This disaster occurred in PLSSia, but could have happened most anywhere where the parent tract, by definition, sould have been square.
In a perfect world, a quarter section would be 2640 feet by 2640 feet. This quarter section was surveyed about 30 years ago with different results. We'll simplify and say the east line and west line distances were precisely 2640 feet or very close to that. The north line of the quarter turned out to be 33 feet shorter than standard. The south line turned out to be 31 feet longer than standard. The owner of the quarter section had the surveyor measure 1320 feet east from the southwest corner and from the northwest quarter and then draw a line connecting those points. This left a tract, that he sold off that was short on the north side and long on the south side. A metes and bounds description was used for that tract. A few years later, the remaining 2640 by 1320 was sold off to the same buyer, theoretically giving him ownership of the entire quarter section. Well, kinda......maybe.....sorta. In that deed, the west part is not described by metes and bounds. It is called "the west half of the southeast quarter of Section 14. That's not what it really was, but, apparently no one realized the difference. A few years later the owner sold off "the west half of the west half of the southeast quarter of Section 14" to his daughter and son-in-law. The son-in-law and his father then measure 660 feet west from the fence that was built along the west side of the metes and bounds tract and built a new fence. That fence is very close to being down the center of the "remainder" tract that was erroneously called an aliquot part when it really wasn't an aliquot part.
Now, it's my turn to do a survey. I'm called on to survey what was sold to the daughter and son-in-law. That makes me the bearer of bad news. Or.....should I pretend the non-aliquot is really an aliquot and split it down the center which will be very, very close to following the fence line?
A few principles that may be applicable depending on your state laws.
"The evidence of the marking, agreeing upon, and acquiescence in, the established boundary, is competent and should have been considered. "
"The fundamental principle underlying all of the rules of construction of deeds, as well as all other contractual instruments, is that the courts must seek and give effect to the intention of the parties. "
"The general rule is that monuments, natural or artificial, or lines marked on the ground, control over calls for courses and distances."
"The particular rule applicable here is that where the seller and the buyer go upon the land and there agree upon and mark the boundary between the part to be conveyed and the part to be retained by the seller, the line thus fixed controls the courses and distances set out in the deed executed to effectuate the division agreed upon. "
"...it was held that a boundary line, established by tenants in common going upon the premises and marking the dividing line and making deeds intending to divide the property along the line thus marked and agreed upon, controls over the courses and distances set out in the deeds; and that by so doing and thereafter dealing with the land with reference to the line thus established they estop themselves and their privies from thereafter claiming a different line under the calls in the deeds."
These are from an Idaho case ((Campbell v Weisbrod 245 P.2d 1052 (1952))
citing many other cases from other states.
Another case to consider is Reid v Duzet 94 P.3d 694 (2004)
They Sold What They Sold, And Had Every Right to
Your job is merely to describe it properly.
BTW, once metes and bounds is started, it is difficult to go back. The errant reference to an aliquot part did not remove the requirement for M&B.
One could have returned an aliquot description with a proper section breakdown and removal of conflicting evidence. Didn't happen and it is doubtful they will pay you to do so.
Paul in PA
If it still "All in the Family", you can explain the problem, fix it they way they wanted and be the hero?
I would follow the established boundaries on the ground. In the abcense of fraud, the best attempt to locate the parcels was done and the fences built accordingly. Don't let the words of deeds interfer with the established interpretation of them. Errors are common, fraud is not.
