Boy Scouts seek land in process dating to Colonial era

February 01, 2012|By Edward Gunts, The Baltimore Sun

The 19 wooded acres in northern Harford County blend in well with the sprawling Boy Scouts campground that surrounds it.

But on state tax rolls, the tract essentially doesn’t exist. No owner is listed — a rarity in Maryland — and as the Boy Scouts try to add the land to their campground and be declared the official owner, they must grapple with an arcane, Colonial-era convention known as a land patent.

Purchasing property by securing a land patent from the state was the way many people built wealth in the years after the Revolutionary War, but the practice mostly ended after the bulk of land in Maryland was first surveyed and sold off. The Baltimore Area Council of the Boy Scouts of America is using the same method to acquire a parcel that somehow slipped through the cracks.

“It doesn’t happen very often,” Richard Richardson, deputy commissioner of land patents and assistant state archivist for Maryland, said about land patent applications. “I’ve been doing this for 33 years, and we’ve only granted about five of them since I’ve been here.”

The acreage sits amid the Broad Creek Memorial Scout Reservation, a 1,700-acre campground the Boy Scouts have operated for more than 60 years. The land, located off Peach Orchard Road near Whiteford and within feet of a Scout-operated trading post and swimming pool, has no roads or buildings.

The Boy Scouts want to take title to the land and maintain it as part of the campground, which is used by more than 20,000 boys and adults every year. But first they must convince state officials that the property was never granted to anyone else, going back to the days of Cecil Calvert, the second Lord Baltimore, and King Charles I of England. If they succeed in proving their case, they also must pay the state the appraised value for the land and the state’s Board of Public Works has to approve the transaction.

In any given year, state officials say, there is at least one case in which someone claims to have discovered land that was never granted to another party — what the state considers “vacant land.” But few “discoveries” turn out to be valid.

The Scouts say the land in question — one of the largest tracts of “vacant land” brought to the state’s attention — is surrounded by property they own and that they have been taking care of it for years under the assumption that it was theirs.

“The Boy Scouts are just trying to do the right thing,” said Eric Chase, the organization’s director of support services. “We’re trying to complete the puzzle.”

The organization has no plan to alter the natural setting if it becomes legal owner of the land, Chase said

“Our goal is to take kids into the outdoors,” he said. “This is where we teach camping and hiking and backpacking. We want to be out in nature.”

The last time a private entity successfully applied for a land patent was in 2002, when a Carroll County man identified a four-acre tract next to his 10-acre homesite that wasn’t documented on the state’s tax rolls. In 1985, a professional surveyor identified 77 acres in Frederick County that had never been granted to anyone.

Unsuccessful applications have involved a Chesapeake Bay island, which turned out to be man-made, and a sliver of coastline in Calvert County, later determined to belong to owners of adjacent land.

In theory, all 6.7 million acres in Maryland have been patented, but there can still be exceptions, Richardson said.

Two hundred years ago, “surveying was not as precise as it is now,” he said. “Surveyors were out in the woods. There were faulty surveying lines. … As land become more valuable over the years, people started surveying it better and looking after it better.”

State law outlines a process that enables anybody to acquire vacant land.

“They have to prove that from the days of Lord Baltimore in the 1630s to 2012, the land has never been owned by anybody else,” Richardson said. “If they can prove that, that means the land is owned by the state of Maryland, and we can grant it” to another party.

The Boy Scouts applied for a patent last year, and state officials are reviewing the application. That claim is the only one pending in Maryland, Richardson said.

According to Richardson, the review process calls for the applicant to have the land surveyed and demonstrate to the state that the tract has not been granted to any other party. He said the state will attempt to verify whether an applicant’s claim has merit. If no other party is determined to have ownership, the commissioner of land patents will hold a public hearing to determine whether to grant a land patent.

The first party to make an application is the first in line to be considered, Richardson said, and the state is neither required nor permitted to seek competing bids.

Chase said it was something of a fluke that the Boy Scouts discovered that the land is not theirs.

Chase said the Boy Scouts have acquired property for the Broad Creek campground over the past 65 to 70 years through purchases and gifts, and intended to put most of it into a series of land trusts to preserve it in its natural state.

Several years ago, he said, they put about 870 acres in land trusts, including a 60-acre parcel with Harford County and the bulk of the land with the U.S. Forestry Department. Then the Boy Scouts began the process of putting another 800 acres in a trust.

To put land in a trust, he said, a party must demonstrate ownership. After surveying the second 800 acres, he said, the Boy Scouts could not show they had clear title to the 19-acre parcel. In searching land records, they were unable to determine that the property was ever granted to anyone, and that led them to start the process of applying for a land patent, he said.

Richardson said the state published a newspaper notice announcing the Boy Scouts’ application and notified owners of adjacent property. It alerted agencies such as the Department of Natural Resources and the State Highway Administration.

The deadline for anyone else to claim ownership was Jan. 20, and state officials say no one came forward. The next steps include a public hearing, likely to take place in March. If the Commissioner of Land Patents, Edward Papenfuse, determines that the Scouts’ application has merit, the state will have the land appraised and determine a fair market value.

The state has incentive to sell the tract, officials say, because a sale would generate revenue for the state and clarify land records. The first $50,000 of any sale, minus surveying costs and reasonable legal fees, goes to the Maryland State Archives, which Papenfuse also heads. Any amount over that goes to the state’s general fund. Richardson said the state has no idea how much the land might be worth because it has never been assessed.

In every land patent case, he said, buyers must abide by local zoning rules and regulations governing use of the land.

That isn’t a problem for the Boy Scouts because they don’t want to develop the property, Chase said. “We’re not trying to be next to a shopping mall.”

The 19 wooded acres in northern Harford County blend in well with the sprawling Boy Scouts campground that surrounds it.

But on state tax rolls, the tract essentially doesn’t exist. No owner is listed — a rarity in Maryland — and as the Boy Scouts try to add the land to their campground and be declared the official owner, they must grapple with an arcane, Colonial-era convention known as a land patent.

 Purchasing property by securing a land patent from the state was the way many people built wealth in the years after the Revolutionary War, but the practice mostly ended after the bulk of land in Maryland was first surveyed and sold off. The Baltimore Area Council of the Boy Scouts of America is using the same method to acquire a parcel that somehow slipped through the cracks.

“It doesn’t happen very often,” Richard Richardson, deputy commissioner of land patents and assistant state archivist for Maryland, said about land patent applications. “I’ve been doing this for 33 years, and we’ve only granted about five of them since I’ve been here.”

The acreage sits amid the Broad Creek Memorial Scout Reservation, a 1,700-acre campground the Boy Scouts have operated for more than 60 years. The land, located off Peach Orchard Road near Whiteford and within feet of a Scout-operated trading post and swimming pool, has no roads or buildings.

The Boy Scouts want to take title to the land and maintain it as part of the campground, which is used by more than 20,000 boys and adults every year. But first they must convince state officials that the property was never granted to anyone else, going back to the days of Cecil Calvert, the second Lord Baltimore, and King Charles I of England. If they succeed in proving their case, they also must pay the state the appraised value for the land and the state’s Board of Public Works has to approve the transaction.

In any given year, state officials say, there is at least one case in which someone claims to have discovered land that was never granted to another party — what the state considers “vacant land.” But few “discoveries” turn out to be valid.

The Scouts say the land in question — one of the largest tracts of “vacant land” brought to the state’s attention — is surrounded by property they own and that they have been taking care of it for years under the assumption that it was theirs.

“The Boy Scouts are just trying to do the right thing,” said Eric Chase, the organization’s director of support services. “We’re trying to complete the puzzle.”

The organization has no plan to alter the natural setting if it becomes legal owner of the land, Chase said

“Our goal is to take kids into the outdoors,” he said. “This is where we teach camping and hiking and backpacking. We want to be out in nature.”

The last time a private entity successfully applied for a land patent was in 2002, when a Carroll County man identified a four-acre tract next to his 10-acre homesite that wasn’t documented on the state’s tax rolls. In 1985, a professional surveyor identified 77 acres in Frederick County that had never been granted to anyone.

 Unsuccessful applications have involved a Chesapeake Bay island, which turned out to be man-made, and a sliver of coastline in Calvert County, later determined to belong to owners of adjacent land.

In theory, all 6.7 million acres in Maryland have been patented, but there can still be exceptions, Richardson said.

Two hundred years ago, “surveying was not as precise as it is now,” he said. “Surveyors were out in the woods. There were faulty surveying lines. … As land become more valuable over the years, people started surveying it better and looking after it better.”

State law outlines a process that enables anybody to acquire vacant land.

“They have to prove that from the days of Lord Baltimore in the 1630s to 2012, the land has never been owned by anybody else,” Richardson said. “If they can prove that, that means the land is owned by the state of Maryland, and we can grant it” to another party.

The Boy Scouts applied for a patent last year, and state officials are reviewing the application. That claim is the only one pending in Maryland, Richardson said.

According to Richardson, the review process calls for the applicant to have the land surveyed and demonstrate to the state that the tract has not been granted to any other party. He said the state will attempt to verify whether an applicant’s claim has merit. If no other party is determined to have ownership, the commissioner of land patents will hold a public hearing to determine whether to grant a land patent.

The first party to make an application is the first in line to be considered, Richardson said, and the state is neither required nor permitted to seek competing bids.

Chase said it was something of a fluke that the Boy Scouts discovered that the land is not theirs.

ed.gunts@baltsun.com
http://articles.baltimoresun.com/2012-02-01/news/bs-md-ha-scouts-land-20120131_1_vacant-land-boy-scouts-patent

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Temecula Townsite « Old Town Temecula Walking Tours

Temecula Townsite « Old Town Temecula Walking Tours.

 

 The current location of Temecula (now known as Old Town) came about with the establishment of a railroad depot by the California Southern Railroad.  The railroad was founded by a group of Santa Fe Railroad stockholders in 1880.  The line began in National City (San Diego) and eventually would end in Colton where it would meet up with the Southern Pacific line.  The railroad ran north up to Oceanside and then headed east through Temecula Canyon.  It emerged from the mouth of Temecula Canyon (where Temecula and Murrieta Creeks meet) went north along the west bank of Murrieta Creek to Lake Elsinore.  There the line headed east again through the canyon where its namesake road runs through (Railroad Canyon Road) on to Perris and then eventually Colton.

 The construction of the line was completed in August 1882, the same year the Town of Temecula was surveyed by Fred T. Perris.  The official survey map was completed December 4, 1882 but not filed until August 24, 1892 in the San Diego Recorder’s Office.  The timing of the map filing coincided with the formation of Riverside County in 1893 which Temecula is now part of.  The land that the Town of Temecula sets on was owned by Mercedes Pujol, the widow of Domingo Pujol who had purchased the land in 1879.  Besides providing a right-of-way for the railroad, the Pujol family also provided 17 acres for the train depot, 200 acres for the townsite, and 3 acres for the cemetery.  Eventually another 6 acres were donated by Mercedes (2 for a school, 2 for a church, & 2 for a plaza).

A review of the original map of the Town of Temecula shows that each lot was 25 feet wide by 140 feet deep.  The east-west streets were named First through Sixth and Main Street.  The north-south streets were named Mercedes, Front, River and Pujol.  Main and Front Streets were 80 feet wide while all other streets were 60 feet wide.  An interesting aspect is that River Street does not exist today and may never have existed.  In 1884 and 1891 there were large floods that eventually caused the tracks through Temecula Canyon to be destroyed.  When this happened the railroad no longer ran to National City, the line started and stopped in Temecula.  As proof of this the width of the Murrieta Creek on the map is approximatley 115 feet, today the width of the creek at the bridge is 155 feet.

Today Old Town Temecula is a vibrant reminder of the past.  Many of the original buildings exist in the historic district that encompasses the area of Main and Front streets.  It is still a significant stop between San Diego and Los Angeles and remains a wonderful reminder of where the past meets the present.  

 

 

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2011 Orange County California Land Surveyors Association TrigStar Event

Orange, CA – High school students and interested parents from throughout Orange County attended TrigStar, a fun day of activities designed to introduce young people to well-paying careers in land surveying and mapping sciences. The event was held Saturday, March 12, from 9:30 a.m. to 1:00 p.m. at Santiago Canyon College in Orange. Students win cash and prizes in the trigonometry competition and the Land Surveyors Challenge.

TrigStar has attracted hundreds of students from Orange County high schools making it the largest of its kind in California. This year’s prizes include cash awards of $500, $300 and $200 for first, second and third place in the high school trigonometry competition. Winners in the Surveyor’s Challenge will receive gift certificates, and one grand prize will be awarded.

A TrigStar winner is a mathematics student who has demonstrated in competition that they are the most skilled among classmates in the practical applications of trigonometry. The competition for the honor is simply a timed exercise solving trigonometric problems that incorporates the understanding and use of right triangle formulas, the law of sines, and the law of cosines. Nationally, the contest helps to promote professional careers in land surveying and mapping to students in High Schools across the country.

The competition is managed nationally by the National Society of Professional Surveyors and sponsored locally by the Orange County Chapter of the California Land Surveyors Association. The event is facilitated by: Kathy Johnson of Vital Link of Orange County; along with additional sponsors from the Caltrans Foundation the Professional Engineers in California Government; the Port of Long Beach; The Orange County Surveyor’s Office; Johnson-Frank & Associates, Inc.; and RBF, Inc.

CONGRATULATIONS TO OUR ORANGE COUNTY TRIGSTARS!!! This year’s winners are:

Place

Winner School Award Amount

First

Kavan Zommers Trabuco Hills High School $500
Second Uma Rajpurkar Trabuco Hills High School

$300

Third Gabriel Hahr Trabuco Hills High School

$200

Local winners have the opportunity to participate in the National TrigStar competition for scholarship awards.  ALL Orange County participants qualify for scholarships if they choose to major in Survey/Mapping Sciences at Santiago Canyon College, Geospatial Technologies at California Polytechnic University at Pomona, or Geomatics Engineering at California State University at Fresno.

Santiago Canyon College is a public community college, part of Rancho Santiago Community College District. It serves the residents of Anaheim Hills, Orange and Villa Park. The college provides education for academic transfer and careers, courses for personal and professional development, and customized training for business and industry.

I also would like to express a very special thanks to: Juan Vazquez, President of Santiago Canyon College; Steve Kawa, Vice President of Administrative Services; Tricia Evans, Dean of Career Education at Santiago Canyon College; Amy Styffe and Julie Peeken of Career Education at Santiago Canyon College who are the greatest and hardest working office staff any college could have.

And lastly, thanks to the great professionals from Southern California who traveled from Sylmar, Riverside, Los Angeles, and places in between to help proctor this exam.


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Opposition to Federal ‘Wild Lands’ Policy Grows

Tuesday, January 25, 2011

by James Holter, Whowon.com

PICKERINGTON, Ohio — Western states governors have added their voices to the chorus of vocal critics of the new federal “Wild Lands” policy that gives administration officials the power to ban responsible off-highway riding on millions of acres of public land, the American Motorcyclist Association (AMA) reports.
On Dec. 22, 2010, Interior Secretary Ken Salazar signed Secretarial Order 3310 creating a new land-use designation called Wild Lands that essentially allows officials in the federal Bureau of Land Management (BLM) to manage public land as if it had received a “Wilderness” land-use designation from Congress, but without requiring congressional approval.

A Wilderness designation is one of the strictest forms of public land management. Once Congress designates an area as Wilderness, nearly all forms of non-pedestrian recreation are illegal. The AMA supports appropriate Wilderness designations that meet the criteria established by Congress in 1964, but anti-access advocates have been abusing the legislative process to ban responsible off-highway vehicle (OHV) recreation on public land.

In December, the AMA and OHV enthusiasts won an important battle when U.S. Senate Majority Leader Harry Reid (D-Nev.) dropped his effort to pass a massive omnibus public lands bill that would have inappropriately designated millions of acres of public land as Wilderness. With the new “Wild Lands” policy, anti-access advocates are now seeking an end-run around Congress.

Federal lawmakers quickly called the Wild Lands policy a “land grab” and a blatant attempt to usurp congressional authority. Off-highway riders sporting “Stop the Land Grab” stickers produced by the AMA and distributed by the Utah Shared Access Alliance (USA-ALL) turned out in droves for a meeting of Utah’s Governor’s Council on Balanced Resources that featured BLM Director Bob Abbey trying to explain the new policy.

Ed Moreland, AMA senior vice president for government relations, sent a letter to Salazar asking him to explain whether the new Wild Lands land-use designation will block traditional routes of travel for off-highway riding. It can be viewed at http://www.americanmotorcyclist.com/Libraries/Rights_Documents_Federal/Salazar_WildLands_1-11-2011.sflb.ashx.

Governors who have come out against the Wild Lands policy include Wyoming’s Matthew Mead, Idaho’s C.L. “Butch” Otter and Utah’s Gary Herbert.

“This letter is to advise you that I firmly oppose Secretarial Order 3310, which was released just before the Christmas holiday and while many gubernatorial offices, like mine, were in a state of transition,” Mead wrote to Salazar on Jan. 17. “Though you will seek feedback from state BLM offices prior to issuing final agency guidance, the opportunity for public input on the policy itself was never afforded.”

Mead went on to say that the people of Wyoming “want and deserve” a say in land-management policies that affect them.

Otter, meanwhile, called on Salazar to immediately withdraw the order.

“Without any state or public input, the Interior Department has circumvented the sovereignty of states and the will of the public by shifting from the normal planning processes of the Federal Lands Policy and Management Act (FLPMA) to one that places significant and sweeping authority in the hands of unelected federal bureaucrats,” Otter said in a letter to Salazar.

In asking Abbey to appear before the Governor’s Council on Balanced Resources, Utah’s Herbert complained: “There was no policy discussion with the state. There was no formal notice this was being considered. The federal government suddenly administratively locked up additional Utah lands without even consulting us, and we want an explanation.”

Herbert remained opposed to the Wild Lands policy following the Jan. 14 meeting.

Salazar’s order has far-reaching implications because the BLM manages about 245 million acres of public land nationwide, primarily in western states.

Under Salazar’s order, BLM officials will look at the land they manage and decide which land should be labeled “Lands With Wilderness Characteristics.” Once those decisions are made, the officials will go through a public land-use planning process before designating land as “Wild Lands.”

http://www.whowon.com/sResults.asp?SanctionID=186&StoryID=302638

Salazar, Abbey Restore Protections for America’s Wild Lands

http://www.blm.gov/wo/st/en/info/newsroom/2010/december/NR_12_23_2010.html

Remarks of Secretary Salazar and Director Abbey – Announcement of BLM Wild Lands Policy

http://www.doi.gov/news/speeches/Remarks-of-Secretary-Salazar-and-Director-Abbey-Announcement-of-BLM-Wild-Lands-Policy.cfm
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Establishing Property Lines

Rules of the Game: Establishing Property Lines

Professional Surveyor Magazine – November 2010

Beach Replenishment and Eminent Domain
by William E. McGrath, PLS

On June 17, 2010 the United States Supreme Court handed down a precedent ruling as it relates to the establishment of property lines along littoral properties. The case is known asStop The Beach Renourishment, Inc. v. Florida Department of Environmental Protection. This case is of particular interest to land surveyors who are charged with the responsibility of establishing property lines along littoral boundaries.

Case Background

This Supreme Court case involved beachfront property along the Gulf of Mexico in the town of Destin, Florida. After recent hurricanes along the gulf coast, the Florida Department of Environmental Protection undertook several beach replenishment projects to add sand to severely eroded beachfront areas. They dredged sand offshore and deposited it along the beachfront, adding about 75 feet of beach beyond the mean high water line.

Because the State of Florida, in trust for the public, owns everything offshore of the ordinary mean high water line, they concluded that they owned the 75 feet of additional beach. This action made the upland private property no longer waterfront property. In addition, it added a 75-foot-wide strip of public beach area between the former mean high water line and the new mean high water line.

The property owners filed suit to claim their littoral rights have been taken and sought compensation under eminent domain. They specifically cited two rights: (1) to receive future accretions to their property, and (2) to have their property’s contact with the water remain intact.

The mean high water line is the ordinary boundary between private beachfront, or littoral property, and state-owned land. It is a local elevation datum that is determined by averaging all the high tides over a tidal epoch (18.6 years). Where this datum intersects the beach is the mean high water line.

Littoral owners have, inter alia, rights to have access to the water, to use the water for certain purposes, to have an unobstructed view of the water, and to receive accretions (the silting in of former tidelands that occurs naturally over time) and relictions (the natural, gradual lowering of sea level) to the littoral property. Therefore the littoral owner automatically takes title to dry land added to his property by accretion or reliction.

An accretion occurs gradually and imperceptibly, while a sudden change is an avulsion. Accretions most often occur after an avulsion event from a storm or hurricane; the sand that erodes off a beach to an underwater shoal offshore is gradually, via natural littoral flow, re-deposited back on the beach.

There are two types of avulsion: natural avulsion (e.g. erosion by a nor’easter or hurricane) and artificial avulsion (e.g. beachfront replenishment projects). Note that after avulsion, the seaward boundary of littoral property remains what it was: the mean high-water line before the event. Thus, when an avulsion has added new land, the littoral owner has no right to subsequent accretions because the property abutting it belongs to the owner of the seabed (ordinarily the State).

(The above terms and data have not been taken from a land surveying textbook; they were taken from the U.S. Supreme Court’s oral argument transcripts and written documents of the above referenced case.)

Case Results

Initially the plaintiffs, being the private property owners (Stop The Beach Renourishment, Inc.) brought an unsuccessful administrative challenge. The Florida Department of Environmental Protection approved the permits, and the suit followed. The State Court of Appeals concluded that the department’s order had eliminated the property owners’ littoral rights 1) to receive accretions to their property and 2) to have their property’s contact with the water remain intact. Concluding that this would be an unconstitutional taking and would require an additional administrative requirement to be met, it set aside the order, remanded the proceeding, and certified to the Florida Supreme Court the question whether the act unconstitutionally deprived the property owners of littoral rights without just compensation.

The State Supreme Court answered “no” and quashed the remand, concluding that the property owners did not own the property supposedly taken. The property owners sought a rehearing on the grounds that the Florida Supreme Court’s decision effected a “taking” of the property owner’s littoral rights contrary to the Fifth and Fourteenth Amendments. The rehearing was denied by the Florida Supreme Court. The property owners then appealed to the federal courts, ultimately the United States Supreme Court.

The U.S. Supreme Court unanimously upheld the Florida Supreme Court’s ruling 8 to 0. (Justice Stevens recused himself, presumably because he owns a beachfront condo in Florida.) Although the ruling was unanimous, the justices were divided on the notion that a court itself, being a branch of government, can effect a “taking” of rights by its mere ruling on rights. Hence, it is subject to the provisions of eminent domain compensation.

Chief Justice Roberts and Justices Scalia, Thomas, and Alito strongly endorsed the notion that the Constitution prohibits judicial takings. As Justice Scalia observed, the text could not be clearer: “The Takings Clause … is not addressed to the action of a specific branch or branches.” The Fifth Amendment states that the government must provide “just compensation” whenever it takes private property for “public use.” There is no exception in the constitutional text authorizing a court, as opposed to a legislature, to take private property without compensation.

Justices Kennedy and Sotomayor did not dispute the absence of any such limitation in the text of the Constitution. However, they were hesitant to decide the question, finding that it was not necessary for resolution of the case and that there were potential complications inherent in recognizing judicial takings. Likewise, Justices Breyer and Ginsberg found that such questions were “better left for another day,” worrying that recognizing a judicial takings doctrine would “open the federal court doors to constitutional review of many (perhaps large numbers of) state-law cases in an area of law familiar to state, but not federal, judges.”

Implications for Surveyors

The above case relates to most states with beach replenishment projects, both completed and contemplated. It would behoove the public to know where the natural mean high water line is just prior to any beach replenishment project. In that way, the public will know the bounds of its future public beach. Adjacent private property owners would also want to know at what point the public would be trespassing on their property.

It would be an easy matter to establish the existing mean high water line and, to a lesser extent, a historic mean high water line by aerial photography. Unfortunately, aerial photography would not produce the required degree of accuracy. A quick audit of the last dozen or so sweep grants claims—recorded in my county clerk’s office to clear state tidelands—ranged in fair market value price from $42 to $107 per square foot. I don’t pretend to be an appraiser, but I think it would be safe to say that property along the Atlantic Ocean would be valued at least $100 per square foot. At $100 per square foot, a degree of accuracy would have to be far more than what aerial photography could provide.

The 18.6-year tidal epoch mean high water line elevation datum simply can’t be accurately depicted along a beach with a very slight slope. The correct method would be field measurements at various intervals along the beach to determine the coordinate points of where the local mean high water line elevation datum intersects the slope of the beach. Unlike the establishment of the New Jersey Tidelands Claims Line back in 1984, this work should be documented and certified by a licensed professional land surveyor using the correct method. Somehow back in the mid 1980s the State of New Jersey bypassed our entire profession to prepare those “survey” maps of land previously flowed by tidal water.

Several years ago I had the occasion to appeal a tidelands claim whose source was an 1886 USC&GS topographic map. The width of the mean high water line at the map scale, when rectified to the actual ground, resulted in a line 25 feet wide. Furthermore, the tidelands claims delineation protocols, established by the NJDEP Office of Environmental Analysis in 1977 and subsequently approved by the courts, state: “Locate all delineation lines so that the landward edge of each line is placed along the landward edge of the area delineated as now or formerly below mean low water.”  When you do the math using that somewhat unjust protocol: at $100 per square foot along 100 feet of frontage times 25 feet of uncertainty equals plus or minus $250,000.

Accuracy matters, and sometimes it absolutely matters. Lucky for us, the State issued a letter of non-interest (quit claim) because of a very old riparian grant that we weren’t sure would apply. If they hadn’t, we would have appealed to the courts based on that unjust protocol, and I would be busy searching for the plane table field notes used to prepare the 1886 map that actually exists somewhere deep in the bowels of the federal archives in Washington, D.C.

In view of the recent U.S. Supreme Court ruling, I am in favor of passing legislation to have a licensed professional land surveyor measure, document, and certify, using the proper methodology, the ordinary local mean high water line prior to any beach replenishment project.


William E. McGrath PLS has been associated with the firm of George W. Henn, Inc. for the past 45 years. Bill is a riparian consultant who specializes in tidelands issues relating to grants, licenses, tidelands claims, and landuse. He was named Surveyor of the Year by the New Jersey Society of Professional Land Surveyors in 2010.

 

http://www.profsurv.com/magazine/article.aspx?i=70829

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$250 Fine or Imprisonment for Disturbing This Mark

Written by Jerry Penry, LS
Thursday, 31 May 2007 “American Surveyor”

Eight words that have long been associated with land surveying, “$250 Fine or Imprisonment for Disturbing This Mark” were intended as a serious warning to anyone who considered tampering with one of our valued survey monuments. The imprinted wording that appeared on many monuments not only brought attention to their importance, but also foretold of the potential consequences if the warning was not heeded.

The reality is that the statute containing the warning, which has been in place for well over a hundred years, seems to have been, for the most part, a threatening yet harmless paper tiger through lack of enforcement. Thousands of survey markers have been removed, yet finding a single case where anyone has actually been fined under the provisions of that statute, let alone sent to prison, is difficult.

What will the future reveal in regard to the usefulness of the permanent geodetic survey markers that have been painstakingly established by government agencies? With most agencies no longer systematically establishing new monuments, or perpetuating those in danger of removal, the future indeed seems uncertain. Some surveyors are already relegating them as icons of the past within a changing world where new positions meeting their precision needs can be established virtually anywhere while utilizing the Online Positioning User Service (OPUS). Questions arise as to who is actually responsible for safeguarding these markers and what role the markers will play in the future of surveying.

Construction, whether through urban developments or through the expansion of transportation systems, will inevitably continue to take its toll on permanent survey monuments. We may also be facing a relatively new competitor that has risen during the past decade  Internet auction sites. The Internet is now providing a worldwide outlet for the buying and selling of survey markers  a concern not even conceivable in the past.

In the eyes of the public, our permanent survey markers have always been one of the most visible aspects of our profession. They have been the subject of curiosity, conversation, and unfortunately, the victims of vandalism and theft. Human nature seemingly drives many to covet and possess something that emulates an interesting or rare character. Bronze, aluminum, and cast-iron survey markers imprinted with various figures certainly fall into the realm of the unusual category. People have removed or attempted to remove survey markers ranging from small disks to larger monuments weighing several hundred pounds. The removal of survey markers has been a problem since their inception as was noted in the 1889 Annual Report of the Chief of Engineers, United States Army, who specifically detailed the work of the Missouri River Commission surveys. This agency was a forerunner in the establishment of large cast-iron markers that were designed to have lasting permanency, but the Commission soon discovered that they became visible objects that quickly drew attention.

“The necessity for these new bench-marks [in 1892] is shown by the almost utter disappearance of the old marks, which were established mainly in 1878, 1879, and 1880.”

“Of the four bolts leaded into rocks, all bolts were missing, probably caused by the destructive tendency of mankind.”

The driving factor behind establishing the statute designed to deter theft or the movement of survey monuments has its origins with the Indian Appropriations Act of June 10, 1896 (c. 398, 29 Stat. 321, 339). The United States Geological Survey, as directed by the government, found itself in the rare role of establishing township and section corners in the Indian Territory that would later become the State of Oklahoma. The General Land Office was still prescribing the use of natural material such as stones or wooden stakes for corner monuments; however, USGS took the lead in establishing monuments of a lasting permanency that would also bear an inscription warning against their removal.

“That hereafter it shall be unlawful for any person to destroy, deface, change, or remove to another place any section corner, quarter-section corner, or meander post, on any Government line of survey, or to cut down any witness tree or any tree blazed to mark the line of a Government survey, or to deface, change, or remove any monument or bench mark of any Government survey; that any person who shall offend against any of the provisions of this paragraph shall be deemed guilty of a misdemeanor and, upon conviction thereof in any court, shall be fined not exceeding two hundred and fifty dollars, or be imprisoned not more than one hundred days.”

The $250 fine imposed in 1896 was certainly enough to warrant the attention of anyone contemplating the removal of a survey marker. The fine or imprisonment wording immediately began appearing on newly designed USGS brass caps and soon other government agencies likewise followed. A bounty of $25 was also offered to informers as a reward upon conviction of anyone found guilty of monument theft.

New monuments continued to be produced with the same monetary amount without respect to inflation even into the late 20th century. The clause was amended by the act approved March 4, 1909 (35 Stat. 1099, Sec. 57) revising and amending the penal laws of the United States to read as follows:

“Whoever shall willfully destroy, deface, change, or remove to another place any section corner, quarter-section corner, or meander post, on any Government line of survey, or shall willingly cut down any witness tree or any tree blazed to mark the line of a Government survey, or shall willingly deface, change, or remove any monument or bench mark of any Government survey, shall be fined not more than $250, or imprisoned not more than six months, or both.”

The main change appears to be the length of imprisonment that was changed from 100 days to six months. This statute wording began appearing in publications such as the 1909 version of Restoration of Lost or Obliterated Corners and Subdivision of Sections produced by the General Land Office. Inflation had not greatly increased from the original 1896 statute date, and according to the Consumer Price Index the penalty would have only increased to around $270.

The 1930s introduced various Public Works programs which brought large-scale surveying never before seen in the United States. Brass and aluminum disks of many government agencies were produced into the tens of thousands with many still being embossed with the $250 fine statement. Those new markers manufactured for USGS, however, now were void of any warning, but merely stated “For Information Write to the Director Washington, D.C.” Later the wording “Unlawful to Disturb” became standard for USGS. Inflation, though continuing to grow, remained slow and the penalty amount should have been closer to $420 by 1935.

The statute wording was again slightly modified on June 25, 1948 (Ch. 645, 62 Stat. 789; 18 U.S.C. 1858) to read a bit more fluently with no major changes:

“Whoever willfully destroys, defaces, changes, or removes to another place any section corner, quarter-section corner, or meander post, on any Government line of survey, or willfully cuts down any witness tree or any tree blazed to mark the line of a Government survey, or willfully defaces, changes, or removes any monument or bench mark of any Government survey, shall be fined not more than $250 or imprisoned not more than six months, or both.”

The monetary amount remained at $250, but inflation should have now brought it closer to $750. The final revision occurred in 1994 which read the same as the 1948 statute but replaced the words “fined not more than $250” with “fined under this title”. Today’s monetary amount, when compared to the original penalty amount of $250 in 1896, would be more than $6,000.

Having the dollar amount imprinted directly onto the marker was a good idea in theory, but those responsible perhaps never considered a changing financial world. Some areas in Canada were a bit more stringent, having certain markers placed in British Columbia bearing the words “Penalty For Removal  7 Years”. According to the Alberta Land Surveyors’ Association, tampering with boundary markers in Alberta can currently result in fines up to $10,000.

With some bronze and aluminum survey markers now more than a century old, their antique value has become a greater attraction for unscrupulous individuals wanting to exchange them for cash. Many have been bought and sold on Internet auction sites such as eBay, even though this company attempts to stop these auctions to discourage theft of other markers. Not only are the actual markers being sold, but also witness, boundary, and bearing tree signs are appearing for sale with increased frequency. Others show up at flea markets, in antique stores and at garage sales. These markers, which were once only revealed in chance encounters with the general public, are now a focus of several hobbyist groups including GPS geocaching. The geocaching.com website devotes a section to searching and finding geodetic markers with a direct link to the NGS database. The number of survey markers recovered by geocachers is near the one hundred thousand mark. The Internet encyclopedia Wikipedia describes “Benchmarking” as a sport in which participants individually go out and find bench marks. Of course the majority of people using hand-held GPS receivers for this sport are very caring individuals who are doing a great service to surveyors by helping us to update the recovery datasheets. It has nevertheless revealed the exact locations of the markers to many people who have nothing to do with surveying and who often do not have a true understanding of their continued importance in our profession.

So where do the markers come from that are now showing up for sale? Many land surveyors have legitimately obtained markers during the course of their work when they found a monument knocked over due to construction. Usually they reside on office shelves as a historic reminder of our profession. Others being offered for sale are possibly the direct result of theft by the public. Unfortunately possession of a survey marker by a non-surveyor is apparently not a criminal offense, so unless the act of destruction is actually witnessed, there is probably little chance for prosecution. When personnel were contacted at both USGS and NGS, neither had any record of a person ever being prosecuted for monument destruction by their respective agencies. Criminal cases of this type are often hard to prosecute when the plaintiff, the owner/establisher of the marker, is not readily available to assist when a surveyor brings the matter to their attention. In the past, a marker could only be classified as “destroyed” by government agencies if the actual disk was sent to them for complete verification. To discourage others from removing survey markers, a few surveyors have continuously contacted sellers on Internet auction sites and asked that the survey markers be removed. They are considered a banned item on the eBay site, but due to the volume of items being sold every day, this company has often been slow to react to requests that the markers be removed. Therefore, many continue to be bought and sold  often at high prices with some in the hundreds of dollars. Some of the early GLO and BLM brass caps used for section corner monuments have also been offered for sale. The obscure issue is whether unused markers that have made their way into private hands should be allowed for sale. By tracking the frequency of markers appearing for sale, it is estimated that over a thousand survey markers have been placed for sale on eBay since its beginning in 1995. One antique dealer, when politely asked to discontinue an auction selling an older brass disk, responded with his own interpretation of how he viewed survey markers.

When markers of any sort are obsolete, meaning not used anymore, they can be owned and sold! This is obviously obsolete. Over 50 years old, when it only needs to be 10 or more years. So go educate yourself!

Despite the efforts of individual surveyors, government agencies are often in the best position to deal with monument destruction. A case involving a Nebraska Department of Roads (NDOR) project concerned having a contractor specifically protect a High Accuracy Reference Network (HARN) point that was previously established by NGS. This contractor ignored the request and deliberately tore out the monument, thinking it would be easier to just set it back after the construction project was completed rather than having to work around it. NDOR, while working with their attorneys and the local NGS representative, withheld paying the contractor $10,000 of his contract when the project was completed.

Every surveyor can assist in the future protection of markers in several ways. First, determine if an existing marker is potentially in danger of accidental destruction by someone who has no idea that it is even present. Most of the older markers did not originally have warning signs placed near them. If an appropriate warning sign cannot be obtained, a simple painted steel post driven near the marker might be enough to alert someone of its existence. Many markers such as those established by USGS and other government agencies are not in the NGS database, so it is essential that these also be found and protected. When you do locate a marker that is in the NGS database, take time to update the recovery sheet. This will help keep track of its location when physical surroundings change, and may also help determine if a marker has been recently removed if it is later offered for sale. Some surveyors have even suggested the idea of having geodetic markers involved in the “One Call” system, similar to locating buried utilities so contractors can be alerted to their existence.

The responsibility for safeguarding survey markers, whether accepted or not, has to rest with everyone using them. Survey markers are a lasting impression of our profession. Let’s all do our part to ensure that they remain intact for future surveyors, regardless of the changing ways in which they may be used.

Jerry Penry is a Nebraska licensed land surveyor. He is a frequent contributor to The American Surveyor, and has written numerous articles for this magazine.

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State Surveys of the Great Depression

Written by Jerry Penry, LS
Saturday, 30 September 2006 “American Surveyor”

The Great Depression of the 1930s, largely triggered by the stock market crash of 1929, affected virtually every occupation including land surveying and civil engineering. Engineering companies that thrived in the roaring 1920s found themselves searching for any work. By the fall of 1933, the Federal Emergency Relief Administration contacted the United States Coast & Geodetic Survey (C&GS), the predecessor to the National Geodetic Survey (NGS), to administer a relief measure with the primary objective of creating employment for needy surveyors and engineers.

The initial goal was to employ up to 15,000 workers with the project to begin immediately upon approval. C&GS accepted the worthy assignment from an altruistic motive, but not without some serious reservations. The key concern was that insufficient personnel with their own workloads would not be able to provide adequate supervision. C&GS also knew that instruments of the type needed for precise survey work would be hard to obtain on such short notice. Providing the vehicles needed for the work was an almost insurmountable task since funding for the project was to be primarily used for wages with strict limitations placed on the purchase of equipment and materials. The final concern was that work was to begin during the harsh winter months–the least productive season for survey work.

On November 27, 1933, formal approval was established and the project became part of the Civil Works Administration (CWA) with work immediately beginning in all states with no delay. A serious drawback was the fact that federal funding was available only until February 15, 1934, giving the project less than three months; however, there was every indication that Congress would approve further funding when that time arrived.

By January 19, 1934, the CWA issued orders to cease hiring new employees for the project. This greatly hampered operations since some states were still in the initial hiring process and were not even close to the quota of workers they had hoped to employ. Congress did provide more funding as the February deadline arrived, but prohibited the direct participation of any Federal Bureau after that date. With 10,000 employees in the project, each state was given the option to continue if they could be represented locally. C&GS personnel were relegated to an advisory capacity where they did their best to insure that the work was meeting acceptable standards. All but four states decided to continue the project with local representation. In the state of Nebraska, for instance, Willard J. Turnbull who was the professor in the Mechanics Arts Building at the University in Lincoln, assumed the role. Turnbull was well suited for the job since he had been a former officer with C&GS. Other states were less fortunate and relied upon the best available person who would agree to assume the responsibilities. Generally the state representatives did the work with no pay and continued working at their other jobs in addition to the work devoted to the State Survey projects.

On March 31, 1934, the CWA program ended with certain relief measures provided which would now be under the State Emergency Relief Administration. New rules stated that workers remaining in the projects had to work without any outside financial compensation. This naturally meant that some of the most skilled surveyors and engineers involved in the projects could no longer participate since they were finding fragments of other work to keep their struggling businesses open. Some exceptions were made to keep instrument operators on the crews where their expertise was needed most.

The state projects were often waterrelated, such as establishing horizontal and vertical control for rivers, canals, or dams. In many instances these projects would not have been considered had there been no need to create employment. Workers were generally assigned to projects in their own areas to eliminate the need for travel, food, and lodging expenses. To provide instruments, an appeal was made to railroads, state highway departments, construction companies, and municipalities to borrow unused equipment. C&GS agreed to assume the responsibility for their care and calibration upon return. The appeal was well-received, but the equipment was a mixture of various types of instruments of differing precision and certainly not what the C&GS was used to operating. Traverse closures were set at a minimum of 1:10,000, but some work was accepted at 1:5,000. Level loops were set at 0.05′ per the square root of the number of miles run. Connections in the surveys were usually started and stopped at known C&GS monuments if possible. Horizontal control was adjusted to the North American Datum of 1927 (NAD27), and published in state plane coordinates. Elevations were adjusted to the Mean Sea Level Datum of 1929 (MSL29), which was renamed the National Geodetic Vertical Datum of 1929 (NGVD29) by NGS in 1973. Transportation needs were met mainly by having workers use their own vehicles, with C&GS agreeing to maintenance when needed unless caused by negligence.

Statistics up to June 30, 1934, just seven months after the beginning of the project, showed the completion of 14,000 miles of traverse, 20,000 miles of levels, and 1,200 miles of triangulation. The permanent monuments resemble the familiar bronze disks set in concrete used by C&GS, but were lettered with the additional words “State Survey”. The states of North Carolina and Pennsylvania decided to have disks cast with legends peculiar to their representative states. Due to the abrupt termination of the project, many monuments that were set in the projects ahead of the traverse and leveling crews were never used. Parts of the project struggled on until 1939, but the work continued less than a year in many states.

The project had both positive and negative aspects. Certainly the most positive was the employment of thousands of surveyors and engineers. This not only provided financially for the workers and their families, but also helped them to better understand how geodetic surveying was performed. One initial negative aspect of the project was the poor planning on the part of the federal government, who basically threw the project into the lap of C&GS with little warning. Only the final positions and elevations were submitted to C&GS, while the majority of the actual field work was never seen by them. With the development of the North American Datum of 1983 (NAD83) and the North American Vertical Datum of 1988 (NAVD88), NGS has taken the position that they will not publish any information unless they have the original observations. This leaves thousands of the CWA monuments with precision uncertainty since the actual field work cannot be verified. Although some of these monuments were later used by NGS during their own work and therefore published, many are hard to find since they are not available in the NGS datasheets.

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.

http://www.amerisurv.com/content/view/3640/153/

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