Activity Feed › Discussion Forums › Strictly Surveying › Scrivener’s error (I think)
Yeah, a lot going on in this case; judicial notice, different line types, non-merger of contract for sale, calls of on the river interpreted as not calling the river a monument, only metes & bounds if it closes, etc.. None of which is necessary if they use the rule that the presumption to centerline controls on a grant bordering a water body unless specifically and explicitly excepted/reserved. I mean, they really have to stretch things in this case to overcome the language and carry out the intent in spite of it.
What I find interesting is how boundaries near water work at various locations around the US. Here, if I abut a creek bank I may stop just short of the top of bank or I may own to the thread of the creek. It depends on the words on my deed and the words on my adjoiner’s deed, which are easily found in the courthouse thanks to the indexing available to all. Owning to the thread is a PITA as this is largely livestock country. Sharing fences is bad enough on dry land. Sharing any kind of fencing attempting to cross water is ridiculous.
Our neighboring State thinks the whole world deserves to have use of everything between the banks. My State abhors that thought. It is MY property. Only my guests are welcome. Surviving trespassers will be prosecuted.
Our daily experience flavors our thinking on what is the correct way to do things. This bleeds over into our recommendations to clients doing property splits that involve any kind of water. I am doing a survey currently that goes against the grain of my way of thinking but the silly client and his equally silly seller have already agreed to a course of action. An existing pond with about four surface acres will be split about 70/30 (surface area) and about 30/70 (dam length to maintain). The dam sits on the high bank of a significant creek such that a portion of the dam is very deep to original ground surface while most of it relatively shallow. The one owning the most difficult dam stretch to maintain is getting the least surface acreage. Fencing from the water’s edge up and over and down the back side to the drop-off into the creek will be very difficult to build and to maintain. Fencing into the shallow end of the pond will never be adequate when a severe drought hits. Yes, fencing will be installed, because both sides have livestock. Not nearly so many livestock as to need more than an overgrown puddle in most years, though. An added negative thought is that one side will almost definitely have a different owner within five to ten years, which may lead to issues of fence maintenance and rights to boat around on the entire surface. On a side note, there are remnants of about half of two houses somewhere out in that pond slowly rotting away. A tornado passed directly over that pond in April 2000 and deposited major portions of two houses into it. A third house located a few hundred feet to the north of the pond effectively disappeared entirely. I remember the night of that tornado well as there were two tornadoes on the ground at the same time on parallel paths roughly ten miles apart. Our home at the time was in the gap between them so we were safe.
Not going to happen.
- Posted by: @holy-cow
An added negative thought is that one side will almost definitely have a different owner within five to ten years, which may lead to issues of fence maintenance and rights to boat around on the entire surface.
Help them get it in writing NOW what rights and responsibilities belong to whom, so it isn’t an argument down the road.
. “Not going to happen.” That comment was for aliquot’s post not Bill93’s post.
Things sure can get out of order around here.
@linebender
- Yes. Yes. And yes.
I think y’all are missing the point. The strip and gore doctrine IS the solution. There is no problem to fix. It was standard practice to map and describe to the bank as it identifies the usable upland. Title automatically is appurtenant to, attached to, part of, included with the upland to the middle of the stream. A survey which shows a gap would be erroneous. The LAW requires the title to pass UNLESS it can be proven there was an expressed (in writing) intent to retain the ownership. No need for an attorney. No need for an agreement. No need to change the description. No need to modify the plat. Only need is to obey the rule of law and show the boundary down the middle of the creek.
The recent survey “that monumented the bank” would be correct. Monuments should go on the bank. They are marking closing corners, not the terminus of the boundaries. The closing line between corners that follows the bank is also a correct way to depict the useable upland for area calculations. The closing (meander) line doesn’t represent the boundary. The middle of the creek is the boundary. It would be nice if the plat and the recent survey depicted the location of the creek bed and the boundary along the middle of the creek, but the law doesn’t really require it (even though that’s where legally it falls). Personally, I’d show the corners on the bank, show the connecting (meander) line along the bank in a dashed designation with bearings and distances, show the banks of the creek, and show the boundary running along the middle of the creek without dimensions. I’d also be calling the job done. No need for an attorney or courts. They don’t determine boundary locations. Surveyors do.
From our state survey code
“Meander line” means a traverse approximately along the margin of a body of water. A
meander line provides data for computing areas and approximately locates the margin of the
body of water. A meander line does not ordinarily determine or fix boundariesThe course of each boundary line shown on the plat may be indicated by a direct
bearing reference or by an angle between the boundary line and an intersecting line having
a shown bearing, except when the boundary line has an irregular or constantly changing
course, as along a body of water, or when a description of the boundary line is better
achieved by measurements shown at points or intervals along a meander line or an offset
line having a shown course.They hold to the Glover rule then explain the Deed is ambiguous which allows them to bring in the extrinsic evidence of the intent being the thread of the river.
The California courts will allow extrinsic evidence in just about all boundary cases. They usually say they are merely defining the exact location, not changing the Deed.
Yes, it’s ridiculous. Clearly the government screwed up and accepted something less than they bargained for, or the contract was changed to a lesser easement because the government couldn’t come up with what the grantor wanted for the more expansive easement. They didn’t just allow extrinsic evidence to help interpret, they used the contract for sale in place of the actual contract. The description is not ambiguous and even adds language of the intent “walking easement”. The only thing that saves it without legal fiction and screwing up all the other rules is if they would have used the rule that express exception is needed to retain lands under water. Crazy decision that I doubt would have gone that way if the government were not one of the parties.
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