Opinion
No. 73-171
Decided August 7, 1974. Rehearing denied September 10, 1974. Certiorari granted November 18, 1974.
Action by surveying firm to recover for certain surveying work performed for defendant. From judgment denying plaintiff's claim for compensation and striking its mechanic's lien, plaintiff appealed. Reversed
1. LICENSES — Seal — Surveyor — Certification — To General Public — Acknowledgment of Responsibility — Any Negligence. The seal required by statute to be stamped upon work prepared by licensed surveyor constitutes a certification to the general public that a qualified land surveyor has supervised or performed the work as represented in the certified document, and it also represents an acknowledgment of responsibility to the general public by the surveyor for any mistakes or negligence in the preparation of the survey which bears his seal.
2. Documents — Prepared — Surveyor or Engineer — Changed Without Authority — Licensee — Obligation — Revoke Certification. The statutes governing the licensing of surveyors and engineers require that where documents prepared by one licensed under their authority have been changed without the licensee's knowledge or approval before they become of public record, the licensee has an obligation to revoke his certification on them.
3. CONTRACTS — Defendant — Alterations — Survey Work — Destroyed Value — Plaintiff — Not Required — Approve Changes — Entitled — Balance Due — Mechanic's Lien. Where, after learning that defendant had made certain alterations in survey work prepared by it, surveying firm revoked its certification on the work, the operative act in causing the destruction of the value of the survey work was the defendant's own alteration of the documents after the plaintiff had completed its performance of its surveying contract with the defendant, and there is nothing in the record which indicates that the contract between the plaintiff and the defendant obligated the plaintiff to approve any such alterations; hence, plaintiff was entitled to be paid the balance due for its work and its mechanic's lien to secure such payment should be enforced.
Appeal from the District Court of the County of Park, Honorable Howard E. Purdy, Judge.
Ralph C. Taylor, for plaintiff-appellant.
Yegge, Hall Evans, Edward H. Widmann, for defendants-appellees.
This is an appeal from the trial court's judgment that plaintiff's claim for compensation be denied and that its mechanic's lien against defendant South Park Land and Livestock Company, Inc., be stricken from the county record and held for naught. The other defendants, National Jewish Hospital, Max J. Ruderian, Albert A. Spiegel, Irwin Krauss, S. G. Payte, and Mrs. Frances E. Greene, public trustee of Park County, Colorado, were joined so that lien priorities could be determined by the trial court. However, because the court held against the plaintiff on its claim for compensation and thus on its assertion of a mechanic's lien, these priorities were not determined. We reverse the judgment of the trial court and remand the case for entry of judgment for plaintiff and to determine the proper lien priorities between plaintiff and all defendants.
The issue presented for review is whether revocation of a surveyor's certificate on plats and plans which have been subsequently altered by the surveyor's client is unreasonable and arbitrary in light of the statutes regulating the practice of engineering and surveying. Resolution of this issue is determinative of whether the surveyor should be precluded from recovery of the sums due for the preparation of such surveys.
Plaintiff, an engineering and surveying firm, entered into an agreement with South Park in 1971 for certain engineering and surveying work on approximately 28,000 acres of land owned by South Park. The court found that between February and mid-August 1971, plaintiff performed all the work called for and that the work was in substantial compliance with the agreement. During this period plaintiff submitted billings of $127,945.74 and was paid $46,010, leaving a balance owed of $81,945.74. On August 8, 1971, South Park discharged the plaintiff from its employ with the above amount owing.
Plaintiff filed a lien statement on August 12, 1971, to secure the unpaid balance owed on the billings by South Park. This statement was recorded on August 18, 1971. At that time 23 final plats prepared by plaintiff were completed and on file with the Park County Planning Commission and a number of other preliminary plats were completed. On September 8, 1971, plaintiff discovered that South Park had altered two of these plats at the County Commissioners' request without plaintiff's knowledge or approval. Testimony showed that plaintiff was unable to determine if other plats had been changed because these plats were not available for its inspection. Thereupon, plaintiff, by letter to the appropriate authorities, revoked its surveyor's certificate as to the work that had been completed pursuant to the agreement. Because under C.R.S. 1963, 51-2-7(3), plats must be certified by a licensed engineer or surveyor before they can be filed for public record, this revocation rendered the plaintiff's work without value.
The court concluded that the plaintiff's charges were reasonable and conformed to the work completed, and that plaintiff would have been entitled to maintain its claim and lien but for its revocation of the certificate. The court concluded that the revocation was unreasonable and arbitrary, and therefore, denied plaintiff any equitable relief on its mechanic's lien. As grounds for this conclusion, the court found that competent evidence showed that two of the plats were altered by the defendant.
The issue here presented is one of first impression and requires us to determine legislative intent relative to the following statutes regulating the professional conduct of engineers and surveyors.
C.R.S. 1963, 51-2-1, states, in pertinent part:
"In order to safeguard life, health, and property, and to promote the public welfare, any person practicing or offering to practice land surveying, shall hereafter be required to submit evidence that he is qualified so to practice and shall be registered as provided in section 51-2-7 . . . . "
C.R.S. 1963, 51-2-7(3), states:
"Each registrant upon registration shall obtain a seal of the design authorized by the board, bearing the registrant's name and the legend, registered land surveyor. Documents, plats, and reports prepared by a registrant shall be stamped with the seal when filed with the public authorities, during the life of the registrant's certificate, but it shall be unlawful for anyone to stamp or seal any documents with said seal after the certificate of the registrant named thereon has expired or has been revoked, unless said certificate shall have been renewed or reissued."
C.R.S. 1963, 51-2-10, provides:
"(1)(a) The board shall have the power to revoke the certificate of registration of any registrant who is found guilty of:"
. . . .
"(c) Any gross negligence, incompetency, or misconduct in the practice of land surveying as a registered land surveyor."
1967 Perm. Supp., C.R.S. 1963, 51-2-10, provides:
"(2) Any person may prefer charges of fraud, deceit, gross negligence, incompetency, or misconduct against any registrant. Such charges shall be in writing, and shall be sworn to by the person making them and shall be filed with the secretary of the board. In addition, the board may, on its own motion, investigate the land surveying activities of any registrant and may, upon discovery of reasonable evidence of fraud or deceit in obtaining a certificate of registration or of violation of any Colorado statute relating to land surveys or land records, prefer charges directly against said registrant."
1967 Perm. Supp., C.R.S. 1963, 136-4-12, also states:
"It is hereby declared to be a public policy of this state to encourage the establishment and preservation of accurate land boundaries, including durable monuments and complete public records, and to minimize the occurrence of land boundary disputes and discrepancies."
These statutes evidence an explicit legislative scheme to protect the public by providing accurate land surveys and by prescribing strict professional standards for licensed engineers and surveyors.
[1] The seal required by C.R.S. 1963, 51-2-7 (3), constitutes a certification to the general public that a qualified land surveyor has supervised or performed the work as represented in the certified document. It also represents an acknowledgment of responsibility to the general public by the surveyor for any mistakes or negligence in the preparation of the survey which bears his seal. C.R.S. 1963, 51-2-10(2), and see also Fenwick v. Colorado State Board of Registration, 31 Colo. App. 501, 503 P.2d 1038.
Although no Colorado cases have been brought to our attention, nor have we found any, dealing directly with the problem of a surveyor revoking his seal, and thus certification, precedent and common sense lead us to our conclusion. In Clement v. Pensacola Builders Supply Co., 138 Fla. 629, 189 So. 852, a situation analogous to the instant case was presented where an architect was suing to enforce his mechanic's lien against the builders. The builders had previously employed an architect who had neglected his duties as supervisor of the construction. He was replaced by another architect who, in turn, was discharged. In the interim of two or three months the builders attempted to serve in that capacity. A third architect was hired but, because of his unfamiliarity with the construction throughout its progress, felt he was not qualified to execute the architect's certificate and affix his seal which was needed by the builders. There was no controversy about the validity of a stipulation in the architect's contract that conditioned the payment of architectural fees upon inspection and certification of the work at completion. However, the court stated that, under these circumstances, it was not unreasonable for the architect to have been reluctant to issue his certificate when two other architects and the builders had done parts of the supervision. The court then held that it was the fault of the builders that the certificate was not issued and that the architect should be able to foreclose his mechanic's lien. The court succinctly stated the problem: "The confusion seems to have resulted from matters within the owners' [builders'] control, hence they, if anyone, should suffer." Here, the acts of the defendant in altering these plats necessitated the revocation of plaintiff's seal.
[2] We hold that the statutes governing the licensing of surveyors and engineers require that where documents prepared by one licensed under their authority have been changed without the licensee's knowledge or approval before they become of public record, the licensee has an obligation to revoke his certification on them. In the instant case, where evidence showed that South Park had altered the plats and that the remainder of the plats were unavailable for plaintiff's inspection, the plaintiff complied with this legislative intent to protect the public welfare and acted prudently in protecting its own license by revoking its certification.
[3] South Park argues that plaintiff's revocation of the certificate destroyed the value of the survey work, and thus relieved it of any obligation to pay the balance due on its account with plaintiff. We are unimpressed with this argument. First, the record shows that South Park made no effort to contact plaintiff and secure its approval of their changes or re-certification of those which had not been changed. At a minimum, a subsequent request by South Park for plaintiff's approval would be required in order to show the good faith of South Park in making such changes or in demonstrating that no changes had in fact been made. We conclude that the operative act in causing the destruction of the value of the survey work was the defendant's own alteration of the documents after the plaintiff had completed its performance of the contract.
Second, we find nothing in the record which indicates that the contract between the plaintiff and South Park obligated the plaintiff to approve any of South Park's subsequent alterations. The court found that the plaintiff substantially complied with the agreement, and thus, we conclude that it was not required to do additional work in order to collect the balance due on the billing. Little Thompson Water Association v. Strawn, 171 Colo. 295, 466 P.2d 915.
Plaintiff is entitled to be paid and its mechanic's lien should be enforced. The judgment is reversed and the cause is remanded with directions to proceed in accordance with the views expressed herein.
JUDGE PIERCE and JUDGE RULAND concur.