Opinion No. Oag 27-83, (1983) ( 1983 )

William Dusso, Administrator Department of Regulation andLicensing

On behalf of the Examining Board of Architects, Professional Engineers, Designers and Land Surveyors, you have requested my opinion on two issues concerning county survey record systems. First, you ask whether a county may determine the scope of functions to be performed by an employed county surveyor and elect not to maintain the survey record system described in section 59.60 (2), Stats. In my opinion the answer is no.

The duties of a county surveyor are set forth in section 59.60. It is mandatory that the county surveyor maintain a survey record system:

The county surveyor shall.

. . . .

(2) Make by himself or a deputy a record in books or on drawings and plats kept therefor, of all corners set and the manner of fixing the same and of all bearings and the distances of all courses run, of each survey made by him, his deputies, or other land surveyors and so arrange or index the same as to be easy of reference and file and preserve in his office the original field notes and calculation thereof; and within 60 days after completing any survey, make a true and correct copy of the foregoing record, in record books or on reproducible papers to be furnished by the county and kept in file in the office of the county surveyor to be provided by the county.

Sec. 59.60, Stats. The purpose of requiring the county surveyor to maintain surveying records 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). See also 69 Op. Att'y Gen. 160, 162 (1980).

The statutes provide that a county need not maintain the office of county surveyor as an elective position; "[i]n lieu of electing a surveyor in any county, the county board may, by resolution designate that the duties under ss. 59.60 and 59.635be performed by any registered land surveyor employed by thecounty." Sec. 59.12, Stats. While a county may employ rather than elect a county surveyor, the statute requires that the duties of the county surveyor, including maintaining the survey record system described in section 59.60 (2), be performed by an employed county surveyor. Therefore, in my opinion, a county is still required to maintain the survey record system if it employs rather than elects a county surveyor. In those counties that have abolished the office of an elected or full-time surveyor or surveyor's office, the register of deeds must file and keep survey records and index them as required by section 59.60.

Second, in your inquiry you note that:

In those instances that a county neither maintains an office for a county surveyor nor designates that the duties in s. 59.60 and 59.635, Stats. be performed by a land surveyor employee, there is a serious question about how a land surveyor meets the filing requirement of s. 59.60 (6), Stats.

In my opinion, the county is required to maintain the survey record system described in section 59.60 (2) to enable land surveyors to meet various statutory filing requirements.

Counties are given broad discretion to organize county affairs and administer county functions. With certain limitations, a county board may consolidate or abolish a county office, section 59.025 (3)(a), or transfer some or all of the functions, duties and responsibilities of a county office to another agency. Sec. 59.025 (3)(C), Stats. The county's organizational discretion "shall be limited only by express language but shall be subject to the constitution and such enactments of the legislature of statewide concern as shall with uniformity affect every county." Sec. 59.025 (2), Stats.

One exception to the broad grant of discretion to counties is where express language limits a county's ability to consolidate or abolish a county office or to transfer the functions of a particular county office. Section 59.60 (2) states that survey records shall be copied "in record books or on reproducible papers to be furnished by the county and kept in file in the office of the county surveyor to be provided by the county." Thus there is an express statutory requirement that a county maintain the county surveyor's survey record system.

A second exception to the grant of organizational discretion is where legislative enactments of statewide concern uniformly affect every county. A number of statutes require that registered land surveyors file survey records in the county surveyor's office. A land surveyor may perform surveys for individuals or corporations "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." Sec. 59.60 (6), Stats. When land surveyors are employed by the Department of Transportation or a county highway department to preserve and perpetuate landmarks, "a true and correct copy of the field notes and records shall be filed with the county surveyor." Sec. 59.635 (7), Stats. The cost of the work of perpetuating the evidence of a landmark shall be borne by the county in which the landmark is located. Sec. 59.635 (4), Stats.

I am of the opinion that the provisions of sections 59.60 (6) and 59.635 (7) are "enactments . . . of statewide concern as shall with uniformity affect every county." Registered land surveyors are subject to statewide regulation. As I noted in 69 Op. Att'y Gen. 160, 161 (1980):

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.

Registered land surveyors who engage in misconduct in the practice of land surveying are subject to discipline, including revocation of the certificate of registration, section 443.12 (1), which is required to practice land surveying in Wisconsin. Sec. 443.02 (4)(a), Stats. Misconduct includes violation of a state statute relating to the practice of land surveying. Section A-E 4.001 (3)(a) Wis. Adm. Code. Therefore, a land surveyor is subject to revocation of the certificate of registration for failure to file survey records with the county surveyor's office as required by sections 59.60 and 59.635.

Furthermore, as you note in your inquiry, "[t]he public policy implicit in the filing requirement is to avoid repetitious survey work and to permit the public access to available evidence and information on land boundaries." I am of the opinion that both this public policy and statutory regulatory provisions indicate that the statutory filing requirements of sections 59.60 (6) and 59.635 (7) are matters of statewide concern which with uniformity affect every county. Therefore, a county is required to maintain the survey record system described in section 59.60 (2) to enable registered land surveyors to meet statutory requirements.

BCL:WHW:JN