I'm going to go out on a limb and observe that probably the most problematic areas to resurvey in rural Texas are those where the original surveys show very large systematic errors in chaining over many adjoining surveys made at the same time.
I've been working with a series of about twenty connected surveys made in 1874 by a fellow named Jacob Kuechler who evidently owned a 10-vara chain that was really a 10-yard chain. Otherwise, I'm challenged to explain why his survey appears to have averaged about 2065 varas (5736 ft.) per nominal mile, about 456 ft. excess. His passing calls on creeks and other features, as well as resurveys made within a couple of decades of his original work all reveal that the excess in chainage wasn't confined to just one particular line but was systematic in nature.
I've seen surveyors from that same period whose nominal miles averaged 5458 ft., but those now seem tame by comparison.
While that is certainly perplexing it appears you have found a "common" error for which a correction can be established. What has driven me "up the wall" is when a surveyor from the past never slope chained. Therefore his errors are not constant and change from line to line.
Andy
Kent
I've noted in my little corner of the world, that many of the Mexican grants in the Southwest part of the county all seem to have a vara equal to 3 feet
Kent
I have been told there are a whole lot of different varas - perhaps as many as 20-30 have been recognized.
The generally accepted method of chaining was to chain as level as possible. So on flat or moderately sloping ground (5' in 33') the chainmen would chain pretty close to level. Anything steeper than that they would get as close as possible to being level but would not make any correction beyond that. And anything really steep (like over a cliff) they would approximate.
Difficult?
I'd love to deal with simply a systematic issue.
You ought to come out west to CA if you really want to discuss difficult surveys.
Try retracing N.L. Berdan or Baker the Faker in the rugged southern Cascade range.
Even the pre-Benson era of the Dyer and Ingalls brothers and William Magee can keep one up nights scratching ones head.
I guess everything just seems bigger in Texas.
Dave
The Texas Vara used in the cordell was to be 33 1/3 inches even under Spanish and Mexican rule. It is true that different states standardized the vara at different lengths, but as early, in Texas, as 1836, the vara was standardized at 33 1/3 inches as best to keep with what had already been done, development wise.
Here is another issue that is at play. SINCE Kent has PROVEN that the vara was long (really long in his case) then there are state issues that now (or should) be considered. In Texas, the State only granted the acreage on the face of the patent, which seems at odds with Stafford vs. King, which states that the individual must retrace the footsteps. So, the compromise (if you could call it that) was that the EXCESS in the grant was then owned, undivided, between the landowner and the State of Texas. The vehicle for clearing this up, in Texas, is called a Deed of Acquittance, which ultimately is the final release for the excess acreage, from the State, to the landowners. They are extremely time consuming, painful, and irritating. In fact, they are so problematic, that the only time one sees them being done now, is when minerals are at play.
Which brings up a whole other point. Kent probably doesn't have a 30' stream running through his tracts, but in Mexican and Spanish grants, perennial streams and roads were retained by the sovereign. So, in those cases where you have excess acreage in a grant (Mexican or Spanish) and perennial streams (they need not be 30') then the state owns the water and an undivided interest in the land (and minerals). Couple that with the fact that many of the Mexican grants in my home county are bisected by the El Camino Real (The Kings Highway) then you have yet another state owned section of land, inside the grant, by virtue of the Siete Partidas (The Seven Parts).
The other INTERESTING thing is that the burden of proof is upon the state to prove the excess in the grant and then show how much the overage is, but, and I had a state employee tell me this, they drag their feet. In fact, on the perennial streams, for O&G work, they will just call the operator and tell them they owe the State for x acres due to the perennial stream without ever having surveyed this (I've actually been witness to this) and say that a stream of 10' in width is 200' wide based on quad sheets.
Then the LSLS's have to get involved.
> I'm going to go out on a limb and observe that probably the most problematic areas to resurvey in rural Texas are those where the original surveys show very large systematic errors in chaining over many adjoining surveys made at the same time.
>
> I've been working with a series of about twenty connected surveys made in 1874 by a fellow named Jacob Kuechler who evidently owned a 10-vara chain that was really a 10-yard chain. Otherwise, I'm challenged to explain why his survey appears to have averaged about 2065 varas (5736 ft.) per nominal mile, about 456 ft. excess. His passing calls on creeks and other features, as well as resurveys made within a couple of decades of his original work all reveal that the excess in chainage wasn't confined to just one particular line but was systematic in nature.
>
> I've seen surveyors from that same period whose nominal miles averaged 5458 ft., but those now seem tame by comparison.
Now that you have established the surveys run by this Kuechler fellow were grossly erroneous, it sounds like you have your work cut out for you now. If a surveyor in Texas of all places can't get the correct length for a vara, he has no business surveying, and anything he did must be considered grossly erroneous because the landowners deserve no less than the exact amount of land, bounded by the descriptions in their valid deeds, that they purchased.
putting on the popcorn and pulling up a chair....
this should be a great discussion! 🙂
putting on the popcorn and pulling up a chair....
I am just curious why Kent determined in a previous discussion, 30 ft in a 1/2 mile in Oklahoma was grossly erroneous and over 400 feet in a mile in Texas isn't.
vara
vara [?v??r?]
n
(Mathematics & Measurements / Units) a unit of length used in Spain, Portugal, and South America and having different values in different localities, usually between 32 and 43 inches (about 80 to 108 centimetres)
[via Spanish from Latin: wooden trestle, from v?rus crooked]
Collins English Dictionary – Complete and Unabridged © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003
Dave
I'm not looking to argue with a Texan about the length of a Vara (I accept 33 1/3 inch after 1836), but the reason they needed to standardize was because there were a lot floating around.
Varas have been found to vary from 81cm to 109cm world wide. The California Vara was 33 inches. etc etc.
I guess I would have to ask in response to your statements about excess - if the survey was done prior to 1836 would these rules of excess apply? Or would you just have to assume that the Vara used on that occasion was valid for what it was at that time?
putting on the popcorn and pulling up a chair....
Because Texans are never wrong and those from OK are always wrong!;-)
Dave
> I guess I would have to ask in response to your statements about excess - if the survey was done prior to 1836 would these rules of excess apply?
Actually, Dave, there is quite a bit less to unpatented excess acreage than Kris's account suggests. In the case of Spanish and Mexican grants, that definitely is true because the grantee was put into possession by the agents of the crown or government, repectively, of land within definite, marked boundaries. Part of the delivery of title was to walk the boundaries and to perform various incidents of possession in livery of seisen.
[sarcasm]can't you just slap a grid/ground sort of conversion factor on the map and go get some lunch??[/sarcasm]
Foster v. Duval County Ranch Co. - Excess Acreage
> In Texas, the State only granted the acreage on the face of the patent, which seems at odds with Stafford vs. King, which states that the individual must retrace the footsteps. So, the compromise (if you could call it that) was that the EXCESS in the grant was then owned, undivided, between the landowner and the State of Texas. The vehicle for clearing this up, in Texas, is called a Deed of Acquittance, which ultimately is the final release for the excess acreage, from the State, to the landowners. They are extremely time consuming, painful, and irritating. In fact, they are so problematic, that the only time one sees them being done now, is when minerals are at play.
Actually, what you've just given isn't a good statement of the law in Texas. The Vacancy Act of 1939 provided in Section 4 (I believe it was) that an individual owning a titled or patented land grant in which there was more acreage than that stated in the title or patent could apply to purchase the excess acres from the State. This was originally intended as a protection from vacancy hunters and the provisions of the law are permissive, not mandatory.
That same part of the Vacancy Act presently remains in force as Section 51.246 of the Natural Resources Code
Sec. 51.246. ACQUISITION OF DEED OF ACQUITTANCE TO EXCESS ACREAGE. (a) If the area of a tract of land that is titled or patented exceeds the quantity provided in the title or patent and if under the existing law the title to all or a part of the tract may be affected by the existence of the excess acreage, the person who owns the survey or portion of the survey or has an interest in it may pay for the total excess acreage in the survey or the total excess in a given tract out of the patented or titled survey at the price fixed by the board.(b) Any person who owns an interest in a titled or patented survey or any portion of a titled or patented survey in which excess acreage is located and who desires to pay for the excess acreage shall file with the commissioner a request for a determination of market value by an appraiser with corrected field notes in the form provided by law, together with a sworn statement of facts relating to his right to purchase and other evidence of his right to purchase which may be required by the commissioner. The corrected field notes shall describe the patented tract, and if purchasing excess in a portion of a tract, shall include a description of the portion in which the applicant is making application to purchase excess.(c) If it appears that excess acreage actually exists and that the applicant is entitled to obtain it under the law, the commissioner shall execute a deed of acquittance covering the land in the name of the original patentee or his assignees with a mineral reservation or with no mineral reservation accordingly as may have been the case when the survey was titled or patented.(d) The transfer shall inure distributively to the benefit of the lawful owners of the land in proportion to their holdings.
Acts 1977, 65th Leg., p. 2436, ch. 871, art. I, Sec. 1, eff. Sept. 1, 1977. Amended by Acts 2003, 78th Leg., ch. 280, Sec. 26, eff. June 18, 2003.
Texas courts have interpreted what this actually means in :
Foster v. Duval County Ranch Co. (260 S.W.2d 102, 107)
Cook v. Winter (207 S.W.2d 145, 147)
Cockerell v. Taylor County (814 S.W.2d 892)
The landmark decision was in Foster v. Duval County Ranch Co. in which the court the court held that the nature of excess acreage in a patented survey was such that :
1) it had been segregated from the public domain (i.e. it could not be treated as a vacancy),
2) title to the land had passed out of the State (a tract of land containing excess acreage was not exempt from the statutes of limitation on adverse possess by reason of some interest owned by the State of Texas),
3) the State could still collect money for the excess if the owner wished to apply for a deed of acquittance,
In the Foster case, the court noted:
"We overrule, as did the trial court, appellants' point that the State had not divested itself of title to the excess lands. This was not a vacancy suit nor a claim against the State. Survey 200 was surveyed by French, and later patented to appellants' predecessors and was segregated, including its excess, from the public domain. The State divested itself of these lands even though the State could still collect for the extra lands in the surveys. That excess lands are unsold lands that remain a part of the public domain was unsuccessfully urged in Cook v. Winter, Tex.Civ.App., 207 S.W.2d 145, 147. The limitation claim of the adjoining survey owner was there upheld as to excess lands as against the contention that excess lands did not pass out of the State until the issuance of a deed of acquittance."
Basically, what it would appear to boil down to is that there is no affirmative obligation of a landowner to purchase unpatented excess acreage from the State. That excess acreage is land to which the State has passed title in the sense that any any other land sold by it has. Even though the original land grant may not have been by sale, a survey containing excess is analogous in status to sold land that hasn't been completely paid for. In this case, however, there is no means I'm aware of by which the State might recover any part of the land conveyed by patent in the event that the landowner decides not to exercise his right to purchase the excess acres.
> Now that you have established the surveys run by this Kuechler fellow were grossly erroneous, it sounds like you have your work cut out for you now.
The fact that errors in measurement were made in the original surveys described in the field notes upon which patent was issued doesn't invalidate the patent. The question is one of retracing the original surveyor who prepared those field notes and finding his footsteps.
In this case it is an interesting problem because not all of the lines described by Kuechler in his field notes will contain excess. In the case of the surveys that were made by running only one side and locating the other three on paper, the calls of 1900 varas on the protracted sidelines running from the monumented baseline determine the position of the survey on the ground and will hold if there was nothing else marked that would alter the record call. It isn't just a matter of applying a uniform scale factor.
Kuechler's chaining in 1874 hardly appears to be perfectly consistent, but knowing the average value of his excess allows a person to actually get in the vicinity of where he marked a corner to see what, if anything remains.
Dave
> > I guess I would have to ask in response to your statements about excess - if the survey was done prior to 1836 would these rules of excess apply?
>
> Actually, Dave, there is quite a bit less to unpatented excess acreage than Kris's account suggests. In the case of Spanish and Mexican grants, that definitely is true because the grantee was put into possession by the agents of the crown or government, repectively, of land within definite, marked boundaries. Part of the delivery of title was to walk the boundaries and to perform various incidents of possession in livery of seisen.
You're exactly right, until the state wants their due on the excess acreage. We've had this argument before and I told you then that's what the state was doing and their stance.
If the grant is in excess, the state owns the excess land undivided. The state OWNS the perennial streams in Mexican grants, UNLESS the grant is deficient (I've never seen one) and then the owner can make up their acreage in the creek (begin to).
Vacancies and Deeds of Acquittance are PITAS.
putting on the popcorn and pulling up a chair....
> I am just curious why Kent determined in a previous discussion, 30 ft in a 1/2 mile in Oklahoma was grossly erroneous and over 400 feet in a mile in Texas isn't.
[sarcasm]
Maybe if you Idahoanians could grow a horse bigger than yourselves you'd know the answer to that question[/sarcasm]
Foster v. Duval County Ranch Co. - Excess Acreage
I get that you go to court a lot. You don't work in the O&G industry. The state wants their cut to the excess acreage within the grant.
Quote ALL the case law you want, and you're still WRONG on this one with respect to the minerals.