I know acerage is at the bottom of the list on conflicting elements but I would be curious to see where the rear end of 100 acres fall.
Seems that the actions of the parties involved at the time of the initial transfer would reflect intent. It appears to me like the intent was to transfer to the thread by the wording of the documents, calling for land East and West and not addressing the lake itself. Unlikely that the intent was to describe the initial tracts subdivision leaving the lake as no mans land in the center. It would be landlocked without an access easement and there does not seem to be one. A case of getting the proper attorney who knows land law as practiced in that area and defending their rights. Should be some compensation for being forced to defend against what seems to be a land grab.
jud
Would Mr. Doe be so crass as to give his 2 daughters 100 acres each and not include access to the lake?
> Would Mr. Doe be so crass as to give his 2 daughters 100 acres each and not include access to the lake?
Mother may I go out to swim,
Yes my darling daughter,
Hang your clothes on a hickory limb,
But don't go near the water.
;o)
JBS
The partition of the property may have been simultaneous conveyance, whereby the land was divided into two pieces specifically said to be east of the lake, and one piece on the north side of the lake. This might give each tract access to the lake and potential ownership within the bed of the lake. Gaps are generally not implied.
Frank,
Knowing your thoroughness and knowledge of riparian matters you most likely have the correct answer. I have tried to read and understand all the other comments thus far. However, the following questions come to my mind and I did not see them answered.
1. What is the distance from the meandered high bank to the OHWM of the lake? Has this distance changed since the deed from Mr. Doe to his daughters? If so, how much? (Using Jim Simpson’s definition of OHWM)
2. What is the nature of the land between the meandered high bank and the OHWM? Is it covered with upland vegetation? Was it covered with mature upland vegetation at the time of the deed?
3. What is the elevation change from the meandered high bank to the OHWM? Has this changed since the time of the deed? If so, by how much.
4. Is this area in a section of land surveyed as part of the PLSS? If so, was the lake shown on the original plat? What was the date of the survey and when was the plat approved? Was it meandered? Was this swamp land?
5. Is the character of the land on the east side different from the west side? If so, describe the difference. Is there a high bank on the west side?
6. Is the lake useful for recreation and/or fishing? How big is the lake? Has it changed in size since the deed to the east side?
7. What access is there to the lake?
8. What is the evidence of use of the lake? What are the dates of these uses? I am assuming it has some value for some purpose. Are there mineral leases in the area? Do the upland owners also own the subsurface and mineral rights?
9. I also see nothing to indicate the land on the west side was described other than a remainder of what was not deeded to the daughters. Is this correct?
10. Were the daughters heirs to the west side also? Or did they want their inheritance separated out and took the east side?
There are probably a bunch more questions that you have already answered during your investigation. I don't expect you to answer the above questions on this board, but they should be known before making a determination.
Best regards,
Jerry
Edit, I just saw our latest post that did answer some of the above.
Frank, I thought these principles might have some bearing, but I just read a little blurb on LA civil law vs. common law and y’all got your own set of rules going on down there so all bets are off:
"It is a familiar principle of... law that a grant of land bordering on a road or river, carries title to the center of the river or road, unless the terms or circumstances of the grant indicate a limitation of its extent by the exterior lines." Banks v. Ogden 69 U.S. 57 (1864)
“The rule itself is mainly one of policy, and one which, to the unprofessional, might not seem of the first importance; but it is at the same time one which the American courts especially have regarded as attended with very serious consequences when not rigidly adhered to, and its chief object is to prevent the existence of innumerable strips and gores of land along the margins of streams and highways, to which the title for generations shall remain in abeyance, and then upon the happening of some unexpected event, and one consequently not in express terms provided for in the title deed, a bootless, almost objectless litigation shall spring up to vex and harass those who in good faith had supposed themselves secure from such embarrassment.” Buck v. Squiers, (22 VT 484)
Thanks, Mike. That is precisely why the principle exists. Presumptions are rules of law designed to prevent problems. It seems that we surveyors too often look for any shred of evidence which might be used to create a controversy. It takes more than a shred of evidence to overcome a sound presumption of law.
JBS
How do the deeds odf each read. From the info given in the OP, it seems that the bed of the lake was completely left out of the new easterly parcels and out of the westerly remainder.
If the writings indicate an omission of considering the lake as either part of the conveyances or as part of the remainder, then the bed of the non-navigable, private lake probably should be apportioned between the parcels as is customary in that jurisdiction.
But again, how were the properties described? Did they call out something like "thence along the top of bank..." or along any definite feature, did they just call out the bearings & distances of the meandered bank without specifying what they were intended to be along, or did the deed just more generally say "east of the lake"?
Before assuming that the bed of the lake goes with parcels on either side, did you investigate whether or not it was intentionally retained for water rights purposes? Is it possible that the lake was intentionally retained in order to pipe the water out to another location for irrigation or some other use, or to sell to another party for such use?
I opened this thread hours ago and didn't refresh before responding, so some of my points may have already been addressed.
Thanks, all. The deeds both left out the lake. The deeds are 150 years old, and the locals probably did not consider the lake to have recreational or other value.
I agree with JB that unless a gap is specified or indicated, one should not exist. If that were not a universal thing there would be gaps all over the US.
I am currently of belief that both parties' ownerships extend the the center of the lake, and the reason is that the land on the east was described to lie east of the lake, and the land on the west was said to lie west of the lake. Although the land to the east was meandered, and the land to the west was not surveyed during the partition, the land to the west was described as the land west of the lake. No gap was intended as far as I can tell, and no document said who got the lake.
What you say makes sense to me.
East and west of a monument generally means east and west of the center of that monument, unless you can find specific writing to identify somewhere else on (or off) the monument. Similar to east or west of a highway. Unless the highway corridor is owned in fee, and unless the deed specified somewhere specifically on the highway the presumption would be to the centerline.
Upon reading the initial post, I agree as a LA land surveyor.
The key is always navigability.
I think that you will find some reference to this situation in some of Yiannoupulis's casebooks.
Louisiana riparian and littoral rights alwys seemed awry to me until I got my boots in the mud so to speak on various occasions and used common sense. The laws are based on common sense.
Of course, one has to look for questions of occupation in this matter by acquisitive prescription.
Also if there is some implied usufructory right among the parties. That would be common sense.
Boundaries are boundaries everywhere, one is being misguided to getting hung up on the La civil law aspect.
Not crass but maybe practical.
I have seen and surveyed 19th century partitions west of the Ms River here in Louisiana where the father did leave the most desirable/arable land to the sons and the daughters were given the dregs and the swamp lands. Thus was long before oil/gas exploration.
The assumption would be that the sons would have the most valuable land for sugar cane, rice planting or timber to keep the father's heriitage and hard work perpetuated.
After all, the daughters could marry some local miscreant and the father's legacy could be lost.
The basis of civil law was to protect the rights of women and children but in application that was overlooked in certain partitions.
