Who is liable in Idaho when a construction project destroys a recorded land survey monument, and can the Board of Professional Engineers sue to make them put it back?

Plain-English summary

The Board of Professional Engineers and Professional Land Surveyors asked five connected questions about what happens when a construction project disturbs a public land survey corner monument. The AG worked through each one.

What counts as "adequate evidence" of a monument under Idaho Code § 55-1613, triggering a duty to reference and reset it? A combination of recorded survey records (a GLO or BLM survey, a recorded corner perpetuation form, a recorded plat, or a recorded record of survey) plus visual presence of the monument on the ground. Documentary records alone, without visual evidence, are unlikely to be enough.

Who is liable when a monument is destroyed? Only persons who "willfully" deface, injure, or remove a monument set by a registered land surveyor face the statutory penalty (a fine up to $500 per offense, plus damages to affected parties, recoverable in a civil action). An engineer who simply fails to depict an existing monument on plans has not himself defaced or removed anything. Contractors or owners who proceed under those plans can be liable if they actually destroy the monument and acted willfully (in the civil sense, knowing damage was reasonably expected). Accidental destruction is not actionable under § 54-1234 at all.

Does the Board itself have standing to sue? No. The damages remedy in § 54-1234 runs to "affected parties," which the Board is not. The Board's role is licensing and regulation. It can pursue disciplinary action against its own licensees who damage monuments, but it cannot bring a civil action to make a third party rebuild one.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho follows the Rectangular System for surveying land, which depends on physical monuments to mark corners. If those monuments disappear, surveys cannot be reproduced accurately, and property descriptions tied to them lose their reference points. The Idaho Legislature responded to that risk in two layers.

The Corner Perpetuation and Filing Act of 1967 (codified in Idaho Code §§ 55-1601 to 55-1612) created a public recording system for corner records and gave the Board of Professional Engineers and Professional Land Surveyors rulemaking authority over the filing process. In 1978 the legislature added Idaho Code § 55-1613, which requires that whenever "adequate evidence" of a public land survey corner exists, a surveyor must reference the monument before construction disturbs it and re-establish it under a surveyor's supervision afterward.

The remedy provision, Idaho Code § 54-1234, dates to the same recodification. It imposes a civil penalty on anyone who "wilfully" defaces, injures, or removes a monument set by a registered professional land surveyor. The "willful" element is the centerpiece of the opinion's analysis. In civil contexts, the AG explains, "willful" means an intentional, knowing, or voluntary act, distinguished from an accidental one. In criminal contexts it carries a stronger implication of bad purpose. § 54-1234 is a civil remedy, so the lower civil definition applies, and the Burgess line of Idaho cases supports reading "willful" to include conduct from which damage was reasonably expected.

The Board itself has no authority to sue for monument damage. Its statutory powers under § 54-1220 are licensing-and-discipline powers. It can take disciplinary action against a licensee who damages a monument, but it cannot stand in for a damaged property owner in court.

Common questions

Does an engineer face penalties just for leaving a monument off the plans?
The opinion was cautious here. Failing to depict a monument on plans is not itself a "defacement, injury, or removal" of the monument. The defacement happens on the ground. So the design engineer is unlikely to face a § 54-1234 penalty for the omission alone. The opinion suggests this is a gap the Board should ask the legislature to close.

What about a contractor who relied on incomplete plans and bulldozed a monument?
Liability turns on whether the contractor (or owner, or whoever did the actual destruction) had reason to know the monument was there. If the monument was recorded and visually present on the ground and the contractor proceeded anyway, the willfulness element could be met. If the contractor truly had no reason to know, the destruction is treated as accidental and § 54-1234 does not reach it.

What if the destruction is just an accident?
§ 54-1234 has no remedy. The opinion notes that a property owner may have separate civil-trespass or criminal-trespass remedies under Idaho Code § 6-201 and § 18-7011, depending on the facts. But the surveyor-monument statute itself does not cover accidents.

Can the Board be the one to sue?
No. "Affected parties" in the statute means parties whose property interest is directly impacted. The Board's interest is regulatory, not proprietary. The Board's avenue is disciplinary action against any of its licensees who participated in the destruction, and the Board can also factor a licensee's voluntary cooperation in restoring damage into any disciplinary outcome.

What did the AG suggest the Board do about the gaps?
Two things: draft legislation to define "adequate evidence" and to clarify negligence-based liability for engineers who fail to protect monuments, and adopt administrative rules under the Idaho Administrative Procedure Act so courts have something concrete to apply.

Citations

Idaho statutes: § 6-201 et seq. (civil trespass); § 18-7011 (criminal trespass); § 50-1301 et seq. (subdivision plat recording); § 54-1220 (Board's powers); § 54-1234 (monument defacement penalty and damages); § 55-1602 (Corner Perpetuation Act policy); § 55-1603 (definitions); § 55-1604 (recording requirements); § 55-1606 (Board rulemaking on corner records); § 55-1612 (licensee discipline); § 55-1613 (duty to reference and re-establish); § 55-1701 et seq. (Rectangular System); § 55-1902(3) (definition of "survey"); § 55-1904 et seq. (record-of-survey filing).

Cases: Burgess v. New Hampshire Inc. Group, 108 Idaho 831, 702 P.2d 869 (Ct. App. 1985) (Idaho Court of Appeals; civil definition of "willful" includes intentional acts from which damage was reasonably expected); Frazier v. Nielsen & Co., 118 Idaho 104, 794 P.2d 1160 (Ct. App. 1990) (plain-language interpretation of unambiguous statutes); Hook v. Horner, 95 Idaho 657, 517 P.2d 554 (1973) (Idaho Supreme Court; admissibility of surveys conducted under the U.S. Manual of Surveying Instructions); United States v. Murdock, 290 U.S. 389 (defining "willful" in civil and criminal contexts).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP92-03.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 92-3
TO:

Mr. David Curtis
Board of Professional Engineers and
Professional Land Surveyors
600 South Orchard, Suite A
Boise, Idaho 83705

Per Request for Attorney General Opinion
QUESTIONS PRESENTED
1.
Does the existence of an original Government Land Office (GLO) or
Bureau of Land Management (BLM) survey, a properly recorded corner perpetuation and
filing form, a properly recorded subdivision plat or a properly recorded record of survey
indicating the presence of the land survey monument, either with or without visual
presence, constitute "adequate evidence" of a public land survey corner monument under
Idaho Code § 55-1613?
2.
In the event that the land survey monuments are not depicted on the plans,
could the engineer who prepared and sealed the plans or someone else acting in reliance
upon the engineer's plans be held liable for their destruction?
3.
In the event that the land survey monuments are depicted on the plans,
could the owner of the project, the contractor, or someone else acting in reliance upon the
engineer's plans be held liable for their destruction?
4.
Assuming the ability to prove identification of the responsible party, could
that party be held liable for damages for the accidental or unintended destruction of land
survey monuments?
5.
Would the Board of Professional Engineers and Land Surveyors have
standing and authority to institute legal action to cause land survey monuments to be
replaced and to recover damages and costs incurred in prosecuting such actions from a
party accidentally or unintentionally damaging said land survey monuments?
CONCLUSION
1.
The existence of an original GLO or BLM survey, a properly recorded
corner perpetuation and filing form, a properly recorded subdivision plat, or a properly
recorded record of survey indicating the presence of a monument, together with visual
presence of that monument, would constitute "adequate evidence" of a public land

survey corner monument as defined by Idaho Code § 55-1613. Such monuments must
therefore be referenced by a surveyor prior to the time construction or other activities
disturb them and must subsequently be reestablished and remonumented under the
supervision of a surveyor.
2.
An engineer who prepares and places his or her seal on plans where land
survey monuments set by a professional land surveyor are not depicted may be statutorily
liable, pursuant to Idaho Code § 54-1234, if the engineer or the engineer's agent willfully
defaces, injures, or removes a monument. The potential liability created by the statute is
not exclusive and extends to any person who willfully defaces, injures or removes a
monument set by a professional land surveyor.
3.
A project owner, contractor or other party may be statutorily liable for the
willful defacement, injury or removal of a land survey monument set by a professional
land surveyor. A civil action for resulting damages suffered by an affected party is also
authorized by the statute.
4.
A party responsible for the accidental or unintended destruction of a land
survey monument cannot be held statutorily liable pursuant to Idaho Code § 54-1234.
5.
The Board does not have standing or authority to institute legal action to
cause land survey monuments to be replaced and to recover costs and damages incurred
in prosecuting such actions from a party damaging land survey monuments.
ANALYSIS
As a preliminary matter, it is useful to reference several statutory definitions used
throughout this opinion that are terms of art in the surveying and engineering profession.
A "property corner" is a geographic point on the surface of the earth, and is on, a
part of, and controls a property line. Idaho Code § 55-1603(a).
A "public land survey corner" is any corner actually established and monumented
in an original survey or resurvey used as a basis of legal description for issuing a patent
for the land from the United States government to a private person. Idaho Code § 551603(c).
A "monument" is a physical structure that occupies the exact position of a corner.
Idaho Code § 55-1603(f).
"Survey" means the locating and monumenting of points of lines which define the
exterior boundary or boundaries common to two (2) or more ownerships, except those

boundaries defining ownership in established and ongoing mineral extraction operations,
or that reestablish or restore public land survey corners in accordance with established
principles of land surveying by or under the supervision of a surveyor. Idaho Code § 551902(3).
It is also important to note that Idaho follows the Rectangular System of survey,
which divides land into a series of rectangles. See Idaho Code §§ 55-1701, et seq. A
surveyor cannot survey land accurately unless the monuments, from which corners are
located, are preserved, protected and perpetuated.
I.
In 1967, the Idaho Legislature enacted the Corner Perpetuation and Filing Act.
The purpose of the Act, to paraphrase the declaration of policy in Idaho Code § 55-1602,
is to protect, perpetuate and locate in a systematic fashion public land survey corners.
The Act grants to the Board of Professional Engineers and Professional Land Surveyors
(Board) authority to promulgate rules concerning how to file the information necessary
for a proper "corner record." See Idaho Code § 55-1606.
In 1978, in conjunction with a recodification of the organic statute establishing the
Board set forth in chapter 12, title 54, Idaho Code, the legislature enacted Idaho Code
§ 55-1613, which provides:
Monuments disturbed by construction activities, Procedure,
Requirements. When adequate evidence exists as to the location of a
public land survey corner, subdivision, tract, or other land corners, such
monuments shall be referenced by or under the direction of a surveyor prior
to the time when construction or other activities may disturb them. Such
corners shall be reestablished and remonumented under the supervision of a
surveyor.
(Emphasis added.) Your first question asks what constitutes "adequate evidence" of a
public land survey corner or similar monument for purposes of Idaho Code § 55-1613.
The significance of the question is that such monuments must be referenced by a
surveyor prior to the time construction or other activities may disturb them and must
thereafter be reestablished and remonumented under the supervision of a surveyor.
You ask, in particular, whether the existence of an original Government Land
Office (GLO) or Bureau of Land Management (BLM) survey, a properly recorded corner

perpetuation and filing form, a properly recorded subdivision plat or a properly recorded
record of survey indicating the presence of the land survey monument, either with or
without visual presence, constitutes "adequate evidence" of a public land survey corner
under Idaho Code § 55-1613.
No Idaho appellate court has directly addressed this section of the code. However,
several cases have held that surveys conducted in accordance with the United States
Manual of Surveying Instructions (Manual) constitute legally admissible evidence in
court proceedings. See Hook v. Horner, 95 Idaho 657, 517 P.2d 554 (1973).
Further, since 1967, Idaho law has required the public filing for record of all
surveys that establish or restore a corner. See Idaho Code § 55-1604 and § 55-1904, et
seq. Similarly, subdivision plats referenced in your question have also been required by
law to be recorded since 1967. See Idaho Code §§ 50-1301, et seq. One of the purposes
of requiring public recording of land survey monuments is to put the world on notice as
to the existence and location of land survey monuments.
While what constitutes "adequate evidence" can only be determined upon a caseby-case review, it is our opinion that a court would conclude that if "visual presence" of a
monument was present, along with GLO or BLM surveys or any of the recorded items
listed above, the requirements of Idaho Code § 55-1613 would be triggered. As
explained in Hook, supra, public recordings of such surveys and visual evidence of a
monument should suffice to put a reasonable person on notice that a land survey
monument is present. Therefore, it is our opinion that public recording of a survey
performed in accordance with the manual, in conjunction with visual presence of a land
survey monument, constitutes "adequate evidence" as referenced in Idaho Code § 551613.
A more difficult question is presented where there is not sufficient indicia of
"visual presence." Neither "adequate evidence" nor "visual presence" is statutorily
defined. For this reason, the Board, with its expertise and knowledge, may want to draft
legislation that would define minimal standards to establish what constitutes "adequate
evidence" in the context of Idaho Code § 55-1613. Absent sufficient indicia of visual
presence it is unlikely that a court would find "adequate evidence" sufficient to trigger
the requirement of remonumentation. The Board should also consider adopting
administrative rules pursuant to the Idaho Administrative Procedure Act. These rules
could cover practice before the Board and provide guidance to a court required to enforce
the laws with which the Board is concerned. In these rules, the Board could also
coordinate the application of the several different chapters in titles 54 and 55 of the Idaho
Code covering these matters. This procedure would bring uniformity and clarity to this
matter.

II.
Your second question addresses the situation where land survey monuments are
not depicted on plans. You ask whether the engineer who prepared and sealed the plans
or someone else acting in reliance upon the engineer's plans could be held liable for the
resulting destruction of a land survey monument. The answer to this question is
controlled by Idaho Code § 54-1234, which states:
54-1234. Monumentation, Penalty and liability for defacing. If
any person shall wilfully deface, injure or remove any signal, monument,
building or other object set as a permanent boundary survey marker by a
registered, professional land surveyor, he shall forfeit a sum not exceeding
five hundred dollars ($500) for each offense, and shall be liable for
damages sustained by the affected parties in consequence of such defacing,
injury or removal, to be recovered in a civil action in any court of
competent jurisdiction.
(Emphasis added.) It is our opinion that the language of the statute is clear and
unambiguous and would be applied literally by a reviewing court. See Frazier v. Nielsen
& Co., 118 Idaho 104, 794 P.2d 1160 (Ct. App. 1990).
Thus, if a design engineer or any other person acting at his direction willfully
defaces, injures or removes a land survey monument, he or she will be subject to the
penalties provided in the statute: first, a civil penalty of $500 may be assessed by the
court; second, the party willfully defacing, injuring or removing the monument faces a
statutory claim for damages caused by his or her acts; finally, if the person involved is
licensed by the Board as a surveyor, disciplinary action can be initiated by the Board.
See Idaho Code § 55-1612.
What is less clear, and in our opinion requires future statutory clarification, is
where the engineer inadequately or negligently prepares and seals his plans without
depicting existing land survey monuments. For the reasons set forth below, we conclude
that such conduct does not amount to willful commission of an act defacing, injuring, or
removing a land survey monument.
Our analysis begins with the "willful" requirement set forth in the statute. The
word "willful" is defined differently depending on whether it is used in a civil or criminal
context:
In civil actions, the word [willful] often denotes an act which is intentional,
or knowing, or voluntary, as distinguished from accidental. But where used
in a criminal context it generally means an act done with a bad purpose;

without justifiable excuse; stubbornly, obstinately, perversely. The word is
employed to characterize a thing done without ground for believing it is
lawful or conduct marked by a careless disregard whether or not one has
the right so to act. United States v. Murdock, 290 U.S. 389, 394, 395, 54 S.
Ct. 223, 225, 78 L. Ed. 381.
Black's Law Dictionary (6th ed. 1991).
In Burgess v. New Hampshire Inc. Group, 108 Idaho 831, 702 P.2d 869 (Ct. App.
1985), the Idaho Court of Appeals appeared to follow this distinction when construing an
insurance contract. The court held that "willful" conduct in the civil context could be
found if damages resulted from an intentional act from which damage was reasonably
expected to result. Using this standard, an engineer might meet the "willful" conduct
requirement of Idaho Code § 54-1234 by negligently preparing and sealing plans without
depicting existing land survey monuments.
However, under Idaho Code § 54-1234, it is also required that the engineer or the
engineer's agent actually deface, injure or remove the monument. Thus, if an engineer
negligently fails to depict a land survey monument upon plans prepared, it is unlikely that
he or she would be found to meet the requirements of the statute and be responsible for
the land survey monument's destruction. In the situation you describe, the engineer has
not actually injured, defaced, or removed the land survey monument.
In appropriate circumstances, the negligent failure to provide protection to a land
survey monument where such failure later caused the destruction of the land survey
monument might justify disciplinary proceedings. Once again, the Board should propose
legislation or define through regulation a set of rules to establish minimal standards in
this area. Such standards would eliminate current uncertainty and help avoid future
controversy and litigation.
III.
Your third question asks whether it is possible that the requirements specified in
Idaho Code § 54-1234 could be met by those who have a legal duty to review the plans
an engineer has prepared depicting land survey monuments. It would be reasonable to
assume, in appropriate cases, that project owners, contractors or other parties involved in
the project who examine the plans and who would, with reasonable care, be aware of the
land survey monument's existence (because of their knowledge and background) might
meet the "willful" standard of Idaho Code § 54-1234. Once again, however, the statute
places liability only on those who "wilfully deface, injure or remove" a monument.
Absent an affirmative act defacing, injuring or removing the monument, project owners,

contractors and other parties would not face statutory liability for their failure to exercise
reasonable care in reviewing an engineer's plans.
IV.
Your fourth question concerns liability for the accidental or unintended
destruction of land survey monuments where the responsible party can be identified. As
noted in the previous sections, Idaho Code § 54-1234 creates liability only for damages
that result from the willful defacing, injury or removal of a land survey monument. Thus,
there is no liability for the accidental or unintended destruction of a land survey
monument pursuant to this section of the code. A landowner may, of course, have other
remedies pursuant to the civil and criminal laws of trespass. See Idaho Code § 6-201, et
seq. and Idaho Code § 18-7011.
V.
Your final question concerns the authority of the Board to institute legal action to
cause land survey monuments to be replaced where accidentally or unintentionally
damaged. As noted in section IV above, Idaho Code § 54-1234 provides no civil liability
where accidental or unintended injury to or destruction of a monument has occurred.
Moreover, even when civil liability exists for willful destruction of a monument, that
remedy is available only for damages sustained by "affected parties."
It is unlikely that a court would find the Board to be an "affected" party who has
sustained damages as required by the statute. Affected parties are those directly impacted
by a person's actions. Further, the Board's statutory duties primarily relate to regulation
and licensing of the practice of professional engineering and professional land surveying,
not protecting land survey monuments.
A related issue is whether the Board could use its disciplinary powers to require
one of its licensees to restore or repair land survey monuments damaged, injured, or
destroyed by the licensee. The Board's powers defined by Idaho Code § 54-1220 do not
specifically include the power to require restitution or repair of a monument.
Nonetheless, the Board, in making its decision in a disciplinary proceeding, could take
into account a licensee's voluntary cooperation in correcting damage to monuments.
AUTHORITIES CONSIDERED
1.

Statutes:
Idaho Code § 6-201, et seq.

Idaho Code § 18-7011.
Idaho Code § 50-1301, et seq.
Idaho Code § 54-1220.
Idaho Code § 54-1234.
Idaho Code § 55-1602.
Idaho Code § 55-1603(a).
Idaho Code § 55-1603(c).
Idaho Code § 55-1603(f).
Idaho Code § 55-1604.
Idaho Code § 55-1606.
Idaho Code § 55-1612.
Idaho Code § 55-1613.
Idaho Code § 55-1701, et seq.
Idaho Code § 55-1902(3).
Idaho Code § 55-1904, et seq.
2.

Cases:
Burgess v. New Hampshire Inc. Group, 108 Idaho 831, 702 P.2d 869 (Ct. App.
1985).
Frazier v. Nielsen & Co., 118 Idaho 104, 794 P.2d 1160 (Ct. App. 1990).
Hook v. Horner, 95 Idaho 657, 517 P.2d 554 (1973).
United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381.

3.

Other Authorities:

Black's Law Dictionary (6th ed. 1991).
John S. Hoag, Fundamentals of Land Measurement.
DATED this 30th day of October, 1992.
LARRY ECHOHAWK
Attorney General
State of Idaho
Analysis by:
JOHN J. MCMAHON
Chief, Deputy Attorney General