Point of Beginning - March 2010 - (Page 32)

traversingthelaw | BY JEFFERY N. LUCAS, PLS, ESQ. The Alabama rule. Last month, I addressed the proposition put forth by others that Alabama case law in some way justifies and makes relevant a federal surveying manual—a manual written for BLM employees surveying the undisposed-of lands of the federal government—in the context of private-practice surveying of lands that have been conveyed out of federal ownership and into private hands. As the examination of the cases went, it became increasingly obvious that Alabama is the wrong state to pick to make such an argument. Not only does Alabama law not cooperate, our Supreme Court has on many occasions been flatly at odds with the instructions found in the manual. In at least one line of cases, the Alabama Supreme Court has been against what federal law has to say on the subject of what constitutes a “proper corner” and against the great weight of similar state court rulings on the subject. That line of cases is Walters v. Commons1 and its progeny. 1.5 acres and be one-quarter of the entire section as surveyed by him.4 The trial court ruled in favor of the defendant stating, in essence, that the corners as set by the GLO surveyors could not be moved. The trial court justified its decision on the fact that plaintiff still received the acreage called for on the plat by utilizing the half-mile post. The Alabama Supreme Court overruled the trial court. Quoting the Act of February 11, 1805, the Supreme Court noted that the quarter corners were to be set “as nearly as possible, equidistant from two corners which stand on the same line.” Since the corner in question had not been set in this manner, the court stated, “It is the opinion of the Court that this error can be corrected.”5 And it was so. The So-Called “Alabama Rule” In Walters, the owner of the southeast quarter of Section 8, Township 18 North, Range 10 East of the St. Stephens Meridian, was suing his next-door neighbor to the west, the owner of the east half of the southwest quarter, in order to move the south quarter corner, as set by the GLO survey, farther west because, ostensibly, it had not been set at a point equidistant between the opposing section corners. A surveyor testified at the trial that a half-mile post2 had been set on the south line of the section, east of the midpoint on that line. The actual post was now missing, but its former location could be established on the ground from the “fore and aft trees.” Utilizing the half-mile post location and running a line north to the center of the section and then east to the section line would result in the plaintiff receiving one-quarter of the 642.8 acres reported on the original GLO plat.3 However, the surveyor also testified that the section was larger than reported, based on his own survey of the section, and that by moving the half-mile post to a point equidistant between the opposing section corners, the plaintiff ’s land would increase by Jeff Lucas is in private practice in Birmingham, Ala. He is president of Lucas & Co. LLC, publisher of “The Lucas Letter,” a legal newsletter for the surveying and engineering community. He can be contacted through www.jnlucaspls.com. For a more in-depth study of the legal principles that affect our everyday practice, subscribe to “The Lucas Letter” at www.jnlucaspls.com/ TheLucasLetter.html. The Alabama Supreme Court had another opportunity to address its decision in Walters a few years later in the case of Nolen v. Palmer.6 This is another case where a half-mile post, still standing, was implicated. It is important to note that in both cases we are talking about original GLO monuments still standing at the section corners and half-mile posts still in place (or their former location ascertainable). The court, noting its previous decision in Walters and the apparent conflict it created with the “act of Congress of 11th February, 1805,” stated as follows: MARCH 2010 | Point of Beginning | www.pobonline.com http://www.jnlucaspls.com http://www.jnlucaspls.com/TheLucasLetter.html http://www.pobonline.com

Table of Contents for the Digital Edition of Point of Beginning - March 2010

Point of Beginning - March 2010
Editor’s Points
Put a Lid on It
Safe Passage
Changing the Channel
‘Capturing’ the Mighty Mo
Traversing the Law
Surveying GIS
Safety Sense
New & Notable
Classified Ads
Fun & Games
Ad Index

Point of Beginning - March 2010