If that erroneous assertion was true, it sure make re-surveys/retracements easy with little liability wouldn't it? Hmmmm, maybe I'm on to one of the reasons for some of these survey fictions....... Very little liability (and effort) attachs to simply drawing "straight" lines and dividing by 2.
As I have said before, if in fact subdividing sections was as easy as the bogus theory of Bouman and Robillard, only survey measuring technicians are necessary as no stinkin judgement decisions have to be made!
Just a random thought. Aren't the 1/16th corners and lines per the manual for where you happen to be? The property boundary lines may or may not be coincident with the 1/16th corners.
1. The manual goes far beyond simply establishing the 1/16th corners for the first time.
2. Advocating for a change in the corner designator from 1/16th corner to "property corner" is a violation of the statute of frauds because you are including real property not included in the Deed. You are changing the "what" of the corner which is generally much more difficult to prove (requires proving all of the elements of adverse possession with clear and convincing evidence) than proving the established location of the corner is different from an imaginary mathematical point which generally only requires a preponderance of the evidence. There are literally hundreds of Appellate Decisions across the Country where the Court finds for an established point although there are technical problems with its original establishment. The Courts seems to really really really HATE disturbing existing occupation if an answer can be found that recognizes repose, doesn't violate the Statute of Frauds and harmonizes what Surveyors and property owners have been doing over time. They have no heartburn brushing away a few technical problems although the State Association may have a heart attack over it.
> > 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.
About 1985 I tried to explain this to U.S. Forest Service surveyors from the western states. Was working on a surveying a section in Southeast Ohio. The county surveyor retracement notes from the 1840's were evidence of replacing rotting original posts with stones. Another company was working on retracement of a complete township one mile south along the same range line. I was required to run a tie line to several of their control points.
This was being required since both companies were to monument the range line. My survey was on hold until the other survey was approved. As I remember the forest service personnel were questioning the other firm and were upset that curvature had not been taken into account. My comment was that the original surveys were completed before 1815 and no record of formal instructions exists. The original surveys did not take curvature into account and trying to do that now would not follow the steps of the original survey. Found out nearly 5 years later neither company was allowed to complete their survey.
Good post Dave and there is NO section in the Manuals that suggest two lines for the subdivision of section lines. Nowhere does it discuss "property boundaries" being different then "aliquot part boundaries"
Nowhere.
Only in the bogus theory of subdividing sections using only the protracted lines as evidence.
Keith
The fences should be seriously considered and where they are determined to be the boundaries, they are the aliquot part lines and if they are not determined to be the boundaries, they are fences.
Keith
RESTORATION OF LOST OR OBLITERATED CORNERS & SUBDIVISION OF SECTIONS a guide for surveyors
UNITED STATES DEPARTMENT OF THE INTERIOR Bureau of Land Management
1974 Edition
RULES ESTABLISHED BY STATE LAW OR DECISIONS
Other important factors that require careful consideration are the rules of the State law and State court decisions, as distinguished from the methods followed by the Bureau of Land Management. Under State law, property boundaries may be fixed by agreement between owners, acquiescence, or adverse possession. Such boundaries may be defined by roads, fences, or survey marks, disregarding exact conformation with the original section lines. The rights of adjoining owners may be limited to such boundaries.
In many cases, due care has been exercised to place the property fences on the lines of legal subdivision. It has been the general practice in the prairie states to locate the public roads on the section lines. These are matters of particular interest to the adjoining owners. It is reasonable to presume that care and good faith were exercised in placing such improvements with regard to the evidence of the original survey in existence at the time. Obviously, the burden of proof to the contrary must be borne by the party claiming differently. In many cases, at the time of construction of a road, the positions for the corners were preserved by subsurface deposits of marked stones or other durable material. These are to be considered as exceptionally important evidence of the position of the corner, when duly recovered and verified.
> Specifically, what is limited? How is it limited?
The location of the patentee's occupation lines don't necessarily affect the location of subdivisional corners.
> > 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.
6-18 it's directly pertinent to the situation at hand. Chapter 6 addresses resurveys, defined as "reconstruction of land boundaries and subdivisions accomplished by rerunning and marking the lines represented in the field-not record or on the plat of a previous official survey." That's what Dave is trying to do in his scenario. Chapter 6 is where bona fide rights in resurveys are addressed, and 6-18 is an integral part of that. It's worth pointing out that the last sentence of 6-18 reads "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.
There are a lot of details we don't have about the case that would likely affect my opinion of how to approach it, but before I started speculating about bona fide rights I think I'd start looking at the southeast fence corner as a perpetuation of the S1/4 corner and see how it fits the other corners in the section.
Section 6-18 has nothing to do with what is being discussed.
This section refers to a mistake that a claimant made in locating himself on the ground, such as he is on the NE1/4NE1/4 and he is supposed to be on the SE1/4NE1/4 (an example) and the adjudication is NOT up to the BLM surveyor to rectify.
"This is a process of adjudication rather than one of resurvey."
In fact the R.S. 2372 has been repealed by FLPMA.
Keith
In California we have what is known as the "Agreed Boundary Doctrine" which requires proof of an agreement since Bryant v. Blevins (1994). We don't have a separate Acquiescence Doctrine like some States (usually requires long term acquiescence).
For the most part we are left with the Original Boundary Doctrine.
"There is no principle better established, and more uniformly adhered to in this court, than that the circuit courts, in deciding on titles to real property in the different states, are bound to decide precisely as the state courts ought to do."
U.S. Supreme Court
Hinde et al v. lessee of Vattier 30 U.S. 398 (1831)
Lucas makes that point in his book with Federal cases. Boundaries are controlled by State law. I always thought that didn't apply to public domain boundaries but he doesn't make that distinction. The cases he cites all seem to pertain to property acquired by the Feds, not unpatented public domain. Although the case will be tried in Federal court the State law will be used.
> ...I *am* asserting that the effect of that good-faith location is limited in its extent.
I guess I’m confused. I was wondering how the effect of a good faith location is limited in its extent? What extent and/or effect is limited? It is either a good faith location that, by definition, is recognized as the 16th line or it is not a good faith location.
> There are a lot of details we don't have about the case that would likely affect my opinion of how to approach it, but before I started speculating about bona fide rights…
That is the problem, too many surveyors believe that bona fide rights are to be “speculated” about. Another misconception that many surveyors have is that before a good faith effort can be recognized is that it must be “proven”. Neither is correct. It is quite disturbing that so many in a profession clearly do not understand the basics of the BLM Manual and property boundary law. Is it any wonder we are not respected as professionals and cannot seem to demand the compensation of professionals? We deserve neither.
Linebender posted a quote that many either know nothing about or purposefully ignore. Why is this so? I used to be in that group, so I understand that line of thinking. “That is how I learned to survey, so it must be the correct way”. Not a very good excuse is it?
It sure made boundary decisions easy though; it takes little effort to run around the exterior of a section, draw a couple of straight lines and divide by two. Yep, that sure is easier and cheaper than learning and understanding the law, gathering all relevant evidence (including knocking on doors); and it sure is easier than admitting I surveyed for years without knowing what I doing or supposed to be doing. Change is hard, especially when we have to change ourselves. “Lord, grant that I may always be right, for thou knowest I am hard to turn.”
“In many cases due care has been exercised to place the property fences and other evidence of use or occupancy on the lines of legal subdivision and locate the public roads on the section or subdivision-of-section lines. These are matters of particular interest to the adjoining owners, and it is a reasonable presumption that care and good faith would be exercised with regard to the evidence of the original survey in existence at the time. Obviously, the burden of proof to the contrary must be borne by the party claiming differently. (6-41 2009 Manual).
What can be more proof of agreement than a fence that two ranchers agree has been the boundary as long as memory serves? Furthermore, what does the doctrine of acquiescence have to do with the evidence of the first survey of the 40 done a century ago?
I don't see much disagreement about the fence constituting the boundary between contiguous owners. The problem arises when those boundary corner get conflated with aliquot corners that affect the location of noncontiguous properties.
In the real world it's often not much of an issue, because either the noncontiguous properties have their own occupation lines that would also be recognized as legitimate, or there's no occupation at all and the owners don't know where their lines are. No harm, no foul.
Jim,
You are right about what the argument is about and as I see it, if the fences are accepted as the boundary between owners; whose land descriptions are based on the aliquot parts of the section; then they represent the aliquot part boundaries. If the fences are accepted simply as "property boundaries" that do not match the aliquot parts, then the consequence will be multiple "property boundaries" that do no match, and gaps and overlaps then are produced.
And that scenario was not contemplated in the design of the PLSS.
I simply don't buy the argument that if the surveyor comes in and disregards the fences and simply subdivides the section using only the protracted lines as evidence, then chaos is sure to follow and the surveyor is not welcome to come in and tear up the existing boundaries.
As I have said many times, this bogus theory is easy to do and once the monuments are set at all different places then expected by the land owners, the surveyor needs to leave the area in a hurry.
As I see it and the Manuals are clear to me in advising the same, as I have stated and believe.
Keith
Yes if the two property owners agree there is an agreement then we have the necessary proof. But if they are litigating then of course at least one side doesn't know anything about any agreement. The solution to this used to be the Court could infer an agreement but no more.
One advantage of agreed boundaries is that they don't affect other boundaries in the section. The CA Supreme Court may have caused more problems than they solved making the Agreed Boundary Doctrine harder to prove.
So if the plat calls for 1 corner common to 4 - 40 acre parts then those who own those 4 parts had their corner set 100 years ago. That makes a lot of sense to me but it doesn't seem to for everyone.
