thanks Kris
Yes, that is the rule in Texas and it makes sense to me.
Depends on the actual wording of the second deed, as to whether the grantor intended to leave a strip of land . Maybe there's a lake or a something at the end, worth having a strip for access.
This is the best I can do right now...
Wagner v. Chambers, 232 Cal. App. 2d 14:
"As declared in Anderson, the "[final] question after all is one as to the intention of the parties" (p. 394), specifically whether the grantors intended to retain in themselves the ownership of the subject land."
Bold by me.
I haven't thought of a good way to search for "gap" in the opinions. Searching for the word alone yields a huge pile of non-boundary cases. Someone who is good at doing advanced logical searches probably could do it.
If the intent was to sell the west half and then subsequently the east half then the deeds should have read accordingly. Reading intent from the east 37.5 and then the west 37.5 tells me that the intent was to transfer the east 37.5 and then the west 37.5.
Lets Clear This Up
If your going to make up a scenario make up some details to go along with it. Does he own any land behind the tract he sold.
What was the intent, that could be easy or hard to figure out, without knowing more details.
Why did the tract size change from 75x100 to 80x100, that size would tell me it was a platted lot. May take surveying the whole subdivision to find out that answer.
How does the deed read? Does it say the East 37.5 feet or the East half of his tract, that wording is very important. If it is 37.5 feet he gets 37.5 feet if it is 80 or 60 he gets half. How does the other deed read, West 37.5 feet, West half, or the remainder of the lot, once again the wording is very important and does a lot to give the intent. Are there any fences on the property, if so how many?
What should a surveyor do? He should show the parent tract, and both deeds out of the tract. Sit down with all three parties to come up with a boundary decision, let a judge decide, use his case law knowledge to make a boundary decision. Pick one of the three.
ACCEPT THE GIVENS
I included everything necessary to give an opinion. Yes I could have added all kinds of other givens, but chose not to do so.
The response that there is no enough data to comment is just as appropriate as those who responded that 37.5 means 37.5 as well as those who responded that the common grantor conveyed the balance of the estate.
It is not a real life problem. It is an academic question.
ACCEPT THE GIVENS
> I included everything necessary to give an opinion. Yes I could have added all kinds of other givens, but chose not to do so.
> The response that there is no enough data to comment is just as appropriate as those who responded that 37.5 means 37.5 as well as those who responded that the common grantor conveyed the balance of the estate.
>
> It is not a real life problem. It is an academic question.
BTW, "all kinds of other givens" are usually what gets us out of the pan and into the fire.
ACCEPT THE GIVENS
I know what you're getting at, but I think we need to know at least whether the first parcel is retraceable and what the results are. In your scenario it would be that the original parcel was retraced and found to be 37.5 ft.. Or, that it has been proven it was not surveyed, so this will be the original stakeout of both parcels.
A scenario not mentioned yet is if the original parcel is retraced and found to lack the full 37.5 ft.
But even without a specific case on strips and gores, I would think a court would agree that the grantor intended to convey all of the original parcel unless it could be shown there is a reason not to. The trend has been to get away from distinctions between patent and latent ambiguity and look at all the evidence in any case.
ACCEPT THE GIVENS
I have seen my share of 5' and even 2' strips, retained for foot access. So, it definitely depends on the wording of the second deed, as to whether the grantor was conveying all his remaining interest, or just what we've been given here, "..the west 35' "
ACCEPT THE GIVENS
My problem with that, is there has been no evidence presented that indicates the grantor knew they had 80 feet instead of 75 feet. So, in affect what you are saying is the grantor intentionally retained a strip of land that they didn't know they had. Now I agree that many small strips may have been retained on purpose over the years, but I think a prerequisite to retaining them is to be aware of the possibility at the time of conveyance/retention.
ACCEPT THE GIVENS
What am I missing? 75' lot, east 35' gets granted, then west 35', leaving 5' left over. Survey reveals that it's an 80' lot, so instead of a 5' strip, there's a 10' strip.
ACCEPT THE GIVENS
He corrected the problem statement in the middle of this thread. It's 37.5 and 37.5 granted.
ACCEPT THE GIVENS
The OP revised it to say that the deeds were each for 37.5'.
ACCEPT THE GIVENS
Well, then that changes things. Sounds like he granted, or intended to grant all that he owned. First guy gets east 37.5'. Second guy gets the remainder, unless he specifically reserves the 5' strip, assuming that he knew his lot was actually 80' wide, to begin with.
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.
I would begin with the "fact" that there is a 5' strip that was not conveyed... still in the ownership of the original grantor.
Then if you want, you can assume that the grantor was fully aware that that strip existed. (I find that many owners know more about their property than we give them credit for).
So, is it a spite strip? Or intended for a future use? ... does it matter?
Or, drag out your crystal ball again and assume the grantor was unaware of it if you wish.
Either way you wish to spin it, the strip exists.
Yes, planning and zoning regulations often prohibit creating such things... but they do not have the power to convey, only the owner does (or a court can do it in their behalf).
I see no problem here...
ACCEPT THE GIVENS
>... First guy gets east 37.5'. Second guy gets the remainder..
I agree. Except that we haven't discussed occupation, and how much time has passed, etc., etc. If there was a nice tight fence neatly bisecting the lot at 40 feet (or at 42.5 feet west of the east line) that had been built in reliance on the first sale that would likely alter my opinion. Practical Location.