Retracement Surveyor Beware

The recent article in the July/August issue of American Surveyor on the Benson Syndicate, taken from Wikipedia, was of genuine interest, since these days little is written about fraudulent surveys. The Benson Syndicate is probably the best known of organized criminal activity since it comprised one of the largest land frauds in history, as well as having several articles published on the topic along with a book telling a very detailed story.¹

As it turns out, the far West was not the only area to be taken advantage of, thus giving rise to this article as an (hopefully mostly complete) overview of several other regions to be aware of. In addition, land fraud is not exclusively found in the PLSS, although widespread, but there were many other shady deals and probably no region was always completely exempt from land fraud, and those who sought to take advantage of, or sidestep the requirements of, an established system.

The fraudulent survey

Also called fictitious surveys, fraudulent surveys seem to be one of those things not well-defined, or defined anywhere in the usual places, but are generally known by those who encounter them. Merriam-Webster defines fraud as intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right. In some ways “fictitious surveys” better defines what surveyors encounter as “bogus” surveys, those that did not adhere to proper practice or rules of law. If one makes a study of original surveys, one begins to wonder whether such an anomaly is even a survey at all, certainly not by normal practice, or according to standard and accepted rules of law. If indeed it is not a survey, and since the requirement is to follow the footsteps it created, other than to show how outrageously erroneous it is, may not apply as satisfying a basic rule of law. Space requirements do not allow a discussion of the necessary rules. To make it simple for the reader, consult the Florida decision in Rivers v. Lozeau², which should provide the basics of understanding. The goal of this writing is to present some of the known swindles and deficiencies. It is not possible to suggest ways of dealing with them, as each one is a different set of issues, and must be dealt with on a case-by-case basis.

The Benson Syndicate

Named for John A. Benson (1845-1910), this group was what was called an organized crime organization which received contracts from the General Land Office to perform land surveys of the public lands. Its sphere of operation was from the Rocky Mountains to the Pacific coast, being most active in California with headquarters in San Francisco. It operated from 1875 to 1898, peaking from 1883 to 1886. Just in California, at least 40 individuals were known to be involved.

The report for 1887 from the Commissioner of the General Land Office stated, “In April last the United States grand jury at San Francisco returned forty-one indictments for perjury and conspiracy in connection with fraudulent surveys of the public lands. The operations of this syndicate were not confined to California, but extended to the States of Nevada, Oregon and Colorado, and the Territories of Arizona, New Mexico, Idaho, Montana, Utah, and Washington.

In California, government estimates indicate that nearly a thousand townships might have been involved, comprising an area of approximately 20 million acres, or about 20 % of all land in the state. Special agents were sent by the government to investigate fraudulent practices. By 1887, their work had been so thorough that the unlawful practices of the Benson Syndicate were effectively terminated.

The Oregon Land Fraud Scandal

Taking place in the early 20th century, U.S. government land grants in Oregon were illegally obtained with the assistance of public officials. Most of Oregon’s U.S. congressional delegation received indictments in the case against them.

In 1870, the Oregon and the U.S. governments granted the Oregon and California Railroad 3.7 million acres of land to build a line, from Portland south to California. The land, granted in a checkerboard pattern along both sides of the railroad right of way, was then sold to settlers in parcels of 160 acres at the low price of $2.50 per acre to encourage people to settle along the line, fostering development. Accepted by the government, but little of the work was ever reported to have been accepted as valid.

Much of the land being unfit for development, few settlers took advantage, but since it was covered with prime timber, timber companies were ready buyers at higher prices. In order to bypass the requirements of the original grant, the president of the Southern Pacific Railroad, the then owner of the Oregon and California Railroad, hired former surveyor Stephen A. Douglas Puter to round up people from saloons in Portland’s waterfront district, take them to the land office, have them register a parcel as a settler, then transfer it to Puter’s people. The accumulated parcels were then sold in large blocks to the highest bidder in the timber industry. Harriman, the president, had a dispute with Puter and fired him. When a lumber company bookkeeper exposed the scheme, Puter turned on his former boss and, testifying against him, wrote a scathing exposé about the scheme while in prison, which became the first 25 chapters in Looters of the Public Domain.

In the beginning of the lawsuits, more than 1,000 indictments were issued, but the U.S. Attorney narrowed the list to the 35 most egregious offenders, including one U.S. senator and two representatives.

The Yazoo Land Scandal

After the Revolutionary War, Georgia, like most states, had a huge debt due to the commitments made toward the war efforts. At this time, Georgia claimed all land west of the state to the Mississippi River, which then included what is now Alabama, Mississippi, part of Florida’s panhandle and part of Louisiana. The governor at the time, George Mathews, along with the Georgia General Assembly, created a massive real estate fraud scheme, wherein Georgia politicians sold large tracts in what was known as the Yazoo lands, to political insiders at very low prices.

The first attempt for Georgia to settle was a 1784 proposal to establish Houstoun County in the Muscle Shoals area. This never happened because the major proponents instead became interested in an effort to establish the State of Franklin in present-day eastern Tennessee.

Next, in 1785, Governor George Mathews endorsed the Bourbon County Act, organizing Bourbon County, Georgia in the area east of the Mississippi and south of the Yazoo River. The area included Natchez and was in the area claimed by Spain. Because of pressure from the federal government due to the Spanish claim and because of unresolved claims by Native American tribes, Georgia dissolved Bourbon County in 1788.

Then, in 1789, the first Yazoo Act gave the land to three companies formed as a secret society, The South Carolina Yazoo Company, The Virginia Yazoo Company, and the Tennessee Company. In this transaction, the Governor at the time signed a deal to sell 20,000,000 acres to the companies. The deal fell through when the state demanded payment in gold or silver instead of currency. Although the law enabling the sales was overturned by reformers, its ability to do so was challenged in the courts, the case making its way to the U.S. Supreme Court. In the landmark decision of Fletcher v. Peck³ in 1810, the Court ruled that the contracts were binding and the state could not retroactively invalidate the earlier land sales. In 1802, because of the controversy and the litigation, Georgia ceded all of its claims to lands west of its current border to the U.S. Government. The claims involving the land purchases were not completely resolved until legislation was passed in 1814 establishing a claims-resolution fund.

In 1794 the Yazoo Act resurfaced with many of the same participants. Four companies, the Georgia Company, the Georgia-Mississippi Company, the Upper Mississippi Company, and the new Tennessee Company would buy the land from Georgia, then resell it to investors. The companies persuaded the Georgia state assembly to sell more than 40,000,000 acres. A number of Georgia politicians received bribes in exchange for votes to pass the act. One, in opposition to the act, resigned his Senate seat and returned to Georgia. He was elected by the Georgia house and worked to dismantle the act. He led the passing of the Rescinding Act, which nullified the Yazoo Land Act. Subsequent hearings implicated many of the elected officials involved in the case. Eventually Georgia and the U.S. Government came to an agreement, whereby the claims against Georgia would be discontinued in exchange for assistance in removing the Creek and Cherokee from western Georgia.

Pine Barrens Speculation

At the same time, and often confused with the Yazoo scandal, was the Pine Barrens speculation. From 1789 to 1796, Georgia governors, while in office, made gifts of land grants covering more than three times as much land as Georgia then contained. In all they conveyed 29,097,866 acres in counties that contained only 8,717,960 acres.

In Montgomery County alone, with an area of 407,680 acres, three men received land grants totaling 2,664,000 acres. All the grants in Montgomery County totaled 7,436,995 acres.

Concern for the surveyor

Surveyors may encounter situations like the foregoing, and knowing the history of fraudulent surveys, and the areas in which they occur, one can be on guard for such anomalies. The resolution of such problems depends on the nature of each, and is best left to the court system since land titles and ownerships are likely affected. Maps exist, some of which are a matter of public record, others may be found in archives and historical collections. Field notes exist and will be uncovered. Markers will be found in the ground, with confusing relationship to titles and descriptions, or for which no explanation whatever is available.

Author’s note: While little may be found regarding the ultimate result of a fraudulent survey, some things may be contemplated. One might be, does it do anything at all, besides confound a person’s regular procedures, or cause concern for a duped buyer? More importantly, if it is indeed not a survey, then it could not have boundaries. The immediate thought is that even if difficult, ambiguous or questionable, is that there are boundaries, whether described or just nebulous, but boundaries exist nevertheless. Whether they are title boundaries is indeed another question. Surveyors deal with such titles daily, but yet with ability and perseverance, aided by the court system and rules based in law, overcome these obstacles, and prove that seemingly bogus information is, in fact, adequate, and vice-versa. Returning to the title itself, the rules are clear even though the supporting information is scant: without a bona fide title, there can be no boundaries. If title does not exist, neither can its elements.⁴

Erroneous survey

All measurements are prone to error, therefore it is more than safe to assume that surveys and surveyed lines contain error, not all of which may be identified, or compensated for. Any known closure error may be adjusted by some selected standard rule, depending on the character of the work. There are legitimate errors due to a variety of human and natural influences, and there are also errors due to carelessness of observers⁵, sometimes classed as blunders. Erroneous surveys are different from fraudulent surveys although they may appear to be the same due to the similarity of results and remaining evidence. However, it is important to make the appropriate identification, as fraudulent surveys may be subject to correction or replacement, while erroneous surveys are not likely to be.

Overview of early surveys
in Hawaii

Equally applicable to early colonial surveys reported by West Virginia and Kentucky courts as well as others, Alexander⁶ reported on erroneous, or perhaps sloppy, early surveys of lands in Hawaii.

The Great Mahele of 1848

As early as 1842, government lands began to be set apart, and a treasury board was appointed to administer those lands in which it had an undivided interest and undefined claim in all land in the Kingdom until the Mahele. The great mass of lands consisted of those surrendered and made over to the government by King Kamehameha III, enumerated by name in the Act of 1848. A Land Office was created in 1846, authorizing the minister of the interior to sell or lease government land. From 1850 to 1860, nearly all desirable government land was sold, generally to natives, and surveyed at the expense of the purchaser.

Thus, the traditional system of land tenure in Hawaii ended in 1848, as King Kamehameha III was persuaded by foreigners to institute the Great Mahele (division), allowing lands to be bought and sold.⁷

According to Alexander (1882), the early surveys, those made under the Land Commission (est. 1862), commonly known as kuleana surveys, had the same defects as the first surveys in most new countries. There was a lack of proper supervision, no Bureau of Surveying, and the president of the Land Commission was overwhelmed with work such that there was no time for supervision. In addition, there was little money to pay for the work and little time to accomplish it.

No uniform rules or instructions were given to the surveyors, who were “practically irresponsible.” Few of them were regarded as thoroughly competent surveyors, while some were not only incompetent but “careless and unscrupulous.” The result was that almost every possible method of measurement was adopted. Some used 50-foot chains, while others used four pole (66-foot) chains divided into links; some attempted to survey by the true meridian, others by the average magnetic meridian, while most made no allowance for local variations of the needle. Some recorded surveys have been found to have been made with a ship’s compass and even a pocket compass. Few made the effort to mark corners or to note topographic features.

In addition, rarely was one section or district assigned to one surveyor. It has been reported that over a dozen were employed in the surveying of Waikiki, for instance, not one of whom knew what the other surveyors had done or made any attempt to make his surveys agree with theirs where they adjoined one another. As one might expect, overlaps and gaps became the rule rather than the exception, so that it became generally impossible to put these old surveys together correctly on paper without determining their true relative locations through actual measurements on the ground.

Consequently, the land grant and tenure systems of what is now the State of Hawaii is a mixture of conveyances and processes over a period of time. Despite the plan to confirm titles and organize lands, the net result is a variety of categories of land tenure and land records. While many surveys were performed, and are available, they often do not provide the most desirable definition of claims.⁸

The foregoing constitute the documented swindles, but there are many others undocumented, but found within a thorough study of court decisions. Much early surveying was poorly funded, surveyors were overwhelmed with rigorous tasks, and there was little to no supervision. The conscientious surveyors, adhering to their ethics and the standards of the day deserve our gratitude. The rest have left us with unsuspecting nightmares of surveying and title problems, creating challenges yet undiscovered.

Don Wilson LLS, PLS, RPF is a well-known author, lecturer and consultant, specializing in boundary investigations. A resident of New Hampshire, he is active in the Northeastern states, but has been involved with projects nationwide, Canada and Australia. He is also past president of MSLS and NHLSA.

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