> Why would there not be a reserved 5 foot strip? The junior deed is not ambiguous so the testimony of the 115-year-old Mr. Goldenacre is (at least in Maine) immaterial.
I definitely agree, with Cee Gee that G's testimony would be inadmissible to overcome the clearly written words of the deed, unless there is a latent ambiguity discovered when the deed is located on the ground. As soon as the surveyor realizes that 50 + 50 does not equal 100, then a latent ambiguity has been discovered. That's what makes G's testimony important; not to change the terms in the deed, but to determine if there is any evidence of an intent to retain ownership of a 5' strip of land.
Reasons why there is a strip:
1) The surveyor can measure it.
Reasons why there isn't a strip:
1) G bought 100 feet and sold 100 feet leaving a presumption that he sold everything;
2) G expressed that he never new there was any excess;
3) G had no intent to retain ownership of a narrow strip of land;
4) There is no use or practical value for the strip;
5) There is no deed conveyed for the excess;
6) The strip does not exist on the assessor's map;
7) No one is paying any taxes on the excess;
8) No one is claiming there is an excess;
9) Then there is the law:
a) Senior gets their property up to the newly negotiated and created boundary;
b) Junior gets the remainder up to the existing line, whether that be more or less.
c) It is inequitable for Junior to always be less, but never more.
d) Application of the law of boundaries is designed to resolve problems, not create them.
d) It is against the presumption of law.
>>“"Generally, it will not be presumed that a party granting lands intends to retain a long narrow strip next to one of his lines; but if the courses and distances approximate closely to a line or corner of the tract owned by the grantor -- especially if the description in the deed corresponds, exactly or substantially, with the description in the title papers under which the land is held -- it will be presumed that the lines mentioned are intended to reach the corners and run with the lines of the tract." Western Mining & Manfg. Co. v. Peytona Cannel Coal Co. (syllabus), 8 W. Va. 406.” Gutha v. Roscommon County Road Commission, 296 N.W. 694, 296 Mich. 600 (MI 03/11/1941)
Landowners don't create gaps, they intentionally create boundaries and don't intentionally retain ownership of worthless strips of land that they are unaware of.
JBS
First Off, Where Is The Fence ?
And other evidence of occupation?
How was the East 50' measured when sold? Was it measured from the East line as many here presume or was 50' measured from the West line?
Occupation can indicate what had happenned in the past.
I doubt this is a serious question, since I do not believe 5' would go unoticed for so long in CA. How many times in the course of this period, was a tape put to the ground for sewer, water or curb?
How many surveys were done on either side of said lot, where the 100' was measured for control purposes?
And in all this time said lot has never been surveyed?
This is believable in many states, but definitely not in current CA.
The intent was to sell the East 50' of 100'. Absent evidence to the contrary the intent was to also sell the East 52.5' of 105'.
Paul in PA
> 1) G bought 100 feet and sold 100 feet leaving a presumption that he sold everything;
G didn't buy 100 feet, he bought a lot that was thought to be 100 feet but was in fact 105 feet. Surely if he had never divided it no one would be arguing that he owned less than the 105 feet lying between the original monuments?
> 2) G expressed that he never new there was any excess;
As I said before, immaterial, at least in Maine, when the deed language is unambiguous. The is no ambiguity in the junior deed.
> 3) G had no intent to retain ownership of a narrow strip of land;
Again, immaterial, at least in Maine, though the court case JBS cites suggests strongly that it's otherwise elsewhere. And Dave's case is elsewhere.
Here, it's the intent manifest in the documents and acts of the parties that matters, not what they thought they were doing. Suppose he had said his intent was to sell the senior guy 40 feet though Senior's deed says 50?
> 4) There is no use or practical value for the strip;
Sure there is. If one of these lot owners decided to buy the abutting lot and build a garage on it Mr. G. could turn a pretty penny for that strip.
> 5) There is no deed conveyed for the excess;
If Mr. G. has held onto it all these years there's no requirement that one be made (again, at least not in Maine).
> 6) The strip does not exist on the assessor's map;
> 7) No one is paying any taxes on the excess;
These items are apparently important out west. Not here. Tax maps here are rife with errors and generally held irrelevant to boundary questions. I know of two towns that don't even have them and I suspect there are others.
> 8) No one is claiming there is an excess;
Any title attorney in Maine would be!
> 9) Then there is the law:
> a) Senior gets their property up to the newly negotiated and created boundary;
> b) Junior gets the remainder up to the existing line, whether that be more or less.
> c) It is inequitable for Junior to always be less, but never more.
> d) Application of the law of boundaries is designed to resolve problems, not create them.
> d) It is against the presumption of law.
The law here would be different. Junior is gonna get the 50 feet his deed calls no matter how we slice the 5 feet. Here, a call for Junior to run to the abutter would get him the 5 feet too. In fact such calls are so common here that the absence of one tends to corroborate my take that there's a 5-foot strip. If Mr. G had owned 400 feet, very explicitly sold the East 50 feet to A, the West 50 feet to B, are we saying that B would in fact get the entire remainder -- 350 feet?
> >>“"Generally, it will not be presumed that a party granting lands intends to retain a long narrow strip next to one of his lines; but if the courses and distances approximate closely to a line or corner of the tract owned by the grantor -- especially if the description in the deed corresponds, exactly or substantially, with the description in the title papers under which the land is held -- it will be presumed that the lines mentioned are intended to reach the corners and run with the lines of the tract." Western Mining & Manfg. Co. v. Peytona Cannel Coal Co. (syllabus), 8 W. Va. 406.” Gutha v. Roscommon County Road Commission, 296 N.W. 694, 296 Mich. 600 (MI 03/11/1941)
I'll have to look this up -- it does tend to refute my argument. Not sure it would hold much water outside of W. Va.
>
> Landowners don't create gaps, they intentionally create boundaries and don't intentionally retain ownership of worthless strips of land that they are unaware of.
>
Makes sense of course but the courts and attorneys in my state take a dim view of such presumptions.
I'm leaving for Sunday brunch and apologize if the Maine take has been a distraction. Good thread. Interesting how complicated the seemingly simple can get.
Just the facts and no talking
Except for Dave's last paragraph, this is a California LS exam question. The facts are as presented and are all you need to know. No presumptions or projections. Given that, the answer is 55 feet. Blackacre got 50; Whiteacre got the rest.
Don
As for the text book answer, I think (hope) any LS knows what the correct answer is.
One of a couple of things are going to happen in the real world however.
First off, Jackleg surveying is more likely than not going to be doing the resurvey and he is NOT going to search all the back to the original conveyance/s
1) Jackleg is going to set a new monuments at 100.00', stating that 2 of the original monuments are off by 5 feet
2) Jackleg is going to prorate the difference and set new corners at 52.5'
The real world usually & normally hires the cheapest surveyor who 'bid' the project at the lowest fee. That surveyor, who I so fondly refer to as Jackleg, does not have the time, knowledge, wherewithal, experience or budget to complete the re-survey properly and accurately.
The sad fact is that Jackleg will operate tomorrow, because we in our profession allow him to do so.
Here's another question...In Los Angeles County
I know . The test questions are by the book but this rarely happens in real life surveying. A knew a few surveyors that could not pass the test do to the fact they got caught up in the whatifs and did not realize the test questions were by the book only . A favorite is the term original monuments found and just a found monument or iron . In N.C. its very hard for a surveyor to know what is original and what is not. Since NC only started the requirement to describe exact metadata for a monument last year . Before that it was common for a map to only say EIP (existing iron pipe)
or NIP (new iron pipe) . A surveyor must use his best ability to determine of its original or not (sometimes impossible) . I would like NC to go to a recording state and a caps on the irons .
Here's another question...In Los Angeles County
California is a large state and varies a lot.
There are a lot of places where over 90% of the existing monuments are common report and it is difficult if not impossible to tie them to the original as Paul suggests.
I agree test questions are simplified versions of unreality but it does illustrate a principle which would of course vary given additional information such as where is the dividing fence and is the lot really 105' wide. It can be nearly impossible in real life to determine if an old monument is still where it has always been. We can inspect the monument for damage caused by pulling and re-driving but that may not be a reliable indicator if it was put in a dug hole and backfilled and the backfill has compacted in the years since the monument has moved. Generally speaking, we have to presume a monument has not moved absent evidence of movement.
Whether 5' would be noticed is by no means certain. It depends upon where you are. I have seen 18' go unnoticed on a line that is rotated several degrees from the Plat based on other monuments in the area. The lot is a few acres and very brushy in the rear and there are no property line fences so the residents just don't notice it.
Here's another question...In Los Angeles County
Test questions like this should not be on any LS exam. Though the text book answer if 55 feet, the real world answer is..not enough information to arrive at an equitable solution if one even exists.
I don't put too much stock in what an Attorney will claim.
I testified in a case where the other Attorney claimed an easement didn't exist. This easement clearly existed, it was paved, had a recorded document, had been used for many years by my client. When I was on the stand the Judge asked to borrow my file which had the complete chain of title in order (copies of the O.R. documents) with an Excel worksheet table on top of the stack (made by me). He copied my file and then ruled that, yes, there is an easement, end of story.
My client's Attorney was upset that the Judge wouldn't let me testify that the easement exists but in the end it didn't matter because the Judge concluded on his own exactly what I thought.
Cee Gee, a few points and questions:
> > 1) G bought 100 feet and sold 100 feet leaving a presumption that he sold everything;
>
> G didn't buy 100 feet, he bought a lot that was thought to be 100 feet but was in fact 105 feet. Surely if he had never divided it no one would be arguing that he owned less than the 105 feet lying between the original monuments?
>
Obviously not, but he did.
> > 2) G expressed that he never new there was any excess;
>
> As I said before, immaterial, at least in Maine, when the deed language is unambiguous. The is no ambiguity in the junior deed.
>
I don't know anything about Maine law, but I find that to be jaw-droppingly amazing. Would it still be immaterial if the excess was 0.25 feet?
> > 3) G had no intent to retain ownership of a narrow strip of land;
>
> Again, immaterial, at least in Maine, though the court case JBS cites suggests strongly that it's otherwise elsewhere. And Dave's case is elsewhere.
>
Wow. OK, if you say so. I'm guessing that is backed up by a preponderance of case law, no?
> Here, it's the intent manifest in the documents and acts of the parties that matters, not what they thought they were doing. Suppose he had said his intent was to sell the senior guy 40 feet though Senior's deed says 50?
>
I agree with you, the only intent that matters is that which is disclosed in the deed documents. However, the deed must be read whole and entire to be construed, not just the numbers. Goldenacre had every reason in the world to believe he owned 100' His disposal of 50' and then 50' make it seem, to me at least, almost a certainty that he intended to dispose of all of his interest in the land.
Irrelevant about any claim to have only wanted to sell 40'. The point is that he had good reason to believe that his sale of 50' to Whiteacre was all that he had left to sell.
> > 4) There is no use or practical value for the strip;
>
> Sure there is. If one of these lot owners decided to buy the abutting lot and build a garage on it Mr. G. could turn a pretty penny for that strip.
>
The courts that I am aware of would not give much weight to that basis.
> > 9) Then there is the law:
> > a) Senior gets their property up to the newly negotiated and created boundary;
> > b) Junior gets the remainder up to the existing line, whether that be more or less.
> > c) It is inequitable for Junior to always be less, but never more.
> > d) Application of the law of boundaries is designed to resolve problems, not create them.
> > d) It is against the presumption of law.
>
> The law here would be different. Junior is gonna get the 50 feet his deed calls no matter how we slice the 5 feet. Here, a call for Junior to run to the abutter would get him the 5 feet too. In fact such calls are so common here that the absence of one tends to corroborate my take that there's a 5-foot strip. If Mr. G had owned 400 feet, very explicitly sold the East 50 feet to A, the West 50 feet to B, are we saying that B would in fact get the entire remainder -- 350 feet?
>
Well, almost certainly not. But if he owned 400 feet, then I'm doubting that he would be holding an old survey that said 100', either.
> > >>“"Generally, it will not be presumed that a party granting lands intends to retain a long narrow strip next to one of his lines; but if the courses and distances approximate closely to a line or corner of the tract owned by the grantor -- especially if the description in the deed corresponds, exactly or substantially, with the description in the title papers under which the land is held -- it will be presumed that the lines mentioned are intended to reach the corners and run with the lines of the tract." Western Mining & Manfg. Co. v. Peytona Cannel Coal Co. (syllabus), 8 W. Va. 406.” Gutha v. Roscommon County Road Commission, 296 N.W. 694, 296 Mich. 600 (MI 03/11/1941)
>
> I'll have to look this up -- it does tend to refute my argument. Not sure it would hold much water outside of W. Va.
> >
That is a pretty common legal principle that is found in numerous states. And it runs directly counter to your argument.
> > Landowners don't create gaps, they intentionally create boundaries and don't intentionally retain ownership of worthless strips of land that they are unaware of.
> >
>
> Makes sense of course but the courts and attorneys in my state take a dim view of such presumptions.
>
Like I said, I don't know Maine law. I will say that in the absence of legal precedents within a particular jurisdiction, a court will begin to search for precedents with like circumstances in other jurisdictions.
Enjoy your brunch.
Stephen
Haven't you heard of the Common Law ingress-egress easement for fierce hunter cats which is 5' wide?
Here's another question...In Los Angeles County
These kind of questions do provoke great conversation. I would say to the young bucks out there pay very very close attention to senior/junior rights or you might lose your shirt. Research is the key .
Don Wilson usefully summarized some of the pertinent cases in a July 2007 article in Professional Surveyor:
"The intent is the cardinal rule for interpretation (First Hartford Corp. v. Kennebec Water District, 490 A.2d 1209 Me., 1985), and it is the terms of the instrument itself which manifests the intent [emphasis added] (Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387 Texas, 1982). The court will attempt to ascertain and declare not what the grantor meant to say but only the meaning of what the grantor did say [emphasis added] (Holloways' Unknown Heirs v. Whatley, 104 S.W.2d 646 Texas, 1937). The intent of the grantor as spelled out in the deed itself is what must be interpreted, not the grantor's intent in general, or even what he may have intended [emphasis added] (Wilson v. DeGenaro, 415 A.2d 1334; 36 Conn.Sup. 200 1979)."
As to Maine case law, I would add:
"In construing a grant, the intent of the parties is ascertained by giving effect to all the words of the grant, but the intent of the parties cannot be permitted to overcome the express language of the grant [emphasis added] properly construed."
--Whitmore v. Brown, 61 A. 985, 10 Me. 410 (1905)
The real world has been mentioned. In the real world 5 feet on a block of 50-foot lots matters, and the original grantor or his heirs either are or aren't around. If they are, get them to sign off; if they're not, I don't think it's at all clear that there was no intent to retain the strip. I do not see an explicit intent to convey it. If it's truly "worthless," no one will care if I exclude it from my survey.
Cee Gee
I don't think these are very good citations to back up your side.
> "The intent is the cardinal rule for interpretation (First Hartford Corp. v. Kennebec Water District, 490 A.2d 1209 Me., 1985),"
Right, but intent is just that. It isn't necessarily exactly what the numbers say. It is what is meant by what the numbers exactly say.
>"and it is the terms of the instrument itself which manifests the intent(Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387 Texas, 1982)"
Agreed.
>"The court will attempt to ascertain and declare not what the grantor meant to say but only the meaning of what the grantor did say (Holloways' Unknown Heirs v. Whatley, 104 S.W.2d 646 Texas, 1937). "
Yes, the meaning of what the grantor did say. He said 50' and it is reasonable to assume that he meant all of the remainder of what I own.
>"The intent of the grantor as spelled out in the deed itself is what must be interpreted, not the grantor's intent in general, or even what he may have intended (Wilson v. DeGenaro, 415 A.2d 1334; 36 Conn.Sup. 200 1979)."
You see, the words are interpreted, not blindly followed in robot fashion.
>
> As to Maine case law, I would add:
>
> "In construing a grant, the intent of the parties is ascertained by giving effect to all the words of the grant, but the intent of the parties cannot be permitted to overcome the express language of the grant [emphasis added] properly construed."
>
> --Whitmore v. Brown, 61 A. 985, 10 Me. 410 (1905)
OK, that's a good cite for backing up your position, but it is also somewhat self-contradictory. So which is it, the intent or the express language of the grant? That cite seems to indicate first one and then the other.
There is the additional issue of the courts generally given preferential treatment of interpretations to the grantee, but really, I see no need to go there. I just see classic Jr / Sr rights.
Stephen
You misunderstand Stephen. What I was trying to point out is that Goldenacre has not been paying taxes on any of the land he used to own. Whiteacre has. And I agree with the gentleman that said Goldenacre thought he sold it all, so therefore the remainder belongs to Whiteacre. Sorry for the confusion. Can you see what I was saying now? Goldenacre thought he sold it all. Hasn't been paying taxes on any of it. How would he still even have claim to it, especially now that the statutory period has long expired. I was trying to point out what the solution would be if the supplementary (adverse possession) issues were not brought into play (if the requirements for adverse possession were NOT met), and what the solution would be if they did apply. But I'll say it again. This is a prime example of why you should never assume your property is EXACTLY what is supposed to be. All it would take is slipping in the word HALF "East half" "West half" in the first place to prevent these issues. Have a nice day.
An exception type description for the second conveyance out would work to make intent crystal clear too.
e.g. All of Lot X excepting therefrom the West 50' granted to Blackacre in Book XX, Page YY, official records of said county.
Stephen:
I do hear you, I guess I just don't agree -- specifically, that "He said 50' and it is reasonable to assume that he meant all of the remainder of what I own." Junior did get the 50 feet and I don't see anything to justify a leap from that to "all of the remainder of what I own," which, in this case, is something more. The preponderance of the court cases I've seen indicate precisely that exact a reading of the deed language, "robotic" though it admittedly is. As I've said, there are rational reasons why a grantor might want to retain a 5 foot strip.
Certainly almost any additional language would lean the reading the other way -- an adjoiner call, or the "half" language that Naomi has mentioned. As would a fence, etc. But they seem absent from this fact set.
I don't have the entire Whitmore case here. I'll try to hunt it down this week.
Agreed.
Once again, in Ky. I would hope it would say in the 2nd deed "being the remainder of the property conveyed to x by y, clearing up any gaps.
Here's another question...In Los Angeles County
I agree. Around CT its very difficult sometimes to tell if a pin is the original corner or just a piece of rebar.
Most maps that are recorded make no mention that pins were set, let alone the type of pin, size, etc....
How does one know they in fact have found the original corner?