A 40 acre tract being the SW/4 SW/4 of said Section.
No monuments on the 40 acres. No visible occupation on the 40 acres.
I recover lots of monuments for the section lines. Break it down to the SW/4 SW/4 and come up with 40.81 acres.
I'm sure this question has come up before and I wish I was paying attention at the time but I wasn't working in sectionalized land a the time.
the SW1/4 SW1/4 is 40 acres per the original survey. SW1/4 SW1/4 broken down per manual instruction is the appropriate methodology. 40 acres "record", and 40.81 "as-measured".
(was that the question?)
> A 40 acre tract being the SW/4 SW/4 of said Section.
>
> No monuments on the 40 acres. No visible occupation on the 40 acres.
>
> I recover lots of monuments for the section lines. Break it down to the SW/4 SW/4 and come up with 40.81 acres.
>
> I'm sure this question has come up before and I wish I was paying attention at the time but I wasn't working in sectionalized land a the time.
Acreage is almost always subordinate to the legal description, unless an error is found in the description. Then acreage may be used as evidence to correct the description.
In this case, what in the world would you do anyway? Adjust a line until you came up with 40.00 acres? 40 has only 1 significant figure anyway, so your result of 40.81 acres is exactly the same when rounded to the same significant figures as the original.
I don't think significant figures have anything to do with the situation. There are sections that are so misshapen he could have measured the SW/4 SW/4 as 43 or 36 or 51 acres and the principle as pointed out by Tom above would still apply.
"Each section or subdivision of section, that contents whereof have been returned by the Secretary of Interior or such agency as he may designate, shall be held and considered as containing the exact quantity expressed in such return;" from the manual quoting the Act of February 11, 1805 (2 Stat. 313; 43 U.S.C. 752)
Assuming we are discussing PLSS surveys
> I don't think significant figures have anything to do with the situation.
:good: I agree.
The 40 acres is also part of the "legal description". And per the original distances it is exactly 40 acres. So the original dimensions as measured changes as does the acreages as measured. (ie: the original dimensions would be 20 chains X 20 chains based on the original calls for the original section lines.)
This is Texas
Reminder that this is not PLSS state. If the intent of the grantor was to sell 40.0 acres, then where do have the right to expand the area to anything over 40.0?
In the dignity of calls, I suppose my question is where is acreage vs. aliquot and was the intent to sell by aliquot or acreage? My client is the owner of the W/2, LESS and EXCEPT 40 acres being the SW/4 SW/4.
I think in this case they are saying that the 40 acres is the SW/4 SW/4 and I agree, the measured acreage holds over the record acreage. Thanks for the comments.
This is Texas
> Reminder that this is not PLSS state. If the intent of the grantor was to sell 40.0 acres, then where do have the right to expand the area to anything over 40.0?
>
> In the dignity of calls, I suppose my question is where is acreage vs. aliquot and was the intent to sell by aliquot or acreage? My client is the owner of the W/2, LESS and EXCEPT 40 acres being the SW/4 SW/4.
>
> I think in this case they are saying that the 40 acres is the SW/4 SW/4 and I agree, the measured acreage holds over the record acreage. Thanks for the comments.
Well, without seeing the deed, I would say this: Ejusdim generous (I'm really sure I screwed that up). But it means the specific controls over the general. So, if it says 40 acres, and being the SW 1/4 of the SW 1/4, then I would say that the general is the acreage call, and the specific is the SW 1/4 of the SW 1/4 and that the 40.81 acres is proper (assuming you did everything right) and roll on brother.
Just my 0.04' 🙂
This is Texas
> Reminder that this is not PLSS state. If the intent of the grantor was to sell 40.0 acres, then where do have the right to expand the area to anything over 40.0?
>
> In the dignity of calls, I suppose my question is where is acreage vs. aliquot and was the intent to sell by aliquot or acreage? My client is the owner of the W/2, LESS and EXCEPT 40 acres being the SW/4 SW/4.
>
> I think in this case they are saying that the 40 acres is the SW/4 SW/4 and I agree, the measured acreage holds over the record acreage. Thanks for the comments.
The answer is, of course, that "it depends". It depends upon the history of conveyances and how the senior tracts were described. As far as I'm aware, the term 1/2 has the usual and accepted meaning of "one of two equal parts into which anything capable of division may be divided" or "one of two approximately equal parts into which a thing has been divided". Similarly for 1/4.
It is true that there is a construction of 1/2 that can be called "the customary West Texas half" that is derived by splitting any approximately rectangular tract by a line drawn between midpoints of the appropriate pair of opposite sides and the decision in Pruett v. Robison has been cited as the rationale for this. However, if you actually read the case, the record indicated that the survey in question was exactly rectangular. So the language of the court as holding that the division line between the halves was to be drawn between midpoints of opposite sides cannot be distinguished in the results from a division by equal areas.
What was at issue in the case was whether a half of a survey oriented about 27 degrees off cardinal was to be in the form of a triangle or rectangle.
So, to the original question: if the SW 1/4 of the SW 1/4 was conveyed in implied reference to an earlier scheme of subdivision, then any later conveyance of the West 1/2 is probably best understood in relation to that earlier subdivision (if on paper). I would not lose track of the principle that ambiguities in deeds are ordinarily construed against the grantor. So, if the calls for 1/4 of a 1/4 and 40 acres are ambiguous and that is the senior grant, the construction that favors the grantee is probably not to be casually disregarded.
The problem of dividing a quadrilateral survey into four parts of equal area isn't indeterminate if you begin from the premise that the corners on the exterior of the survey will be at the midpoints. There is then exactly one position for the interior common corner that divides the survey into four equal parts.
This is Texas
In that case, with no monuments or possession lines I would fall back to the 40 acres to the grantee and any left over to the grantor. The grantee is only really entitled to the 40 acres independent of the grantors acreage accuracy. If there were monuments I would say hold what you found if within reason, but in this case you are cutting out the 40 as opposed to retracing the 40. I really think you are the original surveyor for that 40.
0.02'
This is Texas
I have title back to the original 1960s division and it is same as the current description pasted into the latest deed. My owner's description is actually the NW/4 and SW/4 and then the Less and Except comes from a 2013 affidavit. My owner might be the original divider. If he is still alive I might query him on his intent when we go back to the field.
Kris, when I was researching Texas case law, I did come across a case about general and specific descriptions and got the same gist from it. I'll have to look again for the citation when I have time.
This is Texas
> My client is the owner of the W/2, LESS and EXCEPT 40 acres being the SW/4 SW/4.
>
> I think in this case they are saying that the 40 acres is the SW/4 SW/4 and I agree, the measured acreage holds over the record acreage. Thanks for the comments.
I'll go out on a limb here and perhaps get beat up. It seems that all you needed to survey in was the SW, W 1/4 & S 1/4 cors and not break down the entire section. You're not surveying the W 1/2, your surveying the SW 40 acres. So make it 40 acres, with the N line parallel to the S line, and E line parallel with the W.
This is Texas
Good point on it being in Texas.
If it says "A 40 acre tract being the SW/4 SW/4 of said Section" and not "a 40 acre tract in the SW/4 SW/4", then it would make sense to me that the SW/4 SW/4 would hold and the 40 acres would be about 1/16th the size of the "whole". (was the original call for the full section 640 acres?).
I am not a Texas surveyor, of course. I am only looking at the language of the description you are providing.
edit: We need the category for "Land Surveying" and another for "Texas Surveying" . 😉
This is Texas
> I have title back to the original 1960s division and it is same as the current description pasted into the latest deed. My owner's description is actually the NW/4 and SW/4 and then the Less and Except comes from a 2013 affidavit. My owner might be the original divider. If he is still alive I might query him on his intent when we go back to the field.
Well, the important facts would be how all of the tracts were described in the original division and which were senior, if any. If it was the partition of an estate, then one would conclude from Texas case law that 1/4 would ordinarily mean "one of four equal parts by area" and 40 acres is merely an estimate (presumably all four parts were conveyed as 40 acres on the theory that the whole was 160 acres).
This is Texas
> edit: We need the category for "Land Surveying" and another for "Texas Surveying" .
Actually that would be "Land Surveying" and "LAND Surveying".
This is Texas
I had to survey the whole section as my client owns the W/2. The 40.81 acres is the less and except from his aliquot description.
This is Texas
Kris, It was Ford V. McRae 96 Southwestern 2nd 80, 128 Tex. 106 1936. Aliquot general held over particular description because the court deemed it best evidence of intention, although without reading the case notes, not sure if it is applicable in this case. Will try to find it tonight to read.
This is Texas
It depends. Gosh, that answer comes so easily. Because,it really depends on what the author of the description meant. Dam nit, must be hanging out with too many lawyers.
The SW4/SW4 of something approximately rectangular involves midpoints of lines and the connection of lines between said midpoints, eventually arriving at said aliquot. The actual area is subordinate. It must be subordinate because the borders of that aliquot must agree with the borders of the adjoining aliquots, e.g., SE4/SW4.
Also, we all understand the meaning of "more or less" which we find and/or insert routinely to clarify intent over anal retentive calculations.
If the intent had been to create a tract with all sides having the exact same lengths when the southwest corner of said tract was also the southwest corner of the section then the wording should have read differently. That would be a "square" tract of 40 acres in the southwest CORNER of the southwest QUARTER. Of course, surveyors immediately recognize that it will not be a perfect square as no one has ever set monuments that are 90.000000000000000000000000000000 degrees relative to one another.
This is Texas
I disagree a bit. A landowner might want to transfer 40 acres and it would be the scrivener's task to make sure the appropriate intent is correctly written. I don't know why people have such issues with area. We never seem to have an issue with a distance not being precise to 10 places behind the decimal.
In most (if not all) PLSS states, to fractionally divide a section you need to connect opposing midpoints, but Texas is not in PLSSia so I don't know what their instruction booklet says. But regardless, I would agree that the above would be fractional and not by area by interpretation of the language used.
> A 40 acre tract being the SW/4 SW/4 of said Section.
>
> No monuments on the 40 acres. No visible occupation on the 40 acres.
>
> I recover lots of monuments for the section lines. Break it down to the SW/4 SW/4 and come up with 40.81 acres.
>
> I'm sure this question has come up before and I wish I was paying attention at the time but I wasn't working in sectionalized land a the time.
Based on the first statement, I would hold the 40 ac as the SW/4 SW/4 would be a descriptor of the 40 ac. The aliquot descriptor is extraneous.
