Junior/Senior Rights

> thence westerly 127' to a stake and stones, this being the corner of A & B Smith, thence..

From that, I would say that the stake and stones are the original call and the monument you would be looking for. What if A & B Smith's deed ended up not calling to that stake and stones? If it does, those would be the same call, and it would hold as senior. But if not, I would suggest that their (A & B Smith's) deed couldn't be senior. (that is my first gut reaction)

I agree that the monument holds, issue is that 1) there are no stake and stones out there, just pipes set by who knows, and 2) there are monuments missing and not enough land to go around.

Thanks for the input.

I would probably give the Smith deed seniority. It deed you're retracing certainly shows an intent to give the other one seniority. Just so the other deed "calls" to a stake with stones as well.

Kinda smells like a simultaneous land division.

While the execution and recording dates are clear, so is the language in the Deed. Overturning the obvious written intent of the owners due to some perceived technical fault would be a mistake. The line called for is what I would hold...

Agreed, but of course the abutters deed calls out my clients predecessor in title as abutters in similar fashion.

It does have that particular smell about it, however there are conveyances out of the parent ranging from 1941-1959.

Simultaneous

> Kinda smells like a simultaneous land division.

That's how I'd view it. At least at first glance.

A date on a conveyance can be a powerful argument for senior rights. However, In my opinion, ALL property rights that are subject to actions by tenants or evidence in the field probably need to "ripen" to their hierarchy. Recording dates are but one bit of evidence. Any boundary may have been established before it was recorded.

Unless there is evidence that Smith's boundary was established long before the junior, or a blunder in distances exist, I believe the conditions appear to be a simultaneous conveyance.

Is New Hampshire a Race State? In some states, seniority is established by the order that the documents are recorded. The call of the adjoiner may indicate the intent of a simultaneous conveyance. However, the information given does not definitely establish if staking the Senior deed or staking based on ratio and proportion is appropriate. Of course either approach without taking into account evidence of possession, may also be a problem. On similar projects, I have contacted each owner to determine their understanding of the line in question, tied in evidence of possession, made preliminary computations to determine what fits the possession lines and property evidence found, confer with local surveyors who are familiar with the area,thoroughly research Subject and Adjoining properties, and advised my Client to execute Boundary Line Agreements with his neighbours. In the end, you just can't make chicken salad out of chicken ____. Good luck with this mess. Maybe the next surveyor will thank you one day.

Simultaneous

You have quite a unique situation on your hands, there. Is NH a race, notice, or race-notice state? The suggestion of simultaneous conveyance is intriguing, but absent a plan or a legal precedent addressing this specific set of circumstances, I would lean more towards the conveyance dates indicating senior rights. You might want to consult with Don Wilson on this one. Heck, this example may even show up in one of his seminars, if you do.

I am looking at the intent expressed in the original deed that created the (first) parcel. In this case, it sounds like if the two deed descriptions mathematically overlap, the "first" description is dictating that the difference goes to the second one by virtue of the call.

The fact that the first deed is making this call, is a senior call to anything the junior deed says....right?

(on the other hand, of course, at the writing of the first deed, the thing it's calling to doesn't legally exist. I know that's the dichotomy.)

It would be good to see a legal opinion on this issue.

By statute NH is a notice state, but race-notice by case law.

I appreciate all the comments, I am still working on the job and will likely uncover more evidence moving forward.

The senior rights would be per your state, record or survey date or other.

The call for an adjoiner does not necessarily indicate senior property.

All the surveys could have been in place or occupation was already made at the time the description of adjoining owner would indicate a common boundary with no overlaps or gaps.

I've always dreaded the call for "stake" as monument. It can mean any object near enough to pick up and drive or lay in place for the corner.

Around here, rocks either sink into the ground, be grown over by roots and such or were removed by farmers. Diligent surveyors drove an iron object under them or among them or in their place long ago.

😉

"Question is this, do abutters called out prior to obtaining title have any senior rights?"

No. This just shows who the grantor was planning on selling another lot to. But deeds supersede even written contracts for sale. Notice doesn't work because if you searched it at the time there would be no senior parcel established. Race could be argued if Smith filed first, but then you counter with Smith did have notice.

Either way, my bet is the lines are there without the last resort rules. You just have to accumulate the evidence of where they were put.

Consider It Simultaneous

From the calls it appears that it was laid out, at least on paper and divided as the purchasers met obligations of money or other.

If the courses and distances all agree that confirms the simultaneous intent. Junior senior rights usually differ by years and surveyors and descriptions.

What you have to figure out is did the monument setter treat it as simultaneous or junior/senior. and follow the footsteps.

Paul in PA

Consider It Simultaneous

I have come across similar calls like this at times and have formed an opinion of sorts. Currently, most people file a real estate contract with the county Auditor. I have found instances wherein the contract was on a sheet of notebook paper and no conveyance given until the "note" was paid off. Wouldn't this be one of the items many surveyors place the statement on their surveys of "Makes no warrantees as to matters of unwritten title, estoppel.......". I've had clients produce slips of paper with complete easements or agreements stated on them and signed by both parties which created an intent, or Quit Claim Deeds from persons not connected with a parcel. In an interview with the heirs, I was told that Grandpa borrowed some money from an friend using part of his property as collateral, and didn't record anything other than the QCD when he paid it off. The point I'm making is if the deed is calling for a line which later becomes a line by deed, and no recorded document is found making it senior, how did it become named without some agreement or contract which wasn't recorded? The grantor knew where he wanted the ownership to stop, correct?

Then you have the competing doctrine. The stone bound called for was in place. The courts have held owners should know about monuments, especially those called for. Where is the monument to be restored? Where it existed previously of course. Smack dab on the corner of the property called for....

> I agree that the monument holds, issue is that 1) there are no stake and stones out there, just pipes set by who knows, and 2) there are monuments missing and not enough land to go around.
>
> Thanks for the input.

How do the pipes check with either deed? Or do they agree with nothing? They may represent the location of the original monument. Then again, they may not.