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Age old PLSS question
Rancher owns a 40, sells to a gov agency the south 30 Acres,
Then sells to a private concern the N2N2 of the 40
the section is large and it leaves a strip 30′ wide between the two legals, is there a gap?
Rancher still has access to the gap from the west as he still owns that property
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89 Replies
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What was the intent? Was Ranchers intent to retain the gap? Then he retains it. If he intended to sell the south 3/4’s of his property to the government and the north 1/4th to private concern; then that’s what he did.
Deed’s don’t create gaps and overlaps; surveyors do.
I hope everyone has a great day; I know I will! -
MightyMoe, post: 355134, member: 700 wrote: the section is large and it leaves a strip 30′ wide between the two legals, is there a gap?
I think not. There is case law supporting that although I can’t provide a citation off the top of my head. It is apparent that the sale of the N1/2N1/2 was intended to include all that land the seller had in that quarter section.
If the rancher was using the 30 foot strip on a regular basis since the sale, that might change my mind.
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There is an issue. There is a “gap” in the legal descriptions, even if the intent is to not have one. That should be cleaned up. Yes, the action of the parties might prove an intent, but one action you might consider significant, someone else might interpret differently. If the intent was to sell by aliquot division they should have written the descriptions accordingly. If there was an intent to leave a gap a better-crafted description may have solved that as well. The descriptions are ambiguous even if you can’t define the ambiguity by an analysis of the words. How do I know? Because I can see that two different surveyors might interpret it two different ways. Mark shows us that by a citation to a law.
True, by any interpretation, “there is no gap”….but we don’t know if the original owner owns that space or if the second grantee does.
I would suggest that a competent surveyor try to help get the parties to clean it up instead of making a legal judgment, staking the properties as he sees it, and walking away. Sitting down with the owners and showing the exact discrepancy and offering them ways to resolve it would help both them, future lawsuits, and/or future owners.
The biggest take-away I get from these legal conundrums, is to try to learn and not create ambiguities in my original descriptions.
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MightyMoe, post: 355134, member: 700 wrote: Rancher owns a 40, sells to a gov agency the south 30 Acres,
Then sells to a private concern the N2N2 of the 40
the section is large and it leaves a strip 30′ wide between the two legals, is there a gap?
Rancher still has access to the gap from the west as he still owns that property
Was the parcel the Rancher sold to the government described as the South å? of the parcel in whatever quarter along with the South å? of the North å? of the same quarter? Or just the South 30 acres?
It will make a significant difference as opposed to a deed that calls for simply for the ÛÏSouthÛ 30 acres.
I see Senior/Junior rightÛªs as well as a prescriptive issue on the horizon. 😐
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nobody has clear title to it.
this is where you can provide a valuable service… properly define and get the ducks in a row, keep everybody out of the courts -
Sadly, this has happened a bazillion times in one form or another. There is no single right or wrong answer. Yes. No. It depends.
What would be interesting in this case would be if there had been a survey made and the Government had been deeded precisely 30.0000000000000000 acres. The owner then would have realized that was actually less than the south 3/4 of what he owned. If he knew that and then carefully worded the second deed to be limited to the north 1/4 of the original tract, it would appear that he fully intended to keep a strip of slightly different width from end to end. I’m not saying that happened. But, he could have made it work out that way intentionally.
The standard case is that **** happens and nobody realizes it until it’s too late. In this case, did he really intend to sell the south 3/4 and then later the north 1/4? Or, did he intend to sell 30.00000000000000000 acres first and then later whatever was left?
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Mark Mayer, post: 355140, member: 424 wrote: …I can’t provide a citation off the top of my head….
The Oregon case of Hurd v. Byrnes is what I was thinking of. It involves a 25′ strip.
The court opined:
“…Where narrow strips of land have been the subject of dispute in construing various conveyances, we have held that there should be a constructional preference in favor of the grantee. We have pointed to a number of considerations which warrant this preference. We have taken the view that where the conveyance or reservation of title to narrow strips of land is in question, the probable intent of the grantor is not to retain title if he does not own abutting land….” -
FL/GA PLS., post: 355155, member: 379 wrote: Was the parcel the Rancher sold to the government described as the South å? of the parcel in whatever quarter along with the South å? of the North å? of the same quarter? Or just the South 30 acres?
It will make a significant difference as opposed to a deed that calls for simply for the ÛÏSouthÛ 30 acres.
I see Senior/Junior rightÛªs as well as a prescriptive issue on the horizon. 😐
No, the deed simple states the south 30 acres
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Holy Cow, post: 355166, member: 50 wrote: Sadly, this has happened a bazillion times in one form or another. There is no single right or wrong answer. Yes. No. It depends.
What would be interesting in this case would be if there had been a survey made and the Government had been deeded precisely 30.0000000000000000 acres. The owner then would have realized that was actually less than the south 3/4 of what he owned. If he knew that and then carefully worded the second deed to be limited to the north 1/4 of the original tract, it would appear that he fully intended to keep a strip of slightly different width from end to end. I’m not saying that happened. But, he could have made it work out that way intentionally.
The standard case is that **** happens and nobody realizes it until it’s too late. In this case, did he really intend to sell the south 3/4 and then later the north 1/4? Or, did he intend to sell 30.00000000000000000 acres first and then later whatever was left?
The deed simply said 30 acres and the later one N2N2. So who gets what is the question, all the parties involved now know there is an issue
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Until all involved parties agree and publicly document/revise their agreement it will be open to “yet another opinion” or food for the courts.
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How many Ac did the rancher own according to govt survey? 40
How many Ac are in the South 30 according to govt survey? 30
How many Ac are in the N2N2 according to govt survey? 10
30+10=40 last time I checked
No gap
Surveyors and some survey textbooks seem to like to create problems where none exist. All of what if this or what if that is not using common sense or abiding in a traditional understanding among everyone except surveyors that the south 30 is an aliquot division unless there is physical evidence or testimony otherwise. Surveyors should not be advising that the division is not aliquot when there is nothing to indicate it was ever intended otherwise. -
linebender, post: 355182, member: 449 wrote: How many Ac did the rancher own according to govt survey? 40
How many Ac are in the South 30 according to govt survey? 30
How many Ac are in the N2N2 according to govt survey? 10
30+10=40 last time I checked
No gap
Surveyors and some survey textbooks seem to like to create problems where none exist. All of what if this or what if that is not using common sense or abiding in a traditional understanding among everyone except surveyors that the south 30 is an aliquot division unless there is physical evidence or testimony otherwise. Surveyors should not be advising that the division is not aliquot when there is nothing to indicate it was ever intended otherwise.Yeah, but a “40” is never really 40 acres. It is a quarter of a quarter of a section. And I have seen it different ways. Sometimes this comes up with a call like “the north 660 feet of the east 660 feet of the NE1/4 of the NE1/4”. Well, since that is what would make a “40” one might wonder if they meant to simply divide the land at the 1/32 line. So, you go back to: What was the intention? That is hopefully seen in evidence on the ground and on paper. It is not uncommon for “660 feet” to have been considered to an aliquot division. It is not our job to measure a better 660 feet than the grantor, rather it is our job to discover what the grantor/grantee meant by 660 feet.
-All thoughts my own, except my typos and when I am wrong. -
MightyMoe, post: 355169, member: 700 wrote: No, the deed simple states the south 30 acres
Until litigation, a gap exists.
B-)
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FL/GA PLS., post: 355197, member: 379 wrote: Until litigation, a gap exists.
B-)
[sarcasm]So, if the 1/41/4 had been “short”, then there would be an overlap? [/sarcasm]
Do we really need to “run to the judge”? Or are we professionals who can figure these things out for our clients?
Come on guys, this is surveying 101.
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dmyhill, post: 355195, member: 1137 wrote: Yeah, but a “40” is never really 40 acres. It is a quarter of a quarter of a section. And I have seen it different ways. Sometimes this comes up with a call like “the north 660 feet of the east 660 feet of the NE1/4 of the NE1/4”. Well, since that is what would make a “40” one might wonder if they meant to simply divide the land at the 1/32 line. So, you go back to: What was the intention? That is hopefully seen in evidence on the ground and on paper. It is not uncommon for “660 feet” to have been considered to an aliquot division. It is not our job to measure a better 660 feet than the grantor, rather it is our job to discover what the grantor/grantee meant by 660 feet.
Also, while it is probably reasonable to say that conveying the south 30 acres of a (nominally) 40 acre tract is intending to convey the south 1/2 and south 1/2 of the north 1/2; it becomes less clear when the deed conveys the east 3.75 acres of the (nominally) 40 acre tract. I’m not sure how that can be intended to be an aliquot part.
This is exactly why I strive to make my legal descriptions very clear. And I often will reference my plat in the legal description by adding a line at the bottom that reads “See the attached Plat ‘Exhibit B’ attached hereto and made a part hereof”. And I ensure that my plat conforms to the recording standards of the county so it can be recorded with the legal description.
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Mark Mayer, post: 355167, member: 424 wrote: The Oregon case of Hurd v. Byrnes is what I was thinking of. It involves a 25′ strip.
The court opined:
“…Where narrow strips of land have been the subject of dispute in construing various conveyances, we have held that there should be a constructional preference in favor of the grantee. We have pointed to a number of considerations which warrant this preference. We have taken the view that where the conveyance or reservation of title to narrow strips of land is in question, the probable intent of the grantor is not to retain title if he does not own abutting land….”There is the fly in this ointment. What is considered “narrow”? One Oklahoma case (don’t ask me to look it up at 5PM..) recognized an area between two “ambiguous” conveyances merely because it was (if I remember correctly) “a substantial width that could be of interest for occupation or storage”. In my mind the width was thirty something feet. But the case I’m talking about was the result of poorly written metes and bounds.
Most of the time in Oklahoma the majority of cases that bore an excess due to the original survey being in excess find that no remainder (or gap) existed unless specifically mentioned in a conveyance. The excesses and deficiencies of public lands that have passed to private ownership continue on with every conveyance. If the NW/4 was really 170 acres, a sale of the NW/4 includes all of it, unless specifically stated.
In this case, like Peter Ehlert has pointed out, NOBODY has clear and marketable title to the 30′ strip. Sadly, this one will boil down to who has the most time and money…or the most aggressive legal team. One of the biggest pieces of evidence in my mind is “has the original seller continued to maintain or occupy” the lands purported to be ‘in between’ the two conveyances? Simple things go a long way in complex court cases.
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The south 30 acres requires additional evidence. As ‘acquired land’ it gets no special protection. The N1/2 N1/2 is more certain, but that doesn’t answer the question.
With no express reservation it will take actions of owners to determine if a strip exists between the two. Are there 2 fences? Has the grantor used a strip?
The one certainty is that no ‘gap’ exists, ever. Something is there and somebody owns it. The Surveyor is best equipped make sure all owners agree and the record is clean when he is done. There should be no need for lawyers or courts. All you are doing is memorializing the evidence. That should include an agreement in this case.. -
43 U.S.C. 752
Third. Each section or subdivision of section, the contents whereof have been returned by the Secretary of the Interior or such agency as he may designate, shall be held and considered as containing the exact quantity expressed in such return; and the half sections and quarter sections, the contents whereof shall not have been thus returned, shall be held and considered as containing the one-half or the one-fourth part, respectively, of the returned contents of the section of which they may make part.If it is a 160 acre quarter section on the Plat then the south 30 acres is identical to the south half of the quarter-quarter plus the south half of the north half of the quarter-quarter.
There is no gap.
A common rule of construction is to sit in the same seats the original parties sat in and interpret the Deed the way they would have interpreted it. If they only had the original Plat on the table they sat at then their intention is clear.
The contrary may be shown.
For example, if the government agency is actually occupying 30 acres then they may be limited to that. Then the question of fact is does the other owner take the remainder despite the aliquot description? This would be shown, for example, if the original grantor is no longer around, particularly if he is not in any way using the land.
Another example would be an established boundary exists such as by a Survey by one of the parties.
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dmyhill, post: 355195, member: 1137 wrote: Yeah, but a “40” is never really 40 acres. It is a quarter of a quarter of a section. And I have seen it different ways. Sometimes this comes up with a call like “the north 660 feet of the east 660 feet of the NE1/4 of the NE1/4”. Well, since that is what would make a “40” one might wonder if they meant to simply divide the land at the 1/32 line. So, you go back to: What was the intention? That is hopefully seen in evidence on the ground and on paper. It is not uncommon for “660 feet” to have been considered to an aliquot division. It is not our job to measure a better 660 feet than the grantor, rather it is our job to discover what the grantor/grantee meant by 660 feet.
This is worrying about technicalities that are usually only of interest to, or known by the surveyor. Surveyors, most anyway, tend to look at all descriptions as if they were written by surveyors and as such, the scrivener knew or should have known the proper way to write the two descriptions conveying the property in a way to eliminate discrepancies.
I believe that a good portion, probably most descriptions were written by or originated from non-surveyors – either the landowners themselves (or their predecessors in interest), their attorneys, or whoever handled the land transactions. For most rural landowners the term “XX 1/4 of the YY 1/4”, if they even really understand that term is synonymous with “My 40.” Especially if there has been no intervening survey informing the landowner that his “40” is really 40.90 acres, then by previous record, it’s a government “40”. Unless there is evidence of an intent by the grantor to have retained a 30′ +/- strip between the two parcels, there are only two parcels in that 1/4-1/4 and only one line between them. Where that line is, as much as we are inclined to spout this rule or that (i.e. the grantee gets the benefit of any surplus and takes the brunt of any shortage), it isn’t that simple and none of us can say with the slightest bit of certainty without being fully aware of all the documentary history and all the facts on the ground how many acres are actually in that South 30 acres or how many are in that N 1/2 of the N 1/2 of the 1/4-1/4. It’s completely a function of facts that only Moe among us is yet aware of, and then only if he has performed all of his research and completed his field survey (save for setting the monuments).
The idea that where a parent parcel is found to be larger than previous record indicates and carelessly (by surveyors’ standards) written descriptions don’t completely technically match up to unambiguously describe the whole, title to the “gap” remains with the common grantor is complete fallacy as a rule. Although there are textbooks that tell us that is the rule, one will find that it is actually the exception once one has done some research into published opinions involving such situations. Textbooks will more commonly tell us that the 2nd grantee gets the remainder and only the remainder, whether there is excess or shortage. This “rule of surveying” is only true when the full set of documentary, physical and other facts are not adequate to show us where the boundary as actually established exists, or if no boundary was actually established but only halfway established by virtue of being placed on paper.
The correct answer, given the facts provided thus far is “I don’t know without further specifics.”
If surveying came down to such easy rules, and anyone who has ever written or ever will write a description for a deed was as technically conversant as we are, there wouldn’t be much use for licensed surveyors. So easy, a lawyer could do it!
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dmyhill, post: 355195, member: 1137 wrote: Yeah, but a “40” is never really 40 acres. It is a quarter of a quarter of a section. And I have seen it different ways. Sometimes this comes up with a call like “the north 660 feet of the east 660 feet of the NE1/4 of the NE1/4”. Well, since that is what would make a “40” one might wonder if they meant to simply divide the land at the 1/32 line. So, you go back to: What was the intention? That is hopefully seen in evidence on the ground and on paper. It is not uncommon for “660 feet” to have been considered to an aliquot division. It is not our job to measure a better 660 feet than the grantor, rather it is our job to discover what the grantor/grantee meant by 660 feet.
Another way to word it, is that the “40” is legally 40 acres per the original ‘subdivision’ layout. Transferring away the south 30 could easily be considered the south three-fourths of the whole. (I still contend that you could interpret that description more than one way, and accordingly could be considered ambiguous. Correcting it to better wording of the original intent or current understanding would be the ideal solution.)
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