# Presentation: 639727

## March 5, 2007

**Notes:**
In Memory of Tom Deiling
Surveyor, Husband, Father and Son

## 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:
- Mike Birtles, BLM Chief Cadastral Surveyor
- Montana State Office, Billings, MT and
- Bob Dahl, BLM Cadastral Surveyor
- Lands, Realty & Cadastral Survey Division
- Washington, D.C.
- Montana Association of Registered Land Surveyors Conference
- Billings, MT
- March 2, 2007

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

## 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 Montana?

**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 private, county and state surveyors of Montana. 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 employs about 73,000 people in 8 Bureaus and 7 Offices at over 2,400 locations around the country. 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 employs about 73,000 people in 8 Bureaus and 7 Offices at over 2,400 locations around the country. 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 Montana 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 Montana 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 and (2) the original surveyor - (2a) computational.
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?
The Manual is part of a Covenant between the Federal government and its citizens.
Rule of Last Common Grantor - Within the Public Land Survey System states, every parcel that can trace its origin to a federal patent or equivalent must be surveyed by the procedures and principles defined in the Manual.  Every parcel of federal interest lands in all 50 states may be surveyed based on Manual procedures and principles.  Every parcel that can trace its origin to a private contract must be surveyed by the procedures and principles defined by state law.  Many states have incorporated the Manual by statute, regulation &/or case law into their boundary location elements of control and law.
Agreement on Manual content – 96% Good; 2% Okay; & 2% No.

## Why is the Manual

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

**Notes:**
Why is the Manual relevant to the Private, County and State Surveyor in Montana?
The Manual is the survey rules for locating the boundaries and corners of:
Lands with public domain status, including Indian trust lands and Indian restricted fee lands; federal lands that have never gone to patent; 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.
There are two origins of land descriptions:  (1) Federal and (2) Nonfederal (private)
Description example: “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.

## Title 76  Land Resources and UseChapter 3  Local Regulation of SubdivisionsPart 4  Survey Requirements

- Title 76  Land Resources and UseChapter 3  Local Regulation of SubdivisionsPart 4  Survey Requirements

- § 76-3-402  Survey and platting requirements for subdivided lands.
- (3)  All subdivision of sections into aliquot parts and retracements of lines must conform to the Manual of Surveying Instructions

- MONTANA CODE

**Notes:**
Montana Code
Title 76  Land Resources and Use
Chapter 3  Local Regulation of Subdivisions
Part 4  Survey Requirements
Section 76-3-402  Survey and platting requirements for subdivided lands.
  All division of sections into aliquot parts and retracement of lines must conform to United States bureau of land management instructions, and all public survey corners must be filed in accordance with Corner Recordation Act of Montana (Title 70, chapter 22, part 1).
Enacted 1973

Also cited in Montana’s Subdivision and Surveying Laws and Regulations – 19th edition; Prepared and Published by:  Montana Department of Labor and Industry; May 2006.

## Vaught v. McClymond, 116 Mont. 542 (1945)

*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “The survey should be made ... in accordance with instructions and regulations issued ... by the general land office for the guidance of county surveyors and others in ascertaining boundary lines created by the government survey and

- SUPREME COURT OF MONTANA

- in relocating corners or monuments theretofore established which may have become lost or obliterated.”

**Notes:**
Supreme Court of Montana – Finding of Facts – Conclusions at Law
Vaught v. McClymond, 116 Mont. 542, 559 (1945)
A dispute over how to locate between two private landowners the title line defined as the E. and W. center line of a section, the northwest quarter of section 26 “containing 160 acres more or less according to the United States government survey thereof.”
“The survey should be made pursuant to the statutes prescribing the rules regulating the survey of government lands and in accordance with instructions and regulations issued thereunder by the general land office for the guidance of county surveyors and others in ascertaining boundary lines created by the government survey and in relocating corners or monuments theretofore established which may have become lost or obliterated.”

Common grantor (Vaught) owned west-half section 26 and sold the Northwest-quarter to McClymond – private contract – state law governs.
No possession line – McClymond also owned in section 27 and there was a fence to the west.

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “When lands are granted according to an official plat of a survey, the plat itself, with all its notes, lines, descriptions, and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 548 (1945) – Headnote 1.
“When lands are granted according to an official plat of a survey, the plat itself, with all its notes, lines, descriptions, and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself. ( Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 227 P. 46; Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566; Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S. Ct. 518, 33 L. Ed. 872; United States v. Otley, 9 Cir., 127 F.2d 988; Ohlson v. Batterton, Mo., 230 S.W. 110; Read v. Bartlett, 255 Ill. 76, 99 N.E. 345.  The original corners and lines of a section as created and established by the government constitute the true and only boundaries of a designated quarter section. ( Goff v. Avent, 122 Miss. 86, 84 So. 134; Langle v. Brauch, 193 Iowa 140, 185 N.W. 28.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “The original corners and lines of a section as created and established by the government constitute the true and only boundaries of a designated quarter section.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 549 (1945)
“When lands are granted according to an official plat of a survey, the plat itself, with all its notes, lines, descriptions, and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself. ( Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 227 P. 46; Cragin v. Powell, 128 U.S. 691, 9 S. Ct. 203, 32 L. Ed. 566; Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S. Ct. 518, 33 L. Ed. 872; United States v. Otley, 9 Cir., 127 F.2d 988; Ohlson v. Batterton, Mo., 230 S.W. 110; Read v. Bartlett, 255 Ill. 76, 99 N.E. 345.  The original corners and lines of a section as created and established by the government constitute the true and only boundaries of a designated quarter section. ( Goff v. Avent, 122 Miss. 86, 84 So. 134; Langle v. Brauch, 193 Iowa 140, 185 N.W. 28.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “Congress has provided a system for the survey of public lands, and the boundaries and limits of the several sections and subdivisions thereof, including quarter sections, must be ascertained in conformity with the principles laid down in the federal statutes. (See Sections 751, 752, 43 U.S.C.A.)”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 549 (1945) – Headnote 2.
“Congress has provided a system for the survey of public lands, and the boundaries and limits of the several sections and subdivisions thereof, including quarter sections, must be ascertained in conformity with the principles laid down in the federal statutes. (See Sections 751, 752, 43 U.S.C.A.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “A survey of public lands does not *ascertain* boundaries; it *creates* them.”

- “The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 549 (1945) – Headnote 3a & b.
“’A survey of public lands does not ascertain boundaries; it creates them.’ ( Cox v. Hart, 260 U.S. 427, 43 S. Ct. 154 157, 67 L. Ed. 332.)  ‘The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines.’   ( Keyser v. Sutherland, 59 Mich. 455, 26 N.W. 865, 867.) The location of corners and lines established by the government survey, when identified, is conclusive and the true corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. Original monuments of survey established during a government survey, when properly identified, control courses and distances and field notes and an official plat of government surveys of record will control in ascertaining locations, even though the monuments established are gone. In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.”

Also, see Goodover v. Lindey’s Inc., 232 Mont. 302, 310 (1988).

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “The location of corners and lines established by the government survey, when identified, is conclusive and the true corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 549 (1945) – Headnote 3c.
“’A survey of public lands does not ascertain boundaries; it creates them.’ ‘The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines.’ The location of corners and lines established by the government survey, when identified, is conclusive ( Hickerson v. Dillard, Mo. App. 247 S.W. 801) and the true corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. ( Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740.)  Original monuments of survey established during a government survey, when properly identified, control courses and distances and field notes and an official plat of government surveys of record will control in ascertaining locations, even though the monuments established are gone. In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “Original monuments of survey established during a government survey, when properly identified, control courses and distances and field notes and an official plat of government surveys of record will control in ascertaining locations, even though the monuments established are gone.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 550 (1945) – Headnote 3d.
“’A survey of public lands does not ascertain boundaries; it creates them.’ ‘The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines.’ The location of corners and lines established by the government survey, when identified, is conclusive and the true corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. Original monuments of survey established during a government survey, when properly identified, control courses and distances ( Mitchell v. Hawkins, 109 Neb. 9, 189 N.W. 175; Langle v. Brauch, 193 Iowa 140)  and field notes and an official plat of government surveys of record will control in ascertaining locations, even though the monuments established are gone. ( Slovensky v. O'Reilly, Mo., 233 S.W. 478.)  In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 550 (1945) – Headnote 3e.
“’A survey of public lands does not ascertain boundaries; it creates them.’ ‘The quarter lines are not run upon the ground, but they exist, by law, the same as the section lines.’ The location of corners and lines established by the government survey, when identified, is conclusive and the true corner of a government subdivision of a section is where the United States surveyors in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. Original monuments of survey established during a government survey, when properly identified, control courses and distances and field notes and an official plat of government surveys of record will control in ascertaining locations, even though the monuments established are gone. In ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect. ( Ayers v. Watson, 137 U.S. 584, 11 S. Ct. 201, 34 L. Ed. 803; Galt v. Willingham, 11 F.2d 757.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the *best evidence* obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 550 (1945) – Headnote 4a.
“’In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, he has the right to use the field notes of the original survey. The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located.’ (8 Am. Jur. Boundaries, Sec. 102, p. 819, Emphasis ours.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “In making the resurvey, he has the right to use the field notes of the original survey. The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542 (1945) – Headnote 4b.
“’In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, he has the right to use the field notes of the original survey. The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located.’ (8 Am. Jur. Boundaries, Sec. 102, p. 819, Emphasis ours.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- “The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it.”

- “On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located.”

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 550 (1945) – Headnote 4c & d.
“In surveying a tract of land according to a former plat or survey, the surveyor's only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground. In making the resurvey, he has the right to use the field notes of the original survey. The object of a resurvey is to furnish proof of the location of the lost lines or monuments, not to dispute the correctness of or to control the original survey. The original survey in all cases must, whenever possible, be retraced, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. On a resurvey to establish lost boundaries, if the original corners can be found, the places where they were originally established are conclusive without regard to whether they were in fact correctly located.’ (8 Am. Jur. Boundaries, Sec. 102, p. 819, Emphasis ours.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- "But the government surveys are, as a matter of law, *the best evidence;* and, if the boundaries of land are clearly established thereby, other evidence is superfluous and may be excluded;

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 557 (1945) – Headnote 9a.
“’But the government surveys are, as a matter of law, the best evidence; and, if the boundaries of land are clearly established thereby, other evidence is superfluous and may be excluded; the best evidence is the corners actually fixed upon the ground by the government surveyor, in default of which the field notes and plats come next, unless satisfactory evidence is produced that the corner was actually located upon the ground at a point different from that stated in the field notes.’ (Emphasis ours. Halley v. Harriman, 106 Neb. 377, 183 N.W. 665, 668. See also Lawler v. Rice County, 147 Minn. 234, 180 N.W. 37; Littlejohn v. Fink, 109 Neb. 282, 190 N.W. 1020; Sala v. Crane, 38 Idaho 402, 221 P. 556.)”

## SUPREME COURT OF MONTANAVaught v. McClymond, 116 Mont. 542 (1945)

- SUPREME COURT OF MONTANA*Vaught v. McClymond*, 116 Mont. 542 (1945)

- The *best evidence* is the corners actually fixed upon the ground by the government surveyor, in default of which the field notes and plats come next, unless satisfactory evidence is produced that the corner was actually located upon the ground at a point different from that stated in the field notes."

**Notes:**
Supreme Court of Montana
Vaught v. McClymond, 116 Mont. 542, 557 (1945) – Headnote 9b.
“’But the government surveys are, as a matter of law, the best evidence; and, if the boundaries of land are clearly established thereby, other evidence is superfluous and may be excluded; the best evidence is the corners actually fixed upon the ground by the government surveyor, in default of which the field notes and plats come next, unless satisfactory evidence is produced that the corner was actually located upon the ground at a point different from that stated in the field notes.’ (Emphasis ours. Halley v. Harriman, 106 Neb. 377, 183 N.W. 665, 668. See also Lawler v. Rice County, 147 Minn. 234, 180 N.W. 37; Littlejohn v. Fink, 109 Neb. 282, 190 N.W. 1020; Sala v. Crane, 38 Idaho 402, 221 P. 556.)”

## SUPREME COURT OF MONTANAReel v. Walter, 131 Mont. 382 (1957)

- SUPREME COURT OF MONTANA*Reel v. Walter*, 131 Mont. 382 (1957)

- The Manual contains the proper procedure for resurveys and subdivision of sections

**Notes:**
Supreme Court of Montana
Reel v. Walter, 131 Mont. 382, 386 (1957)
“The appellant concedes that the Bureau of Land Management manual contained the proper procedure. This court has previously held in Vaught v. McClymond, 116 Mont. 542 (1945), that such procedure is proper.”

Page 383 - The controversy centered around a determination of the boundary between the northeast and the southeast quarters of section 28.

Page 383 – In both chains of title, the land involved had been conveyed by legal subdivision according to the government survey. – the federal government apparently was the last common grantor.

## SUPREME COURT OF MONTANAYellowstone Basin Properties, Inc. v. Burgess, 255 Mont. 341 (1993)

- SUPREME COURT OF MONTANA*Yellowstone Basin Properties, Inc. v. Burgess*, 255 Mont. 341 (1993)

- Surveyors who comply with the Manual, and who uses the best evidence obtainable meets the standard of care required for Registered Land Surveyors in Montana

**Notes:**
Supreme Court of Montana; Yellowstone Basin Properties, Inc. v. Burgess, 255 Mont. 341 (1993)
Page 351 – District Court cited with approval addressing surveying standards:  “In surveying a tract of land according to a former plat or survey, the surveyor’s only duty is to relocate, upon the best evidence obtainable, the courses and lines at the same place where originally located by the first surveyor on the ground.” Vaught
Page 351 - In Vaught v. McClymond (1945), 116 Mont. 542, 559 (1945), this Court remanded the case and instructed:  “The survey should be made pursuant to the statutes prescribing the rules regulating the survey of government lands and in accordance with instructions and regulations issued thereunder by the general land office for the guidance of county surveyors and others in ascertaining boundary lines created by the government survey and in relocating corners or monuments theretofore established which may have been lost or obliterated.”
Page 352 - “We conclude that a surveyor who complies with rules and regulations as set forth in the approved source, currently the 1973 Manual of Surveying Instructions, and who uses the best evidence obtainable meets the standard of care required for Registered Land Surveyors.”
Page 350 – Each theory of liability (negligence, breach of contract and breach of warranty) depends on whether or not the surveyor breached the standard of care owned by a Registered Land Surveyor.
Page 355 – To recover damages it must be established by a preponderance of the evidence that the Surveyor failed to follow regular accepted survey standards in failing to exercise accepted standards of care, prudence and skill.

## 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

- Surveys by the U.S. on the faith of which property rights have been acquired, control over surveys subsequently made by the U.S. which affect such rights.  *Pittsmont Copper Co. v. Vanina*, 71 Mont. 44 (1924)

**Notes:**
43 USC 751-753 – The rules for survey; enacted in 1796, 1805, 1820 and 1832.  The General Resurvey Act 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; and The 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.
Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 55 (1924) - “The fact that a subsequent survey made a change in these lines and corners cannot affect the rights of the plaintiff which were acquired by its predecessors long before the later survey. Original surveys of public lands by the United States government, on the faith of which property rights have been acquired, control over surveys subsequently made by the government which affect such rights. (22 R. C. L. 282, sec. 42; Burt v. Busch, 82 Mich. 506, 46 N.W. 790; Barringer v. Davis, 141 Iowa 419, 120 N.W. 65; Slack v. Orillion, 13 La. 56, 33 Am. Dec. 551; Washington Rock Co. v. Young, 29 Utah 108, 110 Am. St. Rep. 666, 80 P. 382; Miller v. White, 23 Fla. 301, 2 So. 614; 5 Cyc. 946.)”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 Montana?
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 Montana 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, 128 U.S. 691 (1888).

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
- Announcements:  Upcoming Presentations
- General Information
- - And Other Stuff -
- http://www.geocommunicator.gov/GeoComm/lsis_home/home/index.html
- http://www.glorecords.blm.gov
- http://www.usajobs.opm.gov/

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

## Slide 36