Soliciting your opinion on the attached legal description.?ÿ
Do you hold the bearing and distances, or do you field locate the "base" and hold that?
It should be noted that I found rebar and cap at about half of the angle points of the described boundary.
This is my answer:
We show the covenant as understood by us to be described. However, there may be some ambiguity with the location if one was to argue that the calls to, ??the base of the hill,? and, ??the base of an existing hill? represents a call to and along a natural monument and that the physical location of the base (toe?) as seen in the eyes of a surveyor or engineer supersedes the called out and described location in the legal description. This appears to be the approach of (another surveyor).
I find this approach to be problematic in that the legal description of Parcel 1 the covenant area??s north boundary is specifically described as, ????the base of the hill as described in Parcel 2 below??? This appears to define the base of the hill not by future analysis of contours and slopes, but by the courses laid out in the description of Parcel 2. That said, I am open to discussion on the location with your counsel or with another surveyor, and I will reach out to other professionals to gain their opinions.
Your argument sounds good to me. Base of hill is very ambiguous unless there is some natural line evident, which there usually is not.?ÿ Someone has defined base of hill, so using their definition sounds reasonable.
Hold the bearings and distances that go along the base of the hill.?ÿ The base of the hill more than likely does not follow a contour line.?ÿ Things like this were bound to happen when marijuana was legalized.
Run with it.?ÿ Using such generalized descriptions made sense to someone many decades ago.?ÿ The best attempt at defining the base of the hill, as already done, makes the most sense in your case.
My initial though is the the topographic calls were descriptive of the general location. Reading further, given the purpose of the parcel description in the first place (to protect a view), I can definitely see an argument that if the intent is to protect the view over time then topographic calls better express the intent of the grantors.?ÿ
Was it Wattles or Curt Brown that wrote "of course, the contrary can always be shown"?ÿ?ÿ
Reading further, given the purpose of the parcel description in the first place (to protect a view
How many skipped reading that?
Regardless of where the line is drawn, the owners of the benefitted property will ignore it to achieve their purpose.
I would run with the bearing and distance calls, so long as they reasonably follow the base of the hill in reality. If they clearly ran part way up the hill, or ran hundreds of feet away from the area you would interpret as the base of the hill, then I would be asking "why?". Did the hill get excavated? Was fill (improbably) added to the hill? Did somebody screw up the bearing - distance calls?
The natural monument holds, but....when boundaries are hard to define the first bona fied?ÿattempt to fix them will hold. In other words, if the metes are a reasonable?ÿ attempt to delineate the bounds than you should hold them.?ÿ
As long as the bearings and distances can reasonably be interpreted as the base of the hill they should be honored. The only way to ignore them and substitute something different would be if those calls didn't represent a "base of the hill" interpretation. For someone to think their interpretation of the toe is superior and should be held instead is pretty self absorbed.
I don??t have a clue as to the value of the property described or any advice, but if the description(s)/boundaries are disputed, it will be a great legal case to follow. ?????ÿ
Was it Wattles or Curt Brown that wrote "of course, the contrary can always be shown"?ÿ?ÿ
Curt Brown dedicated BC&LP, 2nd Edition, as follows:
If the described bearings and distances reasonably follow the base of the hill then it seems to me that holding them would be in compliance with the description. Especially so if 10 different surveyors could locate the base of the hill in 10 different locations.
Generally specific language holds over general language.
I don??t have a clue as to the value of the property described or any advice, but if the description(s)/boundaries are disputed, it will be a great legal case to follow. ?????ÿ
the value is such that the difference is more of an inconvenience than a lawsuit.
