"..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.
@fairbanksls I am not interested in being friendly, but I would pretend and try to talk to the adjoiner to help figure this out.
Just to be neighborly I’d talk to the adjoining property owner.
I've talked. The neighbor knows nothing about the brook, and was even unaware that his backyard fence is over into the town property. He'd probably be willing to agree to anything, to be able to keep the fenced in land. But chances are, no one will do anything
@aliquot Bingo. It is our job to recover and evaluate evidence. We continue looking for evidence until we have met the laws, rules, and standard of care.
What have the owners done since parcel creation? Do riparian rights come into play? Did they list acreage that points to one or the other wall?
Bill makes a good point about deeds being construed against the grantor, but that isn't the case in all jurisdictions. The deed may (and probably should) be construed against the preparer of the description. That may become important if you have to take off your survey hat and become the mediator. It helps define the range of possible outcomes...
Thanks for the lesson.
My post was to see if anyone was seeing something in that description that I wasn't, not necessarily how to survey
@jph My post was a reply to Aliquot where I restated and expanded on his post. Nothing I wrote says 'JPH this is how you survey '.