Attorney General of Nebraska — Opinion
DATE: December 13, 1979
SUBJECT: SURVEY BY CORPS OF ENGINEERS IN HARLAN COUNTY
REQUESTED BY: Thomas P. McNally, Harlan County Attorney.
WRITTEN BY: Paul L. Douglas, Attorney General; G. Roderic Anderson, Assistant Attorney General.
Are lost or obliterated sectional corners reestablished by a Registered Land Surveyor in the process of surveying a land owner’s property void when there is no duly elected or acting County Surveyor available to reestablish the corners?
No.
Section 23-1908, R.R.S. 1943 reads in pertinent part as follows:
“The boundaries of the public lands established by the duly appointed government surveyors, when approved by the Surveyor General and accepted by the government, are unchangeable, and the corners established thereon by them shall be held and considered as the true corners which they were intended to represent, . . .”
Where a dispute exists regarding reestablishment of the sectional corners lost or obliterated, and regarding boundary lines established pursuant thereto, the objective is determination of the location of the original government monuments, corners, and boundary lines, irrespective of where the field notes indicate the corners should have been located. Peterson v. Skjelver, 43 Neb. 663, 62 N.W. 43
(1895); Knoll v. Randolph, 3 Neb. Unof. 599, 92 N.W. 195 (1902); Runkle v. Welty, 86 Neb. 680, 126 N.W. 139 (1910);McShane v. Murray, 106 Neb. 512, 184 N.W. 147 (1921).
It is the duty of the County Surveyor in surveys made by him to perpetuate all original corners not at the time well marked. 23-1907, R.R.S. 1943. Further, the County Surveyor is authorized to restore lost and obliterated corners of original surveys. 23-1908, R.R.S. 1943. In those counties where there is no qualified surveyor within the county who will accept the office of County Surveyor, the County Board of such county may appoint a competent surveyor from any other county of the State of Nebraska to such office. 23-1901.01, R.R.S. 1943. Effective March 7, 1979, this statute specified that the appointed surveyor shall serve the same term as that of an elected surveyor and is not required to reside in the county of employment. 23-1901.01, R.S.Supp., 1979.
The certificate of the County Surveyor of any surveyor made by him of any lands in his county shall be presumptive evidence of the facts stated therein. 23-1904, R.R.S. 1943. The presumption of correctness of a County Surveyor’s determination as to the location of original government corners or boundaries is rebuttable by evidence to the contrary.Dancer v. Meyers, 103 Neb. 856, 174 N.W. 845
(1919); McShane v. Murray, 106 Neb. 512, 184 N.W. 147
(1921). Accord, United States v. Hudspeth, 384 F.2d 683, 688 N. 7 (9th Circuit 1967).
Any Registered Land Surveyor registered pursuant to the Nebraska statutes is authorized to establish any corner not monumented in the original government surveys. 23-1908, R.R.S. 1943. The record of a survey filed in accordance with law by a Registered Land Surveyor becomes an official record of survey and is presumptive evidence of the facts stated therein. 81-8,122.01, R.R.S. 1943.
A dispute between surveyors or between property owners as the result of a survey may be submitted to the State Surveyor for resolution upon payment of statutory fees pursuant to section 84-410, R.R.S. 1943. As an alternative, the parties may bring an action in ejectment or to quiet title to resolve the dispute.Whitney v. Wyatt, 111 Neb. 328, 196 N.W. 322 (1923);Kittell v. Jensen, 37 Neb. 685, 56 N.W. 487 (1893).
The determination of the location of sectional corners lost or obliterated is a factual question to be decided by a jury. Runkle v. Welty, 86 Neb. 680, 126 N.W. 139 (1910);Whitney v. Wyatt, 111 Neb. 328, 196 N.W. 322 (1923);McShane v. Murray, 106 Neb. 512, 184 N.W. 147 (1921).
It is our conclusion that where a county has no County Surveyor, and the County Board of that county has not taken action pursuant to 23-1901.01 to appoint a competent surveyor to such office, then a Registered Land Surveyor performing his functions pursuant to statutes may reestablish lost or obliterated sectional corners necessary to the completion of the survey he is conducting.
If a dispute arises based upon these reestablished corners or the property boundaries resulting therefrom, this dispute may be submitted to the State Surveyor for resolution or to the courts of this state pursuant to statutes for a determination as to the true and correct location of the original sectional corners lost or obliterated.