Ok let's pretend.
There is a hwy project and a parcel is acquired from "SMITH" thru condemnation.
the condemnation order says "fee per the atteached exhibit "A".
Exhibit A says "that certain tract, STR,... as shaded on the attached map."
the attached map looks like this-
(disregard the dashed line z-z1 and the "fnd rw mon" for now)
the project gets built and the tract recorded in bk1/pg500 changes hands.
several times.
fast forward 30 plus years-
Smith hires a surveyor
Surveyor finds the rw mon at 100' rt 180+06
surveyor determines that the east property line of the tract bk1/pg 500 is really at the dashed line z-z1.
? is there a gap between the parcel acquired by the hwy (shaded) and the east line of the tract bk1/page 500?
MCA 70-20-201 is offered for your reference.
fire away-
DOT projects rarely have boundary surveys done on them. If the monument fits then hold the monument.
Wow, Montana 70-20-201 is almost word for word identical to our law for construing descriptions (blue text = additional verbiage in Ore. law):
ORS 93.310 Rules for construing description of real property. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful, and there are no other sufficient circumstances to determine it:
(1) Where there are certain definite and ascertained particulars in the description, the addition of others, which are indefinite, unknown or false, does not frustrate the conveyance, but it is to be construed by such particulars, if they constitute a sufficient description to ascertain its application.
(2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles or surfaces, the boundaries or monuments are paramount.
(3) Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.
(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road, or the thread of the stream, are included in the conveyance, except where the road or bed of the stream is held under another title.
(5) When tidewater is the boundary, the rights of the grantor to low watermark are included in the conveyance, and also the right of this state between high and low watermark.
(6) When the description refers to a map, and that reference is inconsistent with other particulars, it controls them, if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.
Was right-of-way acquired from Book 1, Page 500? If so, I would say hands down the DOT gets it all. I cannot think of any situation in which a court of law would allow for a gap in the right-of-way. Than being said, I would hold the resolved adjoiner's line over the stationing. I think the courts would interpret the exhibit map to be making a call to the adjoined which would trump the distance call. Most of my experience in legal descriptions has come in the form of right-of-way acquisitions as this all be it with a written description. It is a very rare occasion in which we are charged with resolving sidelines. We just call to them.
Was the stationing surface measure to enable cross sectioning and volumn calcs or was it horizontal as used in parcel descriptions?
I have seen R/W plans where all dimensions were surface and a retracement surveyor tried to relocate the exhibit information using horizontal dimensioning that missed farther than this.
Richard Schaut
At first look, it would appear that the intent was to condemn all of Smiths land east of the tract described at Bk1, pg 500. The map (ignoring the z..z1, which I assume was not shown on the map used in the cnveyance) clearly does not show Smith retaining a strip between Bk1, pg 500 and the condemned portion.
What evidence was found and used for the dividing line between Smith and Bk1,pg500 parcel when the highway took the r/w and what was found and used to determine the z..z1 line?
Just a shot in the dark but if there is a r/w monument there and the r/w fence and DOT occupation fits the monument then the DOT has what it needs, right? If there is a gap it's not really the State's problem.
I generally believe that monuments are there for a reason.
On the other hand I have seen this situation where the cross-hatched parcel is an access frontage road to the adjoiner's parcel and the physical road actually covers the gap and in that case I would say the intent was for the access strip to touch the parcel intended to be accessed and the r/w monument is only for where the r/w line is in distance from the centerline but not necessarily where the strip ends parallel to the centerline. We had a situation like this at a fire station where the strip was the access and the old concrete r/w monument fell a few feet short of the fire station bounday but my survey showed the access strip (fee) touching the boundary of the fire station because obviously they didn't intend to leave a 2' wide gap.
Dave- let's pretend the gap would be 20-30 feet....
Brian- let's pretend that the information regarding the east boundary at the time of rw acquisition is unclear, and that the line z-z1 has been determined by measuring record distance per bk1/pg500 from the mid section line- ie the theoretical west bdry of both Smith and 1/500
“the condemnation order says "fee per the atteached exhibit "A".”
The attached exhibit “A” shows the strip crossing Smith all the way to the adjoiner's boundary; therefore...:-)
Next question
Don (life is so simple in my world) Blameuser
Rankin
First off, I really enjoyed the MARLS convention in Billings this year, and I think we actually met briefly, but I'm not sure. I'm not a real social person 🙂
It seems that there are two issues at stake, and I not sure which one you are after. Also, since you linked a section of Montana Code, I'm wondering if you are asserting that one or more of the laws you cited are pertainent.
Which question are you looking to answer 1) where is the east boundary of Bk1/Pg 500? and/or 2) where is the west boundary of the R/W taking? (like I said previously, it looks like they may be one and the same.)
As to the section of MC you cited:
70-20-201. Rules for construing description. The following are the rules for construing the descriptive part of a conveyance of real property when the construction is doubtful and there are no other sufficient circumstances to determine it:
(1) Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.
(2) When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.
(3) Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces and that of lines paramount to both.
(4) When a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.
(5) When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low watermark are included in the conveyance.
(6) When the description refers to a map and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise, the map is subordinate to other definite and ascertained particulars.
The first question we need to answer is, is the statute even pertainent to the problem? Is "the construction" doubtful? and/or is there "no other sufficient circumstances" to answer the boundary questions?
Gotta go ride, I'll be back tonite.
Yes it looks identical or nearly so to our California Code of Civil Procedure Section 2077.
It is difficult to comment. I think I may disagree with myself which might lead to ad hominem attacks on myself.
For example, how is 1/500 occupied and surveyed? It appears to have come from the larger tract owned by Smith. Did the recent survey ignore possible established boundaries between Smith and 1/500?
Unfortunately the DOT often did that. Set a big concrete monument where the R/W supposedly jogs at a lateral boundary line. This leads to confusion.
The sketch does appear to call for 1/500 therefore if you need the strip then you probably have it.
Don of course you are correct. I'm thinking too much again.
It sounds like the entire condemnation was based on a map and not a metes and bounds or centerline strip description so you’d have to put a lot of weight on 70-20-201 (6).
I can see where you could then pull 70-20-201 (2) into (6) and say boundaries trump monuments, distance, bearing, etc. (there aren’t bearings or distances on the map, but station and offset are second cousins to them) and it’s clear that the shaded area goes all the way to the east line of Book 1/Page 500, so the construction of the description = All of Smiths land east of Book 1/Page 500.
But then 70-20-201 (6) has that subjective “if it appears that the parties acted with reference to the map”. The DOT could say “we paved and fenced that entire strip, so the intent is crystal clear it was all Smith owned”. And of course Smith can say – Bogus dudes! I was only compensated for 2000 feet by 40 feet so the DOT’s intent was to condemn 2000 X 40, not 2020X 40.YOU STOLE MY LAND.
