Here are my Comments on the proposed change:
I have been surveying since the 1970’s and have been Licensed in Virginia since 1992. The bulk of surveys I have done have been in the western part of the Virginia, though I have done projects in all parts of the Commonwealth during my career.
I submit that this proposed change is bad policy and will create many issues, disputes and problems for surveyors, landowners, and the public at large, whose interest we are also obliged to consider in our work.
It should not be implemented.
One comment I have on this guidance document is that in the “Background” section, 4th paragraph, where it is implicit that a road is a “natural monument”. I disagree with that notion. I have never encountered a road that was not man-made, and thus ‘artificial’. A road may pre-date a “set pipe” or other artificial monument, but it is not a “natural monument”, therefore a road cannot be considered at the same highest level in the “hierarchy of evidence” as say, a “boulder at the top of a ridge” called for in a deed, or a river, to name two examples.
In the western part of Virginia there are many public roads that were not acquired by fee-simple conveyance. My mentors, who I hold in the highest esteem, and wished to emulate, all or most of them now retired or deceased, and many other surveyors in this region, for the nine decades since the Byrd Act was passed, have treated, and platted these roads as “Public Rights-of-Way” and determined their client’s boundaries to be 15’ parallel and concentric with the centerline of the traveled way. Many years ago I asked one of them why this was done when, in the work we were dealing with, the deed called for the boundary to run “with the center of the road”. I was told that do that will only create problems, the road is public, showing the property line running down the center of an open, public, State maintained and numbered road creates the false impression in the mind of the landowner that he or she “owns the road” or half of it. Also, it will unfairly, and wrongly, increase the portion of his real-estate taxes that is based on acreage, obtained from recorded plats. This explanation made sense to me and I still concur with that reasoning today.
The “Applicable Regulations” section (18VAC10-20-370.B) cited at beginning of the Guidance Document mentions the surveyor’s responsibility to (paraphrased for brevity) “utilize such other available data pertinent to the survey being performed” and “evidence found, from all known sources, including evidence found in the field, shall be…”). I submit that evidence of public use possession of a road that is part of the Virginia Public Road System, numbered, constructed and maintained for many decades is part of the evidence need to “aid in the establishment of the correct boundaries”. Also, shall the surveyor not be cognizant of the legal principle of “Acquiescence*”? Have not the owners of lands adjoining acquiesced over decades of enjoying the benefits of a road they do not have to maintain?
As for “intent’ almost 90 years have passed since enactment of the Byrd Act. Very few, if any, people who owned property along the roads at that time are still alive today. In many cases, those parcels have been conveyed multiple times - without including any strip of half a road or by simply copying ancient metes and bounds descriptions, though the grantors obviously had no intent to convey any part of the Public Road adjoining their lands, regardless of what some attorney used in writing the deed description.
In Part XII of the APELSCIDLA Regulations, “Standards of Practice and Conduct” Sec. 18VAC10-20-690 “Responsibility to the Public” states “The primary obligation of the regulant is to the public”. I submit this proposed change creates a conflict with our mandate under 18VAC10-20-690. In my experience, the Surveyor’s clients rely on the Surveyor’s professional judgement to determine where their property boundaries are, and rightly so. That said, they take the surveyor at his word. Again, rightly so. If this proposed change is enacted, many clients will consider that “I have paid a lot of money to this Surveyor, he is the Professional, if he says my boundary runs down the middle of Rte. XXX in front of my land, I own that half of the road. If I don’t like the way people spin tires and blast loud music out their cars, I’ll build a fence” The clients, laymen, know nothing about prescriptive rights, unwritten rights, title reports, etc, but they believe what they see, especially if they paid good money for it. While it certainly is prudent and responsible for Surveyors to educate their clients on these things, horses led to water do not always drink and people believe what they want to believe.
Unless the “public” who is our “primary obligation” under 18VAC10-20-690 consists only of attorneys, I do not think this proposed change conforms with the intent of the “Standards of Practice and Conduct” section of the APELSCIDLA regulations.
I respectfully ask that this proposal NOT be enacted.
Thank you very much for the opportunity to comment and your thoughtful consideration of those I am providing here. I feel there are many surveyors who would agree with me, though they may not comment publicly.
*acquiescence: the tacit approval of conduct that might otherwise have provided grounds for an action but which cannot be objected to if undertaken with the consent of the party affected. Consent may be express or implied, and one circumstance where consent may be implied is where the party affected, in full knowledge of his rights, takes no action.
Source: https://legal-dictionary.thefreedictionary.com/acquiesance