There seems to be a Land Surveyor doctrine in some parts of this State which goes like this, "In the event of an overlap in descriptions the Land Surveyor may determine which is the senior parcel and survey the boundary accordingly. However, in the event of a gap the Land Surveyor has no authority to determine whether or not the gap actually exists as a legal parcel. The only available course of action is to either 1) get a quitclaim deed from the original grantor for the gap, 2) get the Title Company to reform the Deeds or 3) file a lawsuit and let the court decide." As far as I can tell this is not an actual legal doctrine but is a Land Surveyor practice doctrine which is informally enforced by other Land Surveyor experts, Title Companies (subrogation?) and Law Firms. Usually the cost of defense is so incredibly high that the gap offending Land Surveyor surrenders and pays some amount to settle the matter.
I don't understand the logic of why it is acceptable to determine the boundary in the case of an overlap. If we can't deprive the original grantor of his day in court in the event of a gap why do we think we have the right to deprive the junior parcel owner's day in court in the case of an overlap. It is not inconceivable that the junior parcel could win the overlap due to a number of reasons. One thing is certain is I have not yet found a cookbook formula that works all of the time. Skelton, for example, provides a contrary case for all of his sections in his book that I have read (about half). In other words, Skelton says you resolve this problem this way except in the case of Unreasonable Neighbor vs Unmovable Neighbor it was resolved the opposite way.
I ASSUME that you MUST be talking about two PHYSICALLY MONUEMNTED (and verified) lines, NOT just some mathemagical pipe-dream based on on "deeds."
Loyal
> I ASSUME that you MUST be talking about two PHYSICALLY MONUEMNTED (and verified) lines, NOT just some mathemagical pipe-dream based on on "deeds."
>
Even in the case of "two physically monumented lines," the issue is resolvable by a surveyor applying land boundary location principles. They're called closing corners in the PLSS. There are many fundamental principles that surveyors are expected to apply to conflicting evidence that will resolve the location of the boundary. Too many have been taught that, for some reason, surveyors can apply some principles and not others. The law really makes no distinction and expects the surveyor to resolve the conflicting evidence and to determine the boundary location. That's why we're surveyors.
JBS
generally we are talking about two "of" type Deeds that don't add up to the total measured lot width (versus the record lot width) which is a latent gap, typically in urban areas. Occasionally there is a patent gap (e.g. the grantor had a 140 foot wide lot and deeded the east 70 feet and the west 60 feet); it seems that patent gaps are more likely to actually exist and may have been created for a specific but unnamed reason.
As you know, it has been found in the case of monumented gaps in the public domain; the public still owns the gap. I used to think along the lines of there is only one Township line, pick the right one but apparently there is an actual gap in that case still in the public domain.
Wattles seems to have the best advice in the case of a latent gap which is "be careful."
"Even in the case of "two physically monumented lines," the issue is resolvable by a surveyor applying land boundary location principles. They're called closing corners in the PLSS."
Agreed...in general principal anyway!
HOWEVER, sometimes a gap (gore) REALLY IS a hiatus, that is NOT owned by either of the two parties.
AND...Despite the INTENTIONS of the grantor (I'm thinking GLO here), SOMETIMES the SAME piece of land is granted (Patented) to two (or more) DIFFERENT grantees. It's not as rare as one one think.
There is no one size fits all rule, NOR is it something that the Surveyor can always "fix," even by agreement between the TWO parties (somethimes there are Imerial Entangements or other issues in play).
"Closing Corners" are a powerful TOOL, but not one to be used lightly, or without proper authority.
Loyal
I like it...
"Imperial Entanglements."
That is a good one.
If I may paraphrase: "Sometimes there really is a gap, despite intentions." That's good, and TRUE (some will disagree.)
It's like, just because you're paranoid, that doesn't mean there's not someone out to get you.
Don
Gaps and overlaps are not caused by record measurements!
They are caused by surveyors who don't know any better.
I've been waiting for Brother Keith to weigh in on this one:-)
Stand back!
Don
There are gaps and overlaps that were caused by GLO surveyors who claimed to be surveying the same line, but in fact surveyed two distinct and separate lines. That scenario is not similar to the present day multiple monuments set at record deed distance thus creating a bogus gap.
Dave...
Can you explain to me HOW a surveyor's opinion imparts marketable title?
Let's forget the survey and the surveyor and look at the situation.
1 parent parcel(200' x 100'), no question as to the location of this parcel, nor it's ownership
2 deeds seperated in time to 2 different owners
The first is for the east 100'.
The second is for the west 100`.
Further the parent parcel is actually 2' larger.
How is the owner of the west going to convey title to the extra 2'?
They may claim the 2' all they want but without proper action they do not have marketable title.
Dave...
That one is easy. The INTENT of the second conveyance was to deed what was left. The second (junior) deed gets what is left over INCLUDING the excess. This could be overcome by showing the the original grantor intended to keep some of the land by a reservation in the deed or other continued use (they should be paying taxes on their remaining parcel). If the grantor after the second conveyance just disappeared from the scene the intent is shown that there was no intent to keep any property.
Dave...
That was the way I was looking at this too. The second party would get the remainder of the parcel, and only a survey on the ground would determine exactly what that would be.
WELL LRDAY...
YOU EXPRESS WHAT MANY UNDERSTAND AS THE RULE. BUT, APPARENTLY THERE HAS BEEN SOME LEGAL ACTIVITY RECENTLY WHERE THE SURVEYOR COMING TO A SIMILAR UNDERSTANDING AS YOU, STAKED A WALL ON THE 2' EXCESS. The adjoiner was miffed that the neighbor took the extra 2'. Legal action ensued and the costs ran into the hundreds of thousands and the surveyor came up on the short end of the stick for going outside of the 4 corners of the deed...
WOW
I have not seen such uppercase shouting since TEDD left here a while ago.
If it is such a trend setting precedent of a case, please post a link to it so we can read it. If it is from the counties of San Francisco, Marin, Alameda, Contra Costa, etc. please do not post it as it does not affect anyone out here in the real world.
I'm always interested in learning more about gaps and laps but I have to say that I have never seen a gap on a map that existed on the ground when I was sent out to investigate it. But I have only been in licensed practice for 30+ years.
Now laps are a different matter, and as a surveyor, they have provided some work.
WELL LRDAY...
I'd have to see the citation on that one, Dane. I've never seen a case where the surveyor was taken to task for applying a rule of law designed to determine boundary locations. I've seen plenty of them where surveyors were chastised for NOT applying the appropriate rule of law.
JBS
When the surveyor is trying to put the description on the ground, there will inevitably be gaps and/or overlaps. The controlling evidence denying the existence of any gap or overlap is physical, also known as 'unchallenged occupation and control'.
Also, title companies do not have authority to 'reform deeds'. The responsibility for the accuracy of the record description rests with the owner selling the property who is perpetrating a fraudulent land sale in violation of the statute of frauds when the record description is inaccurate. Therefore, the surveyor who has the correct information, provides that info to the seller along with the supporting documentation that the owner, (or the surveyor as the owner's agent), places in the record in such a manner that the chain of title is preserved. If the surveyor does not so inform his client, the surveyor may be found complicit in facilitating a fraudulent land transaction, thereby subjecting himself to actual and punitive damages.
The record description is not a controlling element when locating the boundaries of a parcel of land here in the US, it merely tells the surveyor where to start looking for the established physical evidence that marks the legal boundary.
Richard Schaut
Use bounding descriptions...........no gaps, gores, strips, etc....
how about the following....
real world situation:
I just surveyed a parcel described as: commencing at the southwest corner of section 20, thence east along the section line, 2,000 ft to the point of beginning, thence north 2,500 feet, thence east 330 feet, thence south 2,500 feet to said section line, thence west along said section line to the point of beginning.
The original owner obtained a patent for the south half of section 20. Over the years he then proceeded to sell off the entire south half of the section using the same manner of description for a total of 4 parcels out of the original half section.
Of course, the east-west centerline of the section turns out is not located at 2,500 feet, but rather is at 2,550 ft. The partioning descriptions do not include a parcel of land, 50 feet wide by 2,000 feet wide.
Its a significant parcel. The assessor has never recognized it, primarily because no one has ever performed a survey to show the dimensions of the section.
No proof of intent either way. Big enough piece that the owner may have intended to keep it as it is useable, however it is also very likely that it was just poor description writing. Original owners long dead and heirs have not found to date.
Looks like a gap, smells like a gap, and I the surveyor cannot positively make a determination of intent (which is what only a judge can rule on according to CA code of civil procedure), or the original owner's errors can quitclaim to.
Sure would be tempting to say the gap really doesn't exist, but it would seem that would be exceeding my legal authority.
