The southwest quarter of the southwest quarter of an interior Section is patented. I speculate that the patentee looks at the Plat and sees that the lines are 80 chains long and the half miles are exactly 40 chains. It isn't too difficult to divide by two so he lays out his 40 at 20 chains by 20 chains and builds his fences. I call that acting in good faith (that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation.-Black's).
100 years later it is found the quarter section corners are lost, the section corners are in and measure 5 chains short of the mile east and west (close enough north and south). The fenced 40 measures 1330' east-west and 1310' north and south from the established section lines in moderately rolling to steep terrain. The ranchers who own the properties affected only know the fences have been there as long as anyone can remember but don't know exactly how they got there.
What is the best available evidence of the 1/16th lines?
Do it the easy way! Do it the Bouman/Robillard method of surveying only the protracted lines and ignore everything else.
and another thing.
If you were in the Eastern United States, that would be the BLM method too.
So the question is whether a landowner can be a member of the 1320 club, right?
And I don't know the answer, but it's darn sure a real good question.
I'm definitely gonna think about it.
Not now, though; I'm relaxing and thinking about other stuff.
Thanks,
Don
> What is the best available evidence of the 1/16th lines?
The adjacent section corners and the other 3(N,E,W) 1/4 corners. (Calc if necessary)
> 100 years later it is found the quarter section corners are lost, the section corners are in and measure 5 chains short of the mile east and west (close enough north and south).
The fence if 5 chains E-W is normal for the original surveyor in your country.
It's not black and white but whatever matches record, adjacent corners, and occupation the best. Kind of like God, Jesus, and the Holy Spirit acting as one common boundary line!
NEVER trust a field mut!
Well, according the IBPEPLS, unless you can prove the fences were established in good faith prior to 1903 (lines run with the proper method) or that the fences were built in accordance with a survey using the proper Manual procedures by a licensed land surveyor after 1903, you would have to first proportion the lost 1/4 corners and then establish the 16th lines as required in 3-87 & 3-89 of the 1973 Manual (3-114 & 3-117 2009 Manual).
> and another thing.
>
> If you were in the Eastern United States, that would be the BLM method too.
Not in Ohio. The GLO finished all work in 1843 and shortly thereafter turned over all of their records to the state, neatly bound in lambskin, as their work was considered to be finished.
The basic controlling document for the later work was the Surveyor General's Instructions of 1815, with revisions through 1832. No "Manual" was ever in effect in Ohio and the state legislature has been smart enough to never burden surveyors with the task of following instructions not in effect during the original surveys. Ohio was done with the GLO in the 1840's, long before the BLM existed.
> What is the best available evidence of the 1/16th lines?
Assuming your speculation is correct, the landowner acted in good faith in establishing his lines of ownership, but he wasn't performing a function contemplated by law unless he happened to be a duly authorized surveyor. Various legal theories are available to him to secure clear title to the lands he enclosed, but those theories don't extend to the subdivision of the section. The methods prescribed by the Manual -- reestablishing the lost corners and then subdividing the section by intersection -- would be the ones I would follow in this case.
You are not asserting that good faith location cannot happen unless the location was performed by a licensed surveyor are you?
6-35 (2009):
It may be held generally that the claimant, entryman, or owner of lands has located his or her lands by the good faith location rule if such care was used in determining the boundaries as might be expected by the exercise of ordinary intelligence under existing conditions. A good faith location is a satisfactory location of a claim or of a local point. It is one in which it is evident that the claimant's interpretation of the record of the original survey as related to the nearest corners existing at the time the lands were located is indicative of such a degree of care and diligence upon their part, or that of their surveyor, in the ascertainment of their boundaries as might be expected for that time and place. This is referred to as the good faith location rule.
One should read all of the sections of the Manuals and come to the conclusion as Brian has stated, Landowners have been establishing their boundaries without a surveyor, since time began.
BLM is very specific in their Manuals.
Land surveying 101!
So what are you trying to find, the boundaries or the 1/16th lines? Depending on the state you are in it may be completely different.
Also not enough info about the landowners. You say they don't know the origin of the fences. You don't say how the fences have been treated for the last hundred years. It might just be a fence or they might have treated them as boundaries. In Utah, according to our law if they have treated the fences as boundaries for all that time that is probably the boundary. It wouldn't matter if all the original section monuments where in place (I've have a situation I posted about this a while back - including the law).
From some Kali law posted recently it appears that the description and a new and improved section breakdown would apply. Of course the owners could do their own justice to the (established) boundary and do a lot line adjustment.
As a surveyor you need to gather all the evidence to be able to apply the law. To apply the law you need to be able to find the law. The BLM Manual is a poor source to locate your state law. Lots of good stuff and rules in the BLM Manual but you best find the laws from whence the rules were made and that specifically apply to your state. If you are adjoining a federal boundary then of course the Manual and its "rules" are much more important.
Dave,Dave,Dave
Good question. I am wondering about the rest of the patentees in the rest of the section.
I have used a similar example to demonstrate to potential clients why they might find some fences to not agree with what they assume to be correct. I lost count years ago of the number of fences that fall almost perfect distance from one end of a quarter or quarter-quarter while the remainder distance is quite different from perfect. It's a matter of who really cared first and went to the trouble to measure their own parcel as best they could starting from one known point. Obviously, adjoiners did not measure the full distance and split it accordingly, acting in unison.
> You are not asserting that good faith location cannot happen unless the location was performed by a licensed surveyor are you?
No, but I *am* asserting that the effect of that good-faith location is limited in its extent.
I don't have the 2009 Manual, so the following excerpts reference the Resurveys section of the 1973 edition:
6-15: "The position of a tract of land, described by legal subdivisions, is absolutely fixed by the original corners and other evidences of the original survey and not by occupation or improvements, or by the lines of a resurvey which do not follow the original."
"The surveyor should...[not]...accept the position of improvements without question regardless of their relation or irrelation to the existing evidence of the original survey."
6-17: "A claim cannot generally be regarded as having been located in good faith if no attempts have been made to relate it in some manner to the original survey."
6-18: "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. Obviously the rule of good faith as to location cannot apply..."
Note also that these instructions are intended for use by Federal surveyors when surveying Federal lands, and that once those lands have passed into private ownership, state rules apply.
In summary, an owner who chooses to fence his land without benefit of a competent survey may acquire rights of ownership to the fenced land over time, but he can't establish the limits of an aliquot part by doing so.
There is no question in my mind that the boundaries are the 1/16th lines per the Deeds.
The question is where are the 1/16th lines bearing in mind they are not necessarily exactly at the Chapter 3 breakdown locations.
This is a question of what is admissible as evidence and what is relevant to the boundary.
I'm still thinking about that. The manual seems to say on one hand get a local surveyor or better the County Surveyor but on the other hand "do the best you can."
One thing I am sure of is the entryman had to locate his boundaries reasonably the same size and shape of the patent. Good faith isn't randomly fencing off 50 acres of a valley bottom land or just picking the greenest pasture any old place. They have to make some attempt to locate their particular 40 acre square related properly to the original section boundaries.
Part of the question in my mind is what was someone's intention when they fenced off their 40?
Did they really mean to fix their boundaries or just approximate them to keep the cows in.
These old fence lines can mean something or not. It's hard to tell.
If we can find evidence they hired the County Surveyor to lay out their 40 (some Counties have more records than others) then that is pretty conclusive in my opinion.
> No, but I *am* asserting that the effect of that good-faith location is limited in its extent.
>
Specifically, what is limited? How is it limited?
> 6-15: "The position of a tract of land, described by legal subdivisions, is absolutely fixed by the original corners and other evidences of the original survey and not by occupation or improvements, or by the lines of a resurvey which do not follow the original."
>
This is also included in the 2009 Manual (5-29 & 6-37). Please note that 6-37 in the section entitled "Good faith locations".
If the rule/law is so simple as requiring a survey by a licensed or "competent" surveyor to establish a good faith location, why isn't that plain language included in the Manuals? You would think that would have saved a bunch of paper and ink, not to mention "confusion" by those of us that read past chapter 3.
> "The surveyor should...[not]...accept the position of improvements without question regardless of their relation or irrelation to the existing evidence of the original survey."
>
I don't think anyone has asserted that all or any fences be accepted without question, I know I certainly haven't. A position such as that would be as obsurd and contrary to the law as the position that no fence can be considered and only measurements can be used as evidence.
> 6-17: "A claim cannot generally be regarded as having been located in good faith if no attempts have been made to relate it in some manner to the original survey."
>
True, very true, however that does NOT say that a good faith location cannot be established without a licensed surveyor.
> 6-18: "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. Obviously the rule of good faith as to location cannot apply..."
>
This section haas absolutely nothing to do with the situtation as outlined in the OP. Read the rest of 6-18 and it becomes apparent what it does address.
> Note also that these instructions are intended for use by Federal surveyors when surveying Federal lands, and that once those lands have passed into private ownership, state rules apply.
>
True also, however, many state laws (common and statutory) ARE based upon the Manuals. Therefore, the principles, concepts and rules will apply in many instances. However, the difference between an original survey and the resuvey/retracement is the same in state law and the BLM Manual.
> In summary, an owner who chooses to fence his land without benefit of a competent survey may acquire rights of ownership to the fenced land over time, but he can't establish the limits of an aliquot part by doing so.
I guess you would need to define "competent survey". Re-read the section I posted above. "Ordinary intelligence under existing conditions" cannot be construed as a requirment to hire a trained licensed professional.
Chapters 5&6 of both Manuals directly contradict your last phrase. Also check out 3-137 of the 2009 Manual.
Jim,
I have to disagree with some of what you post!
First, I believe a reading of the 73 Manual should be from 6-12 through 6-18 in their entirety to get the context of what is being advised. The context is not understood if only some parts are quoted. A good for instance is 6-15 where the last paragraph should also be quoted to understand the first paragraph. Also read this section with the concept of resurveying original lines of the PLSS and restoring lost corners.
I noticed that section 6-16 was not quoted, where the first sentence is: "It may be held generally that the entry man has located his lands in good faith if such care was used in determining his boundaries as might be expected by the exercise of ordinary intelligence under existing conditions." The rest of this section is important.
Second, your statement: 'In summary, an owner who chooses to fence his land without benefit of a competent survey may acquire rights of ownership to the fenced land over time, but he can't establish the limits of an aliquot part by doing so." I don't believe this is true and would like to see citations to credible sources for it.
Some thoughts.
Keith
Brian,
You and I heard the same testimony from a surveyor who stated that a survey is needed to identify boundaries within a section and have read that concept in other places too, and have and do wonder where that thought comes from?
Your citation of sec 3-137 in the 2009 Manual should be required reading by all land surveyors that are involved in the subdivision of sections in the PLSS. It is the Summary of the advice on Subdivision of Sections by Local Surveyors.
Keith
