Traversing the Law
In March 2003, POB magazine ran a news story titled "Land Surveyors' "Bible' Gets Update." My immediate reaction was, "Why?" Just exactly what is the Bureau of Land Management (BLM) Manual of Instructions for the Survey of the Public Lands of the United States, 1973 (the Manual), what significance does it have to private practice land surveyors, and why is it being rewritten? With the new drafts and public comments on the horizon in 2005, I thought this might be a good time to explore some of these questions.
If you visit the BLM's Next Edition Website and read the listed articles and messages, you begin to get a feel for why the organization is rewriting the Manual. In an article in the newsletter of the National Association of County Surveyors, October of 2003, the author, Don Buhler, BLM chief cadastral surveyor, gives us a glimpse into the thinking behind the BLM Manual update:
The primary focus of the next edition of the Manual is the explanation of the law and policies of surveying and boundaries. Land surveyors are the first line of protection for private property rights. Surveys must be legally correct, therefore the Manual is issued to guide land surveyors who exercise a technical responsibility in the execution of cadastral surveys or resurveys.
The 1973 EditionLet's take a brief look at the 1973 edition and establish just what the Manual currently means to private practice land surveyors. First, unless you are in a Public Land Survey System (PLSS) state it probably means very little to you. This effectively leaves 20 states out of the mix. Next, unless your state was surveyed under the 1973 instructions, there are earlier editions of the Manual that you need to consult before turning to the 1973 edition. At this point, about 12 western states are still affected. In these states, if you survey Indian reservations, national parks or other federal lands, you're still in the equation. Now, how many affected land surveyors are left? Not many, I would suppose.
Looking at the cold hard numbers, it's hard to see much relevance in the BLM's manual update to the private practice land surveyor. In 28 years of practice I've conducted surveying activities in and around national forests on three occasions, and two of those were retracement camps. The Manual itself is replete with admonitions that it is not an instruction to private practice land surveyors. In the article mentioned earlier, BLM's Buhler re-emphasizes this point:
It is important to remember that in most cases where no Federal or Indian trust lands are involved, the methods and explanations of the BLM must be regarded as advisory only, as the BLM is generally without jurisdiction unless Federal or Indian trust lands are involved. The BLM does not instruct the county or local surveyor how to survey.
Another cold hard fact is that the Manual is written for BLM surveyors who conduct public land surveys. Nevertheless, the reality is that many surveyors do see the Manual as a sort of bible. And many state societies and regulatory boards have adopted Chapter V, Restoration of Lost and Obliterated Corners, in particular, into their surveying standards. Chapter V was intended by the BLM as a guide for private practice surveyors: "Although intended especially for surveyors outside the Bureau of Land Management, it is also of interest to attorneys, title insurance company personnel, and others"¦" This tendency to see the Manual as a bible is only natural since the BLM and its predecessors gave life to the PLSS. And the number of private practice land surveyors who operate under that system is a very large percentage.
Private Property RightsIf the history of this country could be written in two words, those two words in my book would be "private property." The British colonies, which allowed for private ownership of land, eventually overwhelmed the Spanish and French settlements in which land ownership remained with the crown. This private ownership of land made the country what it is today. And land surveyors played a pivotal and significant part in that history.
A check of our Constitution reveals that there is no constitutional right to own property, even though it is argued that this was the driving force that made this country. Amendment V of the Constitution (as well as Amendment XIV) makes it clear that you cannot be deprived of your property without due process of law. But nowhere in the Constitution are you given the right to own property in the first place. So where does your right to own property come from? And how is the property that you own defined?
What is property? Nearly every first-year property course begins and ends with this query. The instructor never answers this question, but in the asking, and in the quest for meaning, every student gains some glimpse of the variety of possible answers. The question is unanswerable because the meaning of the chameleon-like word property changes in time and space.
To the layman, especially when we are talking about real property (land), property is something tangible. It is the land upon which he lives, has a dwelling, raises his family, etc. But in the law, property is a concept. It is the legal relationship between the individual and the land (or any other property). Ultimately, the right to own land is a function of the enforcement mechanisms established by each individual state. And the enforcement mechanisms that the state creates are found in the common law (case law), statutes, and administrative rules and codes. Property rights are derived from the state, not from the federal government.
Principles of EquityCertainly the most talked about and the best known enforcement mechanism that a state employs is equity (fairness). Since the reign of Edward 1 (1272-1307) we have had two separate court systems. We had courts of law and we had courts of equity. Law courts interpreted the law and meted out justice in the form of punishment or fines. However, there were certain cases that required neither punishment nor a fine. These were classic equity cases requiring that a fair and "equitable" resolution of a matter be attained. A typical boundary dispute falls into this category. The dispute over a land boundary doesn't usually require a fine or punishment; it requires that the fair thing be done. Today, most states have combined both systems into one court. These are usually the higher level courts within any given state judicial system. These courts can hear cases and dispense justice in either law or equity.
The principles of equity will be used by state courts to dispense justice in any given boundary dispute. Generally, for the boundary dispute, the principles of equity are adverse possession, acquiescence, estoppel and agreement. A typical boundary dispute case will include two parties with two different interpretations as to the true location of a boundary line. There may be two surveyors, two surveys, two interpretations of the deed, two sets of monuments and two opposing legal arguments. The parties will present evidence. Some of that evidence could include instructions from the BLM Manual and methods of survey. The trier of the facts will decide the facts in the case, and the judge will decide the law. But in all cases, the state's principles of equity will decide the matter because it is a case brought in equity. How good the arguments are and whether all of the facts are rightly decided depends in large part on the attorneys and surveyors involved. Whether or not equity is actually achieved is another matter altogether. The bottom line is that state law will decide the case because there is no federal issue.
Courts of Limited JurisdictionToday, every boundary dispute case involving private property owners (this excludes Indian reservations and federal lands) will be settled in a state court of competent jurisdiction. The case will never leave the state's judicial system. Only if there is a federal question will it go any higher than that state's Supreme Court. And even then, all property issues will be settled by applying state law, not federal.
So why did some of the early PLSS land boundary disputes end up in the U.S. Supreme Court? This is because the federal government was a party to each and every original property transaction under the PLSS. Article III, Section 2 (1) of our federal Constitution tells us that the judicial power of the United States is limited to, among other things: ""¦ all cases, in law and equity, arising under this Constitution, the laws of the United States [and]"¦ to controversies to which the United States shall be a party." This is why a boundary dispute between Farmer Brown and the U.S. Parks Service will be a federal case, but a boundary dispute between Farmer Brown and Sam Developer will not. And application of the principles and practices from the Manual in the latter case may be more than irrelevant-it could be dangerous. In the last article I wrote (February 2005), I discussed the effect that the Marketable Record Title Act has on boundary disputes. If you are practicing in a state that has adopted a similar act, you had better consult the Act before you consult the Manual.
All Things to All SurveyorsThe Manual cannot be all things to all surveyors. It would be next to impossible to compile all of the relevant case law, statutory law and administrative law affecting boundary determinations from every PLSS state into one manual of instruction-a bible, so to speak. And I am not insinuating that the BLM wants the Manual to be that surveyor's bible. But with a website dedicated to the next edition, planned input from public and private sources, and circulation of drafts prior to publication, it would seem that the intent of the next edition is more than just a rewrite of internal instruction to BLM employees.
The Manual has been an invaluable resource to me, personally. I have referred to it on untold occasions. My personal copy is old, dog-eared, highlighted and underlined. I learned many general principles of land surveying and historical facts about land surveying by reading the Manual. However, once those general principles have been learned and the history noted, my time is much better spent understanding my own state's property boundary laws than in taking instruction from the Manual. But many surveyors do not have the time or the resources to find the law as it relates to the everyday practice of land surveying. They depend on the Manual and other general resources to provide them with guidance on state specific matters. This is why the next edition should be of concern to every land surveyor practicing in a PLSS state. I'm not saying that the rewrite is a good thing or a bad thing because I don't know how it will be used. But I am wary because I know that those who currently hold it up as the surveyor's bible will continue to do so-with added zeal-when the next edition arrives.