The original owner is still alive if your saying he owns the strip of land. Just go and ask him what his intentions are.
Basically it happened like this:
BLM does a township resurvey, like many township resurveys in this area the sections end up being large, just like this one.
The state acquires the south 30 acres for recreational reasons, there are drawings and maps made of it showing the south 30' acres and not the south 3/4ths.
The N2N2 is later sold.
The south 30 acres is surveyed by an engineering company for preliminary design and later a plat is done by a surveyor.
Third party with property in the 40 (but not ownership) asks us to survey it and we see the strip. The south 30 acres is "correctly" surveyed.
The rancher is long passed away, his sons run it now and really aren't all the interested, both are very well versed in land issues.
Anyway, we show them the issue and recommend getting some legal advice and basically forget about it, ten years later it comes up again, still no changes.
The ranch is huge, this 30' strip just isn't anything they really care much about, the state has no issues, sometimes maybe it's best just to leave well enough alone.
johnbo, post: 355458, member: 8695 wrote: 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.
Hold on for a minute, johnbo. There are rules of law that govern the surveyor's actions, reactions and responses to the process of applying legal descriptions to the ground. Let's try following them, before blatantly violating them.
First off, we are given the rules of construction by the courts to govern how we construe the intent of the parties from the document. Their testimony is completely inadmissible at the first stage of the game. A surveyor can't just ask a landowner what they intended without first determining 1) if there is an ambiguity and 2) what type of ambiguity it is.
In this example we have a sequence of deeds (meaning the rules of apportionment are presumed to NOT apply). Considering the sequence, there is but one senior deed that created a boundary. Based upon that deed (the south 30 acres), the presumption of law is as clear as the language which is patently clear. The presumption of law would have us run a sliding line parallel to the southerly boundary until we enclose 30 acres. That presumption will stand unless or until we discover extrinsic evidence which will disclose a latent ambiguity.
When confronted by language in a conveyance that is patently clear on its face (I know, that's a redundancy), we CANNOT "ask the parties what they intended." Their testimony is inadmissible. There is no need for clarity as the language itself is clear. Any testimony received that contradicts the clearly expressed intent is trumped by the writing.
Sure, we surveyors can imagine any number of ways one could mark out "the south 30 acres." Our imaginations are not evidence and our imaginations don't create ambiguities. We are governed by the evidence. Once we go into the field to locate the boundary (in its presumed location) and we discover physical evidence contrary to the presumed location, we must gather that evidence and determine if it is sufficient to overcome the presumption (it only takes a preponderance). The act of placing the boundary on the ground has exposed a latent ambiguity. The surveyor can rely upon oral testimony of the parties to discover the source of the physical evidence, to explain the placement of the evidence, and any other evidence required to understand what you've discovered. The surveyor CANNOT throw the deed out the window and ask the landowner what they intended by the language (unless there is a patent ambiguity, which is not the case in this scenario).
If no physical evidence is recovered previously establishing the boundary, then we are back to the presumption that we locate the boundary by sliding line method.
Now, let's look at the second (adjoining) junior deed. It uses an aliquot description. Again, the language is clear and there is no patent ambiguity. When we go to place that line on the ground, we discover a previously created boundary. The presumption of law in such a situation is that the junior conveyance is presumed to "go to and run with" the existing boundaries of the tract and that the dimensions will be more or less than the record calls (in every case that's true).
Faced now with the discovery of a latent ambiguity (disclosed by the record that created the boundary), we must analyze the second deed in light of the first. The parent tract contained 40 acres. The first deed conveyed 30 acres. The aliquot description conveys 10 acres. That evidence alone will confirm there is no "gap" or "overlap" (both being a legal impossibility as the rules of presumption are specifically designed to resolve them). Try convincing a judge (or a landowner) that 40 - (30 + 10) = something left over and intentionally retained by the original grantor.
If the surveyor's not satisfied with that logic, look to the title record. Is there a third parcel of land being identified and taxed by the assessor? Is there a subsequent deed conveying the third parcel to anyone? Is there any logical reason the landowner would intend to retain ownership of the supposed "gap"? In this case, the clearly expressed language of both deeds alone supports the presumption, additional "lack of evidence" will also support it. The presumption stands.
These presumptions of law (boundary law) are designed by the courts to resolve ambiguities discovered by surveyors. These presumptions are designed to be applied by surveyors in their daily quest to locate boundaries. Without these presumptions and rules of law we would be completely unable to finalize our quest to say in the end, "In my professional opinion, your boundary is here."
When we fail to understand and properly apply the rules of law which govern our profession, the public is thrust into never ending conflicts over boundaries when no conflict existed until the surveyor arrived on the scene. When we do properly understand the rules and properly apply the rules, the conflicting evidence is resolved on the ground by the surveyor where the resolution is intended. As Cooley said, "... courts and juries may be required to follow after the surveyor over the same ground, and that it is exceedingly desirable that [the surveyor] govern his action by the same lights and the same rules that will govern theirs."
JBS
MightyMoe, post: 355515, member: 700 wrote: Basically it happened like this:
BLM does a township resurvey, like many township resurveys in this area the sections end up being large, just like this one.
The state acquires the south 30 acres for recreational reasons, there are drawings and maps made of it showing the south 30' acres and not the south 3/4ths.
The N2N2 is later sold.
The south 30 acres is surveyed by an engineering company for preliminary design and later a plat is done by a surveyor.Third party with property in the 40 (but not ownership) asks us to survey it and we see the strip. The south 30 acres is "correctly" surveyed.
The rancher is long passed away, his sons run it now and really aren't all the interested, both are very well versed in land issues.Anyway, we show them the issue and recommend getting some legal advice and basically forget about it, ten years later it comes up again, still no changes.
The ranch is huge, this 30' strip just isn't anything they really care much about, the state has no issues, sometimes maybe it's best just to leave well enough alone.
Thanks for the additional input (evidence), [USER=700]@MightyMoe[/USER]. If the south 30 was conveyed and surveyed correctly, then what's the issue? The aliquot description cannot create a new boundary unless it was INTENDED by the landowner. You have absolutely NO evidence of any such intent. It's the second deed in a sequence of conveyances. There is no problem with it at all. It clearly expresses the landowner's intent to convey the remaining 10 acres of his 40. There CANNOT be a "gap" or "strip" to "discover" and there is no "issue to show" anyone. The rules of law are clear. All the surveyor has to do is apply it on the ground and on the survey.
Show the location of the established boundary and show the record/measured dimensions to the established boundary location. Instead, we have a survey attempting to disclose a problem which the proper application of the law has resolved, handing the "problem" to a client who has no way of resolving it other than asking a judge to do the surveyor's job by filing a lawsuit against someone who has no claim against the property nor has ever attempted to make a claim. The State has no claim as they have their 30 acres and they have their correctly located (and occupied) boundary.
The surveyor has tried its best to kick the sleeping dog once, then ten years later to kick it again. There is no sleeping dog to kick. Why are we so adamant about showing lines on our map that were never intended to be created, never physically located on the ground and never established through the actions of any landowner? When will we stop letting our "technical prowess" prevent the laws that govern our determination of boundaries from accomplishing the very purpose for which those laws were intended?
This is a great example of surveyors trying to conduct their surveys with the precision espoused by the textbooks of our profession rather than being trained in the understanding and application of the law. It's no fault of the individual surveyor, however it is the greatest failure of our profession.
JBS
johnbo, post: 355458, member: 8695 wrote: 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.
Johnbo,
I'm not sure what you mean by 'is the Gov. County, State, or Federal'. If the parent tract (the 40 acre tract) is owned by a private party it has passed from from federal to private ownership and the subsequent transfers are out of any federal "governance" if is the right word.
Also, after the first parcel is sold off the "parent" tract, as JB indicates, it has come under rules of senior/junior rights and is no longer part of a simultaneous conveyance. (I would consider two aliquot descriptions to be under the rules of "simultaneous" but some might argue with that). The "30 acres" would be the senior tract. In the case of an 'overlap' in descriptions the senior line would hold, and the junior line would be subject to the location of the senior line. What in infer from what JB is pointing out (if I may be so bold), is that if the face of the documents imply an a intent of the parcels to be adjoining, even in the case of a "gap" you would hold to the senior line. I would read JB's post very carefully. It breaks this case down very well.
MightyMoe, post: 355134, member: 700 wrote: Rancher owns a 40, sells to a gov agency the south 30 Acres,
Then sells to a private concern the N2N2 of the 40
the section is large and it leaves a strip 30' wide between the two legals, is there a gap?
Rancher still has access to the gap from the west as he still owns that property
Same type of problem occurs in non-PLSS States. In either case, the parties can't intend something they have no knowledge of. The answer is in the evidence. If there was a survey on sale of the south 30 acres that showed the remainder with more acreage than 10, (and the subsequent parties knew or should have known about it) then the parties might have intended to create/leave the strip. Maybe the rancher had plans to purchase on the other side and have that strip connecting his properties. But without any pre-contract (subsequent sale of n2n2) knowledge of anything other than a 40 per government instructions, there simply is no way the parties could contemplate a deed leaving a strip of land (or an overlap). This is why people need a survey before writing a deed contract. A survey after the contract can not change the contract terms as interpreted in light of the circumstances at the time.
MightyMoe, post: 355134, member: 700 wrote: Rancher still has access to the gap from the west as he still owns that property
This muddies the waters considerably. I'd approach this as a problem to be solved, rather than as a problem that's already been solved.
Jim Frame, post: 355530, member: 10 wrote: This muddies the waters considerably. I'd approach this as a problem to be solved, rather than as a problem that's already been solved.
The rule of law, properly applied, is designed to resolve the problem. Surveyors apply these rules of law every day. For example, you have a description that says, "thence N 89å¡47' E 250 feet along the fence line to the fence corner." Is there any surveyor who would hesitate to go "along the fence and to the fence corner" when they measure the bearing as N 89å¡28'34" E and the distance as 243.17 feet? This is a simple example of a rule of law (one of the rules of construction) that recognizes the fact that when the informative evidence of the direction or distance conflicts with the controlling evidence (that which is more certain), the law requires the surveyor to honor the controlling evidence.
We have no problem and hardly even pause to consider any other solution than simply reporting "N 89å¡47' E (by record) and N 89å¡28'34" E (measured)" for the bearing and "250' (by record) and 243.17' (measured). Do we insist that there is a "problem" that needs to be fixed? OMG! The deed is wrong! There's a "gap" or an "overlap"! No. We simply apply the rule of law and allow the rule of law to resolve the conflict. We document the solution by virtue of our survey and we cash the check.
There is no "problem to be solved." The "problem" (conflicting evidence) has "already been solved." We don't need a new law. We only need to follow the law which has already been given to fix the specific "problem" at hand. Failure to properly apply the legal principle to the fact set is what causes the problem.
JBS
JBStahl, post: 355521, member: 427 wrote: Thanks for the additional input (evidence), [USER=700]@MightyMoe[/USER]. If the south 30 was conveyed and surveyed correctly, then what's the issue? The aliquot description cannot create a new boundary unless it was INTENDED by the landowner. You have absolutely NO evidence of any such intent. It's the second deed in a sequence of conveyances. There is no problem with it at all. It clearly expresses the landowner's intent to convey the remaining 10 acres of his 40. There CANNOT be a "gap" or "strip" to "discover" and there is no "issue to show" anyone. The rules of law are clear. All the surveyor has to do is apply it on the ground and on the survey.
Show the location of the established boundary and show the record/measured dimensions to the established boundary location. Instead, we have a survey attempting to disclose a problem which the proper application of the law has resolved, handing the "problem" to a client who has no way of resolving it other than asking a judge to do the surveyor's job by filing a lawsuit against someone who has no claim against the property nor has ever attempted to make a claim. The State has no claim as they have their 30 acres and they have their correctly located (and occupied) boundary.
The surveyor has tried its best to kick the sleeping dog once, then ten years later to kick it again. There is no sleeping dog to kick. Why are we so adamant about showing lines on our map that were never intended to be created, never physically located on the ground and never established through the actions of any landowner? When will we stop letting our "technical prowess" prevent the laws that govern our determination of boundaries from accomplishing the very purpose for which those laws were intended?
This is a great example of surveyors trying to conduct their surveys with the precision espoused by the textbooks of our profession rather than being trained in the understanding and application of the law. It's no fault of the individual surveyor, however it is the greatest failure of our profession.
JBS
I don't have any issue, the only issue is that the strip needs to be dealt with, my intention is to help the client identify the correct owners, in my opinion the ranch still has it.
My advise to the client ten years ago was to contact their title people and work out how to best deal with it all, but inside a company people get transferred, things get forgotten and sometimes fester.
Not sure where you got the idea that anything was going to court, I just wanted to post an issue that crops up from time to time as an interesting example of real world surveying. It really isn't that big a deal. Just something that happens in the PLSS. There are no lawsuits, or adversaries here.
MightyMoe,
I think the point we are all trying to make here is that there is no strip. The property line between the tracts is where the 30 acres took possession to, which is stated to have been surveyed "correctly" (whatever that means).
vern, post: 355554, member: 3436 wrote: MightyMoe,
I think the point we are all trying to make here is that there is no strip. The property line between the tracts is where the 30 acres took possession to, which is stated to have been surveyed "correctly" (whatever that means).
Well, there is no lawsuit, there is no real conflict here.
I'll put you down as being on the side that the N2N2 shifts from it's breakdown to the south to merge with the south 30 acres
JBStahl, post: 355550, member: 427 wrote: There is no "problem to be solved." The "problem" (conflicting evidence) has "already been solved." We don't need a new law. We only need to follow the law which has already been given to fix the specific "problem" at hand. Failure to properly apply the legal principle to the fact set is what causes the problem.
JBS
Hey John,
I like the way you broke that down, and I am buying in to what you are saying. But, it isn't always true that you don't stake a property by the blm "rules". In my State, there is statute that says something to the effect that whenever the nomenclature of the BLM "Manual' is used rules of the "Manual" shall apply. So a strict interpretation of the second description could make a surveyor interpret going halfway between parent corners. An less-ambiguous second description might have called for the full tract less the south 30 acres.
Having said that, I can certainly see where they owned the "40" and first sold the south 30 and later sold the north 10, and that is reflected in the order and methods the deeds were written.
Another issue you might address, is the fact that the owner to the north (it sounds like) has totally bought into and accepted the aliquot northerly description and location north of the "gap". How is that not acceptance of the owners of the property "who, along with the courts, are the only ones that can determine a boundary line"?
Tom Adams, post: 355579, member: 7285 wrote: Hey John,
I like the way you broke that down, and I am buying in to what you are saying. But, it isn't always true that you don't stake a property by the blm "rules". In my State, there is statute that says something to the effect that whenever the nomenclature of the BLM "Manual' is used rules of the "Manual" shall apply. So a strict interpretation of the second description could make a surveyor interpret going halfway between parent corners. An less-ambiguous second description might have called for the full tract less the south 30 acres.
It all depends upon which chapter of the Manual is being used. The manual has been infused into state statutes all over the west, so CO isn't anything unique in that regard. The point with "following the manual" is that it doesn't mean Chapter 3 only. The only time Chapter 3 (section breakdown methods) applies is when the breakdown is happening for the very first time (before the boundary has been established).
A "strict interpretation of the second description" must take place with the circumstances surrounding its creation being considered. In this circumstance, the boundary has already been established and what, at first appearance, is an aliquot description, is in fact not. It's a description which, when the extrinsic evidence is properly considered, describes the remaining 10 acres with no apparent attempt to retain ownership of any left-over tract of land ("gap?").
Because the boundary has already been established at the 30-acre limit, then we aren't the original surveyor and we can't use Chapter 3. As a retracing surveyor, we are bound to Chapters 4 and 5. Chapters 4 and 5 didn't create new law or any new methods for retracing previously established boundaries. They simply regurgitate existing common law principles for boundary retracement. They have nothing to do with running new lines which have never before existed.
Having said that, I can certainly see where they owned the "40" and first sold the south 30 and later sold the north 10, and that is reflected in the order and methods the deeds were written.
Another issue you might address, is the fact that the owner to the north (it sounds like) has totally bought into and accepted the aliquot northerly description and location north of the "gap". How is that not acceptance of the owners of the property "who, along with the courts, are the only ones that can determine a boundary line"?
I'm not sure that the north owner has "bought into" any belief that there is a "gap" or that they only own up to some imaginary "1/16th line", nor am I sure that they've even bought into the idea that there is a "problem." They obviously aren't too concerned over it as they've done nothing about it for ten years since the last time the dog was kicked. I'm also not sure that a misrepresentation by the technical mindset of a surveyor is enough to establish the boundary or create a "problem." Especially when the landowners taken no action in reliance upon the representation to physically establish the location of the boundary.
Another thing that should be considered here is that the first conveyance was for 30 acres which subdivided the property under the jurisdiction of state law, not federal rule. The second conveyance which uses a description which, at first glance appears related to the federal rule, upon closer inspection is construed to convey the remaining 10 acres. The boundary isn't the 16th line. It's the line as established on the ground in good faith by the senior conveyance and the subsequent actions of the landowners.
JBS
MightyMoe, post: 355552, member: 700 wrote: Not sure where you got the idea that anything was going to court, I just wanted to post an issue that crops up from time to time as an interesting example of real world surveying. It really isn't that big a deal. Just something that happens in the PLSS. There are no lawsuits, or adversaries here.
I didn't expect that it was going to court, so never got the idea. This is a great issue that needs to be brought up. I'm glad that you did. The various perspectives that have been expressed are typical comments that I've seen all across the country. We need to be talking about these issues. Thanks for bringing it up.
The point I was making is that the surveyor is bound by the same laws and the same rules that govern the courts whether you expect to go there or not. These aren't survey principles we're discussing. They're the LAW. We need to make certain that we aren't violating legal principles, kicking sleeping dogs, and creating adversaries and lawsuits when the legal principles we are expected to apply have already resolved the "problem." Otherwise, it's as Cooley stated in Diehl v. Zanger, "the visitation of the surveyor might very well be set down as a great public calamity."
JBS
JBStahl, post: 355607, member: 427 wrote: The point I was making is that the surveyor is bound by the same laws and the same rules that govern the courts whether you expect to go there or not. These aren't survey principles we're discussing. They're the LAW. We need to make certain that we aren't violating legal principles, kicking sleeping dogs, and creating adversaries and lawsuits when the legal principles we are expected to apply have already resolved the "problem." Otherwise, it's as Cooley stated in Diehl v. Zanger, "the visitation of the surveyor might very well be set down as a great public calamity."
As a question for you others of you working in PLSS states. Do you have a statue that clearly lays this out? One of the states where I do a fair share of my work, North Dakota, has it defined clearly how it is be dealt with. There are always exceptions to this rule, but with just the facts laid out, it is fairly easy to not shake the house in this case.
http://www.legis.nd.gov/cencode/t47c09.pdf?20160129160535
47-09-13. Grant shall be interpreted in favor of grantee - Exceptions.
A grant shall be interpreted in favor of the grantee, except that a reservation in any grant,
and every grant by a public officer or body, as such, to a private party, is to be interpreted in
favor of the grantor.
47-10-08. Grant conclusive against whom.
Every grant of an estate in real property is conclusive against the grantor and every one
subsequently claiming under the grantor, except a purchaser or encumbrancer who in good faith
and for a valuable consideration acquires a title or lien by an instrument that first is duly
recorded.
jpb, post: 355616, member: 9284 wrote: As a question for you others of you working in PLSS states. Do you have a statue that clearly lays this out? One of the states where I do a fair share of my work, North Dakota, has it defined clearly how it is be dealt with. There are always exceptions to this rule, but with just the facts laid out, it is fairly easy to not shake the house in this case.
http://www.legis.nd.gov/cencode/t47c09.pdf?20160129160535
47-09-13. Grant shall be interpreted in favor of grantee - Exceptions.
A grant shall be interpreted in favor of the grantee, except that a reservation in any grant,
and every grant by a public officer or body, as such, to a private party, is to be interpreted in
favor of the grantor.47-10-08. Grant conclusive against whom.
Every grant of an estate in real property is conclusive against the grantor and every one
subsequently claiming under the grantor, except a purchaser or encumbrancer who in good faith
and for a valuable consideration acquires a title or lien by an instrument that first is duly
recorded.
Those particular statutes are found only in the states of California, Montana, North Dakota, and South Dakota. They refer to what are common law rules of construction in the rest of the states. For some reason unknown to me, they were codified in those particular states. I expect that it had something to do with the dates that the Territories were created. Their constitutional conventions appear to have used some type of boiler plate language as they are almost identical with each other. They are the law of the land whether found in statute or common law.
It's common knowledge that a quarter quarter is 40 acres.
If the Deed to the State said 30 acres in whole numbers that is the south 3/4s. The difference is di minimus. The California Court has said dividing at the midpoints is close enough to equal which is an example of how Courts don't split hairs. The State's engineers being engineers only claimed 30.00 acres and the remainder was sold to the north half half owners. The descriptions are really just designators. It's likely the north owner was put into possession of the property north of the State's established boundary.
Intent is not only the most important thing, it's the only thing.
MightyMoe, post: 355552, member: 700 wrote: I don't have any issue, the only issue is that the strip needs to be dealt with, my intention is to help the client identify the correct owners, in my opinion the ranch still has it.
My advise to the client ten years ago was to contact their title people and work out how to best deal with it all, but inside a company people get transferred, things get forgotten and sometimes fester.
Not sure where you got the idea that anything was going to court, I just wanted to post an issue that crops up from time to time as an interesting example of real world surveying. It really isn't that big a deal. Just something that happens in the PLSS. There are no lawsuits, or adversaries here.
I agree it would be nice to get a quitclaim deed for the theoretical strip from the ranch to the party who bought it. I think you would have a problem pretty quick in trying to get a quit claim deed from the buyers to the ranch. There may not be a lawsuit yet, but this is the kind of thing that turns into one when enough time passes. I do understand where you're coming from; the mathematical reality of the descriptions leaves a mathematical figure separating them. The descriptions and conveyances should be harmonized with the ground truth in such a way as there can be no disagreement in the future. But the surveyors opinion has a lot of weight in how these things will be resolved.
I disagree with those who say this is cut and dried. There may be evidence that would only turn up at a trial that could sway the court one way or the other. I've had clients and their adversaries change stories, come up with previously undisclosed documents, and bring in previously unknown witness testimony on the eve of trial in almost all cases.
Duane Frymire, post: 355724, member: 110 wrote:
I disagree with those who say this is cut and dried. There may be evidence that would only turn up at a trial that could sway the court one way or the other. I've had clients and their adversaries change stories, come up with previously undisclosed documents, and bring in previously unknown witness testimony on the eve of trial in almost all cases.
I hear what you are saying Duane, but what circumstances in boundary surveying are ever "cut and dried"? The only ones that ever claim things are "cut and dried" are those that rely solely on measurements and mathematics - technicians and/or engineers. As you know boundary surveying is rooted in boundary law. And as we all know, anything can happen when hundreds of "what if's", "well maybe's", and "I don't knows" are thrown into the mix.
The fact that people may change their stories, falsify documents, hide evidence, and there may always be evidence that we can't find because we cannot spend years investigating each and every line or corner, cannot change what we should be doing. We can only (and should only) be diligent in our search for evidence, and properly apply the correct boundary principles in reaching our well reasoned professional opinion on the location of the boundary in question.
I really don't think anyone would not, if possible, clear up the record using whatever correct and reasonable means that would do so.
Brian Allen, post: 355745, member: 1333 wrote:
I really don't think anyone would not, if possible, clear up the record using whatever correct and reasonable means that would do so.
A sure fire recipe for- no good deed goes unpunished... :snarky: