My client is buying a part of a larger tract that fronts on a state highway on the south side. There is a deed off the southwest corner for "about an acre measuring 210' x 210'" (no bearings) to the adjoiner which has a house on it. On the east side of that lot is a house which is on the property I'm surveying. There are paved driveways next to each other about 12' apart between the houses leading to each house. The deed for my tract is for about 180 acres and the description goes around the 210' x 210' lot, calling for the adjoiners tract. Both west corners of the 210' lot are there (existing pipes)in an old roadbed that was there before the highway was built in the 1930's. Measuring east from those pipes 210' goes across both driveways and about 20' into the front yard of the house on my tract, basically running between the driveway and the house. Everybody agrees that the line should run between the driveways, and that it's always been like that.
My tract was sold off by the folks who originally kept the 210' lot with their house on it. The house on my tract was built later. None of the current owners (all descendents)have any idea how it ended up this way, there are no other deeds. Back in that original deed, it says "distances are approximate".
So, with that "approximate" statement in there, would you put in the line where everybody thinks it is (which is off by 37' at the front and 21' at the back), or would you tell them you can't survey off the tract for your client (who also thinks the line should be between the driveways) until they fix it?
I know what I'm doing.
Put the line where the possession leads it to be, and have both parties sign the plat, and then record it. That way it's on record.
Put the line where it needs to go to keep everyone happy then see to it that all the appropriate paperwork gets done in the correct order. This may not work easily if there is a lender or two with mortgages on the tracts. Good luck getting everyone to work together.
I had a similar case once with a small tract out of a large tract. It had been surveyed by a hack who knew how to hold a stick and thought that qualified him to do survey work on his own. Somehow he managed to end up with a description that worked quite well except for one minor detail. The description told you to go something like 198 feet further from the point of commencment to the point of beginning than what the found bars indicated. Going with the record description put a horse barn on the adjoiner and half of the adjoiner's house on the small tract we were surveying. There was a lender involved with both tracts, but, it was the same lender so that potential major complication was avoided. To top it off, the adjoiner was then living in what had been his parent's house and the small tract with the doublewide was where he had lived until losing it to the bank years earlier. Still it was a mess.
Denying a distance call...
..is always difficult in our business. But personally, in this case, I believe the boundary exists between the two drives. You have hinted that the deeded description is crude. Good evidence that the subsequent 'layout' is also crude in nature.
In rural Oklahoma most boundary work involving "home cooking" of descriptions is in need of a proper survey. In my world that's a home run for both estates; a survey of record that defines the common boundary. That should keep a cloudy title from surfacing years down the road.
Denying a distance call...
Luckily everybody is in agreement and there are no liens to deal with. However, what has been proposed is to swap the property between the houses for equal property in the back. So, the adjoiner ends up with more property than they had (on the ground) if you consider the line to be where everybody thought it was, and the other one ends up with less. It amounts to about 6000 sq. ft., not a big issue out in the country, but it would be a biggie in other places.
According to our existing laws, I would set the line in the place where the landowners describe it to be, noting on the required plat that parol evidence was required to place the line in absence of other credible evidence. This would most likely keep the courts from having to make this decision for us, and is most likely what the courts would do if all the testimony did not change. Surely, the landowners who first contemplated the tract did not intend for there to be any encroachments, and I would honor that presumption.
I would write a "survey description" for the plat. We are required to deposit this plat in the county surveyor's index in Colorado. This process does not affect title. If the landowners wanted to produce a "line of agreement" or "subdivision exemption", that would have to be recorded but in general, I would only do this if asked to by both landowners. I would not push them to do it.
WW CO PLS
- Have a nice day! Or, may your monument prevail over some guy's touchscreen.
since the original deeds were "approximate", they are not "off". show and monument the occupied line. show the deed and measured if you want. I would probably put something like (Deed 210±)
Denying a distance call...
Sounds right to me.. and it sounds like you have jr/sr rights issues taken care of with that solution as well.
Ditto that. I would put it down the drive, especially if everyone involved agrees. Once they've all signed, there's no more problem.
Sounds like you have the history on how the line was actually created on the ground. It would be hard to argue with that!
Why are you holding the existing pipes in the old roadbed? Maybe the 210 goes further west! Not enough info..
Because the original deed before the 210 lot called for the cl of the old roadway.