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If only we could go back in time to see where the original surveyors actually placed their monuments, then we could certainly rewrite a substantial amount of incorrectly recorded history that has came in the years afterward. However, faced with the law 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, expert opinion has often been disregarded. Corners that were suspected as being fakes or those that have been moved often incorrectly stand as originals.
Courts have used the principle that original corners stand as a basis for settling disputes ever since the Act of Congress, February 11, 1805, which states "As long as the point at which the government has established a corner can in any manner be identified, that point must remain the corner." Most surveyors recognize this verbiage and generally understand that most monuments were placed within the allowable tolerance when the original surveyors attempted to place them correctly. Unfortunately, there are areas where surveyors must work where widespread fraud was committed. Finding section corners hundreds of feet from where they should have been placed or concluding that others were never established or have been moved can take on a form of normality. The courts do not typically recognize who has the expertise or authority to determine whether a found monument, having every appearance of being an original corner, is in fact a bona fide original in its original location and not an imposter placed later. The law, when exceptions are not allowed, has often overridden the expert opinion of qualified surveyors who do not believe that certain corners are originals or have remained in their original locations.
During the course of their work, early county surveyors in Nebraska made new monuments resembling those constructed by the original surveyors contracted by the General Land Office. There were no laws in place to define what a monument constructed during a later survey should resemble, so new monuments were made to look like the originals. In prairie country, scarce of timber and stone, the usual monuments, both original and those made later, generally consisted of a mound with pits. Tens of thousands of these monuments were constructed in Nebraska and other states. Oftentimes, the early county surveyor’s work was not recorded. This left gaps in the record as to the true origin of many early monuments. To further complicate matters, land locators and homesteaders, aided with only a shovel and the knowledge of what an original pits and mound corner should resemble, created new monuments. When problems later arose, the burden of proof was placed upon proving that the newer monument was not in fact an original GLO monument.
The exterior boundaries of T32N, R46W of the 6PM, in what became Sheridan County in the northwestern region of Nebraska, were surveyed by Robert Harvey in September of 1878. This wide-open area of rolling prairie provided the surveyor with long unobstructed sights. Harvey later became Nebraska’s first state surveyor in 1903 and his work is considered among the very best. The interior subdivision lines of this township were surveyed by D. F. Hickey in November of 1882. Little is known about Hickey, but Harvey would later refer to him as one of the Pacific Coast Surveyors who worked under the Special Deposit System which was an organized crime outfit operating within the GLO. Hickey’s notes appear to be legitimate, yet they seem suspicious since they were done with rubber stamps and no individual crew names are listed. The interior sections of T32N, R46W were surveyed by Hickey in four days, while an adjacent township was supposedly completed by him in just three days. The notes for the topography in T32N, R46W generally do not match what is actually on the ground. At the end of his notes, Hickey concludes the land he surveyed was "generally mountainous". This description does not fit the terrain and makes one wonder if he even was ever there.
In 1885, Barney McShane filed a homestead entry for the SE Quarter of Section 25, T32N, R46W. Upon occupation, McShane claimed to discover the quarter corner common to Sections 25 and 36 in July of 1885 which consisted of a mound with two pits. McShane accordingly placed his house and other buildings about 400′ north of this monument believing he was well within Section 25. This alleged corner was approximately 1375′ south and 1444′ east of where it should have been located according to Hickey’s notes.
Years later, McShane claimed he had hired a county surveyor named "C. S. Ball", a short time after occupying his homestead, to rebuild the corner by digging out the pits and placing a brick in the rebuilt mound. In 1887, another area homesteader named Sage leased the north half of Section 36, a school section, from the State of Nebraska to use as a horse pasture. McShane indicated to Sage where the N ¼ Corner of Section 36 was located by showing him the pits and mound. Upon discovering Section 36 to be much smaller than the prescribed acreage, Sage abandoned his lease since he was required to pay the full lease for a tract that was obviously short in acreage.
In 1911, Cornelius Murray leased a portion of the north half of Section 36 and for several years disputed with McShane about the location of the north line of Section 36. The matter finally went to the office of the Commissioner of Public Lands and Buildings in Lincoln, and then to the attention of State Surveyor Robert Harvey. In 1914, Harvey sent one of his most competent deputies, Edward C. Simmons, to survey Section 36 in order to settle the matter. Simmons had already amassed nearly 40 years of experience in surveying with extensive experience locating original monuments established by the GLO surveyors, particularly in prairie country. A statute in Nebraska gave the authority to the office of the State Surveyor to act as arbitrator in settling and determining disputes or disagreements in surveys. The decision of that office became the prima facie evidence of the correctness thereof.
Simmons thoroughly researched the records at the courthouse in nearby Rushville for any pertaining to surveying done within the township. He found records from five different county surveyors with the earliest from George L. Rockwell dated June 18, 1886. It was evident to Simmons that most of the work within the township was random with no clear explanation given as to how the corner positions were derived. The eastern tier of sections was between 58 and 61 chains wide, including the location of a rogue monument shown to Simmons as the NW Corner of Section 36. This narrow band of sections existed despite the NW Corner of Section 1 and the SW Corner of Section 36 of that township being in their correct locations. The monuments on the south and east lines of Section 36, as established by Harvey in 1878, were found where expected and without question.
Simmons interviewed early settlers in the area and seven landowners signed affidavits that the mound at the NW Corner of Section 36 had been there as long as they could remember even though it was approximately 1450′ east and 1190′ south of where it should have been according to Hickey’s notes. Because of the testimony of these witnesses, Simmons accepted the NW Corner as being an original GLO monument despite its odd position. The monument consisted of a mound with four pits, a stone measuring 10x7x4 inches, and a brick marked "SEC COR". None of the records uncovered by S
immons from the early county surveyors showed that any of them had ever been at this location.
Simmons then went to the alleged N ¼ Corner of Section 36, the "McShane Corner", and found a mound with a brick marked "1/4" along with a stone accompanied by a pit both north and south of the mound. Upon careful examination, Simmons could not qualify the monument as being one made by Hickey in 1882 since it appeared to be too new. None of the surveys of record indicated a county surveyor had ever found or established this monument despite the presence of a brick which was not stated in the original GLO notes. Simmons rejected the monument and established a new N ¼ corner midway and on line between the found NW Corner and Harvey’s NE Corner of Section 36. Simmons also established the Center of Section 36 which from that location was easily visible from all four quarter corners.
The survey by Simmons was then filed and made the official record as determined by the State Surveyor’s Office. In the view of the State, the matter was settled. However, things were not so settled for Cornelius Murray when he attempted to cultivate an area formerly a part of McShane’s homestead. The survey by Simmons created a triangular shaped area north of the "McShane Corner", where Murray was farming. In order to stop the encroachment upon what McShane still considered his land, he initiated legal action against Murray in April of 1917. A restraining order was issued against Murray by the judge of the District Court of Sheridan County to prevent him from farming the disputed land. The order remained in place until June 17, 1920, when the District Court ruled in favor of McShane, and the location of the spurious quarter corner despite the survey by the State Surveyor’s Office six years earlier that rejected the monument.
Since the State of Nebraska had a vested interest in Section 36, a school section, and the court decision involved losing nearly 45 acres, the case was appealed and retried in the Nebraska Supreme Court on July 7, 1921. In the view of the State, title was vested to all of Section 36 as shown on the GLO plat upon its approval by the surveyor general on May 8, 1883.
Robert McCarty, the county surveyor of Sheridan County in 1921 and holder of that position at various times dating back to 1904, testified that he had been a surveyor since 1868, and that he was familiar with the corners pertaining to Section 36, T32N, R46W. After making his own measurements to the "McShane Corner", McCarty declared that there was something peculiar about it. He could not credit it as an original corner.
Cornelius Murray testified that he secured a surveyor’s chain in June of 1885 and, along with McShane, measured westward from the NE Corner of Section 36. Together they searched a large area looking for the N ¼ Corner, but found nothing. He further stated that he was very familiar with Section 36 and was positive that the "McShane Corner" did not exist in June of 1885 as McShane claimed. Another witness testified that he arrived in the area in 1887 and was certain that the "McShane Corner" did not exist at that time. McShane, his brother, and two others testified that the monument had been there before they arrived in 1885.
When McShane testified that he had hired County Surveyor C. S. Ball to rebuild the corner shortly after 1885, he was surely mistaken since the only surveyor with a similar name was Robert M. Ball. He did not become the county surveyor until 1890. Notably absent from the courthouse were any records from Sheridan County’s first surveyor, Solomon V. Pitcher, who may have been the first to do work in the area.
The Supreme Court was compelled to find that either four witnesses swore falsely as to the date of origin of the monument, or accept as a fact conclusively that the "McShane Corner", was an original government monument. The defendants produced the 1882 notes by GLO surveyor Hickey to establish their claim that even if the township had not been surveyed, the notes and plat had greater weight than a suspicious monument.
The court decided that it could not contradict the apparent genuineness of the "McShane Corner" and cited an earlier Supreme Court case, State v. Ball, to support their finding. The State v. Ball case had been tried twice in the Nebraska Supreme Court in 1911 and 1913. This case set precedence that monuments constructed by the government surveyor stand even if in direct conflict with the field notes. Ironically, this cited case also involved a township that had been incorrectly surveyed by the deputy surveyor contracted to do the work. The monument in the State v. Ball case was rejected by the State Surveyor’s Office, and also by a resurvey of the GLO, as an original corner, but instead was an imposter made later by another surveyor or local person.
The court summarized with their respect for the opinions and experience of Deputy State Surveyor Simmons and for Sheridan County Surveyor McCarty and that these two men were convinced that the "McShane Corner" was not an original government corner, but the evidence could not support or prove that it wasn’t. The Supreme Court upheld the decision of the lower court and declared the "McShane Corner" the legal location for the N ¼ Corner of Section 36.
Jerry Penry is a licensed land surveyor in Nebraska and South Dakota. He is a frequent contributor to the magazine.
A 4.885Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE