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Surveys, Boundaries, and Inclosures

Generally, public lands can be disposed of only according to the legal subdivisions of the public survey.  If the U.S. has not conveyed its land, it is entitled to survey and resurvey what it owns, and to establish and re-establish boundaries.  However, these actions must not affect rights of owners on the other side of the line which already existed in legal theory[i].

It is to be noted that the secretary of interior has authority and is under duty to investigate what public lands must be surveyed, and what public lands must be disposed of by the U.S.  Surveys are received as prima facie evidence of the correctness of the legal presumption that the surveyor has performed his/her duty of which he was charged[ii].

If a survey was made in good faith and remained unchallenged for over 15 years, whatever doubts may exist as to its correctness must be resolved in favor of title as patented[iii].  Similarly, if a land was erroneously excluded from survey by running meander line on a mistaken assumption of the existence of a body of water, then the land department of the U.S. has the power to deal with land so excluded and may cause it to be surveyed, and lawfully dispose of same[iv].

It was observed in Strong v. Sunray DX Oil Co., 448 S.W.2d 728 (Tex. Civ. App. Corpus Christi 1969) that in boundary, excess or vacancy suits that involve old grants and old surveys, where no living witness can testify regarding original conditions and facts, the courts can decide such cases usually as a matter of law rather than fact.

It is to be noted that a survey of public lands is to be taken as part of the patent.  When a boundary is a non-navigable stream, the patentee takes to the thread of the stream[v].  Further, if there is a large departure in a public survey from the proper location for the meander line sufficient to show a gross mistake or fraud, then the meander line changes character and becomes a fixed boundary[vi].

If the lands are patented according to an official plat of survey, showing meander lines along or near the margin of a body of water, then the plat is to be treated as a part of the conveyance and the water itself constitutes the boundary[vii].  However, this rule is not absolute.

It is to be noted that if the government has not made any reservations in its grant, a riparian owner on a lake, without regard to the lake’s navigability, takes title to any unsurveyed islands that fall within the area bounded by lines drawn from the edges of the riparian tract to the center of the lake[viii].

It was observed that a resurvey that purports to change lines or distances or correct inaccuracies and mistakes in an old plat is not competent evidence of the true line fixed by the original plat[ix].  Resurveys for the lawful purpose of determining the lines of an old survey and plat are generally very unreliable as evidence of the true lines[x].  It is to be noted that a private survey will not sever land from the public domain and will not bind the government[xi].

The Unlawful Inclosures of Public Lands Act (UIA) proscribes unlawful enclosures.  Enclosures are unlawful when they deny access to public lands for lawful purposes.

[i] Lane v. Darlington, 249 U.S. 331 (U.S. 1919).

[ii] Cofield v. McClelland, 83 U.S. 331 (U.S. 1873).

[iii] United States v. Hancock, 133 U.S. 193 (U.S. 1890).

[iv] Lee Wilson & Co. v. United States, 245 U.S. 24 (U.S. 1917).

[v] Snake River Ranch v. United States, 542 F.2d 555 (10th Cir. Wyo. 1976).

[vi] Id.

[vii] Louisiana Cent. Lumber Co. v. Stephenson, 13 La. App. 671 (La.App. 1930).

[viii] Wheeler v. United States, 770 F. Supp. 1205 (W.D. Mich. 1991).

[ix] Bishop v. Johnson, 100 So. 2d 817 (Fla. Dist. Ct. App. 1st Dist. 1958).

[x] Racine v. Emerson, 85 Wis. 80 (Wis. 1893).

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