Here is another hypothetical...

Dave,

Are the hypothetical brass caps mentioned in the hypothetical deed at the time the land was hypothetically butchered?

Dave

A lot of my M&B background may be coming into play here, but I wonder was the survey done before or after the sale? Was there a M&B description in the deed referring to the monuments in question or was it an aliquot conveyance with no survey mentioned? Was the survey commissioned by the purchaser after the sale was completed? Was the survey done in accordance with the manual?

I think I would weigh all these matters in my decision making process. I will admit that it would be tough to not hold 60 year old monuments that had been relied upon.

Finally, there is the potential matters of adverse possession and / or acquiesence that may or may not apply in the state in question.

I think you will usually lose in court when you interpret the deed differently than the parties actions show how it was interpreted at the time.

The grantor was never deeded the 1/4 in question. The grantor could have granted 1/2 of the S 1/2 they owned if that was the intent. It's up to the grantor to be clear on the wording. Most people in PLSS think and talk about their 40, not their 1/4 (at least where I lived and worked). It's the back 40, or the front 40, or the woodlot 40, or whatever. So it's a very reasonable interpretation of your deed that it is 1320, even if that is not the official government recommended interpretation.

Now, one could bring up the argument that technical terms must be interpreted by their meaning to the experts in that field or official definitions. But that rule is rebuttable by showing the parties gave it a differing meaning. And, in this case even the expert in the field (surveyor) gave it the laymans meaning. So there really isn't anything to argue about.

I would be interested in hearing an argument to reject the original stakeout because I can't think of one.

> Someone owns the south half of the southwest quarter of a Section.
>
> In 1950 they sell the southwest quarter of the southwest quarter and retain the southeast of the southwest.
>
> Surveyors in the employ of the grantee measure east 1320' from the west line of the Section and set pipes with big brass caps (obvious-sticking up) (hope I haven't messed this up doing it in my head).
*** buyer marks out something different than his title
>
> 2010...Surveyors in the employ of the same grantee (still owns the 40) now measure the whole section (very rough terrain) and OOPS...you guessed it...the 40 should only be 1270' wide. In the 50' strip (for lack of a better term and for the sake of illustration) is the access road used by the grantee.
*** buyer discovers his error and also discovers he is occupying his neighbors land
>
> So, do you reset the 1/16th corners and show the road encroaching on the neighbor to the east or do you call the existing monuments originals?

---
Set no monuments.
Draft a plat showing title lines And lines between erroneous monuments, together with the road and other adverse occupation.
Prepare a letter to the client explaining areas of clear title and areas of unclear title. Suggest various methods to clean up the mess (request boundary agreement, request purchase, request easement for road, call in the dogs and fight with everyone, etc.)
Depending on the response you would probably then prepare a letter to the County Surveyor stating that a survey is in progress and will not be filed within the statutory time limits. (Dave is in Ca. so I use Ca. law)
If the client is deadlocked for a significant period of time file a Record of Survey showing the lines of title (1/4,1/4) as ownership and lines of occupation as areas of questionable title...

expect pissing and moaning and move on.

I would be interested in hearing an argument to reject the original stakeout because I can't think of one.

Exactly right!

Or, show every line that you can see on your "map", (sure is not a survey plat), give it to the landowner, hope to get paid, and go to the bar and celebrate another job done.

Keith

No

It's not my hypothetical project but when asked about it my first question was about ownership of the 80. Did this deed create a "new" 40 from the 80 or did the deed acquire a preexisting 40. I think that is critical to find out.

Title is one things but the boundaries of the title is a separate question. Actions of the parties to a deed at the time of the transaction speak very loudly as to evidence of the boundaries of the title. They wrote down a description then implemented what they intended it to mean.

I would not move the road....

But, I'd write my title off the east end of the SE-SW, and show that all the shortage got thrown into the SE-SW, and I'd DOCUMENT WHY I DID.

The key word is DOCUMENT.

Any other surveyor worth his salt, will FOLLOW me, and so long as other follow you, there is not a problem....

My 2 centavos!

N

"They wrote down a description then implemented what they intended it to mean."

It may be that what they intended it to mean was "I'll sell you half my land. You want to measure it from the west? Cool. I have 2640 feet east to west, so just mark off your half from the section line over there, or you could measure it from the east but, hey, what's the difference?”

Just sayin'. Peter E's contribution is not without merit.
Don

Dave, are you Changing the facts?
You first said "...owns the south half of the southwest quarter of a Section" then you say "they sell the southwest quarter of the southwest quarter...".
If he owned two separate 1/4, 1/4s and sold one... is that any different?

When you say "boundaries of the title" it confuses me. I see Title as the words of conveyance... the Title can easily be marked on the ground as the 2010 surveyor demonstrates.

Back to the hypothetical facts: land was sold, then buyer clearly had something different marked out with patently wrong methods, and then proceeded to occupy. Where does the "they" come in? The SELLER wrote a deed and executed it. The BUYER occupied something different that was written on the deed. I see nothing in the original fact set that would imply that the buyer and seller were working in concert other than an arms length transaction.

This can easily argued either way, and a court could decide in some unforeseen way contrary to the common sense of the surveyors.
Best to clearly document where the location of the Title is hard and clear, and further document where it is fuzzy (potential claim of ownership). These guys could argue for several generations (or quickly agree that the buyer screwed up)... it is best to discourage them from compounding the damage by making any more significant improvements in the questionable area.

First Off The 50 Year Old Road Is Not Encroaching

The road may be in land that the original grantor thought he still owned, but the use of that road can never be taken away from the grantee.

Acquiessence and estoppel work against the grantor. Possession and use of the road work for the grantee.

I am not the person to say if the brass caps designate alliquot corners, but I believe not. One could easily set alliquot corners at 1270' but that does not make them property corners.

The grantee has no significant loss in yielding to the new corners, if he so chooses, since he retains use of the 50' right of way.

Nobody wins but the lawyers.

Paul in PA

The problem I have with some the the responses are the references to the "title" as being the perfect mathematically correct theoretical location of the SW1/4SW1/4. The written documents of the conveyance are NOT the title, they are ONLY EVIDENCE of title. Title is much more than merely the written words.

It seems that some are equating title to the strict staking of the deed, whereas the property boundary may be somewhere else. In other words, how can you own to one theoretical line, but your property boundary is somewhere else? Title is more than the "what", I believe that it also involves the "where".

I agree Brian.
Language is often confusing with many people using the same words but intending a different meaning.
I prefer to consider to use "Title" to be the clear words being used in written documents of conveyance... But Boundary/Ownership could be something very different, and include (or exclude) rights to other things.
In the case of allocate parts, with clear evidence of controlling monuments, I have no issue with telling the world where that location is, being the "Title" to the land. But cautioning them with the existence of possible contrary claims... and furnishing our knowledge of methods of perfecting the title is what I consider part of our professional obligation as surveyors.

We are undoubtedly on the same page here... have a great holiday!

Any of the attorney types care to weigh in?

There is no title issue here. Title, as the situation is presented here, says the guy owns the SW1/4 SW1/4, unquestioned, no more, no less.

The boundary question is, where are the limits of the SW1/4 SW1/4? It would seem that something clearly marked and relied on for so long should prevail over any other interpretations. Cooley and others favor repose.

This brass cap might not be the 1/16 corner for purposes of dividing the N1/2 SW1/4, if it has never been divided, but that is not at issue as presented.

My .02 (Not an LS, so not .04)

The monuments do not necessarily need to be specifically mentioned in the deed to have controlling effect. They do need to be the result of a valid establishment of the line and have to have been recognized/accepted as such by the affected landowners to gain controlling status though.

When was the survey relative to the creation of the parcel? Was it about the time of creation, shortly after, many years after?

Did the grantor have actual notice of the 1320' survey and did his subsequent actions of ownership comport with honoring those brass caps as correctly marking the line?

What was the actual typical standard procedure for similar surveys in the area around the time of that survey?

I've lived and worked in areas where the typical procedure, pre-EDM, would have been to set the transit on the section corner (or wiggle in somewhere along the section line), take line on the 1/4 corner, and then measure 1320' (or 1/2 record between SC & QC), do the same along the adjacent section line, and then move up, turn 90 and measure another 1320'. Far from proper, but the common procedure nonetheless, so such established lines would typically stand.

I don't know that such a procedure has ever been the typical procedure anywhere in CA. If it didn't comport with the standard of care as actually practiced in the area at the time, I am not sure that the establishment would meet the good faith requirement.

But it is the good faith of the grantor and grantee that counts, and not necessarily that of the surveyor. Hiring a licensed surveyor to establish the line, and without knowledge at that time that the surveyor deviated from proper procedure is an act of good faith establishment on the part of the grantee.

A tough scenario that probably requires a little more detective work to either accept or reject the monuments as marking a valid establishment. If not found to mark a valid establishment, they would probably hold up due to acquiesence. But then we're getting out of the realm of surveying and into the realm of law (quiet title action).

Which way are you hypothetically leaning with this Dave?