The differences of opinion help keep us in business.
Hack
Did you go back and look in the ditch?
Could have been a POL
Just saying
I frequently run into a self-contradictory description that will say, "thence with the creek ..... to an 18" sycamore on the west bank". You can't run with the creek and end up on the bank without leaving the creek but there it is in black and white. Good post.
I think if we are going to nitpick down to the last technical detail then there is a conflict but if we step back and read it from a broader view we can discern the true meaning.
addendum: "along the line of a ditch " did not say it was the centerline or thalweg of the stream/ditch. This is referring to the direction not the placement. Therefore the IP was most likely the intent for the position of the line, not the ditch. Which is why I did not include it originally. More of a subconscious train of thought or leap of logic which has plagued me most of my life.
How does that fit the adjoining property? Which is still the primary control.
As evidenced from the responses to this post, there is more than one reasonable interpretation of the location of the boundary line(s), therefore we have ambiguities. How do we solve ambiguities - we gather more evidence to discover the intent of the parties, and we are allowed to leave the deed to do so.
I see this as basic Deed construction. You use the elements that make sense and disregard the elements that don't make sense. In this case you start on an iron called for by the Deed then go to another iron which is ten feet short of the called for distance on the bank of the ditch. If you run the additional 10' you are in the ditch which is a called for monument. It makes sense to set the iron on the bank of the ditch where it is more useful to the property owner than in the center of the ditch. It is possible to harmonize all of the evidence to arrive at the best opinion of the boundary line.
Professionals have to be able to reason and be persuasive.
I agree, however, we are still missing a very important part of the puzzle - where the "Jane Smith line" is located, in fact, it very well may be the controlling call.
Several people asked what choice I made on this problem. The way I see it (and the reason I posted the question) is that we have 3 different possible definitions for what should be 1 line. There are lots of questions to be answered but those all boil down to adding evidence to one of the possible options.
Closure on the description? Not good but not 10 feet either. Misclosure by 3.5 feet. The final distance falls short of the beginning point. Hummm. Evidence that adding distance to the line to get the "corner" into the ditch may be reasonable.
What about SR rights? Turns out the neighbors deed has exactly the same call as the subject deed. My conclusion after looking at the documents is that the parcel I am surveying has SR rights because it became a separate tract before the rest of the estate was divided.
Last time I checked the list of priority of elements the order was:
1.Rights of Possession (aka unwritten rights)
2.Senior Rights
3.Intent of the Instrument
4.Call for an Adjoiner
5.Call for Monuments
a.Natural Monuments
b.Artificial Monuments
6.Direction*
7.Distance*
8.Area
The parties to the documents when this description was originally created are not available. Can't ask them about the intent.
The Adjoiner and this call are identical. (Kinda figuring the neighbors deed is what I can a Frankenstein -- aka put together with spare parts).
Obviously the iron stake is an artificial monument. But what about the ditch? Artificial or natural? Does it change the ultimate answer which category we place the ditch?
Since direction and distance are lesser elements to the monuments we don't get to consider them at all? Right?
Not exactly. At least, for me I count those as additional evidence that might help point in one direction or another. I'm not crazy about adding 10 feet to the line; but, it also isn't the end of the world because boundary retracement is not an exercise in pure math.
What about area? There is a reason it is at the bottom of the list (just above coordinates with not meta data in my book).
My choice? I added enough distance to the line to get to the ditch and I treated the iron as a point on the line.
Reasonable people can disagree over the exact details. My hope is that those same reasonable people will all reject the notion of blindly holding the calls and ignoring the physical evidence. We all do reject staking coordinates for the sake of mathematical harmony? Right?
Larry P
:good:
Are you certain that the ditch is in the same location as it was when the parcel was created? I suppose that if you are certain that this is the rod called for in the description and you are certain it is where it was originally set, that answers that question.
So thinking like as if I were the party chief sent to set the irons... would I have set that rod down in the flowline of the ditch, or would I have set an offset to ensure that it doesn't get knocked out by debris washing down the ditch when it carries water, or buried by a bunch of muck over the years as the ditch slowly fills with whatever sediments come down it?
Thinking that it might be an offset that the field crew neglected to tell the LS about, does that make it fit any better with the two courses?
And thinking like a landowner, I'm told that my property line is the ditch and that a surveyor set iron rods at all the corners. As an average landowner, I'd look for the irons, but if I don't find those along the ditch, it's not such a big deal. I may not know where all the irons are precisely, but I can certainly see and identify the ditch.
If the offset theory doesn't pan out, the ditch although manmade, qualifies as a natural monument and is called as a boundary, not merely a descriptive term to help identify one particular corner monument. If I had nothing else to go on, I'd hold the ditch.
EDIT: Sheesh. If I would have just scrolled to the bottom I wouldn't have had to post. Good conclusion Larry.
In my previous post I said:
"If you can change one bearing or one distance and get all monuments to agree reasonable well, I would hold them all, on the assumption that you have found the blunder..."
If I understand correctly, in a sense you have applied that part of my thinking to arrive at your conclusion. You are calling one thing (the monument) wrong. Any other solution is calling at least 2 things (the ditch and the distance) wrong. Since it's not clear what is the most likely discrepancy, yours is the most likely correct solution.
One thing you didn't mention, that I would do is look at the deed's closure. If it is parallel with one line, the distance may have a blunder, if perpendicular, the bearing may be the blunder. Not likely to help, but worth a try.
"...to an existing iron rod, a corner; thence North 28-00-00 West 913.21 feet along the line of a ditch and the Jane Smith line to an existing iron rod, a corner; ...."
Where did you find the first mentioned existing iron rod; the center of the ditch or 10 feet off the center?
Unwritten rights and senior rights are okay on some lists, but they should not be on a list that has to do with rules of construction to determine the meaning of, or most likely intention of, conflicting elements of a description. First determine the deed line, then determine if it is trumped by senior rights or unwritten rights.
Whether the ditch is a natural or artificial monument is probably less important than what it is used for and why one in that area might convey to the center or the side. In some jurisdictions a call to a ditch has been held to go to the side rather than the center; an exception to the general rule of a call to or along a monument going to the center.
The call to Jane Smith line is a call to a record monument and is less reliable than a call to a natural or artificial monument, and is shown so on any correct list of rules of construction for conflicting deed elements.
Along the line of a ditch and the Jane Smith line; reads like a pointer to something else rather than marrying the line to one particular monument along its length. This is corroborated by the further explanation that the line ends at an existing rod, further particularly described as the corner.
The only conflict of clear language is if you reject the existing iron as the corner. If you use the existing iron as the corner, the rest of the calls still are true. It is only the math that does not work, and you admit the math works better by holding the existing iron as the corner.
I think Jud had it correct. I agree there is room for disagreement, but I think Jud and I are winning the court battle. Oops, meant Larry Best, don't reject a clear call in the description in favor of an ambigous one; but Jud is correct too, I would like more information.