The scenario that I am considering, from a purely academic perspective, is one where a common grantor holds title to a 75’ x 100’ parcel. The grantor first grants the east 35’ and then some time later (for the sake of argument years go by) the grantor grants the west 35’. As luck would have it a survey conducted after the last sale shows the parent parcel to be 80’ wide. What should a surveyor do?
Show the East 35 feet, show the West 35 feet, and show the gap between them.
How do you know he didn't do it deliberately (I've seen it happen).
Grantor now has 10 feet remaining instead of 5
Time to gather testimony from the grantor, his heirs, or anyone else who may know more about what was intended.
Unless that strip down the middle is being put to some obvious use, doesn't a narrow strip come with a rebuttable presumption that he intended to sell it all?
> Unless that strip down the middle is being put to some obvious use, doesn't a narrow strip come with a rebuttable presumption that he intended to sell it all?
In some cases Bill, that's true. Something about the Doctrine of Strips and Gores comes to mind. Trouble with this scenario is there is no patent ambiguity in the conveyances. They describe specific distances. Are you going to argue that the grantor actually meant something else other than what is written? Good luck with that when there is no apparent evidence.
"My rich uncle died and in his will he left me $1000, your honor. I believe he actually meant to put 3 more zeroes on the end of the amount. After all, he had the money."
Seriously, this could go a number of different directions. I would think if you could prove the original grantor intended to liquidate the entire tract, a split between the adjoiners would be an equitable decision.
With the evidence presented there is actually no indication which conveyance was meant to be the larger of the two. It's a coin toss.
to me if he sold 37.5 to each then I would agree w you but he did not.. intended to keep 5... if a later survey showed only 68 feet then maybe each gets 34 and nothing remains for grantor
First stop is the recorder. The order of parcel creation, language of the deeds and subsequent actions of the owners all play. Nothing should happen on the ground without a good understanding of the first two...
Seeking Views From Lower Cases
> The scenario that I am considering, from a purely academic perspective, is one where a common grantor holds title to a 75’ x 100’ parcel. The grantor first grants the east 35’ and then some time later (for the sake of argument years go by) the grantor grants the west 40’. As luck would have it a survey conducted after the last sale shows the parent parcel to be 80’ wide. What should a surveyor do?
Well, if the real question is "What should a surveyor do?", then the answer strikes me as being (a) whether curative work is needed or not and (b) how to inform his client.
If the record would indicate that the grantor thought the parcel to be 75 ft. wide at the time of the second transaction, then it should be perfectly clear that the grantor intended to dispose of the remainder of the original parcel. However, is a title insurer willing to insure title on the basis of that intention? As a practical matter, that is probably the test of whether curative work is needed.
As for informing the client, I would err on the side of caution and take care to assemble what I consider to be the relevant facts and give the client (and eventually his attorney) a narrative written in plain English that explains how I thought the situation had developed. For example, is the supposed western part of the original parcel that was conveyed second developed as a 40 ft. wide tract of land, i.e. 40.00 ft. wide commercial building with blind walls either side? How does that pattern of use effect the construction of the second deed? That is, is the extra 5 ft. on the far western side of the lot as developed, rather than between the two parcels as one would think from the record. In the case of a 40.00 ft. building in place, does part of the building sit on land that under one alternate construction of the deed would not have been conveyed?
As the risk of loss increases, so does the reasonableness of spending money on curative measures.
Any abutters called out? Did the second parcel reference the grantor or the first grantee?
Was there a CYA statement? 'Meaning and intending to convey the remainder of the original parcel'
Are there signs of use and occupation? Are there utilities to a nearby property?
Seeking Views From Lower Cases
To add to my response a bit: I think that the first question I'd want to answer is "Where did the parties to the two deeds regard the 75 ft. wide lot as being located on the ground?" The second question, of course is what the merits of the more recent claim that the lot is not 80 ft. wide (and presumably has always been so) are.
The transactions that subdivided the lot should be given effect in light of the circumstances known at the time of the sales, I would think, and any omitted portion of the parent tract identified in relation to those locations.
:good:
What does the law actually say about the strip & gore doctrine?
The strip-and-gore doctrine is intended to avoid litigation by presuming that "a grantor has no intention of reserving a fee in a narrow strip of land adjoining the land conveyed when it ceases to be of use to him, unless such fee is clearly reserved". (citations omitted)
Seems pretty darn clear to me. Is there any case law to the contrary?
What should a surveyor do?
Well, first the surveyor should be familiar with applicable laws. Second, he should be willing and able to collect the relevant evidence. Third, he should be able to apply the law to the facts derived from the evidence. Fourth, he should be able to intelligently participate in solving the problems the client hired him to solve.
Most importantly he should be able to provide the professional service(s) he is (or at least should be) trained to provide. The seemingly ever-present shrug of the shoulders and "hey I don't know, go call your lawyer and sue your neighbor" isn't a professional service, IMHO.
> The scenario that I am considering, from a purely academic perspective, is one where a common grantor holds title to a 75’ x 100’ parcel. The grantor first grants the east 35’ and then some time later (for the sake of argument years go by) the grantor grants the west 35’. As luck would have it a survey conducted after the last sale shows the parent parcel to be 80’ wide. What should a surveyor do?
There are two issues going on in this scenario that can change the outcome. 35+35=70 Th grantor owns a tract of land that is 75' wide by the record and sells only 70'. There's a 5' discrepancy in the title record. Either there is a scrivener's error or there is an intent to retain ownership of a 5' strip of land (highly unlikely and against the presumption of law that there is no reason for a landowner to retain ownership of a strip of land for no practical purpose). A 5' discrepancy in the title chain may need to be resolved by a correction deed or Quiet Title action. Some reparation of the title record is in order.
When it comes to the second problem where the title record says 75' and the established boundaries reveal 80', it's a most likely a simple matter of reporting the difference between the record and measured dimensions on the final survey. This problem requires a boundary law solution to a boundary location issue. One should never use a title law solution to resolve a boundary location problem. It'll just screw up the title record and cause a domino of problems. As soon as you attempt to crowbar an 80' wide parcel into a 75' space on the recorder's ownership map, you'll cause all sorts of problems. I'd document the theory used to determine the boundary locations and report the record and measured dimensions on the survey. Record the survey so the next surveyor can retrace it and discover the boundaries in the same wrong location as I did. After all, that's what a retracement survey does.
I'd be looking for some hard evidence to explain the latent ambiguity. Someone posted a comment regarding the lack of a patent ambiguity with the implication that the deed dimensions would control. While that is a presumption, the latent ambiguity is discovered when the clear language of the deed is compared with the adjoiner and the prior deed of the parent parcel or when compared with the physical evidence on the ground. The physical evidence on the ground (location of an occupation line in conformance with one or the other transactions) might explain the ambiguity.
JBS
> A 5' discrepancy in the title chain may need to be resolved by a correction deed or Quiet Title action. Some reparation of the title record is in order.
JBS
JB,
I agree wholeheartedly. This is a title issue more than a survey problem. While a proper survey could delineate the original boundary of the parent parcel and occupational evidence, I don't think a survey could, in effect, provide any more clear and marketable title to either tract. Both would probably still remain clouded.
In my experience trying to prove the intent of a grantor, if that person is unable to provide testimony, gets to be a very sticky situation. The outcome is generally decided by adjudication.
Bruce had it to begin with 😉 ..... you can not presume he did not intend to keep the strip.... there are all kinds of reasons why he might. Every other solution suggested involves assumptions that are not supported by the simple facts presented.
IMHO, that is
BTW... what if this problem was modified by adding a zero to all the dimensions :-S ... that is, starting out w a lot 750' x 1000'? Would you, as a surveyor, treat it differently?
ok let me ask a different way
Given the statement of "facts", where would you put the dividing line between the junior and senior parcel.
For the sake of discussion, let's assume that we cannot contact the common grantor and that the survey showing 80' instead of 75' is correct and not subject to dispute.
Thanks very much for the comments.
ok let me ask a different way
> Given the statement of "facts", where would you put the dividing line between the junior and senior parcel.
I would need evidence that a common line actually exists before determining its location.
ok let me ask a different way
Have we determined that the grantor did not also own a parcel behind the subject 80' parcel for which he wanted to keep a 5' wide access strip?
Chris
there are no other facts to consider.
Nope, only consider the facts as stated. It is mostly likely that, each new fact attributed will have an affect on the outcome. Also, I am asking the question for academic reasons, bot to solve an actual real world problem
ok let me ask a different way - CLARIFICATION
Just to be clear, did you really mean to describe the conveyances from common grantor as the east 35 ft. and the west 35 ft. out of a parcel that the record at the time reflected was 75 ft. in width?
> The scenario that I am considering, from a purely academic perspective, is one where a common grantor holds title to a 75’ x 100’ parcel. The grantor first grants the east 35’ and then some time later (for the sake of argument years go by) the grantor grants the west 35’.
Upon the face of it, without some other locative calls in the later description, such as a call for the corners of the east 35 ft. parcel, those two descriptions do not cover the entire 75 ft. width. I assumed that you intended to ask about a case where the two did, but where it was later disclosed that the parcel was larger than the grantor had thought it to be at the time of the conveyances.
