I am currently working on two remarkably similar jobs in the Fractional NE 1/4 of sections along the north tier of their townships. As per the original government survey, they are not numbered government lots so I will refer to them as "Fractional" sections.
Both jobs have 40 corner monuments set along the south line of the NW-NW, seemingly set along observed fencelines and labeled on the surveys as "Accepted and Occupied 40 Line". These monuments appear to have been set in the time frame of 1940-1980.
Along the west section line of the residential job the monument at the SW of the NW-NW differs from a true government proration [of a fractional section] by about 10 feet. What remains of the fenceline in the NW1/4 is short and pretty weak. I doubt it was never much more than a backyard fence along a couple 1 acre lots.
Along the west section line of the farmland job the monument at the SW of the NW-NW differs from a true government proration by a considerable 65 feet. A monument has also been found at the SE of the NW-NW. When that south line is projected east to the east line of the section it differs from a true government proration by about 9 feet. A series of long maintained and, more or less, straight fencelines run across the section, following a projection of said south line quite nicely. This job also has a found monument at a random point on the south line of NW-NE (the SW corner of my client) which fits the fenceline very well but measures about 28 feet to the government proration line at that point.
Both jobs have subsequent surveys that continue to utilize the "Accepted and Occupied 40 Line" and 40 corners. A few surveys acknowledge the difference between the true government proration line and the "observed and accepted" 40 line. In both cases the line labeled "Accepted and Occupied 40 Line" was held as the boundary and the line labeled "True Government Proration" is shown graphically, but has no dimensions to tie it in.
The deeds of both clients refer to ownership of the "Frac NE-NE" and "Part of the Frac NW-NE". To me that quite clearly implies that it was understood these were not regular 40 acre parcels.
Both jobs are luckily lacking any neighbors fussing and fighting over what I see as somewhat cloudy ownership. At most, a few of the land owners are vaguely aware of any boundary complications but are quite happy with their fencelines.
As of now, I am leaning towards holding these historically "Accepted and Occupied 40 Lines" while clearly, and carefully, acknowledging the difference between said line and the true government proration line. I at least want to do a bit more than the surveys before which simply show it graphically with no dimensions or further explanation.
Change my mind.
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At a conference several years ago I heard something along the lines of... don't go into a neighborhood and start throwing hand grenades.
This project looks like a perfect one to practice this theory on.
Correct is an identity, not a distance. It sounds to me like you have monuments and occupation that are coincident.
It would be responsible to explain why you held those corners and lines and note they do not match a math solution that ignores them. If you have recovered the lines as initially broken down in reliance on one or more corners lay out that evidence. If you have recovered conflicting evidence or a later establishment by doctrine you have more work to do.?ÿ
From the 2009 Manual of Surveying Instructions
3-135. The Bureau of Land Management assumes no control or direction over the acts of local and county surveyors in the matters of subdivision of sections, evaluation of evidence of corner locations, and reestablishment of lost corners of original surveys where the lands have passed into private ownership, nor will the Bureau of Land Management issue instructions in such cases.
3-99. In the public land survey system a corner is fixed in position by operation of law. Corners marked in official surveys followed by use are fixed in position by monuments. Only a small portion of corners are marked on the ground in original surveys. Subdivision-of-section corners are generally not marked. Their positions are fixed on the plat by protraction. Their positions are fixed on the ground by the survey process of running (and marking) line between marked corners, and setting monuments.
3-132. The work of the local surveyor usually includes the subdivision of the section into the legal subdivisions shown upon the approved plat. In this capacity, the local surveyor is performing a function contemplated by law.?ÿ
3-137. The protracted position of the legal subdivision corner on the survey plat is merely the first step in fixing the position of a corner. The corner position is fixed by the running and marking of the lines.
3-137. A decision to set aside previously fixed local survey legal subdivision corners must be supported by evidence that goes beyond mere demonstration of technical error, reasonable discrepancies between former and new measurement, and (goes beyond) less than strict adherence to restoration and subdivision rules. (i.e. improper location) .?ÿ?ÿ
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It so happens I reviewed a survey today where possession ruled over math in splitting three-fourths of a quarter section.?ÿ The math center of that quarter was about 50 feet in one dimension and 45 feet in another dimension from adhering to long established fences.?ÿ The math was shown but overruled in favor of long established possession.?ÿ I was not going to debate the issue with the surveyor who was present with boots on the ground, not merely accepting the work done by a very experienced tech.
@norm thats a pretty succinct list of references. Thanks.
I say hold 'em.?ÿ
N
I'm guessing patents in this section predate federal reservations and this isn't tribal lands.?ÿ
Therefore, no imperial entanglements.
They might be the only complainer and only if the monuments were set by others and not them.
Accept the monuments, file corner records on them. And don't show the "true" position. That's a fiction.?ÿ
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Some more to chew over in situations where the Manual is applicable:
5-5.The function of county or other local surveyors begins when the surveyors undertake the identification of lands that have passed from the Government into private ownership, based upon the description derived from the original survey. Their work should consist largely of running and marking the subdivision-of-
section lines and corners. An official survey retracing and monumenting a local survey of purported legal subdivisions of a section is technically not a dependent resurvey. However, by law, weight shall be given to locally marked boundaries insofar as they are based on good faith reliance on evidence of the original survey and protect bona rights (sections 5-24 through 5-35) as to location of the boundaries of alienated land.
5-9. In conducting a resurvey, care must be exercised
to avoid disturbing satisfactory local conditions
such as roads, fences, or other improvements marking
subdivision-of-section lines and that may correctly
define the extent of established bona fide property rights.
6-46. The surveyor cannot abandon the record of the
original survey in favor of an indiscriminate adoption
of points not reconcilable with it. However, many situations
will arise where locally accepted lines are in substantial
agreement with evidence of the original survey,
although without testimony or record evidence relating
to the original survey. Where this circumstance is
found, it is often better to accept a position based upon
local interpretation rather than to disturb satisfactory
existing conditions. The surveyor will endeavor to avoid
disturbing the position of locally recognized lines when
such action may adversely affect improvements, again,
provided that there is substantial agreement with the
evidence of the original survey. At the same time the
surveyor must use extreme caution in adopting local
points of control. These may range from authentic perpetuations
of original corners down to marks that were
never intended to be more than approximations. The
surveyor must consider all these factors.
All that being said, what is often overlooked:
6-40. Cases will arise where lands have been occupied
in good faith, but whose boundaries as occupied disagree
with the position of the legal subdivision called
for in the description. A landowner??s bona fide belief
concerning the boundary location is not the same as a
bona fide right within the meaning of 43 U.S.C. 772. A
bona fide right within the meaning of 43 U.S.C. 772 is
based on good faith reliance on evidence of the original
survey. Obviously, under these facts the rule of good
faith as to location cannot apply. This is not a survey
issue but a title issue and relief must be sought through
the process of amended entry, correction of conveyance
document under 43 U.S.C. 1746, quiet title action, tentative
approval relinquishment, or interim conveyance
reconveyance or relinquishment to cover the legal subdivisions
actually earned, rather than through an alteration
of the position of established lines. This is a process
of adjudication rather than one of resurvey. A case of
this character should be regarded as erroneous location
in precisely the same manner as if the question of resurvey
were not involved. The amendment of entries is a
matter for adjudication by the BLM after the resurvey
has been accepted and the plats officially filed.
6-41. It is not intended to disturb satisfactory local conditions
with respect to roads, fences, and other evidence
of use or occupancy. The surveyor has no authority to
change a property right that has been acquired legally,
nor accept the location of roads, fences and other use
or occupancy as prima facie evidence of the original
survey. Something is needed in support of these locations.
This will come from whatever intervening record
there may be, the testimony of individuals who may
be acquainted with the facts, and the coupling of these
things to the original survey.
6-42. A property corner or a use or occupancy position
should exercise a regular control upon the retracement
only when it was placed with due regard to the location of the original survey, or agreement is so close as to
constitute the best available evidence.
Why show "true government proration" lines? That is just asking for doubt to be cast on the corners. If you are accepting them as the corners where they are currently monumented, I don't see any need to call out the locations the monuments would have occupied if they were perfect. That time has passed and they are where they are now.
@lurker I might do this to demonstrate that I carefully considered and rejected the calculated proration lines as an alternate boundary location and that my acceptance of the occupied lines was not half baked or done out of negligence or ignorance of the facts
I won't try to change your mind, because it sounds like you are right. I will try to change your terminology, all of us running around with our local terms for things that have legal meanings is not a good way forward . Per the Manual,?ÿ a fractional section is one with at least 1/4 corner not established. An irregular section is one that was not original platted as 640 acres, usually with lots.?ÿ
Note that established does not mean monumented.?ÿ
One reason that this matters is that there are different procedures for subdividing fractional sections and irregular sections.?ÿ
I know the, "It doesn't matter because there was always someone subdividing before us" comments are coming. That is true in many States, but there are plenty of original subdivisions being done by private surveyors?ÿ in other States.?ÿ
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There always seems to be an exception to the rule. Our legal deeds refer to fractional parts of sections with all quarter corners present. Probably because no government lot numbers were used. Plat and patent attached as an example. Of course different rules applied in 1855. I assume the section became known locally as fractional due to the wording in the patents. Anyway point is I've seen hundreds of deeds and survey descriptions using the term fractional section where all quarter corners exist, right or wrong.?ÿ
There seems to be a lot of variation in how this was handled.
Your example is common. Other people have posted examples where gov lots were used in a similar shaped section.
Yet, not so far from your example at the correction line (Powesheik Co) they not only platted the excess as lots, but labeled what could have been regular NW and NE quarters as gov lots.
And below the Minnesota border they made new sections out of pieces shorter N-S than those lots.
Even BLM was known to use the term "fractional" section like you are at some point in time. Of course we can't change all the deeds, but we can use the correct terms ourselves. I have seen this blow up a few time and confuse judges resulting in some strange results.?ÿ
We can use more precision (and hopefully accuracy)?ÿ than what is customary in local documents, just like we don't perpetuate vauge calls in deeds like, "to the cedar tree" or "IP".?ÿ
Not only was the BLM known to use the term fractional so is federal law. In an 1820 Act for making further provisions for the sale of Public Lands it required the "fractional sections containing 160 acres and upward, shall in like manner as nearly as practicable, be subdivided into half quarter sections under such rules and regulations as may be prescribed by the Secretary of the Treasury: but fractional sections containing less than 160 acres, shall not be divided, but shall be sold entire."?ÿ
As a surveyor I feel bound to the the terminology used at the time of the instructions applicable to the original survey. If it causes confusion in 2021, I feel like its because of referencing instructions not applicable at the time of the original survey.?ÿ
There is more than one definition of fractional. We need to be carefull to use the right one. We don't want to be in a position where we have to explain to a judge why we are using the procedures to subdivide what we have been calling a fractional section by the methods perscribed for a irregular section .?ÿ
The 1820 law directs the Government how to issue patents, not how to subdivide sections. It doesn't matter anymore, even if the Treasury Department didn't?ÿ follow this law, it wouldn't?ÿ change our role.
This is what we care about:
"under such rules and regulations as may be prescribed by the Secretary " and this is where differentiating between fractional and irregular is important.?ÿ
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I agree that applying the rules for subdividing sections without all quarter corners are different than those with them.?ÿ Where I would have a problem is where I have to write a description containing a corner of an "irregular" section that has a patent calling it fractional and deeds down through the years calling out the same. If I were describing all or part of the land in the example patent noted I would be compelled to use the W Frl half of the SW /4 as in the chain of title.?ÿ
If I am understanding you correctly you are talking about something like, "beginning at the West 1/4 of fractional section XX..."
I would just leave the "fractional" out, it doesn't add anything to the description, there is usually only one west 1/4 of XX section in XX Township, the corner doesn't need a qualifier, what does it add??ÿ
But you are right, unless you are writing a new description you have to stick with what others have wrote, regardless of how confusing it is.?ÿ
@aliquot I read an opinion on another post here that I pretty much have adopted. It stated that if the original survey did not label the north 1/4-1/4s as government lots (lotting) then using the term fractional 1/4-1/4 is a pretty good way to proceed. This may not agree with the modern day definition but, at least in my area, it is the preferred phrase (to the point of maps being not approved by county surveyor for lacking the ??fractional? prefix). Also seen in the legal descriptions throughout the title history.
I do like this as it acknowledges to all involved that it is likely not going to be the standard 1320??.?ÿ
In my area of Wisconsin I don??t think I have ever seen a north tier or west tier 1/4-1/4 labeled as a government lot. Government lots are however prominent when the 1/4 or 1/4-1/4 is interrupted by rivers or lakes.?ÿ