You get a call to survey a tract and the client provides you with a copy of his deed.?ÿ Following some research on your part, going back say 75 years, you find the description has been consistent in deeds and mortgages.
The deed says, "All that part of (larger tract) now under fence on the south side of a (non-navigable) creek."?ÿ You perform the survey and both you and the client are happy.
Time passes.?ÿ You get a call to do another survey.?ÿ Turns out it is in the same area as the survey above.?ÿ You search for the deed and track it back.?ÿ It reads, "all lands in (same larger tract) being north of (same non-navigable) creek."?ÿ As you are in process of doing this job it hits you that there is a third piece to that larger tract.?ÿ There is a field nearly 15 acres in size south of the creek but north of the fence mentioned in the deed from your first survey.
Your curiosity is aroused.?ÿ You get serious with your research and discover the larger tract was a single tract until 1901 when "all lands south of the creek" are deeded away.?ÿ Finally, in 1908, there is a deed conveying "all lands north of the creek".
Expert opiners, the question is who owns the nearly 15 acres north of the fence that has been growing in area over the decades since the 1901-1908 deeds?
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Missouri surveyors:?ÿ Please let everyone else toy with this question.?ÿ It may sound familiar to you for some reason.?ÿ Let's give them 24 hours to solve this challenge.
Super fun problem!!
I would want to know who the 1901 owner "south of the creek" was and try to find their intent when they sold off the land "now under fence south of the creek".?ÿ ?ÿIs the fence the same??ÿ Has the creek meandered away from the fence??ÿ?ÿ
So many factors come into play. I'm eager to hear the resolution of this.
In 1901 was the fence more or less along the creek bank? If so it would appear that the 1901 and 1908 deeds left a gore strip along the creek.?ÿ Does the doctrine that all of the land was intended to be disposed of apply here?
I'm amazed if a creek moved across 15 acres. Was this gradual or avulsive? Can riparian rules apply when the description is to the creek, even though not navigable?
How has the 15 acres been treated/used by the neighboring owners??ÿ What do they each think they own?
What does the tax map show for ownership?
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Here is the rest of the story................as reported in the September issue of Missouri Surveyor by Dr. Richard L. Elgin, PS,PE.?ÿ This is also discussed in Riparian Boundaries for Missouri.
Flowers v. Bales, 615 S.W.2d 103 (Mo. App. 1981)
In 1901 a common grantor conveyed all lands south of a non-navigable stream.?ÿ In 1908 the same grantor conveyed all lands north of that same non-navigable stream to a different party.?ÿ This is how the two parcels were later conveyed to different owners.?ÿ In 1947 the owner of the (SOUTH) tract conveyed using the phrase "now under fence on the south side of the creek".
There is no information as to any movement of that creek over time between the 1901-1908 era and 1947.?ÿ By 1981, however, the creek had moved north by erosion and accretion, creating an area of 14.8 acres north of said fence but south of the creek.?ÿ Thus this became the area in dispute in the 1981 court case.
The trial court found for the NORTH owners (plaintiffs).?ÿ The defendants (SOUTH) appealed.
The court of appeals found that the plaintiffs (NORTH) owned only to the present location of Logan Creek.
However, the defendants were found to only own the land to the south of the fence as described in 1947.
The court of appeals said, "it would appear from the record that title to the disputed 14.8 acres remains in the heirs" of the last person to receive "all land south of the creek" but later deeded away only that land south of the fence.
To further muddy the waters of this issue, the court of appeals did not make an official ruling but remanded this back to the lower court to discover more fully developed facts.?ÿ No resolution has come about at the lower court level.?ÿ Apparently, the two parties involved in the suit worked out some acceptable resolution on their own.
Bump for weekend absentees.
Must be the north line of the "under fence" parcel was not the creek when deeded and subsequently surveyed? I.e. there was a fence along the north line such that there were "other lands" between the creek and the fenced parcel? And those "other lands" were never conveyed to another party? Then yes, same answer in VT. But if the creek was the north line of "fenced parcel" then no. How far from the fence was the creek when the first info about its location became available, presumably in 1947.
The Court must have found some reason to assign some remaining ownership interest to the heirs. I don't think the Court around here would buy the idea that an unintended remainder between a fence located at the top of the bank and the thread of the creek provided the original owner any remaining interest to grow over time.?ÿ
Bump for weekend absentees.
I was hiking in?ÿ the worlds biggest hole.
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I'll peruse later after soup.
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Situational examples like this are valuable to me at this time, and very interesting. Thank you for posting this. This example was presented by Dr. Elgin at the fall conference this year, "buy the book". I did, but havent had a chance to start on it yet. I'm currently mid Brown's BC and LP.
