How to Apportion

Proration and senior rights are rules of last resort. They only come into play if you can't prove original location. So, you prorate1-2 and 3-7 on the east line, given no other evidence, which of course there probably is in real life. Think of it this way; why reject #4 instead of #2 or #5? The question claims they are all original, so what gives one more weight than another? Nothing, unless the question says something more. There may have been a time when the majority of jurisdictions said 1-7, but I don't think that's the case anymore (might be, but not in NY). Interested to hear other opinions. I should add that TX law is usually very close to NY. Is this national part or state specific?

Junior/senior rights do not play into the interior of a platted subdivision. Subdivisions are by definition simultaneous conveyances and the assumption is that a found original called for monument holds. At least that was the thinking in several decades ago when I was a young surveying student. That being the case you would prorate between the found original monuments. Think of it as the east line of section 8 with a lost east one-quarter corner and found NE & SE corners. You would not extend your proration past the found corners because the found original corner is paramount. I don't think this is state specific but rather common law.

Stahlman v. Riordan, 227 S.W. 726, 728 (1921)

The principle upon which this case was decided has in some cases been expressed as follows: ‰ÛÏOn a line of the same survey between remote corners, the whole length of which line is found to be variant from the length called for, in re-establishing lost intermediate monuments, as marking subdivisional tracts, we are not permitted to presume that the variance arose from defective survey of any part, but must conclude, in the absence of circumstances showing the contrary, that it arose from the imperfect measurement of the whole line, and distribute such variance between the several subdivisions of such line, in proportion to their respective lengths.‰Û Moreland v. Page, 2 Iowa, 139; Newcomb v. Lewis, 31 Iowa, 488; McAlpine v. Reicheneker, 27 Kan. 257; Miller v. Topeka Land Co., 44 Kan. 354, 24 Pac. 420; Quinnin v. Reimers, 46 Mich. 605, 10 N. W. 35; Brooks v. Stanley, 66 Neb. 826, 92 N. W. 1013; Jones v. Kimble, 19 Wis. 429.

In this connection see the following Texas cases: Welder v. Carroll, 29 Tex. 317; Sellers v. Reed, 46 Tex. 377; Ware v. McQuinn, 7 Tex. Civ. App. 107, 26 S. W. 126; Knippa v. Umlang, 27 S. W. 915; Austin v. Espuela Land, etc., Co., 107 S. W. 1138; Johnson v. Knippa, 127 S. W. 905.

Dave Karoly, post: 419379, member: 94 wrote: Stahlman v. Riordan, 227 S.W. 726, 728 (1921)

Yes, this was the original thinking on the matter. The grantor must obviously intended to convey lots of equal size because they were all labeled with the same frontage. But I question whether that's the prevailing view anymore. If the lots were staked out at time of sale over a number of years, then why infer the intent was to be equal instead of the intent was to sell what was staked? NY and some other states courts have made the argument that even though they are simultaneously created lots and no senior rights exist, there is no reason to infer an intent of equal frontage over and above an intent demonstrated by an actual staking of the lot and an occupation of said lot based on a view of said stakes. Problem is developers may have done the block but then sold a lot 5 years later, then another after another 10 years, then all of a sudden there's demand and new lots sold that would interfere with bargains already made if you go with the proration across the whole block thing. Houses over the line that have been there 5, 10, 20, 50 years. What is the intent, equal frontage or what was staked and bargained for in an individual transaction?
The question is not really a good one because normally there would be many more "original" pipes if in fact all the lots had been staked at time of creation (which usually isn't the case on an old subdivision).

The questions should be; you find some of the original block corners, but there are pipes and improvements on one lot and the rest is still vacant. Do you prorate using the block corners and give an opinion that the 75 year old house is over the line, or do you give an opinion that the pipes and improvements around the one developed lot indicate the intent of the parties to that transaction and represent the true boundary?

I don't see any N-S excess. Lacking any other evidence that South monument is merely a point on line. Lacking any evidence to the South of that monument it appears to be set within a public right of way and one cannot claim against the sovereign.

In any case it is a poor example to put on an exam.

Paul in PA

Duane Frymire, post: 419384, member: 110 wrote: Yes, this was the original thinking on the matter. The grantor must obviously intended to convey lots of equal size because they were all labeled with the same frontage. But I question whether that's the prevailing view anymore. If the lots were staked out at time of sale over a number of years, then why infer the intent was to be equal instead of the intent was to sell what was staked? NY and some other states courts have made the argument that even though they are simultaneously created lots and no senior rights exist, there is no reason to infer an intent of equal frontage over and above an intent demonstrated by an actual staking of the lot and an occupation of said lot based on a view of said stakes. Problem is developers may have done the block but then sold a lot 5 years later, then another after another 10 years, then all of a sudden there's demand and new lots sold that would interfere with bargains already made if you go with the proration across the whole block thing. Houses over the line that have been there 5, 10, 20, 50 years. What is the intent, equal frontage or what was staked and bargained for in an individual transaction?
The question is not really a good one because normally there would be many more "original" pipes if in fact all the lots had been staked at time of creation (which usually isn't the case on an old subdivision).

The questions should be; you find some of the original block corners, but there are pipes and improvements on one lot and the rest is still vacant. Do you prorate using the block corners and give an opinion that the 75 year old house is over the line, or do you give an opinion that the pipes and improvements around the one developed lot indicate the intent of the parties to that transaction and represent the true boundary?

I read it as saying apportion unless there is an overriding circumstance which in the O.P.'s example would be the presence of the original monument in mid block.

Maybe that's not what the court meant, though. I didn't have time to read it and through a mistake I don't have the Texas apportionment headnotes which may reveal better cases.

The Texas Court's call apportionment a rule of construction so I would think the monument rule is superior to the apportionment rule.

BrandonA, post: 419369, member: 11837 wrote: I am studying to take my exam and I am not clear on one thing regarding apportionment of a subdivision.
Given the situation below, all corners found are original, set when the subdivision was created.
Do you prorate the 1' excess on the North South line through all lots (1-7), holding only block corners or prorate only between lots 3-7? Thanks for your input.

To answer your question, whether right or wrong, I would prorate the 1 foot excess through all lots. Chances are though, on the exam the intermediate point would not be given. I agree with Paul, not a good example and it would not be on the exam; as you can see from all the discussions it has brought about.

Brandon, when you take your test, read the question and ask yourself these things:
1. What are they telling you to accept ask fact in the questions (ie. original, set when sub was created, the word "original" should be screaming out you). For the purpose of taking the test, do NOT speculate what that means in terms of what you will do in your future practice...just accept it.
2. Consider what they are trying to see you will do with those facts. Yes, calculate an answer...but I find it helpful to realize that they are more interested in HOW you will get the answer than what answer you will get.

In your example, they KNOW you will see the extra 1' N-S in the east line of Block 1. They KNOW you can handle the math quite easily. They just want to know HOW you will use that 1' in regards to an original monument. This question should be translated into the following: "In the case of a subdivision (where lots are created by simultaneous conveyance), do you move an original monument by proration?"

Good luck on your test.

Bear in mind that test-taking differs from real-life. The goal of the test is to demonstrate your knowledge of specific principles, and show at least the minimum level of competence. Focus on what the question is asking, what facts are presented for consideration, and what answer the examiners are looking for. So, yes, proportion between the original monuments for Lots 3 - 7.

BrandonA, post: 419369, member: 11837 wrote: I am studying to take my exam and I am not clear on one thing regarding apportionment of a subdivision.
Given the situation below, all corners found are original, set when the subdivision was created.
Do you prorate the 1' excess on the North South line through all lots (1-7), holding only block corners or prorate only between lots 3-7? Thanks for your input.

As others have mentioned, this is a last resort; however, I get that it's a test and you have to take certain things for granted, which other posters do not seem to understand.

You only proportion between original found, and undisturbed corners. That may mean that it skews working from block to block so look at that also.

Set up your block lines then proportion the interior corners.

Given the parameters of the question, hold all undisturbed original monuments of record and put the excess in the southern lots. The one thing that hasn't been mentioned is to put the error where it occured. That is what i believe the question is about.
In the real world you have a lot more work to do before you get out the calculator....

thebionicman, post: 419455, member: 8136 wrote: Given the parameters of the question, hold all undisturbed original monuments of record and put the excess in the southern lots. The one thing that hasn't been mentioned is to put the error where it occured. That is what i believe the question is about.
In the real world you have a lot more work to do before you get out the calculator....

Except the evidence suggests it is actually point #5 at the southern block corner that has all the error. All of the other four have less than a foot of error, while point 5 is a foot off, so it doesn't fit the error of the original work per the preponderance of the best available evidence. Point 5 may be original, but may have been disturbed; at any rate it's the only one that's suspicious as far as error budget goes. I'd be tempted to start at 4 and give them all 50 feet to the south, rejecting 5 as disturbed. But I know that's not the answer the test taker (sorry, test giver) is looking for.
Hope we've cleared this up for you Brandon:)

thebionicman, post: 419455, member: 8136 wrote: put the error where it occured

:bacon::avocado::clink::hotdog:

Boy do we as a group really know how to muddy up a simple question or what....

Given the FACTS in the question, and nothing more, assuming it is a multiple choice question, you proportion between 3 and 7, and find that answer in the A-E list. If it is an essay question, explain your answer AND your assumptions given the Facts stated. Maybe say that you assume you went back into the field to gather more evidence such as searching for every lot corner, and checking occupation. This is where essay questions can (in a way) get hard, but also (in a way) become easy. If the answer is it depends, an essay lets you explain it, as opposed to forcing you into a box.

Brandon,

You are getting a lot of different answers here, just remember you are taking the Exam in Texas for Texas, so when in doubt on the Exam, go with an answer from someone from Texas, the property laws change a lot from State to State. In Texas block corners have a lot of weight, and the public right of way always gets what is called, sometimes they get the extra as well. I would prorate between Lots 3 - 7

Scott Ellis is correct. If it is state specific exam you have to apply those laws.

Wow, he asks a simple question and everybody goes off on strange tangents. I think you got your answer, but it was pretty buried.You never proportion passed a found original. That is true everywhere that uses British common law.

It is also true that proportioning is the last resort, but with the information given in the question it is clearly appropriate.

I cant figure out what Paul is is talking about.

Duane, 1 foot may be suspicious, but I wouldn't reject a found original for 1 foot without some other evidence, and we clearly don't have that in this situation. There is no evidence that the corner wasn't originally set at 49'. An original monument 1' away from where the plat says it will be be is still an original monument.

aliquot, post: 419567, member: 2486 wrote: Wow, he asks a simple question and everybody goes off on strange tangents. I think you got your answer, but it was pretty buried.You never proportion passed a found original. That is true everywhere that uses British common law.

It is also true that proportioning is the last resort, but with the information given in the question it is clearly appropriate.

I cant figure out what Paul is is talking about.

Duane, 1 foot may be suspicious, but I wouldn't reject a found original for 1 foot without some other evidence, and we clearly don't have that in this situation. There is no evidence that the corner wasn't originally set at 49'. An original monument 1' away from where the plat says it will be be is still an original monument.

Paul is saying there is reason to ignore the out of place monument. There is no supporting evidence that this misplacement should affect any lot.

There is law that says you cannot possess against the Sovereign. The subdivision as shown could not exist without the dedication of street right of ways. By inappropriate apportioning the right of way could be reduced, which cannot happen by law. The Sovereign was granted a 50' right of way. That a monument says 49' can not override the fact that the Sovereign has Eminent Domain over that 50' feet and is not required to reacquire it or pay for it. That die was cast when the map was accepted.

"Eminent Domain" is a Sovereign right and does not just apply to mean the taking, but also the keeping.

1 foot is a mistake, not an error. A mistake can be fixed. An error would be all measurements being long or short due to misadjusted chains, that is what gets reapportioned.

Paul in PA

Once again, nobody is possessing anything against the sovereign where the original monuments establish the limits of the sovereign's right of way. Besides a dedicated street is not the same as public lands owned in fee.