"..being all of that part of my homestead lying south of a wall on the bank of a brook running through the south-westerly corner of my garden."
1877 deed description. There are walls on both sides of the brook. Which wall?
Prior to that line there are just bounding calls to abutters.
Assuming the walls are of similar pedigree, and one is not more newly constructed than 1877, I would go with the wall on the south side of the brook, if there are no other terms in that deed or the abutting deed to indicate otherwise.
There is technology available to date when the stones buried in the soil under the walls last saw sunlight - optically stimulated luminescence.
For further information: http://www.stonestructures.org/html/upton-chamber.html
Thanks for the reply, Peter. The walls are the same vintage, whether original from 1877 or not. I'm going to presume they are.
That being said, what rationale are you using to determine that the southerly wall is the one intended? That keeps the brook ownership totally with the grantor.
I'm thinking that if there were two walls, and the grantor did not specify which one, then it would be the first one physically encountered when approaching the brook from the south, as the deed calls for a parcel lying "south of the wall". Other dimensions or phrases in the description, or other deeds, could of course weigh more heavily than this interpretation. I consider it weak, but better than nothing. I would think if the grantor intended the northerly wall, then he would have been more specific as it would be the second wall encountered when looking north from the granted land.
That reasoning has appeal, but what about the principle that ambiguity is interpreted against the grantor?
What do the current owners want to claim?
I will probably take some heat for this statement but why are you trying to answer this patent ambiguity and assume the liability?
Show both and help the parties perfect a BLA
It may come to that. There are a few other issues of encroachment onto our client's land (the town).
ambiguity is interpreted against the grantor?
That was my initial thought
@jph "ambiguity is interpreted against the grantor"
I don't think that is our call to make, that is for the court
Well, I hope it doesn't go to court, and that the adjoining landowner and the town can come to an agreement about it
What does the deed say for the tract on the north side of brook?
M-B description in rods from the 1800's, excepting that parcel sold to the abutter (described above). No mention of the brook
Just to be neighborly I’d talk to the adjoining property owner.
@james-vianna because presumably he was hired to show his client where the boundaries of their property are, not to map the walls that are already visible.
There are of course rare instances where the boundary can not be located, but there is a lot of work to be done before you get to that point, and even then, just throwing up your hands and showing a couple of possibilities won't earn you any repeat costumers.
