# Presentation: 927152

## January 17, 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:
- Bob Casias, BLM Chief Cadastral Surveyor
- Kansas/Texas/Oklahoma/New Mexico State Office, Santa Fe, NM and
- Bob Dahl, BLM Cadastral Surveyor
- Lands, Realty & Cadastral Survey Division
- Washington, D.C.
- Salina Seminar 2007 – Kansas Society of Land Surveyors
- Salina, KS
- January 11, 2007

**Notes:**
Capture student’s expectations.

## Cadastre – Cadastral – Cadastral Survey

- Agenda

- What is the Manual of Surveying
-   Instructions?

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

**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.

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 county, state and private surveyors of Kansas. 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.

The BLM Cadastral Survey is a little frog in a big pond when it comes to a program within the Federal government.

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 Kansas/Texas/Oklahoma/New Mexico 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 Kansas/Texas/Oklahoma/New Mexico 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 foot steps to follow: 1) the legal foot steps & 2) the previous surveyors foot steps.
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 Cadastral Chief.
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?
affected – to act upon:  to produce an effect upon:  To produce a material influence upon or alteration:  Influence, Touch, Impress, Strike, Sway.

## Why is the Manual

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

**Notes:**
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.

## KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KSA § 19-1421. all surveys shall show variations of magnetic needle from true meridian.

**Notes:**
Basis of Bearings
Kansas Statutes Annotated
Chapter 19. Counties and County Officers
Article 14. County Surveyor or Engineer
K.S.A. § 19-1421.  Calculations of irregular tract of land; variations of magnetic needle from true meridian.
    All calculations to ascertain the contents of an irregular tract of land by the county surveyor or his deputy, or other person or persons who may at any time be called by the court to execute a survey, shall be made by latitude and departure,
 and on each plat the county surveyor or his deputies, or the person or persons called on by the court as aforesaid, shall lay down the variations of the magnetic needle from the true meridian.
Source – 1891
The direction of each line of the public land surveys is determined with reference to the true meridian as defined by the axis of the earth’s rotation. 1973 Manual, section 2-17.

## KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KSA § 19-1422. Rules to be observed in resurvey under authority of the United States.

- They must be re-established where located by the government surveyor; and

- When (2) cannot be done, must be re-established in accordance with KSA 19-1412.

- Section & quarter corners stand as the true corners;

**Notes:**
Kansas Statutes Annotated
Chapter 19. Counties and County Officers
Article 14. County Surveyor or Engineer
K.S.A. § 19-1422.  Rules to be observed in resurvey under authority of the United States.
In the resurvey of land surveyed under the authority of the United States, the county surveyor shall observe the following rules to wit:
First, Section and quarter-section corners, and all other corners established by the government survey, must stand as the true corners.
Second, They must be re-established at the identical spot where the original corner was located by the government surveyor, when this can be determined.
Third, When this cannot be done, then said corners must be re-established in accordance with the provisions of section 19-1412 of the General Statutes of 1949, as amended.  (by proportionate measurement with reference to the government field notes and plats)
Source - 1891

## KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KSA § 19-1412. Re-establishment of missing corners.
- Will be in accordance with the government surveys; by proportionate measurement

**Notes:**
Kansas Statutes Annotated:  Chapter 19. Counties and County Officers:  Article 14. County Surveyor or Engineer
K.S.A. § 19-1412.  Re-establishment of missing corners.
     In re-establishing missing corners, where no bearing or witness tree or trees can be found, the county surveyor or his deputy shall establish said missing corners in accordance with the government surveys. Where government surveys cannot be accurately followed, missing corners shall be established by proportionate measurement or existing landmarks supplemented with other location data, monuments, chainage, and the stone of the corners shall be replaced according to the best calculations of the county surveyor, taking into account all the data, and, if necessary, replacing the proportionate measurement requirement. Source – 1862
Collateral evidence of obliterated corners -
Good faith locations - It may be held generally that the claimant, entryman, or owner of lands has located his lands by the good faith location rule if such care was used in determining his boundaries as might be expected by the exercise of ordinary intelligence under existing conditions. 1973 Manual, section 6-16.
Satisfactory local conditions - A property corner or a use or occupancy position should exercise a regular control upon the retracement only when it was placed with due regard to the location of the original survey, or agreement is so close as to constitute the best available evidence. 1973 Manual, section 5-42(6).
Local points of control - The age, the position and the degree to which a local corner has been relied on by all affected landowners may lead to its adoption as the best remaining evidence of the position of the original corner. When a local reestablishment of a lost corner or a local establishment of a legal subdivision corner has been made by proper methods without gross error, it will ordinarily be acceptable. Monuments of unknown origin must be judged on their own merits, but they should never be rejected out of hand without careful study. 1973 Manual, section 6-28.
CORNER POSITIONS BASED ON THE PROTECTION OF BONA FIDE RIGHTS: 43 U.S.C. 772. DUE PROCESS.

## KANSAS STATUTES ANNOTATEDChapter 74. State Boards, Commissions and AuthoritiesArticle 70. State Board of Technical Professions

- KANSAS STATUTES ANNOTATEDChapter 74. State Boards, Commissions and AuthoritiesArticle 70. State Board of Technical Professions

- KSA § 74-7003(k). “Practice of land surveying” includes:

- Reestablishing of missing government section corners in accordance with government surveys

**Notes:**
Kansas Statutes Annotated
Chapter 74. State Boards, Commissions and Authorities
Article 70. State Board of Technical Professions
K.S.A. § 74-7003.  Definitions.    As used in this act:(k)  "Practice of land surveying" includes:(4)  the reestablishing of missing government section corners in accordance with government surveys;
Source - 1976

## KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KSA § 19-1409. Method of subdividing sections into quarter sections.

- Except: for center corners of sections already established according to law

- Tracing straight lines between opposite corresponding corners; point of intersection

**Notes:**
Kansas Statutes Annotated
Chapter 19. Counties and County Officers
Article 14. County Surveyor or Engineer
K.S.A. § 19-1409.  Method of subdividing sections into quarter sections.
     In the subdivision of sections of land, as surveyed by the United State surveyors into quarter sections, the following method shall be followed, to wit: The surveyor shall proceed to connect the points of position of the monuments marked "one quarter S.," commonly known as quarter-section corner monuments, which are upon opposite sides of the section, by tracing a straight line from one to the other; he shall then ascertain the point of intersection of the two straight lines as above mentioned, and the said point of intersection shall be the point of position of the corner common to the four quarters of the section subdivided.
The provisions of this article shall not apply to center corners of sections already established according to law. Source – 1862
Exception pertains to center 1⁄4 established: 1) in original government survey; 2) by county surveyor; 3) established by (competent)(licensed) land surveyor?

## Surveys are always inaccurate, and this inaccuracy arises partly from the imperfection of instruments and largely from the natural infirmities inherent in all men, which even the most skillful surveyors and chainmen cannot wholly overcome, and also largely from negligence and carelessness. No two surveys are ever alike; and while the map and field-notes of a survey may purport to show the exact elements of the survey in all their details and particulars, yet they never do so and never can. Hence the necessity for relying upon the actual survey as made upon the ground, and not conclusively upon the map and field-notes of such survey. Shaffer v. Weech, 34 Kan. 595 (1886)

- Surveys are always inaccurate, and this inaccuracy arises partly from the imperfection of instruments and largely from the natural infirmities inherent in all men, which even the most skillful surveyors and chainmen cannot wholly overcome, and also largely from negligence and carelessness. No two surveys are ever alike; and while the map and field-notes of a survey may purport to show the exact elements of the survey in all their details and particulars, yet they never do so and never can. Hence the necessity for relying upon the actual survey as made upon the ground, and not conclusively upon the map and field-notes of such survey. *Shaffer v. Weech, *34 Kan. 595 (1886)

**Notes:**
Exception pertains to center 1⁄4 established: 1) in original government survey; 2) by county surveyor; 3) established by (competent)(licensed) land surveyor?
Source 1862

Shaffer v. Weech, 34 Kan. 595 (1886)
Surveys are always inaccurate, and this inaccuracy arises partly from the imperfection of instruments and largely from the natural infirmities inherent in all men, which even the most skillful surveyors and chainmen cannot wholly overcome, and also largely from negligence and carelessness. No two surveys are ever alike; and while the map and field-notes of a survey may purport to show the exact elements of the survey in all their details and particulars, yet they never do so and never can. Hence the necessity for relying upon the actual survey as made upon the ground, and not conclusively upon the map and field-notes of such survey.

## KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KANSAS STATUTES ANNOTATEDChapter 19. Counties and County OfficersArticle 14. County Surveyor or Engineer

- KSA § 19-1411. Establishment of center corners and quarter-section corners of sections closing on a parallel or base line.

- At intersect with north boundary and 40 chains
-     west of NE corner establish the quarter corner

- Run north parallel to east boundary and
-     at 40 chains establish center quarter corner

**Notes:**
Kansas Statutes Annotated – NOT THE MANUAL
Chapter 19. Counties and County Officers
Article 14. County Surveyor or Engineer
K.S.A. § 19-1411.  Establishment of center corners and quarter-section corners of sections closing on a parallel or base line.
     In establishing the center corner of all sections closing on a parallel or base line, the county surveyor or his deputy shall commence at the quarter-section corner on the south boundary of the section, and run a line north parallel to the east boundary of said section; and at forty chains from the quarter-section corner on the south boundary, or place of commencement, said county surveyor or his deputy shall permanently establish the center corner of the section; and at the point where the said north line produced intersects the parallel or base line, which must be just forty chains west of northeast corner of the section, said county surveyor or his deputy must permanently establish the quarter-section corner on the north boundary of the section.
Source - 1862
These sections may be subdivided differently depending on the origin of the land descriptions: 1) federal or 2) state.

## Agency 66. State Board of Technical ProfessionsArticle 12. Minimum Standards for the Practice of Land Surveying

- Agency 66. State Board of Technical ProfessionsArticle 12. Minimum Standards for the Practice of Land Surveying

- KANSAS ADMINISTRATIVE REGULATIONS

- KAR § 66-12-1. Minimum standards for the practice of land surveying.
- Board adopts by reference:
- (c) the “Kansas minimum standards for boundary surveys ..... “ adopted by KSLS (10/23/98)

**Notes:**
Kansas Administrative Regulations
Agency 66.  State Board of Technical Professions
Article 12.  Minimum Standards for the Practice of Land Surveying
K.A.R. § 66-12-1.  Minimum standards for the practice of land surveying.
     The board hereby adopts by reference the following:
 The "minimum standard detail requirements for ALTA/ACSM land title surveys," published in 1997;
 the "classifications of ALTA/ACSM land title surveys for ALTA/ACSM land title surveys," published in 1997; and
 the "Kansas minimum standards for boundary surveys and mortgagee title inspections standards of practice # 1" adopted by the Kansas society of land surveyors, and last amended on October 23, 1998, except that the preface and scope sections shall be deleted.
Source – 1992; amended 2000

## Kansas Society of Land SurveyorsKansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1 (10/23/98)

- Kansas Society of Land Surveyors*Kansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1** **(10/23/98)*

- Plat or Certificate of Survey
- 10) Clearly indicate the theory of location of each corner

**Notes:**
Kansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1
Adopted by The Kansas Society of Land Surveyors & State Board of Technical Professions
PREFACE - These standards were first adopted by the Kansas Society of Land Surveyors at the Annual Meeting in 1978, amended February 1988 and October 23, 1998.  It is the intent of these Standards to provide the surveyors and the recipients of surveys a realistic and prudent yardstick of adequate surveying performance.
SCOPE – The minimum standards of this section apply to every boundary survey performed in the State of Kansas, except that where higher standards for boundary surveys are prescribed by statute, administrative rule or ordinance, then such standards shall govern.
PLAT OR CERTIFICATE OF SURVEY – The client shall be furnished a plat of survey showing the following information as defined by Items 1 through 12:
All pertinent monuments found or set with a notation indicating which were found and which were set, and identified as to size and type.  Found monuments shall be accompanied by a reference to their origin, if known.  The relationship of monuments to the surveyed lines and corners shall be indicated.
Sufficient data to clearly indicate the theory of location applied in finalizing the locations of the corners, any data at variance with this theory of location, and sufficient data to allow the facile retracement of all pertinent lines and points shown on the plat.
(Note on “theory of location” – I did not found it in any Kansas statute, regulation, court case or standard.)

## Kansas Society of Land SurveyorsKansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1 (10/23/98)

- Kansas Society of Land Surveyors*Kansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1** **(10/23/98)*

- Perpetuation
- 3) Sufficient documentation of the theory applied in finalizing location of:
-  re-establishment of lost monuments; or
-  replacement of obliterated monuments

**Notes:**
Kansas Minimum Standards for Boundary Surveys and Mortgagee Title Inspections Standards of Practice #1
Adopted by The Kansas Society of Land Surveyors
PREFACE - These standards were first adopted by the Kansas Society of Land Surveyors at the Annual Meeting in 1978, amended February 1988 and October 23, 1998.  It is the intent of these Standards to provide the surveyors and the recipients of surveys a realistic and prudent yardstick of adequate surveying performance.
SCOPE – The minimum standards of this section apply to every boundary survey performed in the State of Kansas, except that where higher standards for boundary surveys are prescribed by statute, administrative rule or ordinance, then such standards shall govern.
PERPETUATION
3.  After a boundary survey which results in the re-establishment of lost government land monuments or replacement of obliterated monuments, sufficient documentation of the theory applied in finalizing the locations of corners, any data at variance with this theory, and sufficient data to allow the facile retracement of all pertinent lines and points shall be provided to the appropriate County Agency charged with the preservation of this information.

## SUPREME COURT OF KANSASHoyne v. Schneider, 138 Kan. 545 (1933);aff’d on reh’g, 139 Kan. 676 (1934)

- SUPREME COURT OF KANSAS*Hoyne v. Schneider*, 138 Kan. 545 (1933);*aff’d on reh’g,* 139 Kan. 676 (1934)

- The federal statutes make provision for the surveyor’s field notes, plats, and the survey being made a part of each patent and a part of the records of the state.

**Notes:**
Supreme Court of Kansas
Hoyne v. Schneider, 138 Kan. 545 (1933); aff’d on reh’g, 139 Kan. 676 (1934)
“The federal statutes likewise make provision for certified copies of the surveyor's field notes, the surveys and plats being made a part of the records of the state.”

## SUPREME COURT OF KANSASAppeal of Martin, 86 Kan. 336 (1912)

- SUPREME COURT OF KANSAS*Appeal of Martin*, 86 Kan. 336 (1912)

- In the resurvey of lands surveyed under authority of U.S. the county surveyor shall observe the following rules:

- First, corners established by government must stand as the true corners;

- Second, corners must be reestablished at the identical spot located by the government surveyor; and

**Notes:**
Supreme Court of Kansas - Appeal of Martin, 86 Kan. 336 (1912)
"In the resurvey of lands surveyed under the authority of the United States, the county surveyor shall observe the following rules, to wit:
First, section and quarter-section corners, and all other corners established by the government survey, must stand as the true corners.
Second, they must be reestablished at the identical spot where the original corner was located by the government surveyor, when this can be determined.
Third, when this can not be done, then said corners must be reestablished according to the government field-notes, adopting proportionate measurements where the present measurements differ from those given in the field-notes." (Gen. Stat. 1909, § 2271.)  Now KSA 19-1422.

## SUPREME COURT OF KANSASAppeal of Martin, 86 Kan. 336 (1912)

- SUPREME COURT OF KANSAS*Appeal of Martin*, 86 Kan. 336 (1912)

- Third, when original corner locations are not found they must be reestablished according to the government field notes, adopting proportionate measurements.

- The objective of every resurvey is to find or reestablish the lines and corners fixed by the government

**Notes:**
Supreme Court of Kansas - Appeal of Martin, 86 Kan. 336 (1912) – (continued)
     “Under the law the object of every resurvey is to find or reestablish the lines and corners fixed by the government. The report of the Lee survey indicates on its face that he entertained no such purpose and worked to no such end. It is questionable whether his survey is of any validity, although no appeal from it was taken. However, in view of the conclusions announced above the question need not be decided.”
     "In reestablishing missing corners, where no bearing or witness tree or trees can be found, the county surveyor or his deputy shall establish said missing corners in accordance with the government survey. (Gen. Stat. 1909, § 2261.)”  Now KSA 19-1412.
See also, Stanley v. The County Surveyor of Sheridan County, 126 Kan. 95; aff’d, 126 Kan. 684 (1928) and KSA 19-1422.
The Kansas cases I read said all corners established and approved by the General Land Office or its successors, must stand as the legal and permanent corners.  {CHASING THE LAW}

## SUPREME COURT OF KANSASGnadt v. Durr, 208 Kan. 783 (1972)

- SUPREME COURT OF KANSAS*Gnadt v. Durr*, 208 Kan. 783 (1972)

- In a survey to establish the legal subdivision of a section, it is the duty of the county surveyor, and of the court on appeal, to relocate the line according to the statutory rules for reproducing United States government surveys.

**Notes:**
Supreme Court of Kansas
Gnadt v. Durr, 208 Kan. 783 (1972)
“It is obvious from the foregoing statutes, if a legal survey is to be made, the established government corners must be ascertained or confirmed and used in making the survey.
In Roadenbaugh v. Egy, 88 Kan. 341, 128 Pac. 381, the court held:
SYLLABUS BY THE COURT.  1. SURVEYS -- Duty of County Surveyor--Statutory Rules. In a survey, called for the specific purpose of establishing the boundary line between the northwest quarter and the northeast quarter of a certain section, it is the duty of the county surveyor, and of the court on appeal, to relocate the line according to the statutory rules for reproducing United States government surveys.

The above is also quoted in:
Childers v. Hoffer, 177 Kan. 174 (1954) and Neiman v. Davis, 166 Kan. 246 (1948); aff’d, 170 Kan. 208 (1950) – quoting Roadenbaugh and Roadenbaugh v. Egy, 88 Kan. 341 (1912)

## SUPREME COURT OF KANSASNeiman v. Davis, 166 Kan. 246 (1948);aff’d, 170 Kan. 208 (1950)

- SUPREME COURT OF KANSAS*Neiman v. Davis*, 166 Kan. 246 (1948);*aff’d,* 170 Kan. 208 (1950)

- In a survey to establish the W1/16 sec. cor. of sections 19 & 30, it is the duty of the county surveyor, to locate the corner according to the statutory rules for reproducing United States government surveys.

- By doing so the county surveyor properly followed Kansas statutory requirements.

**Notes:**
Supreme Court of Kansas
Neiman v. Davis, 166 Kan. 246 (1948); aff’d, 170 Kan. 208 (1950)

     "If the survey be called to determine and permanently establish the corners and boundaries of one or more tracts of land severally owned or occupied, then it is the duty of the county surveyor, and of the court on appeal, to observe the statutory rules so far as applicable, and also to consider any other competent evidence which may be produced." (Syl. paras. 1, 2.)”

## SUPREME COURT OF KANSASHoyne v. Schneider, 138 Kan. 545 (1933);aff’d on reh’g, 139 Kan. 676 (1934)

- SUPREME COURT OF KANSAS*Hoyne v. Schneider*, 138 Kan. 545 (1933);*aff’d on reh’g,* 139 Kan. 676 (1934)

- “east half’ and “west half” when made with reference to federal government survey is to be determined by reference to such survey

**Notes:**
Supreme Court of Kansas
Hoyne v. Schneider, 138 Kan. 545 (1933); aff’d on reh’g, 139 Kan. 676 (1934)
“In 4 Thompson on Real Property, section 3153, is the following:
     "The word 'half' when used in describing land, should be construed as meaning 'half in quantity,' unless the context or surrounding facts and circumstances show a contrary intention. It was so held in a case where two tenants in common of a parcel of land, which could not be equally divided by a north-and-south line drawn equidistant from its east-and-west lines, conveyed to each other the 'east half' and 'west half' respectively of said parcel, containing an equal number of acres, and without reference to the 'government survey.‘
     "But in government surveys of the public lands the terms 'east half' and 'west half' are used, not with reference to quantity, but to a line equidistant from the boundary lines of the parcel subdivided, and those terms have the same signification in patents issued by the government; and this is true because so provided by act of congress. A deed of the 'east half' of a parcel of land 'according to the United States survey' is definite, and excludes the idea of two equal quantities, and fixes the dividing line equidistant from the boundary lines of the parcel thus subdivided.”

See also, Gunn v. Brower, 81 Kan. 242 (1909).

## SUPREME COURT OF KANSASNeiman v. Davis, 166 Kan. 246 (1948);aff’d, 170 Kan. 208 (1950)

- SUPREME COURT OF KANSAS*Neiman v. Davis*, 166 Kan. 246 (1948);*aff’d,* 170 Kan. 208 (1950)

- Adverse possession may change the title to real property, but it cannot change the location of a section or other legal subdivision line.

**Notes:**
Supreme Court of Kansas
Neiman v. Davis, 166 Kan. 246 (1948); aff’d, 170 Kan. 208 (1950)
“Without fully reviewing that opinion (Roadenbaugh), it may be said it was contended that the true boundary line was not necessarily the boundary line between two quarter sections but a line agreed upon by the original homesteaders. After stating it did not appear the surveyor erred in determining the true line between the two quarters, certain cases were cited to the effect that adverse possession may change the title to real estate, but it cannot change the location of a quarter section line.”

For similar language see also, Martin v. Hinnen, 3 Kan.App.2d 106 (1979); Wagner v. Thompson, 163 Kan. 662 (1947); Roadenbaugh v. Egy, 88 Kan. 341 (1912); Edwards v. Fleming, 83 Kan. 653 (1911); Swarz v. Ramala, 63 Kan. 633 (1901).

## SUPREME COURT OF KANSASHoyne v. Schneider, 138 Kan. 545 (1933);aff’d on reh’g, 139 Kan. 676 (1934)

- SUPREME COURT OF KANSAS*Hoyne v. Schneider*, 138 Kan. 545 (1933);*aff’d on reh’g,* 139 Kan. 676 (1934)

- However, a conveyance of one half of a lot or forty-acre tract formed by the government survey will not be presumed to intend a further subdivision by an extension of the method of subdivision by which it was created.

**Notes:**
Supreme Court of Kansas – NOT THE MANUAL?
Hoyne v. Schneider, 138 Kan. 545 (1933); aff’d on reh’g, 139 Kan. 676 (1934)
“18 C. J. 292, section 269, recites as follows.
"Where a tract is divided by a line of the government survey, the term 'half' will ordinarily be referred to one of the parts so made. A conveyance of one half of a lot or forty-acre tract formed by the government survey will not, however, be presumed to intend a further subdivision of such lot by an extension of the method of subdivision by which it was created. And further, where the entire description is given effect by this construction, the word 'half' may be taken as meaning half in quantity without regard to the half as determined by the government survey.“”

For similar language see, Gunn v. Brower, 81 Kan. 242 (1909).
“This principle is applied where one of the lines of the government survey effects such a division. ( Prentiss v. Brewer, 17 Wis. 635. See, also, Edinger v. Woodke, 127 Mich. 41, 86 N.W. 397; Kinsey et al. v. Satterthwaite, 88 Ind. 342; Turner v. The Union Pacific Ry. Co., 112 Mo. 542, 545, 20 S.W. 673.) It is not carried so far, however, as to involve an assumption that one who conveys the half of one of the smallest governmental subdivisions--a lot or a "forty"--intends anything else than a division into equal parts. He is not presumed to have in mind a further partition of this surveyor's unit--the smallest "legal subdivision" ( Hopper v. Nation, 78 Kan. 198, 96 P. 77) --by an extension of the method by which it was created. ( Cogan v. Cook, 22 Minn. 137, 142; Jones v. Pashby, 62 Mich. 614, 29 N.W. 374.) Possibly the rule referred to ought not to apply to tracts that are "fractional" in the sense that they are irregular in shape because of the existence of a body of water or some other like obstacle, so that they can conform to no general rule. ( Goltermann v. Schiermeyer, 111 Mo. 404, 416, 19 S.W. 484.) But it is rightly invoked in such a case as this, where the only irregularity is that common to practically all tracts along the northern and western boundaries of a township. Lot 4 of section 7 is commonly and intelligibly described as "the southwest quarter of the southwest quarter," just as the "southwest quarter" itself is designated by that term notwithstanding its area is less than 160 acres. We hold that the deed to "the south half of the southwest quarter" passed title to lot 4 and the south half of the east half of the southwest quarter.””

## 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, 770, 772, 773

- Title 43 U.S.C. §§ 751-753, 770, 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.
43 USC 770 – SOI may depart from the system of rectangular surveys whenever it is not feasible or economical to extend the rectangular surveys in the regular manner or whenever such departure would promote the beneficial use of lands; this statute was written primarily for “special” conditions in Nevada. Congress could of adopted this in lieu of the Alaska Statehood Act, ANCSA or ANILCA.
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 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 Kansas?
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 Kansas 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 38