Mr. Allen
The county surveyor did not set the C1/4, he set either the NE cor of the W1/2 mile of the S1/2 of the section or the SE cor of the W1/2 mile of the N1/2 of the section. Therefore the section was never subdivided into 1/4's in accordance with the manual's instructions and any deed calling for a 1/4 section had to be wrong.
BS
linebender
Amen!
The Case!
Treating Derrick's center as the center of section 12, in contrast, would not create that same confusion or chaos. ? Rather, the legal boundaries would coincide-within expected tolerances-to the boundaries suggested by such things as the lines of occupation, the location of Tomjack Road, and the fence lines and their remnants.
This blew a hole a mile wide (along with the rest of the case language) in the theory of two sets of corners within the section.
Read it and weep, you double corner advocates!
Has to be embarrassing for Bouman/Robillard to have their book quoted, when the premise of their writings are NOT what this case found.
There are many statements in this case that could be quoted, but on first blush, the above gives the gist of the case.
Maybe even Richard can understand it?
Keith
I just can't help myself!
But that conclusion has more fundamental implications as well. ? As Nyhus testified, Denison's center, if legally controlling, would result in a kind of boundary “chaos” throughout the area. ? If the Denison center were used for every deed and easement that had, over the years, made a specific call to the center of the section, the legal boundaries for property throughout the area would not coincide with the lines of occupation. ? Tomjack Road would not be where it should be, based on the deeds conveying the property to the county. ? Fences that had long been treated as running on boundary lines between parcels would be well off of those boundary lines. ? Driveways would be out of place. ? Tomjack Road would be in the wrong place. ? And at least one property owner's house would no longer be on his lot, but would sit in the middle of where Tomjack Road should be located. ? The map below shows in a general way how boundaries would shift if Denison's center were legally controlling.
Note: Denison attempted to establish the already established C 1/4 at intersection of the center lines.
This clearly shows the rationale of two sets of subdivision corners as BOGUS!
Keith
Could it be
that I am having too much fun with this?
Keith
Take note, State Boards of Surveys
B.?The legal validity of Derrick's survey
The above analysis does not fully resolve this dispute. ? Plaintiffs further argue that, in all events, Derrick's survey was a legal nullity due to his failure to follow the correct methodology for locating the center of section 12. ? Plaintiffs' position is that federal law mandates that the center be located using a particular methodology, that Derrick's failure to use that methodology resulted in the misplacement of the ?center, and that no property can lawfully be conveyed by reference to that misplaced center.
As we explain, we agree that Derrick failed to follow the methodology that he was legally supposed to follow. ? But we disagree that either federal law, state law, or our own cases require that his survey be treated as a nullity. ? Rather, we conclude that, because Derrick was the first official to survey the interior of section 12 and to establish the center of the section, his survey should be regarded as an original survey that is controlling despite any errors in it, just as Mercer's survey is. ? That conclusion should follow at least in circumstances like these, where Derrick's was the only recorded survey to monument the center of section 12 during nearly a 100-year period, and the center as he located it has been relied on and has determined the lines of occupation over that time.
It couldn't be said better!
Keith
This link is better, has maps!
http://www.publications.ojd.state.or.us/A121699.htm
This should be mandatory reading, especially by State Survey Boards!
Really and maybe some national writers too!
Keith
Take note, State Boards of Surveys
Wallace v. Fordyce Lumber Company
Wallace v. Fordyce Lumber Company
In an effort to find evidence of government corners it should be borne in mind that more than thirteen decades and a lustrum have passed since the government survey was made and the corners established and the field notes made and filed. In the years that have passed between those events, armies have moved and a war has been fought in our section and the ravages of time and decay have also taken a toll of monuments which at best could be considered only transitory in a section where an outcropping of rock or other permanent material would be novel indeed.
It is entirely possible that over the generations past people have, as best they could with the crude methods at hand, located corners and lines from government corners that were known. Those corners may now be obliterated and difficult to ascertain but on the strength of those determinations of positions, forests have been leveled, fields have been cleared and tilled, homes, villages and cities have been erected and if there was error in measurement or location of any of these things it has persisted through a long period of time. That error, if error existed, may be reflected in lines of property long distances from the original markings but over the years they have been accepted and the court should weigh well the confusion and mischief that might be wrought by the change of an accepted line.
Before that line which has been accepted through the long years is changed, it should be made to appear that the wrong, the injustice, the inequity of the situation is glaring and the change is appreciable, and the error easily traced to its source.
In some instances judgments and court decrees, as well as accepted usage, go back to corners established by our forebearers on the basis of the best knowledge they had obtainable and we rather think that the logic which brought forth the ancient maxim STARE DECISIS, ET NON QUIETA MOVERE, which has done so much to stabilize the decisions of the courts, might well be applicable as we contemplate the effect of the change of long established lines. In these circumstances we prefer to stand by precedent and not disturb settled points.
Take note, State Boards of Surveys
Thanks Dan,
Did not read that we should do it all over again by exclusively following Chapter 3 of the Manual!
Also did not read anything about aliquot part corners being different then property corners?
Keith
Take note, State Boards of Surveys
From the case:
>"The court declined to let the erroneous later survey control the description in the deed. Talbot, 56 Or App at 121-23. Plaintiffs understand Talbot to have reached that result because the county surveyor failed to follow federal instructions in locating the center line of the section. We disagree. Although the court observed that the flaws in the survey rendered it "wholly unreliable," only a few sentences later, the court held that "regardless of any of the surveys offered in evidence, the descriptions in the deeds are conclusive." Id. at 121. The court reiterated the point, stating that, "wherever the quarter section line or the division line of the claim may be located, it cannot control the descriptions in the deeds." Id. at 123. The court was unwilling to conclude, where no monuments were mentioned in the deed, that monuments placed by a later survey should control the deed's description. Id. at 121; see also 56 Or at 126 (on rehearing). In short, as we read Talbot, it stands for the unremarkable conclusion that the boundaries determined by the express and unambiguous description in a deed control over boundaries determined by a later survey. The fact that the later survey was erroneously made was simply further reason not to let the survey control the deed.
>This case involves almost the converse of the facts that confronted the court in Talbot. Here, the erroneous survey came before the deed, not after. Here, the Derrick monument at the center of the section, or at least the fence post that perpetuated its approximate location, existed when the deed was drafted; it did not come later. And here, as we have already concluded, the deed's reference to the "center of section 12" was a reference to the center of the section as it had been located by Derrick. So, here, the question is whether the erroneous survey is to be disregarded in favor of a later mathematically correct one made after the deed was drafted. On that question, we find no guidance in Talbot. (16)"
The way I read it, when the deed was created before the survey the survey doesn't control the deed. "...the boundaries determined by the express and unambiguous description in a deed control over boundaries determined by a later survey."
In this kind of case, the "legal" center of section would control the property regardless of whether it was set.
So: what if you have a deed created before any survey was made, and another deed that was created after an erroneously-set original center of section was established. Wouldn't the "legal" or "proper" center of section control the earlier deed and the "original" surveyed center of section control a deed based off of that wrong location?
Adam
"The way I read it, when the deed was created before the survey the survey doesn't control the deed. "...the boundaries determined by the express and unambiguous description in a deed control over boundaries determined by a later survey."
In this kind of case, the "legal" center of section would control the property regardless of whether it was set.
So: what if you have a deed created before any survey was made, and another deed that was created after an erroneously-set original center of section was established. Wouldn't the "legal" or "proper" center of section control the earlier deed and the "original" surveyed center of section control a deed based off of that wrong location?"
I certainty do not know how many deeds were created before survey, but you have to imagine the scope of the PLSS, where the huge majority of deeds (patents) were created before the sections were subdivided and the center 1/4 cor. set.
Adam
By the way, it was the entire concept of the PLSS to give the entrymen at least 3 corners of their 160 acre homestead and was left up to them to locate themselves on the ground with their establishment of the fourth corner of the 160 acres.....the center 1/4 cor.
And here we are in two centuries later, arguing about if the center 1/4 corner as established by those entrymen are not within a finger length distance from your extremely accurate measuring devices?
And some call it; gross error!!
My God, get a grip on reality.
This is not aimed at you Adam, just a comment about this entire premise.
Keith
Keith
>
> I certainty do not know how many deeds were created before survey, but you have to imagine the scope of the PLSS, where the huge majority of deeds (patents) were created before the sections were subdivided and the center 1/4 cor. set.
How many deeds were created before the C-1/4 corner was surveyed in? Tons. (Of course I doubt that anyone has looked at all of the private "first" deeds and looked at whether the 1/4 corner was surveyed in, but I have seen more descriptions that don't reference a monument for the C1/4 than that do. Your case, Arnold vs. Dykes (if I got the name right) addresses a very specific case where in fact the survey of some private properties preceded the deeds. And it references a case and explains that it does not apply to this specific case because the deed preceded the setting of the C 1/4 corner.
The way I see it, if a landowner has a description of say, the SW 1/4 of section 8, and a survey was not conducted, he would own the SW 1/4 of the section and should be able to expect that to be the 'proper' SW Corner. If an "improper" center of section were later set, and a later-still description was written (say in the SE quadrant of the section) in reliance on the erroneously-set corner; according to Dykes/Arnold, that later description would hold to the erroneously-set corner, and the earlier (SW 1/4 of the section) woudl hold to an "appropriately-set" corner according to the cited "Talbot" case.
Note the bolded text:
"The court declined to let the erroneous later survey control the description in the deed. ?Talbot, 56 Or. at 121-23, 107 P. 480. ? Plaintiffs understand Talbot to have reached that result because the county surveyor failed to follow federal instructions in locating the center line of the section. ? We disagree. ? Although the court observed that the flaws in the survey rendered it “wholly unreliable,” only a few sentences later, the court held that “regardless of any of the surveys offered in evidence, the descriptions in the deeds are conclusive.” ?Id. at 121, 107 P. 480. ? The court reiterated the point, stating that, “wherever the quarter section line or the division line of the claim may be located, it cannot control the descriptions in the deeds.” ?Id. at 123, 107 P. 480. ? The court was unwilling to conclude, where no monuments were mentioned in the deed, that monuments placed by a later survey should control the deed's description. ? Id. at 121, 107 P. 480; ?see also 56 Or. at 126, 108 P. 125 (on rehearing). ? In short, as we read Talbot, it stands for the unremarkable conclusion that the boundaries determined by the express and unambiguous description in a deed control over boundaries determined by a later survey. ? The fact that the later survey was erroneously made was simply further reason not to let the survey control the deed.
This whole thread is a fallacy!
The only basis for Williams' assertion is the wording of the judge's ruling in Dykes v. Arnold.
The fallacy is the premise that a judge is qualified to accurately describe the monuments that fix the boundarie of a parcel of land.
Neither lawyers nor judges have, in their recognized skill sets, the ability to accurately describe land boundaries.
The judge is communicating with the lawyers and must then use the terminology used by the lawyers when the judge is dealing with the 'factual' data in the case.
The judge uses the terminology used by the lawyers in their arguments and the lawyers use the terminology from the record and/or surveyor's reports.
Therefore any error in the record and/or the surveyor's report is incorporated into the court proceedings.
Ergo; the judges' use of 'C1/4' cannot make the NE corner of the W1/2 mile of the S1/2 of the section into the 'C1/4'.
Richard Schaut
Richard's Rationale?
Well you are right that the Judge will use language in the Judgement that came from the lawyers (on both sides)? Where else would he get his/her verbiage and rule on one side or the other. I am supposing that in many cases, the Judge issues the Judgement as written in draft from one side or the other, whichever one that he/she agrees with.
Is it a safe assumption the a Judge does not have the time or the ability to write, from scratch, the entire Judgement?
Might be a reason why a surveyor needs to educate the lawyer that is representing his/her case.
But, in the case of Dykes v Arnold, it is very clear that the Judgement has decided that the Derrick survey monument represents the center 1/4 corner, even though established by other than exact proper survey methods. That is the Judgement and it matters none, on who wrote it; it was signed by the Judge who had the authority to do so.
I will take his authority to say so, over yours, when you cannot accept the outcome, because it does not fit your scheme of surveying.
Have you not been involved in a court case where your lawyer needed to prepare a draft Judgement at the end of the trial? I have!
Your post shows your total bias against any written word that does not agree with your opinion.
Keith
Adam
I think the argument that a survey only controls the deed (patent) location, if in fact it was surveyed prior to the deed is not valid, as that will perpetuate the concept that the so-called legal (point of exact intersection of the center lines) is always the case.
That concept will put in jeopardy all of those patents that came before any survey of the subdivision of sections.
It seems only logical that when a section has multiple ownerships, and an owner decides to have his land surveyed, (obviously after the date of his deed) that it will in fact establish his boundaries by survey. The other owners within the section can either agree to that location or argue in court that their boundaries are someplace else. This whole scenario places land ownership boundaries in jeopardy and leaves in place a system where there are multiple corners all over the section.
Now take for instance, BLM dependent resurveys and subdivision of section surveys, which are obviously completed after some portions of the sections are in private ownership, and the reason for the BLM subdivision of surveys is to identify the boundaries between private and federal land ownership. In all cases, this survey is coming after some of the land was patented and with the rationale that only surveys before patenting is valid.....shows what is bogus about this whole premise. Are we to believe then that BLM should only use Chapter 3 requirements for subdividing sections and ignore any lines of occupation? In other words, should BLM only survey by Chapter 3 requirements and forget any retracement requirements as explained in other Chapters of the Manual?
I certainly don't think so!
Keith
Keith
Who said anything about how BLM should conduct their surveys? If I acquire a parcel of land by deed, and the C 1/4 corner has never been set, then I should be reasonably be able to assume that the "proper" center of section is my corner. (I don't mean that the center is in a constant state of flux, but only that a center-of-section set by the proper meeans determines my corner.). That is to say, that you can't now come in and set a center-of-section using a bogus methodology, that favors an adjoiner in area, and ignore my rights.
If a corner has never been set, and a surveyor comes in and sets an "erroneous" (first/original) corner monument, and other properties are set in reliance of that erroneous location, they would hold except if they encroach on senior property. That is what your cited case is telling me. They are accepting on an erroneously set center of section to control all of the properties that came after the setting of that corner. even in their findings they cite the other case that would require the correct location to control.
There are indeed different rules in regard to BLM land or other government lands. There might be a different rule a surveyor of federal lands should follow vs. two adjoining private properties. Acceptance, reliance, and other factors may play a large part.
I will say, that I don't know that I am fully understanding your point, but I think you are not understanding what I am saying.
I agree with you in general principle, but I am saying that there are special or other circumstances that are exceptions to the rule. You wanted to discuss when two different monuments might be in place that are meant to represent the same corner. I have seen several examples of the same. I have also seen in a seminar of two sets of corners accepted by the BLM as representing the same corners. It had to do with the order in which the section was laid out (not the common standard order of things).
adam
I simply do not agree that the date of the deed (patent) is that critical!
That rationale would be that the Feds (BLM) should do an original subdivision of survey every time so that the survey would precede any deeded land!
Wait a minute.......is that the reason that some in BLM insists that they survey the subdivision of sections by Chapter 3 methods only???
Nah, couldn't be?
And of course it would mean that before every deed was written and title passed, that there would necessarily have to have a survey first!
I don't think that is going to work?
And pity all those original patent owners and heirs that have depended on their own methods of establishing their boundaries. Those occupation lines mean nothing, since there was no survey prior to their patent!
Keith
Richard's Rationale? The real rationale
The function of a description is to direct a retracing surveyor so he can follow in the footsteps of the original surveyor.
When the surveyor went 1/2 mile east of the W1/4 to set a monument, calling that monument the 'C1/4' is why Dykes and Arnold wound up in court.
Correcting the description would prevent future problems of this nature.
Preventing future problems is why the BLM, to ensure compliance with 43 USC 772, established the tract segregatiion and document reformation procedures, for both dependent and independent resurveys; thereby proving that inaccurate descriptions should be corrected.
Correcting inaccurate descriptions is not the responsibility of a court because the court has no recognized skill in boundary descriptions and, like lawyers, will not find title defects caused by inaccurate descriptions, from a reading of the record.
Richard Schaut