This is based on a real situation somewhat simplified.
It is a triangular parcel of about 5 acres.
A rail road right of way runs through the NE quarter of a Section cutting off a triangle, running approximately N 24° W. It actually crosses the section line a little below the east quarter section corner but we are going to ignore that for purposes of this scenario. The 5 acre parcel is the bottom of this triangle.
1910 Deed:
Beginning where the east line of the I-think-I-can railroad intersects the east line of Section 18; thence from said point of beginning north along the section line 63 and 1/2 rods; thence at right angles westerly 24 and 1/2 rods to the east line of the I-think-I-can railroad; thence along said east line to the point of beginning. Containing 5 acres more or less.
Physical situation:
The section line and east line of the railroad are monumented and closely match record.
Going along the section line 1036 feet [62.8 rods](63-1/2 deed) there is a fence corner post and brace. If you go westerly at exactly right angles the east line of the railroad is 438' [26.5 rods](24-1/2 deed). There is a fence line which runs S 78° W 403.4' [24.4 rods](24-1/2 deed) to a fence corner post and brace exactly on the east line of the railroad. No distance is given in the deed for the run back to the P.O.B. but the bearing measured by survey is approximately S 24° E.
The County Surveyor has a copy of an unrecorded Survey dated 1959 by an RE who did a lot of work in the area which shows a heavy line which appears to agree with the fence line. The unrecorded survey makes no mention of the fence line and sets no monuments on this particular boundary but there are bearings and dimensions on the map which closely match the current reality.
Where is the north line of the above triangular lot?
This is closer to the "normal" survey around here. Latent ambiguities running amuck!! As usual, where the north boundary is, well it depends. One would need more evidence; check adjoiner deeds, previous deeds, railroad drawings and deeds, other maps if available, and of course find the old timers that may have useful informzation. Keep digging until you find all the available evidence.
One solution I used many times is to meet with the affected landowners, explain the situation, and ask them how they want to resolve the potential problem. I can either keep digging for information/evidence, and if I have enough to issue an opinion, then I will, however they have the option of resolving it themselves, after which I'll prepare the necessary documents, file the survey, and cash the check. Of course, having reasonable landowners to deal with sure helps, which is usually the case, then there are those that ................!
> Where is the north line of the above triangular lot?
1) What does the adjoining deed say?
2) Was the fence there before or after the original deed?
3) What do the landowners know about the survey history?
So far, it's just a fence.
JBS
the Deed to the north says...
The whole triangle exception therefrom the 5 acre parcel. It came somewhat later.
The file is 6" thick. Just take my word for it, I have all that stuff. 😉
The little old lady that owns the 5 acre triangle doesn't know anything because her husband (deceased) handled all of that kind of thing. Luckily the two owners are friends.
It would be great if all property owners are highly educated on property issues and even have some spatial awareness but this usually isn't the case. I try to explain but their eyes just glaze over.
She purchased the property in 1959 and she remembers the boundary "moving" in 1972 by some Surveyor (no record). There is a newer fence a little bit north with a more northerly bearing but still not directly west. There is a 1972 Deed which broke up the property to the north and could have been prepared by a Surveyor just because of the numbers in it. The 1972 Deed doesn't have Bs&Ds just an odd south 252.42' of the parcel to the north which results in another parcel to the north being exactly 200' wide. I can only speculate that a Surveyor might've showed up in 1972 and "changed" the answer but I don't know for sure.
Frankly no one cares all that much because the zoning is AG 5 acres so most parcels are too small to split and it isn't exactly high end property.
And this is adding way too much information and complexity to what is supposed to be a somewhat simplified scenario. I should just say, no one knows anything because they are all recent owners and relatively uneducated on property issues other than how to operate a brush hog.
I will add one detail...
James Arness plays me in the movie A SURVEY IN THE OK CORRAL:
[flash width=480 height=390] http://www.youtube.com/v/9qlLtvX4xOM?fs=1&hl=en_US [/flash]
Amanda Blake as Bonnie (who fills the magic lunch box-a joke by my subordinate employee who is single).
Ken Curtis as Festus the rodman who argues a lot with
Milburn Stone as Doc the Attorney.
Maybe we should have Milburn Stone play J.B. Stahl and Newly can be the Attorney.
> The little old lady that owns the 5 acre triangle doesn't know anything because her husband (deceased) handled all of that kind of thing. Luckily the two owners are friends.
>
> It would be great if all property owners are highly educated on property issues and even have some spatial awareness but this usually isn't the case. I try to explain but their eyes just glaze over.
>
I hear you, Dave. I only, in the past few years, have finally realized what I have known for years. They don't know, so why are we trying to explain? I've entirely changed my tactic since being trained as a mediator. I'm not there to explain. I'm there to listen. That's how we should gather evidence. We listen. Ask enough questions to generate a response. Prompt their thinking and their recall. That's how you gain pertinent evidence.
> She purchased the property in 1959 and she remembers the boundary "moving" in 1972 by some Surveyor (no record). There is a newer fence a little bit north with a more northerly bearing but still not directly west. There is a 1972 Deed which broke up the property to the north and could have been prepared by a Surveyor just because of the numbers in it. The 1972 Deed doesn't have Bs&Ds just an odd south 252.42' of the parcel to the north which results in another parcel to the north being exactly 200' wide. I can only speculate that a Surveyor might've showed up in 1972 and "changed" the answer but I don't know for sure.
>
Sounds like you do "know for sure." You've got evidence of a 1972 survey, confirmed by the creation of the deeds containing dimensions for the division. Those facts corroborate the testimony. Now, you've got evidence that a survey was made and that "property lines changed." That gives you direct evidence of an assertive action taken by the landowners as a result of representations made concerning their boundaries. That's a lot of vital information that's not based upon "speculation."
> Frankly no one cares all that much because the zoning is AG 5 acres so most parcels are too small to split and it isn't exactly high end property.
>
That's entirely irrelevant, because I, the surveyor, care.
> And this is adding way too much information and complexity to what is supposed to be a somewhat simplified scenario. I should just say, no one knows anything because they are all recent owners and relatively uneducated on property issues other than how to operate a brush hog.
None of the retracements (ok well, few) are easy. In fact, the only ones that seem easy are the ones that haven't been investigated yet.
Sounds to me as though I'd be looking for more evidence of the 1972 survey and looking for the evidence of acceptance and/or reliance upon that. If not, you're back to the conditions in place in 1959 that led to the boundary creation.
JBS
I thought it was simple, from your first post, since the distance along the old fence line matches the deed pretty well and I'd take that over "right angle" which might have been measured or just eyeballed. If they went out and measured the fence it is more likely they would be off 0.1 rod than 2 rods. Thus the fence would represent the best evidence of the intentions of the parties.
Then your later post threw in a possible survey and a newer fence that may have been relied on, and now I have no idea what the answer should be. The first step would be to check the consistency of the 200 and 252.42 ft parcels.
Bill (some days glad I'm NOT an LS)
If the property owners don't care that much, how did you get involved? Was there some other reason to determine this property line or did the property owners contact you to find out if the fence is in the "right place"? I've never had anybody call me and ask "Where is my fence?" They do call quite often and ask "Where is my property line?".
If there was some other reason that required the establishment of the property line as part of a permit application or something, and the property owners are happy with the fence as the boundary, there's no use reading the old tea leaves and coming up with some theory of the boundary, just do whatever is necessary to clear up the record of where they want it to be, with a boundary agreement or adjustment or whatever will get the job done. There's really no ambiguity in the description, so around here, I think the best bet would be to process a boundary adjustment between the described line and the occupied line, if that's what the owners want to do. Just make sure that the agreed boundary doesn't cause grief in the future because of parcel size or shape according to the zoning requirements.
It was a dispute over the next boundary north which my client prevailed on but I had the contract to survey the whole parcel. It was 4 years ago.
Bill sorry about the confusion...
the later information really isn't relevant.
The original description I posted is the senior deed out of the larger triangular pieces.
All of the deeds north of it except it out by reference. Therefore this one boundary is controlled by the deed description first posted.
Bill sorry about the confusion...
> the later information really isn't relevant.
Well, ok then. If no other evidence is relevant, then all you're left with is a deed in a vacuum. If you've got a vacuum of evidence, then it's a matter of simply applying the rules of construction to the terms in the deed.
If that's the case, then the occupation lines on the ground (which aren't called for in the deed) are irrelevant. The 1959 survey (which isn't called for in the deed) would be irrelevant (what difference does it make whether it's recorded or not). The representations of boundary locations made in 1972 (which isn't called for in the deed) would be irrelevant. The fact that someone who has personal knowledge of changes in fence lines would be irrelevant (can't use oral testimony to contradict the terms in the deed).
What's left but to load the dimensions into the DC and stake it out like a construction job? [sarcasm off]
I sure don't understand how all of the evidence you find is suddenly irrelevant. I can understand if there was no physical evidence of any occupation and you were surveying this line for the first time. Then the rules of construction would apply.
In this case, there is nothing ambiguous in the deed, but when you lay it out on the ground, ambiguity is discovered. Were the section monuments the same as existing in 1910? How was the east line of the railroad determined? Those lines, at a minimum, must be determined by extrinsic evidence. Once they are determined, then it's a simple matter of setting up at the 63.5 rod point and turning a 90 to the intersection with the railroad right of way.
Too bad there are all those other pieces of evidence that speak to the actions of the landowners to physically establish their boundary location on the ground. It's also too bad that there are all those "other rules" that determine the boundary location by taking all that evidence into account. Too bad that surveyors have been trained to ignore all of that evidence and to treat it as "irrelevant." [sarcasm off, again]
JBS
Bill sorry about the confusion...
Hopefully Dave will fill us in on the outcome.
Usually, if property owners order a boundary survey and you show them that the deed description of their property says you measure from this point a certain distance and turn a certain angle and their neighbor's deed agrees with that, they will accept that as their boundary. If they don't and start bringing up legal reasons that the ownership is somewhere other than where the unambiguous description says it is, either they agree with each other and they put the line where they want, or they fight it out.
If the property owner of the southerly triangle wanted to assert his rights to the most northerly alternative of the line, being that described in his deed, I'm going to have a hard time disagreeing with him and proclaiming that the fence is his north line.
Your Truly,
Deed-Staking Pile of Garbage
Do review Section 3-50 in Evidence and Procedures for Boundary Location (2nd edition).
Involves the Difficulty of Determining Unwritten Rights, but gives an similar example of "at Right Angles", and a warning about disclosure to the client.
Also states that in CA title companies won't insure on possession rights.
Bill sorry about the confusion...
I did a lousy job of presenting this thing and, frankly, maybe it isn't a good scenario for a message forum thread. It doesn't have two clearcut choices.
Simply, it is like this. You go north along the section line about a thousand feet (the distance given in the deed times 16.5). There is a very old fence corner post and brace very close, nothing else. The puzzling thing is the very old fence takes off about 12° south of right angles. Given that the Deed is meant to get you close to the boundary evidence this old corner post seems pretty good especially since the Deed is to the nearest half rod (8.25 feet) and you are way closer than that. So you have three not so great choices: 1. go at right angles ignoring the very old fence (at least since 1959) crossing another shot at fencing this line in 1972 and crossing a pasture that has been occupied since 1972. There is no evidence that anyone thought this was the line except for one word in a Deed. The first distance fits very close (as if it was measured). This second distance goes quite a bit long in a shorter distance. Choice 2 is follow the 1972 fence which doesn't really fit any sort of logic. Choice 3 is follow the 1959 fence (at least, maybe older) which hits distance very close at the RR right of way as if it was measured for the Deed and "right angles" was not intended to be interpreted as exact.
The little old lady to the south doesn't know anything, the owner to the north showed up in 1984 and he doesn't know anything (I asked).
My opinion is the best evidence of this boundary is the old fence alignment.
This doesn't mean I run around holding every fence I trip over; this is mostly a unique case. All of the fences in this weird triangle of land in the NE corner of the section are running south of due west. It is a goofed up piece of paradise.
This was four years ago, it is a filed R/S and the County Surveyor signed it with no comment. There are notes on the map explaining what I think and if someone wants to disagree with me I can understand that.
It all makes sense to me but I is seared into my head too. So even this post could be confusing.
I doubt anyone will be going to the Title Company because this is low value, unsplittable land. The only insurance (if they have any) is for the Title, whatever it may represent. Both parties have good title, it's just a question of boundary location. It is not uncommon in these lower value semi-rural areas to find owners don't have any sort of Title Insurance.
This does not involve unwritten rights. The party to the south has a Deed which is written. The question is where is the north boundary line of this Deed? The party to the north also has a Deed which calls the Deed to the south therefore the only question on this boundary is where is the north line of the Deed to the South?
>... therefore the only question on this boundary is where is the north line of the Deed to the South?
I guess that I'm not really understanding the point of this scenario. I don't see why this would be difficult.
If we are to presume that the deed exists in a vacuum, that the section line as it existed in 1910 is discoverable, and the east right of way of the railroad is discoverable, then what's the problem? Just follow the deed by starting a the intersection of the east r/w line and the section line; follow "along" the section line northerly 63.5 rods; turn 90 and extend the line "to" the easterly r/w; then follow the easterly r/w to the pob.
That's what you get when you literally apply the rules of construction and follow the terms of the deed in the order they're written. There's no mention of a 1910 survey; there's no mention of physical monuments on the section line or the r/w line; there's no mention of a fence on the north boundary; and there's no mention of a 1959 survey or a 1972 survey.
The literal construction of the deed on the ground is a simple matter when we ignore all physical evidence of any boundary established on the ground by the actions of the landowners in accordance with any variety of evidence we've chosen to ignore.
JBS
Please clarify the "vacuum", since the scenario includes some field information. You would hold 90 00 00 and disregard the 2 rods of distance discrepancy in the resulting north line, even when there is evidence on the ground to suggest a line had been followed in the past with very nearly that distance?