The Best Kept Secrets in Montana Surveying Law (3 of 3)

The regulations or administrative rules concerning the form of the corner record have been periodically revised by the board. Any administrative regulation issued by the board--A.R.M. 8.48.1109(2)(e)--states "The name and signature of the ground party chief is optional. The surveyor who performed or directed the field work which is depicted on the "Certified Corner Record" shall sign and affix his seal in the Certification."

Note that the administrative rule goes beyond prescribing the form and content of the corner record, and decrees who may sign, in violation of the statute. (At the same time the administrative rule also attempts to rename the "corner form," which is the term specified in the statute.)

A Supreme Court decision--State ex rel Swart v. Casne (1977)--states "It is axiomatic that a statute cannot be changed by administrative regulation."

The initial draft of the statute only allowed the signature of a registered land surveyor, but an amendment was made to allow the present wording. I have an early draft copy with a pencilled notation by Dr. E. R. Dodge, the head of the Civil Engineering Department at the college and member of the registration board, which reads (alongside the addition) "Is this a good idea?" He thought that evaluation of original corner evidence should be done by the registered surveyor only.

A careful reading of the statute indicates the following:

1. A registered land surveyor must sign the corner record. The wording seems to indicate that unregistered employees may do the work, until you read further.

2. The statute says that the survey party chief of a federal or state agency who does the work may sign, if the record is also signed by the "registered surveyor in responsible charge of the agency."

3. The intent of this section was to provide the signature of the person who performed the work. The lack of any provision for an unregistered party chief in private employment to sign directs that the actual ground work on corner evaluation must be done (in private practice) by the registered surveyor. The unregistered private party chief may not sign the form!

As professional land surveyors, we have the ability to read the law. We recognize that the ultimate interpretation rests with the courts. Until a court with proper jurisdiction renders an opinion, we need not rely on opinions from anyone which go against our carefully considered professional judgement.

Charles Swart has worked as a surveyor in private practice in Montana since the early sixties. He organized the first three annual land surveyor seminars in Montana, and served as the charter president of the Montana Association of Registered Land Surveyors. He served as a naval officer attached to the Third Seabee Battalion in the Pacific during the Korean War, and later taught at Montana State College in the Civil Engineering Department. He worked with Ira Tillotson on the Corner Recordation Act, and with Ben Clark of Big Timber introduced and saw the passage of the Montana Coordinate System bill.

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©2004 Charles R. Swart