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Home arrow Archives   The American Surveyor     

Testimony or Trickery Print E-mail
Written by Jerry Penry, LS   
Thursday, 31 August 2006

A 1.467Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Restoring a lost or obliterated section or quarter corner to its former location by testimony is less common today than it was in the decades after the public land surveys were first completed. A surveyor can, upon sworn testimony from a reliable witness, reestablish a corner where it once stood in the most probable location. But certain factors had to be satisfied before a surveyor would reset a corner solely upon testimony of an eyewitness. The expertise and reasoning of the surveyor factored in, along with what he was being told by the witness.

Although the public lands in eastern Nebraska were surveyed during the late 1850s, widespread settlement did not occur for fifteen to twenty years in certain areas. Homesteaders were eagerly selecting 160-acre tracts in the early 1870's and getting their land patents by the end of that decade after meeting the necessary requirements. Some government-owned land was still available even in the 1880s. To earn their livelihood, homesteaders immediately began breaking the ground up to the stone markers that had been planted in the prairie sod by the General Land Office (GLO) surveyors. Because much of the area being homesteaded was remote, the positions of these stones were often at the mercy of those who lived closest to them. Subsequent surveys to the original government surveys that would solidify the monument positions by a second and confirming measurement, would sometimes not be made until years after the government surveyors had placed the original monuments.

Lancaster County, in which the capital city of Lincoln is situated, was very fortunate to have a pair of surveyors named James P. Walton and Adna Dobson during those early years of settlement. Walton, the son of a Presbyterian minister, began surveying at age 21 in Ohio in 1868 and then moved to Lincoln, Nebraska, two years later in 1870. Dobson, who was 10 years younger than Walton, moved from Wisconsin to Nebraska with his parents at age 13 in the same year. Before Walton and Dobson united as a team, Walton had previously been deputy surveyor under County Surveyor Thomas I. Atwood. Dobson was most likely employed as a chainman with them during his high-school years. In 1876 Walton became the county surveyor, and Dobson became his deputy and performed most of the actual fieldwork.

Prior to their arrival, Lancaster County had seen at least six previous county surveyors from 1863 to 1876, but none of these men served more than a couple years before moving on. Sometimes it was merely a formality to have someone fill the county surveyor vacancy. Virtually no records exist from these early county surveyors who either never recorded permanent notes or took them with them when leaving the position. Atwood recorded some notes, but he was only the county surveyor for two years. With the arrival of Walton and Dobson, all recorded survey notes and records began to be placed into permanently bound books.

Dobson was well ahead of his time, since he meticulously recorded every detail of his surveys. His notes are often long and filled with information about what he set and whom he had talked with in the area where he was working. Dobson's meticulous work is revealed in his notes; many of the corners found lying loose upon the ground could not be used until the positions were thoroughly verified. Often he would find the hole where the stone had been removed, or find broken pieces still left in the ground which helped to verify the correct location.

Reestablishment of corners by the testimony of named landowner witnesses is also common in his notes. He would often test the testimony positions by first measuring and then comparing to the government notes before solely taking someone's word regarding a corner position. Sometimes many miles were surveyed just to confirm the position, instead of just accepting it where it was said to have been found. Many times visible evidence such as hedge rows would substantiate the landowner claims. It became very apparent in Dobson's notes that original corners were being moved by early landowners. They knew that the original government corners must be held where found in their original positions, so if no one else had previously seen their original location it would be hard to disprove. Dobson would often note that the markings on stones were not correctly positioned as they should be, and upon further detective work someone would reveal that they had reset the corner themselves where they thought it had once stood. The surveyor's role is to determine the original corner location while first disregarding where it was presently found. To safeguard against future problems, Dobson began placing another stone under the original or burying pieces of another type of stone or crockery under the surface stone that landowners would not be aware existed.

The majority of Dobson's lost corner cases were resolved through found evidence or by confirming with measurements to collaborate the landowner's testimony describing where they had previously seen the markers. He met his ultimate match in June 1885 when several landowners disputed the location of an existing quarter corner while he was surveying a section line for future road grading.

The corner in question was in a remote and treeless area along the northern tier of the county about seventeen miles northwest from Lincoln. The position for this corner, the N ¼ Corner of Section 9, T12N, R6E, was first established by U.S. Deputy Surveyor John B. Gridley in November 1857. Gridley's work on the ground has generally fit what he recorded in his notes, so no real evidence exists that he had ever short-cut his work by not first running the east-west random lines in the areas that he had surveyed.

Seeing Dobson at work on the section line, the landowners to the north in Section 4 approached him and made statements to the effect that the original stone had been moved nine years earlier by County Surveyor Atwood in September 1874. Dobson found the stone at the approximate midpoint and on line between the NE and NW corners of Section 9 just where it should be. The landowners claimed it should be relocated approximately 133' to the south where they claimed the original corner once stood. Dobson then recorded the following statements he had obtained from the landowners:

L. P. Lundgreen says he was with T. I. Atwood when he surveyed Sec. 4, Town 12, Range 6 E. and that he saw the stone at the S ¼ Corner of Sec. 4 taken up and moved north to where it now stands and that before the stone was moved it stood at the corner of the breaking running north and north west from it and that the stone stood solidly in the ground before Atwood moved it and that Atwood told him that he had authority to move ¼ Sec. Corners but could not move the section corners.

Chas. Lindholm says he did the first breaking to the S ¼ Corner of Sec. 4 T. 12, R 6 E, and that he broke the lines to the stone and that afterward he helped T. I. Atwood survey Section 4 and that under Atwood's orders he helped dig up the stone and move it to where it now stands and that the stone stood solidly in the ground before it was moved by Atwood.

E. Horning says he saw the stone standing a short time before Atwood surveyed Section 4 and that it stood at the corner of the breaking running north and northwest and that when Atwood did the surveying the stone was moved and set where it now stands.

Lundgreen owned the north half of the SW Quarter of Section 4. Lindholm owned the south half of the SW Quarter, and Horning was the son of the owner of the south half of the SE quarter. Lundgreen received his land patent in January of 1876, while Lindholm received his patent in August of 1876. To fulfill the requirements of 5-year occupancy both had probably arrived around 1871 and about half way through this time the area landowners had hired Atwood to survey their land in 1874. The actual application stated C. J. Brown, the owner of the south half of the NW Quarter of Section 4 had ordered the survey, although it was not uncommon for adjoining landowners to all contribute to paying for the survey. The Hornings did not receive their patent until April of 1882, but are listed on Atwood's plat as occupying the south half of the SE Quarter.

By 1885 County Surveyor Atwood had long since moved out of the area, so he could not be consulted as to why he felt the original stone should be moved. All three landowners in Section 4 stood to gain additional land by having the quarter corner moved back south. No objection was made from the owner of Section 9 because it was still at that time owned by the Burlington & Missouri River Railroad. The railroad had acquired the land as part of an 1871 government land grant giving them title to every odd section of the township. The railroad was likely not even aware of the situation presented to Dobson.

Since Walton, who had worked under Atwood, had trained Dobson, it is highly unlikely that Atwood would have moved the corner without good reason. Atwood's actual fieldnotes are no longer available and all that remains is his drawing of Section 4, so maybe he had uncovered evidence where the corner had originally been placed. Dobson's measurements indicated the corner was where both original GLO surveyor Deputy Surveyor Gridley and later County Surveyor Atwood said it should be located. However, he found himself at the mercy of the testimony of the three different landowners who wanted the corner moved. On one hand Dobson was bound by the rule of accepting the government corners where they were located whether they were in the right location or not, but on the other hand he would have to be disregarding the work of a previous county surveyor. Apparently the landowners knew the former rule since they felt the stone should be moved back to where they claimed it had originally stood.

Dobson was faced with making a decision that would either agree with the previous decision made by Atwood or face the implications of not moving the corner based upon testimony provided by the three landowners. There was not an easy answer, so he submitted the testimonies of the landowners to the Board of County Commissioners. In all of Dobson's time as Lancaster County Surveyor, this is the only instance recorded where he consulted the commissioners regarding a section corner location. Upon reviewing the situation, the commissioners instructed Dobson to set a stone at the corner of the breaking where the landowners claimed the stone was taken up by Atwood. He was also instructed to set stakes on line from this corner to the SW Corner of Section 4 for the centerline of the road. Dobson probably felt uneasy about the outcome since it actually created a bend in the section line and went against a decision previously made by the former county surveyor. He left the stone set by Atwood where it was found, and referenced it in his notes as being 133.3' to the north of the new stone he was ordered to set.

The decision that was made based upon the testimony of the landowners has forever sealed the position of this corner, and today the road bends at this location. Did one of the original landowners purposely move the government stone prior to Atwood arriving to survey their property in 1874? Would they have been as concerned about the corner location if they had stood to lose instead of gain ground? These are questions that the surveyor has to weigh and consider when determining the placement of corners by testimony. Unfortunately sometimes there are no easy answers nor is the outcome necessarily a good one when it solely rests upon the truthful testimony of a party directly involved.

Jerry Penry is employed by Lancaster County Engineering in Lincoln, Nebraska. He has been a licensed surveyor since 1994 specializing in section corner monumentation and GPS surveying. He has written numerous articles for TAS.

A 1.467Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE 

 
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