Ken's father wills him Government Lot 8 in his will back in 1973. Ken promptly subdivides it into 26 1 acre lots. Engineer/Surveyor A.J. cites the Government Lot Line between Government Lots 8 and 13 as being the west boundary of Ken's Subdivision and shows it as such on his Plat. Ken's stepmother doesn't like Ken so well and leaves the neighboring Government Lot 13 to Ken's sister. The subdivision laws have changed in 1983 so she hires Engineer/Surveyor Ralph to divide her Lot 13 into 3 20 acre+ parcels. Neither A.J. or Ralph breakdown the section properly to determine the Government Lot Line between Government Lots 8 and 13, but rely on the record measurements. Trouble Maker me comes in breaks the Section down properly and determines Engineer/Surveyor A.J. has done a horrible job of surveying and all of Ken's subdivision lots on the west boundary of his subdivision encroach into his sister's Government Lot 13. Engineer/Surveyor Ralph's survey indicates a problem with A.J.'s survey, but he doesn't bring it to anybody's attention ignores most of A.J.'s monuments and sets new ones of his own to subdivide Ken's sisters property. If I truncate Ken's subdivision lots at the Government Lot Line it creates a gap between Engineer/Surveyor Ralph's survey and the Government Lot Line. Engineer/Surveyor Ralph's survey is a metes and bound survey and he make no reference to the Government Lot Line, nor does he mention Ken's Subdivision.
Do you think the lot owners in Ken's subdivision lose their acreage that encroaches over the Government Lot Line? None of the lots involved have been developed and probably under current sanitation requirements can be little else than camping spots. They are however high value properties in the $100,000 per acre range because of the access they provide.
Tough questions you have there.
In a perfect world there is only one true section breakdown possible. We do not live in a perfect world.
Many little questions exist. Are the current section corners you used ones that were present when Ken's surveyor did what he did? Are you sure of that? Are you differing by one foot or sixty feet? What is the ownership history of the lots in that section and how might that have impacted physical evidence available in 1973 and that available today? What do the non-related adjoiners believe to be their boundaries?
Are these river lots? The sister's lot is bigger than a standard Government lot? Why?
Ken can not sell land he does not own! Period.
Ken's surveyor's mistake does not create title!
The magnitude of the mistakes is going to determine how big a problem this is.
And not that I want to doubt you, but are you absolutely, positively sure?
I'm curious how much of an overlap there is also.
1973 To 2015 Is 42 Years, 1983 to 2015 Is 32 Years
So if Ken had a claim of adverse possession based on an accepted survey, Ken's sister has a claim of repossession to her survey lines. Lots 8 and 13 were held by one entity and the acts of the parties ignores and supersedes any government lot line. You are not the BLM so stop being a troublemaker and survey what is, not what it should have been.
Paul in PA
1973 To 2015 Is 42 Years, 1983 to 2015 Is 32 Years
Paul,
If Ken's father had made the original subdivision you would be absolutely right, but the two government lots were not under common ownership at the time of subdivision. The two deeds are unambiguous and Ken's subdivision lots can not include property he did not own. The current owner's may have a claim of adverse possession but that sounds unlikely as it was indicated that this was undeveloped land.
1973 To 2015 Is 42 Years, 1983 to 2015 Is 32 Years
They were under the same ownership in 1973 when the division occurred. Therefore, intent overrules mathematical perfection.
This is a problem of Location, not Title.
A.J. Attempted to establish the lot line in 1973. No one objected for ten years?
A.J.'s survey should hold if accepted in good faith by the parties.
I found every original 1/4 Corner and the Southwest Section Corner. they were all original stones still set like the day they were originally placed and very close to the GLO Supplemental Plat positions. within 10 feet. I was the first human to visit two of the 1/4 corners since they were set. None of the other Engineers/Surveyors used them in their surveys. A.J.'s Subdivision Plat used the record Bearings and Distance off of the GLO Plat. He never performed a Section Breakdown other than on paper. A.J. specified he used 3/4" iron pins to mark every lot corner. We did not find any 3/4" pins anywhere in the subdivision. The lots are marked with a variety of spikes, 1/2 rebar, T Posts. The lots we found markers on were somewhat in the shape of the Subdivision, but were 15 feet short in a 100 foot lot. The survey monuments were skewed about 15 degrees and the corner markers were 180 feet North and 85 feet west of where A.J.'s Plat showed them to be. This caused the lots on the west side of the Subdivision to encroach 85 to 60 into the sisters Government Lot. The current owners are occupying the areas they believe to be correct as A.J. set them. I figured that's their problem to sort out since their locations didn't impact my clients property.
The land does border the Smith River in Montana, but none of lots involved are on the river. They are all up on a steep hillside. The sister actually has two Government Lots that she subdivided into the three tracts is why the three tracts are larger than atypical government Lot.
The father was the original patentee. He left one Government Lot to Ken, then died. His widow left the other two Government Lots to Ken's sister. I'm sure Ken's intent was to only subdivide his Government Lot. A.J.'s Plat states that and there is no evidence to show any intent of the Subdivision to go into the sister's Government Lot.
I don't believe Adverse Possession applies, because A.J.'s Plat shows all lots to be in Government Lot 8. The sister and lot owners were all unaware of the encroachment until I did the surveying. The lot owners are paying taxes on locations depicted by A.J.'s Plat, not where the lots are actually staked out on the ground. A,J's field survey was incompetently and possibly fraudulently done. A.J is dead now so he can't explain to us why he screwed up so badly.
The Government Lots were not in common ownership in 1973. Ken owned Government Lot 8 and his stepmother owned Government Lot 13. She willed it and another Government Lot to Ken's sister when she died, sometime before 1983.
The era in which Ken's subdivision was done is pretty important to note. Montana had just begun requiring Land Surveyors to be licensed. A few Engineers that were employed by the State Highway Department were "grandfathered" in as licensed Engineers and Land Surveyors without any testing or educational requirements. These guys were probably excellent slope stakers, but had no background in land surveying. Any land survey done in Montana sealed by a Engineer/Surveyor with a registration number lower that 300 is a red flag.
1973 To 2015 Is 42 Years, 1983 to 2015 Is 32 Years
No, and No.
What I meant
What I meant was that at the time Ken received his land it was a fraction of what his father owned. If he was shown a specific area and was told that it was the lot he was to receive and took possession of that area in good faith, there was no attempt to take what wasn't his. It is possible that the surveyor he employed in 1973 simply staked what he was told was Ken's property. I'm not saying that was the correct thing to do. What I'm saying is that people sometimes overwhelm the surveyor into doing exactly what they want done.
It is also important to note that the adjoining land apparently was considered, by his stepmother and sister, to be consistent with where Ken's surveyor marked the line for at least 10 years. There was no dispute.
I'm not saying that what was surveyed is precisely a specific lot. I'm saying that what Ken held ownership of was what he had surveyed.
So, as you just explained, Ken's father owned all of it at the time the transaction occurred to deed a portion of the father's property to Ken. It was a single block of land, regardless of the combination of legal descriptions forming it's entirety.
> This is a problem of Location, not Title.
>
> A.J. Attempted to establish the lot line in 1973. No one objected for ten years?
>
> A.J.'s survey should hold if accepted in good faith by the parties.
how could his survey be "accepted in good faith by the parties" if they could not see it?
A.J. made a plat. he was a Surveyor, not an owner. A.J. made a plat.
the monuments he said he set were not found, but some other "things" were found out there after searching (NOTE: no occupation)
A.J.'s Biggest Monument = the Gov. Lot Line he indicated.... that is what was "accepted in good faith by the parties". find that and you have his "survey"
if those "things" were proven to be A.J.'s monuments then they would be Closing Corners.
The Survey problem as I see it isn't complicated. Record Title for each party is the Government Lot line. There is also evidence of platting beyond the boundary. All of this evidence should be taken to the client. While we should recognize fact patterns and gather pertinent evidence it is beyond our authority to assign title against the record.
At the end of the day this is an opportunity. Done right you can help the owners resolve this without enriching several members of the state bar...
True, he posted more after I posted that.
He asked for an opinion.
:good:
You have a decision to make, being in Montana, forget about adverse possession.
Now you need to decide if you will accept the survey of the lot lines.
Read the 2009 manual and see that even though the Section isn't broken up perfectly you may have to accept it as the 1/16 line. This survey seems iffy in that regard. You will need to decide to accept it or reject it, if you do either file your reasons why so the next guy isn't going through the same mess.
One of the major reasons I've seen the BLM accept "out of position" 1/16th corners are filed subdivisions.
I would also obtain the MT and OG plats for the township and see just how much federal lands I'm dealing with, sounds like there are some, just guessing from the lot numbers. You actually may be surveying federal land.