Last time, we discussed lost corners and the idea that there really is no reason to characterize a corner as lost.

Time and space requirements forced us to leave that discussion without exploring the basic reason why that characterization is never necessary--the evidentiary standards to be applied in retracement work. While we await the release of the updated Manual (anticipated in early 2010), the existing 1973 edition of the Manual[1] is implicated in the confusion that abounds over this issue. We’ll explore what the existing Manual says about the evidence standards and then discuss the real evidence standards for retracement work and why there is never a need to consider a corner lost.

Beyond a Reasonable Doubt

One of the problems with the existing Manual is the evidence standard that it articulates for lost and obliterated corners. This problem has been recognized by the BLM for years and is one of the main issues that will be addressed in the next edition of the Manual. The current standard articulated in the Manual by which to call a corner obliterated is “beyond a reasonable doubt.” If this standard is not met, then the corner must be considered lost and proportionate measurements are utilized to establish a new corner location. The problem is that “beyond a reasonable doubt” is the highest standard of proof in American jurisprudence. It is the standard necessary to convict criminals. Preponderance of the evidence (the greater weight of the evidence) is the standard normally utilized in the civil court, where property issues will be adjudicated.

Reasonable doubt is defined in Black’s as “doubt based on reason and arising from evidence or lack of evidence, and it is doubt which reasonable man or woman might entertain, and it is not fanciful doubt, is not imagined doubt. … Reasonable doubt is such a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.” Beyond reasonable doubt means that the evidence must overcome any doubt as to the corner location. The prosecution could not convict O.J. Simpson for murder under this standard, even though many people believed he committed the crime. It is a very high standard that carries a heavy burden.

If “beyond a reasonable doubt” were really the standard, it is doubtful that any corner could be considered obliterated because the standard is too high. Even an existing corner with a scribed 4-inch by 4-inch ancient wooden post found in place might not meet this standard if there is any reasonable doubt as to its authenticity regarding its location. Actually, the definition of an existent corner does not articulate the “beyond a reasonable doubt” standard and, as written, requires a lower standard of proof than an obliterated corner. An existent corner can be recovered by “dependable knowledge” of its former location; an obliterated corner requires “unquestionable testimony” when it comes to witnesses. If a corner is not existent, then, with an impossible standard of proof to call it obliterated, the only option left is to call the corner lost.

The Interior Board of Land Appeals addressed the issue of the proper standard of proof in the case of Jacobsen and Downer v. BLM (On Reconsideration):

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. “Substantial evidence” is defined by the courts as “more than a scintilla but less than a preponderance” and “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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. [Emphasis added.]

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.[2]

Another case that discusses the applicable standard in the PLSS context is the case of State of Idaho v. Barnett, where the Idaho Supreme Court clearly articulated the correct standard despite a contrary finding in the Idaho Court of Appeals.

Our review centers upon the Court of Appeals holding that a party seeking to recover the location of an “obliterated” corner must sustain the burden of proving the location of that point beyond a reasonable doubt. … At the urging of the State, the Court of Appeals zeroed in on the “beyond reasonable doubt” language underscored in § 5-9 of the manual quoted above. However, the manual has never been adopted as a rule of civil procedure in the courts of this state. Nothing in the record demonstrates that it was intended to serve as anything but a rule for the guidance of surveyors in the field in their analyzing evidence found at the scene.

We agree with the Barnetts that to affirm the Court of Appeals opinion in this case would create an untenable situation for private landowners whose property lines abut state lands. If affirmed, the Court of Appeals opinion would allow the State to resurvey a line, introduce evidence of a survey which states the corner is a “lost” corner not an “obliterated” corner, and then the private landowner would be saddled with the highest standard of proof that exists in civil or criminal law of proving that the corner is obliterated beyond a reasonable doubt. The effect of such an affirmance would be to change the long standing allocation of the respective burdens of proof in a civil trespass action. This we are not persuaded to do.[3]

The Real Evidence Standard

The problem caused by the “beyond reasonable doubt” standard is that corners have been needlessly characterized as lost because the standard was too high to consider them obliterated. Proportionate measurements are then applied creating new corners and new boundary lines based on new measurements. The only guaranteed result of proportionate measurement is that the original corner position will never be obtained. While the BLM may have the luxury of characterizing a corner as lost and then applying proportionate measurements to establish a new corner location when surveying the undisposed-of lands of the federal government, the land surveyor in private practice has no such privilege. That’s because property rights were vested in the original corner position, not a new corner position created through apportionment.

Fortunately, the real evidence standard to be applied to retracement work is “best available evidence,” which affords the retracement surveyor the opportunity to look at all of the available evidence, weight that evidence in light of the surrounding circumstances, utilize the best of that evidence, and reset a monument in the original corner position by a preponderance of the evidence. If the retracing surveyor has done the job right, then every following surveyor will come to the same conclusion, by a preponderance of the evidence, and will have no need to question the location of the corner. However, if the artificially high “beyond a reasonable doubt” standard must be maintained, then no monument, save an original monument, can pass muster under the standard and, therefore, must be cast aside in favor of new monuments set by new measurements at new corner locations. Can you say “pincushion”?

I hate to wear Justice Cooley out on this point, but he is quoted everywhere on this issue:

In … American State Reports … the following is found: “In Diehl v. Zanger, 39 Mich. 601, where the first survey of lots involved in litigation was made by one Campau, and a resurvey made years afterward by the city surveyor showed that the practical location of the whole plat was wrong, it was declared that a resurvey, made after the disappearance of the monuments of the original survey, is for the purpose of determining where they were, and not where they should have been [emphasis in original], and that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared. ‘Nothing is better understood,’ said Justice Cooley in delivering the opinion of the court, ‘than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. 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. But no law can sanction this course. The (city) 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. … The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. Campau, and when those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evidence [emphasis added] is usually found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known.”[4]


References

1. Manual of Surveying Instructions 1973, U.S. Department of Interior, Bureau of Land Management.

2. Jacobsen and Downer v. BLM (On Reconsideration), 103 IBLA 83, 86 (1988).

3. State of Idaho v. Barnett, 776 P.2d 438 (Ida.1989).

4. Wacker v. Price, 216 P.2d 707 (Ariz.1950).


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.