Over the past several months I have been inundated with e-mails, calls and letters concerning the issue of original surveys and original surveyors. Some of this attention was, perhaps, self-inflicted due to comments I made in an earlier article regarding the presumed infallibility of original surveys, original surveyors and the monuments they set.

In retrospect, these comments contained a bit of hyperbole. Allow me to explore this issue and correct any misunderstanding I may have created.

Original Surveyor vs. First Surveyor

The first order of business is to discuss two closely related terms (or concepts): “original surveyor” and “first surveyor.” I do not believe that the courts make a distinction between these two terms; rather, it seems to be a distinction contrived by surveyors. As with our “rules of surveying” that quite often run afoul of what the law says, this distinction seems to make no difference from a legal standpoint. So what is the difference between an original surveyor and the first surveyor?

It seems that in the minds of many surveyors, an original surveyor is somehow cloaked with special authority and can do no wrong. The first surveyor, in contrast, is merely human and subject to error. I can’t say for sure that Brown was the first to make this distinction, but he articulates his position in Evidence and Procedures.1 Brown’s position seems to be one of chronology, with an “original” surveyor being one who goes to the field, sets monuments and then prepares a plat. In contrast, a “first” surveyor takes a plat to the field and then sets monuments. Chronology does play a role but not because one surveyor was “original” and the other “first.” It plays a role vis-à-vis intent, reliance, establishment and all of the other legal and equitable concepts that will come into play under state law, not some “rule of surveying.” Brown cites Rivers v. Lozeau2 as the authority for this proposition. In my mind, Rivers makes it clear that there are only two roles for the surveyor: you are either an “original” surveyor or a “following” surveyor--there are no other distinctions. Brown’s first surveyor concept appears to be his concept as opposed to a legal or equitable concept.

An authentic patent and compass are shown here with reproduction chains. Photo courtesy of Milton Denny.

I have searched case law from all over the country and have not found any reference to this distinction between “original” and “first.”3 What little I found indicates to me that in the eyes of the courts, the original surveyor is the first surveyor, and vice versa. The only power that either surveyor holds is first derived from intent: intent of the grantor and, to a lesser extent, the grantee (more on intent to follow). If the surveyor’s actions closely follow the intent of the grantor/grantee and if the grantor/grantee authorizes the surveyor’s work, then the presumption is strong that original intent is manifest in the surveyor’s work (the original survey and the original monuments).

Secondly, either surveyor is free to interpret the law. At some point in time and/or under the right set of circumstances, original intent is nullified or rendered moot. So the other power that either surveyor possesses is knowledge of the law (primarily state property law) and how it will be applied in any given set of circumstances.

Let me also say this: either surveyor can be deemed to have fulfilled original intent. To return to my earlier GLO example: original surveyor sets the exterior corners of the section and first surveyor enters the section in an attempt to subdivide it. First surveyor stubs in the center quarter, a la Dykes v. Arnold.4 There can be little question in any surveyor’s mind that original surveyor was fulfilling the intent of the federal government, but what about first surveyor? Before you answer that, let me ask this: if the federal government was so worried about the center quarter, why didn’t they set it?

Speaking on this issue, the Dykes court had this to say:

The above analysis does not fully resolve this dispute. Plaintiffs further argue that, in all events, Derrick’s survey [the first surveyor to attempt to subdivide the section] was a legal nullity due to his failure to follow the correct methodology for locating the center of section 12. Plaintiffs’ position is that federal law mandates that the center be located using a particular methodology, that Derrick’s failure to use that methodology resulted in the misplacement of the center, and that no property can lawfully be conveyed by reference to that misplaced center. As we explain, we agree that Derrick failed to follow the methodology that he was legally supposed to follow. But we disagree that either federal law, state law, or our own cases require that his survey be treated as a nullity. Rather, we conclude that, because Derrick was the first official to survey the interior of section 12 and to establish the center of the section, his survey should be regarded as an original survey that is controlling despite any errors in it, just as Mercer’s [the GLO surveyor’s] survey is.5

The fact is the federal government wasn’t worried about the center quarter. Who would establish it and how it would be established was contemplated by the original grantor. It would be left up to private practice surveyors (or county surveyors, or even entrymen) to further subdivide the sections and state property law would work out the problems. It was the original intent of the original grantor that grantees would hire local, private practice (or county) surveyors (or even employ self-help options) to fulfill the requirement that the entryman make a bona fide effort to subdivide the section.6 “The position for the center quarter-section corner is at the intersection of the center lines, unless previously marked.”7 So the answer to my question is “yes.” First surveyor can and does fulfill original intent even under the PLSS. First surveyor is original surveyor.

Myth Busters

The second order of business is to extinguish the myth that original surveyors, their original surveys and the monuments they set (original monuments, if you will) cannot be defeated--they indeed can be. When? In the first instance, when the original surveyor sets his original monuments in a place other than where the grantor intended them to be. In the second instance, when “enough” time has gone by, state property law can and will render original intent of the grantor moot.

Since original intent can be defeated, as when intent comes into contact with occupancy rights that have ripened into legal rights, or in the senior/junior conveyance scenario, it only follows that original monuments set by the original surveyor, fully in compliance with the grantor’s intent, can be defeated also.

We can all envision how this could happen in the private arena. Jones wishes to sell the Brooklyn Bridge to Smith. Jones commissions a survey, and this surveyor stakes the deed Jones hands him. This is an original conveyance on the part of Jones (the ink is still wet), these are original lines being run by the surveyor (as opposed to a retracement), and original monuments are set. Of course this is a ridiculous example, right? It’s only ridiculous because of the degree of exaggeration. Land surveyors do this type of work everyday.8

Does this happen under the federal PLSS? There is an almost overwhelming presumption in favor of the federal government, its original surveys and its original monuments. However, as with most presumptions, it’s rebuttable. Let’s take a step back and see why the presumption exists. The underlying theory that supports the concept of the PLSS was that the federal government (the original grantor under the system) would pre-survey the land, thereby bringing certainty into the conveyance, and an end to the litigation and fraud that was plaguing the metes and bounds system in the East. That’s worked out well.

The government pre-surveyed the land, then handed the entryman a copy of the plat, a copy of the field notes and letters patent (basically, a quit claim deed). The entryman was to go to the field, find the lines the surveyors had cut and blazed, find the original monuments in place, occupy the land and live happily ever after. Just to make sure they drove the proverbial nail into the coffin containing all of the questions related to intent, the government passed what we surveyors often refer to as “the Act of 1805.”9 That act lives on today in Title 14, Chapter 18, Section 752 of the United States Code. It provides, in pertinent part, as follows:

All the corners marked in the surveys, returned by the surveyor-general, shall be established as the proper corners of sections, or subdivisions of sections, which they were intended to designate…. The boundary-lines, actually run and marked in the surveys returned by the surveyor-general, shall be established as the proper boundary-lines of the sections, or subdivisions, for which they were intended, and the length of such lines, as returned, shall be held and considered as the true length thereof.10

How much clearer can the intent of the original grantor be? Can it be defeated? The simple answer is yes. As with our Brooklyn Bridge example, even the federal government can’t sell what it doesn’t own. Let’s suppose that the government makes a treaty with a Native American tribe, recognizing and otherwise quit claiming the government’s interest in all that lies within the reservation boundary. GLO surveyors go to the field, place original monuments inside the reservation boundary, and the General Land Office issues letters patent. As to the location of the reservation boundary, the treaty will trump any and all laws of the federal government (save the Constitution) and the boundary will be resolved in accordance with the treaty, original GLO monuments notwithstanding.

Intent is King

Once we leave the PLSS, these issues are not separated by lines that are quite as bright. The lines turn to varying shades of gray and actually cross each other under the right set of circumstances. What I mean by this is that our “rules of surveying” can actually be reversed. A senior conveyance can be defeated by a junior conveyance, for example. Original monuments set by original surveyors will be upheld under one set of circumstances and thrown out under another.

As to the general principle, that monuments control both courses and distances, there can be no doubt. It is too well established here and elsewhere to need the citation of authorities.11

Prima facie, a fixed visible monument can never be rejected as false or mistaken in favor of mere course and distance as the starting point, when there is nothing else in the terms of the grant to control and override the fixed and visible call.12

The Mealeys argued at trial that the 1971 [original] survey pins constituted a boundary for the purpose of the boundary by acquiescence claim…. The Arndts argue that the survey markers did not establish a sufficiently definite or visible boundary line. Mealeys presented evidence that Rietveld [the original developer] located the pins before selling the lots, that one pin was located near an electrical box, and that the pins were in the same location as indicated on the [original] 1971 survey…. Even viewed in the light most favorable to the Mealeys, this evidence does not support a conclusion that a visible, definite, and certain boundary sufficient to transfer legal ownership of property under the doctrine of boundary by acquiescence existed at the location asserted by the Mealeys [that location being the original monument positions set by the original surveyor].13

These fundamental survey principles provide that the parties’ intent is paramount to all other considerations when interpreting surveys and conveyances. In the case sub judice, the Certificate of Dedication on Plat E-52 clearly shows that the Zollingers intended that the northern boundary of the Big Horn Tract extend to the east-west quarter section line and not to Best’s [the original surveyor’s] erroneously located monuments. Best failed to survey the Big Horn Tract pursuant to the Zollingers’ clearly expressed intentions.14

The reason (the only reason) monuments have their presumed hierarchy in the priority of calls is that the courts generally see them as imbued with, and the physical manifestation of, the intent of the grantor/grantee. After all, the grantor and the grantee can walk the boundary line and see the physical monuments. When this happens there can be little doubt as to intent. Even when it isn’t known that this happened, it’s presumed that it did. “The general rule that courses and distances must yield to natural or artificial monuments rests upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties.”15

As far as the surveyor’s role and duties go, I like what Rivers v. Lozeau has to say on the subject:

In working for a client, a surveyor basically performs two distinctly different roles or functions: First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the “original surveyor” and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line. Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he “traces the footsteps” of the “original surveyor” in locating existing boundaries. Correctly stated, this is a “retracement” survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a “following” or “tracing” surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it [emphasis added].16

Go forth and measure redundantly.

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.