Scrivener’s error (I think)
Jones is patented the E1/2SW1/4, he then forms a company and creates a subdivision lying south of the south bank of a creek that runs east-west through the northerly portion of the 80 acres. Smith is deeded the E2SW4 excepting the subdivision in 1925. Smith deeds out some lands and eventually Johnson an heir to Smith gets the remaining lands through a court action after Smith dies.
in 1960 for some reason Johnson creates a deed describing the remaining lands as north of the north bank of the creek instead of north of the south bank, the plat clearly shows the south bank as the subdivision boundary. This is the scrivener’s error (I think) there seems to be no other reason for the gap that is created.
Johnson deeds out his parcel and describes the south line as north of the north bank, which brings us up to the present day owners,,,,,,,,,,,is there any way except for a quiet title action to clean up the gap?
Johnson is long gone, the only possible owner of the creek by the descriptions are the heirs, there is no way for any of them to get physical access to the land, they all live far away anyway.
- 33 Replies
Well, if you ask an attorney (well most of them anyway) they will say that some court action (for which they will get well paid) is necessary.
At first glance I’m tending towards the strip & gore doctrine (or something similar). I’m assuming Johnson didn’t, by clear language and subsequent actions by him and the adjoiners, intend to retain the creek. Therefore, the boundary of the senior parcel – the south bank, is the boundary. Well, unless, your state treats the creek like a public road and the centerline is presumed to be the boundary unless it is unambiguous that the centerline isn’t the boundary. I ain’t even touching navigability and “water front” issues………………….
@brian-allen
- I agree with Brian about the Strip and Gore doctrine, but not with the final assessment. The doctrine not only recognizes that there is no intent to retain the strip, it also reasons that the boundary is the center of the creek in both descriptions. A call to the bank is common as 1) surveyors don’t place monuments in the creek, and 2) the owner’s need for access to the water is paramount. There must be specific language expressing the intent to retain the creek bed in order to overcome the strip and gore doctrine. The center of the creek is the boundary.
I’m also pointing the attorney in the direction of the Strip and Gore doctrine, I’m not sure about the specific procedure that will make the title people happy. He is clearly wishing to avoid court for this issue, which is a nice change.
The south bank was referenced and called out for the description for the subdivision, it was also clearly shown on the plat. There is no navigability concerns or federal or state retention of the waterway.
How many adjoiners in the subdivision south of the south bank of the creek? If only a couple you might work with the client to have those adjoiners sign quit claim deeds to the owner north of the north bank. Describe the scrivener’s error in detail, show them the plat of the subdivision showing they clearly were not intended to have any part of the creek, tell them they will be named in a quiet title action if needed, then present quit claim deeds that are already filled out. This works best if you can get the adjoiners together for a single presentation.
Had something similar once where the client did not want to own the empty strip and was willing to quit claim any interest to the adjoiners. The adjoiners agreed to the deal. It still took quite a bit of explaining, though.
Interesting. So do the lot lines in the subdivision extend to the creek or is there a bend on the bank giving each lot its proportion of the thread compared to its proportion of the bank? Is a surveyor authorized to make these judgments? Wouldn’t it depend on how owners have occupied the creek since the conveyances?
Patent ambiguity – use a boundary line agreement?
.In this case a BLA will not work, at least in this county, you would need title for both sides of the line. Once you have that, then there is no need for the BLA.
There are four, but they will not be involved with the owner to the north.
@linebender
I would go normal to the thread unless that caused some major problem. I agree line is center/thread. Trend in the law is to do away with strict interpretation of “bank” and require explicit language excepting conveyance to center of waterway.
The subdivision plat should have made it absolutely clear that the lots are entirely on dry land. That would have been the most common approach in my region until maybe the past 20 years. No one would want to pay big dollars for underbrush and crap…………..until recently when the world started going insane.
Yeah, the law does evolve. The trend began when instead of having trouble selling such lots at all, they began to realize the highest prices from them because of access to the water. If the courts in that jurisdiction haven’t got there yet I certainly wouldn’t try to lead the way:)
There was a subdivision prior to the existing one, it was vacated and clearly the developer wished to retain lands north of the creek. The first subdivision shows lots on each side of the creek with the common lines in the center of the creek. The second subdivision removed the lots north of the creek and placed the north line of the subdivision along the south bank. The creek is a straight ravine section with high banks on each side. It wasn’t unusual to see these subdivisions boundaries along the bank of the creek in this area. The state does not recognize riparian rights, so being next to the stream was not an advantage as far as water rights are concerned.
Interesting, is it CO? So, if privately owned bed but no right to use the water, then who cares about title? What sticks in the bundle of rights are there left to be an issue over? Call it abandoned and escheat it to the State.
The gap is owned, from the chain of title, by the Johnson heirs, of course the adjoining landowners want to have clean title to the center of the stream. So this is what the attorney is going to “clean up”. I don’t think anyone wants the state to have this, the area is a community that seems to generate boundary conflicts regularly. We even had the sheriff in the office a couple of months ago over one of our surveys down the street from this parcel.
59 BOUNDARIES 72
59I Description 25
59 12 Waters and Water Courses 10
59 13 In general. 917. Glover v. Giraldo
Supreme Court of Wyoming. January 22, 1992 824 P.2d 552
Headnote: Where legal description is specific in its language, naming bank of stream as boundary of land conveyed, grantee’s rights will not extend beyond such specified boundary.
2 Cases that cite this legal issue
Document Summary: Action was brought to quiet title or, in alternative, to establish title by adverse
possession. The District Court, Natrona County, Dan Spangler, J., granted summary judgment for defendants
and plaintiffs appealed. The Supreme Court, Golden, J., held that: (1) deed conveying tract of land between
boundary of subdivision and thence ??along the left bank of said river? was intended to limit grant to shoreline
or bank of river and not to extend grant to thread of river, and (2) plaintiffs were entitled to consideration of
alternative claim of title by adverse possession. Affirmed in part and reversed and remanded in part.
18. Glover v. Giraldo
Supreme Court of Wyoming. January 22, 1992 824 P.2d 552
Headnote: Deed describing conveyance as including land between boundary line of subdivision and thence ??along the left bank? of river conveyed only to bank of river and did not pass title to bed of stream.
2 Cases that cite this legal issue
Document Summary: Action was brought to quiet title or, in alternative, to establish title by adverse
possession. The District Court, Natrona County, Dan Spangler, J., granted summary judgment for defendants
and plaintiffs appealed. The Supreme Court, Golden, J., held that: (1) deed conveying tract of land between
boundary of subdivision and thence ??along the left bank of said river? was intended to limit grant to shoreline
or bank of river and not to extend grant to thread of river, and (2) plaintiffs were entitled to consideration of
alternative claim of title by adverse possession. Affirmed in part and reversed and remanded in part.In the Glover case the Deed descriptions are compatible, they both call for the west bank, so that could change the answer in the case which is the subject of this post. On the other hand, a strict reading limits both grants to their respective banks leaving the stream in the hands of the original Grantor.
Yeah, so now they go back to trial level and argue about adverse possession. And then it can get even stickier as this case that cites Glover shows. Hence, the reason for the trend toward requiring explicit language of exception I think. Evidence and analysis are easy, but you never know what the human factor is going to do; that’s the complex part. Fascinating, at least for those of us that aren’t paying the lawyers.
The centerline presumption, which has been adopted by federal law, and every state that I am aware of, is rebuttable. In Glover it is rebutted by both deeds calling for the same bank. In the case being discussed here there is no apparent rebuttal.
Colorado has a well documented acceptance of the centerline presumption when it comes to roads and railways. I struggle to imagine it not being extended to creeks.
The developer produced a map showing subdivisions on both banks with lines to center from each bank. Later decided to only subdivide one bank and didn’t show lines to center. That could be interpreted to mean the lines were intended to go to the center and that information was inadvertently not shown clearly on the re-mapping or thought not needed because obviously the lots go to center, or it could indicate change of mind. I agree with the courts that say a call to the “bank” is not enough to rebut the presumption to center. Grantees along any sort of watercourse these days have general understanding that purchasing on waterfront they are not barred from it. Probably one of those things that could be judicially noticed, much like the understanding of the average fisherman in the case I linked. But gotta follow law of the jurisdiction.
Interesting case. They are saying the Lusby easement is ambiguous because on the one hand the walking easement is described as one hundred feet wide landward from the right high water line but on the other hand providing for hunting waterfowl and fishing which no one does on dry land. And in fact the public had been fishing and hunting in the river for decades without objection from the landowners. On the Plat the landward easement line is a bold continuous line and the high water mark is light —–…——…—–…—–
Neither case is on the four corners of Mighty Moe’s problem. My memory, which could be faulty, is that he is in Wyoming.
it seems like the original Grantor is out of the picture and most likely both sides own to the thread. If Mighty’s client wants the entire creek then the other side could tie them up in court for a decade or more but Wyoming might get a landmark decision out of it.
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