Traversing the Law: Sweet home Alabama.
I’m not sure why. Certainly, there are other states where such a debate would be, well, more relevant. The GLO surveys commenced in Alabama in the early 1800s and were wrapped up, for all practical purposes, by 1850. It’s been about 160 years since the last wooden “stob” was driven in the ground by Gen. Coffee and his men, and obliteration is widespread, if not complete. In addition, we have seen the wisdom in this state of not codifying any federal surveying manual (past or present) as the law of the land, while many other states, conversely, have felt a need to do so.
The apparent reason Alabama has been chosen for this honor is that our court decisions have been interpreted, at least by some, as speaking to the issue. However, I happen to know a little bit about Alabama court decisions. If these are the cases that speak to the relevancy of a federal surveying manual, then we need to look up the definition of relevant.
We’ll dispatch with the easy ones first and make our way to the cases that add a little fun to the discussion. Alford v. Rodgers, an adverse possession case, falls into the former category. We have covered adverse possession in this column before, and I have expressed the opinion that adverse possession is not a doctrine that avails itself to the land surveyor in determining boundaries. All of the elements can be in place, but adverse possession is a right and remedy that must be played out in court. Each and every one of its elements must be proven in court, and the burden is heightened for the plaintiff. The land surveyor should never put himself or herself in the position of hoping some attorney wins the adverse possession argument in court.
I have preached on many occasions that the resolution of any boundary problem is a mixed question of law and fact. The legal question is, “What is the boundary?” The factual question is, “Where is it located on the face of the Earth?” Adverse possession changes the “what” question. When this happens, we are no longer dealing with a deed and its proper interpretation; instead, we are dealing with a conveyance of land that has taken place outside of the deed. This is tricky territory indeed, and it’s an area I advise land surveyors to stay away from. Sometimes, a fence is just a fence and an encroachment is just an encroachment.
In the final analysis, Alford stands for the unremarkable proposition that section lines once established cannot be changed. “It is of course true that no act or even agreement of the parties can take the land out of section 11 and put it in section 14. And while the boundary line between adjacent land owners may be fixed and changed by agreement or by adverse possession, they cannot relocate a section line as surveyed by the Government surveyors.”
The case of Golden v. Rollins is a case about the admissibility of survey maps in court. This case is almost completely devoid of any details about the survey(s) in question or retracement and the relevancy of a federal surveying manual.
Similarly, Sims v. Sims has absolutely no details about the survey in question and is also an adverse possession case. The Sims court did say:
It should be borne in mind that the line to be settled is the true middle section line. The government survey of lands into sections does not establish the ground location of the interior subdivision lines [the fact question], such as the one here in dispute, but provides a basis for location of the interior lines, and they are none the less certain in legal contemplation [the legal question]. The ground location of section lines or of interior subdivision lines cannot be changed by agreement of the parties or by adverse possession, although possession and ownership of land in the proper section or subdivision may be acquired.
So how does this square with the surveying facts in the case? Well, we have no surveying facts. For all we know, the winning surveyor stubbed in the center quarter corner. Nelson v. Garrard and Dial v. Bond are of the same ilk. They tell us nothing we don’t already know and do absolutely nothing to edify the practicing land surveyor on how to resolve the evidentiary and factual question of where on the face of the Earth the property is located.
The final case in this category is White v. Berry. Again, we have no surveying details, but we are told in the court opinion that the quarter-section corner was never set. The most-compelling quote to come out of this case appears to be: “It is provided in Title 43, U.S.C.A. § 752, that ‘the corners of half and quarter sections, not marked on the surveys, shall be placed as nearly as possible equidistant from two corners which stand on the same line.’” Apparently, we have a code section that tells us this. Whether a federal surveying manual does or not is, I guess, irrelevant.
A Little More Interesting
The other cases used in the debate are a little more interesting but still do not enlighten us on how they make or help to make a federal surveying manual relevant. Take the case of McLaurine v. Knowles. This case, under Alabama law, stands for the proposition that a lost section corner in the interior of a township (corner common to sections 1, 2, 11 and 12) can can be reset by single proportionate measure by utilizing the northeast corner of section 2 and the southeast corner of section 11. (Who cares about the intervening quarter-section corners.) We have no surveying details other than the fact that the surveyor in the case proportioned the missing section corner from two directions only. This case tends to argue against the relevancy of a federal surveying manual.
The case of Upton v. Read is interesting, as well. In this case, we are told that in order to subdivide a section, only the four corners of the section are needed along with the field notes. What about the quarter-section corners and the plat? Apparently, they are irrelevant. “These interior subdivision lines, not surveyed or marked in the government survey, are none the less certain in legal contemplation. They are fixed and determinable by subdivision of the section, using the four corners of the section shown on the official field notes.” Have they rewritten the manual? I’m not sure where this is found in the current edition.
The Most Interesting
Of all of the cases cited, Guyse v. Chappell is absolutely the most interesting. However, the interest is not due to what is said in the opinion because very little is said about the survey of the property. As a matter of fact, nothing substantive is said about the survey except for the following: “Here it is undisputed that the Guyses’ survey correctly located the government survey lines.” And, the court added, “The validity of the Guyses’ survey was not challenged.” Therefore, the only logical presumption to be drawn is that Guyse’s surveyor ran straight lines between the opposing quarter-section corners. Let me correct that under Alabama law, the four corners of the section were used to subdivide the section, ignoring any and all quarter-section corners that may or may not have been set.
This case has been thrown at me on more than one occasion for the proposition that the center of a section must be set (over and over again, if necessary) by, as we like to call it here in Alabama, “breaking down” the section into its aliquot parts. But we know nothing about what the surveyors did in the case. For all we know, they stubbed in the center of section and nobody challenged it.
A couple of years ago, I was giving a seminar on survey retracement in Montgomery, Ala., and I was using the Guyse case as an example of a case not to use for any surveying issues specifically because we have so few details. At the morning break, one of the two surveyors who did the survey for Guyse approached me. (This is when things can get a little dicey. I do require that metal detectors be employed at these conferences, so I was fairly certain he was unarmed.) After he had introduced himself and stated his connection to the case, I asked him the $64,000 question: “So, did you guy’s break down the section, or what?” “No,” he said, going on to explain that the surveyors had a previous survey in their hands and followed it and an old fence to the center of the section, where they set their stob. “Well, the Alabama Supreme Court makes it sound like you guys broke down the section and set the center that way,” I said. “I know,” he said. “They make it sound that way, don’t they.” The moral of the story: We can’t assume details in a case that aren't specifically stated.
We now have another case that was decided in this state in 2007 that falls in line with the thinking in Adams v. Hoover and Dykes v. Arnold and is much more relevant in that it contains all of the surveying details we crave as land surveyors. However, time and space will not allow me to finish this review of the relevancy of Alabama law to the discussion on the relevancy of a federal surveying manual, so we will have to pick this up again next month. Believe me when I say that I’m leaving the best for last.
1. The decisions that have been cited include: Walters v. Commons, 2 Port. 38 (Ala.1835); Nolen v. Palmer, 24 Ala. 391 (Ala.1854); Alford v. Rodgers, 242 Ala. 370, 6 So.2d 409 (Ala.1942); McLaurine v. Knowles, 257 Ala. 8, 57 So.2d 543 (Ala.1952); Upton v. Read, 256 Ala. 593, 56 So.2d 644 (Ala.1952); Golden v. Roberts, 266 Ala. 640, 98 So.2d 409 (Ala.1957); White v. Berry, 266 Ala. 379, 96 So.2d 725 (Ala.1957); Sims v. Sims, 273 Ala. 103, 134 So.2d 757 (Ala.1961); Guyse v. Chappell, 367 So.2d 944 (Ala.1979); Nelson v. Garrard, 403 So.2d 230 (Ala.1981); and Dial v. Bond, 849 So.2d 189 (Ala.2002). Thrown in for good measure was the Montana case of Vaught v. McClymond, 116 Mont. 542, 155 P.2d 612 (Mont.1945).
2. Id. at 373, 410.
3. Id. at 105, 759.
4. Adams v. Hoover, 493 N.W.2d 280 (Mich. 1992).
5. Dykes v. Arnold, 129 P.3d 257 (Ore. App. 2006).
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.