THE PLAN OF SURVEY - New Home descriptio… · Web viewA diagram of an Initial Point, Principle...

PLSS DESCRIPTIONS THEORY and REALITY 1947 Manual

1973 Manual

© 2015 Chuck Karayan, L.S. 1

COPYRIGHT

The following material outlines the course content and may not be photographed nor

xerographed, nor digitized nor processed for any computer application, nor may it be

reproduced, stored or transmitted in any manner or form without the express, written and prior

consent of the author; except, non-profit educational and/or professional organizations may

make use of portions of this material – not exceeding two pages in any single publication –

without such consent provided that due credit is made and notice given within thirty days of

such use and/or publication.

Chuck Karayan, L.S.GeoLex Surveying, Consulting and Educational Services1809 S St. # 101-119Sacramento, CA 95811(916) 455-5262

PURPOSE AND SCOPE

Fundamental education is necessary for all professions. Continuing Education and training are

the backbone of professionalism. They allow practitioners to refresh those areas of knowledge

not utilized on a regular basis and to keep abreast of current developments. Professional Land

Surveyors are frequently asked to provide opinions and render decisions in which land titles and

boundaries are an essential issue. In theses, and all aspects of surveying, the process of

gathering and presenting evidence is vital. Like the courts, surveyors must look to statutes and

case law for guidance. These materials have been designed, and are intended, as a tool to

assist your participation in this course and to help you develop and sharpen a proper

knowledgeable approach to the exercise of your professional judgment.

The materials have not been designed to replace – and should not be used in an attempt to

replace – sound research, peer review, and or consultation with other professionals in a

particular situation.

PUBLIC LAND SURVEY SYSYTEM DESCRIPTIONS


THEORY and REALITYTHE PLAN OF SURVEY

Introduction

The 2009 Manual of Surveying Instructions , like its predecessor editions, was written for

those surveyors doing original Public Lands surveys, e.g. BLM employees. There are original

surveys being conducted now, but not many. For the most part, particularly in the “lower 48”,

Bureau of Land Management (BLM) and Forest Service (USDA-FS) personnel conduct

Retracement and Dependent Resurveys. Except for lands held in trust (generally, Indian

Reservations), these surveys involve federally owned land.

The circular Restoration of Lost or Obliterated Corners and Subdivision of Sections is

intended to assist “county and local surveyors” in their duties. Those of us called upon to locate

and monument land boundaries (local surveyors) often find little reference material other than

the Manual and the Circular. Both publications contain vital and valuable information. Together,

they form the “backbone” of this material. Unfortunately, these publications are not always

easily understood. To the casual reader they can even appear, at times, to be contradictory.

Fortunately, there are additional sources of information published by the government and others.

Some of those additional sources have been tabulated in the Reference Section at the end of these

materials.

A Professional Surveyor faces an enormous task when undertaking the retracement of a

PLSS survey. He/she must know (read and understand) the appropriate Manual/Circular, be

aware of the “custom and practice” of the era/locality (then and now), properly interpret the

“intent of the grantor” (the socio-political climate), and possess the Special Instructions as well

as the Field Notes and Plat of the original survey.

In virtually all cases, this will only be the beginning of a long historical trail followed;

overlaid on this background, is more than a century of rapidly changing land use, land divisions

(which sometimes were off-line/illegal), and occupations (which may not agree with any of the

historic descriptions). Add to this that described monuments may no longer be present (they may

never have existed); and, present monuments which purport (but cannot substantiate) that they

perpetuate the historically described monuments’ positions. All of this can affect title and its

boundary location.


The modern practice of surveying often involves boundary questions beyond and in

addition to the U.S. Public Land Survey System (PLSS), particularly in urbanized and developed

areas. This material has been prepared from a viewpoint different than the Manual and Circular.

In Public Land States most chains-of-title begin with a patent from the Federal government.

Subsequent conveyances, land divisions, occupation and use, local custom and practice, statutory

and case law all overlay questions of boundary and title based upon the original survey/patent. In

this complex environment, surveyors are faced with a daunting task when called upon to

determine land boundaries.

There is no substitute for experiential education; mistakes and time are great “teachers”.

The full breadth and depth of locating and monumenting land boundaries exceeds the scope of

this material. However, most principles of analysis and judgment apply whether a PLSS survey

is involved or not. This material is intended to aid the surveyor in understanding and applying

the concepts of the PLSS not as a replacement for the Manual/Circular/etc.

Overview

The “Intent of the Grantor”

Originally, the federal government looked to the Public Domain for revenue. The initial

goal was eliminating the national debit (caused by the Revolutionary War), and then as an

“income” (the constitution doesn’t provide the central government any specific amount or

source). By the nineteenth century, with economic “good times” and no national debit, Congress

looked at the Public Domain through the eyes of Manifest Destiny (expansionism). The goal was

to assure U.S. sovereignty from coast to coast, and to exploit the natural resources of the land.

By the twentieth century, while resource exploitation continued, the political will shifted toward

preservation. At all times, the federal government intended to transfer initial title with definite

and ascertainable boundaries. With few exceptions, this was to be accomplished through the use

of a rectangular system established by survey and mapping prior to sale.

Management Units of the Public Domain

The unit-of-survey is the Township, nominally a square six miles on a side containing


23,040 acres. The unit-of-subdivision is the Section, nominally a square one mile on a side

containing 640 acres. The unit-of-administration is the Quarter-Quarter Section, nominally a

square ¼ mile on a side containing 40 acres.

Original Federal Ownership

Other than Hawaii, Texas, and the 13 Original States (and states created from them),

almost all of the land in this country is, or was, Public Domain. Generally, the original states

ceded their “western territories” to the central government and the Republic of Texas ceded all

territory outside of its current boundaries. The federal government bought Louisiana from

France, Alaska from Russia and annexed the Kingdom of Hawaii; it negotiated treaties with

Spain, Mexico, England, and the native peoples. Ultimately, there have been 30 states created

from this vast Public Domain. Collectively, they are known as the Public Land States.

Legal Requirements and Inherent Error

The law (1 Stat. 464, et seq.) mandates that the sides of sections be cardinal, e.g. North,


South, East, or West, and 80 chains, i.e. 5,280 feet long. By virtue of the convergence of

meridional lines, both conditions cannot be obtained. Convergence of the meridians and

distortion of the grid due to Earth’s spherical shape aren’t the only sources of variation. Human

limitations and imperfections (error) are embedded in everything we do. The error of lineal and

directional measurement in establishing the Standard Lines is “contained” within a block of four

townships by four townships (called a Quadrangle) rather than being propagated throughout the

entire grid.

No section is square, cardinal, one mile on a side, and containing 640 acres . Except

by chance, none of the individual goals is met. This truth being said, it is simply amazing that

millions and millions of sections, the overwhelming majority, are close enough.

Townships


A diagram of an Initial Point, Principle Meridian, Base Line, Guide Meridians and Standard Parallels. This is the fundamental structure of the Public Land Survey System. The diagram also shows four Quadrangles, each containing sixteen townships (368,640 acres). All north-south lines shown were intended to be straight and astronomically North. All east-west lines shown were intended to be true latitudinal curves. Note that the Guide Meridians begin at their southern terminus 24 miles from the Principle Meridian but end at a distance less than that due to the convergence of “true north” lines which produces a “jog” at the Baseline/Standard Parallel terminus. The diagram encompasses 2,304 square miles (1,474,560 acres).

Nominally, Townships are “squares”, cardinally oriented, 6 miles on a side, containing

23,040 acres. Meridional (north-south) township boundaries are straight lines. Latitudinal (east-

west) township boundaries are curves.

The east and the west boundaries (running north and south) are referred to as Range

Lines, while the north and the south boundaries (running east and west) are called Township

Lines. Townships are named by numbering related to the Initial Point, such as Township 2

North, Range 3 East. The easterly boundary line of that township would be referred to as Range

Line 3 East/4 East.

Sections

Nominally, Sections are “squares”, cardinally oriented, 1 mile on a side, containing 640

acres. Both meridional (N-S) and latitudinal (E-W) section lines are straight, except along a

township line (the northerly and southerly township boundaries).

Sections are named by numbers from 1 through 36. Numbering begins with Section 1 in

the northeast corner of the township and proceeds west to Section 6 in the northwest corner.

Section 7 is on the western boundary immediately south of Section 6 and Section 12 is on the

east boundary immediately south of Section 1. Section 13 is also on the east boundary

immediately south of Section 12. This pattern of “turning left then right then left…” continues

through the tiers of sections to the most southerly, where Section 31 is in the southwest corner of


the Township and Section 36 is in the southeast. The boustrephedonic sectional numbering

system (from the Greek, meaning “like oxen turn in plowing”) began with the “overhaul” of the

Land Ordinance enacted via 1 Stat. 464 and 490 in 1796. Prior to the change, the 1-mile

“squares” were referred to as “lots”. Sections (vs. the “lots”) have never been numbered in any

other manner.

Aliquot parts of a section

Sections are subdivided into aliquot parts (pronounced al-e-quo, from the Latin meaning

“several”). Normally this is accomplished by protraction. The term protraction means that the

lines were not measured (surveyed), that monuments therefore were not established along them

but that corners were created. The Manual of Surveying Instruction refers to aliquot parts

ranging in size from “a quarter-section” (160 acres) down to “a 1/256 section” (2.5 acres). The

Township Plat depicts unsurveyed lines, including the aliquot parts thusly created, by the use of

broken (dashed) lines; nominal regular sections usually show only the protracted quarter-section

lines, while closing sections usually depict half-quarter-sections and lots.

This does not mean that non-depicted smaller aliquot parts were not created by the

Township Plat, they were. As an example, the Northwest Quarter (NW¼) – a 160 acre parcel – is

comprised of sixteen 10 acre parcels (quarter-quarter-quarter sections) each of which, in turn, are

comprise of four 2.5 acre parcels (quarter-quarter-quarter-quarter sections). The Manual does not


establish a minimum size but the 2.5 acre parcel is the smallest one discussed. It must be noted

that although normally only eight monuments are established along the section’s exterior

boundaries (4 section corners and 4 quarter-corners), all corners of all aliquot lines come into

existence when the Township Plat is approved.

These “regular” or aliquot parts are not equal to each other because the monuments set to

mark the corner locations, contain human and spherical error, in both distance and alignment.

From a practical point of view, virtually all monuments fail to properly mark their intended

location. It was decided, from the outset, that the problems of disregarding original monuments

that did not agree with their theoretical (“nominal”) position, were far worse than those of “living

with the error”. As a result, the “regular” or aliquot parts actually differ in size and shape, both

within a particular section as well as from section to section.

ALIQUOT SUBDIVISIONAL PARTS OF A NOMINAL SECTION

Lots


NW¼160 Acres

2640 x 2640

NE¼ / NE¼ 40 Acres1320 x 1320

SW¼/NW¼/SW¼ 10 Acres 660 x 660

SE¼/SE¼/NW¼/SE¼ 2.5 Acres 330 x 330

W½/SE¼/SW¼ 20 Acres 660 x 1320

S½/NE¼/SE¼/SE¼ 5 Acres 660 x 330

Aliquot parts produced by protraction do not include the “uneven” portions

resulting from spherical excess, known survey error, or anything that interrupts the regular

“grid”. In general, the goal of protraction is to produce as many aliquot parts as a particular

situation will allow.

Those portions (quarter-quarter sections or parts thereof) of the Public Domain rendered

“irregular” (fractional) are usually designated as lots. By definition, lots are non-aliquot

subdivisional parts of the section within which they are located. A common mistake is to think

of lots as the aliquot quarter-quarter-quarter section – this invariably leads to boundary/title error.

Convergence of the meridians, and human fallibility, make it clear that a plan for dealing

with spherical excess and survey error is necessary. Through administrative decision of the GLO

(the General Land Office – predecessor to the BLM, Bureau of Land Management) these

unavoidable discrepancies were placed against the north and west boundaries of a township in

Sections 1 through 6 (the north side) and 7, 18, 19, 30 & 31 (the west side).

The Act of May 10, 1800 (2 Stat. 73) called for these discrepancies to be placed in the

“last half-mile” along the north and west boundaries. Both statute and administrative


THE CLOSING SECTIONS: 1 thru 6 (the northern row); and, 7, 18, 19, 30 &31 (the western tier). The shaded area of those sections are aliquot parts; the lots are between the Township boundary and the shaded portion (in the last ¼ mile).

requirements call for as many aliquot parts as can be created. The result is that the error is placed

in the “last quarter-mile”, and the parts therein are designated Lots.

In addition, wherever the “grid” is interrupted (rendered fractional) by a senior right,

meanderable body of water, etc., the “supervening body” is usually isolated from the aliquot

parts by the creation of lots.

Along the north and west township boundaries, where lots ordinarily have a nominal 20-

chain side, they generally contain 10 to 50 acres. Adjacent to a supervening body, lots usually

contain 5 to 45 acres.

Lots are named by numbers within a section similar to the way sections are numbered

in a township (boustrephedonically). Starting in the (otherwise) northeast quarter of the northeast

quarter, lots are numbered (starting with Lot 1) “back and forth” wherever they occur. If more

than one lot falls within a quarter-quarter section, the northerly lot is given the lower number.

Generally, the boundaries of lots (other than the “supervening body”) are aliquot lines.

If a lot “straddles” a quarter-quarter section line, it is numbered in the quarter-quarter containing

the greater part. It is rare for a lot to overlap a quarter section line. It is inconsistent with the

general plan for a lot to overlap a section line.

Tracts

Generally, a “tract” is an expanse of land with irregular boundaries, and does not imply

any particular (range of) size. Tracts are numbered within a township similar to the way lots are

numbered within a section (boustrephedonically) starting with number 37.

Tracts sometimes occupy land in more than one section, particularly when they represent a

pre-existing right. If a tract lies within two townships, the number used in the first township will

not be used (at all) in the other township(s).

Occasionally an island may be designated a tract without regard to where it falls in

relationship to “the grid”.

Parcels

When a special designation is necessary to identify non-public (or reacquired) lands not

identifiable as an aliquot part, it is designated as a Parcel. If a township has more than one parcel

they are named with letters, i.e. Parcel A, Parcel B, etc.

Land Claims

Pursuant to the Donation Land Claim Act of September 27, 1850 (9 Stat. 496) certain


settlers (mostly in Oregon Territory, but also in New Mexico and other parts of the west) were

recognized by Congress as having rights “to the land” that should be treated as “senior” with

respect to the unsurveyed Public Domain. With some success, attempts were made to have these

“squatter’s rights” conform to the PLSS when it was laid out. Without regard to the attempted

conformity, the PLSS survey and aliquot parts are treated as “junior”. Generally, they were not

“isolated” by lotting.

Known by reference to the congressional act that created them, they are called Donation

Land Claims (D.L.C.’s). Like Tracts, Donation Land Claims were numbered within a township

beginning with Number 37; unlike Tracts, they also contained the patentee’s name, such as

“David H. Belknap D.L.C. #43, Section 33, T1N, R2W, W.M.”.

RanchosBy virtue of “Discovery and Conquest” title to much of the West was vested in the

Spanish Crown. Like all sovereign’s, Spain (and to a greater extent, Mexico) had a practice of

granting land to private individuals as rewards for prior service, to encourage agricultural,

industrial and/or resource uses, and to promote colonization. The Commandants of the Presidios,

and the Alcaldes of the Pueblos, were given authority to grant “lots” within their jurisdictions.

The process evolved to the granting of large tracts beyond the presidios and pueblos, known as

Ranchos. Ranchos were, theoretically, limited to eleven square leagues – most were smaller (but

a few exceeded that size).

The Mexican-American War (1846-1848) ended with the Treaty of Guadalupe Hidalgo.

Mexico ceded 40% of its territory (California, Nevada, Utah, most of Arizona, and portions of

Wyoming, Colorado, and New Mexico. The Gadsden Purchase of 1853 added the southern

portion of Arizona and southwestern New Mexico. Pursuant to the treaty, the U.S. government

agreed to honor and protect the private property rights granted by the prior sovereigns.

By the Act of March 3, 1851, Congress created the Board of Land Commissioners.

Almost all matters were appealed into the federal court system, many reaching the U.S. Supreme

Court. When a final determination about a Rancho had been made, the Surveyor General was

instructed to survey and monument the boundary. Actually, the Public Domain surveys (PLSS)

could not proceed until the “senior rights” of the Ranchos were specifically defined.

The survey of Spanish and Mexican Ranchos was accomplished similarly to the manner

in which Tracts are surveyed and monumented. The adjoining non-aliquot parts of the Public


4

9

10

33

34

35

34

M.S.

1368

M.S.

756

M.S.

755

Rancho Santa Claus

1

40.03

2

39.97

3

22.74 4

41.36

5

26.45 6

23.96

7

28.87

8

34.05

9

36.97

10

26.45

11

8.45

12

39.02 13 18.25

15

45.72

3

476.92

2

4

14

15.63

Domain were lotted. The Ranchos are designated by name (such as Rancho Santa Ana) lying in

Township(s) ______[N or S], Range(s) _______[E or W], _______ Meridian.

Below is a sketch of a hypothetical Section 3 effected by Mineral Surveys, a meanderable

river, a Mexican Rancho, and the convergence of the meridians resulting in lotting which

occupies all of the aliquot parts except the SE¼/NE¼.

THE ACTUAL, ORIGINAL SURVEY

Corners and Monuments of the PLSS


In a legal sense, a corner is a point on the surface of the earth that defines (is at a

terminus of) a land boundary. The corners of the PLSS are those points that define the

boundaries of the various subdivisions represented on (or derived from) the official plat, i.e.

aliquot parts, lots, tracts, parcels, etc.

All of the corners come into being at the same moment as the platted corners, without

regard to whether or not they were monumented. The “moment of creation” is when the plat is

approved (signed) by the appropriate official.

Corners have no physical characteristics, a corner is a “legal” concept. Monuments are

physical appliances that (generally) are used to mark the location of a corner. The terms are not

synonymous. The concepts are different. By law, monuments established in the survey of land

and intended by the parties to mark the corners have no error of position. In these situations, the

monuments do mark the corners (even if they are not where the plats calls for them to be). A

more accurate term, used in the Manual, is Corner Monument.

Corner Monuments are the connection between a written land-title-description and the

geographic land-title-location. Corner Monuments are the “link” between a deed and the ground;

they provide the means by which an individual parcel of real property has specific shape and

location.

When title to the land is transferred, the description used in the patent calls for the

Township Plat; the plat calls for the Field Notes; which, in turn, call for the monuments. By

reference, therefore, the survey and the field notes (as well as the monuments mentioned therein)

are called for in the description.

When the plat is approved, the corners actually come into existence (within the

monuments). The monuments, therefore, have no error of position (the bearings and distances

called for on the plat and in the notes are in error). As with all other facets of the PLSS, absent

fraud or gross error, the corners and all particulars shown on the plat are presumed correct until

contrary evidence shows otherwise.

RECORD and MEASURED – or – THEORY and REALITY


20

= The “idealized” section 20

= The actual section 20

NOTE: The actual SW ¼ of Sec. 20 is not a rectangle and it contains more than 160 acres

despite the fact that it may have been described as such.

Locating the (parts of the) section


The section is, physically, where the original Corner Monuments marked it – despite the

fact that such location reflects the imperfections of the basic plan and the human fallibility of the

surveyors who laid it out. The section is subdivided into its aliquot parts using the 8 Corner

Monuments established in the original survey and the procedure established in the Manual of

Surveying Instructions for its creation.

ALIQUOT SUBDIVISIONAL PARTS OF A NOMINAL SECTION

THE MODERN-DAY SURVEY


NOTE: The subdivision (and/or retracement) of the Public Domain is accomplished by processes which “mirror the original survey” as detailed in the Manual of Surveying Instructions. Beginning with the establishment of Standard Lines and Corners, through the establishment of regular (nominal) lines and corners, to the “oddities” of senior rights, meanderable water bodies, etc. the process varies – as it has over time. The PLSS is much too complex to be addressed in its entirety by this course – please refer to the manual, the Reference Section and other sources.

Overview

When title passed from the Federal government into private (or local government)

ownership, Federal administrative rules and statutes ceased having “force and effect”, except as

to determining the true intention of the parties on the date of conveyance (which is often

controlling). Federal statute law regarding boundaries and interpreting deeds is, generally, non-

existent. On the other hand, each state has adopted (administratively, legislatively and/or

judicially) rules regarding the establishment of boundaries and the interpretation of documents

(including deeds and plats). Virtually all of the “public lands states” have adopted the Manual of

Instructions and the Federal procedures. Some of these states have made specific changes, which

can materially affect the location of private boundaries. In some cases local law calls for the

“double proportionment restoration” of lost corners by intersection of lines from the

nearest line trees and that the “center of section”, e.g. the Center Quarter-Corner, be

established at 40 chains north of the South Quarter-Corner in sections on the south side of

Baselines and Standard Parallels. It should be abundantly clear that such rules cannot affect

Federal ownership. But, once all effected title has passed out of Federal ownership/control, the

situation is not so clear. Local law as well as “custom and practice” should never be ignored.

When examining the chain-of-title of a parcel, either as an end in itself or preparatory to

retracing its boundary, the professional surveyor must ask a series of basic questions. The

answers to these questions shape and define the framework of research and create the surveyors

“point of beginning”: Was title ever vested in the initial grantor; if so, had that grantor conveyed,

reserved or excepted all or any part of that title or had he/she/it created a future interest therein;

had that grantor lost title to any or all of the parcel by an adverse claim or other legal process;

then, the same questions need to asked regarding each successive owner – up to and including

the current vestee.

Proper analysis of the title to a parcel always includes the surrounding (adjoining)

properties from such point in time when all of them were held as a single unit of common

ownership. There is no other way to determine comparative rights, i.e., easements, junior/senior

rights, etc. In the analytic process, when you have data that does not affect your decision, you

then know that you have enough. Not until you reach this point could you know that you didn’t

need more. The question in research is simple: How do you know how much is enough? Answer:

When you have too much!


Basic concepts of the PLSS

All corners fall into one of three categories: (1) Existing; (2) Obliterated; or (3) Lost. The

distinctions between them are vital to professional surveyors because the differences may control

the evidentiary weight afforded to recovered monuments and/or information bearing on the

corner position.

Existing Corners

An Existing Corner is one whose position can be determined by verified direct

evidence, e.g., the original monument itself, the description in the field notes, an

acceptable survey record, other evidence and/or competent testimony.

Accessories and Memorials established as part of the original survey are part of the

corner monument. If the physical appliance marking the corner point is destroyed but the

accessories and/or memorials remain, they control the location, the corner monument as

a whole still exists.

Improvements constructed adjacent to a corner when the monument (could reasonably

be assumed to have) existed may be accepted as the nearest, best, most reliable

evidence of the original location.

Obliterated Corners An Obliterated Corner is one where there are no traces of the original corner monument

(because either there was no Corner Monument established or it has been destroyed or

is otherwise unrecoverable), but the location of which has been perpetuated or the point

of which may be recreated, beyond reasonable doubt, by the use of collateral

evidence.

Lost Corners A Lost Corner is one whose position cannot be determined from either direct or indirect


evidence, the location of which must be “restored” by reference to one or more

interdependent corners.

The “restoration” of a Lost Corner is accomplished by proportionate measurement from

nearest original monuments adjacent to the lost corner. Since no direct or indirect

evidence is available in the immediate vicinity, the corner must be (re)established by

reference to monuments further away. Admittedly, this does not “restore” the corner to

its original position. All reliable means of locating a corner through the use of direct or

indirect evidence must be exhausted before it is declared lost.

Generally the Bureau of Land Management conducts five types of surveys: (1) Original

Surveys; (2) Retracement Surveys; (3) Re-Surveys [Dependent & Independent]; (4) Completion

Surveys; and (5) Correction Surveys. Surveyors who are not employed by the Federal

Government do not conduct Original, Completion or Correction surveys. Actually, non-federal

surveyors do no conduct Retracement or Re-Surveys but their work is often quite analogous to

them.

Original Surveys Within the context of the PLSS, an original survey generally occurs on unsurveyed Public

Domain. It is the survey upon which the approved Township Plat and Patent are based.

Retracement Surveys Within the context of the PLSS, a retracement survey recovers the lines and monuments

of an original survey. The goal of a retracement survey is to “walk in the footsteps” of the

original surveyor, identifying and locating the remaining evidence of that earlier work.

Collaterally, existing monuments may be rehabilitated, and obliterated monuments may

be restored, but lost monuments are only restored via Resurveys.

Dependent Resurveys Dependent Resurveys retrace and re-establish the lines of the original survey (in their

true, original locations). The field process involves the use of the best available evidence

of these locations. Pursuant to the manual, the lands delineated by a Dependent

Resurvey and the original survey (including all patents based thereon) are identical in all


respects, (except for measured distances and calculated areas). No new lines/corners

are established.

Independent Resurveys Independent Resurveys establish new subdivisional lines and are intended to supersede

original surveys. At the same time, they must protect the bona fide rights of claimants

that are not identical with the new subdivisional lines. The entered/patented/granted land

is resurveyed as though it had a “metes and bounds” description and is shown on the

new Township Plat as a Tract.

Completion Surveys Completion Surveys are a variant of Original Surveys where a portion of the Township

was not previously surveyed. Sometimes the theoretical lines of protraction were shown

on the plat and, worse, patented. The practice is no longer followed, but many areas of

unsurveyed land remain.

Correction Surveys Correction Surveys are another variant of Original Surveys where a portion of the

Township was not previously surveyed. When one or more of the governing lines is

defective in alignment and/or position, new governing lines (interior to the unsurveyed

portion) will be created. These correction lines serve to isolate the irregular areas which,

being non-aliquot, are lotted.

Recovered and Unrecovered MonumentsReal Property boundaries always involve questions of title and questions of location (of

that title). These questions are invariably resolved, at least in part, by reference to monuments.

Recovering an existing Corner Monument can answer both questions. On the other hand,

conflicts within a “monumentation network” often cloud one or both answers. In these situations,

resolution often depends on which, if any, monument actually occupies a corner position.

Only those monuments that were contemplated by the parties to the initial conveyance

are original monuments, and therefore have no error of position. Generally, a monument’s

position is accepted as absolute if: (1) It is called for (directly or indirectly) in the document

which first conveys title to the land as a discreet parcel; and, (2) It is specifically identifiable as

that monument; and, (3) It is in its original location, e.g. (apparently) undisturbed.


The reason that monuments prevail over other means of location (metes, bounds, area,

coordinates, etc.) is the relative likelihood of the parties (actually, the lack thereof) to err by

reference to them. Ideally, for a found monument to be accepted as a perpetuation, there will be

a credible and continuous record connecting the original and found monuments.

Extrinsic evidence is anything outside of (the direct and indirect calls in) a deed. The

general rule is that documents are interpreted and applied without “going outside the four corners

of the document”. There are those who feel therefore, that extrinsic evidence is inadmissible, and

it should not be used in establishing boundaries. But, the courts have said: “In most instances,

however perfect the description employed in the conveyance, the premises could not be located

without reference to extrinsic evidence”. The true rule is: extrinsic evidence may not be used to

alter the terms of a deed, but its use is almost always necessary to locate the calls of a deed.

When the original monument has become lost and the public (generally meaning

surveyors and adjacent land owners) have accepted and used, for many years, a monument that

cannot be proven wrong, it will be accepted as the true corner location. This concept is usually

referred to as “Monument by Common Report”.

Legally, Public Officials are presumed to have faithfully and correctly exercised their

duties. Therefore, the surveys that they conduct are presumed to have correctly established their

monuments. The presumption is rebuttable. Absent contrary evidence that is clear and

convincing (inconsistency with other monuments, field notes that reveal error or improper

procedures, etc.), local agencies monuments generally are accepted. It should be noted that the

GLO & BLM (feeling that the federal government was not so obligated) have not always

followed this rule.

State licensed Land Surveyors are quasi-Public Officials who are also presumed to have

properly and correctly executed their duties. As a result, our analysis of other surveyors’ work

should begin with the assumption that their plats are correct and that their monuments occupy the


“…if (the) monuments called for have been removed, the places where they were originally located may be shown by…evidence; and if shown…by a fair preponderance of evidence, these original locations will prevail…”

corners they were intended to mark; only contrary evidence which is clear and convincing

should lead us to another conclusion.

This legal presumption, that surveyors have properly and correctly executed their duties,

also means that called-for-monuments of record are presumed to exist, assuming that they were

established within a reasonable “lifetime” ago. (No presumption to the contrary arises merely by

the passage of more time). Therefore, a good and diligent search must be conducted for all

monuments of record. Ordinarily a retracement survey is extended along all lines controlling (or

controlled by) the corner in question. When the nearest identifiable original monuments are

found, they provide some measure of the discrepancy to be expected between recovered evidence

and the record. These discrepancies, in turn, guide the surveyor in deciding how large an area is

reasonable when searching for an unfound monument.

Particularly when a record monument’s position could/would influence professional

judgment, the plat of the current survey should specifically indicate that such a diligent search

was conducted. [I suggest: s.f.n.f. (searched for – not found).] Without such search and

statement, why would the surveyor be justified in establishing another monument?

As between documentary and observed evidence (record and measured) it is normal to

experience variation. An entire branch of mathematics, Statistics, is based on this variability.

(Because it is to be expected, its absence [Record = Measured] could render the data suspect.)

Measured values (bearing/distance) to a monument constitute: extrinsic evidence of its identity;

direct evidence of its location; and collateral evidence of the position of the corner it is intended

to mark. When the observations are in substantial agreement with the record, the monument,

generally, can be accepted. When they are not in substantial agreement, the monument must be

“proved” in some other manner before it can be accepted as the position of the corner.

Likewise, some variation between the monument described in the record and that found

today is not uncommon. The retracing surveyor should always “make room in his/her mind” for

the ravages of time and the frailty of other human beings. Which is not to say that anything other

than “minor variation” should be overlooked; but an older one-and-a-half-inch iron pipe used to

have a 1¾ inch outside diameter – the specie of a tree could have been incorrectly identified by a

surveyor who was not knowledgeable in dendrology – mistakes happen.

The rules of evidence have been codified, but to cover them in this context is not

practical. Some evidence must, if uncontroverted, be accepted; other evidence may not be


controverted; while still other evidence is inadmissible (may not be used). There are no

comprehensive rules guiding the surveyor as to which evidence to accept and which to reject, let

alone the comparative weight accepted evidence should be given. It is through experience and

the exercise of good judgment that problems are resolved.

The use of existing roadwaysVirtually all States consider roads (legally) as natural monuments. As such, they take

precedence over most other elements in interpreting and applying deeds. Throughout the public

land states, the road system has been constructed, in the main, along PLSS lines. Where no

physical remnants of the original survey can be found, the retracement surveyor should check

County Surveyor and/or Road Department field notes. If those sources fail to produce an answer,

the surveyor must “think outside of the box”, i.e. check historical societies, museums, local

newspaper files, photographers studios, etc. – and don’t forget the statements of older residents

who grew-up in the area – remember that you are looking for the best available evidence. Absent

such other evidence, the road itself may be the best available evidence of the original PLSS line.

As a general rule, courts prefer “tenuous evidence” to no evidence.

There is a rebuttable presumption that a highway/road has not “moved” since its original

location. The roadway found today is presumed to be located at the same position described in

the creating document, barring evidence to the contrary. When a subdivision boundary is shown

to fall within a public right-of-way, there arises a presumption that the centerline of the road and

the subdivision boundary are coincident.

By Act of Congress “the public” was granted a Right-of-Way across the unappropriated

Public Domain for ingress and egress. This “offer of dedication” required no formal

“acceptance”. Completion of the dedication was by common public use (a road or driveway for

livestock), which constituted the “acceptance”. Patents issued subsequent to the acceptance were

subject to the public rights created by the dedication, despite the fact that there was no record of

these rights – let alone their width or alignment.

CONCLUDING COMENT


“As a general rule, where patented lands are described in the conveyance in terms of the rectangular

survey system, the rights, title, or interest conveyed are defined by the corners of the Government survey

upon which the description was based.... Here, however, since the original survey was fraudulent and

evidence of controlling corners nonexistent, the boundaries of land conveyed in the homestead patents

could not be accurately located through a dependent resurvey tied to the original survey.... Therefore,

[the] BLM conducted a metes and bounds survey of the tract to represent the position and form of the

lands alienated on the basis of the original survey, utilizing the best available evidence of their true

original positions to locate the tract on the ground.”

“… numerous field investigations uncovered no boundary monuments for the patented lands. Under such

circumstances, the Manual directs the surveyor to utilize the available collateral evidence as the best

indication of the original position of the claim… an acceptably located claim must have a … location as

nearly correct as may be expected from the existing evidence of the original survey."

Timothy J. Bottoms, 52 I.D.451 (1928)

SUPPLEMENTAL REFERENCE SOURCES


Surveys and Surveyors of the Public Domain 1785 – 1975

Author: Lola Cazier Publisher: U.S. Government

Glossaries of BLM Surveying and Mapping Terms

Publisher: U.S. Government

Mineral Survey Procedures Guide

Publisher: U.S. Government

A Collection of Original Instructions to Surveyors of the Public Lands 1815 – 1881

Collector: Roy Minnick Publisher: Landmark Enterprises

Restoration of Lost or Obliterated Corners & Subdivision of Sections 1883 -1974

Publisher: Carben Surveying Reprints


THE PLAN OF SURVEY - New Home descriptio… · Web viewA diagram of an Initial Point, Principle...

Documents

Transcript of THE PLAN OF SURVEY - New Home descriptio… · Web viewA diagram of an Initial Point, Principle...