I'm talking with the owner of lot 24 here (north is up) and when this was platted 50+ years ago the north line of all of these lots followed a creek. You can kind of see some of the undimensioned creek linework the surveyor sprinkled in there. There is no mention of the creek anywhere in the subdivision boundary description or in any plat notes which say the north line of these lots is to move with the creek. The current vesting deed for lots 23 and 25 do not mention the creek, and the deed for the lot on the opposite side of the creek also does not mention it. Lot 24's current vesting deed does, however, mention it. It has a metes and bounds description which matches the plat dimensions exactly plus a sentence that says "...to the creek...".
I haven't got into the weeds on the records yet but I suspect most of these lot owners have been treating the creek as the property line for decades no matter where it lies now. I've tried to warn the owner of lot 24 that this smells like someone threw that "to the creek" language in there at some point in the chain of title in some hillbilly attempt to make the deed match what was actually being occupied. He wants to believe the property line is at the creek no matter where the creek is of course. If he hires me to do a boundary survey on it I'll get to the bottom of it, but my question for now is...
If you're shopping for a property like this and you read the deed and it says "to the creek" and you buy it thinking you'll have creek frontage and then that turns out to not be the case because the deed was altered and the creek has meandered away from the platted lot line, is this something you can do a title insurance claim on? Or is the buyer just SOL for not having a survey done prior to buying?
There's more to this question than meets the eye. If the "creek" is tidal and navigable, different rules come into play if riparian rights are involved.
If the original subdivision plan and subsequent descriptions exclude the creek and the creek in non tidal, accretion and avulsion have no effect on the platted property lines or title. The title company insured title based on the public record and subdivision plans at the time of the original conveyance. The surveyor who came along later and prepared a description calling "to the creek" would need justification to make that call, especially if the creek is non tidal and the calls modify title lines on the record.
If the title company insured title to the creek, why wouldn't there be a claim available if the owner does not have title to the creek. I'm ignorant of the nuances but this seems pretty simple. I'd be surprised if a title company insured to the creek when there was no previous mention of a creek in the chain of title. I'd bet it is more likely the owner of lot 24 does not have title insured to the creek.
There's more to this question than meets the eye. If the "creek" is tidal and navigable, different rules come into play if riparian rights are involved.
It's definitely neither of those things. I've only seen it on google earth so far but it appears to be 10-12 feet wide and I would guess 1 foot or less deep.
I don't know that a surveyor added the "to the creek" line to the description as there is no other recorded survey of the property on file at the county. Since the neighbors have simple lot and block descriptions for their lots and this guy has the metes and bounds which is a copy/paste of the plat I suspect someone just grabbed the plat and did some creative pencil whipping.
But yeah I think this description in the current vesting deed may not be the original. That's why I was asking about a potential title insurance claim.
If the title company insured title to the creek, why wouldn't there be a claim available if the owner does not have title to the creek. I'm ignorant of the nuances but this seems pretty simple. I'd be surprised if a title company insured to the creek when there was no previous mention of a creek in the chain of title. I'd bet it is more likely the owner of lot 24 does not have title insured to the creek.
I suppose it depends on which description they reference in their title report, no? I haven't seen this guy's title report, so I'm not sure what is insured. I was just throwing the question out there in case someone else had run into something like this before.
By what amount would the value of the entire tract, as used today, decrease if there is no access to the creek?
Personally, I wouldn't give two nickels, either way. I have no love for anything located next to a source of mosquitoes, ticks, vermin and herpetological families.
@bstrand Yes. I believe it would depend on the description in the title insurance. I would be shocked if a title company insured something other than the platted lot and block although they seem to want to include a meets and bounds reference for the properties.
I think the description that holds would be the original one that created the tract. I have seen a lot of things messed up or added because of a person re-typing a description for a new conveyance of the same property and the lawyer adds something or stuff gets out of order. . .
Title insurance usually contains a survey exception: excluding claims based on facts that would have been revealed by an accurate survey. The NSPS/ALTA Land Title Survey is one type of plan accepted by the insurance companies as a basis for removing that exception from the policy. Since this is not a commercial property, but residential, an insurance company might accept a "standard for your area" survey plan as the basis for removing the survey exception from the policy. If the land purchaser did not request the survey exception be removed from the policy and provide a survey plan to the insurance company, then no, the title insurance will not pay off a claim based on the actual boundary location determined by your survey.
This post was modified 4 months ago by peter-lothian
Title insurance usually contains a survey exception: excluding claims based on facts that would have been revealed by an accurate survey. The NSPS/ALTA Land Title Survey is one type of plan accepted by the insurance companies as a basis for removing that exception from the policy. Since this is not a commercial property, but residential, an insurance company might accept a "standard for your area" survey plan as the basis for removing the survey exception from the policy. If the land purchaser did not request the survey exception be removed from the policy and provide a survey plan to the insurance company, then no, the title insurance will not pay off a claim based on the actual boundary location determined by your survey.
Nice, yeah I see that language in my ALTA projects, but for some reason I couldn't remember if I had seen that same language in non-ALTA title commitments.
I think the very essence of the issue is a title problem and title insurance should cover it. I had a job just a couple years ago in which I was paid by title insurance because of a mistake in a 1954 survey of a property across the street. I was asked to prove that survey wrong because the farmer on my side knew he owned some on the other side of the road. The farmer was in fact entirely correct. The 1954 survey did not check against deeds across the street which is required here. As a side note, I understand that not checking deeds across the street is in the top 5 violations that the Licensure Board sees in investigations
By what amount would the value of the entire tract, as used today, decrease if there is no access to the creek?
Personally, I wouldn't give two nickels, either way. I have no love for anything located next to a source of mosquitoes, ticks, vermin and herpetological families.
The owner initially contacted me about doing a boundary survey on it because he had plans to build a fire pit next to the creek. As far as the square footage of land lost to the meander I suppose it's not much, but if a big reason he bought the place was to have a lounging spot by the creek then how do you put a price on that?
I don't even notice mosquitos in this state, at all. It's high country desert so they seem extremely rare to me, but the people who grew up here routinely tell me it's awful. 😆 I think they need to go live in a wetlands state for a while and then report back.
I can't see any reason to have a meandering boundary along the north lot lines unless it was intended to follow the creek which would form a natural monument, superior to all others, even if it's not explicitly called out, the intent seems reasonably clear. Why else have all those jogs? These are platted lots, simultaneously created by the plat and the plat is the legal description by reference, regardless of what descriptions happened to follow. One I'd make sure the parent parcel included both sides of that creek. Whether that boundary would change would have a lot to do with what happened to the creek, if it were affected by man, say by diverting it, or it moved slowly and imperceptibly. The first would fix the boundary while the second scenario would keep it as an amblatory boundary. If the creek did move by natural means, I don't think arguing that the boundary has become fixed elsewhere would pass the red face test and certainly wouldn't warrant a title insurance claim. Just my 0.02'.
Just because I'm paranoid, doesn't mean they aren't out to get me.
I can't see any reason to have a meandering boundary along the north lot lines unless it was intended to follow the creek which would form a natural monument, superior to all others, even if it's not explicitly called out, the intent seems reasonably clear. Why else have all those jogs? These are platted lots, simultaneously created by the plat and the plat is the legal description by reference, regardless of what descriptions happened to follow. One I'd make sure the parent parcel included both sides of that creek. Whether that boundary would change would have a lot to do with what happened to the creek, if it were affected by man, say by diverting it, or it moved slowly and imperceptibly. The first would fix the boundary while the second scenario would keep it as an amblatory boundary. If the creek did move by natural means, I don't think arguing that the boundary has become fixed elsewhere would pass the red face test and certainly wouldn't warrant a title insurance claim. Just my 0.02'.
I agree, I think the intent was probably to follow the creek. But... a few other surveys have been done up there on lots 4 or 5 lots away and all of those guys went with the platted lot line, so it's unlikely I'm gonna be one the guy that comes along and sticks my neck out there for a creek boundary.
I told the owner if the platted lot line ends up being the boundary that doesn't mean we can't get with the owner on the other side and write some new, clean descriptions making the creek the boundary going forward.
I can't believe a title insurer would base their report on just the current deed without reviewing a history of the conveyances. And the subdivision map, if referenced in the deed would need to be included. Unless there has been only one owner in fifty years since the subdivision created the lines.
I've only had one case that involved title insurance. The problem solved itself when I discovered a deed, several conveyances back, included a course and distance that was later omitted. And all the conveyances since had carried the first omission forward. This was because all the lawyers from that point onward had simply copied the description verbatim, changing only the buyer and seller names.
It seems to me that a map would be more reliable than a narrative anyway. That is why I don't like written "legal" descriptions. And that is also why I draw maps and don't write "legal" descripyions. "Thence turning and running easterly to a point for a corner..." seems superfluous and literally meaningless.
I have no love for anything located next to a source of mosquitoes, ticks, vermin and herpetological families.
I can't speak for Kansas but most of the creeks I saw in Oklahoma were shallow, slow moving slivers of salty water hat smelled like cow piss. I never cared to hang around them either. But creeks in Oregon mostly flow freely with clear, cool water.
Similar but not really; I recently did a 'location survey" for evidence in a lawsuit the south owner has filed against my client who owns the two northern parcels in determining use of the access road that has been shared between them for decades. The new owner to the south is wanting to cut off access by my client, using it only for himself. The latest subdivision map and both the northern and southern deeds have the meets description between them as shown and the access road meanders between them, entering entirely into the north and south properties in places. Or more realistically, the last subdivision surveyor (1975) 'bounced' the monumented corners north and south of the road to include it in both properties.
So my client owns the initial entry and gate completely, making him think he may just lock it... locking out the southern neighbor. Pretty sure that won't fly, but not wanting to give any legal opinion I gave my opinion - both (all 3) deeds also have a reservaton (?) stating:
SUBJECT, HOWEVER, TO:
Portion of existing gravel roadway running over and across portion of the land described above, as shown on the Tax Maps.
The Tax Map clearly shows a roughly dashed meandering gravel roadway between the properties, I believe showing an original intent of mutually sharing that access regardless of the meets. So, they may have to just learn to get along.
There is a little more to it so it'll be interesting to see what a court decides if they go that far.
So, I may not be paying attention but in the case of the creek have you been able to go back to the original survey and check verbiage and mapping on that to get the intent?
@norman-oklahoma I spent most of a week living in a dorm room at Utah State University in Logan in late June of 1978. That cold, refreshing mountain stream water crashing into the huge rocks was very refreshing. The cool air rolling down the mountain side was refreshing until it was time to pull on a jacket on an otherwise hot Summer day.
@norman-oklahoma I spent most of a week living in a dorm room at Utah State University in Logan in late June of 1978. That cold, refreshing mountain stream water crashing into the huge rocks was very refreshing. The cool air rolling down the mountain side was refreshing until it was time to pull on a jacket on an otherwise hot Summer day.
