Traversing the law: It was a simple plan.
This plan would, once and for all, bring an end to the confusion, litigation and fraud that afflicted the system of land conveyance that had existed before.
It was a simple plan in legal contemplation, but like so many other plans laid down by the hand of man, it had defects in the implementation from the start. Beginning with the very first patent issued to John Martin on March 4, 1788, the rectangular system of land surveying and land conveyance was both a stroke of genius and a potential nightmare for Martin and all future owners of his land (or subdivision thereof).
Martin was able to buy 640 acres of land that existed (in legal contemplation) in Ohio by paying $640 in New York City for Lot 20, Township 7, Range 4. However, if Martin ever had a desire to go see his property, he had an immediate problem. Even though the exterior of Township 7 and Range 4 had been surveyed and monumented, his lot had not. Its location on the ground existed as protracted lot lines on the township plat. His unmonumented lot corners were 1 mile from the nearest township line and 2 miles from the nearest range line. And the government wasn’t planning a return trip to set his lot corners.
Martin’s plight was shared by all subsequent purchasers from the federal government, to a greater or lesser extent. In many ways, the Public Land Survey System (PLSS) wasn’t any better than the old system. The sad reality is that Martin’s original boundary lines could still be in dispute to this day, 222 years later. I have no firsthand knowledge of this, but 30-plus years of surveying experience dealing with sectionalized land--seeing sections surveyed and resurveyed, subdivided and resubdivided ad nauseam--leads me to believe that chances are about 50-50 that there is some dispute over the proper location of the boundaries of Lot 20 somewhere around the exterior of that section. Is this what the plan called for? What, exactly, was the plan for Martin to find his paper property corners? What was the plan for all subsequent purchasers of original patent land who found themselves in Martin’s situation?
I’ve had an opportunity to review the 2009 edition of the gospel according to the Bureau of Land Management (BLM), otherwise known as the Manual, and I’m happy to report that it’s still a set of instructions for BLM employees and contractors who are charged with surveying the undisposed-of lands of the federal government. Actually, there is a correction here: These lands are now referred to as “federal interest lands” given that the federal government’s focus has changed from disposal to retention and management. The reason that the mission of the Manual hasn’t changed is that the federal laws that define that mission haven’t changed. The BLM is a bureau of the Interior Department charged with interpreting and carrying out the federal statutes that have been enacted regarding federal interest lands, not private property wherein rights have been acquired under both federal and state law.
A problem exists, however, with regard to private property rights and the Manual. Many states have adopted the Manual in part or in whole, either by reference or by adopting whole chapters, thereby turning instructions intended for surveys of the virgin public domain into instructions that are applied and misapplied to sections that have been surveyed and subdivided, in some cases, for centuries. A few months back, I wrote about the unintended consequences of well-meaning land surveyors going to their legislature to codify the court-made doctrine of acquiescence. Codifying the Manual as instruction for dealing with private property rights has been one of the greatest blunders of American land surveying and property law. Not because of what the Manual says, but because of what land surveyors think it says.
John Martin’s Dilemma
Let’s get back to Martin’s problem. The 1973 Manual covered this situation, and the 2009 edition expounds on the answer. If there were ever any doubt as to how many times a section has to be subdivided, I believe the 2009 Manual’s expanded coverage of the subject of good faith efforts and bona fide rights settles the question once and for all. Both editions devote Chapter Three to the subdivision of federal interest lands, a task that was performed by the original General Land Office (GLO)/BLM surveyor. This surveyor is generally considered infallible, absent fraud or some other extraordinary circumstances. This chapter also discusses the federal government’s original intent with regard to the subdivision of the sections. The local surveyor was to be employed for this task and/or the original patentee was to employ good faith efforts to locate his/her lands on the ground based on the circumstance of the time and place.
The function of the local surveyor begins when employed as an expert to identify lands that have passed into private ownership. … The work of the local surveyor usually includes the subdivision of the section into the legal subdivisions shown upon the approved plat. In this capacity, the local surveyor is performing a function contemplated by law. [Emphasis added.]
This original intent on the part of the federal government elevated this local surveyor employed by the patentee (or the good faith efforts of the patentee him/herself) to the status of original surveyor, equal to that of the GLO/BLM surveyors setting the section and quarter-section corners for the very first time. It was contemplated and intended under the law that the local surveyor would set the subdivision of the section corners on the ground and federal law provides that these subdivision corners are infallible.
By law, (1) the corners marked in public land surveys shall be established as the proper corners of sections, or of the subdivisions of the sections, which they were intended to designate; (2) the boundary lines actually run and marked shall be and remain the proper boundary lines of the sections or subdivisions for which they were intended … The original corners shall stand as the true corners they were intended to represent, even though not exactly where professional care might have placed them in the first instance. [Emphasis added.]
How much clearer can this be? Why is there any confusion over this issue? The only possible reason is that land surveyors are more interested in math and measurement than in understanding what the Manual and the law say on this subject. The old excuse for resubdividing a section that has already been subdivided was that the first surveyor to attempt the subdivision either didn’t follow proper procedure or the results weren’t close enough by today’s standards. The 2009 Manual addresses this issue in no uncertain terms.
A decision to set aside previously fixed local survey legal subdivision corners must be supported by evidence that goes beyond mere demonstration of technical error, reasonable discrepancies between former and new measurement, and less than strict adherence to restoration and subdivision rules. Were the Federal Government obliged to open the question as to the location of a particular tract or tracts over technical differences or reasonable discrepancies, controversies would constantly arise, and resurveys and readjudication would be interminable. The law gives these activities repose. It is unlawful for the surveyor to impair bona fide rights as to location. Proof of impairment of bona fide rights as to location per 43 U.S.C. 772, when lines have been run and marked and corners marked and fixed by local survey, must be positive evidence of an intentional departure from the legal principles governing recovery of original corner location, reestablishment and establishment of corner location, or subdivision of a section. [Emphasis added.]
I could be wrong, but I think this is the first time the Manual addresses “repose.” Repose is a well-established doctrine of the law and equity, and a strong supporter of the status quo. Mere technical errors are not enough, in the estimation of the BLM, to upset established boundaries. To do so will create “interminable controversies.” I think the writers of the new Manual have been reading Cooley in their spare time.
Who will ever be able to prove through retracement that there was a positive and intentional departure from the legal principles of subdivision when mere technical error will not do it? There will need to be a written document or some testimony from the original subdividing surveyor that there was absolutely no intention or attempt to correctly locate the subdivision lines. In essence, bad faith will have to be positively demonstrated--not only the bad faith of the original surveyor, but also bad faith on the part of the original entryman.
Even if the original subdividing surveyor acted in bad faith, and this can be demonstrated, how can bad faith be charged to the patentee who hired the surveyor in a good faith effort to correctly locate his/her patent on the ground? How much more good faith can the original entryman show than that he/she hired a local surveyor, presumably well-qualified and competent, to come out to the field and locate the center quarter-corner on the ground? The only way this can be done is to demonstrate that the original entryman knew that the local surveyor hired to do the job was incompetent or was acting in bad faith, or that the original entryman knew more about surveying and the law than the surveyor.
None of this is anything new. The 1973 Manual said the same thing, just not as forcefully. Maybe, now, John Martin will finally be able to enjoy his property and live the American dream without worrying about some surveyor coming along and moving his property boundaries for the umpteenth time. Well, maybe it’s a little too late for Martin.
1. The configuration of the sections within the township were different in the seven ranges than a regular township today. Lot 20 was in the second tier north of the south township line and the third tier east of the west range line.
2. White, Albert C. “A History of the Rectangular Survey System,” U.S. Government Printing Office, Washington, D.C., 1983 at 19-24.
3. “The term ‘Federal interest lands’ rather than ‘public lands’ is used throughout this edition of the Manual to reflect this change in orientation from disposal to retention and management of its land by the Federal Government, as well as to articulate the extent of BLM’s survey authority. Federal interest lands include, but are not limited to, public lands that have never left Federal ownership.” Manual of Surveying Instruction 2009, Footnote to Sec. 1-2 at Page 2. Federal interest lands include what was formerly referred to as the undisposed-of lands of the federal government.
4. See “Unintended Consequences,” POB, May 2010.
5. 2009 Manual at Sec. 3-131 through 3-132.
6. 2009 Manual at Sec. 3-131 through 3-137. 1973 Manual at Sec. 3-76, 5-42, 6-12 through 6-18.
7. 2009 Manual at Sec. 3-4. 1973 Manual at Sec. 3-4. Rev. Stat. 2396. 43 U.S.C. 752.
8. 2009 Manual at Sec. 3-137.
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.