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Best Regards
Jeff Lucas
No doubt many of you have already heard about the recent article that appeared on Bloomberg.com entitled “Land Surveyors Are Paying the Price of Progress” (“Paying the Price”).[1] In case you missed it, “Vizaline” is a company founded in 2014 that, “uses public information to draw lines on a map showing property boundaries. They do this mostly for small banks who need to visualize the properties they are holding.”[2] That article goes on to say: “Since its founding, the company has grown to six employees in Mississippi. It operates in five southeastern states and provides its services to over 30 banks, mostly in Mississippi.”[3]
The Mississippi Board of Licensure for Professional Engineers and Surveyors filed a complaint against Vizaline for practicing surveying without a license, in violation of Mississippi law. Vizaline filed a counter-complaint, supported by an organization called the “Institute of Justice,” for violation of Vizaline’s First Amendment free speech rights. I do not have the details of these complaints as of this writing and the case will be litigated to some final resolution, but in the meantime this case highlights some problems for both Vizaline and the surveying profession.
What is a survey of property?
Conveniently, “Paying the Price” had a link to a typical Vizaline, “Viza-plat Property Report.” See the Viza-plat and Report, below. As reported, Vizaline is claiming that its “Report” isn’t a survey. It includes a disclaimer that, “It is not a Legal Survey, nor is it intended to be or replace a Legal Survey.” I’m not exactly sure what a “Legal Survey” is, unless this implies that the only ‘legal’ 
survey is a survey performed by a duly-licensed land surveyor and a tacit admission that Vizaline’s ‘survey’ is otherwise illegal. Although our licensing laws (all 50 states) are somewhat similar, there are differences in all of them, and whether Vizaline is in violation of any one of them will require a case-by-case examination.
I perform property boundary surveys, which, in the final analysis, are well-reasoned opinions on the location of property lines on the ground. I utilize the client’s deed and the deeds of adjoiners, the extrinsic and collateral evidence of the true location of the property boundaries (occupation, fences, oral evidence, even aerial photos, etc.), and render a ‘report’ of the property line locations in the form of a map or plat of survey that graphically depicts the property lines, and contains a description and pertinent surveyor’s notes. I see similarities between what I do and what Vizaline has done with its report.
Considering Vizaline’s report, the immediate issue that comes to my mind is: What is Vizaline doing that could not be accomplished by downloading the tax assessor’s map of the property? Unless it is this one thing: Vizaline knows what surveyors know about tax assessor’s maps, they are notoriously unreliable for property location purposes (some better than others) and are only intended to represent a parcel of land for taxing purposes. No one in their right mind would rely on it for anything else, especially property line location. I know that my own house in Jefferson County, Alabama, is physically depicted on my next-door neighbor’s lot when the aerial mapping layer of the county’s GIS is turned on, and the road in front of my house is going through the houses on the other side of the street. Further down the block they have lots overlapping, but they are tax maps.
The example Vizaline report is not utilizing tax map locations. It’s obvious that Vizaline is consciously deciding where property lines are located on the ground and depicting those locations on their map, disclaimers notwithstanding. And, of course, charging their client’s for performing these services. This is a distinguishing characteristic of professional services—charging for those services. I often use the legal profession to make this point. Anybody can be an attorney; an attorney is simply one who represents another. You can be your own attorney or with a power of attorney you can represent someone else. It’s when you are paid by someone else to represent them that you step into the role of lawyer requiring, by law, to be duly licensed. Go practice the law without a license and see what happens to your free speech rights.
Speaking of free speech, I know that not all speech is free. One cannot freely disparage or slander another without the possibility of legal reprisal, this includes the slander of someone’s good title. One aspect of title to property is the occupation of that property. Vizaline’s depiction of the property in its report could be slandering the title of an adjoiner or even the subject property owner. Without going into a full-blown discussion on slander of title, the slanderous accusation is complete when it is published, and it is published when communicated to someone other than the title holder—say when Vizaline turns the report over to its Banker client. These are just a couple of problems with the unqualified rendering opinions on the location of property lines. There are many more examples that space will not allow.
The protection of property rights
The only reason to license surveyors and regulate the practice is to protect the property interests of the landowning public. On this issue licensing boards agree with nearly identical language. “The Mississippi State Board of Licensure for Professional Engineers and Surveyors was created to ensure the safeguarding of life, health and property and to promote the public welfare.”[4] And the Mississippi Board, like other similar boards is authorized to achieve that goal.[5] Tangentially, surveyors play a role in safeguarding life and health, but it is the safeguarding of property and the associated rights (property rights; including the location of that property on the ground) that is the core issue. There is no other reason to regulate the profession.
In my estimation, this is where Vizaline steps over the regulatory boundary. At best, disclaimers aside, Vizaline is providing its clients (admittedly Bankers and not the landowners) with a visualization of the location of property lines on the ground. Bankers are not the only ones with property interests at stake. Surveyors also work for bankers and others who may not be the actual landowners, but the surveyor’s goal is to identify the true and correct location of the property lines on the ground, regardless of who is paying them.
Surveyors are in the business of protecting the location of the property rights, this does not appear to be the goal of Vizaline. At worst Vizaline may be perpetuating fraudulent misrepresentation[6] of those lines or even slander of title. If anything, experience has taught us that when an unsophisticated landowner gets their hands on such a map they will rely on it to their detriment. In many cases they think a tax map of their property is as good as a survey and those maps have disclaimers as well. When detrimental reliance takes place, the fraud is complete.
Regulatory overreach
This is where the surveying profession has a problem. “Paying the Price” referenced the Pennsylvania case of Southeastern Reprographic v. Bureau of Professional and Occupational Affairs, et al (the “Board”),[7] on the issue of regulatory overreach. Utilizing statutory language similar to Mississippi’s (and similar to many other jurisdictions), the Board concluded that an unlicensed firm performed “engineering surveys” in violation of the law when it collected spatial data on power company facilities “in an area that spanned six or seven counties, included over 100 square miles of land, and involved 3,200 miles of electrical lines and 100,000 point locations requiring inventory,” utilizing “mapping grade GPS/GIS technology,” locating “assets to sub-meter accuracy. … Based on this evidence, the Board found that [the company’s] field staff, unlicensed under the Law, used GPS/GIS equipment, mathematical calculations and other tools to search, identify and locate the x-y coordinates of [the power company’s] assets on the Earth’s surface.”[8] The Board determined that Southeastern was practicing surveying without a license; the court overturned the Board’s decision.
Mississippi’s definition of surveying is almost the same as Pennsylvania’s:
“The practice of ‘surveying,’ … shall mean providing professional services such as … mapping, assembling and interpreting reliable scientific measurement and information relative to the location, size, shape or physical features of the earth, improvements on
the earth, the space above the earth, or any part of the earth, utilization and
development of these facts and interpretation into an orderly [map], plan
or report….”
In this day-and-age, this language is too broad. According to this definition, Google, Esri, Garmin, Microsoft and others are surveying every day, without a license, and they are crossing jurisdictional boundaries doing it. Today, anybody with the right tools can be an expert measurer. If expert measuring ability is all the land surveying profession has, we have nothing. You can’t regulate the tools and you can’t regulate expert measurement ability, go ask the Pennsylvania Board.
This is what Vizaline is arguing, but they miss the point. The point is the property interest of the landowning public, not whether they can use a computer and a Google Earth image. The real question for Vizaline is, can they give an opinion on the location of property lines on a georeferenced map, which is the tech-savvy equivalent of the on-the-ground location? The real question for the land surveying profession is, are we in the property rights business or merely expert measurers? If we allow the one job we have (the location question) to get away, then we will be, as the article suggests: Paying the Price of Progress.
Endnotes:
[1] “Land Surveyors Are Paying the Price of Progress,” by Stephen L. Carter, Bloomberg.com, July 19, 2018. Two related articles appeared on the online version of the Mississippi Clarion Ledger. “Madison tech-biz says rights are being violated by state board trying to shut him down” (“Madison tech-biz”), by Jimmie E. Gates, July 13, 2018, and “Government overreach is killing this Mississippi tech startup” (“Government overreach”), by guest columnists Brent Melton and Scott Dow, July 24, 2018. Melton and Dow are apparently the co-founders of “Vizaline,” a tech startup that uses deed descriptions to draw property lines on Google satellite photos, to be used by banks and other lending institutions to “visualize” the property these institutions are lending money on.
[2] “Madison tech-biz.”
[3] Id.
[4] Rule 30-901-1.1, Mississippi Administrative Code.
[5] See, Rule 30-901-1.2, Miss. Admin. Code
[6] “Fraudulent misrepresentation. A false statement as to material fact, made with the intent that another rely thereon, which is believed by the other party and on which he relies and by which he is induced to act and does act to his injury.” Black’s Law Dictionary.
[7] Southeastern Reprographic v. Bureau of Professional and Occupational Affairs, the State Registration Board for Professional Engineers, Land Surveyors and Geologist, 139 A.3d 323 (Pa.Cmwlth, 2016). The court concluded: “Applying the above analysis, we [the court] conclude that the Board erred in concluding that [Southeastern] engaged in the practice of land surveying ….” Id. at 333.
[8] Id., at 326.
In the January Edition of The Lucas Letter, we are studying the case of Rivers v. Lozeau, Florida Court of Appeals, 1989. This infamous case is the genesis for the “First Surveyor Concept” or simply “First Surveyor,” the case that singlehandedly created the concept that there is a third role for the land surveyor; that of ‘first surveyor.’ The surveyor’s role as ‘original surveyor’ and ‘retracing surveyor’ are firmly established in American property law. In contrast, the First Surveyor concept, has one court opinion to hang its hat on, Rivers v. Lozeau. The concept basically states that the ‘first surveyor’ to attempt to subdivide a section within the Public Land Survey System (PLSS), or any subdivision for that matter, where the subdivision lines have been protracted on a plan of subdivision and not actually run on the ground, will be honored as an ‘original surveyor’ only if proper procedure was followed, or, in some instances, if the first surveyor’s results are deemed ‘close enough.’ If not, then the first surveyor’s survey results are always open to collateral attack. Is this a legitimate concept based on the correct law or is it just another instance of surveyor mythology, where surveyors just believe what they are doing is right without any supporting legal bedrock? We explore that question in this program.
The December Edition is our second ethics case of the year. We do an Ethics Edition in June and December. Some of you are writing me privately about this edition with some very interesting comments. I would love it if you would post your comments here so that others might have the benefit of your insights into the case.
Primarily, this case is a negligence case, but negligence often rubs up against ethical issues and this case does just that. The basic elements of negligence (as discussed in the case) are a duty owed by the tortfeasor, breach of the duty, causation and damages. All four elements have to be proven by a preponderance of the evidence. Of these four elements, really the only one that the practitioner can control is a breach of the duty owed. In other words, the duty owed by the practitioner is to exercise the same standard of care as any other reasonably prudent practitioner in like or similar circumstances. Whether a duty is owed to a given plaintiff is a question of law to be decided by the court, and if the surveying activity caused damages, then the only unanswered question will be if the practitioner’s actions fell below the standard of care.
Well, we’ve had some ups and downs with the Blog. Now, maybe, finally, we are on the upswing. The appearance isn’t exactly what I wanted. I wanted the comments to remain open for visitors to be able to read the comments to the Blog post without having to click on the little hotlink at the bottom. But, alas, the website theme we have will not support that type of format and without changing themes or performing open heart surgery on the website, we are going with what the theme allows.
So, if you hit on the blue link below the Blog post you can leave and comment and/or read the comments left by others. So, I invite your comments.
Have a great weekend!
In our October edition we studied the case of a retracement survey gone wrong. Wallace owns Lot 98 and his neighbor to the north, Griffin, own Lot 97 of the Bost Estates subdivision. The original monuments for the corners of the lots (“iron axles or stakes”) were set by Fisher in 1945. This included the corners for the common boundary between Lot 97 and Lot 98, the line in controversy and the subject of the case. Ritchie found the original monuments in 1973, but his survey was discounted because Ritchie was not a licensed surveyor. Craddock found the monuments in 1990 and again in 1999, and found trees marked along the line. Flowe found the same line in 2000 and for trial expert Harris confirmed that the “Wallace Line” (as it was called, the ‘blue’ line) was monumented, marked and the true boundary line for Lots 97 and 98.
Rushing, working for Griffin in 2000, by his own admission ignored the “old axle irons” at the corners and the markings in the trees along the line in question and “built his line” using distances from other lots and “established” the supposed true corners, because he was “hired to ‘re-establish’ the line between lots 97 and 98.” This new line was referred to as the “Griffin Line” (the ‘red’ line) and was some 50 feet south of the Wallace Line and projected through two of Wallace’s buildings.
Does anybody think Rushing performed a retracement survey, or was he obedient to measurement?
The fundamental principle of retracement surveying is to find where the boundary lines have become established on the ground, not to correct them, or suggest where they should have been. The retracement surveyor ‘establishes’ nothing, the lines are already established. This reveals a elementary problem with our definition of boundary surveying, which we have discussed on may occasions. The genesis of the problem is the definition that has been promulgated by the NCEES and adopted by most of the licensing Boards across the country. From the NCEES we find that surveying boundaries is: “Locating, relocating, establishing, reestablishing, or retracing property lines or boundaries of any tract of land ….” What do these terms mean? They seem to indicate that I have options, whether I’m an original surveyor or a retracing surveyor, to do any or all of the above with regard to any given boundary line. This is precisely what Rushing did. He “re-established” the boundary line some 50 feet to the south and through two existing buildings. This is fundamentally wrong but seem to be acceptable under the definition.
What’s the problem here, the surveyor or the definition?
Hello friends. We finally have the blog working. To celebrate we are activating a new Coupon Code NEW1 that is good for 15% off of any of our Correspondence Courses. Pick the courses you want and apply the Coupon at checkout. NEW1 will expire Monday, November 11.
Have a great weekend.
Jeff Lucas