Kent McMillan, post: 430527, member: 3 wrote: Well, in Texas, a parcel that takes in land that the seller didn't actually own is a title issue since the resulting parcel includes land under a separate ownership or title. There is no question about where the parcels depicted in the map that was used in conveying them are located. Jim has said that he located all of the evidence of the parcel boundaries shown upon that map. The problem is that those boundaries as represented take in land that the subdivider did not have title to. That's a title problem if one then wants to convey the same land as represented on the same map.
Actually no, it's a location issue. Title issues are like a defect in a Deed in the chain of title. Assuming drunken civil engineer (DCE) had no title interest in the parcel map Tract the mere act of him driving rebars in trespass on the neighbor's property has no effect on the neighbor's title. The act did raise some momentary confusion about location which Jim has already cleared up. In fact the neighbor testified that she knows they are wrong so that defeats any establishment other than the established original boundary of the underlying Lot.
The California Courts have already ruled a Parcel Map (a minor subdivision) is not an official survey and is only in effect a dependent resurvey as to its exterior boundaries. It can't have an impact on the vested rights of the adjoiners by itself. There are circumstances in which it could establish its exterior boundaries but those are not present here.
So what we have is an original survey junior to another original survey. The cedar stakes control the exterior boundaries of the parcel map and the DCE rebars control the interior boundaries created by the parcel map. Any DCE rebars in trespass on the neighbor operate as closing corner.
PS: if the cedar stakes are lost then it might be said that the DCE rebars are the best available evidence of where they were or the property owners have accepted them as established because they have the right to do that if they don't know where their boundaries are located. Both of those possibilities are defeated here because it is known that the DCE rebars have a defective connection to the senior original survey and the second because of the testimony of the neighbor.
I'm going to stay away for the rest of the weekend because I have zero desire to engage in an endless parade of tennis court type posts (back and forth).
25. Ealand-Wood Lumber Co. v. Bronson-Morgan
Court of Civil Appeals of Texas, Austin. December 19, 1951 246 S.W.2d 493
Headnote: The primary purpose in all boundary cases is to locate survey as it was intended to be located on ground by original surveyor.
37. Hart v. Greis
Court of Civil Appeals of Texas, Fort Worth. October 24, 1941 155 S.W.2d 997
Headnote: Titles to land are not to fail merely because old markers may have disappeared or because it may be difficult to trace footsteps of the surveyor.
1 Case that cites this legal issue
38. Hart v. Greis
Court of Civil Appeals of Texas, Fort Worth. October 24, 1941 155 S.W.2d 997
Headnote: In suit involving boundary question, search must be made for the footsteps of the original surveyor and, when found, the case is solved.
Document Summary: Appeal from District Court, Wichita County; Ernest Robertson, Judge. Suit in the form of trespass to try title by H. N. Greis and others against C. R. Hart, wherein the sole issue was one of boundary. From an adverse judgment, defendant appeals. Affirmed.
I think the confusion comes in where the form of action is conflated with the resolution which in boundary cases is a question of fact.
Dave Karoly, post: 430805, member: 94 wrote: 37. Hart v. Greis
Court of Civil Appeals of Texas, Fort Worth. October 24, 1941 155 S.W.2d 997
Headnote: Titles to land are not to fail merely because old markers may have disappeared or because it may be difficult to trace footsteps of the surveyor.
1 Case that cites this legal issue38. Hart v. Greis
Court of Civil Appeals of Texas, Fort Worth. October 24, 1941 155 S.W.2d 997
Headnote: In suit involving boundary question, search must be made for the footsteps of the original surveyor and, when found, the case is solved.Document Summary: Appeal from District Court, Wichita County; Ernest Robertson, Judge. Suit in the form of trespass to try title by H. N. Greis and others against C. R. Hart, wherein the sole issue was one of boundary. From an adverse judgment, defendant appeals. Affirmed.
I think the confusion comes in where the form of action is conflated with the resolution which in boundary cases is a question of fact.
Well, sorry, but both of those cases you've cited are completely irrelevant to the matter Jim Frame described, which was a land subdivision that created parcels with identifiable boundaries, but which were not owned by the subdivider in their entireties. I'm afraid I can't even imagine some alternate universe where this is difficult to understand.
You may not realize this, but a similar matter is very common in Texas where land grants were made with identifiable boundaries that were later discovered to be in conflict with other, senior, grants. There was typically no question as to the locations of the boundaries of the conflicting grants. The issue was who held the better title to the land within the area of conflict.
In Jim's example, it would be worse than silly for the owner of one of the parcels to continue to attempt to convey the land by reference to the plat that showed Parcel A (or whatever) to embrace land to which the grantor had no title. Smells like a title problem. Is a title problem.
Dave,
I'm not sure why others have a propensity to conflate their views regarding their state statutes and case law to states they are not licensed in (other than to play tennis). Overlapping and conflicting claims, (whether intended or not) are a common occurrence for mineral surveys. Usually, whichever claim was located first, is senior in right to the conflict. This is simple mineral surveying 101 as Federal patents are regarded as quitclaim deeds. The government cannot issue a patent to land it has already patented. No title problem whatsoever.
There are situations between conflicting mineral surveys where the conflict is theoretical in nature. Some are of the opinion that those situations require a quiet title action. I posted a white paper on how to evaluate the seniority of mining claims in an earlier thread here.
To quote another, "I can't even imagine some alternate universe where [conflicts between patented lode claims] is difficult to understand".
[tongue-in-cheek]A California court has three ways of looking at Texas court cases: they can include the case in their decision as persuasive authority; decide it is not persuasive authority; or, ignore it completely. If I were a betting man, I'd go with the third option.[/tongue-in-cheek]
Back in August 2010 on the CLSA forum, a California surveyor posted about a similar case. It was a bit simpler than Jim's example as the parent tract was subdivided into only 2 parcels. I mention that thread, because the discussion generated over 306 posts and over 40,250 views. Several licensed California surveyors that post here participated in that thread entitled, "Map v. Monument". The thread is a bit disjointed in content now because the thread author had his posts removed. I'm sure that California surveyors are up to the task of determining what's right in their universe.
I'll follow Dave's lead and leave this tennis game now, too, also.
Gene Kooper, post: 430850, member: 9850 wrote: I'm not sure why others have a propensity to conflate their views regarding their state statutes and case law to states they are not licensed in (other than to play tennis). Overlapping and conflicting claims, (whether intended or not) are a common occurrence for mineral surveys.
Apparently, I'm one of the few in the discussion to have actually read what Jim Frame posted, which was this description of the situation:
"A rural parcel, roughly 1200' x 660', is subdivided into 3 parcels via Parcel Map in 1990. The subdivider's surveyor-of-record -- a civil engineer who finally lost his war with the bottle a couple of decades ago -- set monuments at all the parcel corners, but when he, or rather his crew, did so they appear to have rotated everything by about 10 arc-minutes around a section corner 1300' distant. The monuments fit within themselves kinda-sorta-okay (less than half a foot), but are at odds with the rest of the world by 4 to 6 feet."
In other words, a subdivision plat shows three parcels whose boundaries can be identified, but take in land that the subdivider didn't own.
Dave appears to think that there's only a location problem, but why is the mislocation of the subdivision a problem? It's because of the underlying TITLE problem.
Gene wants to mention mineral surveys, and to seemingly agree that the real problem is one of location while also neglecting to agree with the obvious source of the "location" problem, i.e. that the subdivider didn't OWN some of the land platted into lots. That is what is in essence a TITLE problem.
The point of Jim's original post centers around fixes, as I understand it. Dave and Gene appear to want to just somehow fix things without getting into the fundamentals of TITLE which in any rational universe governs the resolution of the conflicts created by the subdivision plat. One can only conclude that they have some alternate universe in view that doesn't correspond with how similar situations are actually dealt in this universe where ketchup still isn't a vegetable.
Maybe it really doesn't matter whether the trespass over the exterior boundary is technically classified as a location issue or as a title issue. The real question in practice is, is this something that needs to be fixed (i.e. LLA, Line of Agreement, or correction deed) or is this just something that needs to be documented. I could see that in Texas, maybe you would want to get the deed re-written as there is no way to file a survey to put everyone on notice.
roger_LS, post: 430855, member: 11550 wrote: Maybe it really doesn't matter whether the trespass over the exterior boundary is technically classified as a location issue or as a title issue. The real question in practice is, is this something that needs to be fixed (i.e. LLA, Line of Agreement, or correction deed) or is this just something that needs to be documented. I could see that in Texas, maybe you would want to get the deed re-written as there is no way to file a survey to put everyone on notice.
Isn't the test how the land will be described when next conveyed? If the description is by reference to that same parcel map that shows lots taking in land that the subdivider didn't have title to, that would only seem to kick the can down the road. Platted lots generally have a bunch of issues associated with them that may come into play if minimum lots sizes that conformed to some development regulations are no longer maintained.
Jim indicates that the parties resist the idea of moving fences - and they may be some fancy fences, not just five-strand wire stock fences - but a "fix" that leaves a lot with impaired marketability for some reason may make the hundreds of bucks to shift a couple of fences seem cheap by comparison.
Today I got the go-ahead from all 3 owners to proceed with a lot line adjustment. We'll be mostly adhering to the lines as they were marked in 1990, but shortening or extending them to meet the lines of the original parent parcel. One interior line will be rotated to make it parallel with one of the sidelines; this is being done because one owner felt that she was getting shorted while her neighbor was gaining acreage, and the neighbor agreed to the change. Finally, an odd sliver of creek bed is being taken from one parcel and added to another where it will be more useful, which was the plan even before I got involved.
With regard to the neighbors who aren't part of the LLA, the one who was unhappy 27 years ago when the subdivision was originally staked is delighted to learn that the line will be remarked in its original location and the fence rebuilt accordingly. Another neighbor, though, became unhappy when he learned that the fence between his parcel and the Parcel Map is 5 feet into the Parcel Map, a fact that the subdivider has known for decades. But if there wasn't at least one unhappy person at the end of all this, it would be a fairy tale instead of a real job.
Jim Frame, post: 430858, member: 10 wrote: Today I got the go-ahead from all 3 owners to proceed with a lot line adjustment.
As a point of curiosity, what will the change to the legal descriptions of the three lots be? That is, I assume that they were each conveyed as "Lot No. as shown upon that certain map recorded in ....." are they now to be "Lot No. as shown upon that certain map recorded in .... as subsequently modified by lot line adjustment recorded in ..."?
Kent McMillan, post: 430857, member: 3 wrote: Isn't the test how the land will be described when next conveyed?
I think the test is whether or not you anticipate that there could be problems later if the actual deed is not corrected.
Kent McMillan, post: 430862, member: 3 wrote: As a point of curiosity, what will the change to the legal descriptions of the three lots be?
I haven't thought that through yet, but I expect I'll reference them to the original parent parcel corners and run bearing-and-distance around them, with passing calls to the Parcel Map monuments. The Record of Survey will more fully explicate the conditions that produced the wonky monumentation and will show ties to the monuments used to control the parent parcel retracement.
Jim Frame, post: 430865, member: 10 wrote: I haven't thought that through yet, but I expect I'll reference them to the original parent parcel corners and run bearing-and-distance around them, with passing calls to the Parcel Map monuments. The Record of Survey will more fully explicate the conditions that produced the wonky monumentation and will show ties to the monuments used to control the parent parcel retracement.
What I was getting at was how the three parcels will be described when next conveyed. Presumably, the descriptions will still be by reference to the original parcel map, but with some other references to tell the story of how they were modified. Is the reason for not creating a new parcel map mainly one of cost or is there some other reason not to do it, such as lenders having to execute it as well as the owners of the three parcels?
roger_LS, post: 430864, member: 11550 wrote: I think the test is whether or not you anticipate that there could be problems later if the actual deed is not corrected.
Considering that the lot owners are aware of the title problems, i.e. that pieces of the lots shown upon the record parcel map of the subdivision are actually owned by others, wouldn't it border on fraud to convey the parcels by the same descriptions again, leaving the buyer to discover the misrepresentation in the future?
Kent McMillan, post: 430866, member: 3 wrote: What I was getting at was how the three parcels will be described when next conveyed.
The LLA process produces a Certificate of Compliance -- a state law mechanism formally recognizing the described parcels as conforming to state and local laws -- that gets recorded . The C of C will use the new descriptions, effectively expunging the old Parcel Map parcels, and title will henceforth be transferred using the C of C descriptions. Think of it as a merger and resubdivision of the parent parcel.
Jim Frame, post: 430869, member: 10 wrote: The LLA process produces a Certificate of Compliance -- a state law mechanism formally recognizing the described parcels as conforming to state and local laws -- that gets recorded . The C of C will use the new descriptions, effectively expunging the old Parcel Map parcels, and title will henceforth be transferred using the C of C descriptions. Think of it as a merger and resubdivision of the parent parcel.
Is the Certificate of Compliance also typically attached to a map? That is will all three parcels as reconfigured be represented on a map subject of the same Certificate? What prompts the question is that I'm wondering how easy it will be for the next surveyor to discover that all three parcels were simutaneously reconfigured by your survey, i.e. that there are no senior rights between the three parcels.
Kent McMillan, post: 430868, member: 3 wrote: Considering that the lot owners are aware of the title problems, i.e. that pieces of the lots shown upon the record parcel map of the subdivision are actually owned by others, wouldn't it border on fraud to convey the parcels by the same descriptions again, leaving the buyer to discover the misrepresentation in the future?
If it was shown on a Record of Survey that was publicly available anyone could become aware of it, Title Co.'s may pick it up in reports, and a seller would be obligated to disclose the results of a survey to a future buyer. Is it fraud if the seller doesn't disclose the results of a survey to a buyer? maybe so.
Kent McMillan, post: 430870, member: 3 wrote: Is the Certificate of Compliance also typically attached to a map? That is will all three parcels as reconfigured be represented on a map subject of the same Certificate? What prompts the question is that I'm wondering how easy it will be for the next surveyor to discover that all three parcels were simutaneously reconfigured by your survey, i.e. that there are no senior rights between the three parcels.
Jim failed to mention that CA's LLA process does not actually include a COC as part of the process. In fact, CA's LLA process, form and content is not codified in statute, leaving it to each of the 500+ local agencies to formulate and each one of them do it differently. Only some of them include COCs as part of their process. Those that do, do so for not much reason other than revenue generation because frankly a COC really is not warrented. For what its worth CA's LLA statute simply stares that the LLA "shall be reflected in a deed".
Hopefully someday CA surveyors will rewrite the LLA statute to provide a uniform and intelligent form content and process. In particular CA should strive to make the LLA process a tool for clearing title instead of having agencies view it as a overburdened land development process as most all do currently.
clearcut, post: 430872, member: 297 wrote: Jim failed to mention that CA's LLA process does not actually include a COC as part of the process. In fact, CA's LLA process, form and content is not codified in statute, leaving it to each of the 500+ local agencies to formulate and each one of them do it differently. Only some of them include COCs as part of their process. Those that do, do so for not much reason other than revenue generation because frankly a COC really is not warrented. For what its worth CA's LLA statute simply stares that the LLA "shall be reflected in a deed".
Hopefully someday CA surveyors will rewrite the LLA statute to provide a uniform and intelligent form content and process. In particular CA should strive to make the LLA process a tool for clearing title instead of having agencies view it as a overburdened land development process as most all do currently.
So, if I'm understanding that, what was conveyed as, say, "Parcel A as shown upon Parcel Map No. ________ recorded in __________" would instead be conveyed as just a metes and bounds tract after the LLA, possibly comprising pieces of Parcel A as shown upon ..."
roger_LS, post: 430871, member: 11550 wrote: If it was shown on a Record of Survey that was publicly available anyone could become aware of it, Title Co.'s may pick it up in reports, and a seller would be obligated to disclose the results of a survey to a future buyer. Is it fraud if the seller doesn't disclose the results of a survey to a buyer? maybe so.
The fraudulent misrepresentation would enter the picture if a landowner was aware that they didn't actually own all of Parcel A, but contracted to sell all of Parcel A as shown upon Parcel Map _________ to unsuspecting buyer. Suppose that the result was that Parcel A was dimensionally deficient in some way that effected buyer's plans for improvement. I'm thinking that seller would have a problem that "it's just a location problem" wouldn't begin to fix.
