By and large, this is not the fault of the land surveyor. Most land surveyors are earnestly attempting to fulfill their duties and responsibilities as they know them to be. ... 



By and large, this is not the fault of the land surveyor. Most land surveyors are earnestly attempting to fulfill their duties and responsibilities as they know them to be.

Both lost corners and the applicable evidence standards have long been misrepresented by incorrect or inapplicable procedures. As a result, the damage has been done and continues to be inflicted on a daily basis. Every time a corner is declared “lost” and then replaced with new measurements setting up new corner locations contra exiting and established boundaries, the land surveying profession takes another hit and the public again reflects on the question: Why do we need land surveyors? 

The Lost PLSS Corner

Two years ago, I wrote a column about a California case that had cited State of California v. Thompson,[1] on the subject of establishment and retracement surveys. At the time, I said that the Thompson case was very important and one that we would need to examine. Now is the time for that examination.

California was part of the public domain and, as a result, was subject to the PLSS and the laws and instructions pursuant thereto. The issue in Thompson was a supposed “lost corner” and the proper method for re-establishing that corner.

In 1964, when the major events in this case took place, the State of California owned the northeast quarter of a certain section 7 and Thompson owned the northwest quarter of the same section. That section had been laid out by the GLO in two stages. In 1868, Towle began at the southeast corner of the section, ran 31 chains north and set the quarter section, and then he stopped his survey. In 1876, Woods picked up where Towle left off and ran 40 chains north and set the northeast corner. He then proceeded west across the north boundary of section 8 to the northeast corner thereof. He came back to the northeast corner of section 7 and then proceeded west 40 chains to a temporary point and continued 79.92 chains to the northwest corner. He returned and adjusted the north quarter corner of section 7 and marked it with bearing trees. In 1895, Gorlinski found Woods’ quarter corner and refurbished and perpetuated it with new bearing trees. In 1902, Stickney came along and subdivided the section holding the Woods-Gorlinski quarter corner on the north boundary of section 7. In 1906, Docker found the Woods-Gorlinski-Stickney quarter corner and refurbished. In 1939, Lermond found the same corner and replaced it with a concrete post. In 1961, Nelson was doing work in section 5 but tied to the northeast corner and the north quarter corner of section 7, respectively. He refurbished Lermond’s concrete monument and set his own concrete monument at the northeast corner of section 7.

Then came the boundary dispute. The state hired Larson to conduct a survey of the section in order to determine the common boundary between the state and Thompson as the north-south quarter-section line through section 7. Larson started at the west quarter corner of section 7 and proceeded north to the northwest corner. He then ran across the north boundary to the northeast corner of section 7 finding Nelson’s 1961 concrete monument. He then ran back to the west “in accordance with Woods’ calls until he arrived at the Lermond monument for the quarter corner between sections 6 and 7. Larson found that the calls matched the topography quite closely. After reaching the Lermond monument, Larson continued on to the west and was less successful in matching Woods’ calls. For example, a ravine and adjacent terrain called for by Woods at 58 chains was found by Larson at 64.8 chains. Larson reached the northwest corner of section 7 at 66.6 chains, whereas Woods had intersected the west boundary of section 7 at 79.92 chains. Larson explained this discrepancy by speculating that Woods had either made a mistake in his measurements or had run past the northwest corner of section 7 without seeing it.”[2]

Larson held the Nelson and Lermond monuments and accepted a “rusted, broken-off pipe in the ground” that he found at the center quarter. The pipe was 11.6 feet west of a straight-line intersection connecting the east-west and north-south center lines, utilizing Lermond’s monument at the north quarter corner. “Larson concluded that the boundary between the northeast and northwest quarters of section 7 was a straight line between the pipe and the Lermond monument.”[3]

Thompson’s surveyor, Glover, would have none of this. The Nelson monument, instead of being due north of Towle’s east quarter corner was actually “18 degrees and 32 minutes west of north.” Glover threw out Nelson’s monument, declaring the northeast corner of the section lost, and set a new monument by the double proportionate method. He then cast aside the Lermond monument and single proportioned the north quarter corner. As a result, the “topography immediately to the east and west of Glover’s corner matched Woods’ calls very well.”[4] In addition, Glover’s resulting section was more “regular in shape and corresponds with the government plats. Glover’s survey resulted in a north boundary of section 7 which was only 100 feet shorter than the distance called for in Woods’ notes.”[5] Glover proceeded to resubdivide the previously subdivided section and called it all good.

The state objected to Glover’s survey results saying that he had resorted to proration before exhausting all efforts to find the original corners. In particular, Glover had ignored the “natural objects described in the field notes” in retracing the boundary line. In contrast, Larson used the natural objects to confirm the existing monumentation. Thompson criticized Larson for not starting his survey at the east quarter corner, where Woods began his survey, and literally following in the footsteps of the original surveyor. Thompson also argued that Glover’s survey was superior to Larson’s in that the Glover survey more closely matched Woods’ original survey. Finally, Thompson had to agree that proration is a method of last resort but denied that is what Glover did. In reply, the court stated:

Respondent’s contention that Glover did not locate the quarter corner between sections 6 and 7 by proportionate measurement is wholly unsupported by the record. Glover’s testimony is not in the least ambiguous, and he clearly stated that he located all three of the disputed corners (the quarter corner…, the northeast corner of section 7, and the center corner…) by the proportionate measurement method.[6]

In summing up the case, the court stated:

In the instant case, the verdict and judgment determined the boundary between [Thompson’s] and [the state’s] land to be as contended by [Thompson], who relied solely on the proportionate measurement survey made by Glover. [Thompson], in his brief, virtually concedes the impropriety of using the proportionate measurement method, since he has incorrectly attempted to argue that Glover located his corners by matching Woods’ calls to topography more closely than did Larson. Disregarding the inaccuracy of this assertion, it is certainly of interest that respondent has chosen to make it. It is apparent that if Glover could have located his corners by reference to Woods’ calls to topography, as respondent now suggests he could, he was clearly not justified in resorting to the proportionate measurement method to locate said corners. Assuming that respondent has not conceded the impropriety of the proportionate measurement method, an examination of the record nevertheless discloses abundant evidence that the quarter corner between sections 6 and 7, as originally set by Woods, could be located on the ground by methods other than proportionate measurement.[6]

Always Some Evidence

The reason there are no lost corners is that there will always be some evidence of the corner location. If there is some evidence, then this evidence constitutes the “best available evidence,” and the corner cannot be considered lost.

[I]t is for the jury to ascertain and settle at what precise point the disputed or lost corner was placed, and the disputed line marked, by the government surveyor in his original survey. And to enable the jury to perform that duty intelligently, any evidence, whether parol or written, may be submitted to them, which has any natural and reasonable tendency to show where that corner was placed or that line marked in the original survey. Recourse may be had to the unobliterated marks and corners of that survey, to the field-notes and plat, and to subsequent surveys made under their guidance. Such subsequent surveys cannot alter or control that survey; for, so far as it can be traced or proved, it must govern. But still they may aid the jury in ascertaining the original position of its lost corner. … With their aid, the jury may be enabled to ascertain with reasonable certainty where the lost corner was located in the original survey.[7]

Newfound Management v. Sewer contains the best recitation of what constitutes “best available evidence” that I’ve been able to find.

After a surveyor has completed a comprehensive review of all available records, deeds and prior surveys, the surveyor begins the field survey. Once in the field, the surveyor has a duty to make a diligent search for all monuments referenced directly or indirectly in the deed or property description that either occur naturally or were put in place by prior surveyors or other persons. Monuments have special significance because monuments indicate the location of property at issue on the ground. The search for monuments must continue until the monuments are located or until there is an explanation for their absence. If necessary, the surveyor should consult former surveyors, landowners, residents, or other knowledgeable parties to determine monument sites or obtain other information tending to show where a piece of property should be located. Testimony of neighbors and informed residents concerning boundaries is an important source of information for resurveys. As stated in one treatise, ‘a diligent, thorough, and complete search for all evidence is the fundamental essence of land surveying.’ Through these investigative efforts, the surveyor attempts to reach his or her goal: the ‘location of land boundaries in accordance with the best available evidence,’ even though the best evidence may be ‘mere hearsay or reputation.’[8]

Proration isn’t even mentioned as a consideration. The only context in which a corner can be called lost and replaced by proportionate measure is found in the instructions to the government surveyors surveying the undisposed-of lands of the United States. In all other contexts, the courts, who have been truly apprised of the issues at hand, refuse to call corners lost because they know what is at stake: the peace and tranquility of society. As the Oregon Supreme Court put it, “Where the permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement either of lines, angles or surfaces, the boundaries or monuments are paramount, and there is no reason why the locality at which a lost stake was set could not be determined.”[9] [Emphasis added.] We would all do well to keep this in mind.


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.



References

1. State of California v. Thompson, 1971 Cal.App. LEXIS 1731 (Cal.App.1971).
2. Id. at 8.
3. Id. at 11.
4. Id. at 14.
5. Id. at 14, 15.
6. Id. at 20, 21.
7. Billingsley v. Bates, 1857 Ala. LEXIS 104, 5 (Ala.1857).
8. Newfound Management v. Sewer, 885 F.Supp. 727, 747, 748 (U.S.Dist.1995).
9. Raymond v. Coffee, 1873 Ore. LEXIS 41, 5 (Ore.1873).

References

1. State of California v. Thompson, 1971 Cal.App. LEXIS 1731 (Cal.App.1971).
2. Id. at 8.
3. Id. at 11.
4. Id. at 14.
5. Id. at 14, 15.
6. Id. at 20, 21.
7. Billingsley v. Bates, 1857 Ala. LEXIS 104, 5 (Ala.1857).