This long & perhaps a bit windy. Sorry about that.
I'm presently surveying a 30-some acre exception, created in 1973, to the title to a large farm, the description of which has remained unchanged since the 1850's. The exception is described as follows:
"All that .... in Lot 150, Town of ..., County of ...., State of NY....Beginning at a point in the centerline of the State Road where said centerline is intersected by the centerline of the Town Road,
1) and running thence northeasterly along the centerline of the State Road 1608'± to a point opposite an existing fenceline;
2) thence westerly along the existing fence line and parallel with the south line of Lot 150, a distance of 18.70 chains;
3) thence southwesterly parallel with the State Road and along an existing fence line 1608'± to the centerline of the Town Road, at a point measured along the south line of of said Lot 150 which is approximately 1247' from the southwest corner of said Lot,
4) and thence easterly along the centerline of the Town Road 18.70 chains to the place of beginning."
OK. Now my findings:
Course 1) 1608'± is really 1639' to existing old E-W fence, I can live with that, I guess.
Course 2) 18.70 chains ( lifted from ancient description of farm = 1234.2') is really 1257' from c/l State Rd. to existing old N-S fence, and E-W fence is 1° off parallel with c/l Town Rd., which is the apparent S. line of Lot 150.
Course 3) Existing old fence meanders southwesterly from intersection with fence called in course 2, however holding 18.70 chains for N. line and running parallel with course 1 puts that fence west by amounts varying from 23' at the ends to 118' at the midpoint± of the line. The area between the fence and this line is about 2.9 ac. No call for area in description of exception.
Course 4) 18.70 chains is really 1257' from southerly projection of fence easterly on c/l to POB. From projection of fence westerly to SW corner Lot 150 IS approximately 1247'
The current owner of the farm west of the N-S fence, sworn enemy of the owner of the exception, who is not a party to the original 1973 conveyance, maintains that he owns past the fence, naturally, to the line parallel with, and 18.7 ch. west of, State Rd, " well, that fence was moved you know....". The current owner of the exception, sworn enemy of the adjoiner, cultivates and claims to the fence, saying that the fence has been in the same location "..for 40 years that I know of..".
My conclusion is that the description of the exception was obviously not prepared by a surveyor, but rather by the parties to the original 1973 conveyance of the exception, working in ham-handed collusion with some attorney, who probably advised them that they didn't need no stinkin' survey.
If that's the case, then it seems obvious that the parties were there on the ground, and could see and touch the fences. I have overheads from 1952, 1972 and 2011, all of which show the N-S fence in the same location, all of which clearly show continuous cultivation to the fence, which has remained in the same location since at least 1952.
So now to along vs. with. Are the calls for "along the centerline..." to be interpreted as "somewhere over near the middle of the road", or do they define the centerlines as the boundaries? If the centerlines are then the boundaries, then does not the same logic dictate that the fences are the boundaries? I'm thinking that in this instance the fences constitute monuments as surely as the centerlines of the highways, and thus define the limits of the parcel.
Incidentally, I've worked in southern central western upstate NY for about 30 years, and I can honestly say that a description "with a line" is a rarity here, and "along a line" is far more common.
What say ye?
SS
> So now to along vs. with. Are the calls for "along the centerline..." to be interpreted as "somewhere over near the middle of the road", or do they define the centerlines as the boundaries? If the centerlines are then the boundaries, then does not the same logic dictate that the fences are the boundaries? I'm thinking that in this instance the fences constitute monuments as surely as the centerlines of the highways, and thus define the limits of the parcel.
The fences as well as the roads are called out in the deed. It seems that the intent of the original grantor was to convey the land contained within the boundaries of the fences and the roads. Those monuments, if found to be in their original location (you say that past ortho photos verify location), would control that boundary, IMO.
I agree. Fence line and centerline of the roadway would hold.
Matt
I agree. I've been taught that "along" and "with" have specific meanings and try to write descriptions according to those meanings. Having said that, your primary function as a retracing surveyor is to determine the clearest stated intent of the deeds with preference given to junior and senior rights.
From what I see, the clearest intent is that the boundary follows the fence and the center of the road.
I believe that along the fence means you hold the (original) fence. A very similar situation happened here in my area. In 1910, Moses Smith sold all the land of his home place. One of the calls was "and northerly 870' along the fence to a stake".
When I had set up the traverse, I had followed the straight line which had been blazed around 20 years ago and an (unstamped) map by a surveyor showed the property line going along the (straight) blaze line.
WHen my boss starting looking into deed work and noticed the "along the fence" call, he said, "perry, get back out there and find me that fence. It should still be there as the trees hadn't been cut."
Sure enough, I found the fence going right through the center of mature trees and even some old rotted cedar posts. That fence had a huge bow in it as they has followed the toe of a steep slope. Holding the fence as opposed to the straight line added 3.5 acres to the parcel. So I went back and ripped all my flagging off the blazed trees and moved it down to the old fence.
Well, the next week, the timber company that owned the parcel called me up and gave me a bunch of crap. Accused me of stealing land, and said we had ignored the previous (unstamped) survey, and 20 year old blaze lines. They also mentioned acquiescence. I relayed this information to the boss and he just laughed. He said, "Moses sold to his fence and you found the fence. PERIOD". Never heard from the timber company again and the survey got recorded with the huge bow that followed the fence.
"Along or near a fence" gives a little wiggle room.
My first inclination is that the monuments (roads and fences) are the intent as to where they are calling for.
In my opinion, my first step in interpreting a deed is to find the location on the ground that best fits with the calls and the evidences on the ground. Priority of calls are mainly used if those discrepancies can't be resolved. Typically I find what I believe to be the intent of the deed by looking at all the data as a whole.
To me the primary use I get from the "priority of calls" is in writing my own descriptions and to make sure I adequately convey the intent of the parties in my written word.
Anyway, given no other information, I absolutely agree that the intent as you described it is to the center of the roadway and to the fences. (the only thing I don't know about is if that means the center of the paved part of the road, or halfway between fences or the center of the "right-of-way" limits which might be described in a plat or legal description.)
I have never heard that "along" and "with" have specific meanings... but you are in a different world over there.
Probably "the parties working in ham-handed collusion with some attorney" just copied those cool technical terms that sounded so good like "thence"... no special significance to be taken either way.
the bounds are clearly described (fences and roads), measurements fit well enough.
If the grantor owned to those lines they would hold.
Buyer and Seller were probably very aware of what they were conveying, and they truly did not need a surveyor to "fix" it.
enjoy!
> I agree. I've been taught that "along" and "with" have specific meanings and try to write descriptions according to those meanings. Having said that, your primary function as a retracing surveyor is to determine the clearest stated intent of the deeds with preference given to junior and senior rights.
>
> From what I see, the clearest intent is that the boundary follows the fence and the center of the road.
So enlighten us with what you have been taught. I have wondered if there is a difference in meaning or intent with those terms myself.
I agree, the intent is clearly stated and the priority of calls well established. Lacking any evidence on the part of the adjoiner showing the fence was moved prior to 1952, what you clearly have here, is a case of sour grapes.
I'll try to do a little research tonight. But my understanding has been that "along" is general. For example, if the boundary line runs from corner to corner, but there is fence between them and you want to mention the fence but not imply the boundary follows the fence, then "along" is your word. We try to make this clear in our wording by saying "generally along".
Now if you are following the center of a road and you want it to be clear that the calls you are giving for direction and distance are subservient to the actual monument (the road) then "with" is your word.
Like I said, that's been my understanding. I haven't looked at any documentation regarding this in a long time. So putting my hands on a defensible source may take a little time.
First, Mr. Wattles concluded that with should be used unless the line tended to "ebb and flow" similar to a lake line or river. His idea was that along wasn't as hard and fixed as with.
Second, unless it's a water way, I use with, like most every other surveyor when calling out an adjoiner.
Third, if you can prove that those are the same fences, then where they turn, you monument the line and the same with the road.
Fourth, for the LOVE OF GOD please write a new description for that POS and PAY them to file it.
Vern
Wattles goes over it quite well. Check out his book. It's been in print for 40 something years.
:good:
I'll go along with that.:-)
Shawn
I had your back buddy. 🙂
bahahaha!
Shawn
I was hurting, wondering when you'd show up.
Most boundaries are considered straight lines.
When used in a property description, the terms "along" and "with" are to show intent.
It is probably best to limit their use to connect the adjoining properties together and the intent is for there to be no gap or overlap as in "along/with the West boundary of R Smith tract and East boundary of J Smoe tract".
To connect that boundary to follow a fence or other moveable object or meandering feature should actually require additional wording to make that distinction a part of the intent.
For example, when a boundary is within the margins of a roadway it is best to limit the description and not call for it to fall at a specific relation to the centerline. Road centerlines change alignment every time the ditches are graded and the roadway are resurfaced.
Not every boundary should moved because of what man does.
Nature moves boundaries in the case of rivers and streams. That is why they are described as meandering.
If the intend is to follow a meandering fence, call it a meandering fence and give bearings and distances that best describe what you found.
I really like the realative simple language that early surveyors used in their descriptions. Most of the time, they were carving out new boundaries across new land and there were only natural features to attach the boundary to.
Whatever terms are used, say enough in the property description to clearly show the intent.
0.02
Vern
Wattles actually uses poor examples when discussing the use of "along". He uses several cases in which the subject boundaries were riparian. The point in Howard v Ingersoll was that "along the bank" was contrary to the presumption of the water boundary being at the center of the stream, thus it limited the conveyence.
In the unnamed case calling "along the shore", the boundary was apparently along a navigable waterway and as a matter of law (per that jurisdiction), the boundary is interpreted to be at and along the low water mark.
In Walton v Tift, the call was "along the river", and not "along the shore/bank". As Wattles stated, as a matter of law, with no specific language to the contrary in the description, the boundary is interpreted to the center of the stream (for that class of water in that jurisdiction).
The use of "along" actually makes a seemingly general call more certain in nearly all cases. A general call of "along the river" seems general and ambiguous... Along what part of the river? The bank? The shore? The thread? Well, you don't have to guess. You only need to be aware of whether the water is navigable, and in some states, whether it is tidally influenced, then apply the boundary presumed by the statute of your jurisdiction. It follows the sinuosities of the ordinary high water mark, the low water mark, or the thread of the stream as the statute establishes the presumption.
Likewise, "along the road" is presumed to be along the centerline unless there is specific language in the description lending certainty to another line, such as the edge of travelled way or the edge of right of way, or unless there is a RW deed for a fee interest in the road that would prevent the conveyance of the underlying land.
If a line is called "N 89 E, 660' along a barbed wire fence to an iron pipe", then the "along a fence" and the "to a pipe" parts render the bearing and distance to be of less importance. Both the pipe and the fence are then controlling monuments. The boundary will follow the fence, including all of its angle points (whether or not they are significant enough to be called angle points for boundary purposes is a matter of judgement for the surveyor on the ground) until you get to the iron pipe.
I have seen "with" used in the same manner as "along", but it may mean that it follows a parallel path to the object that it is going "with". To ensure no ambiguity, if the boundary is parallel with, but not coincident with, then the call should state that, including the perpendicular distance from whatever it is running "with". If it is coincident with, then you should state "running coincident with".
If the intent is for the boundary to be in a straight line and there is a fence that runs generally along that line, then either do not call the fence, or state "running N 89 E in a straight line, 660', generally along a split rail fence..." The qualifiers of "a stright line" and "generally along" make the mention of the fence merely informational and a guide to help the surveyor or landowner be in the right vicinity to locate the boundary, but does not make the fence a controlling monnument.
It may be somewhat regional, but I prefer using "along" if I mean for the boundary to be on/coincident with/controlled by a specific line or set of lines defined by some other feature, and to use "with" in conjunction with "parallel" and a specific distance between the boundary and the feature it is running parallel "with". I would not use "with" when meaning "along" unless long-time local practice is such that it is presumed to be interpreted that way.
