I know nuthink other than:
Surveyor Surveys a Deed and creates a 2 Lot Subdivion Plat duly signed by the property owner, County Surveyor (for compliance with the Tentative Map) and filed at the County Recorder.
A few years later it is found that the exterior boundary of the Deed was not properly Surveyed on the north line. The north line was held parallel with a street to the north. This is a mistake because the line shown on the map is correct on the west but too far south on the east (leaving a triangular 'gap').
Monuments (which exist and are found) mark the north line of the Subdivision and the north line of Lot 2 (Lot 1 is not affected). These monuments fit the mathematics on the map nearly perfectly but the east one is 5' south of where the original Deed would put it (hopefully that makes sense).
Just for discussion I will arbitrarily say the north line is 100' long and the Deed indicates the east end should be 5' further north. The north adjoiner has no desire to somehow claim the apparent gift of 5'; they just want only what belongs to them.
I know what I think but I am not an authority and certainly am open to possibly seeing the error of my opinions.
No other information is available. The subdivider doesn't know anything, Lot 2's owner doesn't know anything except there is a rebar right next to his northeast fence corner and the owner to the north doesn't care too much because this is way in the back of his property.
Question 1:
What is the north boundary of Lot 2? The original Deed boundary or the monumented boundary?
Question 2:
Is there, using common Land Surveyor jargon, a gap or third Lot? If so, who owns it?
> Question 1:
> What is the north boundary of Lot 2? The original Deed boundary or the monumented boundary?
>
> Question 2:
> Is there, using common Land Surveyor jargon, a gap or third Lot? If so, who owns it?
To put the question another way, I'd ask it so: "Does a deed from the subdivider conveying land described as Lot 2 according to the subdivision plat convey to the subdivider's North boundary or only to the north line as shown on that plat and monumented on the ground?"
In Texas law, the controlling factors are the subdivider's intentions, particularly the absence of a stated intent to reserve some irregular snippet of his land from the subdivision, and whether the plat shows that the subdivider intended to subdivide his entire parcel.
The clues to the latter would ordinarily be found in the owner's dedication statement that describes the land subdivided and in the representations on the plat itself, i.e. whether the North line of Lot 2 is represented as being the boundary of the adjacent property, the only discrepant elements being the actual position in which the line was marked on the ground.
Under the so-called Strips and Gores Doctrine stated in the Texas case of Cantley v. Gulf Production Company, the construction of the plat that eliminates the triangular gap is ordinarily the proper one, i.e. Lot 2 includes the triangle adjacent.
1. Original Deed
2. No gap
However, that's not to say that some equitable issue couldn't be raised if one of the lots turned out to be below the legal minimum size and hence unbuildable, but would be if the land in the gap adjoining Lot 2 were used in reconfiguring the subdivision to give the lots each at least a minimum buildable area.
So nobody believes Boundary Control & Legal Principles when the 2nd Edition says the lot can't go beyond the original monuments and a separate parcel remains with the subdivider and the 5th Edition waters it down some to "should" and "probably" but basically says the same thing?
Dave's example is eerily similar to a real-world example I posted on CLSA Forum where the main question is how the CA Subdivision Map Act specifies how to deal with this situation and whether it can be done with a Certificate of Correction or an Amended Parcel Map.
The solution is probably so state-specific that replies are likely to be all over the place. If nobody does anything to correct the map, who owns the triangle? I've seen court cases where it was ruled that the erroneous Parcel Map line is the boundary after a while by acquiescence or some such concept.
You know what I think with the caveat that under certain circumstances the monumented boundary could become the boundary although originally erroneous due to constructive notice of the map and the fact of the monument. I still don't think there is an extra parcel under any scenario, though.
I left out the Certificate of Correction vs Ammending Map because that seems to be CA specific.
> So nobody believes Boundary Control & Legal Principles when the 2nd Edition says the lot can't go beyond the original monuments and a separate parcel remains with the subdivider and the 5th Edition waters it down some to "should" and "probably" but basically says the same thing?
Not sure about CA, but in VA intent would rule. From Dave's scenario it appeared to me that the intent was to make 2 parcels out of 1, with no retained portion.
Sure, they certainly intended to subdivide everything they owned, no more no less. The little problem, maybe not everywhere but in CA, is that the subdivider has already transferred the parcel with the description "Parcel 2 as shown on that certain Parcel Map recorded in Book X, at Page X". The CA court case I'm thinking of ruled that no matter where the parent parcel's boundaries are in relation to that mapped and monumented parcel, all the grantee gets is the parcel shown on the map and monumented per that map. In that case, though, the adjoining parcel had also been subdivided using the same erroneous boundary and parcels had been granted "as shown" on the adjoining map too.
Is the parcel big enough for me to nap on?
Mr. Bun
I think you would find it quite roomy on the east end but increasingly cramped as you go West. The larger mammals such as ourselves would probably not find the parcel by itself viable for even a napping area. If the parcel comes up for sale, I could have them call you, but I'm not sure yet who the seller would be.
Steve
I am sure there are some VA surveyors that would not agree with me.
The case Steve refers to is a little more severe and involved a lot more potential damage to the Parcel which was occupying (for a long time) the triangular piece including a house. This case is a lot less severe and the Parcel with potential to gain doesn't seem to want the land. I'm not sure about occupation though. I don't think there is anything significant and costly in the 'gap' such as a house.
Steve – that’s what I was thinking too. Brown’s statement that the gap is still owned by the original subdivider. I’ve never liked that “principle”, but it must have been based on solid case law throughout the US. Perhaps it is dated and the higher courts are beginning to rule on the intent? Which makes more sense. Law is a funny bird though, and boundary law does not change much over time.
In the more severe case, the house was built in the disputed area while it was in dispute. Claims were made as to historic occupation but they were unfounded. As far as I could tell, the case hinged mainly on the descriptions of the parcels which were based on a long-standing recorded map that was surveyed, mapped and monumented incorrectly. In the less severe case that's the subject of this thread, I don't think anything of value is located in the triangle. The adjoiner is just curious where the line is because she thinks there are some irrigation lines that are leaking that are running up her water bill and she wants to know whose property they are on. It might actually turn out to be to her advantage for the property line to move in her direction from where the parcels were mapped and monumented.
In the fourth edition in the first example (Section 12.42), Brown appears to simply give his opinion that the parcels should not be extended with no case reference to back it up. Then the contrary example he gives is an actual Washington case where the court did include the extra land into the subdivision.
"In Washington, 4-1/2' surplus was found to exist between the street and the subdividers' true boundary line. The court ruled that when the lots, as marked on the plat, occupy the entire space between the north and south boundaries of the tract the excess must be apportioned among the lots." footnote 39 which is Booth v. Clark, 59 Wash. 229 (1910).
So his only example refutes his given principle.
>the excess must be apportioned among the lots
So much for repose. If I had a house in the second lot, I sure wouldn't be happy about my lines moving to give everybody down the block their share, possibly leaving me with negative setback.
I think the gap belongs to the original subdivider. You can argue he had no intent to hold onto a sliver, but unless he had a statement on the map that he intends to subdivide all his holdings in the area... his intent to subdivide according to the monuments on the map is indicated by his signature on the owner's statement on the map.
Brown's BC&LP 5th Edition 12.42
Never liked that principle, common test question on California exam though. I will have to look up that "Strip & Gore Doctrine" from Texas as it sounds as if it makes good common sense.
> Not sure about CA, but in VA intent would rule. From Dave's scenario it appeared to me that the intent was to make 2 parcels out of 1, with no retained portion.
I'm curious... does anybody live in a jurisdiction where the intent doesn't rule? I haven't found one.
I agree with D.J.'s take on the intent. Seems pretty clear, but can get pretty specific as far as expressed intent.
JBS
> Under the so-called Strips and Gores Doctrine stated in the Texas case of Cantley v. Gulf Production Company, the construction of the plat that eliminates the triangular gap is ordinarily the proper one, i.e. Lot 2 includes the triangle adjacent.
Most jurisdictions don't use the terms "Strips and Gores" like TX, but the concept is the same. I agree with Kent.
JBS
>The little problem, maybe not everywhere but in CA, is that the subdivider has already transferred the parcel with the description "Parcel 2 as shown on that certain Parcel Map recorded in Book X, at Page X". The CA court case I'm thinking of ruled that no matter where the parent parcel's boundaries are in relation to that mapped and monumented parcel, all the grantee gets is the parcel shown on the map and monumented per that map.
That logic certainly wouldn't hold up if the monuments were placed clearly into another's property.
JBS