Center of Section

> Therefore the burden of proof will lay with you to demonstrate that it's an existent monument.
>

Please read 6-41 of the 2009 Manual. The person claiming the stone is not the corner has the burden of proof of proving it is not a good faith establishment of the corner.

Turn him in

> > ... I'm dumbfounded...How do I deal with this measurement expert? .....
>
> You've done everything right so far. Now you have to elevate this to State Board level. Just do it.

I'd be very careful here. Not every state board understands surveying law and especially the BLM Manual(s). Trust me on this, I'm speaking from experience.

As a side note, just where does a state board get the authority to interpret the BLM Manual?

Turn him in

Dead end...

The Board will just say they are both right, it is a matter of opinion.

"You got a message". I'd write a letter back to him stating your reasons for accepting the center 1/4 along with your citations. I'd include any possible reasons for not accepting the existing center 1/4 and why they would not apply. For example, it wasn't part of a filed survey, but there was no filing requirement when this stone was set.

Perhaps, if he is faced with putting his reasoning in writing he will change his mind. But, he may not answer in writing, so just record his response if any. You will at least have done a professional job. Put what you did on your plat narrative. Just facts, no comments on his professional abilities.

In light of the new manual and recent case law, I don't see any reason for not accepting the center 1/4. However, there is always the possibility that he knows of someone disturbing the stone, so you have to ask.

Evelyn

> Dugger,
>
> The stone is not off by any amount, It's only 1.6' from the mathematical solution of the perfect section subdivision and it's been there for at least 99 years if not longer (mineral surveys performed in 1912 and approved 1913). The shiny cap's been there for a week and was set based on rejecting the stone. As Jud put it so well:"the rejection of the existing center of section by the other surveyor, I would want no part of, or allow for an implied agreement with that rejection to be in the record. " It's not the 0.9' that bothers me as much as the disregard for "following in the footsteps" and the doctrine of repose. The fact that it's my Nemesis (as you so aptly put it:good: ) really doesn't have much to do with it.....>
> Doug

I agree....it's not the 0.9' at issue. He used a different center of section. Your lines are in different positions even if you accept his monument. Your real issue with him is the C-1/4. Are all of the exterior 1/4 corners exactly between the section corners, and if not, are they all original monuments? Were some set or 'mis-set' because the surveyor then couldn't find the original? If they are not, it could be that the found Center, is better witness to where some original external corners were. It can go on and on.....if a distance between two monuments doesn't match a call precisely, and we can measure more precisely today, then which one of the monuments do you call 'wrong'. The principles under which we have learned to accept and reject monuments are our real controlling factor. Measuring isn't our "expertise" per se, it is but one tool we use to evaluate the legal descriptions and the evidence on the ground.

Of course....why am I telling you? I guess I just had to chime in.

More problems will arise now because this guy is obviously doing a boundary. Also, where is his Center-of-Section monument? If it is controlling as to where he set his 1/16th, shouldn't he be setting that as well?

Good luck. I'm with Tommy a bit. It seems like you need to set a monument if you aren't accepting an existing one. You need to set your control so other surveyors can retrace your work. I would also show his misplaced monument on the plat with an explanation as to why you don't accept it.

Right on Evelyn.
You only seem to come on here to discuss real survey issues and appear to know your stuff more than many of us. I look forward to reading your posts whenever you chime in. Thank you for that.
Tom

To further clarify, all of the quarter corners are original except for the South quarter which was restored by the USFS from the original bearing tress which are still there. It doesn't get much better than that.

I'm planning on sending a response outlining my reasons and setting the corner. I'm hopeful that he'll reconsider and pull his cap but...

Evelyn,

What you've outlined is exactly my plan of attack. I will ask for his rationale in rejecting the stone. As far as the stone being disturbed, there's a 99.9% chance that he's never seen it. I have, and I think it extremely unlikely it's been disturbed.

Doug

An update of the Center of Section saga

Here's my response to the other surveyor:

I received your message of November 10, 2011 concerning the stone at the center of Section 12, T33N, R21E, W.M. You state in the message that our discrepancies lie in accepting or rejecting the stone. I would like to know what you’re rationale is for rejecting the stone. The only reasons for me not to accept the stone would be evidence that it was not placed in good faith, a large and identifiable blunder or that it has been seriously disturbed from its original location.

The weight of evidence that instructs me to accept the stone is considerable. According to the record (M.S. 1069 & M.S. 1070), the stone was set sometime between 1901 and 1912 most likely at the request of one of the original patentees. The stones location definitely meets (I would opine surpasses) the accuracy standards of the time when it was set. The stone appears to be undisturbed and has been relied upon based on the evidence of the 1967 location poster set by John Ayers and his monument set at the SW 1/16th corner of the section. The courts have consistently stated that the retracement surveyor’s duty is to follow the footsteps of the original surveyor. It’s my opinion that in accepting the stone at the center of Section 12, T33N, R21E, W.M. I am doing just that.

The following is a list of references that guided my acceptance of the stone:

W.A.C. 332-130-030

The 2009 BLM Manual of Surveying Instructions chapter 3-137, paragraphs 5 and 6 which states:
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 less than strict adherence to restoration and subdivision rules. Were the Federal Government obliged to open the question as to the location of a particular tract or tracts over technical differences or reasonable discrepancies, controversies would constantly arise, and resurveys and readjudication would be interminable. The law gives these activities repose.
It is unlawful for the surveyor to impair bona fide rights as to location. Proof of impairment of bona fide rights as to location per 43 U.S.C. 772, when lines have been run and marked and corners marked and fixed by local survey, must be positive evidence of a intentional departure from the legal principles governing recovery of original corner location, reestablishment and establishment of corner location, or subdivision of a section. Where the evidence of an extant subdivision-of-section survey indicates (1) a good faith attempt to relate it to the original controlling survey, (2) conformance as nearly as possible to legal subdivision principles, (3) reasonable accuracy standards for that time and place, (4) sufficiency for identification of the legal subdivisions, and (5) without fraud or gross error, the statutory intent of stability of boundaries and title to lands will have been met.

Case Law:
Dykes v. Arnold, 129 P. 3d 257 - Or: Court of Appeals 2006
http://scholar.google.com/scholar_case?case=18417121240870287340&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Adams v. Hoover, 493 NW 2d 280 - Mich: Court of Appeals 1992
http://scholar.google.com/scholar_case?case=13023307634824778519&q=%22center+of+section%22&hl=en&as_sdt=2,48&as_vis=1
Scott v. Slater, 255 P. 2d 377 - Wash: Supreme Court, 1st Dept. 1953
http://scholar.google.com/scholar_case?case=14835517814969513799&q=Scott+v.+Slater,+42+Wn&hl=en&as_sdt=2,48&as_vis=1
Stewart v. Hoffman, 390 P. 2d 553 - Wash: Supreme Court, 1st Dept. 1964
http://scholar.google.com/scholar_case?case=10624712776789221996&q=Stewart+v.+Hoffman&hl=en&as_sdt=2,48&as_vis=1

Thanks for taking the time to review this and I look forward to your response.

Sincerely,

Douglas C. Wolfe, PLS, CFedS

The reply I received (in less than 2 hours around lunch time) was "We had taken all those items in consideration. Thanks for your help." I'm still dumbfounded. I did reply asking why the stone was rejected.

Looks like I'll be setting the corner very soon. Thanks to all who have chimed in here and to Wendell & Angel for making it possible.

Doug

An update of the Center of Section saga

Maybe he reads this bulletin board too, and therefore now knows better than to give you any rope to hang him with.

Loyal

Turn him in

> As a side note, just where does a state board get the authority to interpret the BLM Manual?

That would be WAC 332-130-030 .......

(1) The reestablishment of lost GLO or BLM corners and the subdividing of sections shall be done according to ... the rules as set forth in the appropriate GLO or BLM Manual of Surveying Instructions, manual supplements and circulars. Federal or state court decisions that influence the interpretation of the rules should be considered. Methods used for such corner reestablishment or section subdivision shall be described on the survey map produced......