Ok, we've run across an interesting problem here and I thought I'd get a little input.
We're got this section we're working on. Our deed calls for the all of the south half of the southwest quarter west of the river. There is a river running through the section and it runs southeast across our west line. There is about 4 acres or so in the southeast quarter that is west of the river.
Now, here is where it get interesting. The GLO didn't divide this section into aliquot parts. It was divided into lots, and suprise suprise, the river is a division between lots. The property was deeded several times by lots and then suddenly, someone decided to bastardize the lot system and start using aliquot parts. Our previous deeds in the chain of title that used lot numbers included that portion of the southeast quarter in our property, but once once it went to aliquot parts, that property would have to be excluded.
So, assuming that the missing property wasn't deeded to a separate party, who would you think that property belongs to? Us, or the heirs of the previous owners that bastardized the lot system?
Are you certain that it was the intent of the person who wrote the "bastardized" description to retain ownership of the parcel you're fretting over?
If it was, there should be a separate chain of title for the retained property and there should also be evidence in the assessor's office of a separate parcel which they've been receiving tax payments for.
If not, then your simply faced with someone's "new way" of describing the "same old" parcel. If their intent was to convey the same parcel, then there's your answer.
What do you want to bet that the "new way" description was prepared by a professional (either a surveyor, a title person, or an attorney) hired to "assist" the landowners who made the sale. A layman would have simply copied their earlier deed and description.
JBS
> Are you certain that it was the intent of the person who wrote the "bastardized" description to retain ownership of the parcel you're fretting over?
>
No, I'm not certain. However, the tax map has it included in ours and I can find no deed conveying the property.
> If it was, there should be a separate chain of title for the retained property and there should also be evidence in the assessor's office of a separate parcel which they've been receiving tax payments for.
>
> If not, then your simply faced with someone's "new way" of describing the "same old" parcel. If their intent was to convey the same parcel, then there's your answer.
>
> What do you want to bet that the "new way" description was prepared by a professional (either a surveyor, a title person, or an attorney) hired to "assist" the landowners who made the sale. A layman would have simply copied their earlier deed and description.
>
> JBS
I don't know who prepared the decription. If I had to lay money down, I'd say a paralegal did that couldn't comprehend land being divided any way other than aliquot parts.
> I don't know who prepared the description. If I had to lay money down, I'd say a paralegal did that couldn't comprehend land being divided any way other than aliquot parts.
That's the point, Tommy. Just because some well meaning, inexperienced, or experienced hack chose to "re-describe" the parcel, doesn't interfere with the landowner's intent to sell what they owned. There is no evidence of an intent sell part of their property, no evidence of an intent to retain ownership of part, and no evidence that they've ever paid taxes on any retained part. There is evidence, however, that the whole parcel was re-described in the title chain, that the assessor interpreted the new description as including the entire parcel, and that the grantor has never conveyed anything contrary.
Now, what evidence do you have that the grantee or their successors have acted as if they didn't own the whole parcel? Have they severed access to the "retained" property? Have they stopped or refused to pay taxes on the "retained" property?
I completely agree that the description should never have been changed from its original lot designations. However, just because someone changes the description without any evidence of a contrary intent to sell what they owned, then it got sold. Does that mean the description should be changed back? Possibly so. I'd suggest when they convey the property next time, they include both descriptions connected with a f.n.a. (formerly known as) clause.
There can't be two parcels without an intent to create two parcels; and, there can't be a boundary if no one ever intended it to be created.
JBS
The deed is the ONLY expression of intent mentioned. Whatever the grantor had title to in the description at hand is in fact what they conveyed. It doesn't matter if that's not what they really wanted to do. It doesn't matter who actually wrote the thing. The fact that previous descriptions are different is irrelevant, without more.
Hopefully, the client has some record of possession of the questionable area. File a quiet title action. You could approach the heirs and try for a quit claim, but people don't like to give things up, even if they didn't know they had them.
Just out of curiosity, it would be interesting to see the BLM (GLO) plat and the patent deed, my local county has many similar areas where the lots, or as they are called here fractions, extended over the quarter section lines, if they had been drawn, but are not there on the plat.
It depends!
Does the Government plat show the lot crossing the quarter section line? They should have set the quarter corner and the field notes should have indicated where it was relative to the river at the time of the Government survey. Riparian rights would then move with the river.
On the other hand, it is possible the little piece cutoff by the river was given a Lot number. If so, this is no different than someone is town deeding all of their lots but one.
> It depends!
>
> Does the Government plat show the lot crossing the quarter section line? They should have set the quarter corner and the field notes should have indicated where it was relative to the river at the time of the Government survey. Riparian rights would then move with the river.
>
> On the other hand, it is possible the little piece cutoff by the river was given a Lot number. If so, this is no different than someone is town deeding all of their lots but one.
No, there are no quarter corners, at least not set by the GLO.
Also, that little piece was not a separate lot.
This is a survey for the feds. We're just going to show what we found and let them figure it out.
If the SW 1/4 was lotted, there never was and still is no aliquot S 1/2 of the SW 1/4. I agree that the current description is likely erroneous and should still be described using the Lot designations.
epls?
Can there be a north 1/2?
Dane
I don't know. I'd have to see the GLO plat. But conceivably, yes there could be as the GLO tried to maximize the number of aliquot divisions.
As an example, in a fractional section where a lake bounds the section somewhere west of the N and S 1/4 corners, there is still considered to be a NE 1/4 and a SE 1/4 section which are each nominal aliquot divisions, right? By conventional, non-PLSS thinking, since the section can't be divided into 4 equal nominal portions, how can they be 1/4s? But since we are dealing with the PLSS and standard sized nominal aliquots, if the division could be and was protracted on the GLO plat, it can exist by it's normal designation even if the other complimentary portions do not, right?
But if the land south of the N 1/2 of the SW 1/4 was lotted, then the S 1/2 of the SW 1/4 has never existed, and short of a replatting, cannot exist.
You've completed the CFedS training. What did you learn from that with regard to answering this question?
Dane
Yes, I agree where there is a platted aliquot part it is proper to refer to that part as 1/2 or 1/4. Where there are lots, these devisions are not aliquot and therefore it would be improper to speak of the north 1/2 of the nw 1/4 in a typical lotted section since lots are not aliqout parts and a typical lotted 6 will have lots 3 and 4 along the north boundary. This assumes federal rules are applicable. After patent an owner of the entire NW 1/4 could sell the N 1/2 of the NW 1/4, this could be confusing as there is no north half on the original plat, only lots.
N 1/2 of NW 1/4 of Lotted 1/4 - Be Careful, Dane
As a CA surveyor, you need to be careful with that generalization, Dane.
At least under CA law, when calling out 1/2 of an aliquot part (such as a 1/4) that was fractional or otherwise lotted is a call for 1/2 of the area and not a call along the lines of the aliquot division of the 1/4 as protracted by the GLO.
See Wood v. Mandrilla 167 Cal 607 (1914). Whether or not the justices of the 1914 CA Supreme Court understood the goals of the GLO and intent of the protracted division of the Section, and whether their ruling was a good one in light of that is certainly open for debate. But to my knowledge, no case has yet overturned that rule.
If one owned only lots 3 & 4 of Section 6 in your example and then sold it as the N 1/2 of the NW 1/4 of Section 6, I believe, even in CA, the most credible and defensible opinion of intent would be that the grantor intended to fully divest himself of Lots 3 & 4 by the conveyance, even though it would appear to be contrary to Wood. But if the grantor owned the entire NW 1/4, and if his intent were to sell off the aliquot SE 1/4 and Lot 3, he had best not describe that as the E 1/2 of the NW 1/4 of Section 6. By current CA interpretation (per Wood), that would be a description for 1/2 of the actual area.
Or in a case more like Wood (Section 30 - lots only on W side of Section, grantor owns entire SW 1/4), if one intends to sell the aliquot properly referred to as the E 1/2 of the SW 1/4 (as described by Wood in sale to Mandrilla), the grantor had better describe it as the SW 1/4 EXCEPT for the Govt Lots, or if describing the conveyed piece as the E 1/2 of the SW 1/4, the grantor/scrivener had best clarify the intent by qualifying "as said division is shown on the official township plat". In most jurisdictions, that qualifier is probably not necessary (but perhaps still adviseable), but in CA it is required if the land has passed out of Federal ownership and the intent is to convey the aliquot per the plat. That may also include acquired and subsequently resold federal land, although I don't think that has been specifically tested in the CA courts.
