The Missing White Oak on an 1837 Patent Line
A surveyor is retracing a 200-acre tract in western Kentucky patented in 1837. The patent calls: 'Beginning at a black oak on the bank of the Cumberland River; thence N 28° E 160 poles to a white oak; thence S 62° E 240 poles to a stone at the mouth of a branch; thence S 28° W 160 poles to a sycamore on the river; thence up the river with its meanders to the beginning.' The black oak and sycamore are gone, but the river bank and the mouth of the branch are identifiable. The stone at the branch mouth is found and appears original. The white oak is not found; a 1970 survey set a pipe 12 ft west of a fence corner, and a white oak stump 28 inches in diameter is found 9 ft north of that pipe. The computed 160-pole line from the river places the missing white oak about 15 ft east of the stump. The client wants the 1970 pipe held because it is the only corner marked.
1. Rank the evidence that should control the retracement of this patent.
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The surveyor should apply the accepted hierarchy: natural monuments, artificial monuments, courses, distances, and area. Here the Cumberland River and the mouth of the branch are natural monuments; the original stone at the branch mouth is an artificial monument; the patent courses and distances are lower evidence. The 1970 pipe is a later survey monument, not an original patent corner, so it has no controlling weight where it conflicts with the original calls. The white oak, if it can be identified as the original corner tree, would be a natural monument and would control. The fence is not a boundary. The surveyor should not hold the 1970 pipe merely because it is marked; later monuments are evidence of a later surveyor's opinion, not of the original patent.
2. How should the surveyor restore the missing white oak corner?
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The surveyor should first use the found original stone at the branch mouth. The patent gives the course and distance from the white oak to that stone as S 62° E 240 poles. Running the reciprocal course, N 62° W 240 poles, from the stone establishes a line on which the white oak should lie. The surveyor should also search for the original white oak stump, witness trees, bearing marks, and any adjacent original surveys that call for the same corner. If the stump is found near that line and has evidence of being the original tree, it supports the corner. If the stump is not the original tree or is too far off, the surveyor should use the intersection of the best-established original lines: the line from the river beginning and the reciprocal line from the stone. The 160-pole distance from the river is subordinate to the original monuments, but it can be used as a check. The surveyor should document the search, the stump location, and the reasoning.
3. What should the surveyor do about the 1970 pipe and the fence?
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The surveyor should show the 1970 pipe and the fence as found occupation or later-survey evidence, not as controlling corners. The pipe may be retained as a reference monument and described as '1970 survey pipe, not an original patent corner.' The fence corner is not a boundary. If the surveyor sets a new corner at the restored white oak location, the plat should show the relationship between the new corner, the stump, the pipe, and the fence, with distances and bearings. The report should explain that the 1970 pipe was not held because it conflicts with the original stone and the patent calls. If the client wants to rely on the pipe for a boundary line agreement, the surveyor should refer the client to counsel and should not certify the pipe as the patent corner.