Traversing the law: Finding common ground.
We are a house divided, so fundamentally split over one core issue that we are forever destined to be known as the profession where no two surveyors could ever agree on a single corner position. That is, unless we can find some common ground despite our differences.
I have previously written about the divided house of land surveying and will not repeat all of that now. The core issue that divides us is what constitutes an original surveyor with regard to an original survey (the first surveyor on the ground or the first surveyor to draw protracted lot lines). There is also the collateral issue of “following in the footsteps.” Your feelings about the core issue directly impact how you approach the collateral issue.
These two companion issues completely divide the surveying profession--and everything we do with regard to boundaries--into two camps. Very few surveyors, if any, who are in one camp or the other will be persuaded by what I have to say on the subject, so I am not going to even try to persuade you one way or the other on these issues. Instead, I want to focus on one point where, perhaps, we have an opportunity for some common ground. That point is whether there is such a thing as a lost corner. If we could agree on this one issue, these other matters would resolve themselves.
If lost corners exist (please excuse the oxymoronic implications), then our destiny is sealed--we can end the discussion. If there is no such thing as a lost corner, our future looks a bit brighter. Over time, the pincushion corner will begin to disappear (or at least not escalate); there will be no more prorated corners based on “new” measurements establishing “new” corner locations that contradict established boundary lines and corners; land that has been subdivided once will remain subdivided forever; the arrival of the land surveyor will be welcomed because landowners will know that their boundaries will be recovered and rehabilitated, not cast aside in favor of new precise measurements; and never again will the arrival of the surveyor be characterized as “a great public calamity.”
The vast majority of cases that deal with the concept of a lost corner are in the PLSS context. Other courts outside of the PLSS that have dealt with lost corners treat them more like obliterated corners that are restored by extrinsic evidence. In the PLSS context, the real-world application seems to be that once hope is abandoned that the corner will be found, apportionment is applied even in the face of extrinsic evidence to the contrary.
The root source of the problem comes from the instructions to the government surveyors for surveying the lands of the federal government; that is to say, lands that have never been conveyed out of the public domain and into private ownership. Once the lands are conveyed into private ownership, the federal government has no more jurisdiction, and the instructions for the survey of the federal lands are no longer applicable.
The guiding legal principles are not in dispute. Where there is no controlling federal legislation or rule of law, questions involving ownership of land are determined under state law, even where the Government is a party. The rule is recognized implicitly by the federal statute permitting resurveys. (See 43 U.S.C.A. § 772). 43 U.S.C.A. § 772 provides in pertinent part: ‘The Secretary of the Interior may, as of March 3, 1909, in his discretion cause to be made, as he may deem wise under the rectangular system on that date provided by law, such resurveys or retracements of the surveys of public lands as, after full investigation, he may deem essential to properly mark the boundaries of the public lands remaining undisposed of: Provided, That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement.’ [Emphasis added.]
The “Manual of Surveying Instructions, 1973” (the Manual) essentially says the same thing in the very first sentence of the first section: “The Manual of Surveying Instructions describes how cadastral surveys of the public lands are made.” [Emphasis added.] We, the private practice land surveyors, are the ones who, in contradiction to established law and the intent of the instructions, have elevated the instructions and the Manual to something they were never intended to be--a bible for surveying private property.
This has been a mistake from day one because the Manual is misinterpreted, it contains errors, sections are read out of context and, most importantly, because it provides easy answers to complicated problems. This is the problem with the lost corner concept. You can call a corner lost and create a mathematical solution to a problem that may or may not require math. This pleases our technically oriented minds and lulls us into a euphoric numbness toward reality when the math seems so perfect, and armed with it, we can bring order to chaos.
Even the BLM is loath to call a corner lost−and the instructions were written by them and for them.
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. [Emphasis added.]
Who Can Call a Corner Lost?
The reality is that calling a corner lost was never an instruction that was intended for the private practice land surveyor. If we step back and look at the Manual as a whole, we discover that the Manual describes four general “types” of surveys.
First, there are the original surveys of the public domain whereby the unconveyed land of the federal government was subdivided into townships and ranges and then further subdivided into sections and fractional sections. If needed, these sections can be further subdivided into quarter sections and quarter-quarter sections--and so on and so forth. Chapter 3 is all about the original surveys.
Second, there are the dependent resurveys of the unconveyed lands of the federal government. Third, there are the independent resurveys of the unconveyed lands of the federal government. There are ancillary instructions for special surveys of private claims and other miscellaneous issues that comprise the balance of Chapter 6, but they all relate to either dependent or independent resurveys.
The fourth type of survey described in the Manual is the “retracement” survey. The Manual’s definition of a retracement survey, in pertinent part, reads as follows:
A retracement is a survey that is made to ascertain the direction and length of lines and to identify the monuments and other marks of an established prior survey. Retracements may be made for any of several reasons. … Recovered corners are rehabilitated, but a retracement does not include the restoration of lost corners or the reblazing of lines through the timber. The retracement may sometimes be complete in itself, but usually it is made as an early part of a resurvey. [Emphasis added.]
The argument is often made that this instruction is only for the BLM surveyors. If you want to make that argument, then ditto for the entire Manual! If you want to argue that Section 3-87 not only applies to virgin sections but also to previously subdivided or partially subdivided sections when some previous surveyor “didn’t get it right,” then 3-76 and 3-95 apply equally, as well.
These instructions read together tell us that the original intent of the original grantor under the PLSS (the federal government) was that once the sectional framework was laid out by the GLO/BLM, the local surveyor would be employed to further subdivide the sections into their aliquot parts. Given a virgin section, straight lines were to be run through the opposing quarter-section corners (and all other corners that control center lines) to establish the aliquot parts of the section. If this work has already been done, as when a section has been partially subdivided, then those previously marked corners are used to control the remainder of the section.
Section 3-76 of the Manual deserves its own special attention in the context of the present discussion. It states more fully:
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. [Emphasis added.]
What the BLM is saying is that, as the authors of the concept of a lost corner, the concept has no meaning outside of the context of the original surveys and resurveys that they conduct on the undisposed-of lands of the federal government. Unfortunately, that’s like handing a loaded gun to a child and telling him to go play nice with the other neighborhood kids. If there are any problems, the police can handle it. Oh, and by the way, we don’t assume any responsibility if you shoot somebody.
There Are No Lost Corners
If we could recognize that, outside of the PLSS context and the rules written by the BLM for surveyors surveying the unconveyed lands of the federal government, there are no lost corners, then it would be easy to recognize that there are truly only two “types” of surveys. There are original surveys of previously unsubdivided land, and there are retracement surveys to retrace existing boundaries and to rehabilitate their corners--not to call them lost and thereby set “new” corners with “new” measurements rendering the survey some hybrid “quasi-original” or “quasi-retracement” survey. The standard to be applied is “best available evidence,” which includes all relevant extrinsic evidence, whether it be direct, collateral or parol.
Being able to call a corner lost allows the surveyor to make easy work out of what may be a complicated problem. Expediency should not be the criterion for our work; rather, our criterion should be the protection of property rights that have been vested under the law and equity. Anything less renders us mere technicians looking for technically correct answers when well-reasoned opinions are needed.
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.
1. See, “A house divided.” POB November 2008.
2. Diehl v. Zanger, 39 Mich. 601; 1878 Mich. LEXIS 375 (Mich.1878).
3. United States v. Doyle, 468 F.2d 633 (10th Cir.1972).
4. Manual of Surveying Instructions, 1973, Section 1-1 at 1.
5. We did this by not only applying and misapplying the instructions in our private practice but also by insisting that sections of the Manual, or even the entire Manual, be incorporated into state law either by reference or by restatement in our respective state statutes, code sections, and technical standards. This was discussed more fully in “What’s Federal Law got to do with it?” POB December 2008.
6. Jacobsen and Downer v. BLM, 103 IBLA 83 (July 8, 1988).
7. Manual, Sec. 6-4 at 145.
8. Supra., Sec. 6-5 at 145.
9. Supra., Sec. 6-7 at 145, 146.
11. Section 3-87 states in part that: “To subdivide a section into quarter sections, run straight lines from the established quarter-section corners to the opposite quarter-section corners.”
12. Section 3-76 states in part that: “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 … The work usually includes the subdivision of the section into the fractional parts shown upon the approved plat.”
13. Section 3-95 states in part: “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 quartersection corner is at the intersection of the center lines, unless previously marked.” [Emphasis added.]
14. Paraphrasing Williams and Onsrud from “What Every Lawyer Should Know about Title Surveys,” American Bar Association, Section of Real Property, Probate and Trust Law, circa. 1980.