Dave Karoly, post: 437190, member: 94 wrote: Yes, it is somewhat of a dilemma. I have an unpublished case from the 1980s which deals with the same issue. There the strip is a fairly uniform 100'+ wide strip which the Court ruled was vested in the original subdivider. Fact questions tend to defy "correct" and "incorrect" answers.
The salient facts in this case (under Texas case law) would appear to me to be:
(a) that the gore in question is a tract that most likely cannot be used as a separate thing and
(b) the subdivider did not clearly express any intention to reserve it from subdivision and sale.
The rationale being that the separate ownership of long, narrow strips of land of no separate use is, as a matter of public policy such a bad idea that conveyances should be construed in such a way to eliminate the strips unless there is a clear expression in the conveyance of a reservation or contrary intention.
Dave Karoly, post: 437192, member: 94 wrote: As to question 2: California has not enunciated a specific strips and gores doctrine such as Texas has. California tends to treat boundary more into the fact realm which tends to not be subject to strict rule making.
Likewise Washington has a common grantor doctrine (credit Dane Ince for finding that) which we do not have as a specific rule.
Kent McMillan, post: 437193, member: 3 wrote: The salient facts in this case (under Texas case law) would appear to me to be:
(a) that the gore in question is a tract that most likely cannot be used as a separate thing and
(b) the subdivider did not clearly express any intention to reserve it from subdivision and sale.
Another issue is I assume it doesn't appear on the AP map and the original subdivider probably doesn't it exists.
Dave Karoly, post: 437195, member: 94 wrote: Another issue is I assume it doesn't appear on the AP map and the original subdivider probably doesn't it exists.
California law would seem to be schizophrenic if on the one hand there is a willingness to construe deeds in pretty much any way that someone will claim that they recognize, while on the other an unwillingness to admit some common sense interpretation of the grantor's intention as would dispose of useless strips and gores.
Just curious did the other distances around the area that the BLM surveyed have as large a discrepancy as the location of the South 1/4 Corner? One of the factors they use in making their decisions is what they determine to be the actual length of the chain being used in the field compared to the record.
Some people can't count very well. A typical miscount of one would amount to 66 feet. Hiccuping twice would get you 132 feet. No matter what they wrote, they did not measure twice.
Attached is Cooper v. Guy (unpublished) which has a similar fact scenario. It is not cite-able in the California Courts but it is useful for educational purposes.
The basic law of boundaries is 1. the intentions of the parties is the paramount consideration and 2. valid agreements concerning the boundaries will be enforced. All the rest of the rules and doctrines aim at fulfilling these two rules.
Land Surveyors are 1. literalists (at least in general) and 2. motivated by logic. Boundaries are legal issues and in the case where there is a conflict between a strictly literal interpretation of the words and the conduct of the parties, the conduct of the parties will probably win. Strict logic is not the main driver of legal reasoning; it is attempting to put into effect the intentions of the parties to the agreement although it doesn't seem logical to us. If the parties state in the writing "the north-south centerline of Section __" then proceed to locate their boundaries on a monumented version of this line, although it is later shown to be erroneous, nonetheless the Court will probably uphold what they did versus what the should have done.
Dave Karoly, post: 437240, member: 94 wrote: Attached is Cooper v. Guy (unpublished) which has a similar fact scenario. It is not cite-able in the California Courts but it is useful for educational purposes.
Thanks, that pretty much demonstrates the schizophrenia of California case law in the court's insistence upon certain presumptions applying to mistaken overlaps overcoming a definite description by metes and bounds and unwillingness to apply any presumption to mistaken omissions.
Most of the court's discussion strikes me as tortured at best. I particularly enjoyed this bit:
"It is true that the stake at the northeast corner of the Jones survey had stamped upon its head ??N ?¬?. Jones did not set that stake, it was set by a previous surveyor. Jones did not represent that the stake was actually at the north quarter corner of section 9. In preparing his map, he had to state what actually was stamped on the head of the stake to identify the stake he was referring to even though the information stamped was mistaken."
Kent McMillan, post: 437283, member: 3 wrote: Thanks, that pretty much demonstrates the schizophrenia of California case law in the court's insistence upon certain presumptions applying to mistaken overlaps overcoming a definite description by metes and bounds and unwillingness to apply any presumption to mistaken omissions.
Most of the court's discussion strikes me as tortured at best. I particularly enjoyed this bit:
"It is true that the stake at the northeast corner of the Jones survey had stamped upon its head ??N ?¬?. Jones did not set that stake, it was set by a previous surveyor. Jones did not represent that the stake was actually at the north quarter corner of section 9. In preparing his map, he had to state what actually was stamped on the head of the stake to identify the stake he was referring to even though the information stamped was mistaken."
It's a very weird corner of the surveying world, Evan Page is familiar with that spot too.
I know what you mean about the paragraph you quoted, when I first read it my reaction was a similar WTF?