A recent IBLA decision

The United States Department of Interior Board of Land Appeals (IBLA) has issued a number of significant rulings addressing bona fide rights as they affect resurveys. In the February 1996 issue of POB, I wrote about the case of Theodore J. Vickman(1), which was the most comprehensive ruling to date on bona fide rights in the context of a resurvey of a township that suffered from an apparently fraudulent original General Land Office survey.

Vickman involved a township in California that included several miles of land where original monumentation was missing or very sparse. Gross inaccuracies existed between what monuments could be found there and dimensions on the plat. Vickman had purchased a small cabin on land bordering a national forest. He located his land in reference to existing old Forest Service boundary posts and a creek shown on the original plat. Unfortunately, the old posts and creek lay so far west of the conclusively monumented east line of the section that to honor them as marking Vickman's boundaries would enlarge the section by about 300 acres.

The IBLA in Vickman specifically stated that his efforts would not be protected by the bona fide rights doctrine in a section that had been reasonably well surveyed in the first place. But where the original survey was fraudulent, his claim had to be protectedÃ'even though to do so might necessitate that a patented claim be enlarged considerably above the acreage originally cited in the patent, and even when the claimant had not located his land from any original survey monuments. The Vickman court explained that an earlier case, J. M. Beard,(2) which is often cited for the proposition that a claim of bona fide rights must be supported by a tie to at least one point of the original survey, had a different outcome because occupation supported Vickman's claim, while Beard's claim had not matched occupation.

Courts often use later cases to "explain" their earlier rulings. Courts resolve individual conflicts and may state broad principles of law. However, the application of any such principle always depends on the particular facts of each case. In a case from 1999, the IBLA again addressed the bona fide rights doctrine in the context of a fraudulent original survey. Its holding, in light of the facts of the dispute, offers clarification of the principles stated in Vickman.

The Case: Timothy J. Bottoms(3)

On September 23, 1887, the General Land Office issued Homestead Entry Patent No. 2682 to Vincente Avila for 160 acres of land described as the W1/2 SW1/4 sec. 28 and the E1/2 SE1/4 sec. 29, T. 21 S., R. 5 E., MDM, "according to the Official Plat of the Survey of said Land." On December 17, 1900, Pedro Hidalgo received Homestead Entry Patent No. 7541 for 160 acres of land designated as the SE1/4 NW1/4 and the W1/2 NW1/4 sec. 33 and the NE1/4 NE1/4 sec. 32, T. 21 S., R. 5 E., MDM, as depicted in the official survey. Bottoms currently owns the land conveyed by both patents. This land is known as the Salsipuedes Ranch and is surrounded by lands included in the Los Padres National Forest, administered by the U.S. Department of Agriculture, Forest Service.(4)

In 1924, an unknown surveyor had attempted a retracement survey in the area. Later in 1924, an F.G. Vivian submitted a special use application with the Forest Service to place a summer home on Forest Service land in the NE1/4 SE1/4 Sec. 32, T. 21 S.,R. 5 E., MDM. Thus Bottoms owned a square 80-acre parcel (the Avila homestead) and a roughly "Z" shaped parcel (the Hidalgo homestead) that comprised 80 acres and which lay south of the Avila homestead. The Vivian application affected the 40-acre tract that adjoined the southwest corner of the Hidalgo homestead.

In 1993 the Bureau of Land Management (BLM) began a resurvey in the area. The BLM decided that some of the original surveys in the township were fraudulent, and that the only way to protect Bottoms' bona fide rights would be to create a tract for the Salsipuedes Ranch property. The BLM surveyor contacted Bottoms and discussed several alternatives for the boundary of the tract, which had to meet three criteria:

(1) It had to conform to the acreage and configuration described in the official patent; (2) it had to include the main structures and improvements existing on the ranch; and (3) it had to be identified by the landowner as a satisfactory location of his boundaries that protected his bona fide interests in the land. (5)

The BLM and Bottoms tentatively agreed on a boundary based upon the location of a monument at the record position of the CN 1/16 corner of section 33 as shown in the 1924 survey. The BLM assigned tract number 38 to the Avila homestead and number 39 to the Hidalgo homestead, surveying them using the agreed boundary. Later, however, Bottoms changed his mind and objected. He met with the BLM and presented an alternative location for the tracts:

Bottoms stated that the location of his proposed Tract 38 had been determined by a careful review of the evidence on the ground of the claimant's attempt to define the boundaries relative to the long standing use of the land and included the improvements listed in the patent file. Although the patentee had bought the land and its improvements in February 1864, Bottoms noted that the improvements listed on the patent proof, which included a 100' x 60' adobe house, a 16' x 16' tool shop/blacksmith shop, a 22' x 30' log barn, a 20' x 16' dairy house, ranch fencing, about 8-10 acres cultivated land, and a dozen fruit trees, did not appear in the field notes of the 1884 official plat of the survey. He asserted that the original claimant had relied on the topographic detail shown on the official plat to outline the approximate boundary of his improved claim, and that, therefore, the position of the ridge line, creeks and wagon road relative to the section lines as shown on the plat would have confirmed his honest belief that his improvements were within the section land description.

Bottoms explained that his proposal for Tract 39 changed the configuration of the Hidalgo patent to conform to the evidence on the ground indicating the claimant's honest effort to identify the boundaries of the claim from physical evidence relating to the topographic detail shown on the 1884 official plat. He indicated that the topography shown on the plat placed the confluence of two rivers and a trail within the southern boundary of the patent and depicted the northern boundary as coinciding with the Avila claim. Bottoms maintained that Hidalgo would have reasonably believed that he had a rightful claim to the San Antonio River to water his cattle and built his 12' x 14' house on the north bank of the river. Bottoms added that the described tract boundaries conformed to the evidence in the patent file specifying that Hidalgo had built his house, a barn, 2 miles of wire fencing, trails and roads, and had cleared and cultivated 8-10 acres of land while utilizing the remaining rough, mountainous land for grazing his 2 to 10 head of stock.(6)

The BLM noted that Bottoms' recommendation would reconfigure the Hidalgo homestead from a "Z" shape to an "L" shape to embrace an existing stone cabin and a cleared meadow, both of which Bottoms assumed were improvements listed in the patent files. The BLM, however, had met with the grandson of Vivian and had determined that the cabin was part of the Vivian permit and not part of either homestead. The BLM proceeded with its survey and Bottoms filed a protest.

Bottoms protested that the tract surveys would have to be extended to the north and to the south to encompass the improvements listed in the original homestead patents. He included a declaration from one of the granddaughters of the former owners of the Hidalgo patent stating that she had visited a small stone cabin on the Hidalgo patent. He argued that the Vivian permit application was either fraudulent or merely represented a request to refurbish the existing Hidalgo cabin. His protest centered on two main points: the BLM's failure to include a grassy field along the north boundary of the Avila homestead and the failure to include the stone cabin in the Hidalgo parcel.

The BLM agreed that in view of the fraudulent nature of the original survey, the patentees had a right to rely on topography to locate their claims, but the items of topography had to appear both on the ground and on the official GLO plat.

The Acting [BLM] Chief explained that the applicable rules required Avila to select lands according to the subdivisions reflected on the official plat and that retracing the procedure utilized by Avila plainly demonstrated that the NW corner of the land he described was south and west of the Salsipuedes Creek, a position so clearly shown on the plat that Avila had to have been fully aware of its location. In contrast, he noted, the grassy field did not appear on the plat and therefore could not have been used to locate the applied-for subdivisions.(7)

The Acting Chief further disagreed with Bottoms' claim to the cabin. A history of the area stated that the Hidalgo cabin was adobe, not stone, and the BLM still considered the stone cabin to be the one in the Vivian permit application. The BLM dismissed Bottoms' protest and he appealed. His statements supporting his appeal again centered on improvements assumed to be those in the original patent application and items of topography:

Bottoms contends that [the] BLM ignored the two official maps depicting the lands included within the Avila and Hidalgo patents: the 1884 official plat and the 1898 official map of Monterey County compiled from the official plat, both of which show important topographic features such as ridges, a wagon road and the South Fork of the San Antonio River (shown as "Creek" on both maps), which still exist but were not included in the tract as currently surveyed. Bottoms maintains that because the original surveyor did not place any artificial monumentation on the ground, the patentees were entitled to rely on the topography reflected on the plat in locating their boundaries.

Bottoms complains that [the] BLM refused to consider the topography shown on the plat and the evidence of improvements sworn to in the patent files and existing on the ground, which he considers the best indication of the boundaries of the patented lands. Specifically, he objects to [the] BLM's omission of the San Antonio River and the cabin site from the surveyed Hidalgo parcel. He asserted that the river is the most important physical feature shown on the official plat, which clearly places both its north and south banks well within the boundaries of the Hidalgo patent. He asserts that the existing cabin's location forms the only area within the possible boundaries of the patent with both enough level ground to support a small house, barn and domestic garden and a year-round water source for humans and animals.

He also disputes [the] BLM's refusal to adopt his suggested placement of the NE corner of the Avila patent just south of the top of a ridge and at the terminus of a wagon road, as depicted on the original plat and buttressed by evidence of old fencing, gate hardware, rock piles and other points on the ground. He contends that [the] BLM's insistence on siting the NW corner of the parcel relative to Salsipuedes Creek is unfounded. Bottoms submits that [the] BLM's failure to refer to the topographic ties called out in the field notes of the original survey and its improper merger of two distinct patents into one parcel do not protect his bona fide rights to the lands the original patentees occupied, improved and intended to patent. (8)

Bottoms claimed that the BLM disregarded old maps of Monterey County that showed the river running through the center of the Hidalgo parcel. He also claimed that Forest Service maps showed a structure as being on the Hidalgo land, at the site of the cabin, since before 1924. He produced another declaration concerning the Hidalgo cabin and its relation to the river. The BLM countered, again by concentrating on items of topography that appeared on the official plat. The BLM did not believe Avila depended on a ridge and the terminus of a wagon road in locating his land because they were not correctly positioned on the plat and the road continued on through the property. The BLM had asked Sam Avila Jr., about certain fences and rock piles and found that the younger Avila did not recall his father or grandfather placing any significance on the structures as marking the boundary. The BLM pointed out that Avila had entered into a grazing lease with the Forest Service, which could explain his use of the meadow. It especially contended that the clearest item of topography to use to locate the claim from the official plat was Salsipuedes Creek, and that the plat showed the NW corner of the Avila patent lying south and west of that creek. The BLM completely rejected Bottoms' claims to the cabin, explaining the beliefs of his declarants as probably related to a cabin on a second "Hidalgo Ranch."

The court began its analysis of the evidence by quoting the general rules governing resurveys in fraudulently surveyed areas:

As a general rule, where patented lands are described in the conveyance in terms of the rectangular survey system, the rights, title, or interest conveyed are defined by the corners of the Government survey upon which the description was based.... Here, however, since the original survey was fraudulent and evidence of controlling corners nonexistent, the boundaries of land conveyed in the homestead patents could not be accurately located through a dependent resurvey tied to the original survey.... Therefore, [the] BLM conducted a metes and bounds survey of the tract to represent the position and form of the lands alienated on the basis of the original survey, utilizing the best available evidence of their true original positions to locate the tract on the ground.

As summarized above, numerous field investigations uncovered no boundary monuments for the patented lands. Under such circumstances, the Manual directs the surveyor to utilize the available collateral evidence as the best indication of the original position of the claim, including asking the landowner to point out the boundaries of the claim.(Manual at ¤¤ 6-42, 6-43) Nevertheless, the landowner may not delineate his claim however he chooses; rather, "an acceptably located claim must have a form agreeing with the original entry, approximately regular boundaries, an area not widely inconsistent with that shown on the plat, and a location as nearly correct as may be expected from the existing evidence of the original survey." (Id. at ¤ 6-43)(9)

The court then addressed Bottoms' evidence:

Bottoms' proposed shifting of the Avila patent to the north and east to include the grassy field ignores the evidence placing the NW corner of that patent to the south and west of Salsipuedes Creek and the Forest Service notation on the 1917 U.S. Coast and Geodetic Survey quadrangle map placing the disputed field within the Avila grazing lease, not the Avila patent. Bottoms' speculation that Avila situated the NE corner of his land just to the south of the top of a ridge and at the terminus of a wagon road is belied by his own placement of that corner over 1/4 mile south of the bottom of a steep side hill of the ridge and 1/4 mile to the east of the wagon road which, instead of terminating at that point, continues on through the patented lands. Similarly his selective adoption of a rock pile and gate and fencing remnants as indications of Avila's attempt to mark his boundaries, coupled with his dismissal of the significance of similar items not coinciding with his preferred position for the parcel, undermine the persuasiveness of his arguments, especially given the ambiguous nature of the claimed boundary markers. Therefore, Bottoms has not shown by a preponderance of the evidence that the BLM erred in refusing to adopt his placement of the Avila parcel.

(...)

We further find no error in [the] BLM's rejection of Bottoms' contention that the existing stone cabin located near the north bank of the San Antonio River is the original homestead dwelling (or was built on that cabin's foundation) and therefore should have been included within the surveyed tract. Bottoms does not refute, and the record amply confirms, that none of his predecessors has ever asserted a claim to the cabin or ever considered the cabin site part of the Hidalgo parcel. Nevertheless, Bottoms insists that because the inside dimensions of the existing cabin coincide with the dimensions of the cabin identified in the Hidalgo patent proofs, this stone cabin must be the original homestead dwelling or have been built on its foundation. This leap in logic requires that we ignore not only the fact that the 14' x 16' outside dimensions of the stone cabin differ from the 12' x 14' dimensions ascribed to the homestead dwelling, but also the existence of the 1924 special use permit issued by the Forest Service authorizing the use of that land for a summer home and the evidence documenting the construction of the cabin between 1924-26. Although Bottoms alleges a far-ranging conspiracy associated with issuance of the special use permit, we must reject such an assertion as pure speculation.

None of the evidence Bottoms supplies convinces us that [the] BLM erred in refusing to include the cabin site within the surveyed tract. Our careful scrutiny of the maps submitted by Bottoms as support for the existence of a cabin at the disputed site before 1924 leads us to conclude that, contrary to Bottoms' position, the symbol on the maps at the cabin site does not denote a house but rather, as the BLM points out, represents a telephone line, a conclusion reinforced by the disappearance of the symbol from the maps concurrently with the rerouting of the telephone line. (10)

Conclusion

Vickman won his case against the government; Bottoms lost. Both cases concerned fraudulent original surveys, and both parties relied in part on topography to make their cases. The court in Bottoms did not overrule or retract any of its statements from Vickman, and indeed Bottoms relied on Vickman as legal authority for many of his arguments. The instructional value of cases such as this lies in the details and the differences that led to the different outcomes.

In Vickman, there was little doubt that the claimant was asserting ownership of land that lay on the "correct" side of a creek that existed on the ground and also showed as a clear item of topography on the original plat. No matter that the creek was an excessively long distance from the few original monuments of the original surveys; it existed and formed a logical, good faith, beginning point for a person to use to locate his land. Furthermore, Vickman relied on a line of Forest Service boundary posts, which had apparently been set between old timber company iron pipes rather than from monuments of the original survey. In Bottoms, the court's discussion makes it plain that just about every historical item the claimant relied upon was suspect. Furthermore, the monuments relied upon by Vickman were set independently of the elements of occupation he was claiming. Bottoms, however, was using the elements of occupation themselves as evidence (monuments) to define the claim.

Even assuming that Bottoms could have proven the cabin and clearedmeadow were improvements attributable to the original homesteaders, he still lacked any independent evidence that the homesteaders had a reasonable basis for locating them where they did. His main evidence amounted to assumptions concerning items of topography. In contrast to the findings of the Vickman court, the court in Bottoms considered the topography on the GLO plat to be too suspect to support his claim:

Additionally, although Bottoms argues that, despite the fraudulent nature of the original survey, the original patentees reasonably relied on the relationship between the topography and the survey lines shown on the 1884 plat when describing the boundaries of their claims, a comparison of the location and course of the San Antonio River shown on the 1884 plat with those shown on the recent maps amply demonstrates the questionable reliability of the topographic details shown on the 1884 plat.

(...)

Bottoms' challenges to [the] BLM's refusal to include more of the San Antonio River and the cabin site within the Hidalgo parcel are similarly unpersuasive. As noted above, because the position and meanders of the San Antonio River depicted on the 1884 plat vary considerably from its actual location and sinuosities on the ground, no possible placement of the Hidalgo parcel exists which would include the portion of the river shown on the plat. (11)

Beard stated that in order to receive the benefits of the bona fide rights doctrine, a claimant must locate his land in relation to at least some point attributable to the original survey. Vickman stated that a claimant could rely on monuments that were not original, as long as they related reasonably to items of topography on the original plat. Bottoms shows that the court will be wary of allowing one to rely entirely on topography. Specifically, the court stated:

None of the limited circumstances the Board has recognized as justifying a departure from a strict application of resurveying principles is present here since the record discloses no long-accepted, monumented survey lines upon which Bottoms or his predecessors relied in good faith in locating improvements. (12)