SUR 460 Advanced Boundary Analysis
SUR 460 Advanced Boundary Analysis
Hwk 4 Barnett Case
One frequently hears of the legal phrases: “Preponderance of Evidence”
and “Beyond a Reasonable Doubt.” The famous football running back,
O.J. Simpson, was acquitted of the criminal charges of murdering his
wife, but convicted of the civil charges and now owes a great deal of
money to his in-laws. The prosecution in the criminal case had to
present evidence that proved O.J.’s guilt to the standard of “Beyond a
Reasonable Doubt.” In the civil case the standard of proof was much
lower, being the “Preponderance of Evidence.”
The Supreme Court of Idaho, in its famous Barnett Case, examined the
standard of proof required to prove up a government corner.
It is recommended that you begin with Section 14.08 “When No Original
Corner Monument Can be Proven” in your textbook pages XXXXXXXXXX.
Then read the Court of Appeals Ruling in the Barnett Case below
entitled, Barnet Case_Court of Appeals of Idaho. Then finish your study
with the Supreme Court of Idaho Case below entitled, Barnet
Case_Supreme Court of Idaho. Then write an essay addressing the
following questions:
a) Summarize Surveyor Cuddy’s basis for accepting the critical
corner(s) as lost.
) Summarize Surveyor Burcham’s basis for accepting the critical
corner(s) as obliterated instead of lost.
c) What is the standard of proof required to prove up a
government corner in Chapter Five of the 1973 Manual and the Pamphlet
entitled, “Restoration of Lost or Obliterated Corners and Subdivision of
Sections?
d) What is the standard of proof in proving up a government
corner in Idaho based on the ruling of the Supreme Court of Idaho in the
Barnett Case.
e) What potential significance does this case have for surveyors
licensed under state statute performing the retracement of parcels in
private ownership whose boundaries were established by the PLSS.
f) What is your opinion? As in Rivers and Lozeau, the Barnetts
live along a government boundary. Did Idaho bend the rules to
accommodate the Barnetts or do the standards of proof need to be
elaxed in this era of increasingly deteriorated evidence of the original
surveys.
STATE EX REL. EVANS v. BA | 757 P.2d XXXXXXXXXX) | 7p2d2181970 |
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STATE EX REL. EVANS v. BARNETT
No. 16739.
View Case Cited Cases Citing Case
757 P.2d XXXXXXXXXX)
114 Idaho 355
STATE of Idaho, ex rel., John V. EVANS, Governor; Pete Cena
usa, Secretary of State; Jim Jones, Attorney General; Joe R. Williams, State Auditor; and
Je
y L. Evans, Superintendent of Public Instruction, as the State Board of Land Commissioners; and Stanley F. Hamilton, Director, Department of
Lands, Plaintiffs-Appellants, v. Albert E. BARNETT, and Virginia L. Barnett, husband and wife, Defendants-Respondents.
Court of Appeals of Idaho.
May 17, 1988.
Petition for Review Granted September 7, 1988.
Attorney(s) appearing for the Case
Jim Jones, Atty. Gen., Rinda Ray Just, Deputy Atty. Gen., Boise, for plaintiffs-appellants.
Robert E. Kinney, Orofino, for defendants-respondents.
SWANSTROM, Judge.
The State of Idaho
ought this civil action alleging that Albert and Virginia Barnett were trespassing upon state land near the village of Weippe in
Clearwater County. The dispute turns on the location of the section line forming the legal boundary between the land owned by the state in one section
and the Barnetts' unsurveyed tract in another section. The Barnetts counterclaimed asking the court to hold that the section line followed the line of an
old fence. The district court held for the Barnetts and the state appeals.
The determinative question is whether the district court e
ed as a matter of law in rejecting the state's proof that a section corner was a "lost" corner,
as described by the state's surveyor, in favor of the Barnetts' proof that it was an "obliterated" corner. For reasons which follow, we reverse.
The Barnetts own a piece of land adjacent to and south of land owned by the state. When the Barnetts purchased their property in 1966 there was a fence
which they believed marked their northern boundary. No survey was conducted then to determine if the fence was on the boundary. The Barnetts
improved the land with a driveway, an outbuilding, and a well, all located near the fence. At some later time the state became concerned that the fence
might not be on the southern boundary of its land. To determine the true boundary location, the state hired Charles Cuddy, an independent surveyor
with years of experience in the area. Cuddy conducted a survey and determined the true boundary of the state's land was several feet to the south of the
fence. If the boundary line as determined by this survey is co
ect, some of the driveway and outbuilding, and all of the well installed by the Barnetts, are
on state land.
The Barnetts and their neighbors requested that a different surveyor review the Cuddy survey to determine its accuracy. They employed James Burcham,
an experienced surveyor from another part of the state to review the survey. The state agreed to this and even paid part of the expense. Burcham, who
made no survey of his own, initially was concerned with the method used by Cuddy. After an investigation on the site, Burcham decided that Cuddy's
survey was in e
or and that the fence did mark the co
ect southern boundary to the state's land. He reached this conclusion because Cuddy had treated
a crucial section corner as "lost" whereas, in Burcham's opinion, it was "obliterated." These are terms of art familiar to surveyors. We discuss them
later. Here, we simply note if the corner was a "lost" corner, then Cuddy co
ectly restored the corner by proportionate measurements and his survey
supports the state's claim of trespass. If, on the other hand, the corner was "obliterated" but not "lost," the corner lies in the fence line as contended by
the Barnetts. All attempts to resolve the dispute failed and this litigation followed, leading to a trial without a jury.
Following trial, the district court issued a short written opinion holding that the state had not met its "burden of proving that the fence line is not on the
property line and that the monuments were lost and not obliterated." The court subsequently signed findings of fact, conclusions of law and a
[757 P.2d 220]
judgment, all prepared by the Barnetts' counsel. This appeal followed.
The validity of surveys conducted to determine legal boundaries and the admission into evidence of the results of such surveys are governed by statute in
Idaho. Idaho Code § XXXXXXXXXXprovides:
Surveys must conform to United States manual. — No surveys or resurveys hereafter made shall be considered legal evidence in any court within
the state, except such surveys as are made in accordance with the United States manual of surveying instructions, the circular on restoration of lost
or obliterated corners and subdivisions of sections, issued by the general land office, or by the authority of the United States, the state of Idaho, or
y mutual consent of the parties.
The parties are in agreement that the Bureau of Land Management, U.S. Department of Interior, Manual of Instructions for the Survey of the Public
Lands of the United States XXXXXXXXXXhereinafter BLM Manual) and a BLM circular entitled "Restoration of Lost or Obliterated Corners & Subdivisions of
Sections, A Guide for Surveyors" XXXXXXXXXXare applicable to the Cuddy survey made in 1977. Both parties place differing reliance upon and interpretation of
the following sections of the BLM Manual:
5-9. An obliterated corner is one at whose point there are no remaining traces of the monument or its accessories, but whose location has been
perpetuated, or the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested landowners, competent
surveyors, or other qualified local authorities, or witnesses, or by some acceptable record evidence.
A position that depends upon the use of collateral evidence can be accepted only as duly supported, generally through proper relation to known
corners, and agreement with the field notes regarding distances to natural objects, stream crossings, line trees, and off-line tree blazes, etc., or
unquestionable testimony.
....
5-20. A lost corner is a point of a survey whose position cannot be determined, beyond reasonable doubt, either from traces of the original marks or
from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more
interdependent corners.
5-21. The rules for the restoration of lost corners should not be applied until all original and collateral evidence has been developed. When these
means have been exhausted, the surveyor will turn to proportionate measurement, which harmonizes surveying practice with legal and equitable
considerations. This plan of relocating a lost corner is always employed unless outweighed by conclusive evidence of the original survey.
These sections must be read together to determine whether, in the absence of the monument and its accessories placed by the original government
surveyor, a later surveyor seeking to locate the corner should treat the corner as obliterated or lost.
First, we note that before some point can be accepted as the location of a corner once set and since obliterated, either the location must have been
"perpetuated," or there must be some acceptable evidence establishing beyond reasonable doubt that the chosen spot is in fact the site of the original
corner. BLM Manual § 5-9. It is clear that here the corner has not been "perpetuated." The process of perpetuating a corner is prescribed by statutes,
designated as the Corner Perpetuation and Filing Act, I.C. §§ XXXXXXXXXXto XXXXXXXXXX.
As the second paragraph in § 5-9 of the BLM Manual suggests, the chosen point will be acceptable only if supported by showing that it properly relates
to the original surveyor's field notes, references to physical features and known corners, or unquestionable testimony. See also Pointner v. Johnson, 107
Idaho 1014, 695 P.2d XXXXXXXXXX).
[757 P.2d 221]
Finally, any corner or point of a survey whose position cannot be determined, beyond reasonable