Read and respond to feedback from other readers.

Connections for the Future
October 2008

I read your article “Connections for the Future”with great interest. Anthony Trujillo and Holman's survey supply company were and are a great help to the plane surveying class at Mesa Community College, Mesa, Ariz. They gave us a really good deal on auto-levels, total stations and other equipment. One time we needed wood stakes, so Anthony had my pickup almost filled with different stakes-free. Each semester I taught surveying, a Holman's technician came over and demonstrated the latest equipment and let the students try their hand, too. I was at Mesa Community College from 2002 to 2006. I was richer for the experience. Anthony deserves a lot of credit for helping students to have a shot at full employment in an interesting profession.

David M. Niese, PE, Arizona

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Back to Basics
December 2008

I appreciated Mr. Crawford’s article for safety on the job. I’m not definitive on the statistic, but surveyor helpers rank some where between 11th and 25th in job fatalities according to the International Union of Operating Engineers.

I’m sure this dangerous situation can be greatly improved by the fastidious implementation of critical but simple new safety requirements. Here are a few ideas to share with the “troops.”

1) Why are surveyors the only trade/profession to work on the highway without professional flaggers? Are we not “worthy”?! This ridiculous practice has left a number of my colleagues crippled or killed in the line of duty. Fortunately, some state highway entities are beginning to require better safety standards for surveyors to “bring them up to par” with all other construction trades by demanding flaggers as part of the Right to Trespass permit. As surveyors, we need to include these safety provisions in our bids to:
A) Show our professional aptitude for the safety of the motoring public.
B) Reduce our liability for injury to our employees and demonstrate our genuine outgoing concern for their safety.

2) Weekly jobsite safety meetings [should be held] especially on hilly or golf course sites with limited sight distance due to the topography. I assure you that meeting a Cat 657 going 30 mph on the crest of a hill in your survey vehicle doesn’t inspire confidence for your safety. Driving a jobsite shouldn’t be any different than driving a public road. Safety first, and always drive defensively. Surveyors especially need to be aware of the paramount importance of always establishing eye contact and acknowledgment from heavy equipment operators before passing these machines. Many of these machines are notorious for blind spots when swinging booms or backing up. Often, surveyors travel the entire jobsite at any time to fulfill some kind of layout need. This involves showing up at unexpected places at unexpected intervals. It’s critical that managers and chiefs understand that they are responsible for the safety of their subordinates through their own actions. Do not send an untrained helper into heavy traffic without substantial safety training.

3) Think twice about sending a one-man [survey crew] into primitive areas where cellular and radio signals are unavailable. Sliding off an icy slope, setting off an avalanche, falling into an icy river or a wild animal attack are more survivable when someone is along to administer first aid or go for help.

Thanks to Mr. Crawford for his safety article, and may all of us give greater thought toward safety in this upcoming year.

Wm Henderson, LS

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Traversing the Law
December 2008

The issues raised in Mr. Lucas’columndeserve more thought. I do not wish to write an article of my own on this, nor do I want to clutter this letter with citations, so bear with me as I make some statements without formally citing authority in hope of maintaining some semblance of brevity.

I believe the crux of Mr. Lucas’ opinion is his sentence, “Once sections are subdivided, extensive obliteration has taken place, reliance has set in and boundaries have become established.” Historically, there have been dozens of ways proposed for subdividing sections, and landowners have relied on some of them, which is the concern of much of the Dykes v. Arnold opinion (cited in footnote 10 of the online version of the column). I suspect a desire for consistency drove much of the manual presence in state laws. But the resurvey portions of the manual allow for flexibility based on settlement patterns and local corners, a process requiring research and judgment. If there are “surveyor-created” problems, they trace to an undue reliance on one part of the manual to the exclusion of the rest of the book. This is not a problem with using the manual; it is a problem with misusing it.

Mr. Lucas includes a quote from U.S. v. Doyle (his footnote 10) to the effect that “questions involving ownership of land are determined under state law, even where the Government is a party.” That sentence does appear in Doyle, but its authority is questionable. Contrary to Mr. Lucas’ assertion, the Doyle court was not quoting the U.S. Supreme Court when it made that statement. It derived the idea from a portion of Mason v. U.S. that discussed the measure of damages rather than land boundaries.

Other authority that Mr. Lucas copied from Doyle in footnote 10 is equally problematic. U.S. v. Williams is not a public land survey case. The cited portion of the Standard Oil case merely follows Mason in its discussion of damages.

There is federal authority that the boundary of government-owned land is defined by federal law. Federal ownership is one of the attributes that takes the property out of state law control. Surveyors in my state of Washington are familiar with another such attribute-that land along the “international sea” is controlled by federal common law.

More to the point of the article, however, Mr. Mouland correctly noted that the initial territory included in a federal patent is governed by the public land laws in Title 43 of the U.S. Code, a truism that dates back to the wording of the statutes themselves, to Cragin v. Powell and Cox v. Hart, and that is repeated in many later Supreme Court cases. “The question as to the extent of this federal grant, that is as to the limit of the land conveyed … is necessarily a federal question. It is a question which concerns the validity and effect of an act done by the United States; it involves the ascertainment of the essential basis of a right asserted under federal law.” (Borax v. Los Angeles, 296 US 10.)

It is true that purely private boundary disputes seldom support federal court jurisdiction. A point worth remembering, however, is that in the western states there are a lot of federal/private boundaries. Severed mineral estate boundaries may not follow the lines of surface ownerships. State laws “out west” generally allow vast tracts of state land to follow the same laws (and to enjoy the same exemptions from common law boundary resolutions) as federal lands.

Mr. Lucas’ aside that a private surveyor in a state that has adopted the manual is breaking his state’s law if he sets a proportioned corner is baffling, as the rules for proportioning lost corners have for decades been published in circulars intended for the use of private and county surveyors. Mr. Lucas seems to believe a private surveyor cannot execute anything like a dependent resurvey. His logic would render illegal a private surveyor’s consideration of bona fide rights, itself a resurvey matter. I, and other surveyors with actual experience retracing PLSS surveys, have performed many such surveys, and they have led to defensible products and are useful tools for settlement of disputes.

Getting to state laws, Mr. Lucas misses the mark by stressing the “caprice” of state legislatures and agencies as the source of “Too much emphasis” on the manual. In Washington state, at least, the “rules of the land office” are entrenched in common law. Washington cases accept that federal statutes on section boundaries and subdivisions govern the initial boundaries of patents. Public land statutes, however, don’t tell you what to do after the original corners are obliterated and the land has been settled (except for the resurvey proviso on bona fide rights).

Neither does Washington legislation. We have an administrative rule specifying the use of the manual, with its own proviso that deviating from standard manual methods is acceptable if explained. But the solutions are found in our case law. We have cases that tell us how to deal with lost corners and subdivide sections, dating back to the beginning of our state. Similar case law exists in California, and I am sure it also does in Colorado, where Mr. Mouland has extensive practical experience.

My point is that our western courts have had to deal with the problems that are addressed in the more controversial parts of the Manual and have chosen to follow federal government rules. Finally, the manual has powerful potential as persuasive authority in litigation.

I would not advise surveyors in Washington to lobby their administrative agency to remove all mention of the manual from its survey standards. It would have no effect on boundary surveying because our courts already have their own precedent.

In other states, I suggest that surveyors research their own case law before following Mr. Lucas’ suggestion. I also want to point out that, in my recent work, I have carefully re-read the 1973, 1947 and 1930 manuals and have found new admiration for these “nice books in our library.” I used to think the 1973 manual was hard to understand, and I still think it harder to follow than the 1930 edition, but I have a great deal of respect for the work. In short, I am of the opinion that the 1973 manual is a damn good book. I hope the next edition will be better. No written work should be deemed “irrelevant” before it is even published, and I suggest we avoid dismissing the next edition until after we have read it.

Jerry R. Broadus, Washington

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Traversing the Law
December 2008

Regarding thearticleby Mr. Lucas in your December 2008 issue, I am dumbfounded by his premise and his references. If we are to believe this article, Mr. Lucas alone has found the secret decoder ring to survey law, and virtually every surveying textbook ever written, dozens of U.S. Supreme Court cases and hundreds of state court cases as well as hundreds of Interior Board of Land Appeals cases are in error. The cases he cites are irrelevant to the subject. And as an attorney, he knows how to “proof text” his writings to appear to prove a point while actually pulling things completely out of context. To claim a case about damages to property on federal land being under state law is somehow comparable to application of state boundary law to lands described under federal law is tantamount to fraud, and he misleads your readers in a very dangerous manner.

You need to stop providing a bully pulpit for this author who is certainly entitled to his opinions and theories but should not have a national forum in which to spew this misinformation and discredit the POB reputation.

Dennis Mouland, Arizona

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Traversing the Law
December 2008

I just got through reading Mr. Lucas'article, [in which] he makes the following statement, “The overall thrust of the manual is that it was and is written for BLM employees making original surveys of the public domain or resurveying indisposed of public lands that were previously surveyed.” This fact is something that I have been teaching my surveying students for years.

Mr. Lucas gives an illustration on how the manual does not control surveys in his home state of Alabama because it was surveyed prior to the manual being published. While I’m sure that neither Mr. Lucas nor Mr. Mouland (as quoted) intended to indicate that western states are governed by the manual more than older eastern states, the article may leave that impression to the casual reader. I would like to give another example of a western state that the manual may not entirely govern when land boundaries are being discussed. That would be my home state of Utah.

This state has a unique title history that touches the surrounding states to some degree because of the settlement activities of the Mormon Church (The Church of Jesus Christ of Latter-day Saints). This history starts, as all U.S. states do, with the Indians. However, in Utah history, the Indians acquiesced to the Mexicans (yes, the Spanish were here, as well, but it is not my purpose to give a history of those events). Utah and much of the surrounding territory was under the control of the Mexican government when, to escape persecution, Mormons left the boundaries of the United States of America and crossed into this Mexican Territory. They entered the Great Salt Lake Valley in July 24, 1847, and immediately began to settle the territory-not just Salt Lake City, but cities in Idaho, Arizona, Nevada and others to a lesser extent.

In 1848, the Treaty of Hildalgo was formalized between the Mexican government and the U.S. government in which much of the remainder of the western territories were purchased, of which the above-named states were a part. The first federal survey in Utah began August 5, 1855, when Joseph Troskolawski established the Salt Lake Base and Meridian. Prior to this survey, the Mormons were surveying towns and communities for settlement, had laid out streets, blocks and lots issuing titles under a set of laws that were eventually ratified by the First Territorial Legislature, which was held in Fillmore, Millard County, Utah being the Territorial Capitol.

The laws relating to land title included provisions for the creation of the County Recorder’s Office to publically record these documents. An additional provision of the Territorial Law required that when a person applied for a title it must be paid for and surveyed prior to recording. These surveys were being done prior to the first federal surveys. This law included a prohibition preventing the recorder from recording a title without a certificate of survey accompanying the deed. The law further required that the property be fenced within two years or the title could be forfeited.

Though the federal government began to establish the PLSS and issue patents, many of the patents issued to land that was already settled were only to ratify the titles already of record. Much of the PLSS that was surveyed in Utah would have been governed by the 1851 Manual; however, not all of the state is as of yet surveyed. I am aware of at least one patent survey that has been issued that the 1973 manual would control (excluding mining patents).

The point to all this that the manual in Utah and even some surrounding states may or may not be an appropriate “guide” in retracement work. Nor is the 1973 manual always appropriate. Surveyors should have a good knowledge of the title history of the state in which they practice to avoid the use of principles that do not control boundaries that we are called upon to reestablish.

Ernest D. Rowley, PLS, Utah

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