I skimmed the case without reading it very closely.
It looks like they accepted the C1/4, CW1/16 and the SW1/16 based on some old County Surveyor ties to the original GLO monuments but they don't go into a lot of detail about what they were (presumably the County Surveyor notes gave enough information to verify he actually found the correct monument). They go into a lot of detail about the W1/16 because that is the one in dispute. The old County Surveyor ties are to a stone or rock (the original was a wood post) and the supposed bearing trees don't fit their record relationship by 50'. The fence is evidence of itself (not necessarily built on the line, we can't tell and it is only 40± years old). BLM and IBLA don't have much choice, the evidence doesn't support the land owner's preferred W1/16 corner.
They decided this on the physical evidence available. I don't think they have much choice to do differently in this case. It is not a fence versus monument debate topic case; it is simply a good analysis of the evidence.
Bear in mind if this was a private landowner vs private landowner (no Federal or Indian land involved) then the local State court may see this differently.
Nothing here sets precedent.
any answers?
Ed,
You really sound like a snot nosed kid, but thanks anyway for posting the plat.
Dave
Good point that it doesn't extrapolate to private property disputes that would never end up at IBLA, but are subject to State Law and civil court proceedings and precedent. However, in states that adopt the Manual as State Law, would the line still end up going through Hillstrom's buildings? If the IBLA says that the stone is not the 1/16 corner by Manual rules, it wouldn't be the corner in states that adopt the Manual either, would it?
Is acquiescence just another word for bona fide belief?
You really sound like a snot nosed kid, but thanks anyway for posting the plat.
Well obviously you need someone to do your research for you.
Dave
It would be whatever hizz-honor the Judge says 😉
I think they didn't accept the stone because it isn't the original Byles monument. They looked for the W1/16 corner set by Byers so that tells me if they had found it they would've used it even if it didn't fit perfect math.
They did hold the other 3 Byles subdivision monuments they found and I assume they weren't set perfectly either yet they hold them.
In this case the subdivision of section monuments were set by the GLO deputy so we don't have to argue about the BLM holding or not holding had they been set by, say, the County Surveyor.
Edit-like I said I didn't read the case very thoroughly so if I have any misimpressions feel free to say so. Don't worry I'm not running rampant doing IBLA surveys or anything like that. This is just water-cooler stuff; not a masterpiece of world literature or anything like that.
WTF is this?
> You really sound like a snot nosed kid, but thanks anyway for posting the plat.
>
>
> Well obviously you need someone to do your research for you.
Ed thanks for posting the plat, but you can keep the sarcasm.
Dave
This really isn't that different from other IBLA decisions I have read.
Typically if you have solid evidence of the corner that BLM missed (no one is perfect) such as the marked post then they will fix their Survey meaning you wouldn't need to go to IBLA.
This one is similar to others I have read where the evidence is not very compelling (stump holes or trees that fit a pattern or a rock but not a post). BLM doesn't use the evidence because it isn't persuasive. So it gets appealed to IBLA who sees the evidence isn't persuasive (for example, not the scribed blaze or the marked stone but simply some shadow of evidence that may or may not be indicative of the corner). Since the evidence isn't persuasive IBLA has to rule in favor of BLM.
Dave
At the intersection between private and federal land, state law doesn't control. There is no acquiescence to consider as no agreement can be made between a private owner and the sovereign.
And further acquiescence can't move an original survey line. Acquiescence can only establish an uncertain boundary between private landowners under state law.
Properly so, implied agreement was not even argued in the IBLA decision, it simply just doesn't apply.
Yeah and I enjoyed the discussion about bona fide rights. I used to get beat up on the old RPLS board when I tried to argue that bona fide rights (in BLM Manual terms) has nothing to do with landowner agreements. Bona fide rights is the reliance on the original survey, not on subsequent landowner agreements. I never have thought that you could argue acquiescence as a bona fide right attached to the original GLO survey. Its a different animal entirely.
Dave
I think we know all that. We are just shooting the bull, you know what if this or what if that.
Dave
Yeah, it kinda sucks. Build your little world straddle of a federal boundary line and there is just not much you can do other than try to buy the land.
Out in the private lands, all sorts of other things might come into play depending on the time and circumstances.
Ed or whoever you are?
Where in this thread have I mentioned the Dykes case?
With only 3 former posts, you do know about me and the Dykes case.
You have successfully made a fool of yourself.
Come back with your real name and contribute something useful to the thread.
Really!
Keith
:good:
Know what I mean?
7 postings:
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 19:28 (Land Surveying)
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 19:18 (Land Surveying)
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 19:12 (Land Surveying)
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 19:11 (Land Surveying)
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 17:56 (Land Surveying)
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 17:51 (Land Surveying)
Recent IBLA ruling - Hillstrom - Ed Stahle, 2011-03-23, 16:46 (Land Surveying)
Dependent Resurvey, Subdivision of Survey and Survey
Dependent Resurvey, Subdivision of Survey and Survey
Thanks for posting the new survey/resurvey plat.
Keith
Know what I mean?
Typical narcassistic web rat:
"I post more than you do nah nah"
Dependent Resurvey, Subdivision of Survey and Survey
This decision by the IBLA was, in my opinion correct, especially when one considers several points:
1) As stated in the opinion "BLM denied the protest because Hillstrom had not shown gross error or fraud in the 2000 Dependent Resurvey’s placement of the W-1/16 section corner, which determines the boundary between Hillstrom’s fee land and Indian trust land. Because Hillstrom has failed to meet his burden of demonstrating by a preponderance of the evidence that the resurvey was grossly erroneous or fraudulent, and the record shows that the survey conformed to the requirements of the Manual of Surveying Instructions for the Survey of Public Lands, 1973 (1973 Survey Manual), we affirm BLM’s decision." The Burden of proof in challenging the BLM's location of the corner is the "preponderance of the evidence", whereas the BLM, or other surveyor, in making the original determination of lost or obliterated is the "best available evidence" or "substantial evidence". Hillstrom had a big hill to climb. "Mere differences of opinion or speculaton, however, do not satisify this burden."
2) In evaluating the evidence of Hillstroms location for the w1/16 corner, the BLM said "Unlike the three previous corners, there is no reference to recovered original evidence of the corner." and "The original corner was monumented with a wood post and witnessed by two oak bearing trees. There is no remaining physical evidence of the original corner post, bearing trees or stone reported in the County Road Records."
3) As to bona fide rights, the opinion states "a bona fide right within the meaning of 43 U.S.C. § 772 (2006) must be based on good faith reliance on evidence of the original survey. Tracy V. Rylee, 174 IBLA at 251;"
4) Three mile method, or not, the laws of resurvey are the same.
The IBLA erred in substituting the 1973 manual requirements to overrule: Hillstrom further argued that BLM had failed to perform the proper research during the dependent resurvey because it had neglect d to consult appropriate county records and to question landowners about corner locations. Hillstrom asserted that “his” corner position “has the collateral evidence of fence remains (North, East, South and West), along with tree lines, ancient records in the form of maps and survey field notes depicting the location of the corner in relation to other GLO corners and roads, and expert testimony in the form of the County Engineer and the Secretary of the Interior approval of the plans.” (from p. 11)
The acceptance by the Secretary of the Interior should have precluded the reliance on the procedural rules in the 1973 manual.
The major flaw is the BLM's reliance on the publication of the resurvey in the Fed. Register without direct notice to each entryman whose property would have been adversely affected prior to that notice.
The 'rules of procedure' and evidence requirements should not have applied.
Richard Schaut
