In this article, we begin a review of Case 99-363, decided by the Interior Board of Land Appeals. In this case, three (3) landowners (referred to in this article as “Simpson”) appeal a dependent resurvey of a Colorado township containing their land. The decision, in this case, has important lessons about the evaluation of evidence, protection of private property rights during a government resurvey, and the fairness of the double proportion method of lost corner restoration.
In this first article, we will consider the IBLA’s decision on three types of evidence in this case related to the contested section corner:
1) Physical evidence.
2) Topographic features.
3) Oral evidence.
In a subsequent article, we will consider the IBLA’s decision in this case as it relates to private survey maps as evidence and the proper use of the double proportion method of corner restoration.
Before we look at the key legal issues, in this case, let’s review the case timeline:
This article is part of a series covering IBLA decisions related to boundary surveying and land title. This article first appeared in the Fall 2016 Issue of California Surveyor Magazine. The article is the first of 2 parts covering the IBLA Decisions 99-363.
6/1882: GLO Surveyor Nickel surveys the exterior boundaries of the township.
6/1882: GLO Surveyor Gardner and GLO Surveyor Cleghorn survey the subdivisional section lines of the township.
5/9/1893: The Surveyor General of Colorado issues the township plat.
1931: The Colorado Highway Department prepares a map of the subject area.
1958: The Colorado Highway Department prepares a second map of the subject area.
1978: Private Surveyor Johnson prepares a survey of the subject area.
1981: Geoff Engineering conducts a survey of the Delzell property within the township.
1985: Private Surveyor Schmid prepares a survey of the subject area.
9/16/1985: San Juan National Forest requests the BLM survey its lands in the township.
5/6/1986: BLM prepares special instructions for a dependent to resurvey of the township.
Unknown: BLM land surveyor Kohlerschmidt performs a dependent resurvey of the township.
4/19/1989: BLM approves the dependent resurvey of the township.
5/11/1989: A plot of the dependent resurvey is filed.
1/12/1998: Delzell sends a letter to the BLM demanding a return of his lands. The BLM rejects his letter.
4/30/1999: Delzel, Simpson and Strockland protest the results of the dependent resurvey of the township.
6/18/1999: The Colorado BLM makes a decision turning down a request to reject the dependent resurvey of the township.
7/8/2002: The landowners submit a letter to the IBLA requesting the board overturn the Colorado BLM decision.
8/2/2002: The denial of the protest to the dependent resurvey of the township is appealed by Delzell.
This is a list of the undisputed key facts listed in the decision that is related to the legal issues we will discuss in this article:
1) The original GLO field notes describe the monument set for the section corner common to Section 29, Section 30, Section 31 and Section 32 as a “sandstone” 17 inches by 11 inches by 5 inches, set 12 inches into the ground, with notches as described in the manual of surveying instructions. The stone monument was described as being set in a raised mound of stone.
2) The existing stone monument claimed by the private land owners was physically larger than the stone described in the GLO field notes, with physical dimensions of 24 inches by 7 inches by 5 inches, and was set 12 inches in the ground. There was no evidence of a stone mound in the vicinity of this stone monument at the time of the GLO retracement survey by Kohlerschmidt.
3) The existing stone monument had no notches or other markings.
1) The original GLO field notes called for a gulch, a spring branch and a wagon road on lines connecting to the contested section corner.
2) Kohlerschmidt found no evidence of the topographic calls matching those described in the notes that fit with the existing stone monument during his dependent resurvey.
1) Kohlerschmidt didn’t interview “Thwaits”, a former property manager of one of the subject parcels impacted by the section corner location.
2) Kohlerschmidt interviewed Johnson, a private surveyor who worked in the area, but didn’t ask him about the existing stone monument.
3) The BLM didn’t hold public meetings with area landowners during the dependent survey process, as required by its own guidelines.
In this first article we will consider the following legal questions discussed in this IBLA decision:
1) Did the BLM land surveyor properly analyze and weigh physical evidence related to the contested section corner?
2) Did the BLM land surveyor properly analyze topographic features in the original GLO field notes as they related to the contested section corner?
3) Did the BLM land surveyor properly collect, review and weight oral testimony related to the contested section corner?
4) What was the standard of evidence the landowners needed to meet to overturn the BLM’s decision about the status of the disputed section corner made during the dependent resurvey?
Legal Question #1: Did the BLM land surveyor properly analyze and weigh physical evidence related to the contested section corner?
The landowners in this dispute argued the BLM surveyor should have ignored the following discrepancies in the existing stone monument when it was compared to the section corner monument described in the original GLO field notes:
1) The difference in size.
2) The lack of notches or marks.
3) The lack of the stone mound as a corner accessory.
4) The difference in the depth the monument was buried. (The GLO field notes described a monument buried to 2/3 its length, as instructed. The existing stone monument was buried to ½ its length. However, both monuments were buried to a depth of 12 inches.)
The landowners claimed the notches could have worn away, the stone mound had been removed by a previous land owner, and that the differences in size and buried depth were insignificant. (They also claimed the original surveyors incorrectly measured the size of the monument and didn’t follow instructions when they buried it.) They claim Kholerschmidt failed in his review of physical evidence related to the section corner monument.
The IBLA disagreed. They found that “the record before us indicates Kholerschmidt made a careful comparison of the 1882 field notes to the description and dimensions of the stone…His conclusion that the Stone was not the survey monument is supported by the fact that the stone…did not have the described notches or remnants of them on its sides, was physically larger than the record monument and was not alongside or even near a mound of stone.” The IBLA also failed to accept the premise the original surveyors disobeyed their surveying instructions, citing a lack of evidence to support that premise.
Legal Question #2: Did the BLM land surveyor properly analyze topographic features in the original GLO field notes as they related to the contested section corner?
The landowners claimed the topographic features called for in the original GLO field notes along lines connected to the contested section corner don’t fit with the existing stone monument because of site changes. The IBLA doesn’t discuss this particular line of evidence in great detail in the decision, but it does note the following:
1) Kholerschmidt did compare the topographic calls in the original GLO field notes to site topography at the time of the dependent resurvey, and didn’t find a good fit with the existing stone monument or any other location.
2) The general site topography at the location of the existing stone monument as it exists at the time of the dependent resurvey drained in the opposite direction of that called for in the original GLO field notes.
The IBLA didn’t comment on the lack of a good fit between the topographic calls in the original GLO field notes and the proportioned corner position used by the BLM. I believe the landowners may have had an element of truth to their argument on this particular aspect of the evidence. The site conditions at the time of the dependent resurvey at BOTH the existing stone monument and the proportioned corner didn’t fit with the topographic calls in the original field notes. It doesn’t appear the IBLA believed this was a fatal flaw in the proportioned corner position, and it clearly didn’t ADD weight to the authority of the existing stone monument. (We may have seen more discussion about topographic calls in the IBLA decision if one or more of them had supported the position of the stone monument.)
Legal Question #3: Did the BLM land surveyor properly collect, review and weight oral testimony related to the contested section corner?
The landowners claimed Kholerschmidt failed to properly collect and review oral testimony from area landowners and area land surveyors. This included his failure to interview Thwaits, a former property owner, and his failure to ask Johnson, a private land surveyor, about the existing stone monument. They also claimed he failed to hold public meetings about the dependent resurvey as required by the BLM’s own guidelines.
The IBLA acknowledged that Kholerschmidt failed to hold public meetings as required. However, they decided the public meetings wouldn’t have changed the ultimate outcome of the BLM’s decision about the status of the contested section corner as a lost corner and therefore didn’t consider the lack of public meetings as a reason to overturn the BLM’s decision.
The IBLA failed to fault Kholerschmidt for failed to interview the property manager because the land owners didn’t provide evidence that Thwaits was available for interview at the time of the dependent resurvey, or that he was even an appropriate witness. They also point out the alleged testimony Thwaits would have offered to Kholerschmidt would have created a cloud on the status of the existing corner monument because of its questionable quality and because it conflicted with the testimony of other witnesses provided by the landowners in this case.
The IBLA also found that Kholerschmidt didn’t make a mistake when he failed to question Johnson about the existing stone monument. It reached this conclusion because Johnson had told Kholerschmidt the actual section corner was in a significantly different location. It wouldn’t be logical for Kholerschmidt to question Johnson about the existing stone monument if Johnson believed it didn’t mark the location of the section corner.
Legal Question #4: What was the standard of evidence the landowners needed to meet to overturn the BLM’s decision about the status of the disputed section corner made during the dependent resurvey?
To establish the status of the contested section corner as existing, obliterated or lost, the BLM has to meet the standard of “substantial evidence”. The IBLA explained in its decision that “substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”. This is a lower standard of evidence than the one the landowners had to meet to overturn the BLM’s decision about the status of the corner. The higher standard the landowners had to meet was a “preponderance of evidence”. To meet this higher standard of evidence, the land owners had to show that the BLM made an “error in the methodology used or the results obtained, or show that the resurvey was carried out in a manner that did not conform to the manual”.
The IBLA had met the substantial evidence standard in its decision about the status of the contested corner, but that the landowners hadn’t met the preponderance of evidence standard needed to overturn the BLM decision.
Lessons For Us
What lessons do we find in our first part of this review of the IBLA decision in this case? There are several, and most related to the gathering and evaluation of evidence:
1) Carefully compare the physical description found in the record to the physical description of the monument found in your field survey. (In PLSS, this physical comparison includes the monument accessories.)
2) Carefully compare the topographic calls in the original GLO field notes to the existing topography around the location of your target corner. (This requires that you obtain a copy of the field notes and that you locate major topographic features along lines connecting to the target corner during your field survey.)
3) Gather oral testimony about corner monument locations and authority from local land owners and land surveyors.
4) Take good notes! One reason the BLM-dependent resurvey wasn’t overturned in this case was because Kohlerschmidt had taken good notes that were part of the record considered by the court. These good notes allowed the IBLA to determine that Kohlerschmidt had carefully considered the evidence. Make a note about your evaluation of evidence in your survey report! (This includes who you talk to during collection of oral testimony, and what you ask them about.)
In the next article, we will discuss the IBLA decision as it relates to the evidence provided by private survey maps, in this case, their discussion of bonafide rights, and their discussion about the method of double proportioning.