I don't have a copy of Wattles.
I should get one.
N
There is one of those "28 courses along the creek centerline" in the deed to a tract in the section to the northwest of where I am sitting right now. Seems like that foolishness was written in the early to mid-1960s. Everything is to the nearest 0.01 feet and 1 arc-second. What a bunch of garbage!
Meanwhile, the adjoining tract "following the center of the creek" is following the intent.
Everything is to the nearest 0.01 feet and 1 arc-second. What a bunch of garbage!
That's what I'd do. And have done.
Or,
"Thence Northerly, and following a creek, with its meanderings, and subtended by the following brg dist to another point in the creek;"
Thence leaving said creek east....."
That's what I wish the last surveyor had done.
N
From "Land Survey Descriptions" , Wattles, 1956
Page 72
A meander line of a stream or body of water when surveyed as such, is not a boundary line of title; it is only a line of identification or reference for the water line it meanders. (Michigan law carries an exception.)
and
If it is desired to grant to a line which follows the approximate center of a ditch or stream, use appropriate language to make the described line a superior call over the center of the ditch; such as: "thence along the following courses, being the approximate center of Carr ditch; South 26° West 470 feet, etc!'; if the usual form . . . "thence along the center of Carr ditch South 26° West 470 feet, etc!^ is used, the courses are meanders only and the grant carries to the center of the ditch, an indeterminate line. However, if all evidence of the ditch has vanished, and no possible means of location is avail- able other than the courses of the meander, then manifestly, the meander must be assumed to control.
From, "Writing Legal Descriptions" Wattles, 1976
Page n137
If the deed specifically states, “to a point; thence northeasterly 12-% rods to a point; thence southerly. ..... (etc.)” with no tie to the creek or stream or river, then title does not carry to or into the creek, stream or river.® If, on the other hand, a call ties to the “bank of the creek, thence up the creek” with its meanders, fixes the boundary of the land at the margin of the creek, not at the middle thereof.”° Or, in the instance of land described as “beginning at a
"Generally with said branch".
Sorta with said branch
Kinda with said branch
Maybe with said branch
The more I think, the more I am persuaded that it's just in the VICINITY of, but not WITH the branch.
N
I guess I would step away from the heavy thought and ask myself what would a non surveyor say if asked to interpret that description I bet they would all say along the stream and that would be the boundary.
From, "Writing Legal Descriptions" Wattles, 1976
Page n137
If, on the other hand, a call ties to the “bank of the creek, thence up the creek” with its meanders, fixes the boundary of the land at the margin of the creek, not at the middle thereof.”°
Not in Massachusetts. By statute, the fee within a watercourse or way is presumed to be included in the conveyance, unless ..."the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line". This statute overrode the common law presumption that reference to a sideline or stream bank was adequate to exclude the area within the watercourse or way.
If you are curious about the full text of this law: https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter183/Section58
In my mind the intention of the original grantor is paramount. Lacking that; I would hold the center of the creek on the North and South lines and run a straight line between them. I think the term "generally" should be the key consideration. I would not re-write the description. I would simply show measured vs. deeded.
If the deed on the other side of the creek clearly conveys to the center of the creek; then I would hold the center of the creek for the boundary to prevent creating a gap in title. In that case I would write a new description following the creek.
Thence west 456' to co rd and pob;
Thence west 350' to cl crk;
Thence n35w 502', but property line follows creek;
Thence leaving said cl crk e 300' to co rd;
Thence southerly with cl co rd to pob.
Now, I'm working on the rest of the property west of the creek.
I've surveyed the actual creek. Its got about 12 angle points. And acreage varies a little.
What do you think of the above procedure?
The actual survey has brgs and distances to the second, and 0.01'
The biggest problem I can see, is it leaves a non record of the specific location of the creek, at the time, the parcel was created.
I like removing ambiguity. The above method seems to leave more ambiguity.
What do you think?
Thanks, Nate
We go to the centerline of creek, we follow the creek and we leave the centerline of creek. It’s my opinion the property line is the centerline of creek. Prove me wrong.
The imagined (viewable) centerline of the creek is where the property line is over the next millenium. That is not the same as 28 courses that might fall within some number of feet of the true center line at randfom points selected by the surveyor on the date of the survey. The intent of the layman conveying the tract is to provide equal access to the creek from both sides thereof
To be fair, there are times when using the "28 courses" methodology must be used to satisfy some bureaucracy. That normally does not involve a transfer of fee simple rights.
Everything is to the nearest 0.01 feet and 1 arc-second. What a bunch of garbage!
LOL. A while back you pointed out how rules can get in the way. IMO this is another example. Standard of practice requirements for me would require the X number of course reported to the nearest 0.01 foot and 1 arc-second along with inter visible witness monument pairs every 1000 feet along the creek to define "thence with the center of the creek"
Part of my message that keeps getting left out was this description dates to the 1960's. We aren't talking about button pushers and AutoCad. Handheld scientific calculators were 10 years into the future at that time. The land involved was rural farmland with pasture on one side of the creek and crop land on the other. Neiher the low-value house on the pasture side of the creek nor the per-acre value of the two categories of farm land did not justify a crew from 120 miles distant to drag a 100' steel chain over hill and dale, let alone attempt to define the center line of a 30-foot wide creek that sometimes was only ten feet wide.
Anyone else remember four-post transits/theodolites and stiff-legged wooden tripods with a kinked cord and a lightweight plumb bob? Chaining pins attempting to stay some certain distance from the "true" property line with a 3-4-5 steel tape solution to move back onto line near the corners?
0.01 feet and 1 arc-second precision?????????????????? Especially when attempting to define a line that doesn't really exist in any meanful fashion for such a use.
Ok. I MUST appolagise to all in this thread. The op was from memory.
This is the deed. It was surveyed. It's the first piece OUT of this 40.
Here's a actual quote from the actual title:
OK, I have the deed in front of me.
Here is how it reads:
.....and run thenc S 89°51' 14" W 592.40 feet along the southerly line of the said forty acre tract to a RR spike set in the centerline of a graveled road; said spike being the POINT OF BEGINNING, crossing the graveled road and continuing along the southerly line of the SE 1/ 4 of the NE 1/ 4, run thence S 89"51'14" W 260.50 feet to a point in the center of Kirkham Branch, leaving the forty acre line run thence N 14°35'40" W 561.45 feet generally with the said branch to a point also in the center of the branch, leaving Kirkham Branch run thence N 56°43' 16"E 261.55 feet to a RR spike set in the center of a graveled road, thence following the said graveled road centerline the following courses; run thence S 16°23'19"E 76.01 feet to a point.....
This is what I'm working with.
The op was just from memory, and what client told me.
I'm sorry for the misleading opening post.
Above is my actual problem.
Nate
to a point also in the center of the branch
Natester - please post a pic of that "point" when you find it. I've always wondered what they looked like.
@nate-the-surveyor Boundary is center of branch and ambulatory. Given a tie bearing and distance to close the description and compute an acreage without measuring every twist and turn of the branch. Same sort of purpose as a meander line. Goes to the center and leaves from the center. No clear exclusionary language keeping the water for the grantor; nor limiting conveyance to uplands. The scrivener is merely telling us the branch is not necessarily straight between the tie line points.
please post a pic of that "point" when you find it. I've always wondered what they looked like.
Here's one of them...
🙂 Go figure!
Thanks everyone for your comments.
Nate
From, "Writing Legal Descriptions" Wattles, 1976
Page n137
If the deed specifically states, “to a point; thence northeasterly 12-% rods to a point; thence southerly. ..... (etc.)” with no tie to the creek or stream or river, then title does not carry to or into the creek, stream or river.® If, on the other hand, a call ties to the “bank of the creek, thence up the creek” with its meanders, fixes the boundary of the land at the margin of the creek, not at the middle thereof.”° Or, in the instance of land described as “beginning at a
Too tired to look this up, but if Wattles really said a call to the bank doesn't go to the center he is wrong about 85% of the time. Most states have well established case law to avoid creating ownerless strips of land (in this case the center of the creek). Many have statutes too.