How many surveyors does it take to subdivide a section? Unfortunately, this isn’t the beginning of some joke with a witty punch line. If it were, the answer would be something like: “As many as it takes until one of them gets it right.”

Yes, this is another article about the Public Land Survey System (PLSS), but for my friends on the East Coast, stick with me because the property law issues are the same. The reason the issues are the same is that the federal government didn’t invent property law along with the PLSS. Property law developed over the last 1,000 years through English common law and equity, and over the last 230 years, those laws and principles have been adapted to this country. In fact, property law is still being developed. Does anyone really think the federal government was the first to articulate that original monuments set by original surveyors are paramount? This concept predates English common law:

So Jacob took a stone and set it up as a pillar. He said to his relatives, ‘Gather some stones.’ So they took stones and piled them in a heap. … Laban said to Jacob, ‘Here is this heap, and here is this pillar I have set up between you and me. This heap is a witness, and this pillar is a witness, that I will not go past this heap to your side to harm you and that you will not go past this heap and pillar to my side to harm me.[1]

In other words, this monument will mark the boundary between your people and my people, and we will live happily ever after. And it continues to this day:


In 1987, the Eltons sold approximately two acres of this land to Marcellus and Rhonda Davis. Mr. Elton measured off the two-acre lot with his tractor computer starting on the east side of the lot where the Davises had started their construction and had placed their septic tank. A road bordered the south side of the lot. Mr. Elton placed a steel fence post on the west side of the lot to mark the western boundary. The Eltons executed a warranty deed to the Davises on November 6, 1987.[2]


In other words, this monument will mark the boundary between your people and my people, and we will live happily ever after.

Then comes the modern-day surveyor relying “solely on current data, calculations and global positioning in determining the property boundary.”[3]


The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance--a rule that we have frequent occasion to apply in the case of public surveys where its propriety, justice and necessity are never questioned.[4]


Likewise, boundaries originally located and set (right, wrong, good or bad) are primary and controlling when inconsistent with plats purporting to portray the survey and later notions as to what the original subdivider or surveyor intended to be doing or as to where later surveyors, working, perhaps, under better conditions and more accurately with better equipment, would locate the boundary solely by using the plat as a guide or plan (emphasis in original).[5]


Boundless Confusion

To say that surveyors are confused over our duties and responsibilities toward boundaries would be an understatement. We have been discussing this confusion over the last several months. One thing I haven’t pointed out is that judges and attorneys are also confused over these issues. Listen in as one trial court judge expresses his thoughts on the matter:


I just wanted to be sure I was interpreting his survey correct. This is one of the most confusing surveys I’ve ever tried to try. We have two very good surveyors in this matter. Both have done an honest job, tried to do what’s right. Very difficult situation because of some other surveys that obviously were very wrong at times. We’ve got a bad closure in the 1946 deed that creates some problem. We have Sterling Jones’ survey in particular that creates a problem. He’s all over the country. Mr. Moore’s survey is closer. And of course Crutchfield is in the ballpark. But the Court has to decide these matters. I can’t leave these parties in a dispute. Whether or not I can settle it completely--I certainly can’t satisfy everybody, but I have to do something to resolve this dispute that’s been going on. And the way I see it, every time a surveyor came out there it created more problems. Deeds were made that were not correct off of surveys that were not correct.[6]


Herein lies one of our biggest problems as boundary surveyors: bad surveying done in the past by surveyors who did not understand property law, who attempted to interpret deeds they didn’t understand, who applied math to a situation that didn’t require a “formula,” who applied arbitrary “rules of surveying” contrary to the law and equity and who disavowed any responsibility for the carnage left in their wake. Worse yet, we attempt to correct these past sins in the name of “getting it right” and ostensibly “protecting” the property rights of affected landowners. Nowhere is this more apparent than in the PLSS and the further subdivision of the sections.


Plaintiff’s surveyor, Denison, took a different approach. He concluded that Derrick’s survey should be disregarded because Derrick had not used what was then--and still is--the legally prescribed method for measuring to the center of a section. That is, Derrick had “stubbed in” to find the center, rather than running east-west and north-south center lines between the opposing quarter corners and then placing the center at the point where the two lines intersected. Because no other recorded survey in the nearly 100 years since had attempted to locate the center of section 12, Denison approached it as though the center of the section had never been identified by any authoritative survey. He therefore located the center anew, using the legally prescribed methodology and modern survey equipment. According to Denison’s survey, the center of section 12 should be located about 71 feet northwest of where Nyhus located it.[7]


By what authority does Denison base his work? “We know of no legal authority--and plaintiffs cite none--that holds that a mere reference to ‘the center’ of a section compels the conclusion, as a matter of law, that the parties intended to be governed by the mathematical center as it might be located in the future, rather than as it had been located.”[8]

Fixing the Blame

We’re confused, attorneys are confused and judges don’t always understand. But the law is not confused. I will agree that at the lower court level you can get almost any ruling under the sun because of the confusion that abounds. Trial court judges run into boundary dispute cases on rare occasions, especially compared to the other cases they try. The vast majority of them have no law clerks to research the law in any given case. It’s up to the opposing attorneys to argue the law, and, as we already know, the attorneys often don’t have a clue. Unlike many surveyors, however, the attorneys realize they don’t have a clue and the good ones attempt to get one.

Yet we surveyors continue on with our heads buried in the sand, ignorant of the law and “under an erroneous perception of a misguided duty.”[9] Even with a book in our hands, we only read those parts that we want to read. This, of course, brings us to the BLM’s Manual of Surveying Instructions 1973.[10] When it comes to the further subdivision of the sections, what does the manual say?


The local surveyor is employed as an expert to identify lands which have passed into private ownership. This may be a simple or a most complex problem, depending largely upon the condition of the original monuments as affected principally by the lapse of time since the execution of the original survey. The work usually includes the subdivision of the section into the fractional parts shown upon the approved plat. In this capacity the local surveyor is performing a function contemplated by law (emphasis added).[11]


This is no less than a statement of the original intent of the original grantor (the federal government) under the PLSS. It was the original grantor’s intent that local surveyors[12] would be employed for the further subdivision of the sections so that those buying land from the government could enter into the land and “secure the blessings of liberty.”[13] As with the original section corners set by the GLO/BLM surveyors, the original grantor contemplated that the monuments set by these “original” surveyors subdividing the sections would be relied upon by the entryman and property rights would be attached to them.


The Bureau of Land Management assumes no control or direction over the acts of local and county surveyors in the matter of subdivision of sections … 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 to be considered by all other surveyors as merely advisory and explanatory of the principles which should prevail in performing such duties (emphasis added).[14]


No surveyor in his or her right surveying mind would ever think that an original GLO/BLM corner position can be “corrected.” The sections were supposed to be perfect one-mile squares, and the townships were supposed to contain 36 of those perfect square miles. How many of them achieved that? Who wants to correct them now? Why, then, do we feel the need to correct sections that did not achieve the desired results? To put forth the proposition (as I have heard so many times) that we must continually subdivide the sections until some surveyor finally gets it right is ludicrous.

In essence, this argument says that the original entryman who bought the northeast quarter of a section in 1808 has to wait until 2008 for some surveyor to come along with RTK GPS and “correctly” set the center quarter before he can peaceably enjoy his property with the assurance that his property boundaries are settled. That a grantee would have to wait 200 years to enjoy his property doesn’t even pass the common-sense test let alone comport with any rule of law or equity. It is, quite frankly, a stupid “rule of surveying.”


This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.[15]


After 20 years, in most jurisdictions, it’s a done deal. The property rights have ripened into legal rights. Those who sat on their rights lost them, and those who asserted their rights are now backed by the state. To say you are somehow protecting property rights by creating “a kind of boundary ‘chaos’ throughout the area”[16] is equivalent to eradicating the cancer by killing the patient. If doctors who write prescriptions need to understand medicine, why is it that boundary surveyors don’t need to understand property law? This is a basic question that baffles me. Perhaps Brown is right: Many of us are just technicians.[17]

References

1 Genesis 31:45-52 NIV.

2 Elton v. Davis, 123 S.W.3d 205, 208 (Mo.App. 2003).

3 Romain v. Stael, 2005 Minn.App.Unpub. LEXIS 118, 7 (Minn.App. 2005).

4 Diehl v. Zanger, 39 Mich. 601, 605 (Mich. 1878).

5 McGhee v. Young, 606 So.2d 1215, 1218 (Fla.App. 1992).

6 King v. Lanter, 2004 Tenn.App. LEXIS 555, 3 (Tenn.App. 2004).

7 Dykes v. Arnold, 129 P.3d. 257, 269 (Ore.App. 2006).

8 Id. at 271.

9 Zen Temple v. Nelidov, 2006 Cal.App.Upub. LEXIS 2766, 19, 20 (Cal.App. 2006).

10 Manual of Instructions for the Survey of the Public Lands of the United States 1973, Bureau of Land Management, Technical Bulletin 6.

11 Manual, Sec. 3-76, Page 80.

12 Please note that there is no requirement here that the local surveyor be some sort of “official” such as a county surveyor. The only requirement is that the local surveyor be “employed” by the entryman attempting to enjoy his land and live the American dream.

13 From the preamble to the United States Constitution.

14 Manual, Sec. 3-76, Page 81.

15 Diehl v. Zanger, at 605.

16 Id. at 269.

17 “To be a successful professional surveyor, one must have more than a narrow technical education. Technical education has to do with things. Employees at a lower professional scale deal with things; professionals deal with people, situations, and ideas.” Walter G. Robillard, Donald Wilson and Curtis Brown, Evidence and Procedures for Boundary Location, Fifth Edition at 484.




Neither the author nor POB intend 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.

This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.