Figure 1. Derrick's center section corner was set in 1899 at the midpoint on an east-west line between the opposing quarter-section corners. This and other shortcuts in subdividing a section are known as "stubbing in." Such a subdivision is not by the book--but must it be corrected?

In this continuation of the discussion we began last month on our case-in-chief,Dykes v. Arnold,1we will continue to explore this example of the land surveyor's misunderstanding of boundaries and misapplication of the rules of surveying. (To read Part I, see "Traversing the Law," POB October 2006.)

Figure 2. An illustration of the resulting "chaos" created by holding Denison's center of section, which corrected Derrick's flawed and "illegal" subdivision of the section. Denison's center corner is approximately 70 feet from Derrick's.

Recap of the Case

For those of you who missed it, I'll briefly recap the factual situation of this case. A county surveyor, Derrick, "stubbed in" the center of a section in 1899, by running an east-west line through the opposing 1/4 corners and set the center section corner at the midpoint on this line. Conveyance after conveyance took place over the next 100 years in reliance on this center corner, first by aliquot parts descriptions (based on the federal model) and then by metes and bounds using the center corner as either the point of beginning or commencement. This was not Derrick's specific center corner, mind you, just the center corner (e.g., "commence at the center of Section 12").

Fast forward to the present time: Two surveyors go to the field, one for the plaintiff and one for the defendant. Both recognize that the subdivision of the section was not by the book. The plaintiff's surveyor, Denison, opined that because Derrick's subdivision was "illegal" it must be corrected. Using modern equipment and a breakdown of the section, Denison set a new center section corner some seventy-odd feet from the existing Derrick corner. This, in the words of the court, created "chaos" in the surrounding property lines and occupation. The defendant's surveyor, Nyhus, retraced Derrick's footsteps and found his center corner position, which coincided with occupation and the surrounding boundary lines as they have been laid out for more than 100 years. Nyhus opined that Derrick's corner, illegal as it may be, must be held, all things considered.

Our issue: Which corner position represents the true center of section and the boundary corner for the surrounding properties?

Analysis of the Subdivision

For my friends in Missouri2 and all of my other colleagues who think that a section that has been "stubbed in" is an illegal subdivision of a section and that such an illegal subdivision must be corrected after the fact, the court in Dykes basically said: "You're wrong!" As the court rightly observed, all types of irregularities took place during the initial subdivision of the public domain into townships and sections. Just as many, if not more, irregularities took place in the subsequent subdivision of the sections. The federal government recognized this and passed the Act of 1805 whereby, absent fraud, original lines run and corners set, regardless of mistakes, errors, or irregularities, stand as the true corners of the townships and sections. The question is not where the corners would fall if a technically correct survey were conducted. The question is where were the corners set by the original subdividing surveyor, regardless of errors or irregularities.

To make this point, the Dykes court looked to Michigan law and the case of Adams v. Hoover.3 Quoting the Adams court with approval, the Dykes court stated:

The court began its analysis by stating that "public policy clearly favors consistency in ascertaining boundary lines, especially where, as here, a multitude of boundaries have been established in reliance upon the [center post set in the 1950 survey]." It then quoted the generally recognized principle that "the original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it." The court effectively regarded the county's survey, as the first to locate the center of the section, to be an original survey and the post marking the center to be an original monument. Consequently, to locate the center of the section, the same rule applied that would apply to relocating a "lost" monument: "The question is not how an entirely accurate survey would have located the lots, but how the original survey stakes located them." Citing the "public's need for finality and uniformity of boundaries and land titles" and observing that any other approach "could unsettle boundaries throughout the entire Section[,]" the court held that the 1950 survey "should be left in repose" and given legal effect.4

State Law v. Federal Law

Now I know many of my friends out West are thinking to themselves that their legislature has enacted entire sections of the Manual and, in effect, changed federal law into state law with regard to the subdivision of sections. I know this is true in Missouri, Nebraska, Oklahoma and many other states. It is also true in Oregon where our case-in-chief was tried and appealed. The Dykes court addressed this issue as well, and basically stated that surveyors are misinterpreting the instructions if they think that an illegal subdivision of a section by "stubbing in" the center corner or any other protracted aliquot parts corner can be later "corrected," once reliance and repose have settled in.

State law, rather than federal, required [subsequent subdividing surveyors] to follow the survey techniques as set forth in the Manual. In particular, in 1899, when Derrick performed the interior survey of section 12, a county surveyor's official duties included surveying any land in the county at a landowner's request and expense. The law further directed the county surveyor, in the subdivision of land, to "make all surveys of legal subdivisions in conformity with the laws and regulations of the general land-office of the United States." As we have already concluded, Derrick did not do so. By "stubbing in" the center of the section by placing it at the midpoint of only the east-west centerline, Derrick took a shortcut commonly taken by federal government and local surveyors of the day. The shortcut that he took, however, was not a legally authorized one under state law.
But federal law says nothing--one way or the other--about later surveys of section interiors. Despite expressly contemplating the need for those surveys, neither the federal statutes nor the instructions in the Manual direct what must happen when the same kinds of errors are made in those original local surveys. The silence does not suggest that the original surveys that marked a section's interior boundaries and center should not be accorded the same dignity; it suggests only that matter, too, was left to state law.
State law, however, is also silent"¦.[N]othing in [Oregon Law] or any other statute directs what should be done with a center originally surveyed and marked inaccurately by a county surveyor. The solution has been left to the courts to devise, as a matter of common law.5

A Bona Fide Effort

As the court observed, and as I have said on many occasions, any and everything happened during the further subdivision of the sections. This does not mean, however, that those mistakes of the past are necessarily subject to correction today, especially when property owners have been in bona fide (good faith) reliance on those further subdivisions, no matter how illegal the methodology. The Manual itself, as the court points out, speaks to the rights of individual property owners who have bona fide rights and also speaks to the bona fide efforts of county surveyors and other private practice surveyors in the further subdivision of the sections.

The Bureau of Land Management has exclusive jurisdiction over all matters pertaining to surveys and resurveys affecting the public lands. As between owners of lands, the title to which has passed from the United States, final determination in the matter of fixing the position of disputed land boundaries rests with the local courts of competent jurisdiction.6
In the case of Cragin v. Powell"¦the Supreme Court of the United States cited with favor the following quotation from a letter of the Commissioner of the General Land Office to the Surveyor General of Louisiana: "The making of resurveys or corrective surveys of townships once proclaimed for sale is always at the hazard of interfering with private property rights, and thereby introducing new complications. A resurvey, properly considered, is but a retracing, with a view to determine and establish lines and boundaries of an original survey"¦but the principles of retracing have been frequently departed from, where a resurvey"¦has been made and new lines and boundaries have often been introduced, mischievously conflicting with the old, and thereby affecting the areas of tracts which the United States had previously sold and otherwise disposed of."7
Bona fide rights are those acquired in good faith under the law"¦. The surveyor should neither rigidly apply the rules for restoration of lost corners without regard to effect on location of improvements nor accept the position of improvements without question regardless of their relation or irrelation to existing evidence of the original survey. Between these extremes will be found the basis for determining whether improved lands have been located in good faith or not. No definite set of rules can be laid down in advance. The solution to the problem must be found on the ground by the surveyor. It is his responsibility to resolve the question of good faith as to location"¦.It may be held generally that the entryman has located his lands in good faith if such care was used in determining his boundaries as might be expected by the exercise of ordinary intelligence under existing circumstances.8

How much more "good faith" could an entryman have had than to hire the county surveyor to come out and subdivide the section for him and, in essence, his adjoining neighbors? To not afford the entryman "good faith" under such circumstances is to say that the entryman had to have a greater knowledge of surveying and the rules of surveying than the county surveyor that he hired. If that's the case, why did he need to hire a surveyor? Any surveyor today who would discount the effort of the county surveyor, as original subdivider of the section, and penalize the original entryman and all subsequent property owners by setting a new center section corner (or any other aliquot part corner), has a basic misunderstanding of the Manual, its instructions and purpose, and a misunderstanding of property boundaries and boundary law. As a result, this surveyor will, as illustrated in our case-in-chief, "mischievously" bring "chaos" upon the neighborhood and further degrade the public's opinion of the surveying profession.

Maintaining the Integrity of Boundaries

I have had many surveyors say to me (through various means) that it's not their job to resolve boundary conflicts. Their only job is to find the conflicts and leave the resolution to the property owners left in their wake. There is also a very popular opinion that to do anything more than stake a deed on the ground is to put the surveyor in harm's way, vis-à-vis liability and litigation. My own study of boundary conflict cases involving surveyors indicates just the opposite (as illustrated by our case-in-chief). Ignoring bona fide property rights, boundary law and equity puts the surveyor squarely in harm's way, not out of it.

As Williams and Onsrud so eloquently stated in their treatise on surveying: "The surveyor, having made an evaluation of the evidence, forms an opinion as to where he believes the lines would be located if fully adjudicated in a court of law."9 If our job is to simply put legal descriptions from deeds on the ground and point out problems, then the public doesn't need the land surveyor. But that's not our job. Our job--no, our calling--is to maintain the integrity of our nation's property boundaries. This is a sacred task that must not be taken lightly. It requires expert knowledge and skill, not only in measurement science, but in the law and in the evaluation of evidence. Finally, it takes an adjudication of the true boundary line between coterminous landowners. If we're not up to the task, then let's step aside and let the "real professions" handle it.

Neither the author nor POB intends 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.