RALPH E. SHARP, Corporation Counsel Dodge County
You ask six questions concerning the duties of the county surveyor, especially with respect to "mortgage surveys" performed within the county by other licensed land surveyors. You define a "mortgage survey" as an inexpensive, perfunctory land survey performed by a licensed land surveyor, usually at the request of a property owner, broker or lending institution, to roughly establish boundary lines and the general location of structures on the property. You also point out that Chapter A-E 5.01 Wis. Adm. Code, prescribes minimum standards for property surveys with specifications for boundary location, descriptions, maps, and measurement accuracy.
Your first question is:
Is it legal for a licensed land surveyor to make such a "mortgage survey" and to publish it labeled "plat of survey" or describe it in any manner as a "survey"?
Although I am not sure what you mean by "publish," your question seems to be whether land surveyors must comply with the minimum *Page 161 standards of performance for any survey, regardless of its purpose.1
To practice land surveying in this state, a person must be authorized to practice by the engineering section of the Examining Board of Architects and Professional Engineers, sec.443.02 (1), Stats. He or she must also comply with rules of the Examining Board of Architects, Professional Engineers, Designers, and Land Surveyors. Section A-E 5.01 (2) Wis. Adm. Code, defines "property survey" as "any land surveying performed for the principal purpose of describing, monumenting or mapping one or more parcels of land." Section A-E 5.01 Wis. Adm. Code provides as follows:
Minimum standards for property surveys. (1) SCOPE. The minimum standards of this section apply to every property survey performed in this state except that,
(a) Where other standards for property surveys are prescribed by statute, administrative rule or ordinance, then such standards shall govern; and
(b) The land surveyor and his client or employer may agree to exclude any land surveying work from the requirements of this section providing such agreement is set forth in writing and is signed by the client or employer and specifically refers to this section.
By its terms, then, the rule recognizes three categories of property surveys: those which meet minimum standards, those surveys for which standards are set in a separate statutory or administrative provision,2 and surveys which do not meet minimum standards. For this third category, however, the land surveyor's client must expressly waive the minimum standards of Chapter A-E 5 Wis. Adm. Code. This rule provides consumer protection by requiring either compliance with standards or an intelligent waiver of those standards by the consumer. *Page 162
The typical "mortgage survey" you describe would probably fall into the first or third category. If the mortgage survey meets the minimum standards, it is indeed a "survey" and may be described as such. If the mortgage survey is not intended to meet minimum standards, the surveyor must obtain the client's written waiver of the minimum requirements before he or she performs the survey.
Your second question is:
Is the licensed land surveyor preparing such "mortgage survey" required by 59.60 (2) to present such survey to the county surveyor's office for recording and indexing in the county surveyor's office?
Section 59.60, Stats., sets forth the duties of the county surveyor. One of those duties is to keep records and an index of all surveys performed within the county by any land surveyor, sec. 59.60 (2), Stats. The purpose of the statute is to provide "a central depository for the records and files of the county surveyor and for all surveys made within the county, that such records and field notes be county property, and that said depository be at the office of the county surveyor in offices furnished by the county and open during usual business hours." 60 Op. Att'y Gen. 134, 137 (1971). Section 59.60 (6), Stats., requires all land surveyors to file (not record) surveys as follows:
Surveys for individuals or corporations may be performed by any land surveyor who is employed by the parties requiring his services, providing that within 60 days after completing any survey he files a true and correct copy of the survey in the office of the county surveyor. In counties having a population of 500,000 or more the copy shall be filed in the office of the register of deeds.
Since the statute requires the filing of any survey, I cannot read in an exception for surveys that do not meet the minimum standards of Chapter A-E 5 Wis. Adm. Code. I do suggest, however, that if a mortgage survey does not meet minimum standards, the land surveyor may want to protect his own interest by filing the client's written waiver of minimum standards along with the survey or by stating on the face of the survey that it does not meet minimum standards.
*Page 163Your third question is:
Does the county surveyor have the right to refuse to record or list such survey if he feels that the "survey" is so inaccurate that it is of no value?
The answer to this question is no.
The county surveyor has no statutory discretionary authority to evaluate or refuse surveys brought to him by registered land surveyors for filing. The county surveyor may, however, report "any gross negligence, incompetence or misconduct in the practice of land surveying" to the Examining Board of Architects, Professional Engineers, Designers and Land Surveyors for consideration of disciplinary action against the surveyor under sec. 443.02 (8), Stats.
Your fourth question is:
Does the county surveyor have the authority to investigate to see if Chapter A-E 5.01 (b) of the Administrative Code is being complied with as to the agreement set forth in writing between the client or employer and the surveyor?
The answer to this question is no.
The county surveyor's duties as set forth in sec. 59.60, Stats., are to perform surveys as the county or a court directs and to keep records of all surveys performed within the county. The county surveyor does not have the authority to investigate other surveyors' work. As pointed out in my response to the previous question, however, anyone — including the county surveyor or a client — may report apparent deficiencies to the examining board. Moreover, disputes between land surveyors and their clients concerning errors or omissions in the making of any survey may be resolved in court by private lawsuit. See sec. 59.665, Stats.
You also ask whether the county surveyor or the district attorney has the duty to collect fines against land surveyors for failure to perform duties required by law.
Section 59.66, Stats., provides: "Any county surveyor, city or village engineer, or any land surveyor who fails or refuses to perform any duty required of him by law shall be fined not less than $25 nor more than $50 for each such failure or refusal." *Page 164
Under the authority of sec. 59.47 (1), Stats., and upon the complaint of any person, the district attorney may bring action to fine a surveyor who fails or refuses to perform required duties.
Finally, you ask whether land surveyors must file surveys in the county where the surveyed land is located, or whether it is permissible for them to file surveys in the county of their principal place of business.
Copies of all surveys performed must be filed with the county surveyor in the county where the land is located. Sec. 59.60, Stats. To allow filing in another county would defeat the legislative intent "[t]hat there be a central depository for . . . all surveys made within the county" and that these surveys be accessible to the citizens of the county. 60 Op. Att'y Gen. 134, 137 (1971). Failure to file a survey in the county in which the land is located is nonfeasance actionable under sec.59.66, Stats., as discussed above.
BCL:JPA:MS
1 Note that "plat of survey" is a misnomer in the context you describe. A "plat" is defined as a map of a subdivision, sec.236.02 (6), Stats.
2 Examples of surveys in the second category are "final plats of subdivided land," sec. 236.20, Stats.; "certified surveys," which may be used for conveyancing, sec. 236.34, Stats.; surveys performed for towns, secs. 60.37-.38, Stats., and condominium plats, sec. 703.11, Stats.