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Someone once said that "You should never attempt to tear a man’s house down until you have built him a new one". When the sequence is reversed, shall the man be faulted for putting up resistance, even if he is living in a house with a bad reputation, pin-cushion windows and mathematical delusions for a foundation? Perhaps resistance would be less if an historic mansion with crystal clear windows of precedent and a bedrock foundation of evidence were made available for immediate occupancy.
What we are first attempting to show through these articles is that an ancient fence corner that is reasonable in at least one direction is evidence of a local survey performed by a Land Locator, or his equivalent, and this before initial conveyance. Second, that surveyors who do not give due regard to such original surveys, are in rebellion against the courts.
In 1887 a US Deputy Surveyor was performing a resurvey7 of the east line of the Nez Perce Indian Reservation and was making good time. He had re-surveyed 18 miles of that line when he had the misfortune of running into the only settler in the area, a Mr. Reed. Mr. Reed had the temerity to show the Deputy a bearing tree from the 1870 line and announce that the Deputy’s survey was 20 chains off line and 1.5 miles off station. Though brushing him and all other evidence aside, the Deputy did record: "Mr. Reed also informed me that…it would require the aid of the County Surveyor to find the (other) land corners." The Deputy felt he had positive evidence of an intentional departure from the terms of the 1863 treaty and therefore no obligation to honor the 1870 survey and no need for local surveyors. He continued his "dependent" re-survey, not recovering or noting another stitch of evidence for the remaining 28 miles. This legacy appears to support the newly acquired snobbery of many CFEDS graduates, "Where the fences or private surveys used improper procedures I have no obligation to honor them." Oops, the 1887 survey was dropped-kicked in 1893.
The old house has little room for an original survey or its offspring. Indeed, the old house is filled with Euclidean delusions. Euclid, that Greek philosopher of old, claimed that all things could be described by numbers and proportions, both for things rational and things mystical.8
Before taking up residence a surveyor would be wise to ask, "In Euclid’s house, where does the rational end and mystical begin?" When evidence of original surveys is ignored and proportioning is applied against a fictitious record9 the results are mystical delusions. Such delusions are easily exposed in court, especially where there are ancient fence corners which are reasonable in at least one direction. Clark rocked and racked the old house when he wrote: "the courts consider the evidence of fences more significant than any other form of evidence".10
The matron of the old house, the Cadastral Survey Section of BLM, keeps table with the following menu:
1. No local survey monument can be an "original corner" until it has been accepted and approved by the BLM (2009 §6.45);
2. County and Professional Land Surveys are "non-official", "purported" surveys (2009 §5.5; 6.49, 53);
3. BLM does not consider "purported surveys" as evidence. (Howell v. BLM, US District Court, Court of Idaho, Case #3:11-CV-00653-IJ).
4. No evidence can be used unless it conforms to the GLO Field Notes9, even the fictitious notes (2009 6.13 & 6.17);
5. Challenges to BLM surveys are parried by claiming Sovereign Immunity (Howell v. BLM).
Despite these unsavory dishes the old house is pretty well filled up with those who will not wake up.
The Courts–The Ultimate Drop Kicker
When they fail to respect local surveys and their original corners BLM and their trainees are in conflict with the following elements: 1. Their own manual (§5.29); 2. Clark on Surveying §10.22 at page 276, 277 and the 2008 Supplement pages 51-54; 3. Long standing court decisions such as United States v. Doyle, 468 F2d 633, 636 (10th Cir 1972); 4. Justice Cooley in Diehl v. Zanger, 39 Mich 601, 605 (1878) and 5. Adams v. Hoover, 196 Mich App 646, 493 NW2d 280 (1993); 6. And the 2006 Oregon Appellate case of Dykes v. Arnold.
All of these elements were addressed in Dykes v. Arnold.
BLM’s 2009 §3.137, "…local survey legal subdivision corners…can be set aside…when there is positive evidence of an intentional departure from the legal principles…", was issued in full awareness of, and contrary to, the 2006 Dykes determination.
Dykes reads in part, "For the same reasons that a federal government survey of a section’s exterior boundaries is given legal effect despite its errors, an original county survey of a section’s interior boundaries should be as well. We therefore agree with Clark and the court in Adams that an original county survey marking the center of a section, despite a flawed methodology, should be deemed an original survey, one that is `left in repose’ and given legal effect."11
BLM vs. the Courts
Thus the 2009 BLM manual is administratively in opposition to judicial decisions. Such is prohibited by the principle of separation of powers in the U.S. Constitution. Such despotic tendencies also show themselves in the Howell v. BLM case in which, to avoid scrutiny of one of their surveys, BLM committed the unpardonable sin of ducking out of court. In days gone by men received satisfaction on the dueling fields; replaced by duels in the courts. Neither system works when one of the parties is a coward. How is a citizen to get satisfaction when BLM surveyors excuse themselves from court by claiming sovereign immunity? This is a breakdown of law and order.
After losing so many cases12, one would think that one should know better. And it isn’t just BLM that is losing case after case because their surveys ignore evidence while advancing mathematical solutions13; many private surveys that conform to the BLM Manual also fail in court. This is the most important lesson of Dykes.
Now, in consideration of BLM’s rebellion and cowardice, and out of respect to the loss of Mr. and Mrs. Dykes, let’s tear the old house down before it falls down and kills the rest of our profession. It is time, and past time, that surveyors put on long pants and moved into the new house.
From a report read to the President and Congress on November 20th, 1791, we find that our new house is one and the same as that first envisioned by that 2nd generation County Surveyor and Land Locator, Thomas Jefferson14:
" …And though the want of actual surveys of some parts, and of general delineation of the whole on paper… yet, on the spot, these difficulties exist but in a small degree: the individuals there employed in the details of buying, selling, and locating, possess local informations of the parts which concern them, so as to be able to keep clear of each other’s rights; or, if in some instances a conflict of claims should arise, from any want of certainty in their definition, a local judge will doubtless be provided to decide them without delay, at least provisionally. (emphasis added) –T. Jefferson, Secretary of State, November 8, 179114
It is in the state courts that our new house was formed, built brick by brick, framed in an instant by Dykes v. Arnold and well
-founded upon Dykes’ predecessors. It is here that the frame will be sided with evidence provided by local surveyors and shingled with State court decisions. It is here that land owners find shelter from the inmates of Euclid’s house. It is here that visiting "engineers" realize that their entire careers have been spent in BLM sponsored mischief that the next generation will have to deal with.
It is at the new House of 101 Jefferson Drive that Dykes and T. J. drop-kick the BLM manual out the front door.
From there we can use the December 6th, 1957 words of correspondent Dorothy Kilgallen, given when a grapefruit sized satellite rolled off the exploding Vanguard TV3 rocket, across the sand, into the bushes, and lay there transmitting useless signals, "Why doesn’t someone go out there and find that thing and kill it?"15 Precedents exist, the economy has improved, the majority of our members are on the verge of retiring, there are few applicants for new licenses; the new house awaits.
Footnotes (continued from Part 2)
7. 1887 Field Notes, pages 1, 4, 6 & 35 (See T33N, R4E, Boise Meridian, Idaho). http://www.glorecords.blm.gov/details/ fieldnote/default.aspx?dm_id=226885&s_dm_ id=226895&sid=5xpoedo0.4tl
8. Numerology: Or, What Pythagoras Wrought, by Underwood Dudley, 1997, all of it. Also, The Einstein Theory of Space-Time Without Mathematics, by Samuel K.K. Blankson, 2006, page 87 & 88.
9. Fictitious Field Notes are endemic to the "short-cut-method" and thus much more prevalent than fraudulent notes.
10. Clark on Surveying & Boundaries, 8th Edition, page 433 & 2008 Supplement page 96.
11. In Dykes the prevailing survey had relied upon a 4" square dark stain in the subsoil as the remaining evidence of an 1899 County Survey redwood post reported to have been set at mid-point on the east-west 1/4 line. This point is 71 feet from the protracted position of the center 1/4 corner.
12. CFEDS Course 3, Version 1.1, page 79, 5th paragraph; also, a CFEDS author stated the same in a verbal presentation to the Lewis & Clark Chapter of ISPLS.
13. 2009 BLM Survey Manual, §3.137 also 6.13(3) which reads "…evidence…should not be greatly at variance with the record…", and 6.17 "…collateral evidence can be accepted only when in agreement with the field notes regarding distances…"
14. A Topographical Description of the Western Territory of North America, 1797, by Gilbert Imlay, 594; Trans-Allegheny Pioneers, 1886, by Joseph P. Hale, 100 & 122.
15. Moon Shot by Alan Shepard and Deke Slayton.
Chad & Linda are avid sleuths of the history of surveys and monuments. Linda says, "The more we know of the Metes and Bounds states the more we will understand the future of PLS states." Chad & Linda would appreciate research suggestions: firstname.lastname@example.org
Most land titles in the U.S. have their origins in treaties/purchases from Indians tribes. Swindled or not, the Indians were the Grantors and the Government the Grantee. In turn, when they issued patent, the Government became the Grantor and the Settlers the Grantees. A nine hundred year old Common Law principle sets forth that the Grantee has senior rights. Those senior rights are now housed and protected in the domain of the States. There are no provisions in the U.S. Constitution addressing property rights; therefore Amendment # 9 kicks in: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. It is a simple deduction that, after conveyance, grantors (Federal) have no right to determine property boundaries affecting grantee’s (private) lands. Such is a state issue and is a senior right.
If we no longer have a use for Land Locators, if we no longer have a use for Lewis and Clark, then do we any longer have a use for the Cadastral Survey Section of the BLM, whose work was completed in the 1940’s? Their continued "central government" meddling has wrecked and discredited our profession for 220 years and their erroneous surveys, based upon erroneous directives, continue to damage the nation’s property boundaries.
We, who are sworn to protect original property boundaries, should do no less than to figuratively throw the BLM bums out, and, to prevent re-infestation, tear the old house down. How do we do this? We suggest that, by appointment, you deliver this magazine, opened to this highlighted section, to your U.S. Representatives. It is they who control the federal purse strings. Then deliver copies to your U.S. Senators with a request for regulation of federal courts. We hope that this will accomplish three objectives: 1. Without funding, Federal surveys will cease. 2. A Federal rule restraining federal surveyors from determining or affecting private boundaries. 3. Enactment of a Judicial regulation placing the review and determination of Indian/Private boundaries under the purview of State courts, at least provisionally, as stipulated by Thomas Jefferson and the U.S. Constitution, Article III, Section 2 second paragraph.
A 4.509Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE