dmyhill, post: 355195, member: 1137 wrote: Yeah, but a "40" is never really 40 acres. It is a quarter of a quarter of a section. And I have seen it different ways. Sometimes this comes up with a call like "the north 660 feet of the east 660 feet of the NE1/4 of the NE1/4". Well, since that is what would make a "40" one might wonder if they meant to simply divide the land at the 1/32 line. So, you go back to: What was the intention? That is hopefully seen in evidence on the ground and on paper. It is not uncommon for "660 feet" to have been considered to an aliquot division. It is not our job to measure a better 660 feet than the grantor, rather it is our job to discover what the grantor/grantee meant by 660 feet.
Another way to word it, is that the "40" is legally 40 acres per the original 'subdivision' layout. Transferring away the south 30 could easily be considered the south three-fourths of the whole. (I still contend that you could interpret that description more than one way, and accordingly could be considered ambiguous. Correcting it to better wording of the original intent or current understanding would be the ideal solution.)
I thought the "Age Old PLSS Question" was: why couldn't you leave well enough alone?
I've got a good idea, let's set up a land tenure system where there is an authoritative underlying framework that allows one to bring in locations from afar that are almost never in agreement with local monumentation and possession at the the locus of the survey...said no one ever. :-O
Tom Adams, post: 355283, member: 7285 wrote: I still contend that you could interpret that description more than one way, and accordingly could be considered ambiguous. Correcting it to better wording of the original intent or current understanding would be the ideal solution.
I agree, Tom. The "south 30 acres" can be construed in a number of ways. Could be the south 3/4, the south 990 feet, or a sliding line parallel to the south boundary including exactly (+/-) 30 acres. Ambiguities in deeds are explained by gathering the extrinsic evidence. If some surveyor/landowner has made a good faith attempt to locate the boundary using any one of the methods resulting in the physical establishment of the boundary, then I'm putting on my retracement hat and following those footsteps to document where I found the boundary to have been previously established. It's of no importance, as a retracing surveyor, to interject my opinion as to "how it should have been done" (which is another way of saying, "Well, I would have done it differently."). A retracing surveyor has no authority to "fix" or "change" the boundary once it's been established in good faith.
Another "food for thought" is that ... technically ... the "south 30 acres" should be interpreted according to state law, not federal rules in some manual of instruction written for federal employees. The term makes no reference to the PLSS system and the landowner (a citizen of the state) can choose to divide his property any way he chooses (don't even try to explain that to the p&z folks). The "south 30 acres" fails to describe the dividing line being created, therefore the grantee has the authority to decide how to configure the line. A call for area under common law does not determine the location of the line. (Presumptively, the sliding line method is preferred).
One also needs to be very careful when "correcting the description" is considered. The courts are very strict about the conditions necessary for a corrective deed to be executed.
JBS
Tom Adams, post: 355283, member: 7285 wrote: Another way to word it, is that the "40" is legally 40 acres per the original 'subdivision' layout. Transferring away the south 30 could easily be considered the south three-fourths of the whole. (I still contend that you could interpret that description more than one way, and accordingly could be considered ambiguous. Correcting it to better wording of the original intent or current understanding would be the ideal solution.)
Do we know that the "40" is long from only reading the deeds? Did the rancher expressly reserve a strip between the two parcels? Highly doubtful and apparently not.
CBI Indus., 907 S.W.2d at 520.
An ambiguity in a contract may be said to be "patent" or "latentÛ. A patent ambiguity is evident on the face of the contract.
What extrinsic evidence do we have? What parol evidence do we have? None yet.
JBStahl, post: 355289, member: 427 wrote: I agree, Tom. The "south 30 acres" can be construed in a number of ways. Could be the south 3/4, the south 990 feet, or a sliding line parallel to the south boundary including exactly (+/-) 30 acres. Ambiguities in deeds are explained by gathering the extrinsic evidence. If some surveyor/landowner has made a good faith attempt to locate the boundary using any one of the methods resulting in the physical establishment of the boundary, then I'm putting on my retracement hat and following those footsteps to document where I found the boundary to have been previously established. It's of no importance, as a retracing surveyor, to interject my opinion as to "how it should have been done" (which is another way of saying, "Well, I would have done it differently."). A retracing surveyor has no authority to "fix" or "change" the boundary once it's been established in good faith.
Another "food for thought" is that ... technically ... the "south 30 acres" should be interpreted according to state law, not federal rules in some manual of instruction written for federal employees. The term makes no reference to the PLSS system and the landowner (a citizen of the state) can choose to divide his property any way he chooses (don't even try to explain that to the p&z folks). The "south 30 acres" fails to describe the dividing line being created, therefore the grantee has the authority to decide how to configure the line. A call for area under common law does not determine the location of the line. (Presumptively, the sliding line method is preferred).
One also needs to be very careful when "correcting the description" is considered. The courts are very strict about the conditions necessary for a corrective deed to be executed.
JBS
Good point JB. Especially in retracing a survey, (which is what most of us do most of the time). In the above example, if you find evidence of ownership in a location that fits one interpretation of the deed, why wouldn't you accept that evidence.
I meant by "correcting a description" helping the owners repair any damage. Having a boundary-line agreement that clears up two ambiguous deeds would be an example of that. (Don't misunderstand me, I am talking in theory only and have never been confronted with working with two landowners who have been in this situation as you have).
dmyhill, post: 355195, member: 1137 wrote: Yeah, but a "40" is never really 40 acres.
Sure it is, the government said so and they would never lie to us.
If a surveyor had written either description the line(s) between them would have been surveyed and probably fenced. If the owners wrote it they probably walked it, measured from somewhere, and fenced it. Unless there are two fences, no gap exists in my estimation.
paden cash, post: 355211, member: 20 wrote: There is the fly in this ointment. What is considered "narrow"? One Oklahoma case (don't ask me to look it up at 5PM..) recognized an area between two "ambiguous" conveyances merely because it was (if I remember correctly) "a substantial width that could be of interest for occupation or storage". In my mind the width was thirty something feet. But the case I'm talking about was the result of poorly written metes and bounds.
Most of the time in Oklahoma the majority of cases that bore an excess due to the original survey being in excess find that no remainder (or gap) existed unless specifically mentioned in a conveyance. The excesses and deficiencies of public lands that have passed to private ownership continue on with every conveyance. If the NW/4 was really 170 acres, a sale of the NW/4 includes all of it, unless specifically stated.
In this case, like Peter Ehlert has pointed out, NOBODY has clear and marketable title to the 30' strip. Sadly, this one will boil down to who has the most time and money...or the most aggressive legal team. One of the biggest pieces of evidence in my mind is "has the original seller continued to maintain or occupy" the lands purported to be 'in between' the two conveyances? Simple things go a long way in complex court cases.
What really matters is did the common grantor intend to keep the strip?
Dave Karoly, post: 355299, member: 94 wrote: What really matters is did the common grantor intend to keep the strip?
That is a question that I'm going to assume could only intelligently be answered (in the presence of no other documented evidence) by the grantor's actions (prior to questioning a common boundary between two conveyances).
Much as we'd like to think everybody that files an affidavit is telling the truth....the contrary can USUALLY be shown. :whistle:
paden cash, post: 355300, member: 20 wrote: That is a question that I'm going to assume could only intelligently be answered (in the presence of no other documented evidence) by the grantor's actions (prior to questioning a common boundary between two conveyances).
Much as we'd like to think everybody that files an affidavit is telling the truth....the contrary can USUALLY be shown. :whistle:
Obviously we have thousands of volumes of case reporters because people are crazy.
eapls2708, post: 355218, member: 589 wrote: ... Surveyors, most anyway, tend to look at all descriptions as if they were written by surveyors and as such, the scrivener knew or should have known the proper way to write the two descriptions conveying the property in a way to eliminate discrepancies.
I believe that a good portion, probably most descriptions were written by or originated from non-surveyors - either the landowners themselves (or their predecessors in interest), their attorneys, or whoever handled the land transactions. ... it isn't that simple and none of us can say with the slightest bit of certainty without being fully aware of all the documentary history and all the facts on the ground how many acres are actually in that South 30 acres or how many are in that N 1/2 of the N 1/2 of the 1/4-1/4. ....
...
The correct answer, given the facts provided thus far is "I don't know without further specifics."
If surveying came down to such easy rules, and anyone who has ever written or ever will write a description for a deed was as technically conversant as we are, there wouldn't be much use for licensed surveyors. So easy, a lawyer could do it!
I agree. One of the things I try to do when interpreting deeds that don't appear to "fit together" with the adjoiners (and I ALWAYS get the adjoiners) is that I try to figure out what the scrivener might have intended when writing the description. This isn't always that easy and many times all I can say to my client is "I don't know. Here's what I think." And I generally advise them to talk to their neighbor and see what they think.
I'm working on a survey right now where we have a situation of an ambiguous boundary between two parcels (due to poorly written deed descriptions) and I'm advising my client to discuss the possibility of a boundary line agreement with their neighbor. I know where I believe the line should be. But it is based upon my own personal thoughts on what the intention of the grantor was about 47 years ago. It is also based upon my evaluation of the original deed that was written, which looks like it was written by a surveyor, not an attorney, and that it was based upon a field survey, but since I have no way of knowing who the scrivener was and if there was a survey done, all records of it are long gone, I can only say, "Well, here's what I think" to my client and hope for a harmonious solution with the neighbor.
skwyd, post: 355311, member: 6874 wrote: I agree. One of the things I try to do when interpreting deeds that don't appear to "fit together" with the adjoiners (and I ALWAYS get the adjoiners) is that I try to figure out what the scrivener might have intended when writing the description. This isn't always that easy and many times all I can say to my client is "I don't know. Here's what I think." And I generally advise them to talk to their neighbor and see what they think.
I'm working on a survey right now where we have a situation of an ambiguous boundary between two parcels (due to poorly written deed descriptions) and I'm advising my client to discuss the possibility of a boundary line agreement with their neighbor. I know where I believe the line should be. But it is based upon my own personal thoughts on what the intention of the grantor was about 47 years ago. It is also based upon my evaluation of the original deed that was written, which looks like it was written by a surveyor, not an attorney, and that it was based upon a field survey, but since I have no way of knowing who the scrivener was and if there was a survey done, all records of it are long gone, I can only say, "Well, here's what I think" to my client and hope for a harmonious solution with the neighbor.
Wouldn't it be better if you continued looking for the intent of the original parties by seeking out all the extrinsic evidence yourself instead of asking your client to do so? I believe that, not only is it my responsibility to find and evaluate all evidence, but that I can usually do a better job of asking the appropriate questions. When it comes to parol evidence, second hand isn't near as good and reliable as hearing it in person.
eapls2708, post: 355218, member: 589 wrote: This is worrying about technicalities that are usually only of interest to, or known by the surveyor. Surveyors, most anyway, tend to look at all descriptions as if they were written by surveyors and as such, the scrivener knew or should have known the proper way to write the two descriptions conveying the property in a way to eliminate discrepancies.
I believe that a good portion, probably most descriptions were written by or originated from non-surveyors - either the landowners themselves (or their predecessors in interest), their attorneys, or whoever handled the land transactions. For most rural landowners the term "XX 1/4 of the YY 1/4", if they even really understand that term is synonymous with "My 40." Especially if there has been no intervening survey informing the landowner that his "40" is really 40.90 acres, then by previous record, it's a government "40". Unless there is evidence of an intent by the grantor to have retained a 30' +/- strip between the two parcels, there are only two parcels in that 1/4-1/4 and only one line between them. Where that line is, as much as we are inclined to spout this rule or that (i.e. the grantee gets the benefit of any surplus and takes the brunt of any shortage), it isn't that simple and none of us can say with the slightest bit of certainty without being fully aware of all the documentary history and all the facts on the ground how many acres are actually in that South 30 acres or how many are in that N 1/2 of the N 1/2 of the 1/4-1/4. It's completely a function of facts that only Moe among us is yet aware of, and then only if he has performed all of his research and completed his field survey (save for setting the monuments).
The idea that where a parent parcel is found to be larger than previous record indicates and carelessly (by surveyors' standards) written descriptions don't completely technically match up to unambiguously describe the whole, title to the "gap" remains with the common grantor is complete fallacy as a rule. Although there are textbooks that tell us that is the rule, one will find that it is actually the exception once one has done some research into published opinions involving such situations. Textbooks will more commonly tell us that the 2nd grantee gets the remainder and only the remainder, whether there is excess or shortage. This "rule of surveying" is only true when the full set of documentary, physical and other facts are not adequate to show us where the boundary as actually established exists, or if no boundary was actually established but only halfway established by virtue of being placed on paper.
The correct answer, given the facts provided thus far is "I don't know without further specifics."
If surveying came down to such easy rules, and anyone who has ever written or ever will write a description for a deed was as technically conversant as we are, there wouldn't be much use for licensed surveyors. So easy, a lawyer could do it!
You are correct. The descriptions often appear to have been written by the Attorney or one of the parties, particularly in the 19th century. The description was just something cooked up to facilitate the transaction. The parties knew what they were conveying and the description was a designator of the subject matter, not a precise, exact mathematical entity measured from a recent "correct" monument that didn't exist at the time of the description.
Some States have a common law rule that descriptions are interpreted by their plain meaning, not technical meaning.
See Wood v. Mandrilla, 167 Cal. 607 (1914). Wood is really a Title case, not a boundary case. It involves a 180 acre quarter section. Wood granted Mandrilla the east half and he took possession of the east 90 acres, Wood sued to recover 10 acres because the Plat showed the east half as 80 acres. The Court ruled that "words used in a conveyance are to be given their ordinary and popular meaning, unless used in a technical sense, or having a special meaning, or the context shows that they are used in a different sense" citing http://web.lexisnexis.com/research/buttonTFLink?_m=090077da3e5c6c7775d6b15bc05151e1&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b167%20Cal.%20607%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=1&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b62%20Mich.%20614%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAl&_md5=4d3b0d82da4d0686cac542a07d6afe45&apos ;">Jones v. Pashby, 62 Mich. 614, [29 N. W. 374]; http://web.lexisnexis.com/research/buttonTFLink?_m=090077da3e5c6c7775d6b15bc05151e1&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b167%20Cal.%20607%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=2&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b22%20Minn.%20137%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAl&_md5=f15e3ddd85da47c1689711d8681bdb67&apos ;">Cogan v. Cook, 22 Minn. 137; therefore Mandrilla was entitled to 90 acres being half. They weren't arguing about the exact location of the two possible boundaries, just the interpretation of the description. Funny thing is recent Surveys show the quarter section divided per the Plat so there you have it. It's a big ag field near Tulare. Note the Federal Government patented the entire quarter section; if they had patented the east half the patent would've stated 80 acres and the Court would've ruled differently.
In Chapman v. Polack, 70 Cal. 487 (1886) the Court ruled the parties purchased with reference to the Plat in a dispute over boundary location. This is a boundary case (title not being in dispute, only location) and both parties held title under a patent, the Federal Government divided the land.
Brian Allen, post: 355312, member: 1333 wrote: Wouldn't it be better if you continued looking for the intent of the original parties by seeking out all the extrinsic evidence yourself instead of asking your client to do so? I believe that, not only is it my responsibility to find and evaluate all evidence, but that I can usually do a better job of asking the appropriate questions. When it comes to parol evidence, second hand isn't near as good and reliable as hearing it in person.
I always use all of my field survey evidence, including pictures of the site and location of everything I can find (fences, irrigation lines, utilities, sleeping cats, etc) to put together a "big picture". My comment was not meant to imply that I just read the deed description and stop there.
I always urge caution when reference is made to Mandrilla or when surveyors want to apply it. The parent parcel, as I recall was comprised of the NE 1/4 of the SW 1/4, the SE 1/4 of the SW 1/4, and Government Lots 3 & 4 within the SW 1/4 of Section 30. The ruling was based on a particular set of facts and one of the primary facts was that they were not looking at a parent parcel that was a standard division of a standard section. I would be very careful about inferring that under all circumstances in the PLSS that any call for a fractional portion of a fraction of a section is a call for a precise division based on area.
skwyd, post: 355311, member: 6874 wrote: One of the things I try to do when interpreting deeds that don't appear to "fit together" with the adjoiners (and I ALWAYS get the adjoiners) is that I try to figure out what the scrivener might have intended when writing the description. This isn't always that easy and many times all I can say to my client is "I don't know. Here's what I think." And I generally advise them to talk to their neighbor and see what they think.
I suspect that you mean the original grantor who was the owner that the parcel in question was divided from, and not necessarily the scrivener as that may have been someone hired by the grantor to write up the description to identify the subject property for the transaction. In http://scholar.google.com/scholar_case?case=9838671674893083713&q=eidman+v+goldsmith&hl=en&as_sdt=2006&apos ;">Eidman v. Goldsmith, 941 P 2d 1045, the original owners (Oliver & Stewart) of the parent parcel fenced it into 4 quarter portions, or nearly so. They then made their own measurements along the fences and took these to a local title company, telling the title officer that they wanted to divide the property along the fences erected, and here are the measurements we made.
Neither the landowners nor the title officer bothered to hire a surveyor to make measurements, locate the fences, and write the descriptions. The landowners knew how they wanted it divided and the title officer believed that he was perfectly capable of writing good descriptions. The descriptions got written by dimension only, with no mention of existing fences.
Over time, 3 of the parcels get sold, each time with the grantor representing that the fences were on the property lines and that the grantee was buying everything within the fences. The 4th parcel gets sold at an auction and the auctioneer stated (hollered out in auctioneer fashion, I expect) that the bidders were bidding on everything within the fences.
"Plaintiff purchased her parcel at an auction later in 1988. She did not review any legal documents or descriptions of the property beforehand and gained all of her knowledge about the property she now owns at the auction."
The winning bidder decided to have a survey performed to see if the fences matched the deed dimensions. Whattya know! The surveyor, who I'm sure measured carefully and competently identified the "deed lines" to be some distance off the fences and...
"On the strength of that survey, plaintiff filed a complaint "in equity to quiet title," "
Short story is that the original scrivener, not a party to any of the transactions wrote the descriptions according to dimensions provided and had no particular intent or interest as to the boundaries himself. But the original grantors had intended that the fences that they built be the boundary monuments. That intent was represented to each of the grantees of the 4 parcels, and the first 3 accepted the representations at face value.
The intent of the grantors was upheld by the court because it had been clearly represented to each of the grantees, either by the grantors themselves, or by the auctioneer and broker representing the seller, and clearly understood by each grantee at the time of conveyance.
The principles at work here are contract principles, and as with the Mandrilla case Dave mentions above, that makes it a question of title rather than a a question of boundary location. In other words, what is the boundary rather than where is the boundary. For a valid contract, there needs to be subject matter, consideration, and a meeting of the minds of the parties involved. That is, they must each have the same understanding of what the subject (parcel being sold) and the consideration (purchase price & terms) are.
When it later turns out that there was not a clear meeting of the minds, the court will uphold the agreement on the presumption that each party acted in good faith and assumed that the other party had the same understandings. The court will then settle the terms of the agreement. All other things being equal and with no indication of a different common agreement as evidenced by the subsequent actions of the parties, the grantee (or more correctly, the party who was not in control of drafting the agreement) will be given the benefit of the doubt. That's what happened in Wood v. Mandrilla.
But when the court is presented evidence and/or testimony that shows that both parties had common understanding at the time of the transaction, then that is the intent that will prevail, as in Eidman v. Goldsmith.
Brian Allen, post: 355312, member: 1333 wrote: Wouldn't it be better if you continued looking for the intent of the original parties by seeking out all the extrinsic evidence yourself instead of asking your client to do so? I believe that, not only is it my responsibility to find and evaluate all evidence, but that I can usually do a better job of asking the appropriate questions. When it comes to parol evidence, second hand isn't near as good and reliable as hearing it in person.
Skywd lists his location as Central California, which likely means a lot of work in the lowlands of the Central Valley. In many of the lower lying areas like much of the Central Valley comprised of the San Joaquin and Sacramento Valleys, boundary lines and the evidence of their first intended locations tends to get shoved around quite a bit as this orchard owner, or that cotton grower have their fields leveled from time to time and often find that their field increased in size just a couple feet as any excess dirt is shoved off to a side, or an irrigation ditch is cleaned up and straightened out. (Well go-o-o-olly! How'd that happen? I surely didn't mean to knock over any of them old survey markers.)
Over several decades, most or all of the evidence of the originally placed boundary can be destroyed or so disturbed as to be utterly useless when and if found. There's still a lot of places where one can find evidence of original lines, and perhaps on most, at least some evidence might be found. But not being able to find any reliable evidence is not a rare occurrence in that part of the State.
I certainly do agree with you Brian, that the right questions should be asked by the surveyor at the right time in situations where you find conflicting evidence with no clear indications of one location being more likely than others, or where you can't find any reliable evidence. It's best for the surveyor to speak with the affected parties individually to learn any understandings of boundary location they may have. Getting the neighbor's take on things through your client's filter isn't a good idea as the client will usually relate whatever he learns back to you in a light that he feels will best favor him. Important information tends to get omitted or altered that way.
eapls2708, post: 355363, member: 589 wrote: I always urge caution when reference is made to Mandrilla or when surveyors want to apply it. The parent parcel, as I recall was comprised of the NE 1/4 of the SW 1/4, the SE 1/4 of the SW 1/4, and Government Lots 3 & 4 within the SW 1/4 of Section 30. The ruling was based on a particular set of facts and one of the primary facts was that they were not looking at a parent parcel that was a standard division of a standard section. I would be very careful about inferring that under all circumstances in the PLSS that any call for a fractional portion of a fraction of a section is a call for a precise division based on area.
I suspect that you mean the original grantor who was the owner that the parcel in question was divided from, and not necessarily the scrivener as that may have been someone hired by the grantor to write up the description to identify the subject property for the transaction. In http://scholar.google.com/scholar_case?case=9838671674893083713&q=eidman+v+goldsmith&hl=en&as_sdt=2006&apos ;">Eidman v. Goldsmith, 941 P 2d 1045, the original owners (Oliver & Stewart) of the parent parcel fenced it into 4 quarter portions, or nearly so. They then made their own measurements along the fences and took these to a local title company, telling the title officer that they wanted to divide the property along the fences erected, and here are the measurements we made.
Neither the landowners nor the title officer bothered to hire a surveyor to make measurements, locate the fences, and write the descriptions. The landowners knew how they wanted it divided and the title officer believed that he was perfectly capable of writing good descriptions. The descriptions got written by dimension only, with no mention of existing fences.
Over time, 3 of the parcels get sold, each time with the grantor representing that the fences were on the property lines and that the grantee was buying everything within the fences. The 4th parcel gets sold at an auction and the auctioneer stated (hollered out in auctioneer fashion, I expect) that the bidders were bidding on everything within the fences.
"Plaintiff purchased her parcel at an auction later in 1988. She did not review any legal documents or descriptions of the property beforehand and gained all of her knowledge about the property she now owns at the auction."
The winning bidder decided to have a survey performed to see if the fences matched the deed dimensions. Whattya know! The surveyor, who I'm sure measured carefully and competently identified the "deed lines" to be some distance off the fences and...
"On the strength of that survey, plaintiff filed a complaint "in equity to quiet title," "
Short story is that the original scrivener, not a party to any of the transactions wrote the descriptions according to dimensions provided and had no particular intent or interest as to the boundaries himself. But the original grantors had intended that the fences that they built be the boundary monuments. That intent was represented to each of the grantees of the 4 parcels, and the first 3 accepted the representations at face value.
The intent of the grantors was upheld by the court because it had been clearly represented to each of the grantees, either by the grantors themselves, or by the auctioneer and broker representing the seller, and clearly understood by each grantee at the time of conveyance.
The principles at work here are contract principles, and as with the Mandrilla case Dave mentions above, that makes it a question of title rather than a a question of boundary location. In other words, what is the boundary rather than where is the boundary. For a valid contract, there needs to be subject matter, consideration, and a meeting of the minds of the parties involved. That is, they must each have the same understanding of what the subject (parcel being sold) and the consideration (purchase price & terms) are.
When it later turns out that there was not a clear meeting of the minds, the court will uphold the agreement on the presumption that each party acted in good faith and assumed that the other party had the same understandings. The court will then settle the terms of the agreement. All other things being equal and with no indication of a different common agreement as evidenced by the subsequent actions of the parties, the grantee (or more correctly, the party who was not in control of drafting the agreement) will be given the benefit of the doubt. That's what happened in Wood v. Mandrilla.
But when the court is presented evidence and/or testimony that shows that both parties had common understanding at the time of the transaction, then that is the intent that will prevail, as in Eidman v. Goldsmith.
I think it helps to distinguish between title cases and boundary cases. In Wood they just assume Mandrilla took possession of 90 acres. It's an argument over what half means. Location is not in dispute, they appear to know where the two lines are located.
In boundary cases they often say there's no dispute over title, the dispute is over where the division line between the two titles is located.
A lot of the 19th century cases where we get the familiar rules of construction were title cases, arguments over substantial differences on what the description meant.
eapls2708, post: 355367, member: 589 wrote: Skywd lists his location as Central California, which likely means a lot of work in the lowlands of the Central Valley. In many of the lower lying areas like much of the Central Valley comprised of the San Joaquin and Sacramento Valleys, boundary lines and the evidence of their first intended locations tends to get shoved around quite a bit as this orchard owner, or that cotton grower have their fields leveled from time to time and often find that their field increased in size just a couple feet as any excess dirt is shoved off to a side, or an irrigation ditch is cleaned up and straightened out. (Well go-o-o-olly! How'd that happen? I surely didn't mean to knock over any of them old survey markers.)
Over several decades, most or all of the evidence of the originally placed boundary can be destroyed or so disturbed as to be utterly useless when and if found. There's still a lot of places where one can find evidence of original lines, and perhaps on most, at least some evidence might be found. But not being able to find any reliable evidence is not a rare occurrence in that part of the State.
I certainly do agree with you Brian, that the right questions should be asked by the surveyor at the right time in situations where you find conflicting evidence with no clear indications of one location being more likely than others, or where you can't find any reliable evidence. It's best for the surveyor to speak with the affected parties individually to learn any understandings of boundary location they may have. Getting the neighbor's take on things through your client's filter isn't a good idea as the client will usually relate whatever he learns back to you in a light that he feels will best favor him. Important information tends to get omitted or altered that way.
This is a pretty accurate explanation of the survey conditions I encounter around here. I recently did a survey where the north line of the property was described as the "center of the SSJID ditch". The deed was recorded in 1963. The ditch has been filled in since the late 70's. Now, fortunately, there is still an underground irrigation line in that general location and each of the adjoining owners operates their orchard with the understanding that the irrigation line is the common line between their properties. And so on the record of survey I filed, I showed the location of the existing irrigation line and stated that it was the best evidence for the position of the ditch in 1963.
On the survey I'm working on right now where I've suggested a boundary line agreement, the adjoining owner has said, "I just want the boundary to be in the right place." I've met with them, their attorney, and their contracted survey, and explained that due to an ambiguity in the deed as written, there is some uncertainty as to the location of the boundary. The other surveyor agreed that there was ambiguity in the deed as written. And so, I've suggested the agreement as the best course of action for a resolution.
I will take the time to talk to anyone and everyone that I can. I like to have meetings with my client AND the adjoining owner so that everyone is "on the same page" when it comes to what it being discussed. I don't want my client or the neighbor to think that I'm doing anything clandestine in an attempt to do something inequitable, improper, or illegal.
Brian Allen, post: 355201, member: 1333 wrote:
So, if the 1/41/4 had been "short", then there would be an overlap?
Yes
I didn't read all the other replies. Is the Gov. County, State or Federal. I will assume Federal.
This is what happens when a M&B description, the south 30 ac., and an Aliquant part description, N2N2, is supposed to have a common boundary. There will always be a gap or overlap.
If the rancher is live talk to him about intent.
If the rancher doesn't want anything to do with this. Talk to the Gov agency and try a boundary line agreement. It would save time and money.
If that doesn't go, lay out the M&B and the Aliquant. The rancher ownes the gap and the two owners get to fight over the overlap.