Your right on all counts VH. It really was a simple decision on my part. I just ran into someone who couldn't understand that the stream could move a boundary with it. Really not that interesting. In fact it's a boring post.
Since it would not be practical to set the posts in the center of the brook and the brook is specifically called out, I'd likely interpret those posts to be witness corners, barring specific language to the contrary. The brook being an ambulatory boundary.
Not at all boring. It's good to discuss/remember things like this especially when you don't see this type of thing everyday.
-V
the use of the word "along"
I agree with everyone pointing out that 'along the stream' is not great wording. More specific wording could clarify exactly what was meant. When we have these more vague wordings, it is good to read it in context of the whole description, what kind of language was generally used to mean what in that time-period and/or that area of the country, and perhaps some good old-fashioned review of what it looks like they meant on the ground.
My biggest take-away from these types of discussions is what to, and not to, use in my descriptions so as not to introduce this type of ambiguity.
the use of the word "along"
I really have no problem with the word "along". There is load of case law that that addresses that. Unless there is specific exclusionary language the grantor is conveying whatever rights he or she may have in what would be a brook in this case.
Hack
Just thinking. If the line was established post to post
and a point set on that line at the intersection of
of the brook, it could present another opinion, such as,
from the intersection to the westerly post part of the brook
would be in the northerly parcel, and from the intersection to the
easterly post the remainder of the brook would be in the southerly parcel.
The westerly post looks to be backed off the brook for the purpose of
intersecting an the mid point, the easterly post is at the edge. I wonder
what the other opinion is if the posts are corner monuments.
Charley B.
brooks move, posts don't. not enough info here to make the call(pun intended)
how far is the post from the brook? is the brook on the surface of a meadow or a well defined arroyo?
more or less is just that, and along a brook might just mean "over that way".
was it prepared by a surveyor or dad and uncle leroy on a saturday morning?
the use of the word "along"
Rather than using along or with, I sometimes use coincident. Thence coincident with a north south fence etc. ect.
the use of the word "along"
> Rather than using along or with, I sometimes use coincident. Thence coincident with a north south fence etc. etc.
While I use coincident myself, I'd never use it in this instance. Instead, I'd use along (see Black's, meaning sometimes touching), since I don't want to convey the intent that I am at all times on/with/coincident with the fence, because that would mean, or could be construed as you are, at all times, on all P.I.'s and every nuance of the direction of the fence.
The only exception to that is if the owner's expressed desire/intent in cutting out a parcel is to be coincident with the fence, at his/her direction.
If I am absolutely certain that I am on my boundary line and an adjoiner's line at the same time, I might use "coincident", since I want to convey the intent that at all times I am on those lines and never deviate from them. Typically I'd use "with" for this instance.
Say what you mean, mean what you say with the appropriate language.
I'll throw another twist on it. Is the 'brook' navigable? In most of the States I've worked that would make the boundary the 'Ordinary High Water Mark' or some variant thereof. If not navigable it would likely be the thread or thalweg of the stream. To further confuse the issue it may be fixed at the location of the thread at the time the words were written.
A little more information is needed... Tom
the use of the word "along"
:good:
I totally agree.
No. The concrete monuments are boundary monuments, but not necessarily corner monuments since the description takes you from one concrete monument, to another monument (the creek) without explicitly stating an intervening course, and then to yet another concrete monument, again with no intervening course. If those monuments do not precisely coincide at the locations of the concrete monuments, then some course is implied between creek and concrete. Recognizing that it is impractical to set a monument within a flowing stream, it should be presumed they were set on the bank.
Following the description along an upland boundary course to the fist concrete monument.
Next course is along the creek, a natural monument. Natural monuments (generally) hold a higher place in the hierarchy of boundary evidence than do artificial monuments, but in this case it doesn't matter because there is no conflict.
In following this description, you must get from the concrete monument to being "along the creek" in order to follow along it. You would extend the last stated course to get to the center of the creek.
In following along the creek to the next concrete monument, also presumed to have been set on the bank, you follow the creek until you are adjacent to that concrete monument and then get from the creek to the monument. The generally accepted way is to use the specific direction stated in the next course. An alternative might be to go right angle from the creek centerline to the monuments at each end, but I would need some site specific evidence to support that over the other method before I did it.
