Bona Fide "Wrongs" & "Fixing" the Footsteps

Why the application of GLO Proportioning is fraudulent outside of the public domain

A 727Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

According to Black’s Law Dictionary Eighth Edition the term bona fide is defined as "made in good faith; without fraud or deceit". The term "rights" in our context is defined as "the interest, claim, or ownership that one has in tangible or intangible property". The term "fraud" in our context is defined as " A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act on his or her own detriment". The term "detriment" is defined as "Any loss or harm suffered by a person or property". The term "tort" is defined as "a breach of duty that the law imposes on persons who stand in a particular relation to one another" and "negligent tort" is defined as "A tort committed by failure to observe the standard of care required by law under the circumstances".

GLO/BLM Surveyors follow a consistent set of mechanical instructions that are intended to express a desired geometry on the ground, more or less. This action could be compared to a person packing fruit into boxes at a market. That person, we’ll call him the "market’s apple counter", is instructed to fill the boxes with apples for future sale to customers. Some boxes have 30 apples, some have 29, some have 31, and a few might even contain as little as 25 or 26 apples. The differences between boxes are of insignificant concern at this point for two reasons. The first is that customers will be purchasing "a box of apples", although they may not be able to count each apple, they can readily see a full box and; second, if unsold boxes seem light or heavy, the manager can instruct the market’s apple counter to adjust the remaining quantities of the unsold boxes. Nobody loses or gains as the apples obviously still belong to the store.

Now, what would happen if two neighbors each brought home a box with different amounts of apples? Let’s say Fred has counted 31 and Doris has counted 28, all bought and paid for. Being good neighbors they accepted the difference then went about their ways continuously maintaining a stock of 31 and 28 apples respectively. Over time their boxes fall apart and the distinction between piles diminishes. Respectful of each other’s property, Fred and Doris want to mark which part of the pile belongs to each other. They call a local apple counter. The apple counter looks at the pile and examines the receipts that simply state "sold-1 box apples". A week later, the local apple counter computes and precisely determines that each box should have contained 29.7356 apples based on the box dimensions provided by the market. He counts all of the apples in the pile, divides that in half and gives each person 29.6 apples. Fred and Doris are both confused because they have always had 31 and 28 apples respectively.

The main distinction between these scenarios is that in the market the apples are owned by "the market" and are merely being rearranged between boxes at the owner’s discretion. Conversely, both Fred and Doris each have acquired their own apples that are uniquely and individually their respective properties. Neither wishes to rearrange the holdings but rather merely to identify them. Okay, if it’s not obvious already, I’ll translate the characters to our realm. The Market Owner is the Federal Government, the market apple counter is the GLO/BLM Surveyor, the local apple counter is you, and Fred and Doris are land owners. It should be apparent that the market apple counter’s actions are intended to be performed in the market and prior to selling any apples, much the same way that the GLO/BLM instructions are executed in a vacuum with regard to title or ownership. (This is a generalization stated to illustrate a point. GLO Surveyors are instructed to observe and protect bona fide rights.) The market apple counter has no authority outside of the market to count apples, nor any authority to reapportion apple boxes after they are sold. Therefore his instructions are intended to be followed only in the market.

Chapter VI (6-2) of "The Manual of Survey Instructions- 2009" states "Surveyors with extensive experience working in the non-Federal arena are especially cautioned that the stability envisioned by this statutory scheme may be different from the concept of stability described in common law boundary cases. Stability of boundaries in the non-Federal arena is often given as the guiding principle behind boundary resolution theories such as adverse possession or acquiescence." There is an important delineation identified in Chapter VI. The "non-Federal arena" is the place where you and I survey. The BLM recognizes this and clearly identifies that different rules apply to the "non-Federal" arena. (We all owe a great debt of gratitude to Bob Dahl, Don Buhler, Jim Simpson, and everyone else who participated in the creation of the 2009 Manual of Survey instruction.)

It is common knowledge that double proportion will neither place a mark in its original position as set, nor, place a mark in its position indicated by the numbers on the GLO Plat. The method is merely an equitable distribution of the alchemy between field measurements, platted returns and original monuments. The GLO/BLM Surveyor, having no other option after an exhaustive retracement effort, has the luxury of "erasing the blackboard" in order to resolve the problem. Proportioning is the prescribed method that they are instructed to follow. I don’t believe that proportioning is some sort of federal witchcraft to empower anyone with the ultimate path to the truth and eternal enlightenment. I do suspect that the originators simply prescribed a consistent and retraceable last ditch method fully understanding that title conflicts cannot be created where title does not exist, for example within "the public domain". (I casually say title does not exist in public lands, perhaps it may be better to refer to the public domain as being a single common ownership. Either way the method does not create a conflict between owners.) The reason that GLO/ BLM surveyors can use proportioning is because they are working with land under a single common ownership. Private surveyors perform a similar action through a local subdivision "plat amendment" process. Generally speaking, there must be common ownership or a merger of title in order to execute an amendment to a plat. This is consistent with title because the owner(s) intend to only "reaffix" or move proposed boundary lines within their own holdings.

Township plats and GLO notes typically indicate that the smallest division measured on the ground was the 640 acre "Section" of land. The four corners of each Section were set as well as midpoints on the exterior to delineate the "Quarter Sections". The dashed line drawn between these Quarter Corners on the Plat indicate that the lines were protracted or, in the parlance of our time, "calculated". This is a noteworthy consideration in retracement survey work. Aliquot parcels of 160 acres or less may have been patented (conveyed) without original evidence of the boundary on the ground. This leads me to several inferences. First is that the GLO/BLM intended for the local surveyor to finish the job of subdividing the section. Second, that the common property corner set in good faith, relied upon as the corner in longstanding, and harmoniously identified by the owners is the true "center of section". Thi
rd is that there is a rattlesnake den at the intersection of lines precisely run between Quarter corners. The "legal center of section" is another topic but is included to demonstrate that GLO/BLM rules only apply when there is no opportunity to conflict with established title to land (i.e. within the public domain).

I want to emphasize the term bona fide is defined as "made in good faith; without fraud or deceit". A bona fide survey is very strong evidence supporting the location of a bona fide right of property. The longstanding reliance and harmonious acceptance of landmarks is very strong evidence supporting the location of a bona fide property right. I refer to "The Judicial Functions of Surveyors" written by Chief Justice Thomas M. Cooley. "Occupation, especially if long continued, often affords very satisfactory evidence of the original boundary when no other is attainable; and the surveyor should inquire when it originated, how, and why the lines were then located as they were, and whether a claim of title has always accompanied the possession, and give all facts due force as evidence." Chief Justice Cooley also states "(surveyors are) to find , if possible, the place of the original stakes which determine the boundary line…However erroneous may have been the original survey, the monuments that were set must nevertheless govern, even though the effect be to make one half ­quarter section 90 acres and the one adjoining, 70…" and further into the writing he states "…notwithstanding the loss of all trace of a section corner or a quarter stake, there will still be evidence from which any surveyor will be able to determine with almost absolute certainty where the original boundary was between the government subdivisions."

The term "fraud" in our context is defined as " A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act on his or her own detriment". Some material facts representative of Proportioning in the "non-federal arena" are: 1.) a position is mechanically computed without regard for bona fide rights and occupation; 2.) the computed position most likely will not coincide with an original position previously set on the ground; 3.) the method is prescribed for use in the "Federal arena"; 4.) "Stability of boundaries in the non-Federal arena is often given as the guiding principle behind boundary resolution theories…"

The use of Proportioning is core knowledge to a minimally competent Surveyor. The misuse of the method outside of the Federal arena can be defined through a nonsubjective national test question, presented in the format that we have come to rely upon in the determination of minimum competency.

The use of Proportioning:
A. Is a knowing misrepresentation of longstanding and accepted boundaries outside of the Federal arena.
B. Conceals facts that occupation and testimony may reveal.
C. Creates a substantial and unjustifiable risk of harm to others by a conscious disregard for, or indifference to, that risk.

Note: This is an updated version of an article originally printed in both "The Arizona Surveyor" and New Mexico’s "Benchmarks" publications. A special thanks to Tom Liuzzo of "TAS", and Barry and Minet Phillips of "Benchmarks" for all of their efforts!

Since 2012, Jason Foose has served as Arizona’s Mohave County Surveyor. He is licensed in Arizona, Colorado, and Nevada and has enjoyed a full time career in Surveying since 1993. Prior to that he worked part time as a rodman, and full time for a title insurance company running chains of title in the dusty old Victorian courthouse in Medina County, Ohio. He owned and operated a small surveying practice on the Colorado Front Range and accumulated 12 years of private sector experience before accepting a position as a staff surveyor with Mohave County.

A 727Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE