# Presentation: 557851

## January 29, 2007

## The Next Edition of theManual of Surveying Instructionsand the Modern Cadastre

- The Next Edition of the_Manual of Surveying Instructions_and the Modern Cadastre

- Presented by:
- Lance Bishop, BLM Chief Cadastral Surveyor
- California State Office, Sacramento, CA and
- Bob Dahl, BLM Cadastral Surveyor
- Lands, Realty & Cadastral Survey Division
- Washington, D.C.
- 46th Annual CSU Fresno Geomatics Engineering Conference
- Fresno, CA
- January 27, 2007

**Notes:**
Write down individuals’ expectations on attending this presentation.

## Little Fish in a Big Pond

- Cadastre – Cadastral – Cadastral Survey

- Agenda

- What is the Manual of Surveying
-   Instructions?

- Why is the Manual relevant to the Private, County and State Surveyors in California?

- Case Study

**Notes:**
Very briefly:
Cadastre – An official register of the quantity, value, location, and ownership of real estate used in apportioning taxes.
Cadastral – Of or relating to a cadastre; showing or recording property boundaries, subdivision lines, buildings, and related details.
Cadastral Survey – Creates (or reestablishes), marks, and defines boundaries of tracts of land, all subject to approval of the Director, Bureau of Land Management.

Cadastral survey is a Little Fish in a Big Pond.
A Case Study to show the applications of the principles in the Manual to a real survey case.

Today we will discuss; "What is the Manual?" "Should there be a Manual?" "Does there need to be a next edition of the Manual?" "How should the BLM develop the next edition?" "What role, if any, the surveying and other interested communities want to/should play in the development of the next edition?" etc.

This next edition presentation is centered around how the Manual is relevant to and affects the work of the private, county and state surveyors of California. We will discuss state statutes, state regulations and state case law; federal statutes, federal administrative law, federal case law, and federal policy, which reference the Manual.

## Scope of the project

- - Technical project nested in a web of administration

- Agenda

- What is the process?

-  How are we going about it?

-  Where are we to date?

**Notes:**
The technical project is wrapped within an overarching administrative process.

Cadastral Survey is not always in complete control of it's own destiny.

There are lots and lots of people, none of them surveyors, and most with little comprehension of what surveyors do, who must give their blessing before the next edition can be issued.

##  OHA →

** ****OHA →**
-      ↑
-   IBLA
-   IBIA
-   IBCA

**Notes:**
The Department of the Interior consists of 8 Bureaus and 7 Offices consisting of 70,300 +/- full time employees. DOI full time personnel accounts for 51⁄2% of total number of professional people on the federal pay role.

Cadastral Survey full time personnel accounts for less than 1⁄2 of 1% of the total full time personnel within the DOI.

The Office of Hearings and Appeals (OHA) reports to the Assistant Secretary – Policy, Management and Budget (AS-PMB). The AS-PMB is responsible for overseeing the administrative appeals process.  OHA includes the Interior Board of Contract Appeals (IBCA), Interior Board of Indian Appeals (IBIA) and Interior Board of Land Appeals (IBLA).  The IBLA speaks for the Secretary of the Interior.  IBLA hears appeals from Departmental officials’ decisions, including filing of official surveys, by the public. The IBLA decisions are controlling precedence for BLM Cadastral Survey.

## Bureau of Land Management

**Notes:**
Within BLM:
The Cadastral Survey Program is one of nearly 60 programs
and
Cadastral Survey full time personnel accounts for approximately 2% of the total personnel within the BLM.

## Cadastral Presence

- At the DOI level – BLM is 1 of 15 Bureaus and Offices
- Within BLM – Cadastral is one of nearly 60 programs

**Notes:**
The Department of the Interior consists of 8 Bureaus and 7 Offices consisting of 70,300 +/- full time employees. DOI full time personnel accounts for 51⁄2% of total number of professional people on the federal pay role.

Cadastral Survey full time personnel accounts for less than 1⁄2 of 1% of the total full time personnel within the DOI.

Within BLM, Cadastral Survey is one of nearly 60 programs.
And
Cadastral Survey full time personnel accounts for approximately 2% of the total personnel within the BLM.

And within California BLM:
The Cadastral Survey Program is one of nearly 45 programs.
And
Cadastral Survey full time personnel accounts for approximately 5% of the total personnel within California BLM.

## What is the

- _Manual of Instructions for the Survey of the Public Lands of the United States_? (Manual)

- Whom/What is affected?

**Notes:**
The Manual has implications to:
Federal Authority (Official) Surveys; State Authority (Local) Surveys; Administrative Surveys;
Registered Professional Land Surveyors; Cadastral Surveyors; Landowners; Legal Profession; Title Industry; Energy Industry; Others.
There are three types of surveys:  1)  federal authority; 2)  state authority; and 3)  no authority.
There are two sets of footsteps to follow:  (1) the legal and (2) the previous surveyor(s)
Currently there are 260 BLM surveyors and 50,000 Registered surveyors; most of the country has, is and will be surveyed by private and other nonfederal surveyors.
The intended audience of the Manual is the federal authority surveyor including:
The field surveyor; The special instructions writer; The survey reviewer; The draftsman; and The Chief Cadastral Surveyor.
The Manual can be characterized as a collect of general instructions:  A) Chasing the law.  B) Stating the “law” (the rules).
By state legislative and/or judicial action the intended audience can be anyone practicing land surveying in the state.
Who is affected by the Manual?  And how are they affected by the Manual?
The Manual is part of a Covenant between the Federal government and its citizens.

## Why is the Manual

- Relevant to the Private, County and State Surveyor in California?

**Notes:**
Why is the Manual relevant to the Private, County and State Surveyor in California?
     The Manual is the survey rules for locating the boundaries and corners of:
Lands with public domain status; federal lands that have never gone to patent;
Lands with Indian trust or restricted fee status; and
Federal acquired lands and nonfederal lands, described by a federal patent or based upon a federal patent description; typically the Manual is the rules for locating the exterior boundary of the described lands.
Origins of land descriptions:  “east-half”  “west-half”
	a)  federal; or b)  state?
Bona fide – Federal authority surveyors must work with “the where” first and just “the who” or “the what” as they pertain to the first.
     Role of Interior Board of Land Appeals;  Delegation of Authority;  Rule changes are prospective in application and generally are not applied retrospectively;  and 8 three ring binders of Instruction Memorandums and Information Bulletins.

## Case Study

- Group 1474, CA
- T. 14 N., R. 13 E., S.B.M.
- Section 23

**Notes:**
Case Study
Group 1474 California
T. 14 N., R. 13 E., S.B.M.
Section 23
An example of the application of the principles written in the Manual to a real survey job.

## History of Surveys

- 1856-57 - A.H. Jones originally surveyed the township lines and subdivisional lines of the township
- 1916-17 - J.F. Duling, CE & PLS resurveyed multiple townships in the area for the Rock Springs Land and Cattle Co.
- 1919 San Bernardino County Surveyor’s office resurveyed portions of the township

**Notes:**
History of Surveys
1856-57 – A. H. Jones originally surveyed the township lines and subdivisional lines of the township
1916-17 – J. F. Duling, CE & PLS resurveyed multiple townships in the area for the Rock Springs Land and Cattle Co.
1919 San Bernardino County Surveyor’s office resurveyed portions of the township

The federal government was the common grantor.
Duling survey depicts many distortions in the Jones original survey.  Notes an elongation of the south boundary of section 23.  Rock Springs owned the SE SE of Sec. 23. Survey was performed to locate all water rights for the Cattle Co. 
Because of distortions the County Surveyor was requested to resurvey.
County Surveyor confirms 6 chain elongation but also notes the “Pete’s 1⁄4-1/4 Corner” which is 1322 feet westerly of the found SE Corner of Sec. 23.  From Pete’s Corner CS also notes structures that existed along the local N-S centerline of the SE1/4 of Sec 23.
The SE1/4 SE1/4 was later acquired by the federal government for the National Park Service.

## Our First Plan for Survey

- Patents and subsequent sales were based on aliquot descriptions.
- Because of the elongation and the 1⁄4 between 23/26 was not located only a standard breakdown of the section was authorized.
- Our survey put most of the structures in trespass with the NPS.
- Manual cite 6-15.

**Notes:**
Our First Plan for Survey
Patents and subsequent sales were based on aliquot descriptions.
Because of the elongation and the 1⁄4 between 23/26 was not located only a standard breakdown of the section was authorized.
Our survey put most of the structures in trespass with the NPS.
Manual cite 6-15.

We needed to hold to the title lines and disregard Pete’s corner.

6-15 The position of a tract of land, described by legal subdivisions is absolutely fixed by the original corners and other evidences of the original survey and not by occupation or improvements.....Even if the original survey was poorly executed it still controls the boundaries of land patented.

We will show how the manual gives us an out.

## County Survey 1919

**Notes:**
County Survey 1919
“At Pete’s 1⁄4 Cor
Sighted East on Foresight
on Mt.

At Petes 1/4-1/4 Cor.  Backsight
On 1⁄4 Cor  Plunged to F.S. on
Mt.  Needle = East. (check) also
found found sight on Line of
Clearing  Turned L. N 1° 02’ W  90° 29’ or 89° 31’ “

{Pete Lawrence was the owner of the SW1/4 SE1/4 in 1919 and was a member of the County Surveyor’s crew.}

## County Survey 1919

**Notes:**
Results of County Survey 1919

## Our Retracement

**Notes:**
Our (BLM’s) Retracement

## The Manual

- Section 5-2
- “Where government lands are involved, the final authority ...rests with the BLM”
- “If privately owned lands are involved, consideration is given to any protest made by an interested person concerning the work done by the BLM”
- The Landowner did protest!

**Notes:**
The Manual
Section 5-2
“Where government lands are involved, the final authority ...rests with the BLM”

“If privately owned lands are involved, consideration is given to any protest made by an interested person concerning the work done by the BLM”

The Landowner did protest!

## Interior Board of Land Appeals

- Long established by the Department’s Interior Board of Land Appeals (IBLA) that a protestant who challenges a government resurvey will have the burden of demonstrating by a preponderance of the evidence that the disputed resurvey is not an accurate retracement of the survey which it purports to retrace. *John W. and Ovada Yeargan,* 126 IBLA 361, at 363 (1993)
- Our protestant did an outstanding job of proving his case.

**Notes:**
Interior Board of Land Appeals
Long established by the Department’s Interior Board of Land Appeals (IBLA) that a protestant who challenges a government resurvey will have the burden of demonstrating by a preponderance of the evidence that the disputed resurvey is not an accurate retracement of the survey which it purports to retrace. John W. and Ovada Yeargan, 126 IBLA 361, at 363 (1993)

Our protestant did an outstanding job of proving his case.

## The Manualcontinued:

- The Manualcontinued:

- Section 5-21
- The rules for the restoration of lost corners should not be applied until all original and collateral evidence has been developed.....

**Notes:**
The Manual (continued)
Section 5-21
The rules for the restoration of lost corners should not be applied until all original and collateral evidence has been developed.....

We didn’t give enough weight to mounds of stone on section line that were good for alignment and distance from the SE section corner.

## The Act ofMarch 3, 1909:Manual section 6-12

- The Act ofMarch 3, 1909:Manual section 6-12

- That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement

**Notes:**
The Act of March 3, 1909 – The General Resurvey Act – Title 43 United States Code, Section 772 (43 U.S.C. 772)

That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement

## The Manualcontinued:

- The Manualcontinued:

- Section 6-13
- Bona fide rights are those acquired in good faith under the law.

**Notes:**
The Manual (continued)
section 6-13
Bona fide rights are those acquired in good faith under the law.

What was the good faith location???

## The Manualcontinued:

- The Manualcontinued:

- Section 6-15 continued
- The surveyor should neither rigidly apply the rules for restoration of lost corners without regard to effect on location of improvements.....

**Notes:**
The Manual (continued)
Section 6-15 (continued)
The surveyor should neither rigidly apply the rules for restoration of lost corners without regard to effect on location of improvements.....

We contradict our first plan now.

## The Manualcontinued:

- The Manualcontinued:

- Section 6-17
- A claim cannot generally be regarded as having been located in good faith if no attempts have been made to relate it in some manner to the original survey.

**Notes:**
The Manual (continued)
Section 6-17
A claim cannot generally be regarded as having been located in good faith if no attempts have been made to relate it in some manner to the original survey.

How did the claimant relate it to the original survey??

By measuring 1⁄4 mile westerly from the original SE section corner.

Was this correct??  Could this be construed as good faith??

The 1919 CS established the position of the local boundary line between the two landowners, based on evidence of occupation.

If the local boundary line was accepted as the true boundary line by both original landowners, then that line controls today.

## Our Final Plat

**Notes:**
Our Final Plat

## Conclusions

- Our first direction, albeit in the end wrong, was well supported in Manual.
- The landowner may have won but still much of his later improvement are still in trespass.
- We do make mistakes, but our ultimate goal is to get it right.

**Notes:**
Conclusions
Our first direction, albeit in the end wrong, was well supported in Manual.
The landowner may have won but still much of his later improvement are still in trespass.
We do make mistakes, but our ultimate goal is to get it right. 

## Business & Professions CodeDivision 3. Professions and Vocations GenerallyChapter 15. Land SurveyorsArticle 4. Issuance of License

- Business & Professions CodeDivision 3. Professions and Vocations GenerallyChapter 15. Land SurveyorsArticle 4. Issuance of License

- § 8741. Divisions of examination
- (b)  Applicant shall be thoroughly familiar with Manual of Surveying Instructions procedures and rules

- CALIFORNIA CODES

**Notes:**
California Codes
Business & Professions Code
Division 3. Professions and Vocations Generally
Chapter 15. Land Surveyors
Article 4. Issuance of License
Section 8741. Divisions of examination
(b)  The applicant for the second division examination shall have successfully passed the first division examination, or shall be exempt therefrom.  The applicant shall be thoroughly familiar with (1) the procedure and rules governing the survey of public lands as set forth in “Manual of Surveying Instructions,” published by the Bureau of Land Management, Department of the Interior, Washington, D.C. and (2) the principles of real property relating to boundaries and conveyancing.
1933 Statutes & added to Statutes in 1939.

What are some procedures and rules in the Manual relevant to the practice of land surveying in California?

## CALIFORNIA CODESBusiness & Professions CodeDivision 3. Professions and Vocations GenerallyChapter 15. Land SurveyorsArticle 5. Surveying Practice

- CALIFORNIA CODESBusiness & Professions CodeDivision 3. Professions and Vocations GenerallyChapter 15. Land SurveyorsArticle 5. Surveying Practice

- § 8773. Filing of written record of corner establishment or restoration required
- (a) & (b) “Lost corner” - defined by the Manual

**Notes:**
California Codes
Business & Professions Code
Division 3. Professions and Vocations Generally
Chapter 15. Land Surveyors
Article 5. Surveying Practice
Section 8773. Filing of written record of corner establishment or restoration required
(a)  ....., a written record of corner establishment or restoration to be known as a “corner record” for every corner established by the Survey of the Public Lands of the United States, except “lost corners,” as defined by the Manual of Instructions for the Survey of the Public Lands of the United States, and every accessory to such corner which is found, set, reset, or used as control in any survey by such authorized person.
(b)  After the establishment of a lost corner, as defined by the Manual of Instructions for the Survey of the Public Lands of the United States, a record of survey shall be filed as set forth in Section 8764.
Added to Statutes in 1973.

Existent, obliterated and lost corners are defined in chapter V, 1973 edition.

## Title 16. Professional and Vocational RegulationsDivision 5. Board for Professional Engineers and Land SurveyorsArticle 4. Miscellaneous

- Title 16. Professional and Vocational RegulationsDivision 5. Board for Professional Engineers and Land SurveyorsArticle 4. Miscellaneous

- CALIFORNIA CODE OF REGULATIONS

- § 464. Corner Record
- (f) BLM standard markings and abbreviations shall be used

**Notes:**
California Code of Regulations
Title 16. Professional and Vocational Regulations
Division 5. Board for Professional Engineers and Land Surveyors
Article 4. Miscellaneous
Section 464. Corner Record
(f) The standard markings and standard abbreviations used by the Bureau of Land Management (formerly the General Land Office) of the United States Department of the Interior shall be used in the corner record.
Effective 1974.

Monumentation is described in chapter IV, 1973 edition.

## 64 Opinions of the Attorney General 224 (1981)

- Office of the Attorney General of the State of California

- Manual of Surveying Instructions is “the authoritative reference book on the subject” of accessories to corner monuments

**Notes:**
Office of the Attorney General of the State of California
Volume 64, Page 224 of the Opinions of the Attorney General (March 19, 1981)
The Board of Registration for Professional Engineers has requested an opinion on the following question:
Does the filing of a corner record pursuant to Business and Professions Code section 8773 eliminate the need to file a record of survey after the establishment of points or lines pursuant to Business and Professions Code section 8762?

When interpreting a California statute, and describing what the term “accessories” meant in the law, the Attorney General cited the Manual of Surveying Instructions as “the authoritative reference book on the subject.”

Section 316, 1947 edition, now section 4-83, 1973 edition.

## CALIFORNIA CODESEvidence CodeDivision 4. Judicial Notice§ 452. Matters which may be judicially noticed

- CALIFORNIA CODESEvidence CodeDivision 4. Judicial Notice§ 452. Matters which may be judicially noticed

- Regulations of the land office

- Actions of the BLM and of Departmental decisions

**Notes:**
California Codes
Evidence Code
Division 4. Judicial Notice
Section 452. Matters which may be judicially noticed
A court may take judicial notice that under the laws of the United States and the regulations of the land office, no sales of public lands are made until the plat and field notes of the subdivision survey of the township in which they lie have been returned and approved. Saunders v. Polich, 250 Cal App 2d 136 (4th Dist. 1967).
Courts are entitled to take judicial notice of the actions of the Secretary of the Interior and the Commissioner of the General Land Office of the United States, predecessor of the Bureau of Land Management; thus, a letter of transmittal of a departmental decision of the General Land Office, adjudicating rights under the Forest Lieu Lands Act, was entitled to judicial notice in a subsequent quiet title action involving the base lands concerned. Jay v. Dollarhide, 3 Cal App 3d 1001 (5th Dist. 1970).
Judicial notice – A court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact.

## Finley v. Yuba County Water District,99 Cal.App.3d 691 (1979); California v. Thompson, 22 Cal.App.3d 368 (1971), petitions for rehearing and hearing denied, by Supreme Court (1972)

*Finley v. Yuba County Water District*,99 Cal.App.3d 691 (1979);* California v. Thompson*, 22 Cal.App.3d 368 (1971), *petitions for rehearing and hearing denied,* by Supreme Court (1972)

- “Obliterated” corner and “lost” corner is defined by the Manual and the Restoration pamphlet.

- Rules for proportionate measurement is found in the Manual and Restoration pamphlet

- STATE COURTS OF CALIFORNIA

**Notes:**
Court of Appeal of California, Third Appellate District
Finley v. Yuba County Water District, 99 Cal.App.3d 691, 695 (1979)
In a dispute over the location of a quarter corner, and the two sections corners are not in issue.
“The proportionate measurement method may be used when the corner is “lost,” but not if it is merely “obliterated.””
The Court cites the Manual’s and Restoration of Lost or Obliterated Corners and Subdivision of Sections’ definition for each term.

For similar decision see - California v. Thompson, 22 Cal.App.3d 368, 378 (1971), petitions for rehearing and hearing denied, by California Supreme Court (1972)

## STATE COURTS OF CALIFORNIAReid v. Dunn, 201 Cal.App.2d 612 (1962), cert. denied, by Supreme Court (1962)

- STATE COURTS OF CALIFORNIA*Reid v. Dunn*, 201 Cal.App.2d 612 (1962), *cert. denied,* by Supreme Court (1962)

- Record of Survey Map shows careful preparation and execution of the survey in compliance with the rules established by the Manual

**Notes:**
Court of Appeal of California, Third Appellate District
Reid v. Dunn, 201 Cal.App.2d 612, 619 (1962), cert. denied, by California Supreme Court (1962)
“The Record of Survey Map in evidence (defendants’ exhibit “A), as well as Mr. Russell’s testimony, shows careful preparation and execution of the survey in compliance with the rules established by the United States Bureau of Land Management and the Surveyor General of California, and the case law of this state.”

Existent, obliterated and lost corner definitions; evaluation of evidence; and proportionate measurement

Court Dicta – Requirements for corner search.  A 90 year old section corner, described by the court as monumented with a black oak post, 4 by 4 inches in diameter, with a charcoal mound as accessories, in an area described by the court as rugged terrain and very brushy;  It was determined by the court it was not the obligation of the surveyor to “undertake a clearing project of an area which might encompass a radius of more than 500 feet on the remote chance that traces of charcoal would be discovered.”

## STATE COURTS OF CALIFORNIAHanes v. Hollow Tree Lumber Company, 191 Cal.App.2d 658 (1961), cert. denied, by Supreme Court (1961)

- STATE COURTS OF CALIFORNIA*Hanes v. Hollow Tree Lumber Company*, 191 Cal.App.2d 658 (1961), *cert. denied,* by Supreme Court (1961)

- In unusual situations (up to one mile of distortion in original survey):  unexplained or irreconcilable discrepancy, fictitious or grossly erroneous field notes – the Manual is quoted as the law in California

**Notes:**
Court of Appeal of California, Third Appellate District - Hanes v. Hollow Tree Lumber Company, 191 Cal.App.2d 658 (1961), cert. denied, by California Supreme Court (1961)
In a PLSS case with up to one mile of distortion in the original GLO survey
Page 661 – “In the instant case we have a most unusual situation.” ..... “It is stated in the Manual of Surveying Instructions (1947), published by the United States Department of Interior, Bureau of Land Management, at section 361 {section 5-21, 1973 ed.}: ". . . In cases where the relocated corner can not be made to harmonize with all the calls of the original field notes, due to unexplained discrepancy which is made apparent by the retracement, the engineer is required to determine which calls will be given major control, and those which must be subordinated." 
Page 664 – “We believe that the court was justified in concluding that the use of proportionate measurement to relocate the closing corner was improper because of gross error in the field notes.” ..... “ But the very authority relied upon rejects that method when gross error is found in the notes. The Manual, section 378 {section 5-41, 1973 ed.}, after describing the use of proportionate measurements says:  "An entirely different problem must be faced in those situations where, on extensive retracement and study, it becomes evident that the record tie from the closing corner to the monument called for in the field notes is either wholly fictitious, grossly in error, or carries some irreconcilable discrepancy. This is an extremely unfortunate situation when it occurs, but it must be dealt with. . . . No general rule can be advanced. . . ." (Emphasis added.)
Page 664 - And section 385 {section 5-46, 1973 ed.} reads: "Experience, thoroughness, and good judgment are indispensable for the successful retracement and recovery of any survey when it reaches a stage of extensive obliteration. It is an axiom, however, among experienced cadastral engineers, that if the original survey was made faithfully, and was supported by a reasonably good field-note record, the true location of the original lines and corners can be restored. That is the problem for which the basic principles have been outlined, and for which the rules have been laid down. The text must be discontinued at that point, as the rules can not be elaborated so as to be applicable for the reconstruction of a grossly erroneous survey, or for a survey the record field-notes of which are found to be fictitious. . . ."

## CALIFORNIA CASE LAW of NOTECounty of Yolo v. Nolan, 144 Cal. 445 (1904)

- CALIFORNIA CASE LAW of NOTE*County of Yolo v. Nolan*, 144 Cal. 445 (1904)

- Surveyor should endeavor to retrace the steps of the original surveyor

**Notes:**
Other California State Case Law of Note pertaining to surveying on the PLSS
Supreme Court of California, Department Two
County of Yolo v. Nolan, 144 Cal. 445 (1904) – The surveyor should have endeavored to retrace the steps of the man who made the original survey. It was not the business of the surveyor to speculate as to whether one government subdivision was short and the other long in acres.

The court is “chasing the law.”

## CALIFORNIA CASE LAW of NOTEWeaver v. Howatt, 161 Cal. 77 (1911); 171 Cal. 302 (1915)

- CALIFORNIA CASE LAW of NOTE*Weaver v. Howatt*, **161 Cal. 77 (1911); 171 Cal. 302 (1915)**

- 1)  Field notes and survey plat constitute parts of the descriptions in the original patents;
- 2)  Monuments and objects prevail over courses and distances;
- 3)  Lost corners will be restored by proportionate measurement; except

**Notes:**
Other California State Case Law of Note pertaining to surveying on the PLSS
Supreme Court of California, Department One
Weaver v. Howatt, 161 Cal. 77 (1911); 171 Cal. 302 (1915)
1) Page 80 – “The maps and field-notes constitute parts of the descriptions in the original patents. (Foss v. Johnstone, 158 Cal. 128, and cases cited.)”
2) Page 80 - “These monuments and objects, so far as they can be located, are controlling and usually prevail over courses and distances. (Code Civ. Proc., sec. 2077; Kimball v. McKee, 149 Cal. 450.)”
3) Page 84 – “If the exact spot cannot be found, it {the trial court} must, if possible, decide from the data appearing in evidence its approximate position, and the proportional method is to be used only when no other reasonable method is possible
4) and it must be so used that it does not contradict or conflict with the official data that are not impeached, and which, when not impeached, confine the actual position within certain limits.
5) The application of the proportional method must, in that case, be also confined to the same limits.”

## CALIFORNIA CASE LAW of NOTEWeaver v. Howatt, 161 Cal. 77 (1911); 171 Cal. 302 (1915)

- CALIFORNIA CASE LAW of NOTE*Weaver v. Howatt*, **161 Cal. 77 (1911); 171 Cal. 302 (1915)**

- 4)  Proportionate measurement is not used when it contradicts or conflicts with the official data that are not impeached and confine the actual position within certain limits;
- 5)  In that case, the proportionate measurement position must be confined to the same limits.

**Notes:**
Other California State Case Law of Note pertaining to surveying on the PLSS
Supreme Court of California, Department One
Weaver v. Howatt, 161 Cal. 77 (1911); 171 Cal. 302 (1915)
1) Page 80 – “The maps and field-notes constitute parts of the descriptions in the original patents. (Foss v. Johnstone, 158 Cal. 128, and cases cited.)”
2) Page 80 - “These monuments and objects, so far as they can be located, are controlling and usually prevail over courses and distances. (Code Civ. Proc., sec. 2077; Kimball v. McKee, 149 Cal. 450.)”
3) Page 84 – “If the exact spot cannot be found, it {the trial court} must, if possible, decide from the data appearing in evidence its approximate position, and the proportional method is to be used only when no other reasonable method is possible
4) and it must be so used that it does not contradict or conflict with the official data that are not impeached, and which, when not impeached, confine the actual position within certain limits.
5) The application of the proportional method must, in that case, be also confined to the same limits.”

## UNITED STATES CODETitle 43 Public Lands § 2

- UNITED STATES CODETitle 43 Public Lands § 2

- The Secretary of the Interior or such officer as he may designate (BLM) shall perform all executive duties appertaining to the surveying and sale of the public lands of the United States

**Notes:**
Now lets talk about the federal governance regime (administration, management, organization and system) for survey rules.
United States Code Title 43 Public Lands § 2. Duties concerning public lands
The Secretary of the Interior or such officer as he may designate shall perform all executive duties appertaining to the surveying and sale of the public lands of the United States, or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government.
R.S. § 453.  Derived from Acts of April 25, 1812, 2 Stat. 716; July 4, 1836, 5 Stat. 107; June 6, 1874, 18 Stat. 62; February 18, 1875, 18 Stat. 317.
This statute got the Secretary of War and the Secretary of State out of the surveys of the public lands created the Commissioner of the General Land Office (later the Secretary of the Interior and the Director of the BLM) and put the Commissioner in charge.

Where does the Manual come from?
Why was it created?
Who created the Manual?

## Title 43 U.S.C. §§ 751-753, 772, 773

- Title 43 U.S.C. §§ 751-753, 772, 773

- Other Federal Laws – Containing Survey Rules –
- The Federal Survey Rules

**Notes:**
43 USC 751-753 – The rules for survey; enacted in 1796, 1805, 1820 and 1832.
The General Resurvey Acts of 1909 (43 U.S.C. 772; Act of March 3, 1909, 35 Stat. 845; as amended by the Act of June 25, 1910, 36 Stat. 884; and by the Federal Land Policy and Management Act of October 21, 1976, 90 Stat. 2743, 2792), and of 1918 (43 U.S.C. 773; Act of September 21, 1918, 40 Stat. 965) as amended:
The Secretary of the Interior may cause to be made, resurveys of public lands and of privately owned lands: Provided, That no such resurvey shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey.
Where does the Manual come from?  Why was it created?  Who created the Manual?

## UNITED STATES CODETitle 25 Indians § 176

- UNITED STATES CODETitle 25 Indians § 176

- Whenever it becomes necessary to survey any Indian lands, the same shall be surveyed under the direction and control of the BLM

- And as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed

**Notes:**
United States Code Title 25 Indians § 176. Survey of reservations
Whenever it becomes necessary to survey any Indian or other reservations, or any lands, the same shall be surveyed under the direction and control of the Bureau of Land Management, and

as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed.
Codifications  R.S. § 2115 was from Act of April 8, 1864, 13 Stat. 41.

This got the Secretary of War and the Secretary of State out of the surveys of Indian lands and put the surveys within the Department of the Interior, under the direction and control of one official, the Commissioner of the General Land Office and his successor, the Director, Bureau of Land Management.

## INTERIOR BOARD OF LAND APPEALSHoward Vagneur, 159 IBLA 272 (2003)

**INTERIOR BOARD OF LAND APPEALS***Howard Vagneur*, 159 IBLA 272 (2003)

- 1)  BLM is authorized to resurvey the corners and lines of government surveys

- 2)  BLM Survey Manual defines a resurvey

- 3)  Manual defines ‘existent’ ‘obliterated’ and ‘lost’ corners

- 4)  Manual provides guidance to surveyors on how to base a resurvey on the ‘best available evidence’

**Notes:**
Interior Board of Land Appeals – Howard Vagneur, 159 IBLA 272 (2003)
[1] Pursuant to the Act of March 3, 1909, as amended, 43 U.S.C. § 772 (2000), BLM, as the delegate of the Secretary of the Interior, is authorized to resurvey the public lands in order to reestablish the corners and thus the lines established by earlier official surveys. John W. Yeargan, 126 IBLA at 362.     A dependent resurvey is designed to retrace and reestablish the lines of the original survey, marking the boundaries of the legal subdivisions of the public lands, in their "true original positions." Survey Manual, § 6-4, at 145; see John W. Yeargan, 126 IBLA at 362. It therefore places the lines in the same position on the earth's surface that they have occupied since the date of the original survey, thus protecting the bona fide rights of private landowners and their successors-in-interest, whose property boundaries are tied to the original lines, even when the original survey may have been poorly or erroneously executed. United States v. Doyle, 468 F.2d 633, 636 (10th Cir. 1972); see 43 U.S.C. § 772 (2000); Sweeten v. U.S. Department of Agriculture, 684 F.2d 679, 682 (10th Cir. 1982); Adams v. United States, 687 F. Supp. 1479, 1482-83, 1488-89 (D. Nev. 1988), aff'd in part, rev'd, vacated, and remanded in part on other grounds, 3 F.3d 1254 (9th Cir. 1993); John W. Yeargan, 126 IBLA at 362-63, 370.     We have long recognized that original lines are to be reestablished under a dependent resurvey by recovering or restoring the original corners by any of three methods, in descending order of importance. John W. Yeargan, 126 IBLA at 363. First, an "existent" or "found" corner can be recovered by finding evidence of the monument and/or its accessories. Survey Manual, § 5-5, at 130. Second, an "obliterated" corner, where there are no remaining traces of the monument or its accessories, can be recovered where the corner's location has been perpetuated or where other acceptable evidence establishes its location. Survey Manual, § 5-9, at 130. Third, where a corner cannot be considered existent or obliterated based on substantial evidence regarding its location, it will be regarded as a "lost corner" to be restored by reference to one or more interdependent corners by the method of proportionate measurement. Survey Manual, §§ 5-20 and 5-21, at 133; James O. Steambarge, 116 IBLA 185, 191 (1990).     When a dependent resurvey is performed 100 years or more after the original survey, the location of original corners must be based on the "best evidence available of the positions of the original corners" at the time of the resurvey. Survey Manual, § 6-4, at 145; see J.M. Beard (On Rehearing), 52 I.D. 451, 453 (1928). An appellant who challenges a BLM dependent resurvey prior to the official filing of the resurvey plat bears the burden on appeal of establishing, by a preponderance of the evidence, that the resurvey is not an accurate retracement and reestablishment of the lines of the original survey. John W. Yeargan, 126 IBLA at 363.

## INTERIOR BOARD OF LAND APPEALSHoward Vagneur, 159 IBLA 272 (2003)

- INTERIOR BOARD OF LAND APPEALS*Howard Vagneur*, 159 IBLA 272 (2003)

- 6)  An accurate retracement and reestablishment of the lines of the original survey

- 5)  BLM Official Surveys are presumed regular and

**Notes:**
Interior Board of Land Appeals – Howard Vagneur, 159 IBLA 272 (2003)
[1] Pursuant to the Act of March 3, 1909, as amended, 43 U.S.C. § 772 (2000), BLM, as the delegate of the Secretary of the Interior, is authorized to resurvey the public lands in order to reestablish the corners and thus the lines established by earlier official surveys. John W. Yeargan, 126 IBLA at 362.     A dependent resurvey is designed to retrace and reestablish the lines of the original survey, marking the boundaries of the legal subdivisions of the public lands, in their "true original positions." Survey Manual, § 6-4, at 145; see John W. Yeargan, 126 IBLA at 362. It therefore places the lines in the same position on the earth's surface that they have occupied since the date of the original survey, thus protecting the bona fide rights of private landowners and their successors-in-interest, whose property boundaries are tied to the original lines, even when the original survey may have been poorly or erroneously executed. United States v. Doyle, 468 F.2d 633, 636 (10th Cir. 1972); see 43 U.S.C. § 772 (2000); Sweeten v. U.S. Department of Agriculture, 684 F.2d 679, 682 (10th Cir. 1982); Adams v. United States, 687 F. Supp. 1479, 1482-83, 1488-89 (D. Nev. 1988), aff'd in part, rev'd, vacated, and remanded in part on other grounds, 3 F.3d 1254 (9th Cir. 1993); John W. Yeargan, 126 IBLA at 362-63, 370.     We have long recognized that original lines are to be reestablished under a dependent resurvey by recovering or restoring the original corners by any of three methods, in descending order of importance. John W. Yeargan, 126 IBLA at 363. First, an "existent" or "found" corner can be recovered by finding evidence of the monument and/or its accessories. Survey Manual, § 5-5, at 130. Second, an "obliterated" corner, where there are no remaining traces of the monument or its accessories, can be recovered where the corner's location has been perpetuated or where other acceptable evidence establishes its location. Survey Manual, § 5-9, at 130. Third, where a corner cannot be considered existent or obliterated based on substantial evidence regarding its location, it will be regarded as a "lost corner" to be restored by reference to one or more interdependent corners by the method of proportionate measurement. Survey Manual, §§ 5-20 and 5-21, at 133; James O. Steambarge, 116 IBLA 185, 191 (1990).     When a dependent resurvey is performed 100 years or more after the original survey, the location of original corners must be based on the "best evidence available of the positions of the original corners" at the time of the resurvey. Survey Manual, § 6-4, at 145; see J.M. Beard (On Rehearing), 52 I.D. 451, 453 (1928). An appellant who challenges a BLM dependent resurvey prior to the official filing of the resurvey plat bears the burden on appeal of establishing, by a preponderance of the evidence, that the resurvey is not an accurate retracement and reestablishment of the lines of the original survey. John W. Yeargan, 126 IBLA at 363.

## United States Supreme Court

- It is settled law that the United States may survey what it owns and thereby establish and reestablish boundaries, but what the government does in this regard is for its own information and cannot affect the rights of owners on the other side of an existing boundary. *United States v. State Investment Co., *264 U.S. 206, 212 (1924), citing *Lane v. Darlington, *249 U.S. 331, 333 (1919).

**Notes:**
United States Supreme Court
It is settled law that the United States may survey what it owns and thereby establish and reestablish boundaries, but what the government does in this regard is for its own information and cannot affect the rights of owners on the other side of an existing boundary. United States v. State Investment Co., 264 U.S. 206, 212 (1924), citing Lane v. Darlington, 249 U.S. 331, 333 (1919).
The principle here is – Where there is not an existing boundary of another’s interest, the government can mark its land, plat its land, describe its land, convey its land, by its own rules. However, it cannot affect the rights of the owners on the other side of an existing boundary.
Is this principle applicable to the State of California?
Q. – If you believe yes, where would you go to determine how this principle has been invoked?
A. - The state governance regime of state statutes, regulations and case law for survey rules.
What would be the alternative if the State did not develop their own governance regime for survey rules?  (CHASING THE LAW? OR MAKING THE LAW?)
The usage of the federal governance regime; there is ONE set of survey rules.
The Resurvey Acts of 1909 and 1918 as amended:
The Secretary of the Interior may cause to be made, resurveys of public lands and of privately owned lands: Provided, That no such resurvey shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey.
43 U.S.C. 772; Act of March 3, 1909, 35 Stat. 845; as amended by the Act of June 25, 1910, 36 Stat. 884; and by the Federal Land Policy and Management Act of October 21, 1976, 90 Stat. 2743, 2792. AND 43 U.S.C. 773; Act of September 21, 1918, 40 Stat. 965.

## The Manual of Surveying Instructions describes how cadastral surveys of the public lands are made in conformance to statutory law and its judicial interpretation. (1973 Manual § 1-1.)

- The Manual of Surveying Instructions describes how cadastral surveys of the public lands are made in conformance to statutory law and its judicial interpretation. (1973 Manual § 1-1.)

- It is within the province of the Director to determine what are public lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remains to be disposed of, and what are reserved.
- (1973 Manual § 1-11.)

- _MANUAL_

**Notes:**
The Manual - Purpose and Scope of the Manual
1973 Manual § 1-1. The Manual of Surveying Instructions describes how cadastral surveys of the public lands are made in conformance to statutory law and its judicial interpretation.
1973 Manual § 1-11.  It is within the province of the Director of the Bureau of Land Management to determine what are public lands, what lands have been surveyed, what are to be surveyed, what have been disposed of, what remains to be disposed of, and what are reserved.

What percentage of California has been surveyed under the PLSS?
Under Federal survey rules?

## By fundamental law, upon the issuance of a patent for land by the Federal government; it is just as if the monuments, survey plat and field notes, and the laws, regulations and rules governing how to survey the land described in the patent, are stapled to the face of the patent.

- The survey rules are spelled out in the manuals, circulars, instructions and regulations issued by the GLO and later by the BLM.

- SUMMARY

**Notes:**
SUMMARY
By fundamental law, upon the issuance of a patent for land by the Federal government; it is just as if the monuments, survey plat and field notes, the laws, regulations, and rules governing how to survey the land described in the patent, are stapled to the face of the patent.  Cragin v. Powell

The survey rules are spelled out in the manuals, circulars, instructions and regulations issued by the General Land Office and its successor the Bureau of Land Management.

If later a boundary location becomes unclear the Manual is the guidance (the rules) governing the relocation of the corners and boundaries in conformance to the controlling monuments, survey plat(s), field notes, policies, regulations and laws.

## Is there still a need for the Manual?

**Notes:**
If no:  a) do nothing, or b) repeal?

If there is still a need for the Manual:  Should any change be made to the 1973 edition?

If no need for a change to the 1973 edition:  a) do nothing, or b) reprint?

If there is a need for a change to the 1973 edition:  a) what, and b) how?

The PLSS is evolving.  Never before has the PLSS had 150 year old GLO surveys with over 100 years of improvements up to the boundaries; 100 years of river movement after the patent survey with 50 years of valuable improvements.

## Next Edition Website

- _[http://www.blm.gov/cadastral/Manual/nextedition.htm](http://www.blm.gov/cadastral/Manual/nextedition.htm)_
- Contact Information
- Announcements:  Upcoming Presentations
- General Information
- http://www.geocommunicator.gov/GeoComm/lsis_home/home/index.html
- _[http://](http://www.glorecords.blm.gov/)__[www.glorecords.blm.gov](http://www.glorecords.blm.gov/)_

**Notes:**
Move into the resources available to keep track of the next edition process and a discussion of the process itself.

## Slide 46