Deed call for cistern and resultant ambiguities.

Here’s an interesting metes and bounds deed construction problem for a 1 acre +/- tract out in the scrub brush east of town.

This description is from a 1971 deed. I added annotations A-F to the calls to correlate to the 1982 survey sketch farther below (I put this info together for an email to a lawyer a while back, which is the reason for these training wheels). This 1 acre tract was cut out of a larger 20 acre tract which abutted the senior “Lands of Harry Pioche” to the west.

In 1982 a surveyor was hired by the owner of the 1 acre tract, “Smith”, to survey it. Some key background elements are:
- According to the surveyor’s narrative the original grantor of this 1 acre tract was dead in 1982.
- The Pioche tract abutting to the west is also surveyed elsewhere on this map. Pioche’s lands are simply described and easily retractable.
- The state laws for construing deeds are at the bottom of this post.

Here is the 1982 map of his survey:
(WARNING – The more fragile and sensitive surveyor types in and around the Travis County area of Texas should proceed with caution. The following image contains a graphic depiction of a non-stick figure North Arrow that may cause disorientation, confusion, stupor or death. Do not view this image if you are pregnant or planning to become pregnant, lactating, or operating power machinery)

(on the original survey the east side of the cistern scales 20' from the east line of the 1 acre tract)

... and here is a portion of his narrative where he address what he held and the resultant large ambiguities in lines D and F and minor ones in D and F. He states “Smith” agreed with his construction of the deed in 1982:

Roll the clock forward to 2005 and “Smith” and his wife now disagree with the survey. Since 1982 they have bought the parent 19 acres that surrounds the property to the south, east and north and have sold the 1 acre tract using the 1971 description.

Despite the fact that “Smith” owns 19 acres, the house on the 19 acres is just 200’ south of the south line of the 1 acre tract. “Smith’s” wife doesn’t like the owners of the 1 acre tract and says they never agreed with the 1982 survey as stated on the narrative. “Smith” and wife approach a friend of mine to survey the 1 acre tract as they believe it should be surveyed – holding the distance of line “C” from the POB at deed record of 146 (ignoring the “more or less” qualifier and the call for the 1 ft. south of the cistern). Basically, they want the south line to move 16 feet north (the neighbors to the north don’t agree, they like the 1982 survey and have built according to it). 2005 Surveyor inspects the property and tells them he agrees with 1982 Surveyor. 2005 Surveyor investigated around the cistern and confirmed to his satisfaction that an earlier cistern had never existed north of the current one. It’s an old structure and he’s confident that it is the monument called for in the 1971 deed. The Cistern is a rectangular concrete structure that measures 6 feet north/south and 10 feet east/west. 2005 surveyor recommends that they consult with an attorney. Everyone the "Smiths" speak to recommends they speak to an attorney.

Roll the clock forward to 2012. “Smith” has passed away, but Widow “Smith” renews her quest to convince someone, anyone, that the line needs to move north 16 feet. The neighbors to the north still don’t want to cooperate. It turns out that in 2005 Widow “Smith” spoke to a number of land use attorneys. No action was taken, so she either was told that she’d lose in court or she didn’t like the amount of money they quoted to file a law suit.

So she continues her quest to find a surveyor to agree with her interpretation of the deed.

What do y’all think about how 1982 Surveyor monumented this deed?
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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.