This question was prompted by the discussion of the Wisconsin Supreme Court case, but may not fit the facts of that case, so let's not mix that into the same thread.
Hypothetically, suppose a road had been relied on as the boundary between two properties which were described as the N 1/2 sec 9 and NW 1/4 sec 10.
A surveyor finds controvertible evidence of the original GLO section corner (NE sec 9) significantly west of the road intersection and the eastern property owner wants the extra slice of land. A lawsuit results in the court declaring the road to be the proper boundary between the properties, despite the found corner. They don't explicitly say that's the section line, just that it is the property boundary.
You are hired to divide the N 1/2 sec 9 into quarter sections. There is no evidence of the north Q corner of the section. No road, no N-S fence, no pins, no stone found after a thorough search. Nothing to do but proportion it.
A) Do you use the found NE section corner or the road intersection to proportion in the N quarter corner?
B) Instead of subdividing the N 1/2 section for a single owner, you are staking the boundary between two different long time owners of NE 1/4 and NW 1/4 who have no fence between them and there is no cropping line to follow. Is your answer any different than for a single owner?
No, the courts determined ownership to be the road, apparently occupation and use also used the road, they did not override the GLO positions of the original lines or monuments, so a section breakdown uses the best evidence of the original lines. You don't extend an anomaly any further than where it is, the anomaly here is the ownership line, not the section line. Using the courts opinion for ownership and then assuming it represented a new section line would disrupt and destroy the harmony in 4 sections.
jud
I don't know how you could have any other answer. You made it clear that the courts did not claim to determine the section line.
I have a different question. What if the court did call the section corner to be at the centerline of the road? Where would the SW Corner of section 3/SE Corner of Section 4 fall?
I would want to contend that the corners for any other sections would be different based on original evidence but that the NE corner of section 9/NW corner of section 10 are the corners for those disputed properties only. But I can't cite any cases or say with certainty.
A. Hold the found monument
B. You are surveying for probably many owners in Section 4 and 9 when you monument the 1/4 corner common to both sections not just the N1/2 of Section 9. Hold the found monument. Patents were issued based on the GLO plat for that township and the plat needs to be protected, and is represented on the ground by the original corners.
Now suppose the power line along the west line of the road was installed 4 years ago and the power co. acquired an easement from the owner to the east of the road because he was the owner of record for the NW1/4. Does the power co. have a valid easement? Also suppose the record mineral ownership for the NW1/4 of Section 10 is completely owned by the owner to the east of the road. Does he have title to the minerals west of the road and east of the Section line? Always remember you are not just surveying surface ownership when you put a corner in the ground.
That's what I thought, but wasn't sure it would be unanimous.
I was told by a surveyor from Beloit that a Wisconsin surveyor was held liable for accepting the original corner stone at the section corner. The court held he should have used an occupation monument near the centerline intersection. Harlan Onsrud, who I do not know, has a very interesting book on Wisconsin boundary law cases.
Must be much more to the story, perhaps, that the section was subdivided by the occupation mark and the original had not been used or even recovered until lines were established using other evidence. Always or never are words we should never use, there seems to always be an exception to the norm.
jud
If federal land was involved, the BLM would, (or should), use tract segregation and document reformation to protect the bona fide rights of the land owners.
When privately owned land is involved, correction of the record description in a manner that complies with applicable state statutes is the process used to prevent future 'confusion'.
Read the text of Curtis Brown's 1979 talk on surveyor's liability to unwritten rights, remember, he said:
In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years there have been cases, and one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. The purpose of this paper is to re-examine what a surveyor should do in the event title has been altered by a legal transfer of title by prolonged possession.
Richard Schaut
I think the rule of thumb is: corners by "establishment" are the corners, but they are not to be used in apportionment.