I just hate that when it happens, Two surveys obviously coming off of different corners that lead to a percieved gap or overlap where one was never intended.
> I just hate that when it happens, Two surveys obviously coming off of different corners that lead to a percieved gap or overlap where one was never intended.
Same old story... goes something like this, "we don't need the whole place surveyed... I just need this lot cut out over here." gap here, gore there, lawsuit down the road.
So the real issue is the access easement (running north-south in roughly the middle of the south parcel) doesn't touch the north parcel on paper.
Even if there is a gap and the original owner owns the gap, he must've been aware of the access to the parcel he sold. Therefore it would seem to me at a minimum the north parcel owner has an implied easement across the gap. Trying to block access to the north parcel by the mistake caused by the original owner as grantor (or his agent the land surveyor) probably won't fly.
Would-Be Survey "Heroes"...
Yes, it's perfectly natural. He intended the 15 foot easement in order to drive a trailer full of bicycles up to the 2 foot strip. From there, he and his buddies bicycle back and forth, then reload the trailer, back out, and go home.
The Judge is going to find against your client. Then the Judge is going to order your client to pay all court costs and attorney fees (assuming he gave a warranty deed for the north parcel).
THE FIX
Have your client sell the square footage in the gap to the other dude. Have the surveyor of the 2000 survey of the North parcel fix his screw up for free and provide a correct survey and correct legal description and a correction deed for recording. Your client can also require that the surveyor pay for your services in checking his work to make sure it takes care of the situation. If the surveyor does not want to do that, threaten him with a lawsuit and turn him/her in to the Board for disciplinary action.
This will get the end result that needs to be done. The dude that is buying the North parcel has not paid for that land yet, so it is fair and he gets the property he wants and the mess gets cleaned up. Your client gets some money out of it so his dignity is intact. The surveyor gets what he/she deserves for messing it up in the first place.
I hate it when surveyors mess up such a straight forward job like this. Makes us all look like idiots!
THE FIX
This assumes, of course, that the parties are interested in a fix.
They may be more interested in beating each other up legally.
> I wouldn't want to make any assumptions ...
That's why we are given "presumptions" of law. We don't have to (and should never) make any "assumptions." HighCountry is right, though. Let's see the parent description, and the two original descriptions which conveyed the properties. Do the numbers really create a "gap"? I'd also like to see if the assessor has a parcel id number and tax valuation assigned to this supposed "gap." I'd also like to see the "client's" receipts for the payment of taxes assessed on this piece.
>>“It has been held frequently by this court that there is a presumption of law against a grantor retaining a long, narrow strip of land next to one of his outside lines, when the description of the land granted approximates the description under which he holds. “Generally, in the absence of facts or circumstances explanatory, it will not be presumed that a party granting land intends to retain a long, narrow strip next to one of his lines; but if the courses and distances approximate closely to a line or corner of the tract owned by the grantor — especially if the description in the deed corresponds, exactly or substantially, with the description in the title papers under which the land is held — it will be presumed that the lines mentioned are intended to reach the corners and run with the lines of the tract ...”” United Fuel Gas Co. v. Townsend, Supreme Court of Appeals of W. Virginia, 1927, 139 S.E. 856, quoting Western Co. v. Peytona Co., 8 W. Va. 406,418
>Inferring intent of the parties when the written conveyance does not call for the neighbors line may be hard to justify.
An "inference" is also not necessary. "Presumptions" are the law, unless they can be properly rebutted by the evidence. The lack of a "call" to an existing boundary is not absolutely necessary to prove contiguity. Contiguity is a presumption of law.
The "client" is playing with a double-edged sword here. If they are unsuccessful in overcoming the presumption of law by proving the "gap" was intentionally created and retained, they may be on the hook to pay the legal fees for both parties when they have conveyed the parcels by warranty deed and have promised to defend the very titles that they are now challenging. I've seen that happen before.
>Was the gap left because the grantor wanted to maintain access to the back adjoining parcel?
I doubt that a 1.29' x 5.17' "gap" has any particular intention of use for any type of "access." That fat-bird won't get off the ground even if it could fly sideways down the "gap." The "client" likely isn't even able to show that they've maintained possession of the supposed "gap."
>>"The possession of real property carries with it the presumption of ownership, and it is the duty of those purchasing such property from others than those in possession to ascertain the extent of their claims; and the open actual possession of such property gives notice to the world of just such interest as the possessor actually has therein." Tittle v. Robberson, 143 Okl. 97, 287 P. 1011.
Like Don said: "How nice that we actually, for once, know the grantor’s true intent."
Unfortunately, any statement of the client which is contrary to the record is inadmissible. The expressed words of the conveyance and the circumstances surrounding the conveyances is what will matter. Here, we simply have a parent parcel which has been sequentially divided. The senior deed created the boundary, and the junior deed is "presumed" to extend to that boundary "more or less." In order for the "client" to have retained any such "gap," there must be an expressed intent to do so. The fact that a surveyor can invent some "gap" by performing some bearing rotation (apparent from the depiction of the west boundary) and some mathematical gymnastics, doesn't prove a "gap" exists. The fact that the second surveyor disregarded the location of the existent boundary as monumented on the ground and chose to create a supposed "gap" by setting their "alternate" monuments, doesn't infer any intent upon the "client" to retain said "gap."
What does the second surveyor have to say? Did the "client" really instruct that surveyor to set two markers 1.29 feet and 5.17 feet away from the existing markers so that he could retain the ownership of the "gap" created? Will the second surveyor back up the "client's" story? I highly doubt it. First glance at the "map" seems to tell the story quite plainly. The second surveyor showed no regard for the rules of retracement, rejected the boundary as surveyed and established on the ground, and created a "gap" in direct conflict with standing legal presumptions.
>My client did ask an interesting question though, "How close together do pieces of property have to be before someone thinks they touch?" I told him to ask his attorney, I didn't have an answer.
Therein lies the real problem. Surveyors should have the "answer," not attorneys. It's the surveyor who's created a "gap," not the "client." It seems that the surveyors are more comfortable with their own measurements than they are with the law of boundaries. The answer to the client's question is simple: If you are ever wondering "how close is close enough," or "how far is too far," then you are looking at the wrong evidence and asking a question that the court has never ventured to answer. Not because the answer is fluid, but because the question is illogical and incomprehensible in light of land boundary law.
It's not about the math, it's not about the monuments, and it's not about what surveyors did or didn't do. It's about landowners and their intent when they create a boundary. Does anyone here have even a remote thought that this "client" could have possibly intended to create a second boundary 1.29' x 5.17' from an existing boundary (we haven't even discussed the west boundary "gap")? This has a surveyor's mistake written all over it; not a "client's" intent. Either the first surveyor was mistaken, or the second surveyor was mistaken. Neither is a reason for the third surveyor to perpetuate the mistake.
JBS
First let me agree that the client's statement of intent to create this gap are not credible. But the first thing I would point out is that this "intent" is made moot because its existence would land lock the North parcel (unless it has access other than through the access easement). One cannot convey a parcel without also conveying that which is necessary for the enjoyment and use of said parcel...hence no intent for this gap could have lawfully existed and claims to the contrary should be dismissed out of hand.
PC's client would almost certainly lose (nothing is for sure when you get in front of a judge, particularly when the parties are well connected) in court, but then I don't see this as even being the real issue. What the law is or isn't or what a judge would rule are not the primary factors in this kind of situation. What is important is how much delay and cost can PC's client impose upon the buyer of the North parcel...and what is it worth to the buyer to have this "issue" go away. Several have pointed out that litigation would be expensive, perhaps running into several tens of thousands of dollars given the resources of the parties.
Some have suggested that the loser would be required to pay the expenses of the winner, I don't think I would place any great confidence in this assumption. Once again the parties are very well connected and have deep pockets and all that is necessary to avoid being saddled with your opponents expenses is a decent argument that there was a real issue of law to be settled. Given the gap is pinned on the ground and has been shown on multiple surveys, this should be no great leap for any decent attorney...and I think we can safely assume this client has compentent legal counsel.
PC correctly identifies the personal rivalry/animosity as the primary motivation. Given the facts as they have been related, I would say that PC's client wins the real issue here no matter what the buyer of the North parcel opts to do. Either the buyer pays PC's client for the gap, which is a win...or he expends even more money "lawyering up" and pushing the legal case only to see the client laughing about how he "stuck it to" the buyer. I see no scenario here where the buyer does not obtain title to the gap, but I also see no scenario where he does so without signficant cost.
Bob
I Believe North Will Prevail
All I will say is, if I had been hired to survey the north parcel, it would have been discussed with the client BEFORE I set any mons. That is, if I could not find a rational method of reconciling the 2 parcel descriptions. I have seen similar situations where just one transposition or typo of a deed number solves such issues.
Just some analysis with speculative rotations can point right to the obvious and apparent error in title to be explained and corrected.
But this situation seems to be a need for conflict between the owners, so facts won't stop the contest. If in fact there is no gap or if in fact there is a gap, the egos will continue their best at oneupmanship.
Once the north surveyor monumented the gap, the cat is out of the bag. Had he been able to harmonize his survey with the prior parcel, the litigants would have had to find other matters to fight over.
Strip and Gore Doctrine
The strip and gore doctrine which is primarily associated with Texas provides that unless the grantor explicitly reserves with plain and specific language in the deed a fee in a narrow strip of land adjoining the conveyed land, it is presumed that a grantor has no intention of reserving a fee in a narrow, adjoining strip of land when the strip ceases to be of use by virtue of the conveyance.
http://definitions.uslegal.com/s/strip-and-gore-doctrine/
https://surveyorconnect.com/index.php?mode=thread&id=79500#p79565
Y'all are missing the point here....
Stubborn clients with money = Lawsuits...period
You cant reason with an unreasonable person.
Although, based on the original post...I think North guy wins..
Y'all are missing the point here....
> Stubborn clients with money = Lawsuits...period
> You cant reason with an unreasonable person.
>
> Although, based on the original post...I think North guy wins..
Agreed...if they are determined to fight, and you like pain, charge him an exorbitant sum. After all it seems this is a pecker measuring contest more than a land measuring contest.
Rick
Am I reading this correct that your client does not own either the north or south parcels? As the north parcel was created from the south parcel, no gap can exist. Any survey I would prepare and my professional opinion would not support this client, so I doubt he would want me in court and I would definitely tell him that.
completely agree JBS, it appears likely someone took a reference bearing and distance call and just laid out one of these parcels without any regard for existing monumentation or occupation.
I would like to know why your client intended to leave a gap. I have seen in the area where I work landowner when subdividing their property create “spite strips”. The intent of a spite strip is usually to deny the adjacent owner access to a road. I saw one created in one case because the contract purchaser refused to help pay for the cost of a recently constructed fence. So the “granter” created a 5-foot strip on the other side of the fence. When the new purchaser put horses on his side of the fence, the granter sued for trespass and made him build his own fence 5 feet away from the existing one. I always thought it was a case of too much ego combined with too much disposable income. I will say that in each case that I am aware of the surveyor clearly indicated on the plat creating the parcel that there was a gap between the two. Is the surveyor who created the northern parcel still around to testify whether he (or she) knew that the survey was leaving a gap? The fact that there are existing monuments for each which supports the surveys kind of implies that it was intentional. How else could it happen? Should be an interesting case that will leave a lot of people scratching their heads.
