DISCREPANCIES IN THE OFFICIAL RECORD

Transcription

1 DISCREPANCIES IN THE OFFICIAL RECORD

2 The The lines The corners lengths marked set of by the the section Surveyor General lines are are are unchangeable. unchangeable

3 1. Inconsistencies on the face of the Plat; 2. Official Field Notes vs. Official Plat 3. Original Lotting vs. Resurvey Lotting 4. Field Tablets vs. Official Field Notes 5. Official Plat vs. Official Procedures 6. Official Independent Resurvey Plat vs. Original Patent

4 7. Official Plat and Field Notes vs. Evidence Suggesting A Hiatus Between Townships 8. Original Grant vs. Original Survey 9. Protracted Sub. of Sec. Lines vs. the Actual Location

5 BEATY v. ROBERTSON Plat Controls WHITING v. GARDNER Notes Control ERICKSON V. WICK Plat Controls HARRINGTON V. BOEHMER Notes Control

6 Hudson Investment Co. Calls for distance prevail over acreage The Signal Companies Monuments control both field notes and plats United States v. Redondo Development Area controls over original monuments. Facts Control

7 BEATY v. ROBERTSON Where there is a variance between the plat and the field notes of the original survey of public lands, the former must control since it represents the lines and corners as fixed by the Surveyor General and by which the land was sold. (Supreme Court of Indiana) represents the lines and corners as fixed by the Surveyor General and by which the land was sold.

8 BEATY v. ROBERTSON Excess Sec chs. wide Excess Notes: 40.00, With Excess

9 General Land Office Copy of the Field Notes: The State Auditor s copy omits the portion in brackets.

10 WHITING v. GARDNER Where the descriptions in a deed refer to a survey and a map base thereon, making both a part of the deed, and there is a discrepancy between the map and the survey, the later will prevail. (Supreme Court of California)

11 ERICKSON V. WICK Where there is variance between plat and field notes and land has been conveyed out of government s title by reference to plat, plat controls. (Wash. Court of Appeals)

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14 HARRINGTON V. BOEHMER Where there is a discrepancy between field notes and a plat the latter must give way to the former. (Supreme Court of California)

15 HARRINGTON V. BOEHMER Original Plat Amended Plat 2 1 Sec. 24 Sec

16 INCONSISTENCIES ON THE FACE OF THE PLAT Areas are not based on distances shown on the plat

17 Hudson Investment Company et al. 17 IBLA 146 (Interior Board of Land Appeals)

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19 T. 1 N. R. 1 W. Sec. 33 Sec. 32 Walker Application 1866 Patent Sec. 5 Sec. 4 T. 1 S. R. 1 W.

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21 T. 1 N. R. 1 W Patent To Walker T. 1 S. R. 1 W.

22 19.20 acres

23 The Rule of Approximation The amount of excess may not exceed the amount of loss if one of the subdivisions were eliminated acres acres T. 1 S. R. 1 W.

24 Ø Appellants argue that the Gov. is bound by its survey to treat Lot 1 as containing 9.60 acres Ø The government argued that the error in the acreage computation for lot 1 was an error of transcription, not of survey, i.e., the draftsman in the Oregon Surveyor General s office intended to write 9.60 along the south boundary of lot 1.

25 The issue is not whether the Register could recompute the acreage, but whether he correctly resolved an inconsistency on the face of the plat. Thus, when the register considered the plat in conjunction with the field notes, he was constrained to use the distance calls Calls for distance, fixed after fewer steps of computation or transcription, are more reliable than computations of acreage.

26 1. Attempt to Identify the source of the discrepancy. 2. Does the discrepancy affect the subdivision of the section? 3. Determine how the section should have been subdivided or what the parenthetical distances and areas should have been. 4. The solution should protect the plat in its entirety, including the regular aliquot parts.

27 INCONSISTENCIES ON THE FACE OF THE PLAT Area calculations contain multiple errors.

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29 (23.78) (20.85) (23.90) (20.10)

30 (20.85) (23.78) (23.81) (23.84) (23.87) (23.90) (20.10)

31 20.85 areas decreasing

32 Area Calculation Procedure 1894 Manual Divide the difference between the widths of the ends of the tract by 4; if 3 remains, increase the hundredth figure of the quotient by a unit; in all other cases disregard the fraction; call the quotient thus obtained, d ; Step #1: = = 0.10 d = 0.10 Then, taking the end widths of the tract in chains and decimals of a chain, the areas of the lots, in acres, will be: Of the smallest lot: twice the width of the lesser end, plus d ; Step #2: x 2 = = Sec. 30

33 Area Calculation Procedure 1894 Manual Of the largest lot: twice the width of the greater end, minus d ; Step #3: x 2 = = Of the smaller middle lot: sum of the widths of the ends, minus d ; Step #4: = = Of the larger middle lot: sum of the widths of the ends, plus d Step #5: = = Sec. 30

34 Step # = = (round up) (20.85) Step #2 Lot = = acres Step #3 Lot = = acres (23.78) (23.81) (20.29) (23.90) Step #4 Lot x 2 = = acres Step #5 Lot = (dist. between lot 6 & 7) = = = = x = = acres (20.10)

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36 We have identified the error and are constrained to use the correct areas to determine the parenthetical distances.

37 INCONSISTENCIES ON THE FACE OF THE PLAT Topographic features are not properly located on the original plat.

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39 Original Plat

40 Ø Beard relied on a survey by Friel which located the S½S½ Sec. 16 approximately ½ mile south and ¼ mile west of the true position as determined by reference to corners of the original survey. J. M. BEARD (ON REHEARING) 52 L.D. 451 Ø In 1905 A.G. Strain purchased the S½S½ Sec. 16 from the State of California and later transferred the tract to J.M. Beard. Ø Beard instituted a suit to recover land occupied by the West Fork Ranger Station of the U.S. Forest Service.

41 Original 1875 Survey By Norway

42 1884 Completion Survey By Pearson

43 1926 Dependent Resurvey by Averill and Wilson S½S½

44 J. M. BEARD (ON REHEARING) 52 L.D. 451 Under the circumstances there appears li<le jus>fica>on for counsel's conten>on that items of topography, the posi>ons of which in the interior No of such sec>on importance were based has solely been upon attached an es>mate to or items guess of on topography the part of the by surveyor, the General and the Land record Office, distances the to Department, which on the or sec>on the Federal lines were courts. dependent upon the recollec>ons of the chainmen, and which were noted as ma<ers of useful informa>on or likely to gra>fy public curiosity, should therealer be accorded the dignity of natural monuments to which both courses and distances must give way.

45 Original Plat Rivera Patent

46 Independent Resurvey Plat Recovered Original Corner Original Section Lines

47 Independent Resurvey Plat Recovered Original Corner Original Section Lines

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49 BLM argued that: Ø there was no confusion regarding the location of the patented land when it was resurveyed in 1925; Ø the portion of Lot 10 sought by the Lawsons has always been outside of the Rivera homestead; Ø the 12 acres in Lot 10 had not mistakenly been excluded from the original patent, noting that the homestead tract would be significantly distorted if this tract had been included; Ø they were not convinced that Rivera had relied upon the improvements on Lot 10 to support his patent, that the house used for proof of homestead was more likely to have been a house located on the patented homestead; Ø there was no mention of a cabin or stone cellar in the homestead entry file. Ø the Pecos river is a Wild and Scenic River.

50 IBLA Ruled: Ø Lot 10 is owned by the United States. The Lawsons do not dispute this fact; Ø The question now before us is whether the land in Lot 10 was erroneously excluded from the 1888 patent. Ø we must initially determine whether the evidence supports a finding that Rivera intended to claim land in Lot 10 when he made his homestead entry; Ø BLM holds the discretionary authority to correct patents of public land to eliminate mutual mistakes of fact as to description of land conveyed by the patent document; Ø The party applying for amendment must demonstrate an error in the description of the land in the patent which results in the inclusion of land the patentee and the United States had not intended to be conveyed and/or excludes land the

51 The Board s Decision: Ø The most compelling evidence of the intent of the parties is found on the face of the 1883 survey plat. Ø In Foust, Val Snow, and Hancock, there was sufficient evidence that the original patent failed to include land and improvements which the patentee and the United States intended to be included in the patent. The common thread in each of these cases was the evidence that the entryman had used the improvements to support the entry. Ø Additional evidence was submitted through sworn affidavits executed by Ramona Lawson. Ø Tree ring analysis of the logs in the house on lot 10, concluded that the cabin was built in 1882 or very soon thereafter.

52 Balancing the interests of the parties, we find that the equities clearly fall in favor of correcting the patent to include the lands that the homesteader sought and the Government intended to convey in 1888 and which were occupied by the homesteader and his heirs for over 120 years.