Our Paradigm Problem, Part 1

A recent article in this magazine ("While We Were Looking the Other Way" October 2003) got me pondering. There seems to be a collision of galaxies going on here—the historical professional land surveying industry in collision with new, disruptive technologies like GIS, GPS, etc. The challenges might be distilled down to two issues: Do we understand who and what we are? Do other land boundary workers understand why we are? I want to talk about these issues and then suggest an idea that may help us broadly establish a paradigm that will carry us properly for the next few decades. It is useful to first consider other disruptive technologies and how they demanded deeper understanding of their paradigms than their practitioners possessed.

 

Paradigms
The railroads had perfected their technologies and procedures and were very good at what they were doing when the big trucks and then the airplanes came along. They thought of themselves as strictly railroaders so there never was a B&O Airlines. The Swiss watchmakers had perfected mechanical watches to a high degree of beauty, precision, and accuracy when the digital watch made its debut. It was presented to some of the top Swiss companies and licensing agreements were proffered. The Swiss considered themselves a mechanical watch business only and turned down the opportunity. They lost the digital market, which soon washed over a great portion of the mechanical market. Maybe if we think we are only in the land measuring business we will miss our market, too. Measuring land is only ancillary to what we really do.

Part of our paradigm problem is that we are all experiencing these disruptions. Tools that planners and researchers have only dreamed about are suddenly in their hands. Not only are these tools fast but they are also extremely precise (but not necessarily accurate). The excitement generated has clouded the minds of all boundary workers, including ourselves. But there is something unique about land surveying that will not change during the foreseeable future. If we can get our heads around this idea, we can get our paradigm correct. To introduce this unique idea, let me pose a conundrum.

Our Paradigm
The more precisely you measure the line, the less accurately you place it. This is a consequence of the interplay between measurement, common law, and the usual practices of professional surveyors. The law says the boundary is where the first markers indicated; the markers are usually gone and/or were not set exactly where the property description says they were; the more precision you apply the more you constrict the error ellipse; the smaller the ellipse, the more certainly the true, accurate line will fall outside of it. The fact is, to do a retracement, the surveyor should temporarily leave his total station in the truck, talk to the land owner(s), then maybe even use a magnetic compass and pace the best he can to the points he is looking for. Then, without his precision instruments, he will be forced to apply the law to locate the corner. All he can do now is make a thoughtful, thorough search for evidence of the boundary, which, when he finds it, will very often be the legal line—the one the court would uphold if it came to that, as it certainly may if he just sticks to his guns.

That little vignette serves to point out two typical problems in our paradigm:

1. Many will think the idea of leaving the precision instruments in the truck is a silly idea, and in some few cases it certainly would be. The difficulty is that many surveyors operate under a seriously flawed paradigm of what they do. They see themselves as deft and accurate measurers—a paradigm that leaves out the fact that boundary lines cannot be accurately located by measurement alone. If they could, civil engineering and surveying would be the same vocation.

2. The more we think of ourselves as measurers, the more unable we are to see the true, large picture of what we are: the only legal steward of land boundaries.

So what is the one unique aspect of land surveying? It is that the location of a boundary is more about law than it is about measuring. In fact, it is fundamentally about human rights. All law grows out of human rights. We are the only statutorily authorized guardians of land boundaries. We execute our duty by application of land law. We measure when that application requires it.

What We Are
In an effort to more fully understand what we do (and therefore what we are), I tried to find the basic principles that define and illustrate the uniqueness of surveying and in the process have drawn up a series of short axioms and corollaries that attempt to describe the essence of land surveying at its "atomic level." These principles bring certain concepts to the front; concepts that firmly establish the absolute necessity of the services only land surveyors can legally render. You will find exceptions to many of these principles, but they are exceptions.

A Summary of Land Boundary Location and Law

1. To hold title or easement upon real property is a self-evident, inalienable human right.
A) Any thing or condition that operates to displace or remove a boundary contrary to the will of the owner is an infringement upon one of his most fundamental rights.
B) Any information system, automated or manual, which purports to describe the boundaries of his property and does so inaccurately, is a clear and present danger to his rights.
C) Any person or process that alters a legal description of a property created by a licensed land survey or without the surveyor's and the owner's consent is a threat to the rights of the owner.

2. The true land boundary line is an invisible, immovable, and perpetual legal entity.
A) All stakes, pins, monuments, etc., are but visible indicia of the location of the line.
B) An existing line is accurately located only by weighing all the evidence and correctly choosing where it has always been.
C) Accuracy has great legal weight; precision has almost none; emphasis on precision often decreases accuracy.

3. Only the owner of a property can create new boundaries and/or set indicia on that property.
A) The law declares he must do this himself or authorize a licensed land surveyor or a court of law to do it.
B) All other attempts to create boundaries are a violation of property rights and are illegal.

4. Lines once drawn on the ground are perpetually fixed in position by their original indicia notwithstanding imprecision in their placement or description.
A) Original surveyed lines as marked on the ground are perfectly accurate.
B) Loss or movement of indicia has no effect on the location of the boundary (except some earth movements).
C) Original indicia/monuments are primary evidence of boundary location.
D) A legal description is secondary evidence of the location of boundaries.
E) Identifying a previously established boundary requires the application of measurement to determine its approximate location and of law to determine its exact location.

5. It is impossible to properly weigh evidence and determine the exact location of the true, legal line without a skilled, judicious person being in the immediate proximity of the line.
A) Only licensed land surveyors and courts of law can legally perform these activities.
B) Many licensed surveyors are not competent in land boundary law.
C) A "pin cushion" corner is prima facia evidence of injudiciousness.
D) Location of an existing corner by measurement alone is at best risky; at worst punishable.
E) No measurement or data system can be endowed with the skill and judgment required to perform these functions.

6. Original surveys establish new boundaries by setting monuments, measuring, documenting, and recording. Retracement surveys locate existing boundaries by searching for evidence, determining facts, and deciding where the line has always been.
A) Surveyors who use a similar approach to both types of surveys are doing at least one type improperly.
B) Surveyors who ignore the law are marking existing corners injudiciously and therefore often inaccurately.

7. The professional land surveyor's statutory stewardship and the duty of the courts is to protect property rights by tending the perpetuation of each property line that comes under their purview.
A) Corners must be permanently monumented and tied to other suitable monuments.
B) Survey data, including documentation of monuments and ties must be accurate, reasonably precise, and publicly recorded.
C) The alteration of a legal description (such as stripping out all but bearings and distances) is an activity that threatens property rights and should be illegal.

Conclusions
No computer system is yet able to consistently describe boundaries accurately. Because the legal principles and information linking adjacent properties are not in the Geographic Information System (GIS) as currently implemented, GIS cannot be used to generate property descriptions or to locate land boundaries. In the next issue, we will take an in-depth look at a number of fatal flaws currently found in land information systems.
A licensed land surveyor is, by virtue of his office, responsible equally to his client and his client's adjoining landowners for accurately locating existing boundaries. He is also charged with the accurate location, monumentation, and description of new lines that a landowner may authorize him to create. He is the only legally authorized steward of land boundaries.
What we really do as land surveyors is protect the property rights of our clients and their adjoiners. We do that by understanding and applying land law and by measuring when that is required. Our role and our duty is as sacred as any hero's who has lived to protect the rights of the people of his land.

To be continued …

Jackson Pemberton has training in Physics, Mathematics, Business Administration, and Land Surveying. He has professionally written articles on the subjects of the U.S. Constitution and land surveying. His experience includes 30 years of computer systems analysis and programming. He is currently looking for original Public Land Survey System (PLSS) corners and developing software to facilitate the complex task of finding such corners. You can read his writings on land surveying and peruse his legal research on boundary and corner law at www.cornerfinder.com and you can contact him at jackson@cornerfinder.com.

Editor's Note: Please note that the opinions expressed herein are those of the author and do not necessarily reflect the beliefs of the staff of GITC America. If you wish to comment on Mr. Pemberton's views, please write to jerry@gitcamerica.com

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