Point of Beginning - April 2010 - (Page 38)
traversingthelaw | BY JEFFERY N. LUCAS, PLS, ESQ.
Retracement in a public domain state.
I promised a couple of months ago that I had a retracement case I’d address in the context of the relevancy of a federal surveying manual, especially as that relevancy has been pinned to Alabama case law.
Given the breadth of the previous discussions, it’s taken this long to get there. That case is First Beat Entertainment v. EEC.1 Unlike many cases dealing with tion was subdivided, or so we should assume unless proven otherwise, as contemplated under the law. The local surveyor is employed as an expert to identify lands which have passed into private ownership. This may be a simple or a most complex problem, depending largely upon the condition of the original monuments as affected principally by the lapse of time since the execution of the original survey. The work usually includes the subdivision of the section into the fractional parts shown upon the approved plat. In this capacity the local surveyor is performing a function contemplated by law.3 Even though the section has been subdivided at least once, there is an irresistible urge on the part of the modern-day surveyor to undertake this task once again. Of course this begs the question: How many times does a section need to be subdivided? Four surveyors showed up in court with at least two different answers to that question. Given that two of the surveyors went both ways on the answer, we could conclude that we had four surveyors and five answers to the question. A special master, surveyor Rick Kinsaul, was appointed by the court to survey and ascertain the line in controversy, which was the south line of the north half of the northeast quarter of the section. Kinsaul approached the problem as if the section had already been subdivided at least once, which it had. Kinsaul testified that he determined the location of the south line as follows. He did the field work necessary to physically locate the southwest corner of the northwest quarter of the northeast quarter of Section 26, which is the western terminus of the south line. The location of that corner had been marked previously with an iron pipe. He also did the field work necessary to physically locate the southeast corner of the northeast quarter of the northeast quarter of Section 26, which is the eastern terminus of the south line. That corner had also been marked previously with an iron pipe. He used the location of those two
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 retracement of the GLO surveys—and the subsequent subdivision of the sections—that give canned recitations of the law without giving any of the details related to the surveying, this case gives a relatively detailed account. It is not as detailed as a case like Dykes v. Arnold,2 but it’s detailed enough to allow us to understand what happened from a land surveying standpoint and how the law relates. In addition, unlike many of the commonly cited ancient cases that, over time, have become irrelevant due to all of the doctrines of the law that make all ancient controversies irrelevant, this case is new and relevant.
The Surveys and the Surveyors
First Beat presents a classic PLSS surveying controversy. The townships and sections were set and established by the GLO many years ago, and widespread obliteration has taken place. Over the years, the sec-
APRIL 2010 | Point of Beginning | www.pobonline.com
Table of Contents for the Digital Edition of Point of Beginning - April 2010
Point of Beginning - April 2010
A Grand Re-Entrance
A Model Community
Tough Work in a Tight Spot
Show Me the Data
BIM in a Box
Traversing the Law
New & Notable
Point of Beginning - April 2010