Thanks for all of the comments. A lot of good points to ponder. This all comes into play because a utility company needs to put facilities in this 10 foot strip. If this pans out as I’ve seen in the past, the title company will state that the strip is owned by the heirs of 1980 grantor Smith and the utility company will need to track them all down to buy an easement from them.
I don’t think that is right. I think Zevon should be negotiating the price of the easement with the utility company. For 30 years the Smiths have not enclosed the 10 foot wide by 852 foot long strip with a fence, or planted a couple rows of corn in it or used it as a bocce ball court or an archery range. They sold all their interest within this section when Carter was president.
However, title companies usually look within the “four corners” of the deed and then close the book on their title determination. It’s the safest way. And once Zevon sees the utility work commencing along his north line he will ask why he wasn’t consulted. The utility company will say “we aren’t affecting your property – title company says your ownership begins 30 feet south of the section line”. And Zevon will say “oh, yes, I see that’s what my deed says”. OR … Zevon will get lawyers, guns and money, file suit, and win. The stakes aren’t all that big in this instance, but what if an oil well was being plunked down in the supposed no-mans-land?
Title Co's cannot determine title to occupied land!!
From a law school text book, the following are two of the three title defects that can only be found and corrected, by a surveyor:
16. If adjoining owners have agreed on boundaries by setting monuments, purchasers relying on the records in ignorance of the placing of any such monuments are bound by them though they certainly were misplaced. And the same is true of many other rights by estoppel in pais, not appearing of record, but binding on purchasers in good faith.
18. Rights of persons in possession of the land or any part of it are protected without recording their title deeds. Persons purchasing in reliance on the records, without careful scrutiny as to actual possession of the land do so at their peril; and often the possession is such as not to be noticed, and yet sufficient to protect the rights of the possessor if proper inquiry would have discovered him.
As I posted above, the surveyor's report is expected to detail these title defects when they exist and the surveyor thereby prevents a fraudulent land transaction. If the surveyor does not report these title defects, the surveyor is liable for damages.
Remember what Curtis Brown, author of 'Boundary Control and Legal Principles", said in his 1979 talk for the Arizona Land Surveyor's Society Legal Seminar?
In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution. Within recent years there have been cases, and one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. The purpose of this paper is to re-examine what a surveyor should do in the event title has been altered by a legal transfer of title by prolonged possession.
Richard Schaut