Keith
I agree. I've hardly ever made an acreage calc parallel with anything, unless there was a reason (call in a deed).
In this instance I would probably prorate the NS distances on the east and west property lines according to a 'parcel divided by whole' ratio. I used to have a calculus book around here somewhere that refined that process...but I haven't been able to read small print in 20 years.;-)
paden
I know what you mean and if you hold the book far enough away, you may be able to read it:-P
So, you are not holding to the 20.00 acres?
Correct me if I am wrong, but for it to be truly the "northerly" 20 acres, would it not be a requirement that the dividing line be paralell to the northern boundary line?
I disagree with the proportioning of the side lines. This was not a aliquot part with a nominal 40 acres. It was an odd acreage. The acreages sold are not equal. The 20 acres was not the southern portion where there might be an indication that the error was being put in the northern part. There was never an error in the description calling the parent parcel the NW 1/4 of the NW 1/4, where someone might mistakenly think there was 40 acres. The parcels were sold 10 years apart, no where close enough in time to be simultaneous. Unless there is strong proof otherwise the first guy gets 20 acres and the second gets the remainder. It's a Jr/Sr. situation. The only question is the direction of the dividing line.
Evelyn
Evelyn
I mostly agree with you, as your facts are correct.
Now tell us how to run that dividing line and why?
Keith
Could be east-west, parallel with the south line, a mean bearing possibly. Again, parallel with the north line is just a presumption to use when other evidence is lacking.
Evelyn
Assuming, I have no evidence, no fences, no previous surveys, no existing monuments, etc. I would divide exactly 20 acres running the southerly line parallel with the northerly line. There are equations for doing this in most survey textbooks. See Part III Part B, Anderson & Mikhail 7th edition. I would also calculate a dividing line going east-west, compare the two, and probably say there doesn't appear to be much of any difference. If there was a fence, or existing monuments I would probably use those. If there were existing improvements, access to water, I would consider those in choosing an option.
Evelyn
Yes I agree, if there is no other evidence stating otherwise. I was making my point from a mathematical base. I tried to upload a sketch but I am "uploading challenged". It appears that both lines are nearly parallel. However, if the northerly line was due east and the southerly line was S 45 E, then parallel to the southerly line would be more of the northeastern 20 acres than the northern 20 acres. If only I could draw a picture. 🙂
Kris
>
> 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.
Kris,
You said it yourself; intent can only be gleaned from the 4-corner rule. That is part of my argument that "intent" is not a separate call: it is the calls tehmselves.
My main point is that the four corners of the document can be ambiguous at times and there may be different ways to interpret the language used. To think that I don't respect natural monuments, for instance, called for in the deeds, is wrong. I gave you an example where a bearing typo might be proven a blunder over an area that helps to discover the typo. With your seniority of calls scenario, you would be "forced" to accept the bearing over the miscolsure and the area cause by the typo.
Artificial monuments with calls to them? What if an artificial monument has been moved? May I use extrensic evidence and the other calls in the deed as well as possibly parol evidence to prove that it has 'moved'? What if any call, is over-proved by other evidence? Do I still have to go to the "Superiority of Calls" to disagree with that obvious blunderous call?
I am not positive that we would strongly disagree in a field survey, but I will produce textbook information, if you like, showing that the document must be taken as a whole, and that extrensic evidence can help to discover the intent of the conveyance.
I would like to just pount out that the 20 acres has a very different meaning on the GLO plat than it would to a judge seeing a 1970 deed that called for it. I would dollars to donuts that any judge would hold the 20 and then the remainder left leaving no gap or overlap (if it was actually short).
Everyone including the document evidence says they all relied on the GLO acreage to create their deeds because they did not want to pay for a survey.
Had you done this in 1977 then you could have advised them properly on the aliquot descriptions vs your actual measurements and how that they should have been proportioned as the manual states. That is water under the bridge though at this point.
Kris
You sound like you're putting the cart before the horse to me. I could be wrong.
But there is other evidence found outside of the documents which separate two tracts, one being North of the fence and the other being south of it. The areas of those two tracts probably will be close to the areas noted in the deed documents, at least as close as a land owner could be expected to get. The area may have been scaled from an areal at the ASCE office. They used that method to measure crop areas when there were allotments controlling how much you could seed to wheat, they would accept no error in their measurements from the photos and if they said you planted a 1/2 acre to much, the mowing machine came out and hay was made from that half acre. It is not unreasonable to speculate that might be the source of the 20 acres noted on the deed.
jud
keith
Yes, I agree that the conveyance in 1977 was for 20 acres. This survey just reminded me so much of a common book survey problem that I had to throw it out there just to see the diverse opinions.
But holding with the acreage isn't really going to solve the two property owner's dischord concerning occupation. I've spoken with the client today and for now the survey will reflect the Lot 4 boundary and the occupied areas, as determined by the fence...we'll let them "talk amongst themselves" and see what shakes out.
BTW - Here in Oklahoma it's gets tricky on surveys like this. A simultaneous conveyance of both the "East 80 acres" and the "West 80 acres" of some 1/4 section that either has excess or deficiency would most likely be surveyed differently than a sequential conveyance, as in this case.
I am going to go with the proportional position of the end points and dividing the record Lot 4 acreage proportional.
Agree. The rational is that the original grantor showed their proportional intent by referring to the total govt acres in Lot 4 in 2 separate conveyances. They conveyed according to govt measure.
Kris
> You sound like you're putting the cart before the horse to me. I could be wrong.
Well....how can I argue with that?
by the way....I meant "extrinsic" and some other obvious typos above.
I think this is a good discussion. I am going to put a quote from "Skelton" in a new thread. I don't know if it will invoke more discussion about "Intent". Probably not.
I may be wrong, of course, as well. I am only saying what I read and how I interpret it.
Update - If anybody's interested...
The fence may be it. It's gonna be a tough sell, but it might work.
How does one get out of the system if they are in it? The lexicon is part of the culture.
But you have a stronger argument when it's a non-uniform, government lot.
This example is like most. They should have had a surveyor describe it for them. But all they can see is that a surveyor "caused" the problem.
I completely agree, Evelyn. The "north 20 acres" isn't an aliquot part of GL4 by any stretch of imagination. The "manual" rules are designed to uphold the simultaneous creation of sectional parts. This isn't simultaneous; therefore, the manual rules don't apply and any apportionment rules don't apply. We're left with common-law rules for sequential conveyances. Because the "north 20 acres" was conveyed first, it controls. The common-law presumption is that the "north 20 acres" is dependent upon the "north" boundary. Aside from the existence of any contrary evidence, we're left with sliding a line parallel with the north boundary until we achieve 20 acres (which is always more or less).
JBS
I don't see any intent other than to convey 20 acres. I really doubt that the grantor anticipated a proportional division. My opinion only, of course, and worth exactly what you paid for it.
Don
I see it the same way as the comments from the landowner that I own the 40 and he knows where the boundaries are and he has no idea that they don't add up to an exact 40.00 acres. He will say that he will sell the 40 and has no idea if it is 41 or 39 acres, just that the patent says 40.00 acres and the GLO plat shows a regular 40 acre subdivision.
Is the original intent of the lady land owner to convey exactly 20.00 acres or maybe just about half of the total.
This may be getting real close to exact measurements as in, if the deed says 20 acres, it is exactly 20 acres and if the deed says it is 1320' by 1320', it is exactly those dimensions and no intent is even considered?
There are rules to subdividing sections and the area consideration is dead last!
Just some thoughts.
Keith