Sweeten v. United States Department of Agriculture Forest Service

684 F.2d 679
CourtCourt of Appeals for the Tenth Circuit
DecidedJuly 27, 1982
DocketNo. 80-1670
StatusPublished
Cited by7 cases

This text of 684 F.2d 679 (Sweeten v. United States Department of Agriculture Forest Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sweeten v. United States Department of Agriculture Forest Service, 684 F.2d 679 (10th Cir. 1982).

Opinions

McKAY, Circuit Judge.

This case involves a boundary line dispute between appellants and the United States Forest Service over a mountainous tract of land in Summit County, Utah. At issue is the proper location of the north-south center line of Section 8, Township 1 South, Range 7 East, Salt Lake Meridian, which divides national forest land and appellants’ land.

The land in question was first surveyed for the United States in 1893 by Mr. Jessen, and was patented to appellants’ predecessors in interest in 1902. The Bureau of Land Management carried out a dependent resurvey1 of Section 8 by Mr. Chappell in 1965, which was accepted by the government as official in 1967. In conducting the resurvey, Mr. Jessen’s original monuments were located for the NE, SE, and NW corners, as well as for the Wl/4 and Sl/4 corners of Section 8. The remaining corners, including the disputed Nl/4 corner, were reestablished by proportionate measure. Mr. Chappell found a marking stone along the north line, which he thought had once marked the Nl/4 corner. He concluded, however, that it had been moved to its present location and was not situated where Mr. Jessen originally had located the Nl/4 corner. Finding no indication of the true location of the Nl/4 corner, he treated the corner as lost and reestablished the Nl/4 point by proportionate measure. Subsequently, in 1974 and 1978, Mr. Manning of the Forest Service surveyed in the north-south center line of Section 8 by running a straight line from the original Sl/4 comer to the reestablished Nl/4 corner, based on the points established in the 1965 resurvey. Once the north-south center line was in place, the Forest Service notified appellants that they were encroaching about 300 feet, for a total of 6.69 acres, on national forest land. Appellants then brought this Quiet Title Act suit against the government pursuant to 28 U.S.C. § 2409a.2

[681]*681Appellants challenge the Forest Service’s actions on two grounds. First, they rely upon the language in 43 U.S.C. § 772, which grants the Secretary of the Interior the power to resurvey or to retrace surveys on public lands, but contains the proviso that: “no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entry-man, or owner of lands affected by such resurvey or retracement.” Appellants claim that the resurvey relied upon by the government violates this proviso because it reduces the total acreage of the land from that described in the original patent. Second, appellants argue that a fence lying approximately 300 feet east of the reestablished north-south center line constitutes the boundary between their land and national forest land under the theory of equitable estoppel, adverse possession, or boundary by acquiescence.

The district court denied appellants’ claim to the disputed land and quieted title in the United States of America. The court’s decision was based on its factual finding that Mr. Chappell’s dependent resurvey correctly reestablished the Nl/4 corner in the position Mr. Jessen placed it in his original survey. This finding was based on evidence that when Mr. Chappell retraced Mr. Jes-sen’s north section line, he achieved a high degree of correlation of calls and bearings to unchanging topographic features. Entries in Mr. Chappell’s field notes describe finding the Nl/4 corner marking stone lying loosely on the ground, and apparently not in its original position. Mr. Chappell treated the marking stone as a spurious monument and then followed the legally sanctioned method of reestablishing the Nl/4 corner by proportionate measure. 43 U.S.C. § 752; see United States v. Doyle, 468 F.2d 633, 638 (10th Cir. 1972). As Mr. Chappell reestablished the Nl/4 corner at the midpoint along a straight line between the original Jessen monuments for the NE and NW corners, the distance from the Nl/4 point to a stream corresponds closely to the distance reported by Mr. Jessen from his original Nl/4 monument to the stream. Record, vol. 2, at 250. The district court also determined that Mr. Manning, of the Forest Service, followed the legally sanctioned procedures in surveying in the north-south center section line by running a straight line between the reestablished Nl/4 corner and the original Jessen Sl/4 corner. 43 U.S.C. § 752.

The actual location of a disputed boundary line is a question of fact. United States v. State Investment Co., 264 U.S. 206, 211, 44 S.Ct. 289, 290, 68 L.Ed. 639 (1924); United States v. Doyle, 468 F.2d 633, 636 (10th Cir. 1972). The district court’s findings of fact will not be disturbed on appeal unless they are clearly erroneous. Fed.R.Civ.P. 52(a). After reviewing the factual findings of the trial court regarding the location of the north-south center line, we conclude that the district court’s findings are not clearly erroneous, and are sufficient to support the court’s acceptance of the resurvey as establishing the correct boundary line between appellants’ land and United States Forest Service land.

The district court also determined that the government resurvey merely retraced and reestablished the original Jessen survey, and therefore that the proviso of 43 U.S.C. § 772 provides no relief to appellants. Appellants argue, however, that the reestablished center section line impairs their rights because it reduces the total amount of land conveyed by the original patent from the United States. That patent described the land conveyed not just in terms of legal subdivisions or references to government land surveys, but also described a certain acreage that the patent purported to convey.3 Essentially, appellants argue [682]*682that the acreage described in the patents should control, rather than the legal description and the reestablished monumentation on the ground. It is well settled, however, that in the case of a conflict between elements of a land description, the least persuasive type of description is that of the acreage conveyed. Clark on Surveying and Boundaries § 308, at 382 (Grimes ed. 1959); C. Brown, Boundary Control and Legal Principles § 4.28, at 142 (2d ed. 1969). The notes, lines and descriptions in an accepted survey are part of the land patent. United States v. Reimann, 504 F.2d 135, 140 (10th Cir. 1974). Using original surveyors’ notes and reports, the subsequent government surveyors retraced and remonumented the original Jessen survey. The court did not err in accepting the resurvey as correct rather than relying on the acreage stated in the patent.4

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684 F.2d 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweeten-v-united-states-department-of-agriculture-forest-service-ca10-1982.