Professional Surveyor Magazine Current Edition

Rules of the Game: The Unmarked Corner

The March, 2008 article in this column dealt with corners (see Vol. 28, No. 3, “What is a Corner—Really?”). It presented definitions of a corner: “defined by the court system as the intersection of two converging lines or surfaces; an angle, whether internal or external; as the ‘corner’ of a building, the four ‘corners’ of a square, the ‘corner’ of two streets. A mere variation in a line does not constitute a ‘corner’ (Christian v. Gernt. et al., Tenn. Ch., 64 S.W. 399 1900).

The lay definition according to Webster’s New Collegiate Dictionary, also sometimes relied on by the courts, has been stated as “the point or place where two converging lines, sides, or edges meet; angle.” It also says, “many equate a marker to a corner, when often it is not. A boundary corner is the point of intersection of two boundary lines; a marker is a physical object either placed or adopted by someone to call attention to the corner. And a marker may or may not occupy the position of the corner.”

Most of the time retracement surveyors and their aids are searching for markers, when at all times we should be searching for corners, along with evidence thereof. Without this mindset, three potential, very real problems occur.

1. When no marker is found, the surveyor assumes there is no corner, so he or she applies the (inappropriate) methods of apportionment or relying on courses and distances.
2. Instead of there being one marker to call attention to the corner, two or more are found. The ready assumption then is that one of them is the correct one, but which one?
3. Or, worse yet, the surveyor concludes that no marker is correct and so sets an additional one, according to the measurements and with the inherent errors in the current survey process, which only adds to the confusion.

In the second instance, three possibilities exist. Either one of the markers is correct, or they are all incorrect. In the third scenario, surveyors are doing each other a grave disservice and demonstrating to the world that we cannot agree with one another on the correct position of a corner. And since we relied on measurements to determine their position for the marker, we may or may not even be close to the actual location of the corner. I know of at least one instance where five surveyors each set their own monumentation all close to one another, but all about 150 feet from the original corner that was later found.

While a few courts have sort of implied that markers are corners (and in some instances they are), markers must have certain characteristics to be classed as monuments. “Objects, to be ranked as monuments, have been required to have certain physical properties such as visibility, permanence, and stability, and definite location, independent of measurements” (11 C.J.S. Boundaries, § 5). According to Black’s Law Dictionary, a monument is “a visible mark or indication left on natural or other objects indicating the lines and boundaries of a survey.” It has also been defined as “some tangible landmark established to indicate a boundary.”

Once again, “The terms ‘corner’ and ‘monument’ are used often largely in the same sense, although a distinction should be noted to clarify the difference. The term ‘corner’ denotes a point determined by the survey process, whereas a ‘monument’ is the physical structure erected for the purpose of marking the corner point upon the earth’s surface” (Bureau of Land Management Manual of Instructions, 1947, § 349).

In the last article I included the case of Arneson v. Spawn (49 N.W. 1066 S.D., 1891), wherein the court said, “If the original corners, as established by the government surveyors, can be found, or the places where they were originally so established can be definitely determined, such location must control, without regard to whether they were located with mathematical correctness or not” (emphasis mine).

In the case of Home Owners’ Loan Corporation v. Dudley et al., (141 P.2d 160 Utah, 1943), the court discussed the fact that the plaintiff attempted to introduce evidence to show that a relocated monument was not in the original location. This court stated: “The original location of a monument controls, and, if it is obliterated, the court is concerned in ascertaining where it was originally located” (emphasis mine). It went on to emphasize the original location, closing with “a survey monument relocated by proper authority is presumed to be placed where the surveyor originally located it, until and unless the contrary is shown by competent evidence.” Too often the latter is true rather than the former.

The case law is clear and consistent. The original corner, marked or unmarked, governs above all. An unmarked corner owes its characteristic to one of two possibilities. Either it was never marked, or it was marked and the marker has since been moved, destroyed, or has deteriorated. Again, the courts are clear. Its position: what was is still what is.

Also in the last article I mentioned the case of Matthews v. Parker (299 P. 354, 163
Wash. 10 1931): “A corner may be a mathematically determinable point, such as where markers were never set although title lines and corners have been established and recognized.” This court stated that “the center of a section is not a physical government monument, but it is a point capable of mathematical ascertainment, ‘thus constituting it, in a legal sense, a monument call of the description.’”

In 1960, in Wallace v. Hirsch (142 Colo. 264), the Colorado court faced a similar situation. The description read: “thence South 63º 05 West 2910 feet, more or less, to the SW corner of the NW ¼ of the SW ¼ of said Section 20.” The distance of 2910 feet will not take the line to the corner; the correct distance to the corner is 3070 feet, thus resulting in a disagreement between the parties as to which controls, the bearing and distance or the unmarked SW corner of the NW ¼ of the SW ¼ of Section 20.

The court stated first the general rule of construction that “courses and distances are the least reliable of all calls, and that a call which designates a point capable of precise and exact location takes precedence over a call for a course and distance if there is a repugnancy between the two.” Second, “hence, the ‘SW corner of the NW ¼ SW ¼ of said Section 20’ describes a point on the earth’s surface which can be located with mathematical certainty. So, under the general rules of construction this call takes precedence over a call for course and distance.”

Early on, in Hartshorn v. Wright (Fed. Case No. 6,169 [Pet. C.C. 64] U.S., 1813), the Federal courts recognized the unmarked corner: A detailed description closed with the wording, “…to a tree on the north side of the creek, and thence up the courses of the creek to a spot from whence a south course will strike the beginning.” The court stated, “this spot, though not marked by any visible object, is susceptible of precise location by aid of the compass, as there could be but one spot on the margin of the creek, whence a due south course would strike the beginning.”

And in the case of what has been called a nonexistent corner, the Colorado court stated, “A corner which has never existed cannot be said to be lost or obliterated and established under the rules relating to the establishment of lost or obliterated corners, but should be established at the place where the original surveyor should have put it” (Lugon v. Crosier, 240 P. 462, 78 Colo. 141 1925). The court elaborated by saying that “if the monument were lost or obliterated there would be some reason to attempt to re-locate it.” However, “when it is a myth, never on the ground, the natural, straight-forward and sensible way is to establish the corner at the place where the original surveyor ought to have put it.”

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Editor's Desk: Sustainability = Opportunity

In this issue, we're trying something a little different. This is the first issue we've ever done with a focus on surveying for sustainability. We thought it appropriate with all the talk of climate change, carbon footprints, green building, and other environmental issues.

Another reason for covering sustainability: It presents opportunities for surveyors. While naysayers claim taking environmental measures will increase taxes and cost us jobs, the opposite is actually true in the long run. Environmental projects like building a solar power array or a green building do have higher upfront costs, but they save energy and money in the long run, and those upfront costs will come down over time as these technologies become more mainstream. The common mantra: What is good for the environment is good for business.

One of our feature stories covers a brownfield reclamation project in which a former military base is converted to homes, commercial space, entertainment facilities and restaurants, open space, and walkways. Another one talks about eradicating a mountain pine beetle infestation with the help of measurements taken of pine tree positions to populate a GIS. They demonstrate opportunities created for surveyors that most of us know about by now.

But one area that holds possibly even more potential for survey work hasn't come to the forefront until recently: carbon sequestration. Memorize that mouthful so you can throw it out at the next cocktail party you attend. Simply put, this involves putting carbon dioxide in places where it won't harm the atmosphere. Carbon dioxide is a greenhouse gas emitted in a number of ways, including the burning of fossil fuels and the conversion of forest to agriculture. Carbon dioxide in the atmosphere has increased in recent decades, causing climate change.

Two things are fueling the movement to carbon sequestration. We'll continue to burn fossil fuels extensively for coming decades until supplies run out and renewable energy such as solar and wind power become more viable on a large scale. And many people see legislation coming from Congress to curb climate change.

Carbon sequestration can take two forms. Land, vegetation, and oceans absorb much of the carbon dioxide emitted from the burning of fossil fuels. We can manage our lands to maximize this. Some say sufficient land is available to mitigate significant amounts of CO2 emissions at relatively low cost. And scientists are researching storing it in geologic venues such as spent oil and gas wells and unmineable coal seams. Either way you go, somebody needs to measure and quantify the resources for doing this. Enter land surveyors, aerial mappers, photogrammetrists, and GIS practitioners.

Research has begun to quantify the ability of vegetative land cover and oceans to absorb and store carbon dioxide. Mapping has been done at 1-km resolution. But scientists want something better, saying land cover data available at a higher spatial resolution could improve estimates of the effects of land-use change. Several projects use moderate-resolution data obtained from Landsat satellites.

Whether it comes through renewable energy or carbon sequestration, new markets await surveyors and other geomatics professionals in the sustainability realm. It all sounds exciting to me.

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Book Review: "Hot, Flat, and Crowded: Why We Need a Green Revolution and How It Can Renew America", by Thomas L. Friedman

Why review a book about energy and the environment in a magazine dedicated to land surveying? There are many reasons. For starters, as the comedian George Burns once said, "I look to the future because that's where I'm going to spend the rest of my life." In this work-a-day world, we are so engaged with slaying today's dragons that we often fail to see the other challenges and opportunities that lie ahead of us. Looking to the future is always a good idea. While trying to predict the future is problematic at best, we can certainly identify trends that may well affect us later.

The relative success of the land surveying industry, like any industry, is tied to larger socio-economic issues. It behooves all of us to understand the bigger picture and to be aware of how these trends will affect us, as an industry and as individual businesses. The two main issues Mr. Friedman covers in this book are the environment and energy, issues that are inextricably intertwined and that affect the future of the land surveying industry.

In short, Hot, Flat, and Crowded addresses the challenges and opportunities that face our nation, which are challenges and opportunities that face land surveyors as well. More importantly, the author proposes that a "Green Revolution" could create a key industry that the United States could capitalize on and that would provide not only a new industry and an engine for economic growth, but world leadership in a post-9/11 world.

This issue of Professional Surveyor Magazine covers sustainability, with many articles on the "How To" topic. Think of this book as the "Why To" angle.

A Brief Overview

Thomas L. Friedman is a four-time Pulitzer Prize winner and the foreign affairs columnist for The New York Times. He is widely read, not just at a popular level, but among policymakers. I'm told that our new President has read this book. The point here is that at least some of his ideas are without question being considered by an administration that has promised to take environment and energy issues seriously.

Let's start with Hot, i.e. climate change. Mr. Friedman points out that the UN's Intergovernmental Panel on Climate Change (IPCC) reports on climate change and other sources to emphasize the crisis of what he calls "Global Weirding."

At this point I should inject a thought. While Mr. Friedman considers the issue of global climate change to be a closed case, I know from discussions with friends of every political stripe that not everyone is as convinced as he is. Just the other day this topic came up in conversation, and a self-described liberal stated that she was not convinced on this issue. Here's the thing: I don't think your stance matters, because the end goal of reducing dependence on fossil fuels, regardless of your stance on climate change, would provide us with two undeniable benefits.

The first is a reduction in pollution, and the second a reduction in our dependence on "petro-dictators" such as Hugo Chavez, Mahmoud Ahmadinejad, Vladimir Putin, and the rulers of various Middle Eastern states. In Hot, Flat, and Crowded Mr. Friedman introduces his "First Law of Petropolitics." He explains his law: "In oil-rich petrolist states, the price of oil and the pace of freedom tend to move in opposite directions." In his view, our oil addiction doesn't just change the climate but also the international system as well by

1. strengthening extremist Islamic states,
2. financing the turnaround of democratic trends in the Middle East, Latin America, and Russia,
3. creating ugly geo-political situations such as China getting in bed with genocidal Sudan for its oil and this nation's blind eye to the oppression of woman and religious freedom within Saudi Arabia, and
4. funding both sides of the war on terror by supporting oil-rich extremist Islamic states.

Next let's look at the last two concepts, Flat and Crowded. In Mr. Friedman's previous best-seller, The World is Flat, he explains how the internet and the telecommunications revolution worked together with globalization to make the world essentially "flat." He carries this theme further in Hot, Flat, and Crowded by showing how the phenomenon of global flattening has vastly expanded the world's middle class and raised many millions out of poverty at a time when Earth's population is exploding, hence the Crowded.

The planet's exploding population and its burgeoning new middle class is using America's energy-intensive lifestyle as their model. This trend will only increase, leading to ever-higher demands for energy and, if we don't find alternatives for fossil fuels, will further exacerbate both climate change and the negative effects of "The First Law of Petropolitics."

Energy Technology Revolution

To combat both climate change and the energy problem, Mr. Friedman proposes an ET (energy technology) revolution to match the IT (information technology) revolution. He further proposes that the United States take the lead in this revolution, not only to solve the world's energy/climate problems, but as a vehicle to reclaim America's leadership in the world. In addition to developing "Fuels from Heaven" i.e. solar and wind, Mr. Friedman proposes the creation of a smart energy grid. I found the discussion of this "smart grid" to be one of the more interesting parts of the book. From an economic standpoint, this Green Revolution could provide land surveying with a great deal of work. Constructing alternative energy sources such as wind farms and solar plants and a new, revitalized energy grid would necessarily require the efforts of land surveying firms on a very large scale.

How would an ET revolution transform our nation and its economy? We'll finish off with an excerpt from an interview of Mr. Friedman on the subject posted on Amazon.com's website. " . . . but I am here to tell you that in a world that's hot, flat and crowded, ET - energy technology - is going to be as big an industry as IT - information technology. Maybe even bigger. And who claims that industry - whose country and whose companies dominate that industry - I think is going to enjoy more national security, more economic security, more economic growth, a healthier population, and greater global respect, for that matter, as well."

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Feature: New Life for an Old Base

By Steve Hawxhurst and Rob Gehrke

Land surveying and mapping innovation, ingenuity, and experience are proving indispensable components for success in sustainable design as our nation embarks on the most environmentally conscious era in history. Along with this, the ability to solve complex ownership issues, encroachment dilemmas, right-of-way disputes, and retrofit requirements are critical for projects in older urbanized areas.

The Naval Training Center Redevelopment in San Diego, California provides a perfect case study for understanding how surveying and mapping can help achieve success for a sustainable design project. On April 30, 1997, after nearly 75 years of continuous operation, the U.S. Navy officially closed the San Diego Naval Training Center (NTC) military base under the Federal Base Realignment and Closure Act. The City of San Diego Redevelopment Agency became the official Local Redevelopment Authority, and within two years, it began the planning phase for a project known as the Liberty Station Community.

Located on prime waterfront property on the San Diego Bay, the site was replete with many unique opportunities, including the potential to construct the first city waterfront park since the landmark Mission Bay Park project was completed more than 30 years before. A host of other uses were also on the drawing board, including the creation of an art, cultural, and historic district to complement the city's heralded Balboa Park as well as new housing and civic, commercial, education, and resort facilities.

Success of the $850-million NTC Liberty Station project would depend on finding solutions to a complex mix of land surveying, mapping, engineering, environmental, social, economic, technical, and political challenges. The original base infrastructure was constructed in the early 1920s, and the re-use project design criteria called for innovative architecture that would maintain the integrity of the site's historic character and military heritage. The overall design effort had to address safety issues, the ADA (Americans with Disabilities Act), water quality, drainage, sewer systems, water delivery systems, hardscape materials, access issues, and historical preservation.

The project required detailed and innovative surveying and mapping procedures to create the framework for an orderly and complete project database. Detailed topographic surveys were also needed to design the integration of new facilities with the older infrastructure and preserve existing curbs, sidewalks, and drain inlets. Detailed records were required to adaptively re-use 55 historic buildings on the site while bringing them up to current building standards and codes. Solutions for this complex mix of engineering challenges would require file structures and communication systems capable of handling a massive volume of survey and mapping information.

Extensive Surveying Required

RBF Consulting (RBF) was hired as the master engineer for the redevelopment of NTC under a contract with the Corky McMillin Companies. The RBF scope of services included a critical and complicated survey component. Survey and mapping work was needed for the detailed analysis and documentation of 125 existing non-historic buildings. Preparing and processing 10 new subdivision maps required cadastral surveying. Design surveys would support extensive site hydrology and water quality studies. Detailed as-constructed surveys supported the design of both structural and non-structural best management practices to protect water quality in the surrounding bay and harbor. Topographic mapping was requested to support the design of utilities including sewer, water, storm drain, and gas. Cross-section surveys allowed for the re-construction of interior streets and sidewalks.



All demolished materials were to be recycled on site as roadway base for street construction. This requirement created the need for continual topographic surveys and timely data processing to support ongoing materials quantity analysis. The construction of new streets was carefully scheduled to coincide with the stream of recycled base material. Topographic surveys were also performed to support the simultaneous design of residential, educational, commercial, resort, park, promenade, and historic district improvements.

Civil design for the widening of Rosecrans Boulevard, a major artery, became a huge challenge because of an existing jet fuel line and 69kv electrical lines that paralleled the street right-of-way. Rosecrans also has an extremely high volume of traffic that required a total of eight stages of traffic control for the staged widening construction.

At the beginning of the project, the State of California owned Rosecrans, and it was later dedicated to the City of San Diego. This created a host of right-of-way difficulties. Because of its close proximity to the San Diego International Airport, the street had runway strobe lights, noise-monitoring stations, and an FAA middle marker contained within its right-of-way.

Using detailed survey and mapping data, engineers developed an innovative design for supporting existing underground utilities, including the jet fuel and 69kv power transmission lines, while new utilities were constructed beneath them. To support the major fuel line, designers opted to use specially built I-Beams with straps to bear the line in place while trenching below it.

Due to the fact the entire 400-acre project area was extremely flat, surveys were performed in anticipation that sewer and storm drain lines would be constructed with less than one-half percent of fall. Even a slight error in the collection of topographic data would yield a design that would fail. To mitigate this potential problem, RBF surveyors frequently employed electronic digital levels and matching precision rods to achieve the necessary accuracies. These emit visible light rays that read bar codes displayed on the leveling rods, operating much like pricing scanners in the checkout lines of grocery stores. The instrument automatically stores the rod readings, eliminating the chance of human error.

Throughout the course of the decade-long Liberty Station project, survey technology continued to evolve. Much of the project's initial boundary and parcel line retracement field survey work had been performed with conventional total stations. Over the 10-year project window, the preferred type of instrumentation for field surveys shifted to GPS, especially with the increasing availability of survey-grade RTK instruments.

Regardless of the type of instruments used by surveyors, the real challenge at Liberty Station was in the organization and communication of the constant stream of survey information. On the mapping side, the creation of final maps needed for the re-subdivision of the base required intense analysis of complex deeds, senior rights issues, and a maze of dedications.

Interesting Issues Arose

Not surprisingly, some interesting title issues arose. The original grant to the United States specified that the base property was originally conveyed "for use as a naval training center forever." "Forever" is a term seldom used in deeds, but it had to be dealt with in this case because a Federal Base Realignment and Closure committee had determined that the specified need for a training center had passed. This created a conflict concerning land use. After exhaustive research, it was determined there were no living successors to the original grantor to whom the property might revert under the conditions of the original deed. This demonstrated that a purely pragmatic solution could be found to seemingly unsolvable problems by using a creative work-around solution.

Another major element concerned the fact that most of the project lies within the historic tidelands of San Diego Bay. In the California, tidelands are defined as lying between the mean high tide and mean low tide. The area below the mean low tide line and extending three miles seaward is known as submerged lands. Tidelands and submerged lands are vested with regionally diverse and legally complicated land title elements. The City and County of San Diego had originally obtained jurisdiction to the tidelands and submerged lands of San Diego Bay in 1911. Terms of the jurisdiction were tied to making port improvements and performing dredging operations to support the newer and larger steam-powered ships of the time.

William Kettner became the first San Diego representative to Congress in 1912 and secured funding to improve the harbor for Navy vessels. Congressman Kettner convinced the federal government to relocate the Goat Island Training Station in San Francisco to San Diego and even persuaded local businessmen to finance the purchase of the land needed for its operation for the Navy.

As a result, 135 acres of private land was donated, all of which lie above the mean high tide line. This was merged with another 142 acres originally owned by the City of San Diego that consisted of a combination of tidelands and submerged lands. Together, this gave the new Naval Training Center title to 277 acres of land and a mess of legal issues.

Over the years, the training center property was expanded by continually dredging and bulkheading the bay. Eventually, this created submerged or semi-submerged areas in residential areas that had never been designated as tidelands. Complex exchange documents were developed that gave the State of California and the San Diego Unified Port District the right to hold these "new" tidelands in trust for the public. This conveyance was unsuccessfully challenged in the courts, but other legal actions were taken alleging that title companies and developers had failed to disclose the possible effects of historic tidelands on residential areas.

Preliminary and final mapping for Liberty Station included a complex Record of Survey followed by the preparation of a parcel map with a final subdivision of all the base land into eight units. This required a total of more than 120 map sheets. In addition to tabulated easements and dedications, unique certificates were created to grant "Promenade" and "Arcade" easements to the city, creating access rights and use limitations for the site's historic buildings and other unique features.

Drainage a Main Concern

One of the main civil concerns of the entire redevelopment plan was the design of drainage improvements for the historic core and housing areas. Most of NTC site was built on semi-unconsolidated dredged bay deposits. This meant the site would be subject to possible liquefaction during earthquakes. To mitigate this, remediation was required. The drainage basin for the entire site drained into a backbone storm drain system that in turn drained through an outfall into San Diego Bay. Topographic surveys were performed in all areas for drainage and remedial grading design.

The waterfront at NTC will be opened to the public for the first time in over 80 years. The new 46-acre park will provide both active and passive recreational opportunities. Design of the "active use" area includes an aquatic complex, multi-use sport fields, a basketball court, and children's play area. The esplanade will be a landscaped pedestrian, bicycle, and recreational trail incorporated around the waterfront. From a water quality standpoint, the park's design has become a model for the City of San Diego and has various treatment concepts to treat "first flush" water. Residential, education, south, middle, and north promenades as well as Sellers Plaza and Ingram Plaza link to the park. Design of these promenades was integral to the pedestrian circulation throughout NTC.

During the process, the city held hundreds of community meetings, design charrettes, and public workshops where thousands participated. Since the public had not had access to this section of the waterfront since the base opened in 1923, regaining it was a key desire expressed in the meetings. This public process resulted in a comprehensive plan for Liberty Station that emphasized public use, a pedestrian-oriented environment, and a vibrant mix of uses that would replace the jobs lost when the base closed.

When complete, the Liberty Station project should create more than 8,000 permanent jobs and add $2.4 million in annual property tax revenue, including $750 million annually for set-aside for low/moderate income housing. Survey and mapping components of this sustainable technology project proved critical to the project's success. The project serves as a prominent example of the crucial role land surveys play in the success of sustainable design.

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Steve Hawxhurst, PLA is a senior associate with RBF Consulting. He has 27 years of experience in land surveying and mapping in commercial, industrial, public works, residential development, forensic, and ALTA surveys.

A civil engineer with RBF Consulting, Rob Gehrke, PE has 22 years of experience in the management of public works, commercial, residential, industrial, institutional, and military projects.

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