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Bona Fide Rights

Discussion in 'General Land Surveying' started by Keith, Aug 20, 2011.

  1. Keith

    Keith 4-Year Member

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    How about a good survey discussion?

    Read the sections in the 1973 Manual on Bona Fide Rights, starting at 6-12 and especially pay attention to the quote from the 1909 statute.

    Then get down to sec. 6-15: Is this the section that some rely on to subdivide the section by Chapter 3 methods only and justifies the rejection of previously established sec. subs. monuments that are not set on the exact center lines in conformance with the exact procedures in Chapter 3?

    As in, there are aliquot part corners at the exact Chapter 3 methods and any other previously established corners are simply "property corners", thus justifying the rationale of two corner monuments supposedly representing one corner.

    Keith
     
  2. Richard Schaut

    Richard Schaut 4-Year Member

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    The function of a land description is to enable future surveyors to follow in the footsteps of the original surveyor and also enable future surveyor's to replace missing monumentation with some reasonable or acceptable level of accuracy.

    The only reason Dykes and Arnold were in court is because the 'NE cor of the SW 1/4' was not at the intersection of straight lines connecting opposite 1/4 corners.

    Bona Fide rights are rights established by unchallenged occupation and control of a parcel of land for a reasonable or statutorily defined time period.

    Richard Schaut
     
  3. Doug Jacobson

    Doug Jacobson 4-Year Member

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    >>
    > Bona Fide rights are rights established by unchallenged occupation and control of a parcel of land for a reasonable or statutorily defined time period.

    From the 2009 Manual Sections 5-24 and 25
    "....The Act of March3, 1909...reads in part "That no such resurvey or retracemet shall beexecuted so as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement."
    5-25 Bona fode rights are those aquired in good faith under the law. A resurvey can affect bona fide rights only in the matter of locationon the earths surface. The surveyor will be concerned only with the question of whether the lands covered by such rights have been actually located in good faith. Other questions of good faith (such as priority of occupation, possesion, continuous reidence, value of improvements and cultivation, or mistaken belief as to the location of alienated land) do not affect the problem of resurvey except as they help to define position of the original survey or provide evidence of a Federal interest boundary incosistent with patent or deed descriptions"

    Section 5-26 says in part "The question for the surveyor in such cases is whether the claimant made a good faith effort to locate the claimed land on the ground, based on the best available evidence of the survey under which the claim was allowed. Arbitrary location (with no reliance on at least one Federal monument) cannot qualify as having established bona fide rights as to location."

    This of course applies to Cadastral Surveys performed to locate public lands. In cases where all of the lands have been alienated various state laws would appply.
    There is also some discussion of the difference betwenn bna fide rights vs. bona fide belief and the acceptance of locally established corners and corners of minimum control (such as 1/16th corners) that are do not fall exactly on line.

    Please excuse any spelling errors etc.
    DJJ
     
  4. Dane Ince

    Dane Ince 4-Year Member

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    general YAWN

    The manual is a set of GENERAL RULES and does not cover every single conceivable factset. A primary audience for the manual is surveyor engaged in the conduct of federal authority surveys. In certain circumstances, the manual is irrelevant to the conduct of surveys executed under state authority.

    Like it or not, sometimes there ARE 2 SETS MONUMNETS. At least according the current edition of the manual, there can be what they call senior-senior monuments that mark corners where an overlap or hiatus EXISTS.

    COMPLETION SURVEYS have been known to leave behind double corners as well as double center 1/4 section corners.
     
  5. Keith

    Keith 4-Year Member

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    Dane

    I forget, but what does the State of California have to say about the Manual?

    You should know that in the case of overlaps/gaps which were unintentionally created by the GLO, that there will be double set of corners and also in the scenario of completion surveys, there may well be double center 1/4 corners and they both are official.

    Keith
     
  6. Keith

    Keith 4-Year Member

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    This isn't a trick question; just a possible good discussion.

    Keith
     
  7. Dane Ince

    Dane Ince 4-Year Member

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    Ca. and manual issues

    Ca. does not have a statutory scheme like other states with respect to the use of the manual. Licensed land surveyors are only required to be familiar with manual. There ia AG opinion and case law on the use of the manual. Some of the case law is in direct opposition to federal rules. (Woods v Mandrilla).
     
  8. RADAR

    RADAR 5-Year Member

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    Ca. and manual issues

    > Ca. does not have a statutory scheme like other states with respect to the use of the manual. Licensed land surveyors are only required to be familiar with manual. There ia AG opinion and case law on the use of the manual. Some of the case law is in direct opposition to federal rules. (Woods v Mandrilla).

    Well Dane......

    > This isn't a trick question; just a possible good discussion.

    Keith



    Maybe you should wait, and see who chimes in.....
     
  9. Doug Jacobson

    Doug Jacobson 4-Year Member

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    Ca. and manual issues

    If you are surveying against federal interest property you would do well to pay close attention to the manual. Contrary to what some may believe, long held occupation does not run against the Govt.
    There's also a recent IBLA case that threw out a locally recognized corner that could not be related to the original corner resulting in the land owner losing some of what he thought was his property.
    DJJ
     
  10. Keith

    Keith 4-Year Member

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    Ca. and manual issues

    Doug,

    I would be very interested in the IBLA case that you mention!

    Keith
     
  11. Doug Jacobson

    Doug Jacobson 4-Year Member

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    Ca. and manual issues

    http://www.cfeds.org/crt/ibla/Hillstrom_180_IBLA_388.pdf
    Hopefully that will work?
    DJJ
     
  12. MightyMoe

    MightyMoe 4-Year Member

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    Ca. and manual issues

    If you are surveying against federal interest property you would do well to pay close attention to the manual.

    And it might not be obvious that the land has Federal Interest. Going to the courthouse may not tell you. The MT and OG plats can be invaluable-at least in the western states.
     
  13. Keith

    Keith 4-Year Member

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    Ca. and manual issues

    Thank you. Downloaded and printed.

    Keith
     
  14. MightyMoe

    MightyMoe 4-Year Member

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    Thanks Doug

    That's my introduction to the phrase "bona fide belief".
     
  15. Keith

    Keith 4-Year Member

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    Bona FideBelief is a new one to me?

    Guess I will have to read the case?
     
  16. NorthernSurveyor

    NorthernSurveyor 5-Year Member

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    Bona FideBelief is a new one to me?

    The recent IBLA decision in Hillstrom is right on point.

    Also, this is well covered in the 2009 Manual, although it was release prior to Hillstrom. Chapter V, covers Bona Fide Rights of Claimants in Sections 5-24 through 5-28. Section 5-25 is clear that the bona fide rights as to location are different than claimants or successor in title's mistaken beliefs that they have some bona fide right. Section 5-26, second paragraph, last sentence: "Arbitrary location (with no reliance on at least one Federal monument) cannot qualify as having established a bona fide right as to location." There are a lot of mistaken beliefs out there that something less than relying on some evidence of the original Federal survey somehow creates a bona fide right.

    BLM has been making this distinction known in the 2009 Manual presentations being performed around the country. You can get copies of those presentations at:
    BLM Presentations

    Each of the presentations cover different specifics. I know the Alaska presentation from February 2011 covers this distinction between bona fide right and bona fide mistaken belief on slide 74.

    Use your 2009 Manual, lots of good stuff in there that has been expanded on since the 1973 version.
     
  17. Dane Ince

    Dane Ince 4-Year Member

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    Where Applicable.

    My comments had to do with surveying under state authority exclusively. Surveying FEDERAL INTEREST LANDS is entirely a different matter, than surveying private lands.
    Where one of the adjoiners is the FEDERAL GOVERNMENT, a surveyor can be assured that they will want their boundary surveyed according to FEDERAL RULES, where applicable.
    GENERALLY ANY OF MY COMMENTS, ought to be read with an implied WHERE APPLICABLE.
     
  18. Jered McGrath PLS

    Jered McGrath PLS 4-Year Member

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    Bona FideBelief is a new one to me?

    > The recent IBLA decision in Hillstrom is right on point.
    >
    > "Arbitrary location (with no reliance on at least one Federal monument) cannot qualify as having established a bona fide right as to location." There are a lot of mistaken beliefs out there that something less than relying on some evidence of the original Federal survey somehow creates a bona fide right.

    I remember reading the Hillstrom case right after it was published and thinking that it was pretty much verbatim on how the Fed HAS to deal with Fed Interest lands. Seems that if the Fed had no interest there a private court may hold the private and county survey records that the Fed did not hold. Great case to read.
     
  19. NorthernSurveyor

    NorthernSurveyor 5-Year Member

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    Another IBLA case cite 174IBLA239

    Another cite on point: Tracy v. Rylee, 174 IBLA 239 (2008)

    You can find it under 174IBLA239 here:

    IBLA 2008 Index
     
  20. Mark Mayer

    Mark Mayer 5-Year Member

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    Bona FideBelief sounds like "Pure Mistake"

    In Oregon law if one occupies the land of another due to a "pure mistake", that is, the innocent yet mistaken belief that the land is in fact his, then the element of hostility needed to prove an adverse possession claim is satisfied. If, on the other hand, the occupation is made with "conscious doubt" as to whether the land is his or not, then hostily is disproven, and the claim fails. So the occupiers beliefs have an effect on his bona fide rights in Oregon.

    In Washington State the court does not inquire into the state of mind of the occupier. So whatever belief the occupier had, bona fide or otherwise, has no bearing on his bona fide rights.
     

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