I would guess that a random line was being run along the sec. line and they noted the "monument" at a right angle to it..."falling" at some distance along the random line.
I am sort of late to this dance, but what is the 1948 survey?
The abstracts of the case that I read did not mention a 1948 survey.
If it was a a BLM resurvey and the comment 'For reasons unknown' was made.
Boy, that does not sound like prima facie to me.
That is one thing that is fishy about it!
I was hoping that a thread like this about a Federal Appeals Court decision would get more interest than straddling a tripod!!;-)
Keith
Keith
I hear Ya buddy!
I have more or less been following along, but I simply don't have the time right now to dig into the nuts-n-bolts of the case enough to make any useful (let alone intelligent) comments. I suspect that many feel the same way (better to be silent and thought a fool, than to speak up and remove all doubt).
Loyal
Keith
Appeals Court aside, please explain to us the process again for disputing a Gov't resurvey. Who can do it? When can they do it? What is the process? I know you've written about it but it's not something most of us would ever consider. As an example, has too much time gone by since 1982 plus a court case for the bogus (IMO) W quarter corner to be reconsidered by the BLM? I wonder how would the BLM approach resurveying the line in the court case today all things considered? Would they just go with the court opinion or look at the entire problem? It is adjacent to Govt land or at least it was when the court ruled on it. Since the BLM has never run the line it might be an interesting outcome.
Great post Norm,
I will give some answers and opinions tomorrow.
Keith
I have read and reread those notes and have some comments. First, I think it is fairly clear that the 1982 survey says the 1948 survey tied to the "proven" 1/4 corner that they could not find in 1982. The 1982 notes also refer to another 1948 W 1/4 corner "that was set for unknown reasons" the bears N E 139 links.
To me this indicates that for whatever reason the 1948 "resurvey" did not accept the "proven" corner and for whatever reason "established" (1982 notes) a 1/4 corner at a point that seems to be nearly midway between the section corners in the state road. We need to see Bk 118, pg. 53 from Moorhead Engineering to verify this.
The 1982 survey was keen on accepting the "proven" corner even though they could not find it. Rather than accept the mark the 1948 survey left behind in the state highway as the 1/4 corner they chose to set the "proven" corner back by proportionate measure according to the 1948 survey. However I find this choice troubling. Notice the notes from the next 1982 line run north from the proportioned corner. 1.50 ch - s. edge pond (Record 0.50 ch dist.) OK, WHAT RECORD?
Why is there a 1 ch difference between the 1982 survey and whatever record they are referring to? Is this a natural monument from the original govt survey or what? It sure would look better for a midpoint than the corner the 1982 survey establishes. Could this be another reason why the 1948 survey set a mark north of the "proven" corner?
One other comment. There is a notation in the 1982 notes that a USFS post was set s. of the proportioned mark. Would a BLM surveyor set a USFS post or was this a local contractor whose work was later approved by Bouman? Perhaps the 1982 survey did not have the most qualified persons making the decisions. Even so, Bouman had the approval authorization and as such takes responsibility for the results of the survey.
I had another thought that will require the 1835 original notes to find the answer.
Below is a shot of the original plat. Note the pond. Is that a meander around the pond?
Is it possible a witness post was set because the 1/4 corner was in the pond? Was the "proven" corner actually a witness corner? Only the original notes have the answer. They are not on line.
In addition to the Moorhead notes from 1948, I'd also like to the see the original taking for the state highway ... I bet dollars to donuts the right way was to be centered on the PLSS line.
I'll see if I can find the original field notes for you.
Here's the two pages of that line from the 1835 notes. I haven't had a chance to digest this yet, but I think I see where the "Record 0.50 ch dist." came from.
ftp://146.201.97.137/glo_all/Volume27/Folder%20%208%20pg241-314/0270259.TIF
ftp://146.201.97.137/glo_all/Volume27/Folder%20%208%20pg241-314/0270260.TIF
It looks like the 0.50 ch is from the original 1835 survey and that they were aware of this in 1982 but still proportioned the corner. Strange. That "proven" corner is not looking so proven. Someone in 1948 knew something. And I agree the highway establishment record should be evidence.
It also occurs to me that Rivers v Lozeau may make a better case for how things can go awry when mathematics and protracted lines control.
The plat shows and the field notes of the original survey, show the offset that they chained around the pond.
The 1/4 cor. is at 40 and the offset is at 40.50. Something to be aware of in the "proportioning" now of the 1/4 cor.
Keith
Norm,
You have very good questions and I am not sure I can answer satisfactorily or not?
And of course, up front.....I don't and can't speak for BLM now, but I did at one time.
We would certainly consider any correspondence on the BLM surveys/resurveys and if it was considered a protest, it would be handled that way and would be forwarded to the appropriate State Office of BLM for further action. If in fact it was a land owner with "standing" it would seriously be reviewed, but not necessarily if a land surveyor was simply disagreeing with the resurvey. On the other hand, if the private land surveyor had evidence that the BLM resurvey was in fact in error, the appropriate action would have been taken to correct the error.
The normal procedure was to review the incoming correspondence from a land owner who did not agree with the BLM resurvey and the State Office would review and accept the facts in the protest, or dismiss the protest. The land owner then had the option of appealing that decision to the next level at the Interior Board of Land Appeals (IBLA). They in turn would consider the facts and issue a decision on the protest and either dismiss it or return it to BLM for correction.
If in fact the IBLA dismissed the protest and the land owners wanted to pursue it further, they were advised to take it to Federal Court. All of these options have occurred and even after all that and an adverse Court decision, the land owner could appeal to the political route and attempt to get special legislation passed to correct what they thought to be errors of BLM resurveys.
We had several of these special legislative actions every year in which I would go to the "hill" and work with the congressional staff and either oppose it or go along with it. Obviously, the final decision was not mine on further action.
We usually opposed this legislation, simply because at this stage we had every reason to believe the BLM resurvey was correct. But, there was an instance that I recall that I thought we should go along with and agree to the Special legislation and then I found out what that really meant. I then had to brief the Director of BLM and convince the Directorate that we should agree to it and if they agreed, the next step was to convince the Secretary of Interior's staff to agree and that meant the legal team of the Solicitor's Office. If they agreed then the next step was to convince the President's staff in the West Wing of the White House and that took some doing to get in. I wanted to give a slide show presentation to that staff and we had to leave the projector there the day before, get approval to enter the West Wing the day before and then show up the next day to present it. If they approved, then that was the necessary action that allowed the BLM Director to testify in Congress to agree to the special legislation. I would be the backup to the Director's testimony.
It all comes down to the fact that BLM can order a review of all actions on a particular resurvey and issue a decision on the facts of the case.
I would not speculate on this case on how they would look at the situation, after the Appeals Court has even agreed with it, or parts of it anyway.
Norm, the more I look at this 1/4 cor. the more bogus it looks!!
Keith
The image below has been downsized but it is from the county website. The county road Dept. has the quarter line drawn into a point in the road 0.5 chains south of the edge of the pond. They certainly don't believe the corner is 109 links south of the road! And BTW it looks like it would take about a 1.5 ch offset along the random line to chain around the pond.
Just a note for those who might be curious. Nobody from the administration arm of the Federal Government can testify before Congress unless prior approved by the President's staff in the West Wing of the White House.
Just a little tid bit for future reference.
Keith
wow
Now I know why our founders located the capitol in a swamp!
What foresight they had to see the eventual bureaucratic quagmire of the future.
Was it really like that Keith?
I remember some of Jerry Wahl's posts in the old place where he stated about some BLM problem projects that just seemed endless to bring a solution to fruition
wow again
Robert,
Like it or not, bureaucratic paperwork moves slow and in most cases, it is the best way.
If in fact we had a dictator....actions would move faster.
I recounted an actual account of what happened in one instance.
A different slant is one that a landowner would write the Director of BLM complaining about a resurvey that BLM did and after I received the facts from the State Office that was involved; I wrote the answer to the landowner and it was signed by the Director. Well the landowner was not satisfied, so he wrote a similar letter to the Secretary of the Interior and it was sent down to BLM for response for the Secretary's signature and I wrote the letter and was surnamed all the way back up the chain and the Secretary signed it. The landowner was still not satisfied, so he wrote a letter to the President, and yes, it came down to BLM for response for the President's signature. And guess what, I wrote the letter and it was sent back up the chain of command and the President signed it.
The land owner still was not satisfied so he sent a letter to his Congressman and yep, I wrote the letter back to the Congressman in which he then wrote the constituent the letter with my facts in it.
And that's the way it works.
Keith
Robert,
Maybe Jerry was referring to a survey/resurvey that was turned down by the Washington D. C. Division of Cadastral Survey; later approved by the designated authority in Denver by a colleague of his; was protested to the Interior Board of Land Appeals and turned down again!
That whole process took years and cost a bunch of money.....needlessly!
In the end, the Director, BLM ordered the Eastern States Director to pull the pipes.
Maybe it was that example?
Keith
So if a few disinterested surveyors contacted the BLM with a presentation of facts surrounding the W 1/4 corner that they may or may not have considered would there be a snowball's chance in .... that the corner would be ammended? What BLM office would one start with?