> I would be curious how a judge would interpret the defense of a survey being "I wanted to keep the peace, so I set it at the end of the fence ".
Probably only slightly better interpretation than "The deed said xxxxx ft, so that is what I held, the long term occupation and good faith efforts be damned."
p.s. I now of no one using "keeping the peace" as their only evidence. However, I can show you scores of plats that only held the exact deed bearings and distances over long term establishment by good faith efforts.
Some of your points are valid, however one statement "Had you got your hands on an old survey map or drawing which illustrates a fence and tree line, then perhaps that would be a reason to stray" is troublesome. Yes, old survey maps or drawings are excellent evidence of a good faith effort, but they ARE NOT REQUIRED in order to have a good faith effort. Section 6-35 of the 2009 Manual makes this crystal clear.
The case law has a checkered history on this issue, at best. Opinions I have read range from support for a policy favoring built boundaries to strict adherence to the Deed description. Evidence of a Survey being the source of the established boundary has been held to be evidence of good faith.
I think Mr. Tangent's analysis is a good one and realistic in light of the Judicial possibilities.
You are absolutely correct, I've never, ever seen the BLM during a resurvey honor old 1/16th lines established by the entryman. I have, however, seen many times, BLM resurveys that set a 1/16 corner near an old (we are talking 100+ years old) fence corner but not at it. I have also seen a few 1/16 corner monuments accepted but only ones conforming to a math solution that is within a few links.
I'm not telling Cow to accept a fence line for the 1/16, no doubt he he has this survey well under control, but I'm just bringing up the reasons to look at it;-)
My point is being proven: In 6-35 I note this is the first paragraph in a section titled Collateral Evidence of Obliterated Corners. (good faith location). Cow's clients have no such obliteration to contend with because the boundary was (presumably) never staked, therefore nothing is missing. The fence become testimony to something that never existed. Furthermore, BLM is telling you how to reestablish a position, not how to establish it. Reading on in 6-37 I note: "The surveyor should neither rigidly apply the rules of restoration of lost corners or the rules for subdivision of sections without regard to effect on location of improvements nor accept the position of improvements without question regardless of their relation or irrelation to existing evidence of the original survey and the description contained in the entry." Pulling one sentence from one paragraph from one chapter is not adequate to sustain tossing a perfectly good deed. This whole chapter tells you to look at all factors and it tells you when to begin considering good faith, but no where does it tell you to leave the (monumented) original survey and go hang your hat on a fence of unknown origin. 6-38 of this same section tells us if Good Faith (relying on fence of unknown origin) doesn't seem to fit the original survey, perhaps one should consider correcting conveyance docs or a quiet title action. Keep in mind, BLM has this manual to, in part, reestablish original corners back where they were, where they were intended to be, not where it is most convenient for home owners. IBLA is all about dealing with folks who feel they are adversely affected by reestablished corners. Guess what? too bad for them in many cases, IF BLM performed defensible work. Certainly BLM does substantial research to reestablish a position but their goal is not making everyone happy, the goal is to put it back where it belongs.
You might note that this discussion is chartering further away from the original question, which again, makes my point that quoting snippets of an otherwise reliable source to defend a point is not prudent.
Next, I do not imply that a map must be in hand to consider good faith. My statement was in context giving reason for interpreting a deed. In fact, had such a map arisen from the research, there would be little need for good faith as that map would step right into the category of direct and substantive evidence of the boundary.
You discuss deeds for plats, and how it is unwise to hold hard numbers and measurements. These do not apply to my discussion or cow's client. I concur, old plats laid out 660x660 are certainly up for review and certainly merit field investigation of existing conditions. Holding hard numbers in these cases will most certainly result in failure. Do not confuse your example with an aliquot one. N 1/2 of the E 1/2 will put us all in the same (substantive) place assuming we measure well. There is no questioning these numbers. If you want to add double corners, or lost or obliterated corners to the equation then certainly, its time to look at good faith to best restore that original corner position, from which you can now survey a perfectly good aliquot description. The beauty of the PLSS is its simplicity. Why bash it all to hell by treating it like a metes/bounds because someone built a fence?
We all want surveying to be a magical thing because it is far more interesting when we get to interpret and consider. But these cases are far between. And they should be. A good description is a surveyor's best friend and we are the only ones able to lay it on the ground. If Cow's client wanted his fence to be the boundary, he doesn't need a surveyor to do this.
Do not misinterpret my opinion and put me in the class of 'measure and run' surveyors. Believe me, I see enough of that crap screwing up the world. On the other hand, fence-line surveying is seldom serving the public either.
My last comment is regarding your first statement which is simply wrong. "keeping the peace" as a defense for marking a boundary will certainly fail far more judicial tests than retracing a perfectly good deed.
I don't know the law in Kansas. But from a Utah law perspective Cow's problem is not one of interpretation of the deed or if the line is in the deed’s right place. Cow states that the occupation is the historically claimed line and that the owners are good with it. So from this viewpoint the boundary is established and any attempt to move it would be just that, trying to move an established boundary. The surveyor would be attempting to move and reestablish a boundary without any authority to do so. The surveyor wouldn't be doing any retracement, he/she would be setting down a completely new line (never put on the ground – retacement?) the hated adjudication of the boundary. Utah common law is that any line treated as a boundary by both landowners for twenty years becomes a line by acquiescence. Utah law is more liberal (rational) in this respect than most all other states. I think Utah's law is good in this respect as landowners here been doing their own thing for 150 years. The landowners under their authority to establish boundaries have done that and compared to the very poor deeds they made up it doesn't always work out that well (not very pretty). If the landowners want to correct the history they can agree to that and make it conform to the surveyor interpretation of the deed and some do that. Some want to correct the record to the occupation and some don't want do do anything, just leave them alone.
If surveyors want respect they need to respect landowners. Don't infringe on their rights and authority over their boundaries.
that is all well and good in Utah, but as you stated, your laws are very different than most PLSS states, and from Cow's follow-up posts, I don't think Kansas is like-minded. Even so, what happens before the 20yr sunset? do you still hold on to the fence as gospel?
In no states that I know of, does the surveyor have the authority to move or establish lines. These tasks are reserved for the courts and the abutting owners. What we are tasked with, is providing these entities facts so they may better decide a course of action and resolution. Telling someone a fence is a boundary which obviously strays from a perfectly defensible deed/written conveyance does not seem to fit this bill. In Cow's case, the facts appear to be: 1) the boundary purchased and conveyed is expressed clearly in the deed; 2) there is a fence and occupation which may imply ownership interests different from that deed.
A truth often appears wherein a deed or plat or description is not so easily followed, defined, or interpreted. This is where we get to step up to the plate and express our competency through solid research and analysis of testimony, and evidence both on the ground and of record and/or historic print.
I would ask this of someone who is so eager to follow a fence (outside of Utah): What if that boundary went through the middle of an established home and the abutting lawns and vegetation provide little, or unclear evidence of ownership? Would you simply move that line over to the coded setback and call it a day? Or would you make notes, then inform the client of your findings? Perhaps you might even hold off setting anything because you know this situation demands legal resolution and new lines. I would wager few would be so bold as to call out a new line based on the misplacement of the home. We can chalk this up to a low-ball builder who refused to pay for a survey. Yet, finding a fence that kinda sorta looks like it might run in the same general direction of a nearby boundary and suddenly we are all ready to drive pipes in every 50' along its path even though it may very well have been erected by that same cheap builder.
From my perspective, accepting a fence of unknown origin or intent over a perfectly defensible deed looks exactly like an attempt to infringe on at least one homeowner's rights and authority over their boundaries.
I don't just jump on fences. I try to follow the law and find the established boundary.
You at least should read this Utah case.