Brian,
Sorry, off on a tangent a bit from the original topic. Probably saying a lot of the same thing as above.
I have thought of this center-of-section and other differences in monuments of being on three basic levels of understanding.
The first being the definition of where the center of section is. The center of section is at the intersection of the opposing ¼-corners. It is, it's true, and true by definition. As soon as the original section was laid out, and approved, the "original" locations of the interior subcorners were also established by virtue of the instructions for subdividing sections. This means that Robillard's and other's statements that the center-of-section is the intersection of opposing corner is correct, and real. It is like 1+1=2. I think you would have a hard time arguing that they are "wrong" in a court of law. (You might have a difference in opinion as to where the corner is on the ground, but I would not say that their statements were wrong or bogus).
The second level is the understanding that someone, especially a trained professional, can look at the data, apply the general rules and establish the corner on the ground. With the presumption that he followed appropriate procedures and rules for subdividing sections, his (or her) original position in the ground is indeed the center of section. It is the intersection of opposing corners. I locate the opposing corners, and find that the monument fits. It's like drawing two pencil lines on a piece of paper, and where they intersect, it covers the little pinpoint poked at the actual monument position. My math may show a bend there, or something else, but I see that it was set with due care and diligence, and within an acceptable tolerance. I would argue that the first corner set, is the established corner on the ground. If I find several monuments within a circle of acceptable tolerance (whatever that is - where my fat pencil-line covers all of them), my goal isn't to see which is the per-se closest, my goal is to try to figure out which one was "first".
The third level is a level that I have learned about here from guys like Stahl, (and you and Leon and others) and reading text from the likes of Lucas and others. It is a higher and more legal level. And it has to do with monuments that may or may not have been set with due care and may or may not be in their original position, and may or may not have even a recorded history on where they came from. It is a more grey level of understanding, where the surveyor needs to take into account similar past court situations, a higher level of realizing bounds that rely on that monument location, whether it was there and the accepted location prior to a corner being set in a more acceptable location, etc. This is an area, in my view, that takes a higher level of expertise than the standard technician. It takes making decisions that you know that others may disagree with; and making decisions that you believe you can defend in courts. It means determining "property lines" instead of just deeded boundaries. It means understanding different court cases and whether they specifically apply to your case.
Okay, just expounding a bit. Maybe it applies to a teaching environment. I think a student should learn the "basics" before starting to learn the exceptions. (learn how to "double-proportion" prior to learning how not to.)
The book used to be kind of a workbook of hypotheticals (mine is second edition); a question and answer thing intended to be used with a good instructor or moderator. I kind of like it, but it does need some structure by the instructor along with local law research to definitely answer some of the questions for the students.
First thing is to develop outcomes that relate to the degree program, then measurements that will allow evaluation of to what extent those outcomes are learned by the students.
There is so much that could be included in a course with that name. You really have to prioritize to the outcomes of the degree program and then plan week by week objectives to get there.
Well, you probably knew all that already. I'm teaching a 2 course sequence online now. If you want to send me an email I'll send you a syllabus of what we do.
Have fun with it!
Paul, another for your list
Oregon Institue of Technology in Klamath Falls, OR
http://www.oit.edu/programs/klamath-falls/geomatics/overview
After I finished at The Univ of Ark, I did have a few passing thoughts about moving to Klamath Falls and complete a 4 yr degree. It looked like a good place to go to studyand live for awhile.
It had a very good reputation in the 80s.
BTW, the course credits for TH Harris are supposed to be easily transfered to Nichols State to complete a 4 yr degree in LA.
> I have thought of this center-of-section and other differences in monuments of being on three basic levels of understanding.
>
> The first being ... As soon as the original section was laid out, and approved, the "original" locations of the interior subcorners were also established by virtue of the instructions for subdividing sections....
>
The premise is wrong, and yes, the argument is simple. The original section layout did not "establish the locations of the interior corners." The Manual of Instructions only set forth the "METHOD" by which the corners were to be initially surveyed. The "methods" never imposed any expectation of unobtainable precision. The Manual only defined the method for running the lines on the ground (the survey process) and did not "establish" the location of the corner. It is the subsequent "running of the lines" that is required to set the monument which is then represented as marking the corner and is subsequently relied upon as marking the corner thereby "establishing" the corner position.
The law does not expect perfection and, instead, recognizes the importance of the intent and actions over the method. The premise that all interior corners are fixed in [prefect] position without a running of the lines or actions by the landowners is a fallacy continually being promoted. The vast majority of the protracted corners are non-existent having never been "legally" created. Their creation requires a conveyance of title dependent upon the corner. A patent for the north 1/2 of a section, for example, creates no interior corner.
> The second level is the ... trained professional ... followed appropriate procedures and rules for subdividing sections ... set with due care and diligence, and within an acceptable tolerance. I would argue that the first corner set, is the established corner on the ground.
>
Nothing in the law clothes the surveyor with any authority to "establish" a controlling corner monument. That ability strictly resides with the landowner (including the federal government at the time). The authority to establish boundaries is only given to the landowner. Yes, the surveyor has a hand in the task as the monuments set by the "trained professional" are represented as marking the intended corner. It is, however, nothing more than a "representation." Until that representation is relied upon by the landowners, the monument does not "control." Once the reliance has been made and the rule of law fulfilled, the monument will become "controlling" because of the intentional actions of the landowners despite the good or bad actions of the surveyor.
> The third level ... has to do with monuments that may or may not have been set with due care and may or may not be in their original position, and may or may not have even a recorded history on where they came from.
>
There is, ultimately, no distinctive difference between why an "original" monument, a "first" monument, a "good" monument, or a "bad" monument controls other than the circumstances. Every "controlling" monument controls because a rule of law requires it. Every rule of law concerning boundaries goes back to the basics of representation and reliance made to or by the landowners. Their intent as witnessed by their actions are what establish the boundary every time.
Surveyors must be taught first how to properly gather the evidence necessary to prove a boundary location. The evidence includes not only the prior survey and the prior title history, it also includes the subsequent actions and current mindset of the landowners. We have, instead, been taught that that evidence isn't important, or is somehow unnecessary. All of the evidence is vital to a proper determination of which monument will control the boundary.
Second, surveyors must be taught how to properly analyze evidence and how to determine the facts from the evidence. This requires an understanding of the rules of evidence, the rules of construction and the rules of civil procedure. It also requires an understanding of case law. The courts are very good at explaining what evidence was viewed, how conflicting evidence was resolved and how the facts of the case were determined.
Third, surveyors must be taught how to properly apply the legal principles to the facts determined in order to properly derive the location of the boundary. They must learn how to apply the rules of law fairly and judiciously as their ultimate decision will forever impact the location of the boundary between adjoining properties. Their decision will most likely be the only decision the landowners will receive. When the surveyor sets the monument representing the location of the corner and walks away, the landowners will most likely rely upon that representation subsequently establishing their boundary in accordance with it. When the monument is erroneous, the parties may be damaged by their reliance. That's why we have professional E&O insurance. It won't repair the damage (fix the boundary), but it will compensate for the loss.
JBS
Adam,thanks for the well thought out post.
I’ve read it several times and I hope my comprehension of it is what you intended. I believe you are trying to approach this from a “teaching” standpoint. In others words, teach what you have outlined as “first”, then teach the “second” aspect, then the third in order to promote understanding of all the aspects of the infamous C1/4.
OK, I’ll get a few things out of the way first. When talking about the C1/4, “some” authors actually specify that ONLY the exact mathematical intersection can be the C1/4, no amount of good faith or reliance can change that one and true position. I can provide cites if necessary.
Second, the C1/4 is NOT created by protracted lines. The 2009 Manual is very specific in clearing up that “myth” (3-99 & 3-137). If one thinks about a very educational post JB did a while back concerning the definition of a property corner, who can establish property corners, and the two elements required, it is very clear that the clarification by the 2009 Manual is consistent with the law.
In teaching a boundary course, as I opined in an earlier post, the basics should be taught first. What is a property corner (C1/4, section corner, or NE corner of Aunt Helens lot in Uncle Bob’s subdivision), what is a controlling monument? (thanks JB), what is an original survey?, what is a retracement survey?, what principles of law are involved in defining and recognizing these things? Once these and other basics (foundational building blocks) are thoroughly understood, then move on to the C1/4 and other things. If such a process were used, I think it would be easier to not only debunk surveyor myths, there would be a far less probability of them being perpetuated. And really, maybe the only way to remove these harmful myths from our profession is by the natural progression from older to younger.
What I’m trying to say is, if the tools and the professional level of understanding are supplied first, your first two levels of understanding are unnecessary, because the “grey area” you refer to in the third level is not grey at all if the proper foundational blocks are in place.
Believe me, I wish I had learned surveying in that fashion. Instead, I "learned" it backwards, I learned and trusted many of the myths for years, old habits are very hard to break.
Ouch.
I will reply more completely at a later time after I have absorbed what has been written. I still hold that everything is not all that black-and-white as so many suggest. We have differences in opinions, and differences in what is decided in courts all the time.
But, as usual, I am generally at a loss when I argue against JBStahl as well as Kent. (But the Kent/JB disagreements may well be my best argument as to why/how everything isn't as "black-and-white" as so many try to claim.)
Robert, Thanks But That Is Already On My List
The list is my shortcut names for organizing all the links. I will redo it with the actual link added. I am not completely organized as there is no unity in college websites. Some links take you to somehwere in the department, or sometimes the course list etc. I would not want to send someone to the main.edu site and then let them wander around. I do update it on a regular organized basis and today I relinked 2 programs to different addresses. Sometimes the edu site will relink you, sometimes not.
About a year ago I suggested to Wendell to sponsor on this board such a list. The work is in maintaining it as links.
Paul in PA
JB and Brian
Excellent!
And I will keep on referring to the theory of only using the protracted lines for evidence as BOGUS!
Those lines do not exist on the ground until they are established by a surveyor or by a LANDOWNER!
Anyone ever see those dashed lines on the ground?
This concept is as bogus as they get and some in BLM still believe it.
Maybe one day, I will get a response from the Director, BLM about the BLM National Policy on the PLSS?
It is starting to get embarrassing about no response from the legal land surveyors of these United States!
Keith
Not The NCEES Either
I recall years ago a PA Board Member at a hearing questioned me on whether the survey courses I took were by apprpved institutions.
I reminded him that the State Law required the Board to have such a list available to all applicants. That was followed by a Board Member opining that he did not think NJIT was approved . The Board Member next to him jumped in with the fact he had graduated from NJIT (Newark College of Engineering).
Paul in PA
adam
No one will argue with the premise that the C 1/4 sec. cor. is to be set at the intersection of the section center lines, but that is only the advice for the first person to establish it.
The subsequent people (includes surveyors) need to use other parts of the Manual in the retracement/resurvey portions to determine the validity of the previous established C 1/4 sec. cor.
The concept is not difficult and only because of some leading national speakers, has it become discombobulated?
Like I have said, it does make it easy to subdivide sections as no stinkin judgements on previous monuments, have to be made!
After all, your technicians on your survey crew can do this by themselves.
It is not that hard to figure out.
Keith
> Ouch.
>
Sorry, Tom. I didn't intend to be argumentative or harsh. I used to espouse to the "first surveyor" doctrine precisely as you presented it. You presented it very well, in fact. It's the way I was taught and the way I taught my boundary law class when I first started 22 years ago. From what I have been able to determine, the doctrine first arose in the great state of Colorado [confirmed by conversation with its author]. It is now perpetuated fully in the newer survey textbooks.
It took many years of case study to admit to myself that it wasn't proper for us to judge the acceptance or rejection of a monument on whether or not the "first surveyor" properly followed the methods or achieved some perceived measurement standard. Such an analysis is irrelevant once we understand what truly makes any monument a "controlling" monument. And, it's never about what the "original" or "first" surveyor did. It's always about what the landowners did after the damage survey was done.
JBS
Great posts John!!
> > Ouch.
> >
> Sorry, Tom. I didn't intend to be argumentative or harsh.
I reread your comments more thoroughly. You weren't argumentative or harsh, I just took it that way on first reading. I worked out some comments over lunch which I will put in reply to your earlier post. I consider you a mentor, and always walk away with more understanding than I "teach". I will rethink the 'first' survey doctrine as you put it. Again, though, I have learned to try to learn from all the opposing views. I still espouse that most the theories and arguments you read about have a certain level of merit. Most of the writings of these other "doctrines" have been exercised and determined in court. They are not something to ignore.
> > The first being ... As soon as the original section was laid out, and approved, the "original" locations of the interior subcorners were also established by virtue of the instructions for subdividing sections....
> >
> The premise is wrong, and yes, the argument is simple. The original section layout did not "establish the locations of the interior corners." The Manual of Instructions only set forth the "METHOD" by which the corners were to be initially surveyed. The "methods" never imposed any expectation of unobtainable precision. The Manual only defined the method for running the lines on the ground (the survey process) and did not "establish" the location of the corner. It is the subsequent "running of the lines" that is required to set the monument which is then represented as marking the corner and is subsequently relied upon as marking the corner thereby "establishing" the corner position.
Well, okay, but Colorado Law “establish” that when deeds are written using the nomenclature of the manual of instructions, that the standards set forth in the manual will be implied. (sorry not a direct quote). Point being that there is something called a “center of section” and it falls (in short) at the intersection of ¼-lines. It is a fact. That means to me, that if a property owner buys the SE-¼ of a section he has every reasonable right to get a boundary that is (reasonably) established by all the corners including the C-¼, and no less as does the grantor have a right to not expect to be giving away more than the one-quarter of land. The surveyor should be able to reasonably set that corner.
>
> The law does not expect perfection and, instead, recognizes the importance of the intent and actions over the method. The premise that all interior corners are fixed in [prefect] (sic) position without a running of the lines or actions by the landowners is a fallacy continually being promoted. The vast majority of the protracted corners are non-existent having never been "legally" created. Their creation requires a conveyance of title dependent upon the corner. A patent for the north 1/2 of a section, for example, creates no interior corner.
I did not imply fixed “perfect” position and agree with you wholeheartedly. If you think that is what I am saying you are mistaken. While a patent for the N-½ does not create an interior corner, a patent (or a deed) for the SE-¼ does, and that might be created prior to a corner being set in the ground. It does have a corner, though, by deed.
> > The second level is the ... trained professional ... followed appropriate procedures and rules for subdividing sections ... set with due care and diligence, and within an acceptable tolerance. I would argue that the first corner set, is the established corner on the ground.
> >
> Nothing in the law clothes the surveyor with any authority to "establish" a controlling corner monument. That ability strictly resides with the landowner (including the federal government at the time). The authority to establish boundaries is only given to the landowner. Yes, the surveyor has a hand in the task as the monuments set by the "trained professional" are represented as marking the intended corner. It is, however, nothing more than a "representation." Until that representation is relied upon by the landowners, the monument does not "control." Once the reliance has been made and the rule of law fulfilled, the monument will become "controlling" because of the intentional actions of the landowners despite the good or bad actions of the surveyor.
I think your statement “Yes, the surveyor has a hand in the task as the monuments set by the ‘trained professional’ are represented as marking the intended corner.” Buttresses some of what I am saying. The surveyor comes out and sets the corners, and the owner relies on the corners. If no one ever “overrules” the surveyor’s location, those are the corners. The surveyor “established” the monuments on the ground. If those corners are “overruled” by the actions of the landowners, well then so be it. They are overruled. That is the same, as saying a boundary-line dispute is settled in court, but an appellate court overrules the first decision. If it doesn’t get overruled it stays the boundary. If it never goes to court, and the surveyor establishes the boundary, and it is never overruled, it is the boundary. Yes, reliance of the landowner is a huge part; but the location of the boundary was first set by the surveyor. In most cases wherever those corners were set, that is what the landowner will accept.
I think this is crucial for the surveyor to understand. I don’t think he (/she) can hide behind some cloak of “that’s not your property line, that’s just the deed line and only a court can establish the property”. (or “only your actions can establish the boundary”). What is the average landowner going to do? They want to build a fence and they rely on the surveyor to show them where. (true, you are saying that it’s their reliance that establishes the corner, but let’s be real. They are relying on wherever the surveyor tells them to build (for the most part)).
> > The third level ... has to do with monuments that may or may not have been set with due care and may or may not be in their original position, and may or may not have even a recorded history on where they came from.
> >
> There is, ultimately, no distinctive difference between why an "original" monument, a "first" monument, a "good" monument, or a "bad" monument controls other than the circumstances. Every "controlling" monument controls because a rule of law requires it. Every rule of law concerning boundaries goes back to the basics of representation and reliance made to or by the landowners. Their intent as witnessed by their actions are what establish the boundary every time.
>
> Surveyors must be taught first how to properly gather the evidence necessary to prove a boundary location. The evidence includes not only the prior survey and the prior title history, it also includes the subsequent actions and current mindset of the landowners. We have, instead, been taught that that evidence isn't important, or is somehow unnecessary. All of the evidence is vital to a proper determination of which monument will control the boundary.
>
> Second, surveyors must be taught how to properly analyze evidence and how to determine the facts from the evidence. This requires an understanding of the rules of evidence, the rules of construction and the rules of civil procedure. It also requires an understanding of case law. The courts are very good at explaining what evidence was viewed, how conflicting evidence was resolved and how the facts of the case were determined.
>
> Third, surveyors must be taught how to properly apply the legal principles to the facts determined in order to properly derive the location of the boundary. They must learn how to apply the rules of law fairly and judiciously as their ultimate decision will forever impact the location of the boundary between adjoining properties. Their decision will most likely be the only decision the landowners will receive. When the surveyor sets the monument representing the location of the corner and walks away, the landowners will most likely rely upon that representation subsequently establishing their boundary in accordance with it. When the monument is erroneous, the parties may be damaged by their reliance. That's why we have professional E&O insurance. It won't repair the damage (fix the boundary), but it will compensate for the loss.
>
> JBS
:good: well put. Good post. Thank you for the comments to my earlier post.
> Well, okay, but Colorado Law “establish” that when deeds are written using the nomenclature of the manual of instructions, that the standards set forth in the manual will be implied. (sorry not a direct quote). ... The surveyor should be able to reasonably set that corner.
I would agree that the "surveyor should be able" to do the work and should do it in accordance with the Manual. They also "should be able" to set section corners and quarter corners at 40-chain intervals, too. Simple reality is, they didn't and one would suppose from the few corners actually found near the 40-chain end-point, that they couldn't. Why would we not expect that same result when we are continually confronted with evidence that they either didn't or couldn't set the subdivision corner monuments as well? The bottom line is, nothing in the law expects perfection or precision, yet we surveyors have been attempting to use it as a standard of measure for accepting or rejecting the monuments we recover which are never recovered at the "theoretical" location.
There is one other simple reality: not all monuments were set by surveyors. The Manual did contemplate that "local and county surveyors" would be employed to set the subdivision corners. Nothing in the law, however, required it and in practicality (due to the pace of settlement and the lack of surveyors), the corners were set by the claimants in order to occupy their land. The test of the monument found in the Manual (which simply recites the common-law standard) is a test of "good faith." Whether the monument was placed by a surveyor or the claimant is irrelevant. The only relevance is the good-faith intent of the parties placing it.
The "standard set forth in the Manual" isn't a "standard" set forth in chapter 3. Chapter 3 outlines the "method." The "standard" of care required by the Manual is the standard of "good faith." This standard has existed from before Roman times when the surveyor was required to "partition the land in good-faith."
> > "6-15. ... The surveyor should neither rigidly apply the rules for restoration of lost corners without regard to effect on location of improvements nor accept the position of improvements without question regardless of their relation or irrelation to existing evidence of the original survey. Between these extremes will be found the basis for determining whether improved lands have been located in good faith or not. No definite set of rules can be laid down in advance. The solution to the problem must be found on the ground by the surveyor. It is his responsibility to resolve the question of good faith as to location."
That's the standard required by the Manual and by the state statutes which require us to apply the Manual. The statutes don't tell us to violate long-held legal principles recited in Chapter 6 in favor of theoretical methods found in Chapter 3.
> ... The surveyor “established” the monuments on the ground. If those corners are “overruled” by the actions of the landowners, well then so be it. ... Yes, reliance of the landowner is a huge part; but the location of the boundary was first set by the surveyor. In most cases wherever those corners were set, that is what the landowner will accept.
I refrain from using the word "established" with reference to the surveyor when discussing boundary establishment principles. While a surveyor may "place" or "erect" a monument and represent it as marking the corner, the actions of the surveyor do nothing to legally "establish" the monument as marking the corner. Is the monument "erected" by the surveyor binding? Is it a "controlling" monument simply because the surveyor set it? Is it controlling because the surveyor followed the right method? No. It is a preferred first step toward establishing the boundary, but is not a requirement of any boundary establishment principle. The landowners, themselves, could have placed the monument and it will be held as controlling with equal regard once the establishment principles are fulfilled.
The establishment principles never focus on "where" the monument was placed in relation to some theoretical method. Nor do they focus on whether it was a surveyor who followed the theoretical method. They focus on the matter of good-faith. The actions of the landowners before, during and (most importantly) after the monument was placed are what will fulfill the legal requirement of the boundary establishment principles. Whether the monument was placed by a surveyor is of little significance. When we focus our tests of acceptance on whether we think the surveyor did it, or whether we think the surveyor did it right, we are inventing our own standards of acceptance and are not following the tests laid down by the courts. If those test exist, we'd be able to cite court cases which outline the test. Instead, we find cases which recognize the proper method and then turn to the evidence of good faith.
> ... What is the average landowner going to do? They want to build a fence and they rely on the surveyor to show them where. (true, you are saying that it’s their reliance that establishes the corner, but let’s be real. They are relying on wherever the surveyor tells them to build (for the most part)).
>
Right on the money. That's why surveyors have a professional responsibility -- no, duty -- to perform their survey in accordance with the laws which govern their opinions. We are the owners' only day in court in the vast majority of our surveys. The public requires our service and we are held to a higher standard of care than the layman.
Surveyors must be taught what the law requires in order to fulfill their duty to the public. We must also be held accountable when we fail. That's where I see the harm which befalls the public most often. Instead of being held accountable, the negligent surveyor is too often held in esteem as the party's expert in the boundary dispute. The adjoining owners posture themselves behind their experts and battle it out in court. The looser walks away thinking the court got it wrong while being more deeply convinced that they were always in the right and have now been wronged by the court. The courtroom battle doesn't change minds, it merely settles disputes.
JBS
John,
Thanks for the clarification. I am still struggling with some of it. I could reiterate some of what I said, but that would be stooping down to the equivalence of arguing politics and saying the same thing over in slightly different wording. I will probably save this exchange and reread it a bit more at my leisure.
I wish we could have you over for another workshop one of these years.
I bet Mr. Cantu didn't think this thread would actually become a course in survey law. :-/
> I wish we could have you over for another workshop one of these years.
I'm always open for an invitation! It's been too long. Colorado has always been one of my favorites as I've been able to develop a number of great relationships over the years. I've got a mutual respect for you as well, Tom.
> I bet Mr. Cantu didn't think this thread would actually become a course in survey law. :-/
Ain't that the truth!
;o)
JBS