Traversing the Law: Requiem for the First Surveyor Concept
Can you hear the mournful peal of the distant bell? For whom does the bell toll? It is the death knell of the first surveyor concept--an arbitrary rule of surveying too oft extolled.
The proper role of the land surveyor is either that of an original surveyor setting out lines for the very first time or a retracing surveyor following the footsteps of the original surveyor. The support for these doctrines of land surveying is so well established it needs no citation to authority. The lone detractor to the doctrine of following in the footsteps is the “first surveyor” concept,1 which proposes the idea that there is a third role for the land surveyor. This concept takes the view that the “first surveyor” to attempt the placement of boundary lines on the ground is honored as a true original surveyor if this first surveyor follows proper procedure or if the results of the survey are “close enough.”
The first surveyor concept is found in all of the arenas of land surveying and spans all jurisdictions. It manifests itself in the metes and bounds system of surveys of the eastern states and the Public Land Surveying System (PLSS) throughout the public domain states. The first surveyor subject to collateral attack and subsequent correction can also be found in lot and block subdivisions of land in either system. Even surveyors who profess to be ardent supporters of the original surveyor/following surveyor doctrine will reveal their first surveyor sentiments when the math and measurements are tortured to the extreme. If there is one thing the land surveyor cannot abide, it’s tortured math and measurements; they crumble every time.
First Surveyor Concept
Nowhere is the concept of first surveyor more zealously practiced and preached than in the PLSS. The reasons for this should be obvious. It is the largest subdivision of land existing on planet Earth. It encompasses 3.5 billon acres of land spread out over 30 of the 50 states. The majority of the subdivision lines and resulting corners were created as protracted lot lines, existing on paper or in legal contemplation only. With the smallest administrative subdivision being the 40-acre tract, the GLO/BLM typically set about one-third (eight out of 25) of the corners and ran only four of the 10 subdivision lines on the ground. Some quick math on that 3.5 billion-acre figure (you know how we love math) means that more than 90 million corners remained unset (protracted only) when the federal government left the field.
Given land surveyors’ penchant for righting wrongs and their love affair with measurements, in all likelihood the first surveyor concept was floating around before Curtis M. Brown, ostensibly the first to do so, articulated the concept in Evidence and Procedures.2
At times, the surveyor must determine whether he or she is retracing an “original survey” or a “first survey.”… Initially the surveyor must determine whether the creating surveyor actually ran the creating line and then reduced the survey to notes or the description was created on paper and then a surveyor subsequently placed that description on the ground. When a parcel or parcels are created on paper, without a survey being conducted, and the surveyor is later requested to place one of these paper-described parcels on the ground, this survey should be considered the “first” survey, in that it is the first survey to be placed on the ground after the description. The difference is that whereas the original survey controls, the first survey is nothing more than an opinion by the surveyor of where the written description should be placed. As such, it is always open to collateral attack.Id.
Brown seems to ascribe his “first survey” (first surveyor) view to the Florida case of Rivers v. Lozeau,3 a case involving the subdivision of a section within the PLSS and a case that I have discussed on many occasions in the past. In Rivers, a local surveyor had subdivided at least a portion of the section and set monuments around the southeast quarter of the southwest quarter. Those monuments were relied upon for some subsequent real estate transactions, and everybody was happy until the BLM conducted a dependent resurvey4 within the section throwing out the local survey and claiming about 28 feet along the north boundary. The 28-foot discrepancy had a ripple effect throughout the remainder of the quarter-section, sending everybody to court.
In their ruling in favor of the BLM, a Florida court of appeals stated:
Although theoretically conceived and invisible, these lines are not merely theoretical concepts but are real lines, actually run and marked on the ground with terminal points monumented by surveyors acting under the authority of the cadastral engineer of the Bureau of Land Management. The approved and accepted boundary lines established by the federal government surveyors are unchangeable and control all references in deeds and other documents describing parcels of land by reference to the federal government of sections, townships and ranges.5
In the very next section of the opinion the court added:
In establishing the internal lines within Rizzo’s subdivision, Moorhead acted as an “original surveyor” but in attempting to locate and monument Rizzo’s external boundary lines which are described by reference to the federal rectangle system of surveying, Moorhead was a “following surveyor” and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line, the Moorhead surveyor placed monuments 28.71 feet north of the true north line of this quarter-quarter section.6
Thus the genesis of Brown’s first surveyor concept. This would all be old news and purely an academic exercise were it not for the 2009 Manual7 and its expanded exposition on the role of the local surveyor in the subdivision of the sections.
The Role of the Local Surveyor
The role of the local surveyor was covered sufficiently in the 1973 Manual,8 but everybody ignored it. A Florida court of appeals ignored it, BLM surveyors ignored it, private practice surveyors ignored it, you ignored it, I ignored it9--everybody ignored it. It is almost impossible to ignore it in the 2009 Manual. Let’s put it this way: The only way to ignore the role and function of the local surveyor in the new Manual is to ignore the new Manual. I have questioned the Manual’s relevancy in private surveying practice, but I have never said ignore it.
My biggest problem with the Manual hasn’t been the Manual itself; it has been that too many surveyors read into what’s not there and ignore what is. For instance, surveyors somehow read that the instructions for the subdivision of a section apply every time a survey is conducted in a section, that a center quarter-corner is set over and over again until someone finally “gets it right,” and that a retracing surveyor can call a corner lost. Brown saw the role of “first surveyor” when the only surveyors identified in the Manual are an original surveyor and retracing surveyor. No such instructions are found in the Manual, and the role of the local surveyor precludes these activities--thus, rendering them arbitrary rules of surveying.
It was contemplated by law and as a basic function of the system that the local land surveyor would be employed by a patentee (or any subsequent title holder) to locate, on the ground, the location of the patent.10 As the 2009 Manual puts it, this was a two-step process.
In the public land survey system a corner is fixed in position by operation of law. Corners marked in official surveys followed by use are fixed in position by monuments. Only a small portion of corners are marked on the ground in original surveys. Subdivision-of-section corners are generally not marked. Their positions are fixed on the plat by protraction. Their positions are fixed on the ground by the survey process of running (and marking) line between marked corners, and setting monuments.11
Once fixed on the ground by the local surveyor as contemplated by law, the monuments thus established are original monuments set by the original surveyor and have equal status with those monuments set by the GLO/BLM surveyors.12 To prove that they are something less, there must be more than a “mere demonstration of technical error … when lines have been run and marked and corners marked and fixed by local survey, [there] must be positive evidence of an intentional departure from the legal principles governing recovery of original corner location.”13 In short, the local surveyor is an original surveyor as contemplated under federal law and infallible as to location absent fraud or gross blunder.14 Once a section has been subdivided, it must remain always subdivided. “The law gives these activities repose.”15
The opinion in Rivers v. Lozeau doesn’t resemble anything found in the 1973 or 2009 Manual. As with so many other opinions that surveyors grab and run with, the opinion is almost devoid of details about the surveys that were conducted. For all we know, the BLM proportioned corners in from the township lines and Moorhead’s subdivision was based on original section and quarter-section corners. The most incredible and absurd portion of the opinion (see reference 5) is when the court tells us that the lines were fixed on the ground by drawing them on a map. This is a ridiculous statement and completely detached from reality.
May the first surveyor concept rest in peace as we continue to pray that the damage done to our professional reputation and to the rights of property owners is not irreversible.
1. I refer to this as a “concept” as opposed to a “theory” because more is required of a theory. A theory is “an organized body of ideas as to the truth of something, usually derived from the study of a number of facts,” according to Webster. The first surveyor concept falls short of an “organized body of ideas” and is not supported by the facts. It is more of a belief system based on arbitrary rules of surveying and survey mythology.
2. Robillard, Walter G., Donald Wilson and Curtis M. Brown, Evidence and Procedures for Boundary Location, Fifth Edition, 2006 John Wiley and Sons, Inc., Hoboken, New Jersey.
3. Rivers v. Lozeau, 539 So.2d 1147 (Fla.App. 1989).
4. A “dependent resurvey” is an original survey of the undisposed-of lands of the federal government. Federal law prohibits the Secretary of the Interior from conducting a dependent resurvey that infringes upon the “bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey.” 43 U.S.C. 772.
5. Id. at 1152.
7. Manual of Surveying Instructions (2009), U.S. Dept. of Interior, Bureau of Land Management, Denver, Colo.
8. Manual of Surveying Instructions 1973, U.S. Dept. of Interior, Bureau of Land Management, United States Government Printing Office, Washington, D.C.
9. I ignored it until I finally saw the light and began to correct my errant ways.
10. 2009 Manual at Sec. 3-131 thru 3-132. Also see Sec. 5-5, 5-14, 6-1 and 6-6.
11. Id. at Sec. 3-99.
12. Id. at Sec. 3-4.
13. Id. at Sec. 3-137.
14. Id. This is also the same criteria for GLO/BLM surveys.
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.