Gores & Gaps

If boundary law is properly applied, the majority of the gores and gaps do not exist, they are a figment of the imagination of those taking the easy way out who only consider the deed descriptions as written with no or inadequate research. Sometimes a lot of effort and time is required to resolve conflicting deed descriptions but the intent can usually be found and then comes the application of law or owners rights to correct the deed documents or the changing of occupation lines. If the surveyor gets there before hostility is created, courts can often be avoided and harmony preserved leaving good footsteps for those who follow.
jud

Gores and gaps created by governments can only be corrected or enforced by government.

There is plenty of interesting discussion on this subject found here:

CLSA Forum thread
this is a link to the CA (CLSA) forum.

This probably won't help much but, some expert measurers who are attempting to be Land surveyors , lay out the deed by exact measurements only and reject the existing evidence on the ground; thus creating a gap or an overlap.

In your research, try and understand why these so called surveyors end up with two lines between properties, when obviously only one line is the record.

Good luck and post your results, if you want to!

Keith

Expanding on what Jud said, the majority of gaps and overlaps do not actually exist on the ground or in title, they are created by surveyors who are limiting their practice to the precise production of deed dimensions, and not fully interpreting the document.

In the thread linked to by Ryan, those who argue that all apparent gaps are real gaps make some valid points but then refuse to apply all of the the proper principles that we are instructed to apply by the law (both statute and common/case law). They properly point out that a deed is a contract. Actually, the deed is more like the receipt resulting from the completed sales contract, but I won't quibble. It's still a legal document that identifies the subject (the land), the compensation (the sales price), and the parties (grantor & grantee) to the contract, and is thereby a record of the agreement. It is signed only by the grantor and is evidence of transferred title. It is subject to the same rules of interpretation as is the actual agreement. Additionally, there are additional rules for interpreting conflicting elements in a deed description (lines actually marked on the ground and monuments at the top of the list, area and or coordinates at the bottom, distance and direction in between).

In California, those rules can be found in the Code of Civil Procedure, and nearly verbatim again in the Civil Code. Each state will have it's own version, but the basics are the same across the states.

One of the most basic of these rules is that the agreement must be interpreted under the same lights as it was made under. That means that you need to look at the facts and conditions existing at the time the parcel or parcels was or were created. Looking to the date of the most recent deed doesn't help unless it is the deed of first conveyance of the parcel and of each line described.

Quick side note: If the deed is the first conveyance of the East half of Lot A, then you look to the facts and conditions on that date as they pertain only to the creation and location of the line dividing the East half from the rest of Lot A. You need to go back further in time to the point at which Lot A was created and look at the facts and conditions at that time for the boundaries of Lot A.

So if Lot A was reported to be 200' wide on the map showing the survey by which it was created, say in 1948 (just to start a timeline), When Smith was the first to purchase the lot, and no subsequent surveys showed Lot A to be anything other than 200' wide up to the time Smith sells the E 1/2 to Jones in 1962, then those are the facts of the record dimensions at the time of the Smith/Jones conveyance.

Several years go by and there has still been no survey indicating Lot A to be anything other than 200' wide when Smith sells the West 100' of Lot A to Lincoln in 1978. Smith knows that his Lot was 200' wide, and he sold half of it (1/2 of 200' = 100') to Jones. It's simple math and common sense. He only has half left and he's selling all 100' of it to Lincoln.

Jones and Lincoln live in peace for the next 35 years, and then Jones sells his parcel to Davis in 2013, who hires Jackson to survey his newly purchased parcel. Amazingly, all of the original monuments marking the corners of Lot A are still in place. But, not so surprisingly, Jackson's measurements differ from the record dimensions of Lot A. He finds that the lot measures only 195' wide and that an old wood post and wire fence exists just a bit over 94' from the West line of Lot A.

"So does this constitute an overlap and an encroachment?"

Definitely "no" to the first part, and a reason to gather more facts to the second part. With an overlap, if it truly is an overlap, the senior title generally controls the line. But first, do the descriptions actually overlap?

To answer this, we need to determine the full set of facts known to the original parties of the various transactions. Hopefully Jackson does the same.

We know that Lot A was created by subdivision in 1948 and that it's corners were marked during that survey. This was during the post-war housing boom, so a lot of work was done quickly and without the benefit of properly redundant field measurements. The surveying was almost certainly done with a transit and steel tape. The surveyor should have easily been able to measure better than 1:40, but there are several logical explanations as to how a 5' could have entered into the survey. At any rate, the original monuments are in place, so the corners are where they are.

But according to the most credible measurement prior to 2013, they were 200' apart, not 195'. That is the fact pertinent to the transactions made. There was no knowledge of any potential shortage in any of the transactions. So as a matter of title, 200' - 1/2(200') = 100'. By interpretation of the record, given the facts known at the time of the conveyances creating the Jones and Lincoln parcels (or the Jones parcel and Smith's remainder), the West 100' = the West 1/2 = Lot A except the East 1/2 = Lot A except the East 100'. Had the knowledge that Lot A was something other than 200' wide been available at the times of the conveyances, the equivalencies of these descriptions could not be made.

We've answered the question about potentially overlapping title. The record adds up, so there are no title conflicts based on the deed descriptions, only a difference in measurements between those made by the 1948 surveyor and those made by Jackson using vastly more precise equipment in 2013. There is only one common line described by the deeds of each parcel. It is now merely a matter of determining its correct location.

"So what of that location? What about the encroachment issue? Isn't it just simple math now - the midpoint on the 195' wide lot? Isn't the dividing line between Jones and Smith/Lincoln at the midpoint, 97.5' from either end of Lot A?"

Maybe, maybe not. Unfortunately, although it was a matter of simple math for Smith and Jones, simple math is not immediately available for us to resort to without first taking other steps to see if it's available to us at all. We (and Jackson) need more facts. We have a clue in the age of the fence and other improvements. The fence looks as if it could have been placed about the time Jones bought the parcel from Smith.

If we're lucky, Jones hasn't taken the proceeds of the sale and set off around the world to achieve his bucket list in the few short years he has left. If we can talk to Jones, we can find out just how the fence was placed. We might find that he had an old 100' cloth tape that he used to measure 100' from the E'ly corners to determine where his westerly boundary was and built the fence right on the line so determined.

So is that a valid establishment of the line? Didn't he need to determine the true dimensions of Lot A and take care to set the midpoint?

Again, go back to the rules of interpreting documents. What facts did Smith and Jones have. They had a survey plat showing Lot A to be 200' wide. They reasonably relied on that map made by a licensed professional surveyor. They did simple math that 1/2 of 200' is 100' - in court, that fact would be taken by judicial notice. Jones bought 1/2 of the Lot, so he bought 100'. He took care to use a measuring tape and measure from the correct easterly corners of Lot A, on line toward the westerly corners of Lot A. He took care to place the fence along the location of the lot line determined with reasonable care. Therefore, the fence location marks the location of a reasonable establishment of the line between Jones and Smith.

What other facts about the establishment of this line do we know? We know that the original lot corners were used to control the measurements made and that they were made with a cloth tape. We know that a cloth tape is not nearly as precise as a modern EDM, and that if pulled tight, will likely stretch to something more than 100'. That would explain why the fence is slightly more than 100' from the East line of Lot A. These are more of the facts and circumstances by which the deed descriptions must be interpreted.

We may not be so fortunate as to have access to Jones. We might need to speak with Lincoln to find what he knows of the fence. We may need to talk to other nearby residents. We may need to check building records or determine if we have a means to age the fence by patent and manufacture dates of the materials (barbed wire lends itself well to this, many other fencing materials, not so much).

You don't need to make a career of researching the history of two parcels, but you do need to be reasonably diligent and consider various standard and non-standard sources of information. Most likely, you will need to go with the proponderance of evidence when deciding whether to accept the fence or any other marks as the location of the Smith/Jones line, meaning that if by the facts it seems just a little more likely than not that the current physical indication of the common boundary (fence or other manifestation of the line) was placed by reasonable means attempting to mark the true line, then accept it, otherwise, reject it.

"But in the other thread, the guy arguing that surveyors can't deal with gaps says gaps and overlaps are way different. He says that overlaps are easy because you always resolve them in favor of the senior title. That's doesn't seem to be what you just described. Why wouldn't you just hold the senior line?"

I'm getting way long with this post, so I'll continue in the next. But I'll end this post with the observation that boundary surveying is first and foremost an investigation to find the original boundary. Measurements are just a means of reporting what we discover, they are not the primary focus of the endeavor.

:good:

Dave Karoly had a post a couple of years ago that gets interesting:

[msg=79500]Strips and Gores Doctrine[/msg]

It is a fascinating and complex issue, rhetorically and in practice.

"But in the other thread, the guy arguing that surveyors can't deal with gaps says gaps and overlaps are way different. He says that overlaps are easy because you always resolve them in favor of the senior title. That's doesn't seem to be what you just described. Why wouldn't you just hold the senior line?"

If there has been no previous establishment of the line between Smith and Jones (or Lincoln and Davis), then this is probably the direction you should take. One could argue that because of the title dimensions, that the intent was half and half, regardless of whether the parcels were described by dimensions or by portions, and by that logic, the line would be at the same location whether the first parcel sold was the East 1/2, or if it was the East 100' of Lot A.

I wouldn't argue against that line of reasoning, but without some manner of physical establishment of the line as a manifestation of the true intent, I wouldn't hold that line of reasoning.

Still, by the terms of the record and in the title, there is only one described common boundary. There is only the first cutout conveyance to Jones and Smith's remainder. It is still only a question of where the boundary is.

In such a case, I would hold the terms of the Jones conveyance to determine the common line. If Jones' deed says the East 1/2, and I measured Lot A to be 195' wide rather than 200', I place the common line at 97.5'. If Jones' deed describes the East 100' of Lot A, I set the line at 100' west of and parallel with the East line of Lot A.

But here is what so many do not understand: I don't set it at 100' because my measurements are the "true" measurements and all previous ones of differing values are wrong. I set it at 100' per my measurements because I have no indication of how far 100' was per Smith & Jones at the time of their transaction. If I have that indication, and it is something other than my 100', then I am obligated by the laws of interpreting agreements to honor the circumstances that led to their measurement of 100'.

If the standard were to hold the "true" distance each time such a described property is measured, then if we are honest, no surveyor can ever set it. If we are arrogant, then we hold our 100' and call all previous measurements wrong. By such a standard, no property line would ever be stable, but be subject to moving to a newly interpreted location each time a different surveyor arrives and makes measurements. The law has little tolerance for this.

"OK. so we've beat overlaps to death, but that other guy on that other thread says overlaps are easy because of the junior/senior relationship of title. what if Jackson found Lot A to be 205' wide instead of 200', or 195'? Wouldn't there be an excess after you've made each grantee "whole" according to their description?"

Again, it's a matter of investigation. If you want to dismiss the investigative role of the boundary surveyor, then there is an excess of 2.5' that nobody knew about, and up until the time that the surveyor discloses it, nobody cared about.

The gap hunter will adamantly argue that Smith still owns a 2.5' strip between the parcels. Smith dosn't know that. By now he's probably long gone from this earth. Smith's heirs aren't aware of it and aren't interested in it (unless they are unscrupulous twits looking to cash in by selling what amounts to a spite strip for an inflated price to one or both parcel owners), and the current and all previous parcel owners thought that there was only a common line between them.

By arrogantly deeming that all prior conveyances had no validity of location until he comes along to proclaim the true lot dimensions and determine the true number and locations of lines of the divisions of Lot A, the gap hunter creates havoc and chaos under the guise of finally uncovering the truth. But not to worry! Many gap hunters are only too happy to now provide you with $25,000 worth of consultation to your attorney in connection with any legal action taken to clear this matter. And the original survey was supposed to only cost $3000, including the filed map. What a bargain!

You can usually determine whether or not there is actually a gap before ever making a single measurement. If everything in the record says the parent parcel is 200' wide, and the conveyances of the portions of the parent parcel add up to 200', and if there is no evidence that any parties to any of the transactions by which the parcels were created had, or should have reasonably had any indication that the parent parcel was anything other than 200' wide, there can be no gap, only differences in measurements.

When questioned about how much excess must exist before they determine that a gap exists, they often (as it the thread Ryan linked to) will proclaim that it's not a matter of magnitude and thereby avoid the question and avoid addressing the underlying principle.

They are correct in saying that it's not a matter of magnitude, but they also dismiss the investigative role of the surveyor. They define that a gap exists because their measurements tell them so. By that reasoning, it would have to be a matter of magnitude, otherwise measurement could not be the basis for making such a determination. If measurement would tell you that a 5' gap exists, then any amount of excess greater than one's standard errors in the measurements would also define a gap to exist. If your standard errors are 0.07' +/- 50 ppm, then if the gap hunter measures Lot A to be 200.09', then he must report that there is a gap because the excess cannot be explained as being within the standard errors.

"Don't be ridiculous!", they would say. I agree - ridiculous. The principle that is the basis for determining whether or not a gap, in truth a third parcel that no one was aware of, exists must be applied consistently.

"What boundaries are is a matter of law." We must look to the law to determine what the westerly boundary of Jones is, what the easterly boundary of Smith is, and whether or not they are one entity or separate entities. The laws governing the interpretation of documents guides us and must be the basis for the principle of determining the existence or non existence of a gap.

"Where boundaries are is a matter of fact." Measurement is merely a means of reporting the locations of what we find. It is not the basis for the principle of determining what they boundaries are.

"So are you saying that gaps don't exist?"

Not at all. As an example, let's go back to Smith owning Lot A. Smith sells the East half of Lot A (record = 200' wide) to Jones, and then later sells the West 90' to Lincoln. By the clear terms of the descriptions, Smith has retained a remainder which is nominally 10' (200' - 1/2(200') - 90' = 10'). It's simple math.

In such a case, no amount of investigation is going to make that remainder become absorbed into one or both parcels conveyed by Smith.

Another example: Smith owns Lot A, sells the E 1/2 to Jones, and later sells the W 100' to Lincoln, but in the interim had a site plan made for on site improvements with a survey that showed Lot A to be 205' wide.

In this case, Smith knew (or should have known), and Lincoln may have known about the 5' of excess in the Lot prior to their transaction. Smith may have retained the 5' strip for a reason - maybe an underground utility, maybe a walkway from the road to another property. Whether or not this is a real gap, a rejection of the site plan survey, or just an oversight is beyond the interpretive authority of the surveyor. Regardless of the reason for the not accounting for the known excess at the time of the sale to Lincoln, it is up to the owners to resolve the matter. The surveyor can only help by assisting the title company or attorney handling the matter, and/or by facilitating the process for the landowners by coordinating with the title experts for the landowners.

But again, most gaps and overlaps are not discovered by surveyors, they are created by them by way of abdicating their investigative role, the primary responsibility of the boundary surveyor.

I like this:

But again, most gaps and overlaps are not discovered by surveyors, they are created by them by way of abdicating their investigative role, the primary responsibility of the boundary surveyor.

But then again, I have stated many times on here, that surveyors create gaps and overlaps.

Since my world in in the PLSS, it is really troublesome to see some so-called surveyors, run out the aliquot parts 1320 by 1320 and disregard existing evidence or the rules for subdividing sections.

Then of course there is the bogus theory of subdividing sections by only using the protracted center lines and it results in gaps and overlaps.

If you only use the record dimensions of a deed to lay it out on the ground, chances are very good that you will create a gap or overlap!

Keith

Dave,

You are really talking about gaps and overlaps! Isn't a gore the same as a gap?

Texas has a case known as the "California Case."

The premise of a term paper on gaps and gores supposes that record couse and distance control boundary location. The record course and distance is down the list on the order of weight of evidence a surveyor as an officer of the law (not an officer of the court) applies in forming an opinion on the location of a legal boundary.

In The Judicial Function of Surveyors Justice Thomas Cooley wrote:
If now the disputing parties call in a surveyor, it is not likely that any one summoned would doubt or question that his duty was to find, if possible, the place of the original stakes which determined the boundary line between the proprietors. However erroneous may have been the original survey, the monuments that were set must nevertheless govern, even though the effect be to make one half-quarter section 90 acres and the one adjoining, 70; for parties buy, or are supposed to buy, in reference to these monuments, and are entitled to what is within their lines, and no more, be it more or less.
When the witness trees are gone, so that there is no longer record evidence of the
monuments, it is remarkable how many there are who mistake altogether the duty that now devolves upon the surveyor. It is by no means uncommon that we find men whose theoretical education is thought to make them experts, who think that when the monuments are gone the only thing to be done is to place new monuments where the old ones should have been, and would have been if place correctly. This is a serious mistake. The problem is now the same that it was before: to ascertain by the best lights of which the case admits, where the original lines were. The mistake above alluded to is supposed to have found expression in our legislation; though it is possible that the real intent of the act to which we shall refer is not what is commonly supposed.
Occupation, especially if long continued, often affords very satisfactory evidence of the original boundary when no other is attainable; and the surveyor should inquire when it originated, how, and why the lines were then located as they were, and whether a claim of title has always accompanied the possession, and give all the facts due force as evidence.
Unfortunately, it is known that surveyors sometimes, in supposed obedience to the State statute, disregard all evidences of occupation and claim of title and plunge whole neighborhoods into quarrels and litigation by assuming to "establish" corners at points with which the previous occupation cannot harmonize. It is often the case that, where one or more corners are found to be extinct, all parties concerned have acquiesced in lines which were traced by the guidance of some other corner or landmark, which may or may not have been trustworthy; but to bring these lines into discredit, when the people concerned do not question them, not only breeds trouble in the neighborhood, but it must often subject the surveyor himself to annoyance and perhaps discredit, since in a legal controversy the law as well as common sense must declare that a supposed boundary line long acquiesced in is better evidence of where the real line should be than any survey made after the original monuments have disappeared.

Great post linebender,

I am thinking that the bogus theory of subdividing sections is probably one of the most frequent perpetrators of gaps and overlaps.

This bogus theory, as practiced in the Rivers case in florida, led to an erroneous decision of the State Court and created havoc in the section, where previously the land owners were happy!

All for the sake of running the protracted section center lines on the ground and ignoring all evidence and especially prior survey monuments on the ground.

And of course, the expert testimony convinced the court and their decision, in come instances, was good, but for the wrong reason.

Still waiting for the BLM to provide an answer on this bogus theory, that they know about!

Keith

I think Evan and linebender have pretty much written you term paper for you. But you will need to research your own state cases and examples on the topic and relate them to all of the above comments if you want an "A", at least from me. We don't know your state and that is important in asking any questions such as yours here.

The best short answer I can give based on my experience is that the great majority of gap, laps, gores, overlaps, etc. exist only on paper, or in today's world, in the county GIS. I have been told by attorneys, and I believe it, that there is no property in the US which is unowned. That at least should be a start on the gaps and gores.

Good luck!

Carl,

Your statement, exist only on paper
is not correct, in my opinion of course.

The paper does not show a gap, only when a deed staker lays it on the ground at the exact dimensions, THE GAP APPEARS!

Keith

I will agree that courses and distances written on adjoining deeds may appear to gap or gore when laid out on the ground as recorded. As a rule, I don't recall seeing a tax map or property line GIS where the gap or gore is mapped. The mapper either makes a decision to draw one line for the boundary or is working on such a small scale that the differences aren't notable. I have seen many GIS maps where the line drawn according to the record result in ridiculous looking results. It is a curiosity that some surveyors will be upset with ridiculous looking lines mapped on a GIS while at the same time make ridiculous looking maps of their own showing gores and gaps. When rules of evidence are followed a majority of record gores and gaps are quite simple for a surveyor to manage by noting on the survey the record course and distance along with the measured course and distance. There may be a rare occasion when only the owners or court can decide there is no gap or gore.