the south. All of the section was under private ownership.
Surveys involving the center of a section tend to have more than their share of headaches. This one was no exception and here’s why. This particular section had two local monuments accepted variously as marking the center. They were about seven feet apart. There was no public record of either survey, and my efforts to track down field notes were unsuccessful. No problem; I could establish my own center of the section by measuring with my Magellan ProMark2 GPS receivers. As referenced in the 1973 edition of the BLM’s Manual of Surveying Instructions,it’s a simple task to "…run straight lines from the established quarter-section corners to the opposite quarter-section corners." Except in this case the north quarter-section corner was lost. To first reestablish it by single proportion would introduce an element of uncertainty into a fresh determination of the center of the section. Would my new position be closer to, or further away from, the center of the section per the original survey?
The precision of my equipment far surpassed that of my predecessors, but would that justify a new position? The often-quoted wisdom of A.C. Mulford (Boundaries and Landmarks, A Practical Manual) came to mind: "It is far more important to have faulty measurements on the place where the line truly exists, than an accurate measurement where the line does not exist at all." I wondered if either of the existing monuments had been set in reliance upon the north quarter-section corner before it was lost. I wondered how many deeds and unrecorded (though perhaps valid) surveys relied on them through the years. I wondered if my client would pay me to find answers to these questions. So it goes when the footsteps are not only crooked and fading, but there is more than one set of them.
Case #4: Pins on the Move
Lastly, there was even once a time when I encountered troubles while following my own footsteps. It happened when a farmer hired me to provide surveying and mapping services to facilitate the purchase of a portion of his neighbor’s land. His ultimate goal was to increase the size of his apple orchard by some thirty acres. After the initial fieldwork, and subsequent to his purchase of the property, he hired me again to survey additional lands for the purpose of acquiring an irrigation easement. During my second trip on the property I found one of my own pins in error by app
roximately one foot. I was shocked. I thought I did better work than that. While puzzling over the matter, I noticed that the ground surrounding my pin had been disked in preparation for planting. Further inspection revealed curious scratch marks along the sides of my rebar. So I asked my client, the farmer, if he had uprooted my pin with his tractor. He confessed that he had, but assured me that he "put it back in exactly the same spot". Even straight footsteps (like mine, of course) can go crooked when the ground moves.
The Difference Between Surveyors and Lawyers
Before taking on a retracement project, I generally explain to prospective clients that I cannot predict the outcome. It may turn out that the quarrelsome neighbor is right after all. Or it’s possible that my work will uncover facts that could cloud the client’s title. Talk about talking yourself out of a job! Yet I feel these things must be said because they are true. The next phase of my consultation consists of an explanation of the difference between surveyors and lawyers. The trial lawyer may not care whether or not his client is at fault. He is paid to win the case regardless. The surveyor’s job, on the other hand, is quite different. Recalling the NSPS statement above, our job is "…to reach a professional opinion as to the most probable location of the corners of the property." I take this to mean that we do our best to find the truth. As retracement surveyors we do this by following in our predecessors’ footsteps, no matter how crooked or faint they may be. And there’s nothing crooked about that.
John Wilusz works in private practice in Sacramento, California.
A 1.625Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE