Twenty years ago a brother and sister divided dad's estate. 90 acres by aliquot descriptions. They didn't have a survey, just hacked a deed or maybe had a title company do it. The assumption was made that the 80 acres was 20 chains east/west and 40 chains north south. There was another 10 acres so to make it even the 80 was spit 35/45 acres and the 10 acres went with the 35. So they want it surveyed and the division line established (plain pasture land up till now - no occupation line for the split).
So the first deed says beginning at the center of Section 10........thence East 742.50 feet; thence south/west/north to beginning.
The second deed says beginning 742.5 feet east of the center of Section 10..........thence East 577.50 feet; thence south/west/north to beginning.
So they divided a perfect 80. OK, I haven't been out there yet but I know it's not a perfect 80 and from some previous work in the area the section is maybe a hundred feet short east/west (likely to be a shortage in acres).
So I'd pose the question, would you hold the 742.50 feet and short the east parcel or proportion the distance to keep it to the fair split as apparently intended?
If you look at the assumed acreage and the dimensions they "figgered", don't you think it's apparent that their intent was an even split?
I think I might bring it up with someone before finalizing it, tho.
agreed:good:
Simultaneous conveyance, so you can proportion? At least there isn't occupation to complicate things.
If you are going to go that way you will have to survey the 10 acres as well to properly compute the appropriate split.
A few issues come to mind...
If the split was pursuant to a will or court order this is a simultaneous creation. The division is accomplished in accordance with the particulars of that document. If this was an agreement between siblings the deeds rule.
As for intent, the law says intent is what they wrote. That may or may not come close to what they meant to write or what we think they meant to write. The boundary 81 fixed in law and not our idea of some subjective 'intent'...
Leon,
Now seems to be the perfect time for a preplanning conference with your clients. This would be the perfect opportunity to prepare them for what you suspect. Going over a possible list of options will prepare them for whatever may come.
> The boundary 81 fixed in law and not our idea of some subjective 'intent'...
Say what? Some weird auto correct going on? Or are you saying something I do not comprehend?
My phone likes to change things into some bizarre language. It seems the code writers like to inject their idea of 'intent' even when it has no foundation... :^)
The Intent Was To Split It Up, They Still Want To Split It
Had the parcels transferred again and again writings might overrule intent, but here you have the original parties at hand.
Paul in PA
Leon, good question!
The boundary has been created via the deeds. OK, great. All involved know WHAT the boundaries are.
The problem is that apparently no one knows WHERE the boundaries are, which isn't surprising, as the boundaries have not yet been established on the ground.
The parties could have went out with a Chinese rag "tpae", or a roll of barbed wire and "surveyed" it themselves, saving a bundle in the process, all of which would be perfectly legal, and is what many (or most) residents of good ole San Pete has done over the past 150 years.
Luckily they hired you. As you know, only the landowners can "establish" the boundary on the ground, however they have requested your help in doing so.
In a situation like this we basically have two choices: 1) Try and divine intent, "stake the deeds" according to our interpretation and tell the landowners "here it is, like it, lump it, or litigate it", and walk away hoping the crappola that could hit the fan doesn't get all over us.
Option #2) Why wouldn't we involve the landowners in solving the apparent ambiguity, fix any problems that may arise, document the solutions, get paid well for doing our job, and sleep very well knowing that the fan will never be pointed in our direction?
I know which path I would choose, most likely the same one you have already chosen 😉
I haven't got the whole story yet. The sis hired me. They got to be in their 80's. She told me the brother went and tried to measure it himself (DIY per county tradition). I suspect that his taped distance between the fences didn't hit 1320 feet or close enough for comfort. Anyway they decided to hire a surveyor. The sis was my Cub Scout Leader way back in the 60's. If there is a problem here I don't think it will be working out the split line, but working out the outer boundary. I'll probably do a boundary line adjustment just to clean up the record. I suspect they will want it 50/50 per the total acreage but I'll do what ever they want along the split line (where they have total control).
Now, as has been mentioned, if these parcels had changed hands and maybe a surveyor had done one of the parcels, fences built and such (like most of the rest of the valley during the last century) it would be a real mess!
> Now, as has been mentioned, if these parcels had changed hands and maybe a surveyor had done one of the parcels, fences built and such (like most of the rest of the valley during the last century) it would be a real mess!
A mess? If all those things had happened, the only problem would be finding where the boundary had been established by the landowners - probably via one of the boundary location doctrines - just another day in (and out of) the office.
I just looked at the patent. H.E. 1892, last name same as now, probably their grand father. The boundary fences are probably from the "first survey by the patent holder". Chances of them lining up with the current "PLSS" corners?? I know there is an original 1/4 stone at the south quarter corner (at the intersection of the fences - how did that happen?) There is two marked quarter corners at the east 1/4 (neither with a pedigree). It's hunting season for the other PLSS corners, I've never searched for them.
:good:
