Traversing the Law: Retracement in a public domain state.
I promised a couple of months ago that I had a retracement case I’d address in the context of the relevancy of a federal surveying manual, especially as that relevancy has been pinned to Alabama case law.
Given the breadth of the previous discussions, it’s taken this long to get there. That case is First Beat Entertainment v. EEC. Unlike many cases dealing with the retracement of the GLO surveys--and the subsequent subdivision of the sections--that give canned recitations of the law without giving any of the details related to the surveying, this case gives a relatively detailed account. It is not as detailed as a case like Dykes v. Arnold, but it’s detailed enough to allow us to understand what happened from a land surveying standpoint and how the law relates.
In addition, unlike many of the commonly cited ancient cases that, over time, have become irrelevant due to all of the doctrines of the law that make all ancient controversies irrelevant, this case is new and relevant.
First Beat presents a classic PLSS surveying controversy. The townships and sections were set and established by the GLO many years ago, and widespread obliteration has taken place. Over the years, the section was subdivided, or so we should assume unless proven otherwise, as contemplated under the law.
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, depending largely upon the condition of the original monuments as affected principally by the lapse of time since the execution of the original survey. The work usually includes the subdivision of the section into the fractional parts shown upon the approved plat. In this capacity the local surveyor is performing a function contemplated by law.
Even though the section has been subdivided at least once, there is an irresistible urge on the part of the modern-day surveyor to undertake this task once again. Of course this begs the question: How many times does a section need to be subdivided?
Four surveyors showed up in court with at least two different answers to that question. Given that two of the surveyors went both ways on the answer, we could conclude that we had four surveyors and five answers to the question.
A special master, surveyor Rick Kinsaul, was appointed by the court to survey and ascertain the line in controversy, which was the south line of the north half of the northeast quarter of the section. Kinsaul approached the problem as if the section had already been subdivided at least once, which it had.
Kinsaul testified that he determined the location of the south line as follows. He did the field work necessary to physically locate the southwest corner of the northwest quarter of the northeast quarter of Section 26, which is the western terminus of the south line. The location of that corner had been marked previously with an iron pipe. He also did the field work necessary to physically locate the southeast corner of the northeast quarter of the northeast quarter of Section 26, which is the eastern terminus of the south line. That corner had also been marked previously with an iron pipe. He used the location of those two corners to determine the location of the south line, which connects those two corners. He testified that he did not locate the south line by retracing the original government survey of Section 26. However, he verified his placement of the south line by checking his placement mathematically in relation to landmarks described in previous surveys of property in the vicinity of the south line and landmarks described in the legal descriptions of deeds to property situated in the vicinity of the south line.
This south boundary intersects the west right-of-way line of U.S. Highway 231 at a point 156.20 feet north of a well-recognized “jog” in the right-of-way. This jog was utilized by the court as a landmark to distinguish the location of the south line in relation to the Kinsaul survey and the testimony of the other three surveyors. Surveyor Blanton, who had surveyed EEC’s property before the lawsuit, testified that Kinsaul’s survey correctly located the south line. He further testified that Kinsaul’s survey was accurate in indicating that the intersection was 156.20 feet north of the jog. Blanton also appears to have held the position that once subdivided, always subdivided.
Surveyor Steensland came into court and stated that the results of his 1980 survey indicated that the line was 164.85 north of the jog. However, he also testified that his father had surveyed the line in 1968 and found it to be 156 feet north of the jog, roughly coinciding with Kinsaul’s determination. Surveyor Mercer came into court and testified that he had been surveying in the area from 1970 to 1990. In the early years, the line was 156 feet north of the jog, but over time, “the south line began to indicate that the intersection was 165 feet north of the jog instead of 156 feet.” In short, he was for it before he was against it.
Probably the most compelling and brutally honest testimony in the case came from surveyor Steensland.
Steensland testified that retracing the original government survey of the section … is the protocol for determining the location of a line subdividing the section. However, Steensland further testified that, because the monuments established by the original government surveys often disappear with the passage of time, modern-day surveyors often must rely on earlier surveys in order to determine the location of a line subdividing the section instead of retracing the original government survey. Steensland testified that he was uncertain where the south line was located after he performed his 1980 survey, and he remains uncertain today where the south line is located. Consequently, Steensland testified, he could not opine that Kinsaul’s determination of the location of the south line was incorrect.
The trial court ruled in favor of the Kinsaul surveyed line, and First Beat appealed. “On appeal, First Beat argues that the trial court erred in finding that Kinsaul’s survey accurately depicted where the south line was located because, First Beat says, Kinsaul did not locate the south line by retracing the original government survey of Section 26. … In support of this argument, First Beat cites 43 U.S.C. § 752.” The court of appeals answered:
43 U.S.C. § 752 provides that the corners of a section and any other landmarks within the section established by the original government survey shall be adhered to in the future. However, it does not purport to state that every time a survey is made of a line dividing a quarter of a section into quarters, the original government survey of that section must be retraced. Moreover, First Beat has cited no case law holding that 43 U.S.C. § 752 requires such a retracing. The reasonable inference to be drawn from the earlier surveys locating the south line and the iron pipes marking the termini of the south line was that earlier surveyors had located the termini of the south line and its location based on the location of the four corners of Section 26 as established by the original government survey of Section 26. In the absence of law expressly requiring that Kinsaul retrace the original government survey in order to locate the south line, the issue before the trial court was whether Kinsaul had accurately located the south line. Because the testimony bearing on that issue was in conflict, the trial court was required to evaluate the credibility of the witnesses and determine the weight to be accorded their testimony. [Emphasis added.]
Protocol does not equal the law. Besides this fact, it’s been my experience in these situations that proper protocol isn’t followed. Even in this case, not one of the surveyors claimed to have re-established original GLO positions at the section corners. Instead, locally accepted section corners were being used to “breakdown” the section with mathematical precision. To what end? If the section has already been subdivided once, how many more times does that task need to be done? How many times were contemplated under the PLSS?
Here is a more basic and fundamental question: If an entryman buying the north half of the northeast quarter of the subject section, paying top dollar in 1820 for valuable land, were to be told that he could not fully enjoy his property for 190 years until some surveyor comes along in the future to subdivide the section with RTK GPS and finally “get it right,” how many sales would the federal government have made? People with common sense would have refused to buy the land under those constraints unless the lands were being offered at a discount.
To quote Cooley, “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.” This guy just never gets old.
1. First Beat Entertainment LLC v. EEC LLC, 962 So.2d 266 (Ala. App. 2007).
2. Dykes v. Arnold, 129 P. 3d 257 (Ore. App. 2006).
3. Manual of Surveying Instructions 1973, Bureau of Land Management, Section 3-76. Also see the discussion on “bona fide rights” and “good faith,” especially Sections 6-12, 6-13, 6-15 and 6-16.
4. First Beat at 268.
5. Id. at 269. Just how and why this quarter-quarter line “began” to move doesn’t take too much imagination. How it could move if the section had been subdivided once and then honored by all subsequent surveyors is a better thought pattern to entertain.
6. Protocol was described, in essence, as re-subdividing the section on paper based on the four corners of the section. The author’s opinion is that this is fine as an academic exercise, but when a section has already been subdivided and reliance has set in, precision does not necessarily equal accurate boundary locations.
7. First Beat at 269.
8. Id. at 270.
9. Id. at 271.
10. Britton v. Ferry, 14 Mich. 53 (Mich. 1866). Opinion by Cooley.