Court Ordered Corners

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The original monuments established by the deputy surveyors under contracts from the Government Land Office have always been intended to be fixed in position where they had been placed and deemed unchangeable.

"That the original township, section, and quarter-section corners established by the government surveyors must stand as the true corners which they were intended to represent, whether the corners be in place or not." ­ Restoration of Lost and Obliterated Corners, Department of the Interior, General Land Office, March 13, 1883.

The above wording then became item No. 2 under General Rules for all subsequent Restoration of Lost and Obliterated Corners circulars produced by the GLO. It was not a new concept, however, since the Act of February 11, 1805, Stat. at Large, Vol. 2, p. 313, Sec. 2396, had already stated:

"…the boundary lines actually run and marked (in the field) shall be established as the proper boundary lines of the sections or subdivisions for which they were intended; and the lengths of such lines as returned by the surveyors shall be held and considered as the true length thereof…"

United States judges at all levels, and at all areas of our country have handed down rulings that have sometimes baffled and raised eyebrows when their decisions relating to surveying have been rendered.

One result from a judge’s decision occurred near Lincoln, Nebraska, in the fall of 1888. The South ¼ Corner of Section 22, T10N, R7E, was established by a team of United States deputy surveyors named Richard Taylor and Thomas O’Neal in October of 1857. At this location their notes indicate they had set a limestone measuring 18" x 11"x 5" for the monument.

This stone set by Taylor and O’Neal had apparently been set about 33′ too far east from an equal split between the section corners. This may seem excessive, but in the realm of surveying it was not uncommon to find a quarter section corner that far off from where it was stated in the notes, especially if the entire mile had not been measured. On April 7, 1879, Deputy County Surveyor Adna Dobson, who was fully competent and qualified in every aspect of his duties, found and used the original limestone set by Taylor & O’Neal to survey the NW Quarter of Section 22. Dobson was working under County Surveyor James P. Walton, who also was proven to be highly educated with expert qualifications in his profession. Dobson’s survey is recorded in the county survey records and describes setting a red flint stone for the center of Section 22 by the proper methods of subdividing a section. The next year on June 7, 1880, Walton surveyed the East ½ of the SW Quarter of Section 22 for Henry Hans Sullenbach by using the original limestone at the S ¼ Corner and the stone at the center of section that Dobson had set the previous year. Six years later Walton again used the original limestone to subdivide Section 27 to the south. The limestone was well accepted for 29 years after it was first placed.

Another early Lancaster County surveyor was Peter S. Schamp, who was elected to the position in 1865 and served two years. Schamp was 49 years old and had acquired a homestead south of Lincoln three years earlier. In the infant stages of Lancaster County, and the growth of the capital city of Lincoln, getting elected to a political position often did not require much expertise for the position being held. Besides being a surveyor, Schamp was also a farmer, carpenter, Baptist preacher, and held the county coroner position for one term. It is doubtful he was familiar with the finer tenants of the surveying profession and how to treat section corners that were not exactly where the notes stated they should be located. In his defense he was most likely an honest person, but he probably lacked the necessary skills to be a competent surveyor in a profession that required more than just a general knowledge of the basic tools of the trade.

Schamp was apparently still practicing surveying twenty-one years after he had lost the county surveyor’s position in 1867. On October 31, 1888, he was hired by William Lennard to survey the SE Quarter of Section 22. Schamp measured the entire south line of Section 22 and then proportionally set a sandstone at the midpoint of this line. He either completely missed or ignored the original limestone of 1857 that had been previously used by Walton and Dobson. Schamp then set his own Center of Section 22 while again ignoring the corner set for the Center by Dobson in 1879. Based upon Schamp’s survey, landowner Lennard then filed suit in District Court claiming that landowner Sullenbach was occupying a strip of his land measuring 36′ on the south line and tapering to 18′ at the Center of Section 22. For reasons unknown, Sullenbach failed to appear in court to defend the line surveyed by Dobson in 1879. Perhaps he failed to appear for monetary reasons, or perhaps he thought it was moot case since his line had been established by the county surveyor, whereas Lennard’s line had been incorrectly established by a private surveyor.

Judge Allen W. Field presided over the case and heard the testimony from Lennard and decided the allegations of unlawful land occupation by Sullenbach to be true since Sullenbach was in default by not appearing to defend himself. Judge Field then decreed that Lennard was entitled to the land based upon Schamp’s survey and also decreed Schamp’s surveyed line to be the west line of the SE Quarter of Section 22. His decision, however, did stop short of calling Schamp’s sandstone the S ¼ Corner, but the implication was there by calling his line the west line of the SE Quarter.

The difference in distance of 36′ between the two corners on the south line in the court proceedings, however, were not the actual measurements. County Surveyor Walton had apparently been aware of the situation and had taken actual field measurements in November of 1888. He measured 33.4′ on the south line between the original limestone corner and Schamp’s sandstone. Walton then entered these distances into the county records.

Walton lost the next election in 1890 to Winfield S. Scott, who had been employed in private practice with his father who was a former U.S. deputy surveyor. Apparently there was no love lost between the two surveyors since Scott had been vying for the county surveyor position. On May 25, 1896, William Lennard hired County Surveyor Scott to resurvey the line previously established by Schamp and accepted by the court eight years earlier. In his notes Scott stated Walton had used the wrong stone for the S ¼ Corner when he had subdivided Section 22.

In the years to follow, countless other surveys, including housing subdivisions, were built from this court ordered line, and through eastward expansion, Section 22 is now well within the Lincoln city limits. The position of the original limestone corner, however, has held its ground and has retained control for Section 27. Surveyors over the years have honored its position for Section 27. In a very uncommon situation there have been two permanent monuments on the line between sections 22 and 27 since 1888. The west monument controls all surveys in Section 22 and the east monument controls all surveys in Section 27.

In retrospect it is highly probable the judge had very little knowledge of surveying practices or the sanctity of the locations of the original government monuments. At the very least, every surveyor sh
ould readily have available the statutes that are intended to safeguard our monuments, should we ever be asked to testify in court about the location of an original government monument. That doesn’t mean we will always win, since judges have been known to render some decisions pertaining to surveying that will defy all logic, but it doesn’t hurt to be prepared.

Jerry Penry is employed by Lancaster County Engineering in Lincoln, Nebraska. He has been a licensed surveyor since 1994 specializing in section corner monumentation and GPS surveying. He has written numerous articles for TAS.

A 1.042Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE