The Best Kept Secrets in Montana Surveying Law
Land surveyors in Montana have worked with the Corner Recordation Act since its passage in 1963. The bill was conceived by Ira Tillotson to preserve the rapidly disappearing original corners and to allow placing information in the public records concerning any property corner. Although this act concerns every surveyor practicing in Montana, there are considerable differences of opinion concerning the actual requirements for filing.
A statute, as with a deed, should be read as you would read a letter from your fiance. It should be read word by word, and line by line. It should be examined for what it says as well as for what it does not say.
We will look at two sections of the act about which there are important differences in interpretation and application. Here is the exact wording of the first section.
"70-22-104. Filing of corner record required. A surveyor shall complete, sign, stamp, and file with the county clerk and recorder of the county where the corner is situated a written record of corner establishment or restoration to be known as a "corner record" for every public land survey corner and accessory to such corner which is established, reestablished, monumented, remonumented, restored, rehabilitated, perpetuated, or used as control in any survey by such surveyor and within 90 days thereafter unless the corner and its accessories are substantially as described in an existing corner record filed in accordance with the provisions of this part."
One of the most important parts of any statute is the section containing definitions. For the corner recordation act these are given in 70-22-103 M.C.A. These definitions take precedence over any dictionary or text definition. In the first section the key definitions are for "property corner" and "public land survey corner."
If you were to question several surveyors about the meaning of "property corner" and "public land survey corner," you might have as many different answers as you had surveyors. Some surveyors equate a "public land survey corner" with a "rectangular system survey corner." Under this interpretation, any section corner or quarter corner which a surveyor may set by any method must be recorded.
Is that what the act REALLY says?
Let us go to the definitions.
This is the most critical definition of all, in my opinion. This tells us that a property corner is not an abstract concept or a physical monument, but is an IMMUTABLE, UNCHANGING, PERMANENT point on the surface of the earth. As an example, assume that a surveyor in 1910 was asked to lay out a 2000 foot square tract for a sale. The surveyor does this, using a compass and chain, in hilly terrain. When the surveyor reaches the first corner, and drives an iron pipe, he has established a "property corner." The equipment, procedure, and monument may not be adequate by today's standards, but the intent establishes the corner. As long as that iron pipe remains in place, there is a known location for the original property corner. If that monument--the iron pipe--is removed, the property corner location is lost. The "property corner"--which is the geographic point where the surveyor drove the pipe--is still there, and will always be there, although unrecoverable. If the present day land owner wants his tract retraced, he may employ another surveyor to start from the initial point and retrace the tract. After the new survey the land owner has a tract of possibly the same size, but it is not the same tract, and the corners are not the same--although the original property corners (immutable, unchanging geographic points) are intact but lost.
Let's go to the next key definition in the statute.
"(3) A "public land survey corner" is any corner actually established and monumented in an original survey or resurvey used as a basis of legal description for issuing a patent for the land to a private person from the United States government."
Ira's initial draft for the definition given under (3) was worded in an identical fashion except that the term "General Land Office survey corner" was used instead of "public land survey corner." Ira asked me for comments on the proposed bill, and I suggested that the term "General Land Office survey corner" might restrict the act to only those original survey and resurvey corners set by GLO crews, and would not cover all original corners. I suggested the term "public land survey corner," and Ira agreed. The term "public land survey corner" was not in use at that time, and so far as we knew was a new term. As a new term, there was less conflict with any existing definition.
At this point let us put the two definitions together, and reword the "public land survey corner" definition. It would read as follows: