Paden's Hand
> The USA is not a party.
But if the USA conveyed the various 1/4 sections by patent describing the land by reference to the original government subdivision, that is how the respective rights of the adjoining owners originated. Presumably, there were 1/4 corners marked on all lines of the section at the time the land left USA, so one can't say that the lines were somehow never known. I mean, running a picket line from 1/4 corner to 1/4 corner over a mile of land that looks like most of Oklahoma does wouldn't strike me as some remarkable challenge.
What I understood to have happened in the case that Paden describes is that one of the adjoining landowners had a survey made to determine where his 1/4 section was and to cut it up in to various tracts. If the other landowners of other parts of the section participated in that process, I don't recall reading any mention of that fact. So, adjoining landowners at best stand by and assume that the survey had run their common boundary correctly.
If it later turns out that he has not, do you think that *in all cases* the mere fact that they mistakenly believed that the surveyor had run the line properly prevents them from claiming ownership to the original line instead of the erroneously run line? It seems to me that the question is generally one of certainty of proof (being able to demonstrate without any doubt where the original line actually is on the ground) and of equity (where upsetting some long-standing mistake would cost much more to fix than whatever benefit might be had).
Paden's Hand
Nothing applies to all cases.
Our Courts have pretty much locked our boundary settlement doctrines into a box with a very specific combination to unlock the box. There is one thing they give lot of respect to, that is old Surveys that have been long recognized and accepted, much more respect than surveyors do which is kind of ironic.
Paden's Hand
Kent needs to get out of Texas and actually try to sort out a few of these harmonious PLSS clusters! He's welcome to bring along his time machine to restore the original GLO survey also.
The courts give us wisdom. In Utah the court specifically rejected objective uncertainty in 2011. Also if a visible boundary is treated by both landowners like a boundary it can become the boundary. Even if a mistake was made and even if there are survey monuments. Landowners must be responsible to maintain their boundaries. There must be a way out of the uncertainty. What Kent advocates makes it almost impossible for a resolution. Sort of like trying to solve a math problem with no way to ever obtain one of the plug numbers.
It's good we have the law, courts and judges. Scientists and mathematicians would never be able to resolve it.
Paden's Hand
> There is one thing they give lot of respect to, that is old Surveys that have been long recognized and accepted, much more respect than surveyors do which is kind of ironic.
Well, isn't the rational basis for giving old surveys more weight that (a) a surveyor in the distant past was more apt to have more old evidence before him than presently exists and (b) various parties are more apt to have relied in some way upon a survey made a long time ago.
If (a) can be shown to false, i.e. it can be shown that the old survey was grossly erroneous, then the rationale that the old survey somehow had the advantage of old evidence that doesn't exist evaporates. If it can be shown that no substantial reliance upon the the old survey is present, then (b) would seem to be without support as well.
I'd say that if I were to pose a general rule for evaluating these sorts of old SNAFU surveys, it would still be that if the cost of fixing the SNAFU far outweighs just accepting the SNAFU and moving on, then that is the practical test of whether a boundary has been established in some erroneous position or not. In grazing lands, where the only "reliance" is merely a barbed wire fence that gets periodically rebuilt, I'd think that the cost of fixing the SNAFU is quite low.
Paden's Hand
> > There is one thing they give lot of respect to, that is old Surveys that have been long recognized and accepted, much more respect than surveyors do which is kind of ironic.
>
Very true, and this is supported by the law.
> Well, isn't the rational basis for giving old surveys more weight that (a) a surveyor in the distant past was more apt to have more old evidence before him than presently exists and (b) various parties are more apt to have relied in some way upon a survey made a long time ago.
>
True, however more accurately stated "...a surveyor in the distant past was more apt to have more controlling old evidence before him than presently exists and (b) various parties are more apt to have relied in good faith in some way upon a survey made a long time ago.
I wonder why (b) is true? Could it be that they relied upon the survey because they had it performed for the sole reason to rely upon it? Ever heard of "good faith"?
> If (a) can be shown to false, i.e. it can be shown that the old survey was grossly erroneous, then the rationale that the old survey somehow had the advantage of old evidence that doesn't exist evaporates. If it can be shown that no substantial reliance upon the the old survey is present, then (b) would seem to be without support as well.
>
Yes, maybe. However in the case at hand, there is no substantial evidence that (a) is false. Well, other than an erroneous and unsubstantiated claim that the law says 30 ft. from "record" is "grossly erroneous".
Also (b) has been supported by the evidence gathered by Paden, not the contrary.
> I'd say that if I were to pose a general rule for evaluating these sorts of old SNAFU surveys, it would still be that if the cost of fixing the SNAFU far outweighs just accepting the SNAFU and moving on, then that is the practical test of whether a boundary has been established in some erroneous position or not. In grazing lands, where the only "reliance" is merely a barbed wire fence that gets periodically rebuilt, I'd think that the cost of fixing the SNAFU is quite low.
You can "pose" all the "rules" you want. But until you are in an authoritative position to create new law in the appropriate jurisdictions, I'd say the wise decision for prudent surveyors would be to follow the existing laws, rules, and guiding procedures laid out in the BLM Manual, as well as statutory and case law, not silly fictional "rules" dreamed up by someone who has apparently failed to study and learn about the applicable procedures, rules, and laws.
Paden's Hand
> You can "pose" all the "rules" you want. But until you are in an authoritative position to create new law in the appropriate jurisdictions, I'd say the wise decision for prudent surveyors would be to follow the existing laws, rules, and guiding procedures laid out in the BLM Manual, as well as statutory and case law, not silly fictional "rules" dreamed up by someone who has apparently failed to study and learn about the applicable procedures, rules, and laws.
Actually, that statement of a rule was an observation based upon having read quite a few cases where the decisions were based upon equitable grounds, not the BLM manual. Where do you think equity comes from if not the practical effect of a decision and a weighing of the costs and benefits? Hint: not the BLM Manual. :>
The rule as stated actually would appear to apply to Paden's case perfectly well. In what way, if any, did you think that it didn't?
Paden's Hand
> Actually, that statement of a rule was an observation based upon having read quite a few cases where the decisions were based upon equitable grounds, not the BLM manual. Where do you think equity comes from if not the practical effect of a decision and a weighing of the costs and benefits? Hint: not the BLM Manual. :>
>
> The rule as stated actually would appear to apply to Paden's case perfectly well. In what way, if any, did you think that it didn't?
What could be more equitable, allowing the legally established good faith location of the boundaries, long relied upon by the landowners, to stand, or upsetting an entire section based on an erroneous assumption that 30 ft. is "grossly erroneous"? How do you think the laws, rules, and procedures that we should be following came to be? They are based in equity.
I'd love to see the case law that states if a certain $$$ amount is exceeded in moving long standing, legally established boundaries to their "theoretical location", then the boundaries are no longer legally established and must be moved.
Did this magical $$ figure come into existence the same way as the magical 30 ft. number did?
Paden's Hand
> What could be more equitable, allowing the legally established good faith location of the boundaries, long relied upon by the landowners, to stand, or upsetting an entire section based on an erroneous assumption that 30 ft. is "grossly erroneous"?
Well, in most cases things aren't as neat as you frame them by assuming that the work of a person who was neither county surveyor nor even a licensed surveyor "legally" established anything, that all of the landowners interested in the boundaries in question "long relied upon" anything, or that to correct an error if it can be definitely shown to be an error "upsets and entire section". The facts that Paden posted don't support any of your conclusions.
As to whether an error of alignment of 1:88 is grossly erroneous by the standards and capabilities of 1964 technology: I'd be interested to know where you think the ordinary errors of careful surveyors in 1964 were of that magnitude. If you agree that in 1964 that was an extraordinarily large error, then you agree that 1:88 is a gross error by the standards of the day.
"Math & Manual"
Since you are performing a resurvey, you would start your reference to the Manual in the Resurveys chapters (Ch 5 & 6, 1973; Ch 5, 6 & 7, 2009). Only if you can't find any acceptable evidence of the survey by which the section was subdivided would you go back to Chapter 3 (1973 & 2009).
Pertaining to the Durkee survey, you need to ask:
1. Did he tie his survey properly to the section exterior?
2. Were the properties conveyed according to the parcels Durkee monumented (either by direct call or by the same geometry)?
3. Is there evidence that the landowners recognized the Durkee survey and accepted it as properly marking the properties?
It sounds from your description of what you've found that the answers come up right to each of those. If that's the case, you have no authority to "correct" any lines or points of the section subdivision by applying more precise measurements & math. Doing so would actually be contrary to what the Manual says to do.
"Math & Manual"
:good:
> An allignment error of 30 ft. over 2640 ft. is an error of 1:88, much, much worse than a person could have done with a compass or even by picket lines run by eye to intersection at the 1/4 corner.
It doesn't sound like there was a precision error of 1:88. In fact it sounds like his measurements were "spot on" within reason. To me, it sounds like he used inappropriate procedures to determine the C-1/4 Corner if that is what he should have been using. I am uncertain of the best resolution to this issue, but I don't think the precision factor comes in to play at all. The person "properly" staked a metes description, but the question, to me, would be whether the grantor at the time had the authority to sell beyond the quarter-section line.
If the intent was to transfer an aliquot portion of a larger parcel, it would have been wise to call out proportional calls in the description. Also, it would have been good even with the way it was written if they had called out "to the 1/4-section line, and along the section line etc.
I do tend to presume that the first survey from so long ago, and not being challenged would tend to hold today. I also read that the fences were remarkably close to the matching the old survey. It seems hard to get fences in the ground that "happen" to point to the staked survey line to be considered unreliable.
Okay...just some thoughts. I probably repeated some things that were already said.
