M. Spangler 10.20.04
I got a call today with a request about if I thought a section line easement of 50′ existed on a particular piece of property. The entry date of the original federal homestead was in 1920. The twist is that in 1953 the property escheated to the Territory by the Courts. I think that a 50′ SLE came into existence at that time. If anyone thinks otherwise please let me know. The problem for surveyors is that unless a title report with all the chain of title documents is reviewed this would be an easy thing to overlook. Comments anyone?
J. Bennett 10.21.04
Mike, glad to see you on line in the ROW Mystery forum!. You have made a good point that I am hearing more and more about. Whether you are researching the existence of a section line easement or a public land order right of way, the focus is on dates. 1) the date by which the lands were unreserved and unappropriated federal lands (for federal sle’s and plo’s), 2) the date of the enabling legislation for sle’s or effective date of the PLO, and, 3) date of township plat approval for federal sle’s. Fixing the date of township approval and effective date of PLO or enabling legislation for sle’s is relatively straightforward. The trick is determining whether there are any prior existing rights that would prevent the sle or plo from being established.
In our 1994 edition of the ASPLS Standards of Practice Manual, the sle research techniques outline (p 23-27) limits the discussion of how to determine the “reserved” land status to “Using either BLM’s land status database or Historical Index determine the date of reserved status or the date of entry leading to patent.” This was kind of a simplistic statement as the land status database and historical index often would only list the date that the application had been received for some of the more common reservations such as a homestead or Trade & Manufacturing entry. The problem was that the application date may not be the critical date. There are arguments that the critical date is the date of occupation, the application date or the date the application was approved. In much of my experience, we rarely had much concern about these varying dates because the date upon which the ROW could have attached and the date of reservation were typically many years apart. However, now we have been seeing more and more cases where the dates are so close together that we must expand our research. Generally, this might include a request to the national archives for the BLM case file that includes all of the correspondence and transactions that led to patent.
A good recent example case we had was where we needed to determine whether a Trade and Manufacturing Site patent was subject to the 300′ wide PLO ROW for the Richardson Highway. The T&M application date was 9/22/49. PLO 601 came into effect on 8/10/49. So at a glance it appears that the T&M patent was subject to the ROW. Because the dates were so close we obtained the BLM case file and found that the entryman had occupied and improved the parcel many years before their application date. The CFR’s governing T&M sites since 1950 stated that an entryman had 90 days to file an application after initial occupation or they would receive no credit for occupancy prior to the application. At that point it appeared that the patent was still subject to the 300′ wide PLO ROW. We went one step further and acquired a copy of the 1949 edition of 43 CFR 81 and found that in that and prior editions, rights vested at the date of occupancy and there was no 90 day limitation upon which an application had to be filed. So the bottom line is that when PLO 601 came into effect on 9/10/49, the lands embraced by this T&M site had already been appropriated by occupancy that led to the eventual patent. There can be no 300′ wide ROW across this parcel and at best the state can claim a “ditch to ditch” width easement either by RS2477 or by a claim of a public prescriptive easement.
So to sum it all up, Mike has hit the nail on the head…evaluations of sle’s or plo’s can involve a lot more than meets the eye. Hopefully, experience and good judgement will prevail in determining whether you have gone far enough in reaching the correct conclusion. JohnB