Scully v. United States

• Decision Date: 27 April 1912
• Docket Number: 1,017.
• Citation: 197 F. 327
• Parties: SCULLY v. UNITED STATES.
• Court: U.S. District Court — District of Nevada

197 F. 327

SCULLY v. UNITED STATES.

No. 1,017.

United States District Court, D. Nevada.

April 27, 1912

[Copyrighted Material Omitted]

This action was brought to recover $9,932.85, of which $5,189.85 is alleged to be due on contract for surveying certain public lands in central Nevada, and the remainder, $4,743, is claimed for loss of time and interest. The contract is dated September 26, 1900. It was made by Dennis Scully, the plaintiff, acting for himself, and the United States Surveyor General for Nevada, acting in behalf of the United States. It provided that Scully in his own proper person should survey mark, and establish 'all lines necessary to fully complete the survey of township No. 14 N., range No. 41 E townships 17 and 18 N., range No. 43 E., townships 17, 18 and 19 N., range No. 44 E., and township No. 18 N., range 45 E Mount Diablo Meridian'; that all should be done 'in strict conformity with the laws of the United States, the printed Manual of Surveying Instructions as revised and approved June 30, 1894, and other surveying instructions issued by the Commissioner of the General Land Office, and with such special instructions as he may receive from the said Surveyor General in conformity therewith (all of said instructions to be taken and deemed a part of this contract).' The estimated liability was fixed at $3,000. The compensation was fixed 'by the Treasury Department of the United States, as a full compensation for all work performed under this agreement, at the rate of nine (9) dollars for base, standard, meridian, and meander lines, seven (7) dollars for township lines, and five (5) dollars for section and connecting lines, except where the lines of survey pass over mountainous lands, or lands heavily timbered, or covered with dense undergrowth, and in such case at the rate of thirteen (13) dollars for base, standard, meridian and meander lines, eleven (11) dollars for township lines, and seven (7) dollars for section and connecting lines, per mile, for every mile and part of a mile actually run and marked in the field, random lines and offsets not included.'

It was required that the surveys should be completed and true field notes thereof returned to the office of said Surveyor General on or before September 1, 1901, on penalty of forfeiture and payment to the United States of the sum of $6,000 (secured by bond), in case Scully failed to perform the contract according to its terms. This time was later extended. Further stipulations of the contract were as follows: 'No payment shall be made until the plats and field notes of the survey executed under this contract shall have been accepted by the Commissioner of the General Land Office. * * * No accounts shall be paid unless properly certified by the Surveyor General (or his successor in office) that the surveys are in accordance with the instructions herein referred to and the provisions of this agreement, and until approved plats and certified transcripts of field notes of the surveys for which the accounts are rendered are filed in the General Land Office. * * * The said surveys will not be approved by the said Surveyor General, * * * unless they shall be found to be in exact accordance with the instructions hereinbefore specified.'

The Manual of 1894, referred to in the contract, and made a part thereof, contains full and minute directions relative to surveys. These directions must be observed by Surveyors General, their assistants, and deputy surveyors. On page 65 of the Manual, the following rule is set out: 'Special Instructions Issued by United States Surveyors General to United States Deputy Surveyors. One of the most important duties to be performed by the Surveyor General is to provide the deputy surveyor with special instructions, in connection with the contract, prepared in accordance with law, which instructions will not consist of directing attention to certain paragraphs in this Manual, reiteration of its requirements, and printed directions of a general nature; but they will in all cases be specific in character, with all necessary detailed statements setting forth what the deputy is to do and how the work is to be performed. Before making out special instructions, the Surveyor General will cause a thorough examination to be made of the field notes and plats of older surveys of standard and township lines upon which the deputy is to base his work, and give him full information-- both written and graphic-- of the exact condition of adjoining surveys, with all irregularities that may be found, carefully and clearly noted; with all necessary instructions for his guidance if he finds everything as it should be, and, in addition, full advice as far as practicable what to do in case the surveys on the ground are not as represented in the old notes. If the contract includes exterior lines, the Surveyor General will specify in detail where the deputy is to commence, in what order and in what direction he is to run the lines, and provide for his use a diagram, drawn to a scale of one inch to one mile, giving full and accurate information in regard to lengths and bearings of all lines of old surveys, from which he is to work, or upon which he is to close. The diagrams will be made triplicate, one copy for the General Land Office, one for the deputy, and one to be retained; they may be either original drawings, or blueprints or tracings therefrom. In no case must the deputy be sent into the field without full and accurate information in regard to all irregularities on the records which will affect the extent or accuracy of his survey.'

Pursuant to this rule, the Surveyor General, October 3, 1900, sent Mr. Scully some 10 pages of instructions, copies of which are attached to the answer. Among these instructions was the following: 'Should any of the corners of the old survey from which you are required to start, or upon which you are required to close, have become obliterated, you are authorized to retrace so much of the old lines as may be necessary to re-establish such corners, but you will retrace only such lines as are absolutely necessary for that purpose. Where any of the old corners with which you connect have become partially destroyed or are in bad condition, you will properly restore such corners, describing in your field notes the corner as found, and as restored. I append a copy of circular letter of date June 15th, 1888, regulating the compensation for such retracements. ' Prior to the actual survey, Mr. Scully, with a full corps of assistants, at his own expense, made a preliminary recognizance to ascertain the actual condition of boundaries and corners which were to be the starting or closing points of his work, so that he might obtain beforehand needed instructions. In a letter dated March 5, 1901, to the Surveyor General, he reported these conditions. The Surveyor General acknowledged receipt of this letter March 8th, thanked Scully for his 'information as to the condition of the monuments of former surveys in the territory covered by your contract, No. 225,' and said: 'This will be of value hereafter as showing the necessity of such retracements and resurveys as you will have to make.'

On March 31, 1901, Scully communicated with the Surveyor General, detailing conditions in township 19 N., range 44 E., township 18 N., range 45 E., township 17 N., range 44 E., and township 18 N., range 43 E., and again asked instructions as to resurveys and retracements. The Surveyor General, April 4, 1901, replied in part, as follows: 'The question of retracement of exterior lines sufficiently to establish a reliable point of beginning for the work under your contract is fully covered in your instructions of October 3, 1900, and the circular letter of June 15, 1898, of the General Land Office thereto appended, and in the Surveyors' Manual of 1894, page 72. * * * At all events, sufficient showing has been made to justify the resurvey of the entire township boundaries (Tp. 18 N., R. 45 E.) and entitle you to compensation for doing so. * * * It is impossible to give further instructions even upon the showing you make. All you can do is to go ahead in good faith with your contract, exercising the best of your judgment and being guided by the Manual. I shall take pleasure in doing all that I can to see that you are properly compensated to the full extent of the terms of your contract. The accuracy and care with which your previous contracts have been executed establish an excellent standing for you in the General Land Office at Washington.'

April 27, 1900, Scully informed the Surveyor General of the conditions in township 17 N., range 44 E., and township 17 N., range 45 E. He described the absence of monuments, the irregularity in measurements, and the unreliability of the field notes of the old surveys. Inasmuch as he was obliged to connect with interior corners of township 17 N., range 44 E and 'as after long search no interior corners could be found for three miles on any range of sections, ' he 'simply had to resubdivide.' He described his methods of subdivision, and concluded thus: 'It is evident that all fractional subdivided townships will have to be resubdivided when I have any notes whatever. I am not anxious to do such additional work, which is much more tedious and annoying than new work, besides the question of payment; but it is even more necessary for the country than the work of the contract, and in any case I do not see under the rules how I am to avoid it. You see the rules themselves have to be extended and modified to make them applicable. * * * I know you appreciate the situation, and believe the department will do justice as it appears to them; but the labor and worry cannot be overestimated. For five weeks preparing for sub...