Surveyor s Responsibility. in addition to the measurement of land

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1 Surveyor s Responsibility in addition to the measurement of land PLSO February 10, 2016 Donald A. Wilson, LLS, PLS, RPF Land Boundary Consultant Surveyors Educational Seminars 84 Main Street Newfields, NH All Rights Reserved

2 Surveyor Responsibility Ohio R.C. section (G) Practice of surveying means any professional service that requires the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for the adequate performance of the art of surveying, including, but not limited to, measuring the area or the contours of any portion of the earth's surface, the lengths and directions of the bounding lines, and the contour of the surface, for their correct determination and description and for conveyancing for recording, or for the establishment or re-establishment of land boundaries and the platting of lands and subdivisions; and like measurements and operations involved in the surveying of mines, commonly known as mine surveying. Ohio A.C. section Land Surveying Defined Surveying defined. (A) Surveying shall mean any professional service performed for the purpose of determining land areas, the monumenting of property boundaries, the platting and layout of lands and sub-divisions thereof, including the topography, the alignment and the preliminary grades of streets, the preparation of: maps, record plats, field note records and property descriptions representing such surveys. (B) The adequate performance of such work involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences and the relevant requirements of law for adequate evidence to the act of measuring, and locating lines, angles, elevations, natural and man-made features in the air, on the surface of the earth, within underground workings, and on the beds of bodies of water. Ohio A.C. section Standards for Boundary Surveys Preamble. These rules are intended to be the basis for all surveys relating to the establishment or retracement of property boundaries in the state of Ohio. When the case arises where one or more provisions herein must be abridged due to local condition, the abridgement shall be clearly indicated on plats and/or legal descriptions and reports. Where local or other prescribed regulations exist which are more restrictive than these rules, the survey shall conform to all local and state regulatory standards. When a client desires only a portion of his property surveyed, and this portion can be clearly isolated from the remainder of the property without affecting the interests of adjoining owners, these rules shall apply to the survey of only the desired portion Research and investigation. (A) The surveyor shall consult deeds and other documents, including those for adjacent parcels, in order to assemble the best possible set of written evidence of every corner and line of the property being surveyed. (B) After all necessary written documents have been analyzed, the survey shall be based on a field investigation of the property. The surveyor shall make a thorough search for physical monuments, and analyze evidence of monumentation and occupation. In addition, the surveyor shall, when necessary, confer with the owner(s) of the adjoining property and the owner(s) of the property being surveyed Monumentation. (A) The surveyor shall set boundary monuments so that, upon completion of the survey, each corner of the property and each referenced control station will be physically monumented. (B) When it is impossible or impracticable to set a boundary monument on a corner, the surveyor shall set a reference monument, similar in character to the boundary monument and preferably along one of the property lines which intersect at that corner. When such a reference monument is used, it shall be clearly 2

3 identified as a reference monument on the plat of the property and in any new deed description which may be written for the property. (C) Every boundary monument and/or reference monument set by the surveyor shall, when practicable: (1) Be composed of a durable material. (2) Have a minimum length of thirty inches. (3) Have a minimum cross-section area of material of 0.21 square inches. (4) Be identified with a durable marker bearing the surveyor's Ohio registration number and/or name or company name. (5) Be detectable with conventional instruments for finding ferrous or magnetic objects. (D) When a case arises, due to physical obstructions such as pavements, large rocks, large roots, utility cables, etc., so that neither a boundary monument nor a reference monument can be conveniently or practicably set in accordance with paragraph (C) of this rule, then alternative monumentation, which is essentially as durable and identifiable (e.g., chiselled "X" in concrete, drill hole, etc.) shall be established for the particular situation Measurement specifications. All measurements shall be made in accord with the following specifications: (A) The surveyor shall keep all equipment used in the performance of surveying in proper repair and adjustment. (B) Every determination of distance shall be made either directly or indirectly in such a manner that the linear error in the distance between any two points (not necessarily adjacent points) shall not exceed the reported distance divided by ten thousand (allowable linear error = reported distance divided by ten thousand) and every angular measurement shall be made in such a manner that the allowable (directional) error, in radians, shall not exceed the allowable linear error divided by the reported distance (allowable (directional) error = allowable linear error divided by reported distance). When the reported distance is less than two hundred feet, the linear error shall not exceed 0.02 feet. The reported distance is the distance established by the survey. (C) In all new descriptions and plats of survey, the lengths and directions of the lines shall be specified so that the mathematical error in closure of the property boundary does not exceed 0.02 feet in latitudes and 0.02 feet in departure. (D) Surveys performed using metric measurements shall utilize the metric equivalents based upon the U.S. survey foot conversion factor Plat of survey. (A) The surveyor shall prepare a scale drawing of every individual survey, or drawings comprising all of the surveys when they are contiguous, in which the surveyor retraces previously established property lines or establishes new boundaries. (B) A copy of this drawing shall be given to the client. When required, another copy shall be filed with the appropriate public agencies. (C) The surveyor shall include the following details: (1) A title such that the general location of the survey can be identified. The title shall include, but not be limited to: state, county, civil township or municipality, and original land subdivision description. (2) A north arrow with a clear statement as to the basis of the reference direction used. (3) The control station(s) or line cited in the description and the relationship of the property to this control must be referenced to an established monumented point of beginning such as, but not limited to: centerline intersection of streets or highways record, section or quarter section corners, Virginia military survey corners or lines, or platted lot corners. The type of monuments set or found at the control stations shall be noted. (4) A notation at each corner of the property stating that the boundary monument specified in the deed description was found, or that a boundary monument was set, or a legend of the symbols used to identify monumentation. In addition, there shall be a statement describing the material and size of every monument found or set. 3

4 (5) A general notation describing the evidence of occupation that may be found along every boundary line or occupation line. (6) The length and direction of each line as specified in the description of the property or as determined in the actual survey if this differs from what is stated in the deed description by more than the tolerance specified in paragraph (B) of rule of the Administrative Code. The length and direction shall be stated as follows: (a) Bearings expressed in degrees, minutes and seconds and distances expressed in feet and decimal parts thereof on each course. If a metric equivalent distance is stated, it shall be stated to the third decimal place. (b) All curved lines shall indicate the radius, central angle, curve length, chord bearing and chord distance. (c) Each course shall show other common lines such as centerline of roads, rivers, streams, section lines, quarter section lines, half section lines or other pertinent common lines of record. (7) A citation of pertinent documents and sources of data used as a basis for carrying out the work. The citation shall include, but not be limited to: current deeds as of the date of the survey, prior deeds or other documents of record, and available deeds of record for adjoining parcels along each boundary line of the survey. If the adjoining parcel is a recorded subdivision, only the subdivision name, recording information and lot numbers need to be shown. (8) The written and graphical scale of the drawing. (9) The date of the survey. (10) The surveyor's printed name and Ohio registration number, signature and seal (in a form which may clearly reproduce on any copies which may be made of the original drawing). (11) The area contained within the perimeter of the surveyed parcel. (12) All references to roads or railroads contiguous to the surveyed parcel shall use current names or names of record and applicable right of way widths, if available. (13) All references to rivers or streams shall use current names of record, if available Descriptions. (A) When a surveyor is called upon to prepare a new description, either to replace an existing description which is inadequate or to create a new piece of property, said description shall include the following items: (1) Sufficient caption so that the property can be adequately identified. (2) A relationship between the property in question and clearly defined control station(s). (3) The basis of the bearings. (4) A citation to the public record of the appropriate prior deed(s). (5) The surveyor's name, Ohio registration number and date of writing and/or survey. (B) A metes and bounds description shall include, in addition to paragraph (A) of this rule: (1) A description of the boundary monument used as the initial point of the description. (2) A series of calls for successive lines bounding the parcel, each of which specifies: (a) The intent in regards to adjoiners or other existing features. (b) The direction of the line relative to the direction of the basis of bearing. (c) The length of the line. (d) A description of the boundary monument (or reference monument) and whether found or set to identify the end of the particular line. (e) All curved lines shall indicate the radius, central angle, curve length, chord bearing, chord length and direction of the curve. (f) The reported boundary data shall meet the closure requirements of paragraph (C) of rule of the Administrative Code. (3) The area of the parcel. 4

5 (C) Descriptions other than metes and bounds descriptions may be a reference to a recorded survey plat or a parcel on a recorded survey plat and shall include sufficient and adequate legal and technical wording so that the property can be definitely located and defined. (D) A statement shall appear indicating that either: the description was made in accordance with a recent survey and the date thereof, or the description was made based on a previous survey, of a certain date, and date of description, or the description was not based on a survey. (E) When the surveyor knows a new description is to be used for a fee transfer, the surveyor shall base the description on a current or updated survey of the property Subdivisions. When a subdivision is created from a piece of property, or several adjoining pieces, the following rules shall apply: (A) Rule of the Administrative Code shall apply to the original tract(s) of land prior to being subdivided. (B) Rule of the Administrative Code shall apply to the outside perimeter of the original tract(s) of land and to the outside perimeter of the newly created subdivisions. All newly created lots, blocks, rights of way, angle points, points of curvature and points of tangency shall be monumented according to local regulations. Street rights of way may be monumented with monuments on the centerline instead of right of way monuments. Centerline or right of way monuments shall be set at all intersections, angle points, points of curvature and points of tangency. (C) All newly created subdivisions shall comply with rules and of the Administrative Code. (D) All easements within a newly created subdivision shall be accurately dimensioned so that each easement line can be reproduced without ambiguity. Ohio A.C. section Standards For Mortgage Location Surveys Preamble. These standards are intended to be the minimum requirements for mortgage location surveys in the state of Ohio. A "mortgage location survey" shall be defined as an instrumentality, common to the mortgage lending industry, whereby substantial proof is submitted to the mortgage lender and/or title insuror that the building(s) and/or other improvements are actually located on the land covered by the legal description in the mortgage and that said mortgage location survey is a professional service provided by professional surveyors solely for the intent of and use by the mortgagee and/or title insuror. The mortgage location survey does not constitute an improvement to the property, and is only a professional opinion which these parties may use as a guide to arrive at any decisions they may wish to make concerning said real property Research and investigation. (A) The professional surveyor shall use the description furnished by the client to perform the mortgage location survey. If the professional surveyor determines the description to contain apparent incompleteness or insufficiencies, the professional surveyor shall so advise the client. (B) After all necessary written documents, as furnished by the client, have been analyzed, the survey shall be based on a field investigation of the property. The professional surveyor shall make a thorough search for physical monuments and analyze evidence of occupation Monumentation. The professional surveyor need not set boundary monumentation under the provision herein unless the client requests boundary monumentation be set. If requested to set boundary monumentation, the professional surveyor shall conform to all provisions of rule of the Administrative Code Measurement specifications. All measurements shall be made in accordance with the following specifications: 5

6 (A) The professional surveyor shall keep his equipment in such repair and adjustment as to conform to the provisions of paragraph (A) of rule of the Administrative Code. (B) Every measurement of distance shall be made either directly or indirectly in such a manner that the linear error in the reported distance shall not exceed: (1) Two-tenths of a foot for major improvements [see paragraph (G) of rule of the Administrative Code]. (2) One-half of a foot for major improvement location [see paragraph (J) of rule of the Administrative Code]. When a case arises wherein a greater linear error will not create ambiguity of locations (i.e., tracts where the improvements are located substantial distances from boundaries), then the professional surveyor may use a greater linear error, provided the tolerance is clearly indicated on the survey plat (e.g., 500 feet +/- 5 feet) Mortgage location survey plat. The professional surveyor shall include the following information on the mortgage location survey plat. (A) A title such that the general location of the survey can be identified. (B) A north arrow. (C) The boundary lines as cited in the legal description, including pertinent references therein. (D) The written and graphical scale of the drawing. (E) The date of survey. (F) The professional surveyor's name, registration number, signature, and seal in accordance with paragraph (C)(10) of rule of the Administrative Code. (G) Major improvements (permanent structures) shall be shown with dimensions and description (e.g., residence, garages, outbuildings with foundation, in-ground pools, and the like). (H) Easement limits and building set-back lines as indicated on the recorded plat or as supplied by the client. (I) Visible utility facilities requiring an easement and located outside known easements, crossing the subject property and serving others, such as, though not limited to: pole lines, manholes, inlets and pedestals and the like. (J) Major improvement locations shall be shown with dimensions to the nearest property lines, with a minimum of two dimensions shown, and shall be sufficient to locate the structure (offsets shall be shown perpendicular to straight property lines and radially to curved property lines). (K) Apparent encroachments shall be noted and shown in an obvious manner. (L) The address posted on the building(s), if available. (M) Observed problems of ingress and egress and joint drive. (N) Fences or other evidence of possession when not in substantial conformance with the legal description. (O) A statement shall appear on the plat indicating that the survey is a mortgage location survey prepared in accordance with Chapter of the Administrative Code, and is not a boundary survey pursuant to Chapter of the Administrative Code. (P) Number each page showing individual page numbers along with number of pages. 6

7 Surveying Resurveys. In surveying a tract of land according to a former plat or survey, the surveyor s duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, he has the right to use the field notes of the original survey. The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located, in this respect it has been stated that the rule is based on the premise that the stability of boundary lines is more important than minor inaccuracies or mistakes. But it has also been said that great caution must be used in reference to resurveys, since surveys made by different surveyors seldom wholly agree. A resurvey not shown to have been based upon the original survey is inconclusive in determining boundaries and will ordinarily yield to a resurvey based upon known monuments and boundaries of the original survey. 12 Am Jur 2d Boundaries It is the surveyor's task to locate the tract described in the deed on the ground. He must interpret the language used in the description and convert it to a surveyed, monumented tract on the ground. Probably one of the most important and difficult functions of a surveyor is to construe the meaning of the words in a description. Some written descriptions are ambiguous or have conflicting phrases. In such instances, the surveyor must know how the courts have viewed and resolved similar description ambiguities or conflicts. The courts have adopted rules of construction 1 to be applied in certain instances; have construed certain descriptions to have certain meanings; and have adopted an ordered list of descriptive title elements to be applied in other conflicts. Elgin and Knowles Legal Principles of Boundary Location For Arkansas 1 When, and only when, the meaning of a deed is not clear, or is ambiguous or uncertain, will a court of law or equity resort to established rules of construction to aid in the ascertainment of the grantor's intention by artificial means where such intention cannot otherwise be ascertained. Unlike a settled rule of property which has become a rule of law, rules of construction are subordinate and always yield to the intention of the parties, particularly the intention of the grantor, where such intention can be ascertained. Since all rules of construction are in essence only methods of reasoning which experience has taught are best calculated to lead to the intention of the parties, generally no rule will be adopted that tends to defeat that intention. 23 Am Jur 2d, Deeds, 224, Settled Rules of Property. 7

8 To survey land means to ascertain corners, boundaries, divisions, with distances and directions, and not necessarily to compute areas included within defined boundaries; such computation being merely a matter of mathematics. Kerr v. Fee 161 N.W. 545; 179 Iowa 1097 (1917) The Legal Role of the Surveyor General Rules Governing the Duties of a Land Surveyor The object of rules as to location of boundaries is to ascertain their actual location as made, or to retrace the surveyor s footsteps. The parties intention is the controlling consideration. 11 C.J.S. 3 It is not the surveyor s responsibility to set up new lines except where he is surveying heretofore unplatted land or subdividing a new tract. Where title to land has been established under a previous survey, the surveyor s duty is to solely locate the lines of the original survey. He cannot establish a new corner, nor can he even correct erroneous surveys of earlier surveyors. He must track the footsteps of the first. The surveyor cannot by his own act establish a new boundary line. Nor can he except by express statutory authority even legally determine where the true existing boundary line is. So far as the law is concerned all a surveyor can do is to be a witness testifying where in his best judgment the boundary line is located 8

9 What is a survey? The surveyor, having made an evaluation of the evidence, forms an opinion as to where he believes a court of law would locate the boundary lines of the property. The typical modern day surveyor sees himself as an expert evaluator of evidence, and would expect to arrive at the same opinion of boundary location regardless of who commissioned the survey. The surveyor s opinion is founded on experience and applicable legal precedents; unlike the attorney, the surveyor does not see himself primarily as an advocate for his client. While land surveying is often associated with engineering, the two professions are distinct. The evaluation of land surveying evidence is not a science in the sense that there is one procedure to follow which will yield the correct result. Surveyors occasionally disagree on the proper location of a boundary line not necessarily because one surveyor measures better than the other, but more commonly because each surveyor has weighed the evidence differently and has formed different opinions. Just as two lawyers may draw different conclusions from the same line of cases, surveyors may disagree about the appropriate location for a boundary. American Bar Association Land Surveys: A Guide for Lawyers and Other Professionals, 2 nd edition, Although title attorneys and others who regularly work with them develop expertise as to land descriptions, the only professional authorized to locate land lines on the ground is a registered land surveyor. In fact, the definition of a legally sufficient real property description is one that can be located on the ground by a surveyor. However, in the absence of statute, a surveyor is not an official and has no authority to establish boundaries; like an attorney speaking on a legal question, he can only state or express his professional opinion as to surveying questions. In working for a client, a surveyor basically performs two distinctly different roles or functions: FIRST, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the original surveyor and when his survey results in a property description used by the owner to transfer title to property * that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line. * This is a most important qualification 9

10 SECOND, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he traces the footsteps of the original surveyor in locating existing boundaries. Correctly stated, this is a retracement survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a following or tracing surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it. Rivers v. Lozeau 539 So.2d 1147 (1989) It is the practice of surveyors, when engaged to survey a parcel of land, to examine deeds and plats of record to get the calls and monuments which determine the title. It is proper for a surveyor to do this and the fact that he has done it does not make his survey inadmissible as representing legal conclusions. Henrietta Egleston Memorial Hospital v. Groover 202 Ga. 327, 42 S.E.2d 246 (1947) This practice of examining the title leads many surveyors to regard their function as including the settling of boundaries from the legal standpoint. The frequent objections by counsel to the admission of their plats are based on their same false aspect of them as having legal effect, especially when they are marked with the names of owners placed in the parcels as delineated therein. But an unofficial plat, if admitted on the principle of illustrating testimony, is not evidence itself of title, or even the expression of expert opinion as to title, but only evidence of the physical objects and points on the land and the relations between them in distances and directions. California Rose v. Davis (1858) 11 Cal. 133 Georgia Roberts v. Atlanta Cemetery Asso. (1917) 146 Ga. 490, 91 S.E. 675 Pennsylvania Wilson v. Stoner ( 1822) 9 Serg & R 39, 11 Am Dec 664 Cf. Cartwright v. Cartwright (1912) 70 W Va 507, 74 SE 655, Ann Cas 1914A

11 What is not a survey A map is a picture of a survey, field notes constitute a description thereof, and the survey is the substance and consists of the actual acts of the surveyor, and, if existing established monuments are on the ground evidencing such acts, such monuments control because they are the best evidence of what surveyor actually did in making the survey and are part at least of what surveyor did. Outlaw v. Gulf Oil Corporation, 137 S.W.2d 787 (Texas, 1940) The plan was merely a picture. The survey was the substance. The plan was not made to show where the lots were to be hereafter located, or how they were to be hereafter bounded. It was made as evidence of where they had before been located and bounded. The lot actually surveyed, bounded by the lines actually run, was the lot intended to be conveyed. The plan was named in the deed, rather as a picture, indicating the location and lines of the lot. Still the actual boundaries, rather than the pictured boundaries, were to be sought for. The picture might not be wholly accurate. Bean v. Bachelder, 78 Me. 184, 3 A. 279 (Me. 1886) Following a plat is not following a surveyor s footsteps At best, it is following the surveyor s [adjusted]* mathematics. At worst, the surveyor drew conclusions from faulty or incomplete evidence * adjust: alter or regulate so as to achieve accuracy or conform to a standard Dealing With Evidence Duty & Responsibility of Surveyor find, identify, collect, document, evaluate, interpret, preserve & perpetuate, present 11

12 What a surveyor does & what a surveyor does not do Areas of Expertise for the Surveyor The land surveyor is not an engineer, but must have a broad knowledge of such engineering works as highways, power lines, pipe lines and railroads, because these works often control property boundaries. The land surveyor is not a cartographer, but must have a broad knowledge of maps and topography to prepare boundary maps and to define those boundaries dependant upon topographical features such as ridges and streams. The land surveyor is not an astronomer, but must be able to make observations on stars and planets to position his measurements and relate magnetic observations to the true meridian. The land surveyor is not a hydrologist, but must have a knowledge of waters and water courses, for riparian rights such as spring rights, flowage or dam rights, and the problems caused when floods change stream channels; all enter into property boundary determinations. The land surveyor is not a geologist, but must have a general understanding of the land forms and an ability to identify the various types of stones used for monumentation of land corners. The land surveyor is not a photogrammetrist, but must be able to make measurements on aerial photographs and to identify objects thereon. The land surveyor is not an archaeologist, but must be able to search for and recover objects placed to mark boundaries hundreds of years ago. He or she must be able to determine if three or four stones under a foot of decayed leaves were placed by the hand of man, or simply left by the melting glacier. He must be able to locate the foundation of the blacksmith shop, which in 1895 burned 10 years ago. The land surveyor is not a computer specialist, but must be able to operate computers that perform lengthy calculations required; that direct automatic machines and that do word processing. The land surveyor is not a dendrologist, but must be able to identify a sugar plum tree called for in a 1935 deed, or identify a rotten yellow birch stump that has been mouldering in the woods for 50 years. 12

13 The land surveyor is not a forester, but must be able to separate marks and objects placed by foresters in their management of timber stands, from marks and objects placed to control property boundaries. The land surveyor is not a farmer, but must be able to recognize farming methods in use during since the early settlement of the state. Did the farmer erect that fence to mark the boundary or to keep the cattle out of a swamp? Where was the north barway? What was the hop house? Where is the 1888 boundary between the mowing and the pasture? The land surveyor is not a logger, but must be able to separate the marks left by the cutting foreman from marks made to delineate a property boundary. The land surveyor is not a judge, but must be able to make decisions founded on law concerning the locations of property boundaries. Decisions that will withstand review by the courts. The land surveyor is not a juror, but must be able to come to decisions of fact that will also withstand review by the courts. The land surveyor is not a lawyer, but must be able to locate boundaries so that their positions will withstand review by the courts. The land surveyor is not a writer, but must be able to describe in words the location of boundary lines and give directions for their location. Directions that often will not be used until years in the future when all persons having knowledge of the time of the original survey are dead. The land surveyor is not an historian, but must have a large, specialized knowledge of the state s early history and the histories of the various towns in which he or she practices. to put together a chain of ownership back to a deed containing a description that is something more than a reference to earlier deeds, the surveyor often has to trace the title back to the early 19 th, even to the 18 th and occasionally into the 17 th, century. The land surveyor is not a handwriting expert, but must be able to read the writing of the early town clerks. As the incumbent clerk grew older, the penmanship became progressively less readable, until, suddenly a new clerk s handwriting appears. In addition, such early English words as staddle, rood, square perch and others must be understood. A land surveyor is not a detective, but solves problems in a similar matter by assembling piece after piece until the answer appears. The surveyor deals with areas of forensic science on a regular basis, yet is not a forensic scientist. In addition to being an expert measurer, the land surveyor must be able to act as an expert witness, with special knowledge, wisdom or information acquired by study, 13

14 investigation, observation, practice and experience. One must be able, after reaching the correct decision, to present the evidence and conclusions drawn from the evidence, in a manner that will enable others to reach the same decision. It is not enough to be right, one must also be able to persuade others. George F. Butts What Does A Land Surveyor Do? Doing the Right Thing Doing the right thing means, at the very least: Following the Law Adhering to a set of Standards Being Ethical Ohio A.C. section Code of Ethics for Engineers and Surveyors Preamble. In order to safeguard the life, health, property and welfare of the public and the state of Ohio, to maintain integrity and high standards of skills and practice in the professions of engineering and surveying, the following rules of professional conduct, promulgated in accordance with Chapter of the Revised Code, shall be binding upon every person holding a certificate of registration as a professional engineer or as a professional surveyor. The engineer or surveyor, who holds a certificate of registration from the Ohio state board of registration for professional engineers and surveyors, is charged with having knowledge of the existence of the reasonable rules and regulations hereinafter provided for his or her professional conduct as an engineer or surveyor, and also shall be deemed to be familiar with their several provisions and to understand them. Such knowledge shall encompass the understanding that the practice of engineering, or of surveying, is a privilege, as opposed to a right, and the registrant shall be forthright and candid in statements or written responses to the board or its representatives on matters pertaining to professional conduct Integrity. The engineer or surveyor is obligated to act with complete integrity in professional matters for each client or employer as a faithful agent; shall be honest and impartial, and shall serve the public, client and employer with devotion. The engineer or surveyor shall: Responsibility to the public. 14

15 (A) Protect the safety, health and welfare of the public in the performance of professional duties. Should the case arise where the engineer or surveyor faces a situation where the safety, health and welfare of the public is not protected, the engineer or surveyor shall: (1) Sever the relationship with the employer or client; (2) Refuse to accept responsibility for the design, report or statement involved; (3) Notify the proper authority if, in his or her opinion, the situation is sufficiently important. (B) Undertake to perform assignments only when the registrant's consulting support are qualified by training and experience in the specific technical fields involved. In the event a question arises as to the competence of an engineer or surveyor to perform an engineering or surveying assignment in a specific technical field of engineering or surveying which cannot be otherwise resolved to the board's satisfaction, the board, either upon request of the engineer or surveyor or by its own volition, may require the engineer or surveyor to submit to an appropriate inquiry by or on behalf of the board; (C) Be completely objective in any professional report, statement or testimony and shall include all relevant and pertinent information in the report, statement or testimony when the result of omission would, or reasonably could, lead to a fallacious conclusion; (D) Express an opinion as a technical or expert witness before any court, commission or other tribunal, only when it is founded upon adequate knowledge of the facts in issue, upon a background of technical competence in the subject matter, and upon honest conviction of the accuracy and propriety of his or her testimony Public statements and certifications. (A) The engineer or surveyor will issue no statements, criticisms or arguments on engineering or surveying matters connected with public policy which are inspired or paid for by an interested party, or parties, unless the engineer or surveyor has prefaced his or her remarks by explicitly identifying himself or herself, by disclosing the identities of the party, or parties, on whose behalf the engineer or surveyor is speaking, and by revealing the existence of any pecuniary interest he or she may have in the instant matters. (B) The engineer or surveyor will publicly express no opinion on an engineering or surveying subject unless it is founded upon adequate knowledge of the facts in issue, upon a background of technical competence in the subject matter, and upon honest conviction of the accuracy and propriety of his or her testimony. (C) The engineer or surveyor shall decline to sign and/or seal any form of certification, warranty, or guaranty that (1) Relates to matters beyond his or her technical competence, (2) Involves matters which are beyond the scope of services for which he or she was retained, or (3) Relates to engineering or surveying work for which he or she does not have personal professional knowledge and direct supervisory control and responsibility. "Certification" shall mean a statement signed and/or sealed by an engineer or surveyor representing that the engineering or surveying services addressed therein have been performed, according to the engineer or surveyor's knowledge, information and belief, in accordance with commonly accepted procedures consistent with applicable standards of practice, and is not a guaranty or warranty, either expressed or implied Conflict of interest. (A) The engineer or surveyor shall conscientiously avoid conflict of interest with the employer or client, but, when unavoidable, the engineer or surveyor shall forthwith disclose the circumstances to the employer or client. (B) The engineer or surveyor shall promptly inform the client or employer of any business association, interests, or circumstances which could influence his or her judgment or the quality of services to the client or employer. (C) The engineer or surveyor shall not accept compensation, financial or otherwise, from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed to, and agreed to, by all interested parties or their duly authorized agents. (D) The engineer or surveyor shall not solicit or accept financial or other valuable considerations from material or equipment suppliers for specifying their products. 15

16 (E) The engineer or surveyor shall not solicit or accept gratuities, directly or indirectly, from contractors, their agents or other parties dealing with his client or employer in connection with work for which he or she is responsible. (F) As an elected, retained or employed public official, an engineer or a surveyor (in the capacity as a public official) shall not review or approve work that was performed by himself, or under his direction, on behalf of another employer or client Solicitation of employment. (A) The engineer or surveyor shall not pay, solicit nor offer, directly or indirectly, any bribe or commission for professional employment with the exception of payment of the usual commission for securing salaried positions through licensed employment agencies. (B) The engineer or surveyor shall seek professional employment on the basis of qualifications and competence for proper accomplishment of the work. (C) The engineer or surveyor shall not falsify or permit misrepresentation of academic or professional qualifications and shall not misrepresent or exaggerate the degree of responsibility in or for the subject matter of prior assignments. (D) Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts concerning employers, employees, associates, joint-ventures, or past accomplishments with the intent and purpose of enhancing qualifications and work Improper conduct. (A) The engineer or surveyor shall not sign and/or seal professional work for which he or she does not have personal professional knowledge and direct supervisory control and responsibility. This is interpreted by the board to mean that an engineer or surveyor shall not sign and/or seal professional work unless that work was prepared under his/her supervision and direction. The engineer or surveyor shall be involved in the project and must be closely involved in the preparation of the work product. (B) The engineer or surveyor shall not knowingly associate with, or permit the use of his or her name or firm name in, a business venture by any person or firm which he or she knows, or has reason to believe, is engaging in business or professional practices of a fraudulent or dishonest nature. (C) If the engineer or surveyor has knowledge or reason to believe that another person or firm is guilty of violating any of the provisions of Chapter of the Revised Code, or any of these rules of professional conduct, he or she shall present this information to the board in writing. (D) If a professional engineer or professional surveyor is found guilty of a felony or had his or her registration revoked or suspended by another jurisdiction, the professional engineer or professional surveyor shall notify the board in writing within sixty days Other jurisdiction. Conviction of a felony without restoration of civil rights, or the revocation, voluntary surrender, or suspension of a professional engineer's or surveyor's license by another jurisdiction, if for a cause which in the state of Ohio would constitute a violation of Ohio Revised Code Chapter 4733 or of these rules, shall be grounds for a charge of violation of these rules Records. Each registrant or certificate of authorization holder shall keep a true and correct record in the English language of all of the business transactions in the registrant's or holder's office relevant to enforcement of Chapter of the Revised Code. Such records shall be available at all reasonable hours for inspection and copying by the Ohio state board of registration for professional engineers and surveyors. Each registrant or licensee shall cooperate with the board in its investigation of complaints or possible violations of Chapter of the Revised Code. This cooperation shall include responding timely to written communications from the board, providing information or documents requested within thirty days of the date on which the communication was mailed, and appearing before the board or its designee upon request. 16

17 One of the best cases illustrating surveyor negligence is the following: The Wisconsin decision of Ivalis v. Curtis v. Harding 2 had to do with a section line incorrectly located by a county surveyor. The line was originally surveyed and marked (established) between 1859 and 1863, and was erroneously located in The title documents for both parties to this action were drawn based on the 1915 survey, which parties believed to be the dividing line between government lots 8 and 9. The error was perpetuated by a surveyor in This surveyor was later found negligent for erroneously locating the correct line, despite the fact that he pointed out that other surveyors commonly relied upon the monuments set in the 1915 survey, including the opposing surveyor in this case on other occasions. The court suggested that those surveyors may also be negligent in their activities, but such was irrelevant in this case. Ethics & Professionalism and the Land Surveyor N.W.2d 690, 173 Wis.2d 751 (1993). 17

18 PROFESSIONALISM DEFINITIONS. Professionalism, or the art of being professional, has to do with quality, or having and maintaining, high standards. "A profession is a self-disciplining group of individuals who hold themselves out to the public as possessing a special skill derived from training and education, and who are prepared to exercise their skill primarily in the interest of others." 3 Emphasis should be placed on three key phrases, namely, 1. self-disciplining 2. special skill 3. primarily in the interest of others A profession is not a money-getting business. It has no element of commercialism in it. True, the professional man seeks to live by what he earns, but his main purpose and desire is to be of service to those who seek his aid and to the community of which he is a necessary part. In some instances, where the recipient is able to respond, seemingly large fees may be paid, but to others unable to pay adequately, or at all, the professional service is usually cheerfully rendered. Stiner v. Yelle, 174 Wash. 402 (1933) 3 Setterington. 18

19 In the decision Aulen v. Triumph Explosives, Inc., the U.S. District Court identified six elements that were needed to identify whether a person s work was professional: 1. The work is predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical. 2. The work requires constant exercise of discretion and judgment in its performance. 3. The work is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. 4. The subprofessional work does not exceed 50 percent of the time involved (paraphrased) 5. Knowledge of an advanced type in a field of science or learning is customarily acquired by prolonged course or specialized intellectual instruction and study, as distinguished from general academic education. It is also distinguished from an apprenticeship and from training, the result of which depends primarily on the invention, imagination, or talent... (emphasis added). 6. The work is predominately original and creative in character in a recognized field of artistic endeavor. Very generally, the term profession is employed as referring to a calling in which one professes to have acquired some special knowledge, used by way of instructing, guiding, or advising others or of serving them in some art. Professionalism implies the following: Following the law Adhering to an established standard Subscribing to a code of ethics Being of sound moral character Being a good person One of the hallmarks of a profession is in having a code of ethics, written or unwritten. Brown, Robillard and Wilson 4 state that some of the attributes of a learned profession are: Unique and superior education in a specific field of knowledge Service to the public in ability to persuade 4 Evidence and Procedures for Boundary Location, 6th Edition: Chapter 17, Professional Stature 19

20 Position of trust Ethics The possibility of gaining highest eminence with financial return of secondary importance Independent judgment and liability Providing services to those unable to pay and in need If fees are charged those able to pay, fees are dependent on services rendered rather than labor or product 17-4 Attributes of a Profession If the surveyor wants to be considered in a learned profession, the individual must seek the attributes of the learned professions. Ten of these attributes are as follows: 1. Having a unique and superior education in a specific field of knowledge 2. Providing a service to the public in having the ability to persuade 3. Placing oneself in a position of trust 4. Conducting practice within a code of ethics 5. Desiring to gain high eminence with financial return of secondary importance 6. Using independent judgment and accepting liability 7. Providing services to those unable to pay 8. Charging fees to those able to pay, such fees being dependent on the services rendered rather than labor or product 9. Becoming a persuasive and effective communicator, and 10. Seeking continued education to maintain professional competency detail. These elements speak for themselves. The 4 th one, Ethics, will be examined in 20

21 ETHICS, then, may be defined as: 5 (1) the study of standards of conduct and moral judgment; and (2) the system or code of morals of a particular person, religion, group, or profession Ethics is not susceptible to an exact definition. The foregoing definition, adapted from Bouvier's Law Dictionary, rather clearly expresses the intent and purpose of ethics. It is a fact with which everyone is familiar that an individual may strictly observe the laws of the land and yet be an undesirable citizen and a poor neighbor. The idea that each individual can and should establish for himself rules of conduct for such relations as are not covered by law and without reference to the experience or opinions of others seems equally as absurd as would a similar attempt to establish principles of law. Laws must be established by the majority action of a legislative body, and rules of professional conduct must be based on the concurrent opinions of the members of a profession. Rules of ethics, as adopted by any profession, are not intended to particularize; they are general guides of conduct and behavior. MORALS are dependent upon several factors. Morals are generally established when a person is quite young, learning to tell, or decide, right from wrong. Morals change as values change, and are influenced by personal contact with others, with education, and a person's morality develops as experience is gained. Morals have to do with (1) dealing with or concerned with establishing principles of right and wrong in behavior, or, (2) pertaining to character, conduct, intentions, social relation, etc. 6 5 Webster's Dictionary 6 Stufflebean 21