Chain!
The theory behind surveying practice has never been the notion of the surveyor. It is rooted in a far older idea shaped by the sovereign that all land was held under. Physically and literally defending the land is where rights to land emanated from.
We have gradually tried to tame physical force with law to give a veneer of civility to our society, however the absoluteness of physical possession remain as a basis for the ultimate claim to land. This principle is reflected in modern real property law just as it was in the past. Legal decisions are built on other legal decisions and as such the same is that of profession of land surveying.
Occasionally there are court decisions which are questionable for various reasons, depending on what one believes and understands, about land surveying theory. Indeed one can cite many court decisions to support almost any specific point of view regarding a certain idea for land surveying practice.
Some surveyors have come to the conclusion that the legal system offers no real benefit as a resort but are just as adamant that surveyors should look to the law as a mandate for surveyors to adjudicate property boundaries with beginning points and bounds of their own notion. They suggest that traditional surveying theory and practice are irrelevant and based on understandings and definitions of surveyors, contrary to modern case law and the dynamic of neo professional land surveyor.
I would suggest that superficial views of certain case law can be distorted to suit most any presupposition particularly when it is used in a manner to exalt one’s ego as a professional land surveyor by belittling other surveyors.
Understandings gained from examining case law is limited to the information that can be gathered behind the case summaries or opinions published. Some have made assertions recently regarding particular court cases and opinions that can’t be supported by any investigation of the underlying facts beyond a shallow cursory review.
[i]Olson v. Jude 2003 MT 186; 316 Mont. 438; 73 P.3d 809; 2003 [i/] (1) for instance is just such a case. In 1957, the Zollingers decided to subdivide their property. They hired Earl Best to survey and prepare a subdivision plat for a portion of the property this subdivision became known as the Big Horn Tract. The Zollingers subsequently conveyed the property, other than the Big Horn Tract to others. The Judes began purchasing the Big Horn Tract lots in 1985 for investment purposes.
A conflict arose when it became apparent that the Big Horn Tract subdivision as staked by Earl Best fell short of the boundary of the lands owned by the Zollingers. The court worded as follows “While the Certificate of Dedication and Plat E-52 itself identify the northern boundary of the Big Horn Tract as being along the east-west quarter section line, Best placed his monuments for the northern boundary 108 feet south of the east-west quarter section line. Best's failure to correctly retrace the east-west quarter section line created a discrepancy between the description contained in the Zollinger's Certificate of Dedication on Plat E-52 and the location of the monuments Best set pursuant to the survey. While the Certificate of Dedication and Plat E-52 itself identify the northern boundary of the Big Horn Tract as being along the east-west quarter section line, Best placed his monuments for the northern boundary 108 feet south of the east-west quarter section line”.
The facts of this case are that in 1905, Ralph and Howard Bushnell had surveyed Section 32, Township 6 South, Range 4 East, Gallatin County, Montana, under contract to the United States Government. The Bushnells established corners at half-mile intervals for creating sections and quarter sections. They started from the corner of Sections 4, 5, 32 and 33, and proceeded north 0 degrees 4 feet west between Sections 32 and 33. At 40 chains, or halfway between section lines, they placed a 16 inch by 9 inch by 5 inch granite stone 11 inches into the ground. The inscription " 1/4 " was marked on its west face. The stone monumented the east quarter corner of Section 32 and denotes the eastern terminus of the east-west quarter section line through Section 32.
Best was the original surveyor of the lines of the Big Horn Tract Subdivision but not of the east-west quarter section line. In this case the court noted that “the Big Horn Tract plat references two original government corners. Best utilized the "SW corner NE 1/80 Ga. 134, 4 SE 1/4 Sec. 32 T6S, R4E, M.P.M." as the starting point of his survey for the Big Horn Tract. Furthermore, [i] rather than being the creator of the east-west quarter section line of Section 32, Best was only retracing it, and he retraced it incorrectly [i/]. The original government surveyors started at the corner of Sections 4, 5, 32 and 33 and proceeded north to establish the quarter section monument. As reflected by the location of his placed monuments,[i] Best made no effort to follow the footsteps of the original government surveyors even though it was his duty as a surveyor [i/]. Best's failure to correctly locate and identify the original corners caused him to place his monuments for the northern boundary of the Big Horn Tract 108 feet south of the east-west quarter section line even though Plat E-52 shows the northern boundary lying along the east-west quarter section line.”.
In September 1994, an architectural firm hired by the Judes retained Mark Chandler with C & H Engineering and Surveying, Inc., A subsequent resurvey was performed by Chandler. Chandler opined that it was the Zollingers' intention that the northern boundary of the Big Horn Tract be located along the east-west quarter section line of Section 32, not at the point where Best set his monuments which. In November 1994, Ron Allen of Allen & Associates surveyed the location of monuments in the Big Horn Tract subdivision. Allen relied on Best's erroneously placed monuments to locate the northern boundary of the Big Horn Tract. Allen identified the strip of land located between the northernmost monuments placed by Best and the east-west quarter section line (an area approximately 108 feet by 1200 feet and equaling almost 3 acres) as Tract 1 when he prepared COS 1898. Ultimately Olson claimed ownership of Tract 1, COS 1898, contending that it was not part of the Big Horn Tract subdivision and therefore, it was never conveyed to the Judes. Allen filed COS 1898 with the Gallatin County Clerk and Recorder's Office on July 7, 1995.
At this point it is time to ask yourself the question of whether the surveyors in this case could have done something to prevent this discrepancy from rising to the level of a dispute and stopped the concerned parties from seeking a legal remedy. I would suggest that I may have my own opinion that would support one side or the other in this case, however the fact remains that the surveyors in this case both identified the same problem, they simply interpreted the evidence differently and arrived at different conclusions for a resolution to this apparent ambiguity.
Following a three-day bench trial, the District Court issued its Findings of Fact and Conclusions of Law wherein it determined that because [b]original monuments [b/] control the location of boundaries, Plat E-52's references to the 1905 United States Government survey control the location of the northern boundary of the Big Horn Tract. Consequently, the court concluded that the northern boundary of the Big Horn Tract is along the east-west quarter section line of Section 32, hence Tract 1, COS 1898 is part of the Big Horn Tract.
Both expert witnesses, Allen and Chandler, testified that when they draft a certificate of dedication, they attempt to draft it according to the property owner's intentions. Moreover, both Allen and Chandler testified that the publication Brown's Boundary Control and Legal Principles (4th ed. 1995), is recognized as an authoritative and reliable authority on the subject of boundary control and related principles.
The court noted that Allen, who was Olson's own expert witness, testified that Best used improper methodology in surveying the Big Horn Tract.
The court stated that “[i]fundamental survey principles [i/] provide that the parties' intent is paramount to all other considerations when interpreting surveys and conveyances. In the case sub judice, the Certificate of Dedication on Plat E-52 clearly shows that the Zollingers intended that the northern boundary of the Big Horn Tract extend to the east-west quarter section line and not to Best's erroneously located monuments” and that “Best failed to survey the Big Horn Tract pursuant to the Zollingers' clearly expressed intentions. Plat E-52's references to the government section line controls the location of the northern boundary of the Big Horn Tract”.
The real issue behind the decision in this case is equity and not intent as the court stated “relying on previous decisions, courts have given surveyors guidance in the resolution of problems.
Three basic elements which have been identified are:
[i]1) An occupancy right that has ripened into a legal right extinguishes or becomes superior to all written title to occupied land.[i/]
2) As between private parties in a land dispute, a senior right is superior to a junior right.
3) Written intentions of the parties are paramount.”
The Judes had built a cabin on part of the land in dispute. If you read the pleadings and briefs in this case it is obvious this was a consideration in the decision to uphold the bench trial judgment. The facts are in the latter part of 1994, the Judes began construction of a cabin on the now disputed parcel identified as Tract 1, COS 1898. After the construction of the cabin had already begun, the Judes learned that Boyne (now Olson) claimed ownership of Tract 1, COS 1898. Nevertheless, the Judes continued with the construction of the cabin. The completed cabin is a two story, two bedroom log structure with an attached garage. The cabin's foundation extends 33.15 feet into Tract 1, COS 1898.
Despite this it is clear that in this case the court clearly does recognize the difference between the original surveyor and a retracing surveyor.
Another similar case comes to mind in [i]Rivers V. Lozeau No. 88-396, District Court of Appeal Florida, 1989 [i/] (2). However in this case the ambiguity involved the correct location of the line between two parcels of land lying within the 40 acre quarter-quarter section described as the Southeast 1/4 of the Southwest 1/4 of Section 15, Township 14 South, Range 24 East, in Marion County, Florida. In 1964, Joseph Rizzo and his wife owned that portion of this quarter-quarter section that is in question. The U.S. Forestry Service owns the land to the north. At that time, the Rizzos retained a surveyor, Moorhead Engineering, to survey their land and establish certain internal land lines dividing it into parts. Moorhead undertook to locate and monument Rizzos’ external boundary lines and corners and to establish and monument the terminal points of certain internal division lines.
The facts in this case are that “in 1969, the Rizzos conveyed to Marcus E. Brown and wife by deed containing the following land description:
The North 400.00 feet of SE 1/4 of SW 1/4 of Section 15, Township 14 South, Range 25 East, Marion County, Florida.
The west, north, and east lines of the Brown parcel followed the outer or external boundary lines of the property owned by the Rizzos. The south line of the Brown parcel did not follow any internal line established by the Moorhead survey. Mr. Rizzo showed Marcus Brown the monuments Moorhead had set as being the north corners of this quarter-quarter section and certain other Moorhead monuments which the Rizzos told Marcus Brown were 33 feet south of the south line of the parcel the Rizzos conveyed to Brown. Later in 1977 or 1978, Marcus Brown measured 33 feet north of the Moorhead monuments shown him by Mr. Rizzo and placed a metal rod at the point Mr. Rizzo had told him was his south boundary line. Marcus Brown conveyed this property by the same description to George Brown who conveyed by the some description to appellees Raymond S. Lozeau and his wife.
In 1975, the Rizzos conveyed a parcel of their remaining land to Paul W. Adams and wife, which parcel was described by reference to the boundary lines of this quarter-quarter section with the north line of the property being described as:
thence N 89d53'01" E along a line 400.00 feet south of and parallel to the North line of said SE 1/4 of SW 1/4 a distance of 1327.04 feet to a point on the East line of said SE 1/4 of SW 1/4;
Using substantially the same land description, the Adamses conveyed to Daniel E. Reader and wife, who conveyed to appellants Harold J. Rivers and wife.
In 1982, the U.S. Bureau of Land Management did a "dependent resurvey" of the lands of the U.S. Forestry Service which retraced the lines of the original government survey and identified, restored, and remonumented the original positions of the corners of the original U.S. government survey [*1]. This remonumenting of the original government survey, along with the 1986 survey by Whit Holley Britt, made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 28.71 feet north of the true location of that line as it was originally established by the official U.S. government survey and reestablished by the 1982 government "dependent survey."
Appellees Lozeaus brought this action in ejectment and for declaratory judgment against the appellants Riverses who had possession of the south 28.71 feet of the north 400 feet measured from the north line of the quarter-quarter section according to the U.S. government (and Britt) surveys. The Lozeaus argued that they acquired legal title to the disputed land by virtue of the 1969 deed from Rizzo to Marcus Brown and the successive conveyances to them. The Riverses argued that Moorhead was the original surveyor and that his monuments on the ground controlled the location of the land subsequently conveyed by Rizzo, notwithstanding that "later" surveys, i.e., the government survey of 1982 and the 1986 Britt survey, may show the Moorhead monuments to have been error. After a non-jury trial, the trial court found that the property descriptions of the parties overlapped and ordered that the exact dimensions of the overlap be established and the overlapping property split evenly between the plaintiffs and defendants. The Riverses appeal and the Lozeaus cross-appeal.”
The court stated that “LAND SURVEYORS Although title attorneys and others who regularly work with them develop expertise as to land descriptions, the only professional authorized to locate land lines on the ground is a registered land surveyor. In fact, the definition of a leally sufficient real property description is one that can located on the ground by a surveyor. However, in absence of statute, a surveyor is not an official and has no authority to establish boundaries; like an attorney speaking on a legal question, he can only state or express his professional opinion as to surveying questions. In working for a client, a surveyor basically performs two distinctly different roles or functions:
First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the "original surveyor" and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line.
Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he "traces the footsteps" of the "original surveyor" in locating existing boundaries. Correctly stated, this is a "retracement" survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a "following" or "tracing" surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner of a new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it.”
Further the court said that “ORIGINAL LAND LINES When there is a boundary dispute caused by an ambiguity in the property description in a deed, it is often stated that the courts seek to effectuate the intent of the parties. This is not an accurate notion. The intent of the parties to a contract for the sale and purchase of land, both the buyer and the seller, may be relevant to a dispute concerning that contract, but in a real sense, the grantee in a deed is not a party to the deed, he does not sign it and his intent as to the quality of the legal title he receives and as to the location and extent of the land legally conveyed by the deed is quite immaterial as to those matters. The owners of a parcel of land, being the grantee under a patent or deed, or devisee under a will or the heir of a prior owner, has no authority or power to establish the boundaries of the land he owns; he has only the power to establish the division or boundary line between parcels when he owns the land on both sides of the boundary line he is establishing. In short, an original surveyor can establish an original boundary line only for an owner who owns the land on both sides of the line what is being established and that line becomes an authentic original line only when the owner makes a conveyance based on the description of the surveyed line and has good legal title to the land described in his conveyance.”
Again we see a clear understanding from the court of what an original surveyor is, however in this case the court also tells us there is a difference between the original surveyor and the first surveyor. To this end the court stated that “UNITED STATES AS ORIGINAL OWNER AND ITS CADASTRAL ENGINEER Subject only to certain rights of individuals under Spanish grants, the United States became the owner of all land now in the State of Florida by virtue of a treaty with Spain dated Feb. 22, 1819 and ratified Feb. 22, 1821 and, as original governmental owner, caused Florida to be surveyed in accordance with a rectangular system of surveys of public lands adopted by Acts of Congress. The permanent seat of government having been established at Tallahassee, an initial point of reference was located nearby through which a north-south guide line was run according to the true meridian and a base (township) line was run east-west on a true parallel of latitude. North-south range lines, six miles apart and parallel to the Tallahassee Principal Meridian, were run throughout the state except where impractical because of navigable water, etc. Likewise, East-west township lines, six miles apart and parallel to the base line, were also run throughout the state to form normal townships six miles square each of which were divided into 36 square sections, one mile long on each side containing as nearly as may be, 640 acres each. These sections were numbered respectively, beginning with the number one, in the northeast corner and proceeding west (left) and east (right) alternately through the townships with progressive numbers. Sections were divided into squares of quarter sections containing 160 acres. The quarter-quarter section corners are placed on the line connecting the section and quarter-section corners, and midway between them. [b]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 monuments 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 section, townships and range[i/]. The court also said that “In establishing the internal lines with 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 fail 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. From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos, the title conveys was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown, and subsequent deeds, the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors. This is true regardless of the fact that Mr. Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors and regardless of where anyone erroneously thought of believed the correct location of this land boundary line to be. Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone, including a particular surveyor, might erroneously believe the correct location of the true boundary line to be. In 1975, the Rizzos conveyed to appellant Rivers’ predecessor in title property the northern boundary of which is defined as being 400 feet south of, and parallel to the north line of this quarter-quarter section. Regardless of any assertion that this conveyance was made relying on the Moorhead survey, the description itself does not describe the line in question by reference to the survey or monuments set by the Moorhead surveyor. On the contrary, that description adopts by reference the true north line of this quarter-quarter section which is necessarily controlled by the location of that line as established by the original government survey. Even if the description in the subsequent deed is considered to overlap the south 28 feet of the property previously conveyed by the Rizzos to Lozeaus’ predecessor in title (which it does not), it is quite immaterial because, at the time of the conveyance to Paul W. Adams, Mr. and Mrs. Rizzo did not own that south 28 feet, they having previously conveyed legal title to it to Marcus Brown, Lozeaus’ predecessor in title. All else argues in this case is immaterial. The Lozeaus are entitled to prevail in this controversy”.
It is interesting in that in this case all legal theories that could change the result such as those relating to adverse possession, title by acquiescence, estoppel, lack of legal title, etc., were neither asserted, nor argued, nor material in this case.
Texas has a number of cases dealing with this very issue and they all indicate a clear understanding of the difference between the original surveyor and the first surveyor (or later surveyor) who subsequently attempts to monument the original line created by that original surveyor. Examples of this can be found throughout case law in Texas and are too numerous to go in mention in depth for the purpose of this article. Some of these cases can be viewed at the Texas Board of Land Surveying website (3).
The point is that surveying theory and practice are not based on some notion of surveyors alone nor does case law support a contention that there is no difference between the “original surveyor” and the “first surveyor”. In fact the contrary is quite evident with anything beyond cursory examination of case law.
Come ahead!
(1) http://www.i-boards.com/bnp/pob/messages.asp?ThreadID=93327
(2) http://www.floridageomatics.com/flalaw/cases/rivers.htm
(3) http://www.txls.state.tx.us/sect05/word_resources/court_cases/
Thoughts