No, that is not difficult to explain whatsoever. When testifying you are recognized as being an expert in a subject for which no one else(with maybe one exception) in the courtroom can make that claim. Most judges are artsy-craftsy generalists with a strong distaste for hard structure. They worked their way up the ladder in the legal field by grasping the fact that there is more than one way to skin a cat. They are more interested in your composure and the quality of your words than attempting to grasp the minutiae of your procedure.
http://c.ymcdn.com/sites/www.mnsurveyor.com/resource/resmgr/imported/2013-MSPS-Winter-Conf-A2-Freemyer-PLS-Subd.pdf
I don't agree with everything stated in the link but this is how it was presented at the Mn surveyors conference.
Bushwhacker, post: 351291, member: 10727 wrote: The one thing I said which most everyone who responded seems to have missed is if your state has adopted the BLM method, as in your state board. If that is the case you can are going to have some problems not following the correct method that they spell out. What Mr. Cash states is the root of the problem as most surveyors do not do enough to establish the original position of the 1/4 corners. One of the best quotes I ever heard was at Little Rock from Dennis M. " Every Corner must stand on it own based on it's record" it is kinda hard to explain to a court why you accepted a Rock or a fence corner or whatever if you can not come up with some history of how it got there.
Didn't miss it, but not aware of any State that has adopted a rule or law that says each survey must be an original survey per BLM methods and the line adjusted accordingly down through the ages and into the future on each subsequent survey. If that's what the MN board is saying, it would be quite remarkable, and I doubt the courts would back them up on it.
The history is the history of the country. Standard operating procedure that lands were surveyed and monumented, and buyers took title based on a view of the premises. Then fences were built between the monuments (many areas had statute or local law requiring this, including MN). Over time many of the monuments were destroyed or deteriorated and are no longer there. Many (most) of these monuments were never mentioned in a record. The fences built at or near the time of the original conveyance are accessories to the obliterated monuments. The courts have said this and all we need to do is repeat it back to them. The assumption is that an ancient fence is an accessory (Texas aside), so we need to try to prove it isn't one with clear evidence. If you can't do that, then it's an accessory and must be used as such. If you can prove it's not an accessory, but it's 50 years old, then you would still have to look at the possibility it has actually become the line (every twist and turn of it) via estoppel, acquiescence, express agreement, adverse possession.
Bushwhacker, post: 351291, member: 10727 wrote: The one thing I said which most everyone who responded seems to have missed is if your state has adopted the BLM method, as in your state board. If that is the case you can are going to have some problems not following the correct method that they spell out. What Mr. Cash states is the root of the problem as most surveyors do not do enough to establish the original position of the 1/4 corners. One of the best quotes I ever heard was at Little Rock from Dennis M. " Every Corner must stand on it own based on it's record" it is kinda hard to explain to a court why you accepted a Rock or a fence corner or whatever if you can not come up with some history of how it got there.
The manual contains more than just mathematical construction rules.
I've rarely ever set the center section by using the intersection of the quarter corners, there is usually some kind of evidence, a fence corner, stone etc of where it is. Is there always a record of it in the courthouse? Not always.
There are a couple of reasons I use the existing evidence at the center of section. First off, the part of Illinois I work in was surveyed about 1817. There was quite a few years the county surveyors worked before a clear decision was made how the center of section SHOULD be set.
Second, how was word passed to the county surveyors? E-mail, fax, test message? In my opinion it wasn't passed to the county surveyors in any set method, I could be wrong. Anybody ever see any documentation as to how the county surveyors were made aware of the correct method?
Third, even if the knew the correct method, they ignored it. I've looked at a lot of old county surveyor records and I've never seen where the center of section was set in the correct manner. It was usually stubbed in from a quarter corner and it wasn't usually done the same way every time, usually what was ever easy. The first date I have ever seen was from the 1970's where a surveyor used the intersection of quarter corners to set the center of section. In my opinion its a modern notion.
I'll just add except in Southern Illinois where there are some federal parks, there has been almost no BLM survey activity since the original surveys were completed.
I'm reposting one of my old posts, which I was reminded of by the discussion of identifying original corners:
I have a clipping somewhere from the home town newspaper in which an old timer reminisces about working with a young guy who later went on to be an Olympic champion. He says they both worked for the county engineer in 1931 on a crew correcting section corners by "digging up the stones and putting them where they ÛÏshould beÛ.
Not being an LS myself, I've never gotten up the nerve to ask the Co. Engr. office if they have field books from that activity. Maybe better to let sleeping dogs lie.
Bushwhacker, post: 351291, member: 10727 wrote: The one thing I said which most everyone who responded seems to have missed is if your state has adopted the BLM method, as in your state board. If that is the case you can are going to have some problems not following the correct method that they spell out. What Mr. Cash states is the root of the problem as most surveyors do not do enough to establish the original position of the 1/4 corners. One of the best quotes I ever heard was at Little Rock from Dennis M. " Every Corner must stand on it own based on it's record" it is kinda hard to explain to a court why you accepted a Rock or a fence corner or whatever if you can not come up with some history of how it got there.
Here's the statute from MN, which clearly invokes the rules for lost and obliterated corners in retracement situations.
Minnesota Statute: 389.04 RULES FOR SURVEYS
In all surveys the basis for the courses must be defined. In subdividing townships, sections, or parts of sections, as established by the United States survey thereof, and in restoring lost or obliterated government corners, the county surveyor shall follow the rules established by or pursuant to acts of Congress, and all such surveys shall be made in strict conformity to the original survey made by the United States.
And from a MN court case:
"However erroneous the original government survey may have been the monuments that were set must nevertheless govern, even though the effect be to make one quarter section contain much more than another. McIver v. Walker, 4 Wheat. 444; Land Company v. Saunders, 103 U.S. 316; Chan v. Brandt, 45 Minn. 93; Cottingham v. Parr, 93 Ill. 233.
In making a resurvey the question is not how an entirely accurate survey would locate the lines, but how the original surveys located them. If the actual location of the original land marks can be discovered they must govern. If they are not discovered, the question is, where were they located. And upon that question the best possible evidence is usually to be found in the practical location of the lines made at a time when the original monuments were presumably in existence and probably well known. Diehl v. Zanger, 39 Mich. 601; Stewart v. Carleton, 31 Mich. 270; Smith v. Hamilton, 20 Mich. 433.
A boundary line long recognized and acquiesced in, is generally [***5] better evidence of where the true line should be, than is a survey made after the original monuments have disappeared. Tarpenning v. Cannon, 28 Kans. 665; Shaffer v. Weech, 34 Kans. 595; Reinert v. Brunt, 42 Kans. 43; Stewart v. Carleton, 31 Mich. 270; Gregory v. Knight, 50 Mich. 61.
The quarter posts are made of perishable material which passes away with the generation in which they were made. By the improvement of the country and other causes they are often destroyed. It is therefore important in many cases that hearsay or reputation should be received to establish their location; but such testimony must be pertinent and material to the issue between the parties. Kinney v. Farnsworth, 17 Conn. 355; Ralston v. Miller, 3 Rand. 44; Cox v. State, 41 Tex. 1; Conn v. Penn, Pet. C. C. 496; Wendell v. Abbott, 45 H. H. 349; Great Falls Company v. Worster, 15 N. H. 412; Smith v. Powers, 15 N. H. 546; Moul v. Hartman, 104 Pa. St. 43; Boardman v. Lessees of Reed, 6 Pet. 328; Kramer v. Goodlander, 98 Pa. St. 353; Child v. Kingsbury, 46 Vt. 47; Wooster v. Butler, 13 Conn. 309; Whitehurst v. Pettipher, 87 N. C. 179."
It's a rare section that has all 8 corners documented back to the originals set by the US Deputy surveyors, you know - the ones set without error.
So, if a center 1/4 was set 20 years later by a surveyor-engineer (no licenses then) of good repute and notes were kept and still exist (common around here), and you find his stone, do you hold it? I've retraced section breakdowns from the 1850s by Mr. Levi P. Drake that were within a couple of feet of his measurements over a mile, even up and over hills and through woods.
How about if after the intervening 160 years, the location of the quarter corners are lost and have to be restored by other methods, or worse, "established" by dubious methods or even carelessly?
By default, that makes the center have a better provenance than the quarter corners. It is better evidence of where the Center is than could possibly be retraced to, even with the accuracy of GPS. Is this important? Generations of landowners have farmed their lives with these boundaries and passed down or deeded them to their successors; is that important?
I'm currently working on a section that has most of the corners single proportioned in the 70's by an out of town firm since they couldn't find a pipe sticking out of the ground to trip over. What's the chances that anything internally would work with that?
The purpose of boundary rules is to uphold the true intentions of the parties, promote stability, and allow property owners to establish their boundaries when they are uncertain.
They should not be applied in a rigidly technical manner when they will defeat the intentions of the parties, arbitrarily move boundaries especially without the consent of the owners, or run contrary to established boundaries.
wfwenzel, post: 351395, member: 7180 wrote: It's a rare section that has all 8 corners documented back to the originals set by the US Deputy surveyors, you know - the ones set without error.
So, if a center 1/4 was set 20 years later by a surveyor-engineer (no licenses then) of good repute and notes were kept and still exist (common around here), and you find his stone, do you hold it? I've retraced section breakdowns from the 1850s by Mr. Levi P. Drake that were within a couple of feet of his measurements over a mile, even up and over hills and through woods.
How about if after the intervening 160 years, the location of the quarter corners are lost and have to be restored by other methods, or worse, "established" by dubious methods or even carelessly?
By default, that makes the center have a better provenance than the quarter corners. It is better evidence of where the Center is than could possibly be retraced to, even with the accuracy of GPS. Is this important? Generations of landowners have farmed their lives with these boundaries and passed down or deeded them to their successors; is that important?
I'm currently working on a section that has most of the corners single proportioned in the 70's by an out of town firm since they couldn't find a pipe sticking out of the ground to trip over. What's the chances that anything internally would work with that?
I TOTALLY AGREE.
As do I.
Well. if that's the case, how about explaining what you decide and how? Do we feel that we owe that to other surveyors and our clients? posterity?
It's called living in a recording state.
Show your work.
linebender, post: 351311, member: 449 wrote: http://c.ymcdn.com/sites/www.mnsurveyor.com/resource/resmgr/imported/2013-MSPS-Winter-Conf-A2-Freemyer-PLS-Subd.pdf
I don't agree with everything stated in the link but this is how it was presented at the Mn surveyors conference.
Linebender,
Reviewing this very seminar is the reason I started this post.
In the end I think it comes down to the first surveyor vs. the original surveyor theory. One way of thinking being that the first surveyor to breakdown the section and have his work relied upon by adjacent owners is the original surveyor. The other way of thinking being that since the original government surveyors didn't set the interior section corners that any subsequent surveyor that comes along and sets an interior section corner is merely setting the corner as close as he can to the true corner, but the true corner is always the protracted intersections.
I agree with the prior of the two, but many others adhere to the latter of the two.
hillsidesurveyor, post: 351606, member: 7292 wrote: The other way of thinking being that since the original government surveyors didn't set the interior
section corners that any subsequent surveyor that comes along and sets an interior section corner is merely setting the corner as close as he can to the true corner, but the true corner is always the protracted intersections.
The problem with this is the Manual itself says that a corner is the result of the surveying process and the monument is the object set to mark the corner. A corner is not an imaginary point that can never be set, it is the result of surveying and setting of monuments. The Manual also says the local surveyor is fulfilling a function contemplated by law. The GLO did not set all 25 possible patent corners in the Section, it only set 8 of those. The local or County Surveyor is called upon as an expert to finish the job. The Patent creates the corners but does not locate them; the Surveying process (usually completed by the County or Private Surveyor) located the corners by setting monuments.
"The Minnesota Supreme Court has made clear distinctions. In Beardsley v. Crane the court stated: It is well settled that when the grant describes the premises by distinct and definite boundaries, no extrinsic facts can be resorted to for the purpose of controlling or varying the description."
This is true but the California Courts have stated that extrinsic evidence is admissible to do the difficult task of finding the Deed boundaries upon the ground; the terms of the Deed are not being varied, just located on the ground. See Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 741 [249 P.2d 600].
Dave Karoly, post: 351610, member: 94 wrote: The GLO did not set all 25 possible patent corners in the Section, it only set 8 of those. The local or County Surveyor is called upon as an expert to finish the job.
+1
And I would add that those monuments first set out by county/local surveyors should be considered original. I believe it was Rivers v. Lozeau who put forth the idea of a First Surveyor and was further espoused by Brown. The idea of a 'First Surveyor' is dangerous and has created the environment which allows the pincushion corner to flourish.
JBrinkworth, post: 351618, member: 6179 wrote: +1
And I would add that those monuments first set out by county/local surveyors should be considered original. I believe it was Rivers v. Lozeau who put forth the idea of a First Surveyor and was further espoused by Brown. The idea of a 'First Surveyor' is dangerous and has created the environment which allows the pincushion corner to flourish.
County surveyor??
There were no county surveyors here setting corners for entrymen, they did it themselves.
Why would it need to be a surveyor anyway, can't the landowners do it, cause if they couldn't then nothing worked.
MightyMoe, post: 351621, member: 700 wrote: County surveyor??
There were no county surveyors here setting corners for entrymen, they did it themselves.
Why would it need to be a surveyor anyway, can't the landowners do it, cause if they couldn't then nothing worked.
I was restating Chapter 3 of the manual 'Subdivision of Sections by Local Surveyors.' 3-132: The work of the local surveyor usually includes the subdivision of the section into the legal subdivisions shown upon the approved plat. IN THIS CAPACITY [emphasis added], the local surveyor is performing a function contemplated by law...
There are still sections here that haven't been broken down. The county surveyor or local surveyor would be responsible for this as an original surveyor.
And yes, if the entrymen set the line and it was occupied to, that is THE one and only line.
MightyMoe, post: 351621, member: 700 wrote: County surveyor??
There were no county surveyors here setting corners for entrymen, they did it themselves.
Why would it need to be a surveyor anyway, can't the landowners do it, cause if they couldn't then nothing worked.
Yeah, the PLSS was set up specifically the way it was so that landowners could do it; that's why Jefferson's original idea of the configuration was overruled.