>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
> 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.
Mike - You're right to question the "principle." I've found only one case that comes to mind where the courts ruled a "strip" to be owned by the heirs of the original party. In that case, there was never a question raised that the survey, which showed a 13-foot "gap," could have been wrong. They only argued about who owned the "gap." Obviously, it was a "gap" not owned by either party, so the court sent them home unresolved. Like I say, though, I've only found one case so far where that was done.
JBS
Never liked that principle either Jay. But indeed Brown's is fairly specific about how to handle it....of course they do have to throw in that horrid word "probably."
JB, that Washington case of Dave’s and what you’re saying goes along with what I would think is right. However…… Steve had a good point above about the description being “Parcel 2” of such and such plat. On the face of it “Parcel 2” is a perfect deed description, needing no further elaboration. The supporting and tantamount document (subdivision plat) that created Parcel 2 also monumented it so in a perfect world the buyer knows exactly where his ownership ends. Maybe Brown’s principle is because the courts are loath to go outside the “four corners” of the deed? On the other hand, in a situation where a metes and bounds description shoots a distance of 100 feet due north up to a section line, then calls along the section line, and later the section line is determined to be 5 feet north of the 100’ distance call, the boundary call for the section line’s true location should trump the distance. Why not with a subdivision? I’d think that if the plat's subdivision certificate, describing the plat’s boundary, has calls to and along the adjoining boundaries that it could be strongly argued that the intent was to subdivide the description and the lot's sidelines were intended to extend to that boundary.
Bill
yeah that kind of made me a little wide eyed too. But I don't have the case in front of me so maybe it made sense in the circumstances, can't say for sure.
JBS
You wouldn't think so, but with the passage of time and acquiescence and reliance by the parties on both sides of the erroneously mapped and monumented line, strange things can happen.
>... On the other hand, in a situation where a metes and bounds description shoots a distance of 100 feet due north up to a section line, then calls along the section line, and later the section line is determined to be 5 feet north of the 100’ distance call, the boundary call for the section line’s true location should trump the distance. Why not with a subdivision? I’d think that if the plat's subdivision certificate, describing the plat’s boundary, has calls to and along the adjoining boundaries that it could be strongly argued that the intent was to subdivide the description and the lot's sidelines were intended to extend to that boundary.
Mike... You're describing a situation which was precisely the issue in a recent MT case where the section line wasn't 5 feet off, it was 108 feet off! Lot corner monuments existed on the ground. Distance is irrelevant when you are talking about legal principles which are designed to resolve boundary issues.
Olson v. Jude , 73 P.3d 809 (MT 2003)
JBS
JBS
> You wouldn't think so, but with the passage of time and acquiescence and reliance by the parties on both sides of the erroneously mapped and monumented line, strange things can happen.
Steve... You are absolutely right. The equity doctrines which involve representation, reliance, recognition, acquiescence, etc., are all designed to resolve boundary problems. They are designed to bring stability in land boundaries and to prevent litigation and strife over boundaries. The only way for those doctrines to work is if surveyors consider them, understand them, and apply them when making their boundary determinations. When surveyors ignore them and they're not applied, litigation ensues. How can the legal principles which govern how boundaries are established work effectively, unless surveyors are willing to apply them?
Instead, we've been taught that it's not "our job" to apply them and that they are "strange things." The only thing that makes them "strange" is our unfamiliarity with them. Once you get to know them, they're no longer "strangers."
;o)
JBS
I don't have the 4th Edition here, but in the 3rd, Section 6.43 seems like the same basic info as what you have been referring to from 12.42, 4th Ed. In the 3rd Ed, under "limitations", it states: This rule cannot apply to small insignificant errors or cases where the original subdivider's monuments cannot be found. Where a subdivider indicates by his title that he subdivided all his land and no monuments on the ground indicate otherwise, it must be presumed that all his land was intended to be subdivided.
So does "small insignificant" refer to a portion of land which is insignificant in terms of a parcel size or insignificant in terms of measurement errors?
A 5' x 100' triangular portion would certainly be insignificant if one were trying to argue that the original subdivider intended to retain that portion, but 5' of measurement error over 100' distance is quite significant.
If one takes the view that the gap exists, does it make a difference if the line where the gap supposedly is was clearly labeled on the original subdivision plat as being the line mentioned in the deed (ex: North line was supposed to be the N line of the section, subd. mons leave a gap between monumented N line of subd and retraced N line of Section). Doesn't that expressed intent clearly show that there was no intent by the grantor to retain any portion? Wouldn't the corollary to the logic that is used to shorten an overlapped line dictate that you must lengthen a sideline to close the gap where it is clear no gap was intended?
My understanding has always been that in such a case, intent was clear to divide only what the subdivider owned and all of what he owned, that apparent gaps and overlaps such as these, setting aside for the sake of this discussion any matters of prescriptive rights or acquiescence which may exist, are dealt with by extending or lengthening the sidelines to meet the intended line and the clearly stated intent.
Where the surveyor was creating new lines or otherwise establishing lines on the ground for the first time, monuments are presumed correct. Where a previously established line exists and a portion of that line is identified as an exterior boundary of the subdivision, the boundary survey that is the exterior lines of the subdivision cannot change the actual location of those lines previously established (again setting aside for the sake of this discussion any matters of prescriptive rights or acquiescence which may exist).
Anybody have cites to cases on point?
I think it is primarily a question of evidence, not law.
The Surveyor made a blunder; does the Surveyor's blunder (unknown to the owner) translate into intent by the owner? I think not.
