Traversing the Law: The Alabama rule.
Last month, I addressed the proposition put forth by others that Alabama case law in some way justifies and makes relevant a federal surveying manual--a manual written for BLM employees surveying the undisposed-of lands of the federal government--in the context of private-practice surveying of lands that have been conveyed out of federal ownership and into private hands.
As the examination of the cases went, it became increasingly obvious that Alabama is the wrong state to pick to make such an argument. Not only does Alabama law not cooperate, our Supreme Court has on many occasions been flatly at odds with the instructions found in the manual. In at least one line of cases, the Alabama Supreme Court has been against what federal law has to say on the subject of what constitutes a “proper corner” and against the great weight of similar state court rulings on the subject. That line of cases is Walters v. Commons and its progeny.
In Walters, the owner of the southeast quarter of Section 8, Township 18 North, Range 10 East of the St. Stephens Meridian, was suing his next-door neighbor to the west, the owner of the east half of the southwest quarter, in order to move the south quarter corner, as set by the GLO survey, farther west because, ostensibly, it had not been set at a point equidistant between the opposing section corners. A surveyor testified at the trial that a half-mile post had been set on the south line of the section, east of the midpoint on that line. The actual post was now missing, but its former location could be established on the ground from the “fore and aft trees.” Utilizing the half-mile post location and running a line north to the center of the section and then east to the section line would result in the plaintiff receiving one-quarter of the 642.8 acres reported on the original GLO plat. However, the surveyor also testified that the section was larger than reported, based on his own survey of the section, and that by moving the half-mile post to a point equidistant between the opposing section corners, the plaintiff’s land would increase by 1.5 acres and be one-quarter of the entire section as surveyed by him.
The trial court ruled in favor of the defendant stating, in essence, that the corners as set by the GLO surveyors could not be moved. The trial court justified its decision on the fact that plaintiff still received the acreage called for on the plat by utilizing the half-mile post.
The Alabama Supreme Court overruled the trial court. Quoting the Act of February 11, 1805, the Supreme Court noted that the quarter corners were to be set “as nearly as possible, equidistant from two corners which stand on the same line.” Since the corner in question had not been set in this manner, the court stated, “It is the opinion of the Court that this error can be corrected.” And it was so.
The Alabama Supreme Court had another opportunity to address its decision in Walters a few years later in the case of Nolen v. Palmer. This is another case where a half-mile post, still standing, was implicated. It is important to note that in both cases we are talking about original GLO monuments still standing at the section corners and half-mile posts still in place (or their former location ascertainable). The court, noting its previous decision in Walters and the apparent conflict it created with the “act of Congress of 11th February, 1805,” stated as follows:
The construction of this section of the act referred to, was settled by the decision of this court in Walters v. Commons, where the question was directly presented, as to whether the corners of subdivisions of sections, established incorrectly by the United States’ surveyor, could be corrected by removing, the half-mile stakes. The court held, that the corners of subdivisions of sections were not declared to be established “as the proper corners,” as was the case with the section corners, but that the corners of such subdivisions were to be placed “as nearly equi-distant as possible from the corners of the section;” and if a mistake was made in that particular, by the United States’ surveyor, the mistake could be corrected. We are free to confess, that this construction appears to us to be directly in the teeth of the act, which, in our opinion, as clearly establishes the corners of subdivisions of sections, when fixed by the surveyor of the United States, as the true corners of such subdivisions, as of the sections; but, as the decision is in relation to the boundaries of lands, we do not feel at liberty to overrule it. [Emphasis added.]
Cooley and Others Weigh In
In 1866, Walters was cited in a Michigan case--not to support the proposition that quarter corners set in error can be corrected, but to support the proposition that section lines, once run, are established and cannot be changed. In upholding this proposition, Chief Justice Cooley went even further: “Absolute correctness in the surveys will not, and cannot be attained, and that it is better for both the government and the purchaser to assume this fact at the outset, and be governed by fixed monuments, instead of leaving everything open to change in the future, when new and more careful surveys might be practicable.”
He went on to quote the United States Supreme Court in Lindsey et al. v. Hawkes:
In the [Lindsey] decision [the United States Supreme Court] fully recognize the practice of setting the quarter section posts, and hold that when once set, and individuals have acquired rights by reference to them, they are not subject to change. … This decision should be conclusive on the point, especially as it is not unreasonable, and sanctions the practice of the [GLO] department. We all know that when purchasers take lands from the general government, they ascertain the boundaries by going upon the land and tracing out the lines and stakes. No one supposes that if an error shall chance to have occurred in the survey, he is liable to have the corner post removed, and perhaps the portion of his purchase, which he regarded as most valuable, taken from him by a resurvey. The corner he looks upon as a fixed point, and it is only where no stake has been set, or corner designated, that he resorts to measurement to ascertain where the line will come. A post set which was to govern nothing, but to be itself controlled by course, distance and quantity, would not only be useless, but in the majority of cases would tend to deceive and invite litigation; and the purchaser is, therefore, warranted in inferring that it would not be set, except as a permanent monument. [Emphasis added.]
In 1927, the Idaho Supreme Court looked at what it referred to as the “Alabama Rule.” In Case v. Ericson, Walters and Nolen were cited in support of the proposition that quarter-section corners can be moved or “corrected” if they are not actually equidistant between the two opposing section corners. In ruling against this proposition, the Idaho Supreme Court said: “The Alabama rule is not followed in any other decisions we have found; and the rule that the quarter-section monument, if actually placed, controls the boundary, though erroneously located, is established not only in this state, but elsewhere and is likewise recognized by the United States Land Office in its circular above mentioned.”
Although Alabama case law has had many interesting things to say about land law and boundaries, citing it as the reason for the relevancy of a federal surveying manual isn’t a good idea. Perhaps in a state where there is still federal land to be surveyed and disposed of, utilizing instructions for such a purpose would be a better plan.
1. Walters v. Commons, 2 Port. 38 (Ala. 1835); Nolen v. Palmer, 24 Ala. 391 (Ala. 1854); and Wharton v. Littlefield, 30 Ala. 245 (Ala. 1857). Walters is, in all probability, the genesis for the Alabama proposition that a section is divided into its aliquot parts by utilizing the four section corners, ignoring any and all quarter-section corners in the process. This method was discussed last month in the context of the opinion in Upton v. Read, 256 Ala. 593, 56 So.2d 644 (Ala. 1952).
2. There are more subplots, twists and turns to this case than there are in a daytime soap opera, only a few of which can be fully explored in this brief column. Alabama and Florida have been recognized by the BLM as the two states with the infamous “half-mile posts.” See Sec. 5-39, 1973 Manual of Surveying Instructions. Needless to say, much confusion abounds over what to do about a half-mile post, if one were to actually be found. And therein lies much of the confusion and debate. Who is to say, absent original GLO corner positions as witnessed by original evidence, if the quarter corner in place today is a descendant of the half-mile post position or the true quarter corner? Add on top of this the fact that the original GLO plat in this case indicated that the south line of Section 8 was a regular 80 chains. Nevertheless, the original field notes were lost in the equally infamous “Cypress Lumber Company fire,” and the entire township was subject to a supposed dependent resurvey in 1843, eight years after the opinion in Walters. The 1843 resurvey also indicated that the south line of Section 8 was a regular 80 chains and that the surveyors set a “1/2 mile post” at 40 chains. This would render the post set a true quarter corner.
3. If you are complaining that this isn’t the proper way to subdivide the section, save your breath.
4. Assuming these facts to be true, this would indicate that the south line was long and not short. All other things being equal, a rough calculation of a 1.5 acre wedge 40 chains long would mean that the south line was in the neighborhood of a full chain long. However, the south line was reported to be 80 chains long on both the original GLO plat (undated) and the 1843 plat of the resurvey.
5. Actually this solution is, for all practical purposes, the same solution given by the BLM in Section 5-39. However, this author agrees with the criticism of the idea of moving monuments that were set by the original GLO surveyors, good, bad or ugly. It doesn’t matter that “true” quarter corners in many of these instances (but not the present case) were “penciled in” in the field notes. What the entryman saw when he entered the land were the monuments set and lines blazed. After 100 years of reliance and widespread obliteration, any proposition to move half-mile post positions (even assuming that one could establish such a position) to coincide with locally accepted section corners is idiocy of the highest order and simply another opportunity for the land surveying profession to look the part of fools who don’t know what they are doing.
6. Nolen v. Palmer, 24 Ala. 391 (Ala. 1854).
7. Id. at 394.
8. Britton v. Ferry, 14 Mich. 53 (Mich. 1866). How timeless is Cooley?
9. Id. at 70-71.
10. Case v. Ericson, 258 P. 536 (Idaho 1927).
11. Id. at 539.
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.