Betty Rose, Executive Director

Attorney General of Kansas — Opinion
November 6, 2003

Re: Personal and Real Property — Land Surveys — Review by County Surveyor; Scope of Review

Synopsis: K.S.A. 2002 Supp. 58-2005, which requires county surveyors to certify plats prior to recording, mandates compliance only with the requirements of K.S.A. 58-2001 et seq. Cited herein: K.S.A. 58-2001; K.S.A. 2002 Supp. 58-2003; K.S.A 58-2004; K.S.A. 2002 Supp. 58-2005; K.S.A. 74-7037.

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Phill Kline, Attorney General of Kansas

Betty Rose, Executive Director Kansas State Board of Technical Professions Landon State Office Building 900 S.W. Jackson Ste. 507 Topeka, Kansas 66612-1257

Dear Ms. Rose:

On behalf of the Kansas State Board of Technical Professions (Board), you inquire regarding the scope of a county surveyor’s review of plats pursuant to K.S.A. 2002 Supp. 58-2005, which requires county surveyors to review plats before recording. Specifically, you inquire whether the scope of review is limited only to those items contained within K.S.A. 58-2001 et seq.

K.S.A. 2002 Supp. 58-2005 provides in part:

“Before a subdivision plat or plat of survey may be recorded, it shall be reviewed by the county surveyor. . . . The county shall be responsible for the enforcement of this act. The county surveyor . . . shall certify that such plat meets all the requirements of this act.[1]

The reference to “this act” in K.S.A. 2002 Supp. 58-2005 means “an act relating to land surveys and platting,”[2] enacted in 1967, and codified at K.S.A. 58-2001 et seq. The Act, promulgated to address the problem of “indefinite monumentation of public land surveys” resulting in “an undue hazard to the title of real property,”[3] requires, among other things, the monumentation of corner boundaries of land subdivisions,[4] recording reference measurements for section corners,[5] and the submission of certain information for plats of land subdivisions.[6] In order to assure compliance, K.S.A. 2002 Supp. 58-2005 requires that county surveyors review the plat and “certify that such plat meets all of the requirements of [the] act.”

Apparently, the Kansas Society of Land Surveyors (Society), which provided information to this office, is concerned whether a county surveyor is obligated, as part of the statutory review, to determine compliance with the Kansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1 (Minimum Standards).

The Minimum Standards, adopted by the Board in 1992, prescribe minimum standards for boundary surveys, mortgage title inspections and other land surveys.[7] Aside from the fact that the Act makes no reference to the Minimum Standards, the Minimum Standards were not adopted by the Society until eleven years after the enactment of the Act.[8] Even assuming that the Minimum Standards existed in 1967 and that the Legislature intended that county surveyors review plats for compliance with these standards, it would have been incumbent upon the Legislature to have specifically incorporated by reference such standards in order to avoid challenges for unlawful delegation of legislative authority.[9]

For the reasons stated herein, it is our opinion that K.S.A. 2002 Supp. 58-2005 requires that a county surveyor certify compliance only with the requirements of K.S.A. 58-2001 et seq.

Very truly yours,

PHILL KLINE Attorney General of Kansas
Mary Feighny Assistant Attorney General

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[1] Emphasis added.
[2] L. 1967, Ch. 309.
[3] Id.
[4] K.S.A. 58-2001.
[5] K.S.A. 2002 Supp. 58-2003.
[6] K.S.A. 58-2004.
[7] K.S.A. 74-7037; K.A.R. 66-12-1.
[8] Preface to Kansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1.
[9] See Attorney General Opinion No. 89-41.