10/8/15
©
TONY
NETTLEMAN
Instructor
OVERVIEW OF
TODAY’S SEMINAR
I.
History of the Center of the Section
II.
Historical Background
III.
Distinction Between Property and
Boundaries
IV.
How to Apply the Center Today
V.
Alternatives to Solving the Problem
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10/8/15
A 200 YEAR, 1.5 BILLION
ACRE PROJECT
THE PUBLIC LAND SYSTEM
PUBLIC LANDS: THE
URGENT NEED
„American
„Huge
Revolutionary War debt
territory unsettled by Europeans
With little power to
tax, the federal
government decided
to use the sale of the
Western Territories
to pay off American
Revolutionary War
debt while creating a
nation of "yeoman
farmers”
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PUBLIC
LANDS:
THE
URGENT
NEED
THE NEED WAS GREAT FOR
FEDERAL FUNDING SOURCES
National Debt
„$12m owed
to foreigners
„$40m owed
to states
to individuals
„$25m owed
State Debt
„$114m
„1790: Combined
State Debts
CREATION OF THE
PUBLIC LAND SYSTEM
THE STATUTES
•
Land Act of 1784
•
Land Act of 1785
•
Land Act of 1796
•
Land Act of 1805
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PLSS
LEGISLATION
Initial PLSS
Framework
1784: Theory
1785:
Practical
“Rules”
1787: Political
The public land system, as we know it today, was
created like any other piece of legislation, one
piece at a time. The first three land acts laid-out
the initial idea in three stages:
• Concept
• Practice
• Revision
TRIVIA
Who was the
principal author
of The Land Ordinance
of 1784?
Thomas Jefferson
LAND ORDINANCE OF 1784
„ The New States Shall Remain Forever A Part Of
The United States Of America
„They Shall Bear The Same Relation To The
Confederation As The Original States
„They Shall Pay Their Apportionment Of The
Federal Debts
„They Shall, In Their Governments, Uphold
Republican Forms
„After The Year 1800 There Shall Be Neither
Slavery Nor Involuntary Servitude In Any Of
Them [deleted from final bill]
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LAND ORDINANCE OF 1784
What do all these quotes have in common? Principles.
The Ordinance of 1784 served primarily as a mechanism to
limit slavery in the western lands.
A huge fight ensued between northern and southern states
during the Ordinance’s debate.
Jefferson also referred to the Act on his deathbed, saying "My
sentiments have been forty years before the public: although I
shall not live to see them consummated, they will not die with
me; but, living or dying, they will ever be in my most fervent
prayer."
LAND ORDINANCE OF 1785:
“THE SEVEN RANGES”
• Adopted on may 20, 1785 to raise money for the federal government by selling
western lands, which comprised three-quarters of the U.S.
• Six mile square townships at right angles, subdivided into thirty-six section that
measured one mile square (640 acres)
• Monumented exterior township corners every mile
• Reserved section 16 in each township for the maintenance of public schools, where
many schools today are located
• Also reserved sections 8,11,26 and 29 for “by the federal government when, it was
hoped, they would bring higher prices because of developed land around them.”
• One surveyor was appointed by Congress from each state
• As well as one-third part of all gold, silver, lead and copper mines
• All lines measured with chain
THE BEGINNING POINT OF
THE SEVEN RANGES
The beginning point of the U.S. Public Land Survey System (and the first of
the Seven Ranges) was established at the boundary between Ohio, Virginia
and Pennsylvania, on the north side of the Ohio river
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THE SEVEN
RANGES
„ The first area to be surveyed in the PLSS
„ Measured 42 miles by 91 miles, along the
Ohio river
„ U.S. government prohibited settlement by
Europeans under the Proclamation Act of
1783 but widely settled by squatters
„ The first North/South line, known as the
Eastern Ohio Meridian, was established
along the western boundary of Pennsylvania
„ The first East/West baseline, known as
Ellicott’s line, began where the Pennsylvania
boundary touched the north bank of the Ohio
River
LAND ORDINANCE OF 1785
TOWNSHIP LAYOUT
Sectio n s 8 , 1 1 , 2 6 An d 2 9 Reserv ed Fo r Sale By th e Fed eral Go v ern men t
SEVEN RANGES TOWNSHIP
CORNERS ACTUAL CREATION
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LAND ORDINANCE OF 1785
CHAIN: WHICH ONE?
WHAT SPORT FIELD IS THE
LENGTH OF A CHAIN?
Cricket
The chain also survives as the length
of a cricket pitch, being the
distance between the wickets
WHAT IS THE LENGTH
OF A TEXAS CHAIN?
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LAND ORDINANCE OF 1796
LOOPHOLE CLOSURE
• Appointment Of Surveyor General
• Townships Six Miles Square
• Section Number Reversed (1 in the NE corner)
• Surveys Be Conducted With Gunter’s Chain Of 33
Feet (2 Poles)
• All Lines By True Meridian
• First reference to navigable rivers as public highways
• Recording of corner descriptions in a Field Book
LAND ORDINANCE OF 1796
SURVEYOR GENERAL
LAND ORDINANCE OF 1796
SURVEYOR GENERAL
General Rufus Putnam
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LAND ORDINANCE OF 1796
THE OATH
LAND ORDINANCE OF 1796
LOOPHOLE CLOSURE
Townships
Six Miles Square
With Section
Number Reversed
LAND ORDINANCE OF 1796
SPECIFIED “2 PERCH” CHAIN
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LAND ORDINANCE OF 1796
LINES RUN ON TRUE
MERIDIAN
California
„Mt.
Diablo
„ Contra Costa County
„ 1851
„San
Bernardino
Mountain
„ San Bernardino County
„ 1852
„Mt.
Pierce
„ Humboldt County
„ 1853
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LAND ORDINANCE OF 1796
TANGENT OFFSET METHOD
THE NEW
SURVEYIN
G METHOD
• What language did the
term “perch” originate
from? French
• What is its meaning?
Pole or Staff
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LAND ORDINANCE OF 1796
RESERVED LANDS
Sections 15, 16, 21 And 22 Reserved
For Sale By Federal Government
LAND ACT OF 1800
„The
division of townships into sections and
half-sections
„Corners set at one mile intervals and half-mile
corners were to be fixed on E-W lines only
„Allowed for the sale of ½ sections (320 acres)
„Established
local land offices headed by a
Register and Receiver
LAND ACT OF 1805
MAJOR OVERHAUL
„The
original surveys, and survey corners, control and are without
error
„Boundaries as run and marked cannot be changed
„Measurements
and quantities returned are held to be true (basis
for proportionate measure)
„Provided
for "legal, but un-monumented" corners
that the contents of the sections, as returned on the plat,
will be the true contents of the sections
„Defined aliquot parts as un-surveyed half sections and quarter
sections that contain one-half or one-fourth area
„Identified
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LAND ORDINANCE OF 1805
THE SANCTITY OF AN ORIGINAL
SURVEY
Surveyors Were Paid Little And Mistakes Today
Could Be Disastrous Tomorrow
LAND ORDINANCE OF 1805
UN-MONUMENTED CORNERS
The Center Quarter Corner And The One-sixteenth Corners
LAND ORDINANCE OF 1805
ALL ORIGINAL SURVEYS ARE
WITHOUT ERROR
„Distances
and the courses recited in the field notes and
noted on the plat are the “true distances”
„Why? Factors
as survey errors, poor instrumentation,
difficult terrain, and mediocre work
„Error Tolerances
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LAND ACT OF 1805
ALIQUOT PARTS
A subdivision of a section based upon an even
division by distances, not by equal area
CONNECT EACH RULE TO
THE CORRECT LAND ACT
„Distances
and the courses recited
in the field notes and noted on the
plat are the “true distances”
„1784
„1805
„Allowed
for the sale of half sections
(320 acres)
„The
surveyor must use a 2-pole chain
„The New States Shall Remain Forever
A Part Of The United States Of America
„1800
„1796
MINOR LAND ACTS
1820 AND 1832
„The Act of April 24, 1820 provided for:
„The sale of half quarter sections (80 acres)
„N-S line through the quarter section in accordance with
the 1805 Act
„The Act of April 5, 1832 provided for:
„The sale of quarter sections (40 acres)
„E-W line through the quarter section in accordance with
the 1805 Act
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INTERPERTING LAND ACTS
„ BLM Manuals
„General and
Special Surveying Instructions
(correspondence, letters, etc.)
GENERAL AND SPECIAL
INSTRUCTION
„Earliest
instructions merely recited the laws
concerning the survey of the public lands
„Mansfield
Instructions of 1806 expected the
surveyors to be technically knowledgeable about
the survey system
„Tiffin
Instructions of 1815 were the most detailed
early instructions
„Rector Instructions of 1818 for Illinois, Missouri
and Arkansas are basically similar to Tiffin’s
GENERAL AND SPECIAL
INSTRUCTION
„Prior to
1831 the general technical aspects of the
PLSS were considered to be a function of the
Surveyors General
„Each interpreted the survey laws according to their
understanding of the intent of those laws
„Some of them did not issue detailed instructions to
their Deputy Surveyors
„In 1831, the Commissioner circulated a set of
surveying instructions to the surveyors general,
which was not adopted completely by any of them
in preparing instructions
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BLM MANUALS
„First
Manual issued to the Surveyor General of
Oregon in 1851
„In
1855, the Oregon Manual was made applicable to
all districts established on, and after 1850
„Apparently
not intended to apply to districts
established before 1850, including Arkansas
„In
1863, Congress made the 1855 Manual part of all
public land survey contracts
„This
finally brought national uniformity to the
PLSS
BLM MANUALS
„1851 Instructions to the Surveyor General of Oregon
„1855 Instructions to the Surveyors General of Public
Lands of the United States
„1864 Instructions to the Surveyors General,
Amendments to the 1855 Manual
„1881 Instructions to the Commissioner of the General
Land Office to the Surveyors General of the United
States
„1890 Manual of Surveying Instructions for the Survey
of the Public Lands of the United States and Private
Claims
BLM MANUALS
„1894 Manual of Surveying Instructions for the Survey of
the Public Lands of the United States and Private Claims
„1902 Manual of Surveying Instructions for the Survey of
the Public Lands of the United States and Private Claims
„1930 Manual of Instructions for the Survey of the Public
Lands of the United States
„1947 Manual of Instructions for the Survey of the Public
Lands of the United States
„1973 Manual of Instructions for the Survey of the Public
Lands of the United States (Technical Bulletin 6)
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Who was the primary
group of professionals that
the BLM manual
was written to instruct?
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REGULAR SECTIONS
According to 3-89, the quarter-quarter or sixteenth-quarter sections will be
established at points midway between the section and quarter-section
corners…except the last half mile of the lines closing on townships boundaries
TO FIND THE CENTER OF
A REGULAR SECTION…
„ Use the east and west ¼’s to
establish the E/W line
„ The north and south ¼’s to
establish the N/S line
„ The center of section is
located where both lines
intersect
REGULAR QUARTER SECTIONS
According to 3-89, the quarter-quarter or sixteenth-quarter sections will be
established at points midway between the section and quarter-section
corners…except the last half mile of the lines closing on townships boundaries
To find the center of a regular
section, use the same methods
„ Use the east and west ¼’s to
establish the E/W line
„ The north and south ¼’s to
establish the N/S line
„ The center of section is located
where both lines intersect
A WARNING
Never use the center
of section of one
quarter-section to
establish corners for
another quartersection
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3-MILE METHOD
„This
method was used
only on Indian lands
„It was
only used in
the late nineteenth
and early twenty
century
„It saved substantial
time because only the
east-west lines were
run on the ground
3-MILE METHOD
„The
original surveyor
established the section
corners, quarter-corners
and sixteenth-corners
„Once
the corners were
established, a line between
opposing corners were
connected in the east/west
direction
„Then
the distance was
divided by four and the
interior corners were
monumented
NORTH AND WEST
BOUNDARIES OF TOWNSHIPS
„The
excess and deficiency
is placed in north and west
boundaries of townships
„Therefore, quarter-corners
and sixteenth- corners
should be established by
proportion, not midpoint
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PARTS OF THE OPINION
„Title and Heading
„Introduction
„Brief summary
of
decision
„Facts/Background
„Standard of Review
„Issues/Analysis
„Legal Reasoning
„Holding
„Conclusion
TITLE AND HEADING
„Official Citation
„Court Name
„Plaintiffs and
Defendants
„Docket Number
„Date of Decision
„Synopsis of Case
„Brief disposition of
case
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OFFICIAL CITATION
„Case
Name (Plaintiffs and Defendants)
Number of Reporter
„Volume
„Reporter
„Beginning Page
„Court
„Year
Number
Name
of Decision
Ex a mple: NRDC v . Ev a ns, 2 5 4 F.Supp.2 d 4 34 (S.D.N.Y. 2 0 03 ).
INTRODUCTION
OFTEN
INCLUDES:
•
Facts
•
Procedural history
•
Resolution of case
STANDARD OF REVIEW
OFTEN CRUCIAL TO THE
OUTCOME OF THE CASE!
Compare:
“de novo”
“clearly erroneous”
“abuse of discretion”
“substantial evidence”
“rational basis”
“strict scrutiny”
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ANALYSIS:“IRAC”
•
•
•
•
ISSUE
RULE
ANALYSIS
CONCLUSION
IRAC
„Issue:
The legal question court is asked to
solve
„Rule:
The general legal rules governing the
issue (statutes and common law)
„Analysis:
The court explains how the legal
rules apply to the facts of this case
„Conclusion:
The court’s decision, or
holding, on each issue presented
ELEMENTS OF A CASE
BRIEF
1. Identification of the Case
2. Facts
3. Procedural History
4. Issue(s) and Holding(s)
5. Reasoning
6. Evaluation
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IDENTIFICATION OF CASE
1. Name of case
2. Full citation
3. Optional: vote, author of opinion,
legal topic of classification, etc.
EXAMPLE:
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686,
98 L. Ed. 873 (1954).
Vote: 9-0.
Author: Warren, C.J.
Legal Topics: Const. Law; Civil Rights
FACTS
1. Principal parties
to the dispute
2. Relationships
among those
parties
3. Events that led
to the dispute
PROCEDURAL HISTORY
1.Which party/parties initiated legal
action against which others?
2.The legal claims and relief sought (but
keep this short!)
3.The disposition(s) of lower courts, if
any
4.The authoring court’s disposition
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ISSUE STATEMENT
(A.K.A. QUESTION
PRESENTED)
A material question of fact or law that arises
from the claims, defenses, and arguments of
the parties
Hint: Try to state the issue as narrowly as
possible, tailoring it to the crucial facts
and legal rules of the case
EXAMPLE ISSUE
STATEMENTS
OK: “Did the trial court correctly
grant summary judgment for the
defendant?”
BETTER: “Is an employer liable in
tort for discharging an at-will
employee for a reason that violates
public policy?”
EXAMPLE ISSUE
STATEMENTS
BEST: “Is the employer liable in tort
for discharging an at-will employee
because of her refusal to participate
in a public ‘mooning’, a discharge
that contravened the public policy
against indecent exposure reflected
in a criminal statute?”
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HOLDING: THE COURT’S
ANSWER TO THE QUESTION
PRESENTED IN THE ISSUE
• Simple answer: Yes or No
• Detailed answer: Transform issue into
a holding in the form of a statement
• Example: “Yes. By discharging the
employee because she refused to
participate in a public ‘mooning,’ the
employer violated public policy
reflected in a criminal statute
prohibiting indecent exposure.”
REASONIN
G
1. RULE AND RATIONALE
2. DISTINGUISHING DICTA
Dicta: Statements in the opinion that help
explain the court’s reasoning but address
questions not squarely presented in the dispute
before the court
EVALUATION
1. Was the reasoning convincing?
2. Did the court apply the proper standard of
review?
3. Did the court properly analyze the statute
or constitutional provision?
4. Did the court put the proper amount of
emphasis on equitable considerations?
5. The following case, Martin v. City of Seattle,
is an example of IRAC…..
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IRAC
Martin and other named plaintiffs appeal the trial court's
dismissal on summary judgment of their class action lawsuit
against the City of Seattle. The purported class consists of all
persons who received parking tickets as a result of shortchanging meters during a six-year period. Each parking
ticket incurred a $20 fine.
We do not reach the merits of the claim because we conclude
that this court lacks jurisdiction to hear the case. Under
RCW 2.06.030, the appellate jurisdiction of this court does
not extend to civil actions at law for the recovery of money or
personal property when the original amount in controversy
does not exceed the sum of $200. Appellants may not
aggregate their claims against the City in order to reach the
$200 limit so as to confer jurisdiction. Therefore, we must
dismiss the case.
YOUR TURN TO BRIEF A CASE!
„First,
download each case with link
provided
„Second,
brief each case in IRAC
format
„Third,
check your answers with
the examples in the next slides
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YOUR TURN!
BRIEF THESE CASES
„CRAGIN V. POWELL
„U.S. V. WEYERHOUSER
„GERKE V. LUCAS
„OKLAHOMA VS. TEXAS
258 U.S. 574 (1922)
„WALTERS V. COMMONS
2 PORT. 38
„POLENSKE V. JONES
192 IOWA 1015
PLEASE DOWNLOAD AND
REVIEW THIS CASE AT…..
http://supreme.justia.com/cas es/federal/
us/128/691/
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CRAGIN V. POWELL
128 U.S. 691 (1888)
FACTS
„Cragin was a landowner and Powell was a surveyor
„Powell surveyed Cragin’s land by finding a monument five miles
from Cragin’s property, across a section-line, and then running the
record distance back to the property
„The original survey plat showed Cragin’s land was east of the
bayou while Powell placed Cragin’s land west of the bayou
„Running the record distance relocated Cragin’s land from “some of
the best sugar beet growing land in the world” to worthless swamp
land
„Once Powell realized the shift in boundaries, he instructed a
colleague to purchase the sugar beet farm land from the state as unsurveyed land
WHAT TYPE OF SURVEY
WAS POWELL TASKED
TO PERFORM?
A dependent resurvey because
he was using the existing evidence
to find the boundary
CRAGIN V. POWELL
(128 U.S. 691, 1888)
THE ISSUE
During a resurvey, should the bearing and distance
control over the evidence left on-the-ground by the
original surveyor
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CRAGIN V. POWELL
(128 U.S. 691, 1888)
The holding
and rationale
Protect the plat!
Please explain the Public
Land System principle that
was reaffirmed in Cragin v.
Powell
CRAGIN V. POWELL
(128 U.S. 691, 1888)
Protect the plat: resurveys should seek to uphold all the factors that are given
on the plat including:
„ Topography
„ Aliquot, non-aliquot and private parcels
„ excesses or deficiencies
„ Why? Because “When lands are granted according to an official plat of their
survey, the plat, with its notes, lines, descriptions and landmarks becomes as
much a part of the grant or deed by which they are conveyed, and, so far as
limits are concerned, controls as much as if such descriptive features were
written out on the face of the deed or grant.”
„ The BLM encourages surveyors to “always let the plat tell you what to do”
because “there are millions of sections in the public land system and
everyone of them is unique”
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PLEASE DOWNLOAD AND
REVIEW THIS CASE AT…..
http://openjuris t.org/392/f2d/448/unitedstates-v-weyerhaeuser-company
U.S. V. WEYERHAEUSER
392 F.2D 448 (1967)
Facts
„
Hia tus fo und o n the g ro und in Oreg o n between the no rth/so uth bounda ry o f two to wnships
„
The so uthern line o f o ne to wnship wa s run first
„
„
Then a no ther surv ey o r ra n the no rth line o f the o ther to wnship
The seco nd surv ey o r did no t find the first surv ey o r’s mo numents, so he set his o wn mo numents
„
The result wa s a do uble set o f co rners
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U.S. V. WEYERHAEUSER
392 F.2D 448 (1967)
The Issue
Did Weyerhaeuser’s land, in the northern
township, stop at the original monuments set
in his own township or also include
the hiatus?
Who retains
ownership
of un-surveyed
Federal lands?
U.S. V. WEYERHAEUSER
392 F.2D 448 (1967)
THE HOLDING AND RATIONALE
„Weyerhaeuser’s
patent was marked on-the-ground using
the northern tier of monuments
„Therefore, Weyerhaeuser’s
boundary ends at those
monuments
„And
the hiatus was unsurveyed federal land
„The land, as
described in your patent, is limited to the
original corners of your survey
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PLEASE DOWNLOAD AND
REVIEW THIS CASE AT…..
http://supreme.justia.com/cas es/federal/
us/258/574/
OKLAHOMA V. TEXAS
258 U.S. 574 (1922)
FACTS
„Dispute between
the two states concerned the bed of the
Red river and the oil and gas proceeds taken from the
river bed
„Oklahoma claimed
its boundary was the southern
boundary of the Red river, while Texas claimed the
“medial line of the stream”
„Then
the United States intervened!!!
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OKLAHOMA V. TEXAS
258 U.S. 574 (1922)
Issues
„What
constitutes the south bank of the Red River?
„Where along
that bank is the boundary located?
„What
is the proper mode of locating the boundary on the
ground?
OKLAHOMA V. TEXAS
258 U.S. 574 (1922)
How do we determine navigability?
„ “Navigability in fact is the test of navigability in law, and whether a river
is navigable in fact is to be determined by inquiring whether it is used, or
is susceptible of being used, in its natural and ordinary condition as a
highway for commerce, over which trade and travel are or may be
conducted in the customary modes of trade and travel on water” The
Daniel Ball, 10 Wall. 557
So was the Red River navigable?
„ NO!
SCOTUS found that “only for short intervals, when the rainfall is
running off, are the volume and depth of the water such that even very
small boats could be operated therein”
„ In 1910, a Corps survey found that the Red River near the boundary
dispute had “a depth of only four-tenths of a foot of water in the deepest
place"
OKLAHOMA VS. TEXAS
258 U.S. 574 (1922)
The Law
„If a river is
navigable, then the
Red River passed to the
respective states under the equal
footing doctrine
„If a river is
not navigable, then
the federal government never
transferred it to the states, and
the feds still own the river bed
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OKLAHOMA VS. TEXAS
258 U.S. 574 (1922)
Holding and Rationale
„The title to
the river bed of the Red River did not pass
to Oklahoma on its admission to the Union because no
part of the river within the State was navigable
„Therefore, the disposal of the lands on the northerly
bank carried with it a right to the bed of the river only as
far as the medial land
PLEASE DOWNLOAD AND
REVIEW THIS CASE AT…..
http://bit.ly/1geJykT
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WALTERS V. COMMONS
2 PORT. 38
Is a Land Owner Entitled to an
Excess
or
Deficiency?
WALTERS V. COMMONS
2 PORT. 38
PARTY INTERESTS
„Plaintiff
claims the Southeast quarter of section
8, Township 18, Range 10, containing 160 70100 acres
„Defendant
claims East half of the Southwest
quarter of the same section
WALTERS V. COMMONS
2 PORT. 38
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WALTERS V. COMMONS
2 PORT. 38
PARTY ASSERTIONS
„The survey was performed, which showed this
section actually contained 652 37-100 acres, not 640
„The half-mile post of the section was missing
„Defendant claims that the line should be run from
where he believed the 1/2mi post used to be, to the
east end of the section
„Plaintiff claims the entire section should be broken
down using the 1805 method and the 1/2mi post
reestablished
WALTERS V. COMMONS
2 PORT. 38
LOWER COURT RULING
The judge instructed the jury that if using the
defendant’s method, the plaintiff is only entitled to
the lands which the patent explicitly calls for
Do you agree with this?
WALTERS V. COMMONS
2 PORT. 38
THE LAW
The First Principle states……
„ “That all the corners marked in the surveys shall be established as the proper corners
of sections or subdivisions of sections which they were intended to designate; and the
corners of half and quarter sections, not marked on the said surveys, shall be placed,
as nearly as possible, equidistant from those two corners which stand on the same
line“
The Second Principle states…..
„ “Each section or sub-division of section, the contents of which shall have been
returned by the Surveyor General, shall be held and considered to contain the exact
quantity expressed in the return so made; and the half sections and quarter sections,
the contents whereof shall not have been returned, shall be held and considered as
containing the one half or the one fourth, respectively, of the returned contents of the
section of which they make a part”
36
10/8/15
WALTERS V. COMMONS
2 PORT. 38
The Outcome…….
Reversed
and
Remanded
PLEASE
DOWNLOAD AND
REVIEW THIS
CASE AT…..
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37
10/8/15
POLENSKE V. JONES
192 IOWA 1015
May property
owners claim
adverse possession
due to a “stubbed”
center of section?
POLENSKE V. JONES
192 IOWA 1015
Facts
„Plaintiff
owned East 120 acres of the Northwest 1/4 of section 10
„Defendant owned the South West 1/4 of section 10
„Plaintiff and defendant owned adjoining parcels and decided to
erect a permanent fence between their properties
„Before the fence was erected, they had a joint survey performed to
establish the “true” boundary line
„This “true” boundary survey showed the boundary line was
44
feet from the previously held location
POLENSKE V. JONES
192 IOWA 1015
PLAINTIFF’S SURVEY
„McHenry (1894) performed a survey for the
predecessor in title of plaintiff ’s land
„He “started out and acquired the quarter
section quarter on the north side of the section
and ran 160 rods directly south and ‘called’
the center of the section”
38
10/8/15
POLENSKE V. JONES
192 IOWA 1015
CONFLICTING SURVEYS
„Plaintiff’s
„New
surveyor “stubbed” it
survey performed using double proportion
„Plaintiff then
claimed adverse possession of the 44 feet
in dispute
Is there a case for adverse possession?
POLENSKE V. JONES
192 IOWA 1015
POLENSKE V. JONES
192 IOWA 1015
ADVERSE POSSESSION
„Actual
„Open
and Notorious
„Exclusive
„Hostile
„Continuous
39
10/8/15
POLENSKE V. JONES
192 IOWA 1015
ACTUAL
“The actions of the disseisor must change the state
of the land, as by clearing, mowing, planting,
harvesting fruit of the land, logging or cutting
timber, mining, fencing, pulling tree stumps,
running livestock and constructing buildings or
other improvements”
POLENSKE V. JONES
192 IOWA 1015
OPEN AND NOTORIOUS
“The disseisor's use of the property is so visible
and apparent that it gives notice to the legal owner
that someone may assert claim It must be of such
character that would give notice to a reasonable
person. If legal owner has knowledge, this element
is met; it can be also met by fencing, opening or
closing gates or an entry to the property, posted
signs, crops, buildings, or animals that a diligent
owner could be expected to know about”
POLENSKE V. JONES
192 IOWA 1015
EXCLUSIVE
“The disseisor holds the land to the exclusion of the true
owner. If, for example, the disseisor builds a barn on the
owner's property, and the owner then uses the barn, the
disseisor cannot claim exclusive use”
Note: There may be more than one adverse possessor,
taking as tenants in common, so long as the other
elements are met
40
10/8/15
POLENSKE V. JONES
192 IOWA 1015
CONTINUOUS
“The disseisor must, for statute of limitations purposes,
hold that property continuously for the entire limitations
period, and use it as a true owner would for that time. This
element focuses on adverse possessor's time on the land,
not how long the true owner has been dispossessed of it.
Occasional activity on the land with long gaps in activity
fail the test of continuous possession”
DEFENDANT JONES
41
10/8/15
WHY?
Plaintiff said to defendant: "I do not want any of your
land, and I do not want any land out of your quarter"
„“This
is a clear case of a man who takes possession
intending to occupy to the true line only, but by
mistake, occupies beyond the true line. In 1894, a
survey had been made, to determine the center of the
section and the line between the northwest quarter and
the southwest quarter of Section 10. This survey was ex
parte, and was not because the line was in dispute”
NOT NECESSARY TO
BRIEF THIS CASE…..
FOR INFORMATIONAL
PURPOSES ONLY!!
42
10/8/15
GERKE V. LUCAS 92 IOWA 79
Where is the
Center of Section?
GERKE V. LUCAS 92 IOWA 79
„Plaintiff claims
to be the owner in fee of the
southeast one fourth of the southwest one fourth of
section 12, township 70, range 3
„Defendant
claims to be the owner of the south fifty
acres of the west one half of the southeast one
fourth of the same section
„Defendant
has occupied a contested area along the
east part of plaintiff's premises…
GERKE V. LUCAS 92 IOWA 79
43
10/8/15
GERKE V. LUCAS 92 IOWA 79
THE DISPUTE
„The
Dispute: What is the Proper And Legal Method Of
Establishing The Center Of A Section Of Land
„Plaintiff Claims: Bisecting by running a line from the quarter
corner on the east to the quarter corner on the west side of the
section, or vice versa, and the point halfway on said line between
said quarter corners is the center
„Defendant Claims: Intersecting
“straight lines are run from the
quarter corner on the east to the quarter corner on the west and
from the quarter corner on the south to the quarter corner on the
north side of the section, the center being the point where these
two lines cross“
Which one do you think is correct?
GERKE V. LUCAS 92 IOWA 79
BISECT VS. INTERSECT
Due to inaccurate original surveys, the quarter
corners are located away from the true center of
the side lines of the section; and as these corners,
when located, are permanent, it will be seen that
the two methods may lead to different results
44
10/8/15
DEFENDANT LUCAS
WHY?
„County Surveyor Bisected, but…..
„Intersect Method Referenced In Survey Instructions In
Missouri GLO
„Intersect authorized And Directed By Thomas A.
Hendricks, Commissioner Of The General Land Office
„Intersect Was Recognized By The State Of Iowa By
Express Legislation, From December 1840 to 1851
PRACTICAL
EXERCISES
45
10/8/15
METHODS FOR LOCATING
CENTER OF SECTION
„Bisecting – 1805
method
„Stubbing from each
direction
LAND ACT OF 1805
STUBBING FROM SOUTH
Run due north from S ¼
46
10/8/15
STUBBING FROM NORTH
Run due south from N ¼
STUBBING FROM EAST
Run due west from E ¼
STUBBING FROM WEST
Run due east from W ¼
47
10/8/15
PARTING WORDS
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48