Deeds Lacking Precision

Thence running northerly with the brow of the hill to............

I forget who posted about this term many years ago.  But, it struck me that first you had to find the nose and eyes of the hill first.  Can someone locate this to the nearest 0.01feet on a human?

Prove me wrong.

Posted by: @williwaw

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Prove me wrong.

Of your 3,632 posts, can you point me to the one that covers this subject?

Posted by: @holy-cow

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Thence running northerly with the brow of the hill to............

I forget who posted about this term many years ago.  But, it struck me that first you had to find the nose and eyes of the hill first.  Can someone locate this to the nearest 0.01feet on a human?

Thanks for the example of a vague call. Just the kind of thing a surveyor must evaluate.

Posted by: @holy-cow

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Thence running northerly with the brow of the hill to............

Such a term might have more meaning in Oregon than it does in Kansas. (Kansas Surveyor: "Hill? What's that?). An often equally imprecise but far more ubiquitous term is "thence to the high water mark..." 

Deeds lacking precision are common. Is there a way to show this condition on a survey plat? Would the State Board approve it? Where is the guidance as what to do?

Consider the deed that doesn't close by a small amount compared to the property size. A lot of surveyors might be tempted to apply their favorite traverse adjustment tool. To do so would be inserting precision to a deed that wasn't there. Nobody has authority to change a deed. But consideration of the circumstances at the time the deed was composed can be used to explain the intent of the deed.

I've said that using a traverse adjustment would be wrong to close the deed. But if you ran the calls using the trig functions in the back of field books, the deed might close. You could then use this to determine the coordinates of the boundary because it merely explains the intent of the deed language.  

In at least 3 counties i work in the County Assessor maps each and every deed that is recorded and if it a new metes and bounds deed that doesn't meet the closure ratio the deed is deemed invalid and rejected until it's fixed.  The key is 'new'.  We have thousands of old metes and bounds that wont meet that criteria but they allow them to be regurgitated over and over.

Posted by: @wa-id-surveyor

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In at least 3 counties i work in the County Assessor maps each and every deed that is recorded and if it a new metes and bounds deed that doesn't meet the closure ratio the deed is deemed invalid and rejected until it's fixed.  The key is 'new'.  We have thousands of old metes and bounds that wont meet that criteria but they allow them to be regurgitated over and over.

I'm confused. Does "Assessor maps each and every deed that is recorded" show that the deed is already recorded in the official property records.?

A quick check of Washington Code with AI returned the following that seems common with many states:

Prompt: Does the code specify who has the authority to rule a deed valid or invalid?

AI:

• No Legal Authority to Rule on Validity: County auditors and recording officers are purely administrative clerks. [1]
• Formatting Gatekeepers Only: Under https://app.leg.wa.gov/rcw/default.aspx?cite%3D64.04.020&ved=2ahUKEwiC2rKR3a2WAxX95MkDHZ6rPHQQy_kOegYIAAgLEAU&opi=89978449&cd&psig=AOvVaw0NKdtkwvQDhmdfxFFBAXsc&ust=178726447276200 0" target="_blank" rel="noopener" data-ved="2ahUKEwiC2rKR3a2WAxX95MkDHZ6rPHQQy_kOegYIAAgLEAU" data-hveid="CAAICxAF" aria-label="RCW 65.04.045. Link preview. Site: Washington .gov. Title: RCW 64.04.020: - WA.gov. URL: https://app.leg.wa.gov/rcw/default.aspx?cite=64.04.020 ." data-copy-service-computed-style="font-family: Google Sans, Arial, sans-serif; font-size: 16px; font-weight: 500; margin: 0px; text-decoration: underline 1px rgb(153, 195, 255); border-bottom: 0px rgb(153, 195, 255);">RCW 65.04.045 and RCW 64.04.020, an auditor can refuse to record a deed only if it fails standard layout metrics (such as margins, legibility, missing titles, or an absent notary stamp). [1, 3]
• Recording Does Not Equal Validity: If a deed meets formatting rules, the auditor must record it. This recording does not mean the deed is legally binding or free of defects. [1]

AI can be wrong. Is there a newer revision?

Does this seem to be vague?  Government (River) Lots numbered 3, 4, 6 and 8 in Section 22, Township (a correctly identified S-T-R)

Forgive the brevity.  The situation the surveyor faces is that the ownership of the lots, as described in deeds, has been the only description used on every deed.  At some point in the past, Lot #4 ceased to exist.  The river slowly moved across the section line, erasing said line.  There is a lienholder.  What is the correct legal procedure to void that portion of the lien?  What role does the surveyor fulfill?

The deed provided to the surveyor reads, "Lot 8, Block 3, Nurple Addition to the Town of Westsylvania, Hermrick County, West Virginia"  Everything is perfect except that said block has no Lot 8.  What really happened is that the guy who owned all of Nurple Addition sold all six of the lots shown on the plat rather quickly.  So, he laid off a tract of the same dimensions as a platted lot immediately to the west of the west line of Lot 6 and called it Lot 7.  He kept doing this thru his idea of Lot 12.  Everyone was content until that damned surveyor came along and upset the applecart.

If erosion took all of Lot 4 it may continue as a concept but not as a fact. Any future accretion would go to the track behind Lot 4 and not be subject to the lienholder. I don't know of any 'death' procedure for property. I suppose the State would eventually take the title for unpaid taxes. State statutes might apply to emerged islands that could recognize prior title, but not in Arkansas or any other state to my knowledge. Boundaries between landowners of accreted land is most surely vague.  

Lot 8, Block 3, Nurple Addition to the Town of Westsylvania

That's a beauty!

It's going to take several legal principles to make sense of this one. I'll try to round up what I think is needed tomorrow.

The client's deed says it is the southeast quarter of a correctly identified section.  Jack Hanks received the patent signed by President Andrew Johnson in 1867.  The same described tract has been conveyed fifteen times since then.  Piece of cake, right?

Not so fast.  Someone looking in the Register of Deeds records for something totally unrelated happened to read the ancient deed on the facing page of the one they were researching.  They got curious about what they had read as it is a deed to a church of a unique name in 1868 and signed by Jack Hanks.  Several courthouse employees were approached to consider this deed.  Idle curiousity leads to a dedicated search for the church being mentioned in any other record.  The deed specifically listed the new owner to be: The Board of Deacons of the (name) church.  The description is for a poorly worded tract being 30 feet east-west by 90 feet north-south lying in the southeast CORNER of the section where Jack Hanks had homesteaded.  The Patent recipient of the southwest quarter of the section lying immedieately to the east was Conradt Ungauer, who just happened to be one of the Deacons listed on the face of the church deed.

The current owner of the Ungauer land was approached.  He laughed.  He was a fifth or sixth generation descendant of Conradt.  Ownership had never left the family.  All records of the descent of the land in that section had passed down via court records.  Included in a dusty box of musty documents was a properly prepared deed dated about 1880 from the church deacons to Conradt Ungauer.  The document was referenced in court records.  It had NEVER been recorded with the County Register of Deeds.  It simply passed down quietly.  A new community had developed several miles from the church land, which, in fact, included a church building prior to 1880.  The building had been moved to that new community.  Other than a small jog in a cattle fence that more or less followed a small watercourse to the south section line, there was nothing to suggest a change in ownership might of exist.

The southeast quarter of the section did not deserve such a short title.

The client's deed says it is the southeast quarter of a correctly identified section.  Jack Hanks received the patent signed by President Andrew Johnson in 1867.  The same described tract has been conveyed fifteen times since then.  Piece of cake, right?

Not so fast.  Someone looking in the Register of Deeds records for something totally unrelated happened to read the ancient deed on the facing page of the one they were researching.  They got curious about what they had read as it is a deed to a church of a unique name in 1868 and signed by Jack Hanks.  Several courthouse employees were approached to consider this deed.  Idle curiousity leads to a dedicated search for the church being mentioned in any other record.  The deed specifically listed the new owner to be: The Board of Deacons of the (name) church.  The description is for a poorly worded tract being 30 feet east-west by 90 feet north-south lying in the southeast CORNER of the section where Jack Hanks had homesteaded.  The Patent recipient of the southwest quarter of the section lying immedieately to the east was Conradt Ungauer, who just happened to be one of the Deacons listed on the face of the church deed.

The current owner of the Ungauer land was approached.  He laughed.  He was a fifth or sixth generation descendant of Conradt.  Ownership had never left the family.  All records of the descent of the land in that section had passed down via court records.  Included in a dusty box of musty documents was a properly prepared deed dated about 1880 from the church deacons to Conradt Ungauer.  The document was referenced in court records.  It had NEVER been recorded with the County Register of Deeds.  It simply passed down quietly.  A new community had developed several miles from the church land, which, in fact, included a church building prior to 1880.  The building had been moved to that new community.  Other than a small jog in a cattle fence that more or less followed a small watercourse to the south section line, there was nothing to suggest a change in ownership might exist.

The southeast quarter of the section did not deserve such a short title.

@pls8xx 

You caught my reference to Westsylvania in the fictitious description.  There was a time when it could have become the fourteenth American colony.  I had ancestors who lived within that region during that era.  No big deal, though. So did Barack Obama.

https://en.wikipedia.org/wiki/Westsylvania

The ones that really can get complicated are the patents that granted lands with an existing RR. As an example the E2SE4 of a section is patented in 1905, the RR was granted the ROW in fee in 1884 with a patent and no defined ROW except for the ROW map. The patent for the E2SE4 declares 80 acres which is a complete fiction. A 200' ROW for 2640' is 12 acres. Then the issue came up through title questions so the Patentee writes "deeds" for the RR 20 some years later. However, those deeds aren't granting anything since the Patentee doesn't own any of the RR. On top of that, the new "grant" doesn't follow the maps for the ROW (as an aside if the grant does extend the ROW width then the landowner does lose that property). I got sent a bunch of the deeds for a RR job by a title company, they make no sense, almost laughable. I sent the title company copies of the old maps I had and tried to explain why the monuments I already set for the ROW were correct and that seemed to satisfy them. But it's a real local issue, those properties often still say the full 1/4 without exception.

@mightymoe 

So how did you arrive at an  opinion for the location of the RR, and why?

We used the maps that predated the landowner patents. They had section corner ties, we find a few RR tie ROW monuments, and the CL of the track, typical RR surveying. Some of the landowner deeds did bring up some issues. One expanded and contracted the grant depending on the season of the year. In the winter it is wider than in the summer. And the expanded ' width is wider than the original maps. That means the RR real ROW gets an extra 100' west of the north-south ROW. We didn't stake it that way. 

Original Post

The deed provided to the surveyor reads, "Lot 8, Block 3, Nurple Addition to the Town of Westsylvania, Hermrick County, West Virginia" Everything is perfect except that said block has no Lot 8. What really happened is that the guy who owned all of Nurple Addition sold all six of the lots shown on the plat rather quickly. So, he laid off a tract of the same dimensions as a platted lot immediately to the west of the west line of Lot 6 and called it Lot 7. He kept doing this thru his idea of Lot 12. Everyone was content until that damned surveyor came along and upset the applecart.

Facts assumed from above

1. The Nurple Addition containing Lots 1-6, Block 3 was done in a lawful manner.

2. All of the Lots 1 - 6 had the same dimensions and orientation.

3. The original owner of Nurple Addition also owned all the land that grantees of his deeds for Lots 7 - 12 took possession by.

4. Relying on the Lot 7 deed, the grantee took peaceful possession of land adjoining Lot 6, the land having the same dimensions and orientation of Lot 6.

5. Relying on the Lot 8 deed, the grantee took peaceful possession of land adjoining Lot 7, the land having the same dimensions and orientation of Lot 7.

6. The above was repeated for Lots 9 -12.

Principles that might aid a surveyor to produce an opinion:

The intent of the grantor is the controlling consideration in construing a deed.

Gregory v. Alexander, 367 S.W.2d 292 (Tenn. Ct. App. 1962).
The court stated:
"The paramount rule of construction to which all others are subservient is that the intention of the grantor is to be decided by consideration of the words he used."
The court further explained that the entire deed must be considered and that technical rules yield to the grantor's intent.

Bennett III v. Investors Title Insurance Co., 370 S.C. 578, 635 S.E.2d 649 (S.C. Ct. App. 2006).
The court wrote:
"One of the first canons of construction of a deed is that the intention of the grantor must be ascertained and effectuated if no settled rule of law is contravened."
Quoting earlier South Carolina precedent, the court also stated:
"The governing principle in the construction of deeds is that the intention of the grantor, if consistent with law, shall govern."

Surrounding Circumstances
Gordon v. Hoy, 211 Va. 539,

In interpreting deed, ordinary rule which governs construction of writings prevails. Rights of parties must be ascertained from the words used. Extent of property rights cannot be determined from any other source. But where language is ambiguous, court in order to ascertain intention of parties looks to language employed in light of surrounding circumstances.

Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959)

The rule is well established that a deed will not be held void for uncertainty of description if by any reasonable construction it can be made available and if the descriptive words themselves furnish a key for identifying the land conveyed, nothing more is required.
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A deed must contain a legal description that identifies a particular parcel of land.

State v. Rosenquist, 59 N.W.2d 767 (N.D. 1952)
The court stated:
"It is sufficient if the description in the deed furnishes a means of identification of the land by which the property conveyed can be located."
The opinion further explains:
"The description is sufficient if ... the court, by pursuing an inquiry based upon the words of reference, is able to identify the particular property to the exclusion of all other property."

ABN AMRO Mortgage Group, Inc. v. Southern Security Federal Credit Union, No. W2011-00693-COA-R3-CV (Tenn. Ct. App. 2011).
The court summarized the rule:
"A description from which a surveyor can locate the land ... is sufficient."
The court further held:
"A court will declare a deed void for uncertainty of description only where ... the description cannot be made applicable to but one definite tract."
It also emphasized that extrinsic evidence may explain a description but may not supply an entirely missing description; the deed itself must furnish the "hinge or hook" for identifying the property.

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Acts of the parties.
An uncertain deed may become certain by the acts of the parties in carrying it into effect.
A court may conclude that uncontested conduct has refined the deed's meaning. The deed has not been changed; rather, the ambiguity has been resolved by the parties' own implementation.

Crestview Cemetery Ass'n v. Dieden, 54 Cal. 2d 744, 356 P.2d 171 (1960).
The court stated:
"The acts of the parties under the contract afford one of the most reliable means of arriving at their intention; and ... the construction thus given to a contract by the parties before any controversy has arisen ... will ... be adopted and enforced by the courts."
The court further explained:
"This rule of practical construction is predicated on the common sense concept that 'actions speak louder than words.' Words are frequently but an imperfect medium to convey thought and intention. When the parties ... perform under it and demonstrate by their conduct that they knew what they were talking about the courts should enforce that intent."
This is perhaps the strongest judicial explanation of the doctrine.

Phelps v. Sledd, 479 S.W.2d 894 (Tenn. 1972).
The court held that where a deed description is uncertain,
"the practical interpretation placed upon the instrument by the parties themselves is entitled to great, if not controlling, weight."

Theros v. Phillips, 256 N.W.2d 852 (Minn. 1977).
The court stated:
"Where a deed is ambiguous, the subsequent conduct of the parties is persuasive evidence of the meaning they themselves attributed to it."

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From the guidance of the above can you form an opinion on whether the deeds are sufficient or void, and if sufficient where the boundaries are?