Traversing the Law: Bona Fide Rights, Good-Faith Efforts
The vast majority of boundary surveying work being conducted across the country today is retracement surveying. At this point in our ongoing discussion in this column, you would think that it would be unnecessary for me to have to reiterate the fundamental principles of boundary surveying.1
To my neverending dismay, as I travel across the country and have discussions with surveyors about the current state of surveying practice, I find that maybe 50 percent of practitioners either do not know or do not believe the foundational principles of boundary surveying, and are practicing under some aberrant belief system. Be that as it may, I want to cover some new ground with “bona fide rights” and “good faith efforts.”
A Rose by Any Other Name
The subject of bona fide rights and good faith efforts as to location are important topics that every surveyor performing retracement surveys should be intimately familiar with. They are imbued in the fundamental principles of retracement surveying and are applicable in every context and every system of property boundary surveying — not just the Public Land Surveying System (PLSS), but in the so-called metes-and-bounds systems as well. These terms are prominent in the PLSS context because they are discussed extensively in the BLM’s Manual of Surveying Instructions (the Manual) at least since the 1973 edition. We will discuss the Manual’s treatment of these terms in a minute. First, I would like to address them under the common law, which is applicable in every context and in all jurisdictions.
At the outset, the two terms are almost synonymous. Black’s2 defines “bonæ fidei”3 as “of good faith; in good faith.” Black’s further defines a “bonæ fidei possessor,” as a “possessor in good faith. One who believes that no other person has a better right to the possession than himself.” Even closer to the point, a “bonæ fidei possessor in id tantum quod sese pervenerit tenetur,” means a “possessor in good faith is liable only for that which he himself has obtained.” Supra. Completing our definition of “bona fide,” Black’s defines this term as “in or with good faith; honestly, openly, and sincerely; without deceit or fraud.”
Black’s defines “good faith,” in pertinent part, and precisely on point with our discussion, as follows:
An honest intention to abstain from taking any unconscientious advantage of another, even though technicalities of law, together with absence of all information, notice, or benefit or belief of facts which renders transactions unconscientious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and generally speaking, means being faithful to one’s duty or obligation. [Emphasis added in this and all following quotations.]
The Manual’s Interpretation
The subject of bona fide rights is covered extensively in the 2009 Manual of Surveying Instructions (2009 Manual).
The surveyor is reminded that the principles outlined in the Manual are in conformance with due process of law and bona fide rights as to location standards. See sections 3-24 through 3-26 for original survey situations and chapters V, VI, and VII for resurvey situations. When application of the general rules do not meet the due process of law and bona fide rights as to location standards, then exceptions to the general rules must be applied.4
Bona fide rights in the context of resurveys are covered in Chapter V of the 2009 Manual, Sections 5-24 through 5-28. Relevant parts of those sections follow:
In order to carry out the provisions of law relating to resurveys, the surveyor must understand the meaning of the term “bona fide rights” and under what circumstances it will be held that such rights have been impaired by a resurvey. Sec. 5-24.
Bona fide rights are those acquired in good faith under the law. A resurvey can affect bona fide rights only in the matter of location on the earth’s surface. The surveyor will be concerned only with the question of whether the lands covered by such rights have been actually located in good faith. Sec. 5-25.
The question for the surveyor in such cases is whether the claimant made a good faith effort to locate the claimed land on the ground, based on the best available evidence of the survey under which the claim was allowed. Arbitrary location (with no reliance on at least one Federal monument) cannot qualify as having established a bona fide right as to location. Sec. 5-26.
Whether you are conducting retracement surveys in the PLSS or metes-and-bounds systems, the terms bona fide rights and good faith location mean the same thing — in either context. The conclusion to be drawn is that bona fide rights and good faith efforts in locating property boundaries on the ground is charged to the landowner, or entryman, at the time that entry was made, not by any activity, good or bad, on the part of any surveyor.
The opposite of good faith is bad faith or, as our definitions suggest — “fraud” — and bad faith cannot be ascribed to that landowner unless there is “positive evidence”5 that the landowner conspired with the local surveyor to carry out “an intentional departure from the legal principles governing recovery of original corner location, reestablishment and establishment of corner location, or subdivision of a section.” 6
Surveyors are obsessed with the proper procedure of previous surveyors because they are ignorant of what the law — and the Manual — actually say. The 2009 Manual addresses good faith location in Section 6-35, with the following:
It may be held generally that the claimant, entryman, or owner of lands has located his or her lands by the good faith location rule if such care was used in determining the boundaries as might be expected by the exercise of ordinary intelligence under existing conditions. A good faith location is a satisfactory location of a claim or of a local point. It is one in which it is evident that the claimant’s interpretation of the record of the original survey as related to the nearest corners existing at the time the lands were located is indicative of such a degree of care and diligence upon their part, or that of their surveyor, in the ascertainment of their boundaries as might be expected for that time and place. This is referred to as the good faith location rule. Id.
Good faith efforts are charged to the entryman — in either context — not the first surveyor on the ground to set the center quarter-corner of a section, or any other subdivision corner. How much more good faith can a landowner exercise than to hire a local surveyor to come out to his property and set the center quarter-corner so that he can begin living the American dream of property ownership and dominion over that property? Then, years later, an ignorant surveyor comes along and tells the current owner that she needs to move her fences because the first surveyor did not follow proper procedure. When you have proof positive that the original entryman committed fraud, or bad faith (like say a sworn affidavit), in locating her property corners, then talk to me about proper procedure.
Landowners Do Not Want to Hire Surveyors
It’s little wonder that landowners do not want to hire surveyors to survey their property because they know surveyors do not know what they are doing. I’ll qualify that with a 50 percent mark. So, any given landowner randomly calling for a quote on surveying services has about a 50/50 chance of actually getting a surveyor who knows what they are doing. Pretty bad odds, and our profession and our boards are to blame. And to make things worse, it is the most ignorant surveyor who is going to get the job, because that is the surveyor who is going to do the job for next to nothing because that surveyor does not know what they are doing.
It is we, as a profession, that allow the incompetent to practice alongside the competent. Hey, it’s not just me saying this.
The major deterrent to our becoming a learned profession is our low requirements for the right to practice. So long as we have low admission requirements, we will have low standards of practice and low public opinion. … Differences between surveyors are a cause of degradation. We prove by our own survey monuments that we are incompetent, since we cannot all arrive at the same location using the same deed.7
“It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” – Mark Twain
I have compassion for the landowning public because they are the ones being duped into believing that a survey is a survey, no matter how ignorant the surveyor. I could bring in example after example to prove my argument, but what is the point in that? I’m already going to receive the flaming arrows and Molotov cocktails for speaking the truth. Why bring anybody else into the discussion? Glad I got that off my chest.
- For the purposes of this present column, I’m not going to go into this discussion. I will simply say that, in the context of boundary surveying, the surveyor is either an original surveyor or a following surveyor. We have gone over the details of these principles on many occasions. For a recent discussion, see Keeping On Until We Get It Right, POB, June 2015
- Black’s Law Dictionary, Sixth Edition.
- Latin. The genitive or possessive case of “fides,” meaning trust, faith or belief.
- 2009 Manual, at Sec. 3-85.
- 2009 Manual, at Sec. 3-137.
- Brown, Curtis M., The Professional Status of Land Surveyors, 1961, “Surveying and Mapping,” Vol. XXI, No. 1, at 63-71.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.