Brewer v. Schammerhorn, 332 P. 2d 526 - Kan: Supreme Court 1958
https://scholar.google.com/scholar_case?case=521839776546185131&q=183+Kan+739&hl=en&as_sdt=2006
Quarter Section is 163.7 acres (I decline to state area to five places as in the opinion). First the north 80 acres is sold and "precisely" marked out on the ground by the County Surveyor. Then the south half containing [80] acres, more or less is sold.
Kansas Supreme Court rules second deed conveyed all of the grantor's remaining interests construing the grant against the grantor and for other reasons. The grantor cannot later claim there is an approximate 28' wide 1 acre parcel between the two Deeds.
That's called wheat land. Acre after acre of nothing but wheat, year after year. Sedgwick County is home to Wichita, but this is the extreme southwest corner of the county, quite remote from the big city. Rougher areas are pasture land commonly only used during periods in the fall and winter when the young wheat can also be grazed without damaging it.
The 1868 GLO map suggests either superior or shoddy survey work in the area. North-south lines generally list no distances because everyone knows they were laid out at a perfect 80.00 chains. East-west lines that should normally vary from that are listed as being 80.00 or something like 79.96. Too precise for me to believe. Even the south line of Section 31 is labeled with the south line of Government Lot 4 being 39.96 chains. The north line of Lot 1 is 39.80. Fiction writers were involved, especially when we learn that the southeast quarter is more than 3 acres too big, based on a nearly 30 foot excess north-south.
An 1882 map of the subject township (also known as Erie Township) simply lists standard aliquot figures. The southeast quarter shows 160 acres.
A 1905 map of Erie Township may be viewed at www.kansasmemory.org/item/209421/page/31
The 1905 lists Schammerhorn and McKenna as the two owners, with each having a perfect 80 acres. It also shows that the Atchison, Topeka and Santa Fe Railroad now slices across the south half of the southeast quarter owned by McKenna. His house is shown near the southeast section corner. Note that some properties cut by the railroad have acreages reduced by six acres and others show no change. Odd. About three miles to the east is the big city of Anness. Hope it wasn't pronounced with a long "A" sound.
The current GE view shows no improvements on either property and nearly all tillable ground planted to winter wheat. The McKenna homestead has disappeared. But then, so has the big city of Anness a few miles to the east. Those unfamiliar with rural parts of Kansas may not recognize those apparently white lines to actually be crushed limestone county roads following the section lines on all sides of the section, and it's neighbors
I got the cite from our Supreme Court Case majority opinion in Bryant v. Blevins, 9 Cal.4th 47, 58 (1994) which involved a 10.9 acre subdivision lot divided into the west half and east half. There is a fence about 30' on average too far west (of course). Apparently Blevins used Brewer in one of their briefs. They used it as authority that half does not necessarily equal exactly half by area:
Kansas is now "emnating" places ;-). What can I say, Justice George was a Pete Wilson appointee:
We are aware of certain judicial authority, emanating from other jurisdictions, supporting the proposition that a conveyance of the ÛÏwest halfÛ and ÛÏeast halfÛ of real property does not necessarily signify that a mathematically equal division has been created, and that therefore such terminology may create an ÛÏuncertaintyÛ as to the location of the common boundary of the parcels. Yet these decisions are patently distinguishable from the present case. (See Brewer v. Schammerhorn (1958) 183 Kan. 739, 332 P.2d 526, 528 [rejecting an equal mathematical division of 163.69835 acres, where one parcel was described as the ÛÏsouth halfÛ but the previously deeded north parcel was referred to not as the ÛÏnorth half,Û but as ÛÏthe North 80 acres precisely Û]; People v. Hall (1904) 43 Misc. 117, 88 N.Y.S. 276, 279 [ÛÏThe words Û÷east halfÛª and Û÷west halfÛª in a deed, while naturally importing equal division, may lose that effect when it appears that at the time some fixed line or known boundary or monument divides the premises somewhere near the center....Û (Italics added.) ].) In contrast to the parties in the cited decisions, defendants in the present case failed to present any evidence *59 suggesting that, at the time Lot 57 was subdivided (or at any point thereafter), anything other than an equal division was intended. To the contrary, the uncontroverted testimony of plaintiffs' surveyor was that, in view of the general, unqualified language set forth in the legal descriptions of the properties, the subdivision of the original lot created ÛÏwestÛ and ÛÏeastÛ halves of equal area.
Bryant is full of weird commentary by Justice George, like somehow computers and technology make the old problem of hard-to-find monuments no longer a problem.
How many times has a surveyor had to explain that half and half does not necessarily mean identically matching areas?
I don't believe I've ever had an east/west half or north/south half division of an aliquot part have equal areas. There is always enough difference in relative bearings to produce area differences. In one case, the west line of a quarter section was nearly 300 feet short of the standard 2640 while the east line was about 50 feet longer than 2640. The difference in area of the west half compared to the east half was very noticeable.
Texas has rules for dividing Headrights that when dividing one in half, the monument falls at one half the distance between the ends of the boundary.
That prevents any confusion.
The same rules do not apply for division of the individual tracts inside of a Headright.
For these senior rights, intent, calls for distance and acreage fall into place depending upon the four corner rule.
0.02
The disputed area was carried out to six places past the decimal as it was half of a number carried out to five places.
