A 512Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE
Pretense to Knowledge
"Well look you can argue whatever what you like but, as a registered land surveyor that’s my professional opinion." How often, do you suppose, that assertion is just a cop-out from a surveyor who can’t defend his work? In my experience–almost always.
The American Surveyor (September, 2014) published an article by Chad and Linda Erickson titled "Subdivided We Stand" underscoring that familiar theme. In that article the Erickson’s demonstrated the highest professional standards in remedying a previous, defective survey. Having said that, their conclusions call for closer examination. But first, to briefly recap the circumstances:
In July 2014 the Erickson’s were asked to address boundary issues near Stuart, Idaho. Between 1965 and 1974 Earl Erdman, recently deceased, laid out a series of adjoining lots in the NE ¼ Section 30, T. 33 N., R. 4 E. The metes-and bounds deed descriptions were tied to the E ¼ corner which was called an "axle steel." In 1984 a second surveyor (the name isn’t provided let’s call him Curtis to ease the narrative) performed boundary surveys for the same properties. According to article, "… as per the 1973 BLM’s manual requirement of "Evidence beyond a reasonable doubt", (Curtis) rejected the "axle steel" as the ¼ corner …" and set a new monument by a single proportion of the east section line.
Curtis then re-staked the lines using the original metes and bounds descriptions based on the new E ¼ corner location. As might be expected, the Curtis survey didn’t fit the improvements. The Erickson’s determined that the new lines were translated from the occupation lines by 73′ south and 23.5′ east. The Curtis lines divided four buildings and in two instances located an entire house on an adjoining lot.
Twenty years later the Erickson’s were called in. The "axle steel" had been destroyed but the Erickson’s were able to establish the "axle steel" location from fence corners by "working the many legal descriptions backwards." They then re-located property lines that harmonized with the occupation lines.
Again, the Erickson’s practiced to the highest standards in mitigating Curtis’ damage. My purpose is to examine the conclusions that:
a) Curtis conformed to the 1973 Manual of Instructions such that b) money was spent on a problem that probably wasn’t resolvable in the first place and c) the public land system is doomed. Let’s begin by defining terms from the 1973 Manual.
An obliterated corner is one at whose point there are no remaining traces of the monument … but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested landowners … (5-9)
A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt … from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent corners. (5-20)
A dependent resurvey is a retracement and reestablishment of the lines of the original survey in their true location according to the best available evidence of the positions of the original corners. (6-4)
An independent resurvey is an establishment of new section lines … independent of and without reference to the corners of the original survey. (6-5) Curtis concluded the corner was lost. The Erickson’s concluded it was obliterated.
Curtis conducted an independent resurvey. The Erickson’s conducted a dependent survey. Are they both correct since this is just a matter of differing expert opinions? The basic disagreement is that Curtis rejected but the Erickson’s accepted fence corners as acceptable evidence establishing the original "Axle steel" location. Back to the 1973 Manual.
In the event that the original monuments have been lost, the surveyor need to be familiar with the scheme of the original survey … and the principles upon which courts have based rulings with regard to corner restorations. (3-74)
According to the Manual, the Curtis conclusion that the E ¼ corner was lost triggering an independent survey must be based on a familiarity with legal principles. But an analysis of principles is not the purpose of the Manual so a good text book is needed. Not to worry, we have that holy of holies Evidence and Procedures for Boundary Location, Brown, Robillard, Wilson (my copy is the Second Edition, Wiley-Interscience, 1981) which states:
Possession that represents the original location of the original monumented lines is distinctly different from unwritten title lines. In many instances, after all original monuments have disappeared from view, the best available evidence about where the original lines were is evidence of old fences built soon after the original stakes were set. (2-52)
This case involved not unwritten transfers but uniform translation. So as per Evidence and Procedures the Curtis judgment must be doubtful at the very best. Let’s assume that Curtis still maintains he was correct and this wasn’t, in his opinion, one of the "many instances" for some unspecified reason. Besides that, let’s assume Curtis is one of those surveyors who insists his opinion is just as good as any "book-scribbler" out there in the first place. (You know who you are out there.)
Fair enough. Just as a rhetorical exercise let’s imagine we confront Curtis in his office with the following:
Government resurveys involve considerations of a different character from those relating to original surveys. The object is two-fold: First, the adequate protection of existing rights acquired under the original in the matter of location on the earth’s surface and second, the proper marking on public lands. (6-2)
Note, Curtis, that protection is first and proper marking is second, also:
In an independent resurvey it is necessary to preserve the boundaries of those lands patented by legal subdivisions of the sections in the original survey… (6.5)
No room for differing opinions there. There’s more:
The Act of March 3, 1909, (35 Stat. 845), as amended June 25, 1910, (36 Stat. 884; 43 U.S.C. 772) reads in part as follows:
That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims … affected by such resurvey or retracement. (6-12)
Note, Curtis, that both rights and claims are to be protected and:
There is no legal authority for substituting the methods of an independent resurvey in disregard of identified evidence of the original survey. (6-14)
Come now Curtis, there is no rational argument that fence lines are not "identified evidence." At this point Curtis moves uneasily in his chair but still refuses to budge from his position. For whatever reason. Okay, try this:
Cragin v Powell 128 US 691 (1888)
The making of resurveys … is always at the hazard of interfering with private rights, and thereby introducing new complications. A resurvey, properly considered, is but a retracing, with a view to determine and establish lines and boundaries of an original survey,… but the principle of retracing has been frequ
ently departed from, where a resurvey (so called) has been made and new lines and boundaries have often been introduced, mischievously conflicting with the old, and thereby affecting areas of tracts which the United States had previously sold and otherwise disposed of. (6-8)
At this point Curtis, whether he admits it or not, must recognize the reality. A plain reading of the unambiguous, uniform and repeated doctrine established by the Manual leads ineluctably to the conclusion that Curtis failed to practice "as per the Manual instructions." In fact, Curtis contradicted not just the clear intent but the explicit text.
The Manual is not a text book or an opinion publication. It is a set of instructions. Hence the title. This is not a question of opinion. It is a question of following instructions.
Obviously the establishment of a property line locating a house on the adjoining property falls under the heading of "mischief." Curtis did that twice in the same survey. The Manual tells us that the Curtis approach has been inflicted on the populace since at least 1888. In my experience (which dates only to 1971) it is all-too-common to find surveyors who practice with a pretense to knowledge regarding the legal principles of land surveying. The problem has more to do with hubris than lack of information.
Property rights issues cannot be addressed solely by manipulating modern survey equipment and applying a mathematical operation that falls within the skill set of most fifth-graders. The remedy to the problem calls for a large dose of education. But surely just a small dose humility would call for reading the Manual prior to applying the instructions.
This case also begs for a discussion of the property surveyor’s role and the distinction between proof and evidence. That will have to be a topic for another time. But I will leave the following question as a hint: Why, do you suppose, the instruction (6-12) makes no distinction between bona fide rights and claims?
For now I will close this discussion with the assertion that the public land system cannot be casually set aside. "Jefferson’s wonderful coordinate system" actually is wonderful. It is one of the more remarkable accomplishments of any society in establishing and securing property. It is uniquely American. Land surveyors have the duty to utilize the system to its intended benefit and pass it along in better condition than inherited.
So in conclusion, to borrow from Mark Twain, "The rumors of the death of the GLO public land system have been greatly exaggerated." Thank Goodness.
James T. Jones, PS, PE
Parker, CO 80134
The Ericksons respond:
We liked Mr. Jones’ comments. He has some very good and appropriate points.
It might help to clarify a few points about our first "Subdivided We Stand" article:
First, that the GLO has made many sloppy surveys that do not conform to the Field Notes.
Second, that BLM’s forced compliance to those Field Notes, even in the 2009 Manual, has created a farcical field in which sometimes it is not worthwhile trying to resolve a land boundary problem through the Rectangular Survey System.
Third, the case study was of a situation where the location of a controlling 1/4 corner could not logically be resolved in the first place and the land boundary problems were resolvable without first spending $10,000 on the 1/4 corner. All the parcels came out of one ownership and none of the subdivision units touched the exterior boundaries of that ownership. Thank goodness in such a case 1/4 corners are not needed, the original subdivision monuments hold.
What was not mentioned and yet is worthy of contemplation is, after the original survey is performed, why do we any more need the Rectangular System? Why not just hold to the original corners or their remaining evidence? Wringing our hands over where the 1/4 corner was reported to be, or giving a fair share to all properties within a section is like the father in the labor room praying that the new baby will be a boy. In both cases, "it is what it is". Only the first surveyor can place things where they are supposed to be or ensure that everyone gets his/her fair share. After that, "it is what it is". (And what is wrong with a new girl anyway?)
Chad & Linda
More on the Erickson articles
It’s about time! All this talk about original monuments I have been reading about the past few years is great. Just because I can measure better than you does not mean I should set a new monument 6" away from that old rust iron pipe. As for the deed Surveyor, you all need to have your licenses revoked and be run out of Town. I was taught long ago that a deed and map are to help you get to the property. What you find onsite determines were the property is located. Not the other way around. This is not always true, but there are exceptions to everything.
Dean Schultz
A Colorado Surveyor
A 512Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE