Amen and an excellent post.
Couldn't have said it better.
It is an asinine concept to think that after years and years of acceptance of survey monuments within the section are all of a sudden subject to move because of a resurvey of the section lines and proportionate measurement all around it.
Look at the 1982 resurvey plat and come to your own conclusions.
Keith
I have just reread the Lucas article again and he is very firm and straight forward on his opinion of the "first surveyor". At least that is how I read it.
His penultimate paragraph:
The opinion in Rivers v. Lozeau doesn't resemble anything found in the 1973 or 2009 Manual. As with so many other opinions that surveyors grab and run with, the opinion is almost devoid of details about the surveys that were conducted. For all we know, the BLM proportioned corners in from the township lines and Moorhead's subdivision was based on original section and quarter-section corners. The most incredible and absurd portion of the opinion (see reference 5) is when the court tells us that the lines were fixed on the ground by drawing them on a map. This is a ridiculous statement and completely detached from reality.
There is no better way of saying it!!
Rivers v Lozeau is bad law
Keith
YUP, the PLSS is a colossal failure when it comes to stable boundaries. The whole idea of protraction proved to be bad. The myth that it's all square and 5280, simple and easy, completely messed it up. Non attention to preservation of the base surveys by local government. Add to that all the idiots that think it should all be and is perfect, no surveys or monumneted parcels required, we can just go with the imaginary lines on the plat (aliquot parts) and YUP, what you have is a COLOSSAL FAILURE OF BOUNDARY STABILITY. A new system needs to be put in place that puts the PLSS into the ancient history books, title registration with a land court and proper parcel monumentation. Rivers v Lozeau and its consequences just proves it. You can't restore something back to original when it's gone, DUH!
The PLSS is not the problem; it is the surveyors that do not understand it.
Rivers v Lozeau is a prime example of the Court making a decision based on erroneous input and one side not showing up to argue the case.
Keith
Surveyors that don't understand the PLSS are only a small part of the problem. How about landowners that could deed land without a boundary survey and proper description. Uncle Sam, the biggest landowner, deeded the whole thing without a complete survey. It only got worse from there, kitchen table descriptions, mom and pop title companies, farmers, ranchers, land speculators, all deeding land without proper surveys and legit descriptions with described corner markers. Most local governments didn't maintain the PLSS corners. It was just a free for all enabled by the use of aliquot parts (protraction). It was cheap but it did accomplish the primary goal of getting the land into the hands of Americans to develop and profit from so it was probably justified.
So now Humpty Dumpty has fell off the wall. It can't be put back to the original plan, to much water under the bridge. Those that think we can restore the PLSS and then snap all the lines back to where they were planned (conveyed) and ignore what Americans have done about their boundaries for 200 years are just not realistic. The courts in many cases have held the status qua, not the idealistic theory of Rivers v Lozeau. As much as those who promote the perfection of Rivers v Lozeau dream on, it just isn't practical nor even desirable to upset the long established fabric of land ownership. People live on the land, they shouldn't be disturbed. There is a better way. America just hasn't realized it yet but there is always hope.
Surveyors can't fix this problem. They can be part of the solution but society needs decide they want it fixed and pay for the long term benefits.
> If Lucas said that the "first surveyor" is not valid; you will have to quote
Perhaps I have been confused by the title of the article, "Requiem for the First Surveyor Concept". As I understand it, a requiem is something you do for something that is dead.
Perhaps it is the opening paragraph:
"Can you hear the mournful peal of the distant bell? For whom does the bell toll? It is the death nell of the first surveyor concept-an arbitrary rule of surveying too oft extolled."
Or maybe footnote 1, which states, in part:
I refer to this as a "concept" as opposed to a "theory" because more is required of theory...... The first surveyor concept falls short of an "organized body of ideas" and is not supported by the facts.....
> Rivers v Lozeau is bad law
When each section of the PLSS was originally platted all the quarter / quarters where also deemed to have been created, too. All those aliquot parts exist in law, even though they have not been surveyed. When some local surveyor does survey them, he is performing an act contemplated by the manual. He is, in a manner of speaking, finishing the work of the original surveyor as his agent. This is in accordance with the manual and such monuments are said to have the dignity of original plat monuments. This is the circumstance at bar in Dykes.
The manual is silent about the miriad of oddball divisions owners can make that are not aliquot parts - not created in law by the original PLSS survey -such as the north 400 feet of a particular quarter / quarter. These divisions occur after the land has passed out of public ownership. So is it so surprising if these corners are not subject to the same, or any, rules and conditions imposed by the BLM/GLO and its Manual of Instructions?
In considering whether Rivers is bad law or not the first thing we should ask is why the BLM was doing a dependent resurvey in a section within which at least some of the land had passed into private ownership. Must have been a pretty screwed up section, wouldn't you say? We also have to ask why those BLM surveyors decided to throw out existing points of local control. BLM surveyors, as a rule, are not fools. My guess would be that the Moorhead survey was badly deficient (maybe a 1320 club job?). Are we required to accept any and every thing anybody sets? Is the owner north of Rivers obliged to live by the results of a 1320 club survey he did not commission and maybe didn't even know of? So the BLM threw it out and so did the Florida court. We can wish that the court had explained itself better, but that doesn't mean they didn't have good reasons and it doesn't make Rivers "bad law".
But may main point is the the issue at bar in Rivers was the non-aliquot 400 foot private ownership line, not the veracity of the BLM survey. The moving of the aliquot quarter / quarter line was not at issue, but rather was accepted as a fait accompli. That rendered the deed descriptions ambiguous. The question before the court than was whether Moorhead's uncalled for but first set monuments (which were not even claimed to be on the line, they were 33 foot offsets) defined the boundary or the dimensions in the descriptions did.
Mark,
You have some serious misconceptions in your above post and will give some different opinions as I see it, tomorrow.
Keith
Mark,
Your first paragraph in your above post at 21:00 is factual and states the issue very well.
The second paragraph is a little confusing in that the Manual does not specifically detail instructions on
non-aliquot part lines, however, it should not be that difficult to establish a line that is 400 feet from an aliquot part line after that line is established on the ground.
The third paragraph is false in that it does not portray the BLM and its surveys/resurveys correctly. Obviously, when there is mixed ownership within a section between private and Public; would that not seem the ideal section to subdivide? It does not have to be a screwed up section in order to have a need to determine the boundaries so that the Public Land manager can know where the boundaries are.
How can you guess that the Moorhead survey was badly deficient? This is probably the most untrue statement in your post. You don’t know and I don’t know for a fact that the Moorhead survey may be based on found original section and quarter section corners. We also can assume that the subsequent Britt survey (Forest Service surveyor) did in fact use the BLM proportioned west one-quarter corner and ignored the existing Moorhead survey monuments.
I have attempted to get all the facts to the above assumptions of mine, in order for us to be able to actually see all the facts as they exist on the ground. So far, those who could produce these facts have chosen to ignore the case. And of course that says a lot!
You cannot assume that there are 1320 club surveys in this section, unless you know something the rest of us don’t?
To summarize; the BLM set a proportioned west one-quarter corner that is about a chain and a half from midpoint, ignored a different corner monument there and the Forest Service surveyor (with no Federal survey authority) ignored existing private survey monuments within the section and it all resulted in a court case with abominable results.
After re-reading the Lucas article again, I am left wondering if in fact he supports the “first surveyor” concept. I frankly have not worried about existing monuments as found on the ground if they were original or first surveys. For that matter, if the surveyor was the fifth surveyor on the ground, his/her monuments cannot be simply ignored for that reason.
I would like someone to tell me that if a center ¼ section corner was set by a BLM surveyor rather than by a private surveyor, (both using proper methods) that the BLM survey should be held and the private survey should be ignored? Can be construed as the difference between original and first?
That’s the question!
Keith
Does this whole issue come down to the fact(?) that an original survey that obviously was done before the land was deeded is more valid than a first survey after the land was deeded?
If that is the concept, then all of you who are setting corner monuments now for your clients are setting monuments that are subject to move.
I don't think so!
Keith
Keith:
I came across this today. You may be interested.
😉
or not.
It is dated 2002
I wonder what materials are given
Yes it is and would be interesting, except I don't want to buy it!
Keith
I haven't taken time to work the math out exactly but the 33 or 28 ft or whatever it was in the case where the Moorhead marks were would fit reasonably well with a mathematical subdivision using the mark at the west 1/4 corner that was rejected in favor of proportion. The legal principle of repose has to be in play when marks that were located and represented as the original corner were used by the settlement as a boundary landmark. It does not matter if its the original, first or tenth survey or if its called for in a survey or if its an old wooden fence post. What matters is what has it represented, for whom and for how long and what would be the effects of starting the subdivision over correctly. You don't look at this evidence,throw up your hands and set a protracted corner in place of the incorrectly placed corner. The incorrectly placed corner becomes the correct corner because of the legal principle that requires owners to continue settlement as it has been for a requisite time. The incorrectly placed corner might as well have been set by Keith when he worked for the BLM under such conditions. It is the corner it was represented to be. No corrective BS is needed to clean things up. At least that's how I interpret the manual, federal law and state law. This case has done a lot of damage to that principle and only because of what appears to be a poor judgment made by a surveyor and backed by the Eastern States office in 1982. That's how I would summarize this case that the protraction, proportion and original survey or bust crowd waves as their banner as a first surveyor math excuse. There, I'm done.
Some points to ponder.
The original survey that was done on the ground by the GLO or BLM is of course original and its protracted section aliquot part lines are established in the original survey.
BUTthose lines are now defined on the ground until a landowner or land surveyor establishes them on the ground. Now obviously, the land is patented/conveyed/deeded after the original survey and that original survey is the officially approved plat, without surveys on the ground within the sec..
So,are all surveys that are completed after the original survey, after the patenting of the land properly called "first surveys"?
This is really semantics as the land is considered surveyed on the original survey plat, but without monuments on the section subdivision lines.
So, what is the big deal about FIRST SURVEYS?
HMMMMMMM?
Keith
(posted before I read Norms post above.....on the same page)
Keith
You're beating a dead horse. This has been discussed, ad nauseum, don't ya think?
Kris
You would be amazed and your eyes opened wide if and when you could see all the facts on this case.
But those with the facts are withholding them.
If you are not interested in the reason for the Court case that was settled in the Federal Appeals Court, so be it.
Keith
> The second paragraph is a little confusing in that the Manual does not specifically detail instructions on non-aliquot part lines...
Just the sort of opening that lawyers and judges look for. Don't hate the playa, hate the game.
> How can you guess that the Moorhead survey was badly deficient?...
I'm guessing that because the BLM, and Britt, threw it out. If it had been a decent survey they probably would have accepted its monuments.
>...You don’t know and I don’t know for a fact that the Moorhead survey may be based on found original section and quarter section corners.
True, I don't. I'm not trying here to solve all the worlds problems here. I am challenging the assertion that Rivers is "bad law". Possibly it is, but we can't possibly say that without knowing all the facts.
> You cannot assume that there are 1320 club surveys in this section, unless you know something the rest of us don’t?
That is speculation on my part, 'tis true. But given that the BLM threw out the Moorhead survey it does seem like a real possibility.
>
> To summarize; the BLM set a proportioned west one-quarter corner that is about a chain and a half from midpoint, ignored a different corner monument there and the Forest Service surveyor (with no Federal survey authority) ignored existing private survey monuments within the section and it all resulted in a court case with abominable results.
I just have to assume that the BLM and the Forest Service's Surveyors had some idea of what they were doing and had their reasons. I'm not going to sit here a quarter century later and say they were both stupid. Say what you will about government workers - they are usually very thorough.
> After re-reading the Lucas article again, I am left wondering if in fact he supports the “first surveyor” concept. I frankly have not worried about existing monuments as found on the ground if they were original or first surveys. For that matter, if the surveyor was the fifth surveyor on the ground, his/her monuments cannot be simply ignored for that reason.
I'll leave it to Mr. Lucas to clarify his own statements. But there is very little case law to support this "first surveyor" idea. What we can say is that Dykes is about a center of section monument, placement of which is specifically addressed in the manual. Rivers is about monuments on a non-aliquot part, and comes to a completely different conclusion. Two cases do not make a body of law. Neither do declarations by the BLM in its various editions of the Manual.
I'm guessing that because the BLM, and Britt, threw it out. If it had been a decent survey they probably would have accepted its monuments.
BLM did not throw out the existing subd. survey. It was the Forest Service surveyor.
I think, but have not seen the FS survey.
Keith
Kris
Whats more worthwhile? Discussing this case or how much of a property fence post encroaches?
