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Which description controls?
I am working on a boundary survey of the lower one-half of a farm that was formerly 92.40 acres. The entire farm was made up of two tracts, 87.40 acres and 5 acres. The 87.40 acre tract has a good description; the 5 acre tract does not but I have figured out where it was located, based on a name mentioned in the description and information gathered from other property owners in the area.
The description of the division line between the upper one-half and the lower one-half seems to contradict itself. It is written as follows:
The division line between the said lower one-half of said land and the upper one-half, begins at a point in the right-of-way line of said agreed Kilgore Creek Road half-way between the extreme lower and agreed upper corners of said two tracts of land fronting on said Kilgore Creek Road, or Creek, about 1500 feet.
Thence from said beginning point away from the creek and road up the hill in a straight line to the extreme back boundary line of said land to a point midway between the extreme back corners of said land, so that each of the two halves would be approximately the same size and will contain about 46.20 acres, be the same more or less, grantor retaining the upper half, including the second tract.
It was agreed by contract between the parties hereto that said division line should follow, so far as practical, the natural topography and contour of the land, so as to be to the greatest benefit of the both parties, and that in the event the parties agree to have a survey made, the same shall follow substantially the above mentioned division line, and at the same time comply as near as may be with said agreement, and the parties agree to execute further instruments, if necessary, in conformity with such survey.
This is rural, mountainous land. In the event that nothing is found along the boundary that would suggest establishment (very likely based on preliminary observation), which of those descriptions would control the location?
I have already spoken with my client and the owner of the upper one-half and told them that it may be necessary to prepare and sign a boundary line agreement to settle this but in the event of a disagreement, which would you hold? Why?
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