Wood v. Mandrilla’s Younger Sister
I often refer to Wood v. Mandrilla because it does the unexpected. More notably it shows how common law prevails over administrative law. Wood truly is a retracement surveyor’s case despite the fact there wasn’t a survey accompanying the land split. Guess what? Wood has a sister case that was settled a few decades later in Saline County, Kansas, and this time administrative law prevailed. See amerisurv. com/PDF/HoyneVSchneiderCaseText.pdf. The rules created by the Executive Branch were effective and upheld by the court. Why? I like to think it’s because the court had a good survey to work with and good testimony to support it.
We’re going to cut right to the chase and start with the Hoyne Court’s reference to Wood. “Appellees call our attention to Wood v. Mandrilla, 167 Cal. 607, 140 P. 279, wherein a different conclusion was reached. In that case, the court held there was no survey dividing or segregating the fractional quarter section into any lesser subdivisions and that the field notes showed a continuous, unbroken line of survey along the south line of the fractional quarter from the southeast to the southwest quarter, and the absence of any monuments or corners established thereon; that there was no provision in the law requiring the subdivision of a quarter section; and that, if it were subdivided, it was not property so done, and that no tract of land known and designated as the east half of the quarter section was ever surveyed or segregated by a government survey. Under the facts as they appear in our case, a different conclusion must be and has been reached. To sum up, we hold that under the facts, in devising the west half of the southwest quarter of section 18 to his son John, and the east half of the southwest quarter to his son William. Timothy Hoyne intended they should take the lands as indicated by the field notes and plat of the government survey, and did not intend an equal quantitative division between them.”
There are some moving parts to the Wood case so I’ll simplify and paraphrase the Hoyne Court’s summary of Wood. 1.) The perimeter lines of the patent were the only lines described, surveyed and marked. 2.) The subsequent land slicing is up to the owner, not the G.L.O. and the owner went off script. 3.) The smaller division was never actually created “of record” by the federales, in fact it was not born until the Wood/Mandrilla deed was recorded. I found two plats for T20S R 24E Mt. Diablo in Tulare County at “Search GLO Records” glorecords.blm.gov. One is for swamp and overflow lands, while the other is the federal portion of the township. Surplus seems to be reported but not in the squarish method of “lotting” that customarily calls out plump or lean numbered “sixteenths”. Remember, lotting was done in the office by a bean counting draftsman whose function was to simply balance the checkbook.
Let’s compare these facts with Hoyne’s.
1. Timothy Hoyne was the greater patentee of multiple smaller aliquot parts described within and dependent on the 6th P.M. plat and survey.
2. Timothy Hoyne maintained the PLSS descriptions when he reapportioned his gross lands and devised title to his heirs.
3. The plat, notes, patent, and smaller aliquot descriptions under Kansas law were accepted as public notice and incorporated into the grant.
There’s a common denominator here called “authority”. So the first item in both cases defines the authority recognized under each G.L.O patent. The G.L.O. stopped identifying at Wood’s perimeter and only surveyed/described the extents of what was needed to dispose of that whole chunk. Hoyne on the other hand assembled his caption premises from smaller patents which of course are “dependents” of the larger original survey and plat. So basically Wood had a clean slate inside his perimeter and Hoyne inherited existing lines within his.
The second item is where the road gets twisty. Whether or not Wood realized it, his authority was bound to California’s definition of half in lieu of his better expression of intent. In Wood’s case he was creating the original land division. This is where employing a surveyor comes in handy. True, we work under the authority of the landowner, but any knothead rope stretcher including me would have followed the manual bing, bang, bung unless Wood specifically directed us to do something different. Regardless, Wood’s intended definition of “half” would have been clearly expressed on the ground either way just by having a survey done.
The third item is a matter of law. Something special needs to happen in order to create a parcel. Simply doing a survey is normally not enough. Each state has adopted rules for conveying and subdividing land. Across the United States recording seems to be a magic wand that makes a land deal all legal like n’ what not. It’s hardly a test question to understand why, right? It’s simply a public declaration. Unlike Faceplant or Insta-cram, the law authorizes the county records as a place of public notice so a term like “binding” might get moshed around the pit when discussing recorded documents. The Wood case really was an examination of his declaration which I will re-re-re-iterate could have been clarified with a survey.
So what about the portions of old T-Jeff’s plan that were not necessarily recorded in the County records, perhaps those created before statehood or county incorporation? How were they adopted into record? Well, the Supreme Court Justices of Topeka summed it up in Kansas as follows: “The Federal statutes likewise make provision for certified copies of the surveyor’s field notes, the surveys and plats being made a part of the records of the state…It is well known that all of the lands in Kansas were surveyed by the United States…In the greater number of conveyances of rural lands which have been made, the descriptions of the lands conveyed have used the nomenclature commonly used in describing the lands according to the government surveys.” Hoyne received patent to the north and south “halfs” of the quarter section. In his will he turned the dominoes 90° but maintained the G.L.O descriptions. Hoyne simply relied on the record to describe the reapportioned chunks. Best I can tell, G.L.O. descriptions are judicial notice in Kansas, and Hoyne’s modulation of the G.L.O. divisions satisfied any questions about reference to the 6th. P.M. survey.
The Hoyne Court accepted the responsibility of interpreting Hoyne’s intention and put on their daddy pants when it came to sharing between the Hoyne boys. The Court understood that old man Hoyne had the authority to configure a perfectly balanced 4 way split expressing his love equally and in precisely overstated decimal places to infinity for each child if he so wished. The evidence revealed that old man Hoyne chose to pass on T-Jeff’s good old forties still in the original wrappers. The court observed “The testator owned all of the land in the south half of section 18, and under the devises to his four sons, had the half section contained exactly 320 acres, each would have received 80 acres. If it be held that he intended to give each of them the same quantity of land, then to be fully consistent the excess in the west side would have to be apportioned among the four sons, not merely between the two taking lands in the southwest quarter. And if it be so held, no one would have taken according to the government survey, and the boundaries of what they received would, in no case, have coincided with the points fixed by such survey… Attention has been directed to the fact that in his will he described the lands according to United States survey terminology. That terminology furnishes a guide for determining what lands he devised and their location. He did not say the lands were in Saline County-he described them by a section, township, and range west of the 6th P. M… Had he intended to divide the entire south half of the section quantitatively equally among his four sons, or the southwest quarter quantitatively equally between his two sons, he could easily have expressed that intention. Under all the facts, we are of the opinion that Timothy Hoyne intended by the descriptions of real estate used in the various devises in his will to refer to subdivisions according to the government survey, and that as to his sons John Hoyne and William Hoyne, he did not intend an equal quantitative division of the southwest quarter of section 18. While not conclusive here, evidently the plaintiff’s ancestor William Hoyne believed that he took according to the government survey, otherwise, he would not, in a contract of sale of it, have said: “By said will said William Hoyne inherits the East Half of the Southwest Quarter of Section Eighteen (18), Township Fourteen (14), Range Three (3) West of the Sixth P.M. in Saline County, Kansas, according to the government survey.”
I find it interesting that the Court made a distinction between tying the legal description to the County or simply referencing the 6th principal meridian. I wonder if that is some sort of “index” pointing to either federal or state authority? Sort of like defining an arbitrator in a contract? Blecch, we better leave that alone and just concentrate on our ropes and bobs. Anyway, the Hoyne case worked out the way we have all been taught things should. It’s as comforting as warm homemade bread smothered in gravy. Wood guides us to look deep into the details for anomalies whereas Hoyne shows us the strength of the PLSS. Feel free to send me feedback at email@example.com.
Note: The Hoyne plat can be found at amerisurv.com/PDF/HoynePlat.pdf.
Special thanks to Terry Mattison the Saline County Surveyor. He was able to conjure up the notes and plat. Federal land rights expert Brian Portwood has also written about this case and many other Kansas cases in The Land Surveyor’s Guide to the Supreme Court of Kansas, see page 177 of his book for a concise review of the Hoyne case at https://amerisurv.com/PDF/Portwood_Kansas_SupremeCourtBook.pdf and Brian invites your comments as well, he can be reached at firstname.lastname@example.org.
Jason Foose is the County Surveyor of Mohave County Arizona. He originally hails from The Connecticut Western Reserve Township 3, Range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian.
The Barbershop Barrister
Although the novice may think we have a nearly identical BLM exercise on paper in these cases, we have a different set of human interventions or what the lawyer folk might call facts. This is why and how retracement surveying differs from plain old land slicing. I can bubble it down to a least common denominator. When you are subdividing land you are creating facts and when you are retracing you are collecting facts. Pretty simple, huh? With this realization I have reached eternal enlightenment and my bob dangles plumb in the gentle westwinds of Elysium…
In both Wood and Hoyne the Courts acted in a retracement capacity. The courts sorted through the actions of people operating under law. So what happened in Hoyne to bind it to the 6th principal meridian survey? Best I can tell you is that old T-Jeff’s plan actually worked at all levels! Think about it. Congress authorized the survey, the Executive Branch did the survey, the patentee perpetuated the survey, and the State Supreme Court weighed the evidence of the grantees adoption and perpetuation of the survey. That’s a whole lot of muscle supporting the chain of title. We take it for granted but when you stop and think about it, any successful implementation of Old T-Jeff’s chessboard is worthy of applause. Remember, he most likely did not have a grasp of the physical magnitude of the continent behind the Colorado Front Range. On second thought, in 1796 when he cooked up the plan, I’d bet he barely knew what lay west of Marietta, Ohio. Fortunately, most everything from the Ohio River up to the Rockies was well suited with the PLSS fabric. Another thing, a whimsical Congress and a fruit loop President could at any point go snowflake on us and defame Jefferson as a bigoted slave owning racist then declare that we must survey public lands in circles because some kid is gonna lose an eye on those sharp rectangular corners. Fortunately the PLSS was well thought out and has withstood two centuries of political whim.
How about my counterpart’s role in this game? The County Surveyor’s testimony can be of great assistance to a court. “The evidence offered showed the facts recited. The county engineer was called as a witness and testified concerning a survey he had made. He produced from his office records the government field notes, map, and official plat of section 18, all of which were duly identified and admitted…The county engineer further testified with reference to making a survey, to finding stones at appropriate places, that all section cornerstones were found, as well as the quarter corners on the north and west, the others being established, and explained that this section is on the west side of the township, and in a government survey any shortage or overrun is on the west and north of the township; that the government in making the survey set the section corner and quarter corners, but did not set other corners in the field though it did in the field notes…”. Wood was a different creature where the Court actually had to figure out the manual on their own. This testimony in Hoyne seems to satisfy the court.
We must stop, drop, and roll for a minute to talk about recorded land divisions. The California Court held the state definition of “half” in Wood because the record perimeter was the extent of the PLSS product. The Kansas Court cites California to show this difference “and that no tract of land known and designated as the east half of the quarter section was ever surveyed or segregated by a government survey.” In my neck of the woods folks have adopted the practice of cutting sections up into equal “forties” through a map showing a numbering scheme complete with unique tract numbers stamped on monuments. The maps are incorporated into deeds by reference and thus become record. This is a case where the owner opts out of the PLSS and subdivides at his discretion. A huge disservice is undertaken when Johnny Lawndarts ensuingly assumes “forty” automatically means “aliquot” and then professes that the section was “broke down” wrong…and thus the pin cushioning begins. The differences between the decisions in Wood and Hoyne are simply based on the subdivider’s adoption of the PLSS after the patent. The point is that it’s not automatic that an owner will adopt the PLSS. I am happy to provide real life examples if anyone is interested.
I’m not especially thrilled when someone embellishes some sort of difficulty in “breaking down” a section. It’s a five minute pop quiz question by the G.L.O. and intended to happen under a singular title. Both Wood and Hoyne demonstrate the realities of conveyancing but more importantly to us they both emphasize the necessity of evaluating evidence in retracement work. Where Wood had very little to none, Hoyne demonstrated a good original survey, a good retracement survey, and a clear understanding of the authoritative records. The GLO instructions are capped at patent unless the successors subsequently adopt the scheme. Moreover, history has shown that patentees have legally adopted the schematic while employing survey methods to a lesser standard of care, like agreeing to a line laid out with a rag tape and a rifle scope. Those are low standards of care but nonetheless successful means of conveying dirt. It is fraudulent for a retracement surveyor to walk in and reapportion land outside of the authority of any valid conveyance. The manual shows us the way it is supposed to be…until the facts get in the way.