adamsurveyor
Can you point to the text-book where intent is listed in the dignity of calls?
As to govt lots, govt rule applies. But many times you follow the footsteps of surveys that missapplied the rules or missinterpreted the plat or evidence. Occupation abscent fraud is on the ground to consider. There is Lot 4 by govt. rule and Lot 4 by established boundary. That must be identified by best evidence before you go on to find the acreage call.
Was the acreage call division line as well established on the ground? Same thing. What does the math say and how does that compare with the actions of the owners?
If an established harmony on the ground fits well with the rules, wonderful, sometimes that happens. If it doesn't, then what?
As a basis to begin analysis of these issues I map all the longstanding occupations in the neighborhood, then compare to past surveys and rules and ideas to determine just what evidence can be used to maintain harmony if at all possible. Recognise all good faith attempts to settle the lands. Then with that light, interpet the titles via standard order of priority.
As to an excess strip of land remaining in your situation, there is none unless specific language demands it clearly as intended. Without that, there is no anomaly, the remainder sale takes all remaining not in the prior acres specific call.
> Questions: Would the original grantor's estate actually have title to an almost 20' +/- hyatus strip across the middle of the parcel?
This isn't a title question, it's a boundary location question. 20 + 18.54 = 38.54. It doesn't get any simpler than that. The parties sold all of the patented land in two transactions; first, the north 20 (which created the boundary) and second, the south 18.54 (the remainder). There is clearly no intent for the second transaction to create a second boundary and clearly no intent to retain ownership of some conjured "20' hiatus." The only question is, where has the boundary been established on the ground? That requires an original survey (if the line has never been run out before now) or a retracement survey (based upon the best available evidence relied upon to establish the boundary).
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> If you decided there were actually only two property owners now in Lot 4, would you really feel sure enough of your survey to state in depositions that you "knew" what intent the grantor had for the conveyances? Acreage conveyances are not particularly ambiguous.
>
We don't have to "guess" nor do we have to "know" the intent of the grantor. We do have to derive the intent from the laws and rules which govern our profession, keeping in mind the "presumptions" of law that guide our decisions. Yes. I am certain of their intent because the record evidence shows a clearly expressed intent of the grantor to sell two parcels of land which contain precisely the amount of acreage of the whole according to the original survey of record. There is no ambiguity to consider from the record. There are two parcels with one boundary between them.
> Not sure what to do. There is an ancient fence row running east and west through the property, but it's location follows more of the natural character (upland/ lowland) than a survey line. No one knows who or when the fence was built. It actually gores both properties in certain areas.
>
If there is an "ancient fence," then gather the evidence necessary to discover who constructed it and when, then you'll also know why and how. If that evidence is truly lost, then it's a matter of state of mind of the current (and preceding) owners existent prior to your disclosure of any issue. Have you checked the areas north and south of the fence? Are you assuming that the division line was intended to consist of a straight line? Technically, the location and direction of the dividing line are undefined in the deeds. There are cases where the owners choose a dividing line which separates the parcel by area. Does the evidence support the fence? What about reliance, mutual satisfaction, or acquiescence? Is this a problem that is too late to fix, or is it even a problem at all?
> Any PLSS gurus out there have any suggestions?
Recover the evidence necessary to retrace the boundary as it has been established on the ground. If it hasn't been established, then find out if the owners would like you to run a line that they can rely upon to relocate the fence. If they'd rather just leave the fence, then provide the necessary service to relocate the boundary to the location of their choosing.
JBS
> I agree no parcel, either clerical or physical, exists between the two properties. I do believe that an argument could be made that the original estate has at least 'color of title' to approximately 7/10 of an acre.
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I would disagree (with the second sentence). The original estate transferred every acre received by the original patent. They received 38.54 acres and they sold 38.54 ares. How can they have any claim?
> The thing that bothers me about where the boundary actual exists is that wherever the excess area is placed, you have to assume that one deed's acreage is correct, and one is not. There is no evidence that either are incorrect.
>
Both acreages are "correct." It's not a matter of "right" or "wrong" when it comes to boundary evidence. It's a matter of "record" and "measured" acreages. There was no problem until you "measured" the acreage. Your discovery of the difference doesn't "create" a problem. How you interpret your discovery can create a problem where none exists. The remainder parcel is always "more or less."
> In the absence of any written word, I am more inclined to place 20.37 acres to the north and 18.88 acres to the south. This would be equitable to both record owners. But on the same token, I would be ignoring the fact that the original estate may have a claim.
This approach is a direct violation of the seniority rule. The owner sold the north 20 acres first, then sold the south 18.54. That's a sequential conveyance. You cannot apply the rule of apportionment to a sequentially created conveyance. The two parcels are not on equal footing. The first parcel has no right to take 0.37 acres of land from the remainder and a surveyor has no right to take it for them.
JBS
"...but I believe the original owner still has a claim to the extra land."
WHAT EXTRA LAND? Why would you try to create 3 parcels where 2 exist? A court would not create 3... or uphold you doing so.
Jim
Well said ... and correct.
The plat that the title holder was using to sell their land describes 38.54 Acres. They sold 38.54 acres. This is clear intent that they were selling their entire piece. I would not prorate anything. The north parcel gets 20 acres and the remainder goes to the second party. That, of course, will now depend on how the parcels actually exist on the ground. But if there is an open field with no occupation, no fencing, no monuments, then I would set monuments giving 20 Acres to the north parcel. Remember, the GLO plat is what landowners are working with and should be considered official. There are always going to be differences in measurements.
Consider that an official plat shows 19.8 chains (1306.8’) along the west line of lot 4. The owner sells the north 660’ and then the south 646.8’ of lot 4. A surveyor later measures 1316.8’ along the west line of lot 4. Should there be a strip 10’ wide in the middle? Of course not, the south parcel gets 656.8’.
Kris
The calls in a description are/is the intent. The intent is found within the four corners of the deed. The word 'intent' is not a part of the list. The list is a part of solving for the intent.
As far as I am concerned, your dignity of calls is pretty much a 'last resort'. I would always use extrensic evidence to help me resolve a discrepency or ambiguity in the calls prior to falling on some list of seniority of calls.
An example might be that if I could find that switching 'NE' for 'NW' makes the metes-and-bounds description close, and matches the acreage, I would not respect that the "bearing" is higher on the "dignity of calls" over acreage by holding the NE typo. I would use the argument that I found a "blunder" and resolved the intent of the description.
In the case above, I would use whatever (extrensic evidence) I can find in the field to help me resolve what the intent of the description was.
Can't have an opinion on a boundary without knowing the grantors intent. But, what the grantor actually thought they were doing is not important at all. Intent in contracts is what we can infer that the grantor actually did per the best evidence; which does not inlcude the grantors testimony of what they intended, when that conflicts with what they have written or physical acts marking a boundary.
If she were alive, she would not be allowed to testify that she intended to keep a 20 foot strip between these parcels.
I agree the analysis in this case is influenced by the location in the PLSS system. The significance is that it will be presumed that the north 20 acres is formed according to normal subdivision procedures in that system. If this were a M&B problem we would probably presume a rectangle with parrallel lines absent anything else. That is not the case in the PLSS as I understand it. In addition, in the PLSS one does not have to say they are conveying a remainder. Any conveyance of a normal subdivisional acreage i.e., 20,40,160 indicates normal subdivision pieces. Any conveyance splitting by a normal acreage and a differing acreage implies a non-regular remainder.
So, by analysis in the PLSS system, I don't think you have to rely on a rule of last resort senior/junior rights.
And the analysis does not indicate an equitable division of acreage if differing amounts are measured subsequent to the writing of the deed (although I might consider that argument further if this were M&B State). There might be some language that would indicate a division of that sort, but not this language in a PLSS State.
As others have said, a proration can't be justified based on the absence of simultaneous conveyance.
I understand this an irregular government lot, but it's still within the system. What would a north 20 normally look like? Parrallel line with the north line of lot to contain 20 acres?
Once the daughter sold the North 20 acres, you are no longer in the PLSS system, except for finding the exteriors of the gov't lot. It is now a M & B problem. The first grantee gets 20 acres, with the dividing line probably parallel to the north line.
The second grantee gets the remainder, unless you can find evidence the daughter intended to keep the gap. That is because there is a "legal presumption" that the daughter intended to sell all that she owned. This is based on courts not liking to have title to small pieces of property "long in abeyance" Of course if there is evidence that the daughter intended to keep the strip as a road or other access, or some other reason you can overcome the presumption.
Evelyn
Kris
> The calls in a description are/is the intent. The intent is found within the four corners of the deed. The word 'intent' is not a part of the list. The list is a part of solving for the intent.
>
> As far as I am concerned, your dignity of calls is pretty much a 'last resort'. I would always use extrensic evidence to help me resolve a discrepency or ambiguity in the calls prior to falling on some list of seniority of calls.
>
> An example might be that if I could find that switching 'NE' for 'NW' makes the metes-and-bounds description close, and matches the acreage, I would not respect that the "bearing" is higher on the "dignity of calls" over acreage by holding the NE typo. I would use the argument that I found a "blunder" and resolved the intent of the description.
>
> In the case above, I would use whatever (extrensic evidence) I can find in the field to help me resolve what the intent of the description was.
I vehemently disagree with your assertion that the dignity of calls is at the bottom of any construction when delineating property lines. At least in Texas, that throws 180 years worth of case law, and untold amounts of text books on the subject of surveying on their head and totally disregards natural and artificial monuments and calls for senior lines.
My point was, intent can only be gleaned from the 4 corner rule. In this case, it's obvious that the 20 comes out first, then the text book example of the selling what should have been the residue, gets all of the excess or deficiency.
It really is this easy, and fences don't mean anything in this context. The deed lines are where the deed lines are, and fences are where fences are, and sometimes they coincide, and most of the time, they don't.
The "agree team" really has no applicable use in this case.
Evelyn
Well said.
:good:
Update - If anybody's interested...
I appreciate all the meek opinions. It's a joy to listen (read) to everyone's reasoning and logic.
The one thing I didn't reveal in the original post was that the 1987 conveyance of the "South 18.54 acres of Lot 4" was a sale through the daughter's probate. This was a court ordered sale of all of the estate's holdings to satisfy outstanding debts.
In light of that it seems apparent that the 1987 conveyance was for the remainder of Lot 4. I probably would have described it as "Lot 4, less the North 20 acres". It just made a better "opinion getter" by leaving that detail out.
The REAL problem with this survey is that my client is purchasing the "North 20 acres of Lot 4". The gentleman that owns the "South 18.54 acres of Lot 4" is lawyering up after my client contacted him about possibly (after the purchase) placing a new fence on a surveyed property line. The owner to the south is apparently rather fond of a fence that "Wuz there whenna boughtit."
Here's an aerial of the property, the fence location is approximately shown in yellow:
I haven't figured any acreage based on the fence's location, but I bet I do before it's all over with. 😐
Update
This tidbit doesn't do anything to sway me. The rational is the same now as before. However, you've now got the title line and the fence line that don't jee and haw.
So how longs the fence been there and is the law suit cheaper than the new fence. 🙂
In other words, there is a conflict. Big deal. 🙂 Happens to the best of us.
Update - If anybody's interested...
Think I might advise your client, Northerly owner, to agree to the fence and both share the cost of getting it surveyed and the deed documents brought into agreement with the fence location. Your photo is what made me think that would be best for your client. It looks like the existing fence is along the best division line for access to all and provides for the best use of all of the property. I agree that the documents would lead me to hold the Northerly 20 acres with the line parallel with the North line of Government Lot 4, but with your additional information about the Southey owners position, I would be a good neighbor, agree with his wishes and get the agreement recorded, the deeds revised and in agreement with the fence. Or you could just accept the fence as the intended division line as JBStahl mentions and work with both owners in getting that line defined much better in both Deed Documents.
jud
Update - If anybody's interested...
Did you not talk to the southerly owner before you started surveying? Your research is not complete if you do not talk to at least the adjoining owners. If you had you would have already calculated areas using the fence. Is your client the northerly owner the original owner of the 20 acres? Could there be a previous deed? Was he told anything about the fence when he/she purchased the property? You now have an ambiguity, and have to look outside the description. I've seen cases where the description was just written incorrectly and now it's a legal issue of deed reformation. Looks like it may be a legal issue not a survey issue. Drawing th dividing line parallel to the north line is only a legal presumption when there is no other evidence available. Looks like you have that other evidence, which you initially missed because you didn't talk to the adjoining landowner. I wonder what the landowner to the north, east & west might tell you.
Evelyn
Update - If anybody's interested...
> ... Or you could just accept the fence as the intended division line as JBStahl mentions and work with both owners in getting that line defined much better in both Deed Documents.
Just a point of clarification, I never said to "just accept the fence." If you're retracing the boundary and discover the occupation line doesn't agree with it, it's up to the landowners to decide what to do, not the surveyor. In this scenario the deeds don't specify the location or direction of the division line. I wouldn't be so quick to say the fence isn't intended to be the division line; nor would I be so quick to say that it's not. There is ambiguity. In order to resolve the ambiguity, both owners must be given the opportunity to resolve it. Once they reach a decision on how they want it resolved, then you can prepare the documentation, record it, and finish your survey.
Could be, it's just a fence. Could be, it's not.
JBS
PS I'm also waiting to hear when the first 20 acres was sold and whether or not the fence was in existence prior to the sale or was erected soon after.
JB
The "North 20 Acres" was first sold out of Lot 4 in 1977. It was actually sold to a long time lease holder of that property (and more adjacent lands). His surviving family now owns it and is trying to sell it to my client.
I have spoken to the owner to the south a few months ago, but at the time I was bounding Sec. 1 to the west. He seems like a likable rancher, I got along with him. My client has been contacted by the rancher's attorney after my client contacted him about moving the fence.
I believe a good deal of that fence predates 1977, mostly the NW portion. There are 12 to 16 inch trees that have the barbwire grown into them. The fence in the SE portion of Lot 4 has at least been maintained over the years, the T-posts are newer. It follows a cow trail and a tree line and is more or less out in the open.
I have some problems with some of the solutions that have been given here and I think first: nobody really has answered Jerry Knight’s question about how the dividing line should be run, parallel to which line?
Secondly, don’t we determine the end points of any line that we are trying to establish?
I would have to subdivide the section with the normal rules of the Manual and after getting down to the subdivision of Lot 4, I could establish points (not calling them aliquot part corners) on the east and west sides of Lot 4. These points would be the end points of a line that actually divides Lot 4 proportional in acreage.
Or, I could do as above except when establishing end points on the east and west sides of Lot 4, I would have end points for a portion of Lot 4 with 20.00 acres to the north and 19.25 acres to the south. I am not real sure how I would do this, as these corners could slide up and down the subdivision lines with no apparent real rationale for their position?
The 20 acre call is the same as a 40 acre call to me, and we know there are no subdivisions with an actual 40.00000 acres!
As in, how would a call of the NE1/4 Lot 4,sec. 6, containing 10 acres, be surveyed? There is an ambiguity in any descriptions that are outside the normal language, like this NE1/4 Lot 4, sec. 6. Whenever one attempts to subdivide a fractional lot for instance, is going to have to try to use rationale that will support arguments. This example in a fractional lot could be surveyed using proportional distances along the east and west side lines.
Until there is a definitive answer to the question on how the dividing line would be controlled; I am going to go with the proportional position of the end points and dividing the record Lot 4 acreage proportional.
This fence line is not a boundary line
in my opinion of course.
Keith
