To my friends on the East Coast and in other areas of the country not influenced by the Public Land Survey System (PLSS)--yes, this is another column about the Bureau of Land Management’s (BLM’s) Manual of Surveying Instructions, 2009 edition (2009 Manual). But the general discussion on the rules of evidence is applicable to all land surveyors who deal with property boundaries, no matter the jurisdiction.
When you are trying to prove any given fact, from a who-done-it to the location of a property boundary on the ground, evidence is necessary in order to build a case for or against a proposed outcome. Evidence alone doesn’t prove anything. But when enough evidence is gathered that points to a certain conclusion, then the weight of that evidence tends to prove the matter. This situation leads to several related issues, such as how much evidence is necessary, the relevancy of the evidence, conflicting evidence, and, ultimately, who determines when the evidence proves something to be a fact. Unfortunately, in this short article we will only be able to address the “how much is necessary” question.
The vast majority of cases that land surveyors will be involved in will be civil lawsuits, as opposed to criminal prosecutions. As a general proposition, when a matter goes to civil court, the burden will be on the plaintiff to prove the case. The term “burden of proof” refers to two separate burdens: a burden of production and a burden of persuasion. The burden of production means that the plaintiff will be tasked with “producing” enough evidence to sustain a claim. A motion to dismiss or a summary judgment motion could challenge and test the sufficiency of any given claim. If the claim survives such a motion or other challenges, then the plaintiff has successfully met the burden of production.
Once the burden of production has been met, the civil action moves forward to the persuasion stage. This is when evidence is proffered for admissibility, and admissible evidence is then put before the trier of facts. The trier of facts is the judge sitting without a jury, or a jury if one has been requested by one of the parties and such a request has been granted. Jury trials in civil cases are not necessarily automatic. One of the parties has to request a trial by jury, and one or both of the parties will eventually pay the cost of having a jury. The amount and sufficiency of the evidence presented at trial will either persuade the trier of facts so that the plaintiff will win, or it won’t persuade the trier of facts and the defendant will win. The standards for meeting the various burdens of persuasion are, for lack of a better term, the “evidence standards.”
The various evidence standards for meeting the burden of persuasion and under what circumstances they will be utilized has been developed by the courts. The most common standards, in ascending order are: (1) a scintilla of evidence; (2) substantial evidence; (3) a preponderance of the evidence; (4) clear and convincing evidence; and (5) beyond a reasonable doubt, sometimes expressed as beyond all reasonable doubt. No exact definitions exist for these standards that allows for them to be precisely positioned on a scale. The chart at left is a rough illustration to demonstrate where these various standards stand in relation to each other. There is much gray area between their placements.
A scintilla is almost no evidence at all. Modern practice in many jurisdictions doesn’t even recognize the scintilla of evidence standard to prove or disprove anything other than there is no case. Substantial evidence is somewhere between a scintilla and a preponderance of the evidence. An example of the use of the substantial evidence rule is when a trail court’s verdict is upheld on appeal so long as there is substantial evidence to support the verdict. A preponderance of the evidence is where most of the action takes place in a civil case. This is the normal burden of persuasion on the plaintiff in the case. A preponderance has been termed the “greater weight” of the evidence or, at the least, more than 50 percent. Clear and convincing evidence is greater than a preponderance but less than beyond a reasonable doubt. Clear and convincing evidence, for example, is usually needed to prove an adverse possession case. Beyond a reasonable doubt is the highest standard of proof in all of American jurisprudence. It is the standard for criminal convictions and, as we all know so well through some very high-profile cases, lack of such proof can result in lack of a conviction for otherwise obviously guilty defendants.
With this introduction behind us, let’s focus our attention on the 2009 Manual and its revised evidence standards relative to existent, obliterated and lost corners. In order to do that, we need a bit of history. From my review of the various manuals and circulars published by the General Land Office (GLO), starting with the 1855 Manual of Surveying Instructions, it appears that the first articulation of an evidence standard relative to existent, obliterated and lost corners was in the 1896 Circular on Restoration of Lost or Obliterated Corner and Subdivision of Sections. In that circular, for the first time, the GLO defined an obliterated and a lost corner. An obliterated corner is one where all visible evidence of the original corner is gone but whose location has been “preserved beyond all question by acts of landowners.” [Emphasis added.] Similarly, a lost corner “is one whose position can not [sic] be determined, beyond reasonable doubt.” [Emphasis added.]
Interestingly, and significant to our discussion, the circular contained a warning after these definitions.
Surveyors who have been United States deputies should bear in mind that in their private capacity they must act under somewhat different rules of law from those governing original surveys, and should carefully distinguish between the provisions of the statute which guide a Government deputy and those which apply to retracement of lines once surveyed. The failure to observe this distinction has been prolific of erroneous work and injustice to landowners.
Indeed. For 113 years, until the introduction of the 2009 Manual, beyond reasonable doubt remained the articulated standard of evidence for obliterated and lost corners.
The problem with this evidence standard is that it is impossible to meet. If the prosecution couldn’t convict O.J. Simpson or Casey Anthony under this standard, how can a private-practice land surveyor ever gather enough evidence to prove an obliterated corner beyond a reasonable doubt? In areas of the country where there is massive obliteration and almost no original corner evidence to be found--ever--there will always be some doubt as to the original corner location. In 1820, the GLO surveyor set a 4 x 4-inch “post.” Now there is a 5/8-inch steel rebar with no cap and no intervening record in the vicinity of the corner. Does it occupy the original corner position? Only God knows. Too bad there wasn’t a warning in the 1973 Manual to alert land surveyors to the fact that this standard does not apply to them.
And here’s another problem, the BLM doesn’t hold itself to that standard. This was discussed and the evidence standard that the BLM applies to its own work was explained in the Interior Board of Land Appeals (IBLA) case of Jacobsen and Downer v. BLM (On Reconsideration)1 (internal citations omitted).
“Substantial evidence” is defined by the courts as “more than a scintilla but less than a preponderance” and “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
The dissenting opinion appears to argue that the “substantial evidence” test is unprecedented. As BLM well knows, and hence its petition for reconsideration in this case, the standard enunciated here comports with the agency’s own inter- pretation of the Survey Manual, which it wrote, and the actual manner in which it has consistently applied the provisions of the manual throughout the years in thousands of survey decisions. The entire thrust of the Survey Manual is to recognize corners as existent, rather than lost, if at all possible. The Board’s prior decision, requiring proof beyond a reasonable doubt that a corner is existent, understandably caused a stir among survey professionals and BLM management.
Utilization by BLM of a substantial evidence test for establishing that a corner is existent is not to be confused with the standard of review applied by the Board in adjudicating appeals from survey decisions. The Board has held that a party challenging the correctness of a dependent resurvey must show error by a “preponderance of the evidence.” Thus, in an appeal from a survey decision, an appellant may be able to show that its placement of a disputed corner location is supported by substantial evidence.
However, as long as BLM’s placement of the corner location is also supported by substantial evidence, appellant’s showing is to no avail. To prove error in the BLM decision, appellant must demonstrate by a preponderance of the evidence that BLM’s placement of the corner is wrong. Similarly, where BLM has concluded in a dependent resurvey that a corner is lost, appellant may not be heard to say that it can show by substantial evidence that the corner is found. It must establish error in the BLM decision by a preponderance of the evidence.
The 2009 Manual now correctly states that for the BLM to consider a corner existent, obliterated or lost, its finding must be supported by “substantial evidence.” But where is the warning label to the private-practice surveyor saying “THIS STANDARD DOES NOT APPLY TO YOU”? It’s not there. Try taking your substantial evidence into an IBLA case or a case in civil court, and you are going to lose because your burden is a preponderance of the evidencealways has been and always will be. This is just another one of the many reasons the BLM manuala set of instructions for the original surveys of the public domain (now “federal interest lands”), not a set of instructions for retracement surveys has no business being adopted into state law as so many well-intended but misguided surveyors and surveying boards have successfully done. Why would you want to use a square peg for a round hole? In my mind, this is the single largest blunder in American surveying since the idea that boundary location is a math problem.
For more than 100 years, the BLM has articulated a ridiculously high and unachievable standard of evidence for accepting obliterated corners, causing untold numbers of legitimate corners to be mischaracterized as “lost” and actually achieving the “erroneous work and injustice to landowners” that the 1896 circular warned against. Now the BLM has flipped that coin over and is sending the message to private-practice surveyors that the standard for accepting corners is lower than it really is again, without a warning that the substantial evidence standard does not apply to anyone other than BLM employees. This has already caused confusion in the land surveying profession; I have seen two articles, one in this magazine and one in another national publication, extolling the virtues of this new lower standard.
The BLM’s manual is an interesting book, and every surveyor who practices in a PLSS state should own a copy, but that’s about it. It’s not the gospel on private-practice surveying. It’s not even good instruction on retracement. It’s a book about original surveys of the public domain. How many private-practice surveyors are doing that kind of work?