General Principal - (Loyal)
>
> Agreed...in general principal anyway!
>
I would suspect the principal of a General would be the "President".
Unless you meant "principle" in which case it would be the "precedent" 😉
Tom
Ya caught me!
I have been mixing those two words [improperly] for years...
🙂
Loyal
> They are caused by surveyors who don't know any better.
That dog won't hunt for East Texas. Most of the gaps that I see are caused by the grantor and are intended to be left for some access.
We don't call them gaps or gores as much as we call them "residue tracts."
Loyal
No big deal....I thought it made for a funny joke is all.
For JB and CARL
OKAY CARL,I won't pass along anything having to do with any bay area counties. So do not expect to hear anything about Ernie v the Luthern Church in San Rafael.
JB, in California the courts are insisting that the parites go to mediation FIRST when there is a dispute regarding these types of issues. So in the instance under discussion was settled in mediation.
JB do you happen to know of any cases where the claim of the junior was upheld for a small excess?
Thanks for your help
how about the following....
> real world situation:
>
> 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.
>
Significant to who? The surveyor who "discovered" it. What about the "gaps and overlaps" along the south, west and east lines? I'm sure the section lines don't run "East" or "North" either. If the surveyor want's to get anal about it, there would be strips, gaps, overlaps, and triangles all over the place. Bearings and distances are low on the totem pole as evidence of the boundaries. The boundaries run out on the ground, monumented and occupied are what count.
> 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.
>
Your hat is on backwards. The presumption of law is that the intent was to convey the entire estate to the existing lines. You need to find substantial evidence that will overcome that presumption in order to prove that an intended third parcel was retained. The assessor doesn't have any evidence of it, there's no evidence of it in the title record, is there physical evidence of two fence lines isolating this supposed parcel?
> 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.
>
Every rule of law regarding boundaries is designed for the very purpose of determining the intent of the parties. As a surveyor, you are expected to possess the knowledge, skills, and ability to determine boundaries. Determining boundaries requires that the surveyor determine the intent of the parties.
> Sure would be tempting to say the gap really doesn't exist, but it would seem that would be exceeding my legal authority.
Declaring that a third parcel exists when there is no evidence of any such intent is where the surveyor exceeds his authority, not the other way around. All the surveyor is expected to do is determine the boundary location and then show the record and measured values which perpetuate the evidence of that location.
JBS
For JB and CARL
> JB do you happen to know of any cases where the claim of the junior was upheld for a small excess?
>
Dane, I'm heading to the airport in 10 min so will supply some citations later. In the mean time, check out United Fuel vs. Townsend, a WV case. (This is off the top of my head, so it could be a bit different). There are plenty of others. I'll look later.
JBS
PS Another quick thought... The simple premise of Jr/Sr is that Sr gets all, Jr gets the remnant which is +/- (m/l). It's not equitable if the Jr can always loose in the case of an "overlap," but never win in the case of a "gap." Fundamental principal. You can't have more without less.
Thanks JBS..
That was my thinking, that the junior must be able to gain as well as lose or else the rule would not be fair. Thanks for the cite.
Thanks JBS..
To gain or loose is the position of the junior always takes when buying without a survey. When we write deed descriptions for divisions we don't survey, we control who is junior. Describe a 5 acre tract out of a supposedly 10 acre tract to be sold by using just the description of sold tract, makes the seller junior if a survey reveals the total area was 9 acres instead of 10. Write it describing the whole and excepting the 5 acres intended to be retained makes the buyer junior. Need to think about these things when writing descriptions. I found a 5 foot wide gap once that was intended. The owner sold all his property leaving a 5 foot gap that gave him access to a creek. I revealed that in a survey, the title company involved wrote a new corrected description which included the gap without getting a release from the heirs who still lived in the area but were never informed. Been about 25 years now, someday it might get revealed. Been worried about being called into court someday to testify on that one.
jud
> 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
No, Loyal, if you go to the CLSA forum, you will see that there are those who are adamantly stating that a surveyor could lose one's license and pay hundreds of thousands for showing the temerity to interpret the intent per the record. So even, and perhaps especially for "just some mathemagical pipe-dream based on on 'deeds'."
I'm still trying to figure out just how one goes about performing any boundary survey without interpreting the intent expressed in the record, and am not any closer now than when I first read those assertions.
For JB and CARL
I have been busily researching this topic for a couple of weeks now, and compiling a pretty good amount of info on the subject.
Here's a good one for you, Dane. It's from Idaho, Not CA, but the principle holds:
Allen v Boydstun, 722 P 2d. 497(1986)
I've found a lot of different cases with outcomes varying per the particulars, as one would expect.
I've also found one where the Appellate Court chastises the Trial Judge, who after hearing one surveyor testify that there is no gap because the base title doesn't leave room for the recently invented "gap"parcel, and another surveyor testify that the gap definitely exists, gave credence to the surveyor testifying to the gap, contrary to law and common sense, because the "gap" surveyor was more articulate and had a more polished presentation.
I think you had a question along those lines on the CLSA forum with regard to one of Mr. Woolley's "scary stories".
Dane
don't confuse a Land Surveyor surrendering (through a case settlement) because he can't afford to defend himself with law. I can go broke winning lawsuits. In my experience, look at how any case settled and usually the law and facts are somewhere else.
Suppose I have a subdivision plat, the lot thereon is 100.00'x200.00'. I go out and find the monuments and find out the lot is really 101.56'x200.00'. So where does the Surveyor get marketable title on the extra 1.56'? The clearly expressed written intent is for a 100.00' wide lot so what gives me the right to change that?
The point is I am not changing anything; I am merely reporting the true size of the lot or deed parcel. You will rarely find a record description (whether mapped or written) which is exactly 100% accurate.
The common law clearly states that the physical boundaries of the parcel on the ground, although it does not exactly match the math in the Deed, is the same as the parcel called for in the Deed.
Thanks JBS..
If the intent was to keep the so-called "gap" then it is a new parcel, not a gap.
I found one in a small Northern California town. It involved a front parcel and rear parcel (now rejoined in Title by one entity) and a 15' gap. I think the gap was intentional to make a driveway to the rear parcel. Probably if the current owner is paying the taxes then they could claim the parcel by adverse possession which would be a good use of AP. In that case I can't say the gap just doesn't exist because you can see it without ever leaving the office.
At this point in California the vast majority of parcels are created by map and the few exceptions are described by Surveyors not land owners or attorneys as in the good old days who knew just enough to be dangerous.
Evan...
This is good from your Idaho case:
"The W.B. Boydstun deed is, in isolation, plain on its face." The key is Deeds don't occur in a vacuum. They aren't sacred writ that fall out of the sky one day.
***change of subject***
My reaction to the cute story where the original grantor quitclaimed the gap to the senior owner is the junior should sue for slander of title against both of those jokers. The senior had his full measure but he measured across the front of the junior and found out the surveyor had recently staked the parcel 2' wider. He got jealous, a normal human emotion, and decided to try to grab the two feet. Ultimately the two owners and the 2nd surveyor (for the senior) ganged up on the first surveyor and he settled by paying for a variance (a garage was built in the setback if you assume junior didn't own the gap).
I had a client's adjoiner do that (measure something bogus herself) but we beat her in court.
how about the following....
> real world situation:
>
> 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.
>
"No proof of intent"? Are you sure? Have you looked at the deeds and/or patents predating these conveyances? Have you investigated the presumed size of the parent parcel at the tiime of conveyance, and the source that the grantor was informed by?
The size of a gap supposedly discovered by a surveyor has no bearing on whether it is real or not. In the same way that discovering that the section contains more acreage than the GLO reported will not justify the surveyor in declaring the existence of a heretofore undefined extra government lot, extrinsic evidence of measrements not available to the parties of the original conveyance cannot create the intent of having created a heretofore undefined parcel of any overage which might be found by accurate measurements made at some point future to the conveyance. I don't understand why surveyors 9and pretty much only surveyors) have such a hard time grasping this basic concept which seems like just basic common sense to most everyone else. The nature of the gap, real or phantom, will dictate the correct remedy.
Let me offer a correction to one of your sentences which is likely to reflect the truth of the matter when all the facts the court would want considered are fully considered: "The assessor has never recognized it, primarily because no one has ever expressed or acted on the intent of creating, retaining, or separately conveying this additional 50 feet."
Finding more land than was thought to be there at the time of conveyance creates a latent ambiguity in the described location of a boundary, it cannot create an additional parcel which was never intended.
If the record clearly demonstrates a clear intent to convey the full legnth or width of one's parcel, or to meet a certain adjoining line although poorly worded, then it is a matter of finding the line between the adjoining parcels, and not of defining the size and location of an additional parcel that no one knew of. Possible remedies are deed reformation or an agreed boundary memorialized in deeds with better descriptions.
> 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.
>
You should review the CCP again. I've recently pored over the Deering's California Codes Annotated covering CCP §§1856 to 1864. Generally, they are instructions to the court, but there is not a restriction prohibiting other professions from applying the laws contained there. Read it carefully. There are matters which are for the court alone to decide, but no prohibition for one who is expert in the subject matter (in this case, land boundaries and title) from offering a professional opinion. But it is important to form that opinion according to the same rules and precedents that the court will be guided by or must adhere to.
If you have been following the discussion at CLSA and are basing your opinion on one surveyor's interpretation of the law and his related scary stories, first note that when he brought up CCP 1856, he only addressed a very small part of it and did not go into the limitations on the first subsections as outlined in later subsections, and second, note that he did not offer any details behind the scary stories beyond the financial obligations realized by the surveyors.
For instance: 1) What was the nature of each "gap"?, 2) How did each surveyor resolve each "gap"? Was it according to the record and circumstances which would have informed grantor and grantee at the time of conveyance and according to the rules of construction, or was it something more arbitrary?, 3) How did each surveyor report the issues indicating a real or potential problem with the current description or other evidence? Did the surveyors neglect to inform their clients and to recommend an appropriate remedy?, 4) Did the surveyors or the attorneys on their side of the matter make a good, coherent presentation of their opinion and findings. Many attorneys do not understand the issues well enough to make the appropriate arguments and presentations, and many surveyors lack the communication skills to adequately explain and present their reasoning in a manner that a judge or jury will find coherent.
Go to the link I provided elsewhere in this thread to Allen v Boydstun.
> Sure would be tempting to say the gap really doesn't exist, but it would seem that would be exceeding my legal authority.
You are licensed under CA B&P Code §8700 et seq. Section 8726(c) & (e) says that locating "any property line or boundary" is considered to be within the licensed practice of land surveying. In order to fulfill your duty when practicing per those subsections, the surveyor must investigate the facts and must form an opinion of intent of the parties to the original conveyance in order to properly locate those lines.
Even if you are slavishly adhering to the deed dimensions, you are expressing an opinion that the intent was to convey land exactly per those dimensions regardless of circumstances and facts which may indicate otherwise. Whenever you draw the dark line relative to evidence you've mapped, or set monuments purporting to be the corners of some parcel, you are expressing your interpretation of intent in very real and tangible ways. You simply can't avoid interpreting and opining on intent, no matter how much you try to deny it, any time you presume to perform a boundary survey.
It is the surveyors duty, where the information is available and by the guidance of the law, leads to a particular location, to identify that location. And if there is evidence leading to potential alternate locations, to disclose that evidence and it's meanings.
The problem for the surveyor occurs when one attempts to adjudicate ambiguous boundaries and does not disclose evidence both supporting the boundary location representing one's opinion as well as evidence contradicting one's opinion and indicating a different location.
It is your job as a licensed surveyor to attempt to locate the boundary as a court of competent jurisdiction would. It is beyond your authority to indicate that location as the only possible location if the record is susceptible to other interpretation.
The day that the law dictates that I as a licensed professional surveyor only have authority to blindly follow the dimensions recited in a deed is the day that I will start loudly and boldly advocating for the abolishion of licensed authority to survey, because that authority will have become meaningless in this age when almost any trained ape can be taught in short order to measure sufficiently well to report the bearings and distances between monuments or to stake the dimensions recited in a deed.
how about the following....
Evan suppose in the example given the original grantor or their heirs can't be found. The client wants to know where their boundaries are located.
What do you suggest is the way to handle this?
Dave
That particular line is highlighted and underlined on my copy. it just encapsulates the common sense that is obvious to all but some surveyors.
I think that it was in the footnotes of this case (might have been another I read in the past few days), that the slander of title issue was addressed in White v Boydstun, a previous case over the same property (prior to Allens arrival on the scene). Apparently, those Boydstun heirs have been busy for some time trying to retake portions of properties conveyed by their parents.
how about the following....
I just got scolded for not picking up my son yet. I'll consider your question and try to get back to it tomorrow.
You are assuming a real gap in title, or an imagined one that is explained by an examination of the circumstances and records in existence at the time of conveyance?
how about the following....
Unintentional, whether caused by metes and bounds cooked up from the GLO record or "of" type descriptions which unintentionally don't add up.
For JB and CARL
Ernie is a good case. It is somewhere in San Rafael but that is all I know.
I will have to read it again to refresh my memory. My memory of it is it has to do with repose of an old survey which was found to be faulty 20+ years later.
*edit*
It is an implied BLA case which operates to silence the criticism of an old survey.
This is a good explanation of how the Deeds carry up to the agreed boundary without the need to resort to little strips of title that need to be cleared up:
"In Young v. Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect [51 Cal.2d 709] the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy ... that 'the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed,' and that if more is thus given to one than the calls of his deed actually requires, he 'holds the excess by the same tenure that he holds the main body of his lands.' " [11] Each coterminous owner is deemed to have paid the taxes according to his deed. (Price v. De Reyes, supra, 161 Cal. 484, 489-490; Caballero v. Balamotis, 144 Cal.App.2d 58, 61-62 [300 P.2d 363]; Carr v. Schomberg, 104 Cal.App.2d 850, 860 [232 P.2d 597].) It is therefore not material to the defendant's claim of title by agreed boundary that the plaintiff paid the taxes assessed upon the land according to her deed."
bold is mine.
