Evidence of Fences, Topography and Local Surveys.
I generally use these pages to address some difficult area of surveying law or to describe some case giving new twists to old principles. All too often this choice leads me to write long treatises, to cover the complexities of such issues. This time, however, I plan to keep it short. The following case, from the United States Department of Interior Board of Land Appeals, breaks no new ground and covers a concise, well-known issue. Nevertheless the case is valuable if for no other reason than it reminds us of the steps used by the courts for applying some of the basic rules from the Manual of Instructions for the Survey of the Public Lands of the United States (1973).
William D. Brown, 137 IBLA 27 (1996).
Brown protested a United States Bureau of Land Management dependent resurvey in Township 14 North, Range 5 East of the Gila and Salt River Meridian, Arizona, which had been accepted in 1991. Brown disputed the BLM's decision to treat the corner to sections 2, 3, 10, and 11 as a lost corner to be replaced by double proportionate methods.
The original monument was a "limestone" set in 1877 and tied to a single bearing tree, a sycamore 20" in diameter bearing S 87Âº W 120 links distant. Several subsequent government surveys performed in the 1930s had perpetuated other nearby section and quarter corners, which the BLM used in 1990 to reset the disputed corner by proportion. Brown argued that private surveys, old fences, topography calls from the 1877 notes, and an existing sycamore tree provided sufficient evidence that a private surveyor's point established the original corner location.
The proper standard to apply in the course of a resurvey is to consider a corner existent (or found) if such conclusion is supported by "substantial evidence.... Where physical evidence has entirely disappeared, a corner will not be regarded as lost if its position can be recovered through the testimony of one or more witnesses who have a dependable knowledge of the original location... There must, however, be substantial evidence of a perpetuated corner location in order to consider the corner obliterated, rather than lost." 137 IBLA at 33. A private survey for a subdivision plat in the southwest quarter of section 2, conducted in 1962, had determined the disputed corner to be lost. Subsequently, however, the same private survey company recorded a second subdivision asserting that it had found the "original U.S.G.L.O. Sycamore bearing tree" in 1964, and that its 1962 determination had been in error. 137 IBLA at 28. Four other private surveys had relied on the 1964 position, and Brown urged its acceptance by the BLM as well.
The note on the 1964 survey referred to an unmarked, forked sycamore tree that was too young to be the original tree. Brown argued that it was well known that sycamore trees produce forked offshoots after the "mother tree" had died and that the 1964 private surveyor's tree was an offshoot of the original bearing tree. Brown, however, had no direct evidence that the tree grew from the original bearing tree. Although the 1877 field notes showed no other trees in the immediate vicinity of the corner, there were numerous sycamores along the banks of a nearby creek both in 1877 and today. The BLM surveyor investigated the existing tree by contacting the private surveying company and requesting to look at its notes. The private field surveyor could not recall the tree, but stated that if he had found the original tree he would have described it in his notes. 137 IBLA at 30. At first, the private company resisted giving BLM its notes, but when it did the BLM surveyor found nothing to prove the authenticity of the tree.
Furthermore, the BLM surveyor noted that the private company had used improper procedures in its 1962 survey (in that it used single rather than double proportion when it considered the corner lost) and that in 1964 it rotated its bearings from the claimed bearing tree so as to match the south boundary of section 2 as shown in the 1962 survey. The BLM decided to reject the tree as evidence.
Brown further argued that topography calls supported the 1964 private surveyor's corner: "In his SOR [Statement of Reasons for his protest], Brown refers to topographic calls made to a road, an irrigating ditch and a marsh in the original 1877 survey notes. The 1877 survey identified a road 64.70 chains north of the corner of secs. 10, 11, 14, and 15, an irrigating ditch at 65.50 chains, cultivated land and finally marsh and willow growth at 75 chains. There was, as a result, a distance of 0.80 chains (52.8 feet) from the road to the ditch, a cultivated field 9.5 chains (627 feet) wide, and a marsh some 10.3 chains (679.8 feet) from the road. Brown contends that based on 1946 aerial photos, a 1966 survey of the NE 1/4 NE 1/4 of sec. 10, and physical evidences on the land, the BLM resurvey would yield a measurement of 200 feet between road and ditch and a field 490 feet in width. Further, he contends, old fence lines approximately 100 feet west of the BLM line yield a measurement of approximately 50 feet from road to ditch and 640 feet across the cultivated field, which he concludes is very close to the original survey. "The field notes of the dependent resurvey identify a road at 65 chains from the south corner of secs. 10 and 11, the south edge of a cultivated field at 67.50 chains, an irrigating ditch at 76.35 chains and the south edge of a marsh at 77 chains... Contrary to Brown's assertion, the cultivated field is 8.85 chains (584) feet wide. Moreover, since the 1877 survey, the irrigating ditch reported near the road has ceased to exist and a new one has been constructed on the other side of the cultivated field. If that new ditch were added to the cultivated field, it would be 9.5 chains wide. The real difference in the two surveys is that, since the original survey, the distance from the road to the marsh has increased to 12 chains (792 feet) which could be explained by the marsh naturally receding or being partially reclaimed." 137 IBLA at 30.
The court stressed that topographic calls can only provide a "general frame of reference or identification of a given point." If they are to be relied upon to relocate a missing corner, topographic calls must "focus on a definite, small area, such as an old fence." 137 IBLA at 31. The topographic calls cited by Brown were too general to be of help. Brown, however, stated that old fence lines between sections 2 and 3 and between sections 10 and 11 lined up with each other and with the calls of distances between the road and the ditch. "He argues this is evidence that the fences started at established corners and indicates landowner knowledge of the monuments existing at the time and that their perpetuation through fencing points out the missing monument." 137 IBLA at 31.
Unfortunately, none of the fences terminated in the immediate area of the disputed section corner. One ran from a fence corner 98 links northeast of the disputed corner, while the other ran from near a 1/16th corner to the top of a bluff. The court stated that old fences could not support a determination that a corner was obliterated rather than lost unless the fences ran to accepted corners actually established in the original survey. 137 IBLA at 31.
From all this, the court concluded that Brown's protest did not produce substantial evidence that the disputed corner was obliterated as opposed to lost. A few points in the court's analysis are worth noticing. For one thing, in its discussion of the value of topographic calls, the court explains how BLM's line could be related to the topography described in the original notes but does not effectively dispute Brown's contentions, beyond stating that topography is not useful for supporting a corner unless it focuses on a discrete area, such as an old fence. The fences cited by Brown were not helpful because they neither ran to the disputed corner nor originated at some other accepted corner from the original survey. Yet Brown's evidence of topography and fences did focus on a point which, while admittedly not the location of "an old fence," was the corner depicted on five private surveys. The court rejected all of these surveys because they relied on the 1964 private surveyor's decision concerning the bearing tree, which in 1990 was no longer supported (if it ever had been) by an adequate field note record.
Given the obvious difficulty of finding direct evidence of a corner set more than 100 years ago, the court's standard in this case may seem unduly strict. It is not, however, out of the ordinary for cases involving surveys such as the one in dispute here. Brown did not contend that the original survey was fraudulent, nor that it suffered from extensive obliteration. Brown did state that the BLM survey failed to honor his bona fide rights, which he felt were developed from the private surveys. This, however, was an apparently regular survey that was largely in place on the surface of the earth. In such instances, the courts typically require a strong showing of authenticity for each monument to be used to support a survey.