In March 2005 we visited the subject of the rewriting of the Manual of Instructions for the Survey of the Public Lands of the United States, 1973, better known as the “Surveyor’s Bible” or simply “the Manual.” In the time between then and now, I have learned much more about this document and its use and misuse by surveyors across the country. I have also learned a great deal more about why the BLM sees the need for the next edition of this tome.
For many surveyors the Manual simply has no application whatsoever. There are only 30 states that were formed out of the public domain. Many of those early public domain states were surveyed and the land conveyed before the first edition of the Manual was published in 1855. These early surveys were performed under general and special instructions issued by territorial surveyors general (under the respective direction of the GLO commissioner, secretary of the interior, and secretary of the treasury). Yet even in these states that were surveyed prior to the first edition of the Manual, it is still seen as some sort of guiding light to all things GLO/BLM (General Land Office/Bureau of Land Management). In many western states, whole sections of the Manual or the entire book have been incorporated into state law either directly or by reference, making the instructions very relevant in everyday practice. In other public domain states, the Manual is referenced in regulations, the common law and/or in standards of practice, and the implication exists that it is to be followed when dealing with sectionalized land.
As I travel across the country, especially in western states that have adopted the Manual into state law, and talk to surveyors about how they interpret the Manual, there is a great deal of confusion in the surveying community over how to apply its instruction. Some of this confusion comes from the Manual itself, which the BLM has recognized. Thus, the next edition. Much of the rest comes from surveyors not understanding fundamental principles of property law and how to resolve apparent conflicts created by the Manual’s instructions. First, we’ll address the next edition and then the interpretation problems.
The Standard or Burden of Proof
By the Manual’s own definition, an “existent corner is one whose position can be identified by verifying the evidence of the monument or its accessories, by reference to the description in the field notes, or located by an acceptable supplemental survey record, some physical evidence, or testimony.”1
An obliterated corner is “one at whose point there are no remaining traces of the monument or its accessories, but whose location has been perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of interested landowners, competent surveyors, other qualified local authorities, or witnesses, or by some acceptable record evidence” [emphasis added].2 To further emphasize that the beyond a reasonable doubt standard is necessary to prove a corner obliterated, one simply need check the definition of a “lost” corner. “A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt…” [emphasis added].3
To further understand the implication of the “beyond a reasonable doubt” standard, consider how it is applied in a criminal case. This is just enough doubt to keep one from being firmly convinced that something is true. In other words, this is the highest standard of proof in our criminal justice system. When applied to finding corners, it means you must have enough evidence proving the corner location to overcome (or to get beyond) reasonable doubt that may exist as to the corner’s location.
Think of the O.J. Simpson case. Why wasn’t O.J. convicted? When the glove didn’t fit they had to acquit, because that was just enough to create the scintilla of doubt that allowed for acquittal. As applied to a corner location, it would be the same. You may have every reason to believe that the monument you found is the true corner location (or that you have otherwise located the corner), however, if you have the slightest bit of doubt, you must acquit. In other words, let it go and proportion the corner location.
The BLM has recognized for some time now that the “beyond a reasonable doubt” standard of proof is unreasonable and cannot be met, especially when applied to obliterated corners. It has dropped the burden of proof for its surveyors when it comes to finding corners existent or obliterated to the “substantial evidence” rule. “Substantial evidence” is enough evidence to prove a fact that is less than a preponderance of evidence (the greater weight of the evidence or more than 50 percent) but more than a scintilla of evidence (the smallest trace).
The weight of authority is convincing that the proper standard for BLM to apply in the course of a resurvey is to consider a corner existent (or found) if such a conclusion is supported by substantial evidence…. The dissenting opinion appears to argue that the “substantial evidence” test is unprecedented. As BLM well knows, and hence its petition for reconsideration in this case, the standard enunciated here comports with the agency’s own interpretation of the Survey Manual, which it wrote, and the actual manner in which it has consistently applied the provisions of the manual throughout the years in thousands of survey decisions. The entire thrust of the Survey Manual is to recognize corners as existent, rather than lost, if at all possible. The Board’s prior decision, requiring proof beyond a reasonable doubt that a corner is existent, understandably caused a stir among survey professionals and BLM management.4
As stated, the “substantial evidence” rule applies only to the BLM in its own retracement efforts. It doesn’t apply to private practice surveyors. The applicable burden of proof on the private practice surveyor is and always has been the “preponderance of evidence” rule. This is the evidence standard that is applicable in state civil court actions where the land surveyor will generally find him or herself if sued for negligence or if brought into court to defend a survey opinion. This standard basically asks and answers in the affirmative: Is it more likely than not that the corner position I have found is the original corner?
What if the surveyor isn’t in state civil court but is up against the BLM over a national forest boundary (or other federal property) and federal law applies?
Utilization by BLM of a substantial evidence test for establishing that a corner is existent is not to be confused with the standard of review applied by the Board in adjudicating appeals from survey decisions. The Board has held that a party challenging the correctness of a dependent resurvey must show error by a “preponderance of the evidence.” Thus, in an appeal from a survey decision, an appellant may be able to show that its placement of a disputed corner location is supported by substantial evidence. However, as long as BLM’s placement of the corner location is also supported by substantial evidence, appellant’s showing is to no avail. To prove error in the BLM decision, appellant must demonstrate by a preponderance of the evidence that BLM’s placement of the corner is wrong. Similarly, where BLM has concluded in a dependent resurvey that a corner is lost, appellant may not be heard to say that it can show by substantial evidence that the corner is found. It must establish error in the BLM decision by a preponderance of the evidence.5
Even though these decisions don’t come out and say it, it’s obvious that if the BLM proves a corner by more than substantial evidence, say by a preponderance of the evidence or even more, the burden will still be on the challenger to overcome whatever evidence the BLM brings to the table.
Private Property Rights and the Manual
One basic misunderstanding that surveyors have about interpreting the Manual is that state law (not federal law or instructions issued to federal surveyors, i.e., the Manual) will be applied to issues such as bona fide property rights that have been vested in individual landowners (unless the federal government was a party to the conveyance). “Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone, including a particular surveyor, might erroneously believe the correct location of the true boundary line to be.”6
The Manual itself speaks to this issue:
The Bureau of Land Management assumes no control or direction over the acts of local and county surveyors in the matters of subdivision of sections and reestablishment of lost corners of original surveys where the lands have passed into private ownership, nor will it issue instructions in such cases. It follows the general rule that disputes arising from uncertain or erroneous location of corners originally established by the United States are to be settled by the proper local authorities or by amicable adjustment. The Bureau desires that the rules controlling the acts of its own cadastral surveying service be considered by all other surveyors as merely advisory and explanatory of the principles which should prevail in performing such duties.7
The preceding instructions will be applicable in the large majority of cases…. It is not intended to disturb satisfactory local conditions with respect to roads and fences. The surveyor has no authority to change a property right that has been acquired legally, nor can he accept the location of roads and fences as evidence prima facie of the original survey. Something is needed in support of these locations. This will come from whatever intervening record there may be, the testimony of individuals who may be acquainted with the facts, and the coupling of these things to the original survey. Other factors to be considered are the rules of the State law and the State court decisions, as distinguished from the rules laid down by the Bureau of Land Management.8
As far as the center 1/4 and other legal subdivision corners are concerned, many surveyors believe that these corners can be freely moved about until some surveyor comes along and finally “gets it right.” What does the Manual say?
To subdivide a partly surveyed section, the remaining subdivision-of-section lines within the surveyed area would be determined by running straight lines between the nearest established control for the sectional center lines. The position for the center quarter-section corner is at the intersection of the center lines, unless previously marked9 [emphasis added].
And when has the center 1/4 or any other legal subdivision corner been previously marked? When the first good faith effort was made to subdivide the section.
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.10
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 conditions…. Lack of good faith is not necessarily chargeable if the entryman has not located himself according to a rigid application of the rules laid down for the restoration of lost corners.11
The determination of bona fide rights and good faith on the part of entrymen isn’t something that can be determined from a formula or, as the Manual says, from a “definite set of rules … laid down in advance.” And this is the problem. Surveyors love formulas and definite rules. This makes the surveying task easy. There is nothing easy about determining the location of the true boundary between two coterminous landowners. If it were easy, anybody could do it.
Go forth and measure (not monument) redundantly.