GLO SURVEYS AND THEIR PLATS

Copyright 2022 / James A. Beckwith

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Public lands were not considered surveyed - a requirement for their sale or homesteading - until an official survey had been performed and the Surveyor-General of the General Land Office had certified the survey plat. GLO surveyors submitted their Field Notes to the GLO but the eventual survey plat was drawn by anonymous cartographers who had never seen the lands surveyed. In the event of conflicts between field notes and plat the field notes control. The survey plat should be capable of collateral attack so long as the conflict does not involve the boundaries established by the survey.

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One of the most useful tools in the road researcher’s tool box is the plat of townships, ranges and sections published by the General Land Office (GLO). In the absence of aerial photography these plats provide us a glimpse of the township and range before, and sometimes during, its initial settlement. They show topographic detail (albeit without contour intervals) such as mesas, gulches, watercourses and mountain ridges. When applicable they should the locations and boundaries of patented lands. One can also find the early sites of mines, cabins and corrals; railroad tracks; and, most importantly, the location of land routes, if any, and whether the routes were deemed to be trails or roads. These plats, of course are based upon the Field Notes made by the GLO survey when measuring the land. We presupposed, then, that the GLO surveyor also created the plat as only he was familiar with the topography of the area. As with many aspects of the American West, however, the assumption is dispelled by the actual truth.

Factual Background

A recent case in Delta County, Colorado is used for illustration. The original survey (1891) of Section 6 T13S R92W, 6th P.M. had noted the presence of numerous “trails” within that section.

In 1913, a dependent resurvey of Section 6 was conducted by Mr. A.B. Rich, GLO surveyor. His notes for August 4, 1913, state:

Mr. Rich did not provide any further description of the road he observed, such as length, width or any structure or facility served by that road. He did not state that this “road” crossed the boundary into Section 6 or was wholly within the township to the north. He did not described the visual route or the shape of the road: e.g., a “banana”.

Lands to the north of Section 6 (T12S R92W) were part of the Battlement Mesa Timber Reserve, now known as the Grand Mesa National Forest. A 1912 Delta County Map established that public lands in T12S R92W, 6th P.M. had never been surveyed. BLM.gov also confirms that T12S R92W remains unsurveyed to the present date.

On January 12, 1916, the Surveyor-General GLO, Colorado, certified the 1916 plat as being “…strictly conformable to the field notes of the survey…” of T13S R92W. The 1916 plat did not show any of the original trails noted in the 1891 plat. But it did show a “banana” shaped road reaching into the near-center of Section 6.

The origin of the “Banana Road” is unknown. All homestead entries to Sections 6 and 7 - under the Stock Raising Homestead Act of 1916- were after, not before, the 1916 Plat. On August 2, 1919, Walter S. Maher registered to enter Sec. 6 under the Stock Raising Homestead Act (Pub. Law. 64-290; 38 Stat 862; 43 U.S.C. 291, Et Seq; Repealed October 22, 1976 by the Federal Land Policy & Management Act) On March 25, 1920, Mr. Maher relinquished his claim. On March 16, 1923, Ms. Anna Haines registered to enter Sec. 6 under the Stock Raising Act which claim she also relinquished on November 26, 1925. On December 26, 1924, Ms. Beulah G. Parsons registered to enter the lower 3/4ths ofSec. 6 under the Act and subsequently acquired a U.S. Patent.

On August 2, 1919, Mr. Carlton R. Sherman registered to enter Sec. 7, T13S R92W under the Stock Raising Act, but on June 19, 1924, he relinquished his claim. On January 28,, 1922, Mr. John William Parrett registered to enter another portion of Sec. 7 and also under the Act. On March 2, 1923, Mr. Parrett relinquished his claim. It was not until April 15, 1933, that Mr. Alva White registered to enter Sec. 7 and subsequently acquired a U.S. Patent.

In 2021 the current owners of Sec. 7 filed a lawsuit in the Delta District Court requesting that a road across Sec. 6 was a public highway under R.S. 2477. The basis for this claim was, in part, the existence of the “Banana Road” shown in the 1916 plat of Sec. 6.

Survey Notes vs. Survey Plats

The Land Ordinance of 1785, enacted under the Articles of Confederation. created two separate offices: the Surveyor and the U.S. Geographer. All surveyors acted under the direction of the U.S. Geographer. The Geographer was empowered to adopt such regulations for the surveys and plats as deemed necessary. The two officers had different duties though it appears the surveyor was required to create the plat:

“The lines shall be measured with a chain; shall be plainly marked by chops on the trees, and exactly described on a plat, whereon, shall be noted by the surveyor, at their proper distances all mines, salt springs, salt licks and mill seats that shall come to his knowledge, and all water courses, mountains and other remarkable and permanent things, over or near which such lines shall pass and also the quantity of the land….”.

“As soon as the five ranges of townships, and fractional parts of townships … shall have been surveyed from time to time, the geographer shall transmit plats thereof to the board of treasury, who shall record the same with the report, in well bound books to be kept for the purpose ….”.

In 1878, however, Congress adopted Sec. 2395, U.S. Revised States, separating the duties performed by each of these officers.

“Seventh: Every surveyor shall note in his field-book the true situations of all mines, salt licks, salt springs and mill-seats which come to his knowledge; all water-courses over which the line he runs may pass; and also the quality of the land.

“Eighth: These field books shall be returned to the surveyor-general, who shall cause therefrom a description of the whole lands surveyed to be made out and transmitted to the officer who may superintend the sales. He shall also cause a fair plat to be made of the townships and fractional parts of townships contained in the lands, describe the subdivisions thereof, and the marks of the corners. This plat shall be recorded in books to be kept the purposes; and a copy thereof shall be kept open at the surveyor-general’s office for public information and other copies shall be sent to the places of the sale and to the General Land Office.

In 1925, Congress codified R.S. 2395 as 43 U.S.C. 751. The language of 43 U.S.C. 751 is identical to that quoted above. In U.S. v. Estate of St. Clair 819 F.3d. 1254, 1257 (10th CA, 2016) the court noted that the BLM (formerly the GLO) created the plats from the surveyor’s field notes.

Official Date of Survey

In U.S. v. Morrison 240 U.S. 192, 210 (1916) the Supreme Court held that the field survey was not an official act until the Commissioner of the GLO not only created a survey plat but also approved both the plat and the field survey. Six years later, in Cox v. Hart 260 U.S. 427, 436 (1922) the court was more emphatic.

“Until all conditions as to filing in the proper land office and all requirements as to approval have been complied with, the (public) lands are to be regarded as unsurveyed and not subject to disposal as surveyed lands. (Citations Omitted) It follows that, although the survey may have been physically made, if it be disapproved by the duly authorized administrative officers the land which are the subject of the survey are still be classified as unsurveyed. In other words, to justify the application of the term ‘surveyed’ to a body of public land something is required beyond the completion of the field work and the consequent laying out of the boundaries, and that something is the filing of the plat and the approval of the work of the surveyor.”

The correct date of the official survey, then, is not the date on which the GLO surveyor compiled his Field Notes, shown on the lower left corner of the GLO plat. Instead, the official date is that date on which the U.S. Surveyor-General approved the plat as is shown on the lower right corner of the plat along with the Surveyor-General’s signature. (Morrison, Supra) Notably, a Surveyor’s personal certification of his survey is nowhere to be found on the face of the GLO plat.

Plat-Set Boundaries Not Subject to Collateral Attack

Once the GLO Surveyor-General has certified the plat, the boundaries of townships, ranges, sections, lots and patented lands set in the plat are not subject to collateral attack. Friends of the Black Forest Regional Park, Inc. v. Bd. of Cty. Comms’rs, El Paso 80 P.3d. 871, 880 (Colo. App. 2003) cert denied December 1, 2003; Russell v. Maxwell Land-Grant Co. 158 U.S. 253, 15 S.Ct. 827, 39 L.Ed. 971 (1895); Colorado Fuel Co. v. Maxwell Land Grant Co. 22 Colo. 71, 43 P. 556 (1896); Pueblo of Santa Ana v. Baca 844 F.2d. 708 (10th Cir., 1988); United States v. Doyle 468 F.2d. 633, 636 (10th Cir. 1972)

Land descriptions in U.S. Patents are based either on aliquot dimensions or assigned lots. The descriptions are “…according to the Official Plat of the Survey of the said Land, on filed in the General Land Office….”. This language in a patent has been interpreted as incorporating the GLO plat and the field monuments into the patent itself. Grainger v. United States 197 Ct.Cl. 1018, 1024 (1972) citing De Guyer v. Banning 167 U.S. 723, 743-44 (1897) and Los Angeles v. San Pedro, L.A. & S.L. R. Co. 189 P. 449 (Cal., 1920) Review of governing case law, however, seems to restrict the prohibition against collateral attack to attempts to realign boundaries.

Surveys Control Over Plats

If there is a conflict between the field notes and the survey plat then the field noters and the monuments set in the field survey shall control. T.L. Wright Lumber Co. v. Ripley County 192 S.W. 996, 1000 (Mo. 1917); Neeley v. Maurer 195 P.2d. 628, 629 (Wash. 1948) (The plat is a picture the survey the substance.); Staaf v. Bilder 415 P.2d. 650, 652 (Wash 1966); Morales v. C.A.M.B. 160 P.3d. 373, 375 (Colo. App. 2007) This is because, as noted in Morales (Id.) title to the patented land was taken pursuant to the monuments set in the land. If there is a pre-existing patent, any resurvey of the township may not alter, compromise or disturb the ownership rights of such patentee. United States v. Lane 260 U.S. 662, 665 (1923); U.S. v. Doyle (Supra); Everett v. Lantz 252 .2d. 103, 108 (Colo. 1953) The monuments, not the plat, control. Neeley (Supra) After all, a survey of public lands which includes setting the monuments does not ascertain boundaries but, instead, creates them. Cox v. Hart 260 U.S. 427, 436 (1922)

May Incorrectly Noted Land Routes Be Collaterally Attacked?

It is not clear - and research has not revealed any case law - that the existence of land routes shown in a GLO survey cannot be collaterally attacked after the issuance of the patent. Consider but one example. Eighty years after the patent was issued a landowner or a local government might assert the existence of an RS 2477 public highway claiming it was created while the patented land over which it travels was “in the public domain”. That is, before homestead entry or purchase. The issue in such a case is limited to whether the land route existed prior to patent. Such an issues does not involved the boundaries of the patented land or those of a section, township or range.

The patent itself may not even be helpful to such an inquiry. Although U.S. Patent are made subject to various prior actions of the federal government (e.g., ditches and canals) the reservations listed in a patent to do not include R.S. 2477 rights-of-way under federal statutes or other public highways laid out by local governments under state law. In fact, U.S. Patents are generally silent on any rights or routes of access by which to access the patented land.

Proving the existence (or absence) of a land route prior to patent would thus not have any impact upon ownership of a patented parcel or the boundaries of the section, township or range involved. Both the survey and the plat are simply one of many evidentiary items attempting to establish the condition of the land while in the public domain. Claiming that the plat shows a land route not observed by the surveyor should therefore be an allowable challenge to the accuracy of historic evidence unrelated to the parcel boundaries.

Weight vs. Admissibility of Notes and Plats

It is expected that both the Field Notes and the Certified Plat would be admissible under C.R.E. Rules 803(8) and (14), 901, 902 and 1005 together with their identical counterparts in the Federal Rules of Evidence. Both are public records of government action create and preserved in the regular course of business of the Secretary of Interior pursuant to duties set forth in 43 U.S.C. 751, 752 and other statutes. However, the court must decide what weight to give over the other. Magness v. State By and Through Dept. of Hwys. 844 P.2d. 1304, 1308 (Colo. App. 1992) (It is for the court to determine the weight to be given to any evidence.) The plat illustration is imaginary while the survey observation is literal. The literal observation will prevail as it is personal testimony, as it were, made by one who stood on the ground on the date and time of the survey.

CONCLUSION

Public lands are not open to sale or homestead until they have first been surveyed by the GLO. The GLO survey is not official or complete until, first, the surveyor has performed his field measurements and, second, the Surveyor-General has certified both the field survey and the survey plat drafted by an anonymous cartographer in the Surveyor-General’s office. There will be conflicts between the survey and the plat. The surveyor had “boots on the ground” while the plat draftsman could only imagine the ground. For this reason, then, the survey notes control over the plat when the two are in conflict. Challenging the accuracy of the plat vis a vis the survey notes should be a permissible collateral attack. The challenge does not impact the boundaries of the patented parcel, the section, township or range.

The road research - whether surveyor, title examine or attorney - must not accept the GLO plat without first comparing the plat to the surveyor’s Field Notes. As discussed int his case study, the Field Notes control over the Plat.

James A. Beckwith

James A. Beckwith