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Upon or Along?
Carl’s thread today regarding “in”, “at” or “by” when referring to deed books got me to thinking about a methodology change I made with my descriptions several years ago.
For years, when following an existing line in a description, I would say “along”. But then our surveying department was discussing descriptions one day in a meeting, and this issue became an interesting topic. By the end of the meeting, most of us had agreed that “upon” may actually be a better way of expressing what we meant in those cases.
“Along” could technically be considered a line running near to or parallel with the line you are referencing. “Upon” explicitly says that you really are following that existing line exactly. For example:
BEGINNING at the Northwest Corner of that property described in Schedule 2 of Instrument No. 2003-04465 as recorded in the Deed Records of Yamhill County, Oregon; thence upon the West Line of said property, South 0° 19’ 19” West a distance of 353.23 feet;
What say you?
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14 Replies
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…North 10 degrees 56 minutes East, along and congruent to the North line of that tract or parcel described per document 98-1056 as filed in the records of the Circuit Clerk of Pulaski County, Arkansas in Warranty Deed Book 10 at page 56, on April 01, 1998, for 1056 feet to a found maytag agitator…
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BEGINNING at the Northwest Corner of that property described in Schedule 2 of Instrument No. 2003-04465 as recorded in the Deed Records of Yamhill County, Oregon; thence upon the West Line of said property, South 0° 19’ 19” West a distance of 353.23 feet.
I believe that I will not be using the word, “upon”, in descriptions of this type. The line in question is described as the West Line of said property and thence along that line is clear and in common use. I will continue using along.
jud -
One of my surveying books sugges the use of “with” i.e. Thence N 89d50’30” E with the North line of this tract. The book mentioned that the word along should be used to indicate that the line runs near to a line.
Cy
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Upon or Along? – neither
…to a corner, thence with the line of so and so ….
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Upon or Along? – neither
I’m with Jud. I don’t see how “along” is confusing if you write “to the centerline of Gardner Avenue; thence along said centerline…” Next question: is it “centerline” or “center line”? I don’t see anybody using “upon” or “with” around here.
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> What say you?
The man stood upon the log, then ran along the path.
Along is what is proper .
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Upon or Along? – neither
I’m with Jud and Steve “along” is not confusing when written with to…. be it to a point, a concrete monument, a wood stake, a wood post, a pipe, or the last row of potatoes planted in 1956 (I saw this once in a deed).
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I seem to remember mr wattles saying that along is for water courses and with is to show you are in the same old line.
THENCE north 89 deg 23 min 42 sec west, with the north line of said 10 acres, 500 feet to a point in a creek for the nec of said 10 acres
THENCE along the center of said creek as follows:
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Yeah, I agree. If you don’t know exactly where it is, then you say “with”. Seems like an intentional abiguity when writing about something one is not sure of.
If I know where something is, and I want to convey property to end precisely at or along that object, then I will say so. To such and such, or along it.
If a landowner writes a description, we can use common sense and common usage of words to find the boundary.
If an attorney writes a description, we must assume that includes anything and everything that might possibly be claimed in the best interest of the client.
If a surveyor writes a description, we have to use the meaning of the words as known in the profession.
Any description is good enough for the statute of frauds or a particular States comparible statute. But if there were one language that could evolve, it would seem that would be in the interest of more stable land boundaries. I suggest that surveyors only write them. But the constitution forbids interference with private contracts. This has been modified or interpreted by the courts, but is still pretty much in effect.
At any rate, the key is what the parties to the contract meant at the time of the transaction. Does the preponderance of the best available evidence indicate touching the monument or being offset from it?
If all you have is the deed language, and it’s ambiguous, then most jurisdictions have held that the monuments holds.
To and along a river v. to and with a river? The presumption is that conveyance of property adjoining a water body would not withhold the waterbody (same with roads or any other normally beneficial or unique situation). There might be reasons to withhold it, but if there are they should be stated, and withholding it can’t be presumed.
So, you see, the critical language here is “a river, etc…”. I’m sure it’s been interpreted in differing ways by the courts, but I would argue that the monument has not been departed from in either wording. And that it must be specifically departed from in order to limit the conveyance.
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To and along a river and to and with a river are both ambiguous because neither one defines what part of the river the description goes to. If it defined the bank or the flowline or the thread or the thalweg, then said along, there would be no ambiguity.
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And another thing: Who is Wattles, like Moses or something? I agree he has some good ideas just like Brown and all the other surveying writers, but shoot, they didn’t write statutes and I don’t know of any Appellate or Supreme Court decisions that hinged on Wattles or Brown or any other textbook, do you?
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Steve
didn’t you hear the story how Wattles came down from Mt Whitney (in a lightning storm after his hair and beard turned grey) with two yellow tablets with purple text on them?
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Wendell:
Well…i’ll get flamed for this, and worst of all it flies in the face directly against Wattles; but, i use “on and along”.
First, to indicate that i’ve aquired what ever line is called out, then to indicate that my course is following coincident with that historic course that is cited. That makes it clear that i’ve acknowledged a certain line; and secondly, that i’m going to follow it on it.
Maybe it ain’t pretty, but it is clear and certain my position and course.
My mentor used this and introduced me to this some 30 odd years ago and it works. And yes, i know Wattles doesn’t like it. This is merely how i do it. We all have idiosyncracies in our various applications. Work out what best suits you.
dla
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I don’t think I’ve ever seen ‘upon’ used that way. It is not a word that is used in these parts except at the beginning of fairy tales.
If I am following anything road creek ridge, what ever it may be, I use ‘with’.
I will use ‘with the meanders of’ for instance. I will then place calls ‘along’ this item (river drain creek etc.) as closely as I can locate it. But my calls are junior to the senior call for the meanders.
If I am nearly following but not exactly following something I use ‘along’ to let others know it is not bound by said item. It is only mentioned so they know the line should be in close proximity to said item not ‘with’ said item.
For instance. Thence ‘generally following along’ said road down the hill. The surveyed lines are senior in this case and the road is junior to said surveyed lines and is only mentioned as a guide to finding the boundary location.
The core meaning of ‘with’ and ‘along’ could be interchangeable. However I can’t I desribe these as identical. Just how it was done in these parts.
If I see ‘along’ I know they did not intend to follow it exactly.
If I see ‘with’ I know they did intend to follow it exactly.
If I see ‘upon’ I know I need to come to this board so somebody can tell me what the heck they meant by it.
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