ROBERT H. RASMUSSEN, District Attorney, Polk County
You have asked for my opinion on several questions concerning sec. 59.635 (8), Stats., which provides for the resurvey and perpetuation of corner posts of the survey of the public lands by the counties.
Section 59.635 (8), Stats., provides:
"The records of the corners of the public land survey may be established and perpetuated in the following manner: commencing on January 1, 1970, and in each calendar year thereafter, the county surveyor or a deputy may check and establish or reestablish and reference at least 5% of all corners originally established in the county by government surveyors, so that within 20 years or less all the original corners will be established or reestablished and thereafter perpetuated."
The notes of such resurvey then would be filed and kept in the office of the county surveyor available for public inspection as provided by sec. 59.60 (2), Stats.
You state that the Polk County Board of Supervisors wishes to reestablish the section corners of the original survey of the public lands but does not wish to incur the expense of reestablishing other corners placed during the original survey. It is my opinion that if the county decides to resurvey the public lands under sec. 59.635 (8), Stats., it must resurvey to include all corner posts required in the original survey. Such a resurvey would require corner posts every 40 chains and include township, section, quarter section, meander and *Page 135 witness corners, bearings and distances. Such a resurvey is discussed in detail in an opinion I am issuing today to Mr. C. F. Hurc, Secretary, Examining Board of Architects, Professional Engineers, Designers and Land Surveyors.
The reasons for my opinion are as follows:
1. Section 59.635 (8), Stats., provides in part that if a resurvey of the public lands is undertaken by the county, the county surveyor may "reestablish and reference at least 5% ofall corners originally established . . . by government surveyors, so that within 20 years or less all the original corners willbe . . . reestablished." (Emphasis added.)
2. Section 59.63, Stats., provides a procedure for relocating and reestablishing section corners or any other corners within a section by application of a majority of the landowners in such section to the county court.
3. The corners originally established by government surveyors were set every 40 chains and included township, section, quarter section, meander and witness corners with the bearings and distances thereof. A resurvey of the public lands would require the county surveyor to follow the footsteps of the original surveyor. Manual of Instructions for the Survey of the PublicLands of the United States 1973, U.S. Department of Interior, Bureau of Land Management.
You ask further whether the word "may" used in sec. 59.635 (8), Stats., limits the need to reestablish all original corners within 20 years or whether it only modifies the 5 percent provisions. You maintain that "may" modifies only the 5 percent provision. Otherwise, there would be no need for the 20-year provision. Your interpretation is correct.
Section 59.635 (8), Stats., establishes a program for counties to relocate corners of the original public land survey. Before such a resurvey program commences, however, approval of the county board must be secured because the costs of such resurvey are paid by the county under sec. 59.635 (11), Stats.
You also point out that before 1971 sec. 59.635 (8), Stats., required counties to resurvey and reestablish corner posts of the public lands. Section 59.635 (8), R.S. 1969, reads as follows: *Page 136
"The records of the corners of the public land survey shall be established and perpetuated in the following manner: commencing on January 1, 1970, and in each calendar year thereafter, the county surveyor or a deputy shall check and establish or re-establish and reference at least 5% of all corners originally established in the county by government surveyors, so that within 20 years or less all the original corners will be established or re-established and thereafter perpetuated." (Emphasis added.)
60 OAG 134, 139 (1971) stated that the term "shall" as used in sec. 59.635 (8), Stats., was, in effect, permissive rather than mandatory. It is not necessary to discuss the correctness of that opinion herein because the 1971 Legislature amended the section by replacing the word "shall" with the word "may" in the two places indicated above. Apparently, the Legislature saw the wisdom of allowing county boards to evaluate and apportion the costs of resurveys under sec. 59.635 (8), Stats. Otherwise the statute remains the same. In any event, it is my opinion that if the county board approves a resurvey under the present statute, the statute requires completion of the resurvey within 20 years. The mandatory nature of the last phrase of the subsection is the basis for my opinion.
The statute provides in part as follows: "in each calendar year . . . the county surveyor . . . may check and . . . reestablish . . . at least 5% of all corners originally established . . . by government surveyors, so that within 20 years or less all the original corners will be . . . reestablished . . . and thereafter perpetuated." (Emphasis added.)
Two further conclusions are apparent from the statutory language. After such resurvey program is approved and undertaken-
1. The resurvey may be completed in less than 20 years if county funds permit as determined by the county board. However, at least 5 percent of the corners must be reestablished each year so that the resurvey "will be" completed within 20 years.
2. Those corners reestablished under sec. 59.635 (8), Stats., also "will be" perpetuated. That is, the monuments must be maintained by the county.
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