The manual states it very clearly, the presumption is that the found corner is correct, the burden of proof to reject it is on the rejector not the acceptor. When you accept the existing corner, even for an interior section corner, you occupy the stronger position. The rejector needs to come up with reasons why, not the other way around.
MightyMoe, post: 432534, member: 700 wrote: The manual states it very clearly, the presumption is that the found corner is correct, the burden of proof to reject it is on the rejector not the acceptor. When you accept the existing corner, even for an interior section corner, you occupy the stronger position. The rejector needs to come up with reasons why, not the other way around.
Right, but that does not mean surveyors don't have a responsibility to reject a corner if a reason can be shown.
Just because two fences come together at a point does not necessarily make it a corner.
eapls2708, post: 432522, member: 589 wrote: You're looking at this with the benefit of the knowledge that there is no such thing as a perfect section and that the lines and monuments placed on the ground by the GLO never match the notes & plat in terms of dimensions and often are substantially discrepant.
Isn't that all the more reason to not expect a high level of technical correctness from the non-surveyor entrymen? If we know that the supposedly trained and qualified surveyors often couldn't measure worth a darn, how can we, or the government possibly have the audacity to expect a higher level of professional competence from the entrymen who had no expectation of full familiarity with GLO methods?
Why would a homesteader have any reason, going in, to think that the government surveyors blew it so bad that their map can't be trusted, requiring the untrained homesteader to completely resurvey the section to determine how far out of square it is , or what odd shape it might be? Shouldn't the homesteaders, those non-surveyors who by necessity had to try to do enough surveying to identify what they owned, have been able to rely on the official government plat given to them as a means of locating their land?
If they were required to identify the land themselves, relying on the correctness of the government survey provided to them, once they found the government corner monuments on their boundaries, and relying upon the government map provided to them and represented to them as accurate, and after establishing the interior corner(s) according to the distances and/or directions indicated on the supposedly accurate government map, shouldn't they have a right to be secure in their holdings even if some surveyor, probably decades later, comes along and finds significant discrepancies between the plat and the actual corners on the ground?
The system was set up to facilitate the orderly and peaceful transition of ownership from the government to private parties. If the corners placed on the ground for that system are subject to constant movement each time someone comes and makes a better measurement, that undermines the basic purpose of the system. That this was understood early on is evidenced by the portion of the land act of 1805 that declared that monuments set by government surveyors become the true positions of the fixed corners regardless of any errors in the measurements. Once the survey is officially accepted, placed well or poorly, the corners are fixed. That precludes anyone from moving the corners to where they "should have been" and effectively nullifies being able to apply any test of accuracy or adherence to prescribed methods after the fact. (2009, ??1-20n, p. 21)
That the interior corners were to be established by local surveyors, or by the entrymen themselves before the ready availability of qualified surveyors, is an integral part of the system. It doesn't extend only to the efforts of government surveyors (2009 ??3-132). But the difference is that the GLO did not deputize and issue instructions to the entrymen. Nor did they require a plat or have a mechanism to approve the corners set by local surveyors or entrymen.
If the government recognized that there would be errors found in their own surveyors' work that exceeded mandated standards, we can't then or now apply a higher standard to others who were tasked with establishing interior corners. The GLO rightly did not assume control or review authority over local surveyors or entrymen acting as their own surveyor for the establishment of protracted corners. But time showed that there had to be some manner of determining acceptability as some locally set corners clearly should have been rejected while the basic purpose of orderly and peaceful transfer remained intact.
Those standards were developed through the courts. It has nothing to do with precision or accuracy. The courts view the matters in the same way as other non-surveyors. It boils down to whether the interior corners were set with reference to exterior corners of that section, whether the person establishing them, if not carefully and fully following prescribed GLO procedure, made reasonable inferences from the records available to them and acted reasonably according to those inferences.
As for fractional sections and irregular sections, bear in mind that the GLO developed the rules for their own deputies over the course of many years through several Manuals before getting to the procedures prescribed today. If the surveyors making the rules for other trained surveyors were confused by these circumstances for many years, again, one must make even more allowance for the untrained who were required to establish their own corners.
When evaluating interior corners, we can't do it from the perspective of trained measurers and trained mathematicians. We must be able to set that aside and view it in the same light as a non-surveyor of average intelligence, armed with little more than the government map, your patent, a few 1/4 mile spools of fence wire, and if you're prepared a bit better than most, maybe a compass. From that perspective, how would you go about setting your corners. Don't forget to consider that as a non-surveyor of average intelligence, you have no training as to the prescribed method of establishing any interior corners.
Once you've found the evidence while keeping this perspective, go ahead and jump back to the trained measurer perspective and locate it all. When you start analyzing it, be ready to jump from one perspective to the other and back many times and in short order. Bottom line, if it was a reasonable attempt for a person with no survey or measurement training, and it's the original establishment of the corner, it's not the "property corner" with the true position of the aliquot corner being some distance away according to recent measurements. It is the true position of the designated aliquot corner (which is the property corner) regardless of the errors that exist in the measurements.
No one expects the entry man to be an expert measurer, if a an entryman in 1901 got the C1/4 a hundred feet from where it should be, that's good, but if the distance from 1/4 to section corner is 1000 feet short and the entryman measures 1/4 mile from the section corner on a compass bearing to establish his 1/16 good faith is lacking. There seems to be to much either/or in this discussion. Every corner needs to be evaluated on its own. To many surveyors screw things up by always or never accepting fence corners. If a fence corner is accepted, more than just a fence corner symbol is required on a plat. An explanation of why it is the corner is required. Otherwise the next surveyor will be required to come to his own conclusions.
OK. Here's a big part of the miscommunication we seem to be having... "Too many surveyors screw things up by always or never accepting fence corners."
Every time a thread gets started involving fences and boundary corners, quite a few get seem to interpret what I post (and others with similar opinion) as somehow advocating that the surveyor should always accept the fence corner and completely ignore the information the measurements bring to the problem.
Actually, I can almost entirely agree with your last post except that one part needs some qualification, or clarification.
"... but if the distance from 1/4 to section corner is 1000 feet short and the entryman measures 1/4 mile from the section corner on a compass bearing to establish his 1/16 good faith is lacking."
That depends. The magnitude of the difference in itself is of relatively little importance. If the section, by record according to the government survey is a regular section but in reality would be found to be 1000' too narrow (or too wide) due to poor surveying by the GLO deputy, then that establishment of the 1/16 at the end of a 1/4 mile roll of fence wire from the nearest 1/4 corner may still be a good faith attempt.
If on the other hand, the section was not a regular section, either fractional, a western tier, or a northern tier closing on a standard parallel, the GLO plat showed a 15 ch shortage (or overage), and that 1/16 was set 1/4 mile from the side of the section where the excess or deficiency was reported, then you are correct, to an extent. Good faith might still be present, resulting in a bona fide belief of having established correct boundaries. There would not be, however, a bona fide right to the corner established because the entryman would have failed to note that his patent was for a government lot of some odd size rather than a standard aliquot part, and would have failed to note the shortage (or excess) distance reported on the GLO Plat. A problem of misidentification of what was purchased.
Magnitude in itself is not conclusive evidence of the presence or absence of good faith in the attempt, but it is part of the full body of evidence. When you get into magnitudes that approach the width of the described parcel itself, you could be venturing into what the courts consider gross error. In what you described, if we assume a regular section rendered 1000' narrow (or 1000' wide) according to the monuments set by the GLO, then you also have to consider a few other potential facts:
- What other interior corners, if any had previously been established?
- By who?
- When?
- Were any of the previously established corners an adjacent 1/16 or the C 1/4?
- If so, is the terrain such, or would the occupation have been such that a reasonable person would notice the discrepancy?
- If so, then good faith probably is lacking and the fence location would not be a valid original establishment of the corner.
- If there was no reason for a reasonably intelligent non-surveyor to suspect a discrepancy in the record standard section, and it appears that the nearest GLO corners were used and, being unaware of the discrepancy, reasonable methods were used from the GLO corners, then good faith is most likely present and bona fide rights attached to the corner as established.
You're correct that there is a lot of "either/or" in this discussion. That is the nature of evaluating actions that took place several generations ago based on the evidence that remains of those actions. It's what we do as boundary retracement surveyors. It's just like detectives trying to determine what occurred at a crime scene, except that we typically are working glacially cold cases compared to criminal investigations where the actions occurred typically hours to weeks prior to the beginning of the investigation.
There's a very good reason why the initial answer to almost any survey question is "It depends."
eapls2708, post: 432350, member: 589 wrote: I'd bet that Brian has the same BLM Manual as you, and likely several official versions that you may not have. I'd also bet that he has read them more completely than most surveyors.
When most surveyors say they are familiar with the Manual, they mean that they were taught and remember how to break down a section, that is, they have familiarity with the concepts presented in the first roughly 2/3 of Chapter 3 of the current or the 1973 Manuals. This is the part they cover the most in the college programs, and it's the part most commonly or most heavily tested for the licensing exams.
The problem being, that relatively few surveyors get the opportunity to subdivide a section for the first time anymore, but most will be tasked with identifying existing boundaries within a section. Because of how most have been taught, a great many of them won't recognize the difference.
The surveyor who is identifying existing boundaries within a section, if he is going to have a working understanding of only a portion of the Manual, would be better off reading a very limited portion of Ch 3 (????99, 100, 131-137) and then jumping ahead to Chapters 5, 6, & 7.
Here are a couple of passages from the 2009 Manual that should have every surveyor who thinks that monuments purporting to mark particular interior corners should be accepted only if they are "reasonably close" to the calculated positions, and only if set by a licensed surveyor should take careful note of. They should cause you to rethink and reexamine your understanding of validly established corners. Similar statements from knowledgeable people or authoritative sources prior to the 2009 Manual caused me to rethink what I thought I knew.
When a protracted line is placed on the ground, the line becomes fully established, not before.
From the 2009 Manual:
??3-99: In the public land survey system a corner is fixed in position by operation of law. Corners marked in official surveys followed by use are fixed in position by monuments. Only a small portion of corners are marked on the ground in original surveys. Subdivision-of-section corners are generally not marked. Their positions are fixed on the plat by protraction. Their positions are fixed on the ground by the survey process of running (and marking) line between marked corners, and setting monuments.??3-137: The protracted position of the legal subdivision corner on the survey plat is merely the first step in fixing the position of a corner. The corner position is fixed by the running and marking of the lines.
A decision to set aside previously fixed local survey legal subdivision corners must be supported by evidence that goes beyond mere demonstration of technical error, reasonable discrepancies between former and new measurement, and less than strict adherence to restoration and subdivision rules. Were the Federal Government obliged to open the question as to the location of a particular tract or tracts over technical differences or reasonable discrepancies, controversies would constantly arise, and resurveys and readjudication would be interminable. The law gives these activities repose.
You seem to read his post as saying "surveyors should always just accept the old fence corners, regardless of what the math says." That's not at all what he said though. He said that a surveyor doing this sort of work must consider all of the evidence available to him and give serious consideration as to whether the existing fence corners best identify the true corner positions, and that quite often, given the full body of evidence and the actual guidance of the law, the locations of long existing fences comport with or are the best evidence.
Go back and read Dane Ince's post. Look for the answers to the who, what, when, and why of the fences. Sometimes a fence is just a fence, and sometimes it's the best evidence of the originally established, and thus true corner locations.
As long as boundaries need to be accurately identified, there will always be the need for a professional who can identify, understand, and interpret all of the evidence to make that identification. A fence may be evidence. A GIS tech will never be able to properly recognize and analyze all of the evidence that may indicate a boundary's true location, nor be able to recognize it from evidence which merely appears to identify that location.
Unless there has been a change by operation of law (i.e. prescription, a boundary line adjustment, or a boundary line agreement based on subjective uncertainty) their is nothing in the law that would allow for a property corner described as the C 1/4 to be anywhere other than at the C 1/4. While the surveyor should have the expertise to recognize evidence that suggests such an operation of law may have happened, he does not have the authority to adjudicate a result.
I wondered this for a while. It's obvious that your assumption is that "if that's what's taught, it must be right." That was my initial assumption as well. I was ticked when I discovered that reasonable assumption to be flat wrong.
My theory is that it largely began when civil engineering tacitly claimed surveying as a subset of that practice, the colleges & universities put survey programs under their schools of engineering, and professors who were CE's first and surveyors as afterthought became the teachers of surveying to new surveyors.
CEs are naturally very comfortable with numerical data and math. Almost all of them also have a natural aversion to law and to considering how real people (a completely separate demographic from CEs) might behave when establishing, describing, and agreeing upon actual boundaries. They have difficulty understanding that a boundary made physical is considered to be better evidence than the numerical data and expressions used to describe the boundary.
Most surveyors chose or fell into surveying because of a certain level of comfort using numerical data and may have fell into civil engineering but for a love of the outdoors, the opportunity to play with cool tech toys, and because the idea of spending 40 hours a week stuck in an office with all those CE eggheads was something to consider whether it could be endured for a full career rather than something to get excited about.
Numbers people who are taught by numbers people with an aversion to the non-numerical aspects of surveying, and the egos to think that if they don't understand a thing, it doesn't need to be understood, will naturally think that the practice of surveying is all about measuring and working with numbers.
I started my college career when many of the survey instructors were still CEs. Now we have ABET. Many of the CEs have grudgingly let go of surveying, to an extent. Most CE degree programs have one very basic survey class or none at all. Most survey instructors are no longer licensed CEs. But ABET is still very much an engineering accrediting program that still tries to keep surveying under the engineering umbrella. Among their requirements is that a certain number of the faculty must have advanced degrees. Missing from their requirements is any minimum amount of experience in the subjects taught or a requirement that they be licensed in the discipline they teach.
Most college professors now have some manner of surveying degree and a related MS and/or PhD. Most are heavy on education that has prepared them to work with and manipulate numerical data, but are very light on practical application, particularly in something as seemingly mundane as boundary surveying.
For the most part, they simply don't understand the legal side or the human side of locating boundaries but understand numbers and mathematical processes very well. They teach what they know, misinterpret and misteach a few other principles that they find in common text books, and never question they're own limited understanding of the subject. Thereby turning out another generation of miseducated surveyors who will hopefully someday find that they need to reeducate themselves on certain practical applications, particularly in boundary, and then follow through and do so.
Many surveyors on this forum have done and continue to do just that.
Bushwhacker, post: 434890, member: 10727 wrote:
I seem to have stepped on some toes but I would like to say I never said not to accept a fence corner as the best evidence just that it as any other corner must stand on the record and the evidence. As for calling a fence corner at the C/4 a property corner but not the center of Section I have seen that on numerous occasions by government agencies and private surveyors alike and I believe it is sometimes the best answer to protect the rights of the land owners. As for my reading of the BLM Manuel I think I have read it pretty well as I have been a contractor for three different government agencies. It is not the Manuel and what it says but how we the individual Surveyors interpret it. We all need to be careful of not taking some portion and rigidly holding it or trying to make it fit a circumstance to make our job easier because the 1 certainty of surveying is there are no easy solutions.
I haven't read the whole thread. Also I'm from Utah and Utah probably has one of the most occupation and time makes a boundary in the nation, but even here most don't follow the Utah Supreme court.
I'm always cognizant of where the section lines are or evidence points one too. But after all the decades where the sections already been "surveyed. fenced and long time occupied" I believe its more important to locate the boundaries established other than be looking to breakdown the sections or fix all the apparent "improper" stuff. Once in a while you have a blank slate and the procedures apply. In long occupied and developed areas new section breakdown leads to mass chaos, other rules of boundary law apply. Section lines never change but boundaries get established by humans actions and acceptance. The deed may indicate a section line and the boundary may be different. The deeds says and the law says may be a hard concept to get your head around.
Bushwhacker, post: 434895, member: 10727 wrote: I seem to have stepped on some toes but I would like to say I never said not to accept a fence corner as the best evidence just that it as any other corner must stand on the record and the evidence. As for calling a fence corner at the C/4 a property corner but not the center of Section I have seen that on numerous occasions by government agencies and private surveyors alike and I believe it is sometimes the best answer to protect the rights of the land owners. As for my reading of the BLM Manuel I think I have read it pretty well as I have been a contractor for three different government agencies. It is not the Manuel and what it says but how we the individual Surveyors interpret it. We all need to be careful of not taking some portion and rigidly holding it or trying to make it fit a circumstance to make our job easier because the 1 certainty of surveying is there are no easy solutions.
Rigidly holding a particular portion of the manual is never a good decision. There is no part of the manual, unless you are preforming an official original survey, that claims to perpetrate a hard and fast rule.
billvhill, post: 432076, member: 8398 wrote: .... He accepted a fence line for the W1/16 line of the NW1/4 which is my clients west boundary, there is also an old fence along both the N-S and the E-W center of section lines. He sets a monument at the center of section which is my clients SE corner and does not use the fence but the intersections of the 1/4 corners.
I would hope that, if he is accepting a fence corner as the West 1/16th corner, he would use that corner to help determine the intersection of lines. Also one should see if there are other 1/16th corners they are accepting along the other Center-of-Section lines to intersect to the Center1/4 corner. I am just suggesting that if you are accepting a found monument along a line, that monument should be used to help set missing corners. (of course I am saying all of this under the assumption that you have reason to reject the intersection of fences @ the Center-1/4)
LRDay, post: 434901, member: 571 wrote: section lines never change but boundaries get established by humans actions and acceptance. The deed may indicate a section line and the boundary may be different. The deeds says and the law says may be a hard concept to get your head around.
This is a hard concept for some people.
