January 29, 2007

The Next Edition of the Manual of Surveying Instructions and the Modern Cadastre Presented by: Lance Bishop, BLM Chief Cadastral Surveyor California State Office, Sacramento, CA and Bob Dahl, BLM Cadastral Surveyor Lands, Realty & Cadastral Survey Division Washington, D.C. 46 th Annual CSU Fresno Geomatics Engineering Conference Fresno, CA January 27, 2007

Little Fish in a Big Pond Cadastre – Cadastral – Cadastral Survey Agenda What is the Manual of Surveying Instructions? Why is the Manual relevant to the Private, County and State Surveyors in California? Case Study

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?

OHA → ↑ IBLA IBIA IBCA

Bureau of Land Management

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

What is the Manual of Instructions for the Survey of the Public Lands of the United States? (Manual) Whom/What is affected?

Why is the Manual Relevant to the Private, County and State Surveyor in California?

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

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

Our First Plan for Survey Patents and subsequent sales were based on aliquot descriptions.Patents and subsequent sales were based on aliquot descriptions. Because of the elongation and the ¼ between 23/26 was not located only a standard breakdown of the section was authorized.Because of the elongation and the ¼ between 23/26 was not located only a standard breakdown of the section was authorized. Our survey put most of the structures in trespass with the NPS.Our survey put most of the structures in trespass with the NPS. Manual cite 6-15.Manual cite 6-15.

County Survey 1919

Our Retracement

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

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

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

The Act of March 3, 1909: Manual section 6-12 That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement

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

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

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

Our Final Plat

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

Business & Professions Code Division 3. Professions and Vocations Generally Chapter 15. Land Surveyors Article 4. Issuance of License § Divisions of examination (b) Applicant shall be thoroughly familiar with Manual of Surveying Instructions procedures and rules CALIFORNIA CODES

CALIFORNIA CODES Business & Professions Code Division 3. Professions and Vocations Generally Chapter 15. Land Surveyors Article 5. Surveying Practice § Filing of written record of corner establishment or restoration required (a) & (b) “Lost corner” - defined by the Manual

Title 16. Professional and Vocational Regulations Division 5. Board for Professional Engineers and Land Surveyors Article 4. Miscellaneous CALIFORNIA CODE OF REGULATIONS § 464. Corner Record (f) BLM standard markings and abbreviations shall be used

64 Opinions of the Attorney General 224 (1981) Office of the Attorney General of the State of California Manual of Surveying Instructions is “the authoritative reference book on the subject” of accessories to corner monuments

CALIFORNIA CODES Evidence Code Division 4. Judicial Notice § 452. Matters which may be judicially noticed Regulations of the land office Actions of the BLM and of Departmental decisions

Finley v. Yuba County Water District, 99 Cal.App.3d 691 (1979); California v. Thompson, 22 Cal.App.3d 368 (1971), petitions for rehearing and hearing denied, by Supreme Court (1972) “Obliterated” corner and “lost” corner is defined by the Manual and the Restoration pamphlet. Rules for proportionate measurement is found in the Manual and Restoration pamphlet STATE COURTS OF CALIFORNIA

STATE COURTS OF CALIFORNIA Reid v. Dunn, 201 Cal.App.2d 612 (1962), cert. denied, by Supreme Court (1962) Record of Survey Map shows careful preparation and execution of the survey in compliance with the rules established by the Manual

STATE COURTS OF CALIFORNIA Hanes v. Hollow Tree Lumber Company, 191 Cal.App.2d 658 (1961), cert. denied, by Supreme Court (1961) In unusual situations (up to one mile of distortion in original survey): unexplained or irreconcilable discrepancy, fictitious or grossly erroneous field notes – the Manual is quoted as the law in California

CALIFORNIA CASE LAW of NOTE County of Yolo v. Nolan, 144 Cal. 445 (1904) Surveyor should endeavor to retrace the steps of the original surveyor

CALIFORNIA CASE LAW of NOTE Weaver v. Howatt, 161 Cal. 77 (1911); 171 Cal. 302 (1915) 1) Field notes and survey plat constitute parts of the descriptions in the original patents; 2) Monuments and objects prevail over courses and distances; 3) Lost corners will be restored by proportionate measurement; except

CALIFORNIA CASE LAW of NOTE Weaver v. Howatt, 161 Cal. 77 (1911); 171 Cal. 302 (1915) 4) Proportionate measurement is not used when it contradicts or conflicts with the official data that are not impeached and confine the actual position within certain limits; 5) In that case, the proportionate measurement position must be confined to the same limits.

UNITED STATES CODE Title 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

Title 43 U.S.C. §§ , 772, 773 Other Federal Laws – Containing Survey Rules – The Federal Survey Rules

UNITED STATES CODE Title 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

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’

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

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). United States Supreme Court

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

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

Is there still a need for the Manual?

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