ok let me ask a different way - CLARIFICATION
OOPS I MADE A MISTAKE. IT SHOULD BE THE EAST 37.5 AND THEN THE WEST 37.5
there are no other facts to consider.
I'm afraid the academic answer is "it depends."
In the real world, there are probably other pertinent facts, but if none are found by diligent investigation, then it probably requires agreement or adjudication.
oops you are correct
37.5 is what it should read
oops you are correct
Well, that certainly simplifies the problem, although I doubt you will get a unanimous answer.
A very likely answer is that since the first conveyance was by dimension and not "half" it will hold, and the second conveyance will get the remainder.
But additional facts could change that. Was the first conveyance monumented? Was there any occupation to indicate a "half" line?
Didn't really go though all the reply's, but all I can suggest is to take a deep breath and back up. There is more to the story so slow down and check the records (public and provided).
Or you could just go stake the deed and let the next guy figure it out????? I've seen it in MI and in AZ, not sure if those are different enough places though to answer your question.
But title issues are not uncommon anywhere. I do feel that a surveyor is better fitted to fix the mess than lawyers with pens, but if they don't hire one then it will end up in the legal system. None of us want that.
Good luck
oops you are correct
> 37.5 is what it should read
Okay, so the next question is what did the parties have in view at the time of the original two conveyances that would have led them to believe that the parent parcel was 75 ft. wide instead of the 80 ft. that a later survey disclosed?
That is, did the public records reflect that the parent parcel ws 75 ft. and only some later circumstance such as the narrowing of a street widened it? The original conveyances should be interepreted in light of the facts as they existed at the time of the conveyance, not some later discovery of an axtra five feet that was hitherto unknown to exist.
what I was getting at is your first response,Kent.
The parent parcel was describe as 75' wide. There were two conveyances made and the two combined would embrace the entirety of the estate. Many would look at the problem as you did and conclude that the common grantor intended to convey the balance of the estate and that the surplus would be in the last grantee. While others will look at the situation and conclude that the surplus remains with the common grantor. I am looking to see if I can find a justification for each of these positions.
The presumption that I am aware of is that the grantor does not intended to keep a narrow unusable strip for themselves. But, I cannot remember where I have seen that presumption stated, except in a document prepared for the purpose of continuing education for attorneys that was published in the 1970's. To my knowledge, there are no California case on point.
oops you are correct
Right. And is there any way to tell if the extra 5 feet is along the east boundary, the west boundary, or in the middle?
short answer
The common grantor wrote the subsequent deeds based upon their understanding of their deed alone.
what I was getting at is your first response,Kent.
> The parent parcel was describe as 75' wide. There were two conveyances made and the two combined would embrace the entirety of the estate. Many would look at the problem as you did and conclude that the common grantor intended to convey the balance of the estate and that the surplus would be in the last grantee. While others will look at the situation and conclude that the surplus remains with the common grantor. I am looking to see if I can find a justification for each of these positions.
>
> The presumption that I am aware of is that the grantor does not intended to keep a narrow unusable strip for themselves. But, I cannot remember where I have seen that presumption stated, except in a document prepared for the purpose of continuing education for attorneys that was published in the 1970's. To my knowledge, there are no California case on point.
In Texas, our Supreme Court stated in its 1940 decision in Cantley v. Gulf Production Co. (143 S.W.2d 912) that:
>It is well known that separate ownership of long narrow strips of land, distinct from the land adjoining on each side, is a fruitful source of litigation and disputes. To avoid this source of contention, it is presumed 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. The reason for the rule is obvious. Where it appears that a grantor has conveyed all land owned by him adjoining a narrow strip of land that has ceased to be of any benefit or importance to him, the presumption is that the grantror intended to include such strip in such conveyance; unless it cearly appears in the deed, by plain and specific language, that the grantor intended to reserve the strip.
The court referenced 123 A.L.R. 543 47 A.L.R. 1277 and 2 A.L.R. 7
For the rule to apply, one key element would be that the grantor did not own any other land adjoining the strip in question which the strip might arguably benefit. For example, if in your hypothetical the grantor also owned a parcel adjoining the west side of the 75'/80' x 100' parcel, that under one likely construction of the deeed to the West 37.5 ft. would place the 5 ft. strip disclosed by a later survey adjacent to, then one could not really say the 5 ft. strip was of no further use to the grantor.
the point is well taken
The intent of the hypothetical is such that the gap would appear between the 2 deeds. The original grantor does not own any adjoining land, in this question. grantor
short answer
> The common grantor wrote the subsequent deeds based upon their understanding of their deed alone.
Well, that fact, together with the absence of a specific reservation of the 5 ft. strip, would mean that the deed to the West 37.5 ft. would be ordinarily understood in Texas to convey the western remainder of the grantor's land under the Strips and Gores doctrine stated by the Texas Supreme Court in Cantley v. Gulf Production Co.
1
the point is well taken
The intent of the hypothetical is such that the gap would appear between the 2 deeds. The original grantor does not own any adjoining land, in this question. grantor
Something that doesn't make sense to me is how that extra 5' appears between the two conveyances after the sale of the second parcel.
What ever the reason, I would think the first parcel would enjoy senior right to a contract. Once made whole, per that description in the contract, under what cause could they seek relief? I saw nothing in the hypothetical that alluded to an aliquot portion. East, or 35'(37.5'), merely modify an aliquot portion.
short answer
Strips and Gores in California Case Law seems to only refer to right of ways. I haven't found a case where a California Appellate Court has stated a presumption that the common grantor did not intend to keep a strip. The reasoning could be set forth, however. Most of our case law doesn't get into the survey issues. Usually they just state the survey puts it here and some doctrine puts it there. We are left to assume the survey was done correctly, whether it was or not, who knows?
You are more likely to find extensive discussion of surveying issues in unpublished cases.
Dave
any case citation that you have would be welcomed...
some folks would
Some would measure from the west line of the parent parcel 37.5' to set the junior, while the east 37.5' was measured off the east line of the parent parcel and if the parent parcel was in fact 80' wide then there would be a 5' gap between the 2 parcels. I am not saying that I agree with this, but it is a method whereby some would see that there is a gap.
RJ you make a good point that the senior in this scenario is whole and they are not a party to the subsequent contract.
ok let me ask a different way - CLARIFICATION
> OOPS I MADE A MISTAKE. IT SHOULD BE THE EAST 37.5 AND THEN THE WEST 37.5
OK. Now that the facts have changed, there is no title problem. The grantor owned 75 feet and sold 75 feet. The simple math proves that there is no intent by the grantor to retain ownership of any land. He sold 100% of what he owned, and he sold it sequentially. Sequential conveyances require an entirely different application of boundary law than simultaneous conveyances. The two maxims at play are "equal in time; equal in right" and "first in time; first in right."
Some would view this type of conveyance as an equal split of the excess or deficiency as both transactions are "1/2" of the whole. This is improper as it violates the maxim and reads language into the first conveyance that is not there. You must place yourself in the moment of the first conveyance. The grantor sold 37.5 feet. The second sale hasn't happened, so any evidence of "1/2" doesn't exist. The senior (first) transaction created the line and it alone clearly states where the line is located.
The issue that arises in this scenario is the nature of the junior estate (the remainder). One thing to consider is that boundary laws are based upon rules of equity. The junior estate will always contain either more or less than the frontage specified. It is the +/- that makes it "fair" or equitable. The junior has an equal chance of winning or losing. It wouldn't be equitable if the junior would always loose in the event of a deficiency, yet never be allowed to win in the event of an excess.
It also simply defies logic that the owner would retain ownership of a narrow strip of land next to one of his outside lines or through the middle of his property for no reason. Especially when the simple math refutes the possibility. 37.5+37.5=75. Try sitting on the witness stand and explaining to the judge why there is still 5 feet left over. Even common core math won't lead to that result.
Then there is the rule of law, which is founded upon these fundamental principles:
>“It has been held frequently by this court that there is a presumption of law against a grantor retaining a long, narrow strip of land next to one of his outside lines, when the description of the land granted approximates the description under which he holds. “Generally, in the absence of facts or circumstances explanatory, it will not be presumed that a party granting land intends to retain a long, narrow strip next to one of his lines; but if the courses and distances approximate closely to a line or corner of the tract owned by the grantor — especially if the description in the deed corresponds, exactly or substantially, with the description in the title papers under which the land is held — it will be presumed that the lines mentioned are intended to reach the corners and run with the lines of the tract ...”” United Fuel Gas Co. v. Townsend, Supreme Court of Appeals of W. Virginia, 1927, 139 S.E. 856, quoting Western Co. v. Peytona Co., 8 W. Va. 406,418
Presumptions of law are very powerful. We are given the answer, but it is rebuttable. Meaning that if you have sufficient evidence to the contrary, the presumption may be overcome. In this situation, that means you need some direct evidence either from the title record, from the landowners, or from the physical evidence on the ground that a contrary result was intended. Lacking such evidence as in the scenario given, the presumption of law must stand. The logic must stand. And, the senior parcel gets its 37.5 feet and junior gets its 37.5 feet +/- which, in this case, measures 42.5 feet.
No additional documentation other than the survey depicting the record and measured dimensions of the properties is necessary.
JBS
There's a reason we have the training, education and license.
There are so many variable ... not covered, that could have an impact on this scenerio.
Simply put, if a person with anything deeds 35 feet off one side, then 35 feet off the other side, that original owner has what he had ... minus the 35 feet off each side.
If there were only 65 feet to begin with, then the owner has nothing and one of the 35 feet owners might have a lawsuit.
Then you get into ... well ... is 35 feet 35 feet or is 35 feet the best measurable amount between two items that were measured to be 35 feet with a broken tape measure?
What if the second 35 feet was sold to the second owner as being 5 feet distance from the first 35 feet out?
What if the owner sold the first 35 feet, then when he sold the second 35 feet, thought he was selling the remainder of his property, and indicted the second 35 feet as being the second 1/2 of his property?
The simplest of situations can become complicated by the use of an incorrect word in a deed and complicated beyond all doubt when good attorneys get involved.
Sometimes grandma(or grandpa), can almost be pulled out of the grave to testify about some innocuous statement that really didn't mean anything in 1980, which really is of importance today.
Maybe some real Piece of shieet, crappolla almost no-existing idea of a physical boundary, might hold the last, most important clue in a lawsuit.
Odds are most transactions are non-problematic, even if the whole thing from the survey down has been screwed up somewhere ... somehow.
But, boy, when the proverbial shieett hits the fan and attorneys get in there to rev up emotions and talking about technical rights and money ... anything can happen.
This is to me what's fun and what's terrifying about surveying.
AND ... this is why surveyors should be earning TOP DOLLARS........
The intent wasn't to keep a strip, so the last one out, gets the excess or deficiency. Too Easy Drill Sergeant!