I stumbled upon some case law and was wondering how you'd calculate deed and if there are certain aspects of the deed language that would sway your mind?<div>
Backstory: Smith owns the NE/4 of Section 18. Section is originally surveyed in the 1870's. Smith deeds away a portion of their section to a Timber Company in the 1910's and it reads as follows:
"Beginning at a point 20 chains East of the quarter section corner between sections 7 and 18.; thence South 10 chains, thence East 6 chains, thence South 7 chains, thence East 14 chains, more or less, to the section line between sections 17 and 18, thence North along said section line to the section corner to sections 7, 8, 17 and 18; thence West along the section line between sections 7 and 18 to the place of beginning."
In the 1950's Smith hires a Surveyor to survey the boundary described in the deed so they can harvest timber without encroaching onto the Timber Company's property. True measurement between N/4 and NE Cor of Section 18 measures 2,950.00'. The north line of Section 18 is stated as 80 chains on the original Plat from the 1870's. The Surveyor in the 1950's staked the point of beginning at 1,475' east of the N/4 by proportioning the 20 chains (1,320') between the found monuments at the N/4 and NE Cor of Section 18. The Timber Company says the point of beginning should be 1,320' east of the N/4 instead of 1,475'. Thoughts?
PS: I changed the deed a bit to see if it may change your mind on how you'd calculate it. Additionally, this is Timber Land, so I'm assuming there are no original monuments for the deeded portion of land and no signs of occupation.
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The Timber Company and the Surveyor are both wrong.
The POB should have been at 1,320'.
Whoops, typo, was meant to say 1320'. Fixed
I agree with @mulambda382. While the distance and original map might lead some to conclude that the POB was intended to be half of the quarter section and thus the distance be subject to proration, the specific language in the deed description makes no such statement and should be taken at face value.
I would be searching other deeds through time before stating an absolute answer. If one can figure out who the scrivener may have been, that would help in looking at similar deeds from the same scrivener around the same time. In those days in rural areas the banker or a rare educated attorney might be the go-to guy for everybody.
Like HC, I'm going to want to review all the adjoiner documents before fully committing myself. That said: If I had been the 1950's surveyor I would most likely have held the stated distances, and not assumed a proportionate split. If the 1950's survey left monuments that can be found today I might hold them on the basis of a practical location.
If they intended an aliquot split of the property when sold to the timber company they could have and should have stated so. Even though they used units that were typical for aliquot measurements (chains) the property was sold by a specified distance and not an aliquot portion. Without some other evidence showing otherwise, the deed expresses an intent for specific land defined by chains to be conveyed. The deed did not convey aliquot portions.
Did the surveyor also proportion all of the other calls made in the deed or only the starting point?
Does the NE1/4 have excess only on the north line or is there also excess or shortage on the east line? How can you make an argument to only proportion the starting point if you are going to make that argument to begin with?
Excellent comments.
Discussions on such real world examples are one of the great justifications for checking in regularly at RPLS.com
@lurker Great comments and I couldn't agree more!
A little tidbit from an Idaho case that is applicable to the subject. Not the only place I have seen the "four corner rule" concept, but this was on hand and easy to find.
Hash v. U.S; District of Idaho, Case CV 99-324-S-MHW (2001)
“Under Idaho law, the goal of deed interpretation is to determine and give effect to the intention of the parties…To determine the intent of the parties, Idaho follows the "four corner rule." That is, the intent of a plain and unambiguous deed must be ascertained from the deed, and parol evidence is not admissible. In the absence of ambiguity, the document must be construed in its plain, ordinary and proper sense, according to the meaning derived from the plain wording of the instrument.”
In Oregon it is written into the statute law.
Absent other information, I am holding that first surveyor's work. No one complained about it for 70 years now and the land owners all relied on it? If so, is there any doubt as to where the property line is?
Is 80 chains a mile? What is North? Does a description of, "North..., Thence East..." always form a 90 degree angle?
Edit PS
If it is all in common ownership now, do whatever the landowner wants, it is their deed that they will be selling the land on. If it isn't common ownership, then the timber company approach will create an ambiguity and question of ownership when combined with the earlier survey, right? Why would they want to create that issue?
In 1950 the "plain, ordinary and proper sense" of deed measurements in chains that added up to the given government measurement in chains meant that the surveyor had to set new monuments according to government measure. The first surveyor did that. Seems to me that our logic is no longer plain, ordinary or proper.
"Absent other information"
Per the original post: "assuming no original monuments for the deeded portion of land..."
It also does not say that there were any subsequent conveyances. So it's just Smith and the Timber Company and the Northeast Quarter of Section 18
Although, it does say the Surveyor staked a 1,475' POB, and did say the Timber Company wanted 1,330' POB.
It seems that some of our "facts" are a bit fuzzy.
Introducing new facts to an original hypothetical changes everything, every time.
As an aside, the way this hypothetical is written would make it a good candidate for a test question.
There are lots of potential red herrings, depending on the actual call of the question.
Although there is no direct question being asked, the "Thoughts?" language after the differing POBs, appears to infer the question of, which POB is correct?
Every little detail matters (or doesn't), and this is a good example of that.
The more or less call on the 14 chain leg to the section line makes 50s surveyor's approach seem questionable. If he left monuments and I could find them and it was clear that somebody relied on them for logging I might just perpetuate what he did anyways
The fact that the east distance calls in the deed total 40 chains is an indication that the deed is referring to the record 40 government chains. If that were not the case there would be no need for the last east call of 14 chains. It could simply be east to the section line with no distance recited as do the following courses. All that needs to be done to stake the deed corners is to determine the length of the the government chain and then stake as many government chains as is called for. The more or less is a call that requires the distance to be nearly 14 government chains closing on the section line. A distance more than a chain at variance to the call is an unreasonable conclusion.
Why include the more or less at all and not just say 14 chains?
It's a regional thing. Some areas would say 14 chains to the section line, others would say 14 chains more or less to the section line.
My theory as to why is that the "more or less" highlights the fact that it's a "to" call, and the distance yields.
The actual case law was Wheeler v. Fruhling, 34976. It was in 1959 and the decision was made in favor of the Timber Company. I changed some elements of the case to get more out of the discussion. The trial court found the deed in question was plain, clear, and contained no ambiguity in description, which many of you mentioned the same laws in your states going over this same precedence. I wanted to see what would change your mind from the deed to calculate it using proportional measurements that didn't have anything related to the physical evidence on the ground beyond the original Platted corners of the Section. My original thoughts were if there was an acreage calculation that matched closely utilizing proportioned measurements, then you could argue there was an ambiguity when interpreting the deeded distances that could be solved utilizing one method over the other to match the acreage stated. The other issue I had is the importance of the first call vs. the last call in a deed. Should the point of beginning hold true over any of the other calls? We use the term "more or less" in our area when qualifying our metes to a bound, and as Steinhoff mentioned, the distance would yield to the bound to the east line of Section 18. But what happens if there were no bounds to the Section line on the previous call and it just said, "thence east 14 chains, thence north 17 chains to the northeast corner of Section 18, thence west 20 chains." Would the point of commencement from the N/4 of Section 18 easterly to the point of beginning hold over the last call from the NE corner of Section 18 westerly?
Additionally, Norm brings up a good point about the government chains. I don't believe there were any other Survey's to rely upon beyond the original Plat of the Section. In 1912 it is completely reasonable that the original owners of the NE/4 of Section 18 relied on the 40 chains stated on the original Plat to decide what they wanted to sell, but I do believe that unless the intent can be corroborated by additional evidence then it should not hold over the actual stated distances in the deed.
Thank you all for your thoughts on this as I have an issue on a boundary where these types of questions relate to the decision of the placement of the dividing line between the north half and south half of a tract of land with the westerly line runs at a 45 degree angle to the property. It's a bit more convoluted than this one, but this discussion at least gives me other viewpoints on the situation.
The defendants in that case hired a bad surveyor and a bad attorney. What is going on in that area?
I wonder if the defendants tried to sue the surveyor because they had to pay damages, despite the fact their attorney botched that part of their case.
And if they did, I wonder if the surveyor prevailed because of the original attorney error?
I see you added the 14 chains in your example. The course in the court case was stated as "thence East to the section line between sections 17 and 18" with no distance given. So the real deed had no total east west distance to compare with the government survey. That changes things. The 1950 surveyor should have been looking for some sort of evidence why the POB was an odd distance of 29 chains 30 links east of the quarter corner. 20 chains is one thing, 29 chains 30 links is another.
