I personally think Curtis Brown oversimplified the issue by inventing the concept of simultaneous and sequential conveyances.?ÿ In the 19th century legal theory Plats did not create Lots.?ÿ The Plat merely was a graphic depiction of a survey.?ÿ The Deeds referencing the Plat created the lots.?ÿ Therefore if a survey was done then the question of fact is where did the the stakes get set.?ÿ If two stakes are found and the intermediate stakes are missing the most logical presumption is that the intermediate stakes were set at or near their proportionate positions.?ÿ This was to restore the original stakes to their most likely original positions.?ÿ If a Deed conveyed a Lot depicted on a Plat then the Grantee was bound by the stakes set on the original survey.
On the other hand, if a Deed described a tract and the Grantor owned all of the ground in the description then the Grantee received everything described.?ÿ When the Grantor conveyed the remainder of his lands the next Grantee could only receive what the Grantor still owned.?ÿ This is the general legal principle.
In the 19th century it was not automatically assumed that a Grantee would receive only a proportionate share of an unstaked block.?ÿ This is why the aliquot system was invented in the PLSS; to ensure that it was understood that the unstaked aliquot parts should be staked by proportionate measure otherwise if the quarters were described by distances or by areas (e.g. the NE 160 acres) it would raise a possible conflict between subdivisions.
Boundary location is mostly a question of fact; questions of fact don't lend themselves well to strict application of rules.?ÿ The Courts in the cases I have read don't strictly apply rules to the exclusion of obvious justice; this is why doctrinaire land surveyors are usually shocked when an opinion is handed down which seems to conflict with surveying rules thought to be sacred.?ÿ Also there is an interplay of principles, rules, presumptions, and fact analysis that doesn't always come out well in half inch thick technical books.
In NY we have Mechler v Dehn (1922).?ÿ The case has been favorably treated in NY and other States as well.?ÿ Essentially, the court does not recognize junior/senior rights and does call it simultaneous creation.?ÿ However, they say especially if it was a paper subdivision (nothing permanent marking the exterior corners or the lots on creation), then monuments set or improvements built at the time of sale of an individual?ÿlot will control.?ÿ The access or deficiency left over in the rest of the subdivision must be apportioned there (if anywhere), and of course odd lots must take deficiencies first).?ÿ Basically, retracement rules first before you can consider inferring intent from the plat.?ÿ The court said why should we infer the intent was equal lots when the lot in question was actually sold and staked at a full 50 feet wide.
Some in NY have misread this case as saying proportion is never allowed in NY (see NY law and practice of real property 2nd, by Joseph Rasch).?ÿAttorney read this secondary source and have told me that more than once.?ÿ I've read the case and following ones, and I assure you we can proportion what has not already been?ÿstaked and/or sold/occupied?ÿat full width.?ÿ Note that many times wood stakes were set and are now gone, so you must use the improvements as evidence.?ÿ If you can't find monuments and proportion a line through a house that's been there since near the time of the lot sale you're going to lose in court. It's presumed the house was built (and the lot occupied) on the lot as viewed/staked/offered at the time. At least you'll lose if going against my map and testimony.
I hate these old subdivisions. To do it right requires what some think is a small fortune.?ÿ So things get worse and worse over time and it becomes a friggin phd project (and a six figure court case) to?ÿdetermine who's really got what.
"It is typical in platted subdivisions that all lots created are not or cannot be subdividable"??????ÿ?ÿ
Not at all true.?ÿ I frequently have created subdivision plans on lots that were created by a subdivision plat.?ÿ Whether it be a simple land swap to create a better building lot, or even dividing a lot that was oversized.......
"It is typical in platted subdivisions that all lots created are not or cannot be subdividable"??????ÿ?ÿ
Not at all true.?ÿ I frequently have created subdivision plans on lots that were created by a subdivision plat.?ÿ Whether it be a simple land swap to create a better building lot, or even dividing a lot that was oversized.......
Around here, nothing in land use is "typical".?ÿ We regulate subdivision at the county/municipality level, so there are 175 +/- different subdivision regulations in the state (24 counties, about 150 towns, cities, villages, etc.)
I personally think Curtis Brown oversimplified the issue by inventing the concept of simultaneous and sequential conveyances.?ÿ In the 19th century legal theory Plats did not create Lots.?ÿ The Plat merely was a graphic depiction of a survey.?ÿ The Deeds referencing the Plat created the lots.?ÿ Therefore if a survey was done then the question of fact is where did the the stakes get set.?ÿ If two stakes are found and the intermediate stakes are missing the most logical presumption is that the intermediate stakes were set at or near their proportionate positions.?ÿ This was to restore the original stakes to their most likely original positions.?ÿ If a Deed conveyed a Lot depicted on a Plat then the Grantee was bound by the stakes set on the original survey.
On the other hand, if a Deed described a tract and the Grantor owned all of the ground in the description then the Grantee received everything described.?ÿ When the Grantor conveyed the remainder of his lands the next Grantee could only receive what the Grantor still owned.?ÿ This is the general legal principle.
In the 19th century it was not automatically assumed that a Grantee would receive only a proportionate share of an unstaked block.?ÿ This is why the aliquot system was invented in the PLSS; to ensure that it was understood that the unstaked aliquot parts should be staked by proportionate measure otherwise if the quarters were described by distances or by areas (e.g. the NE 160 acres) it would raise a possible conflict between subdivisions.
Boundary location is mostly a question of fact; questions of fact don't lend themselves well to strict application of rules.?ÿ The Courts in the cases I have read don't strictly apply rules to the exclusion of obvious justice; this is why doctrinaire land surveyors are usually shocked when an opinion is handed down which seems to conflict with surveying rules thought to be sacred.?ÿ Also there is an interplay of principles, rules, presumptions, and fact analysis that doesn't always come out well in half inch thick technical books.
Okay, back to cleaning point clouds YIPEE!
The idea that plats create lots goes back to Thomas Jefferson. The idea that junior/senior rights do not exist in subdivisions of townships was a major revolution. This idea was logically adopted adopted to apply to subdivision surveys. This security in location is why many jurisdictions require subdivisions to be platted, its not just to give planners and surveyors work.
I think there is regional confusion with the term subdivision. In Paul's area a subdivision sounds like what the suburbs are filled with, but on the other extreme, in some jurisdictions a piece of land is part of?ÿ subdivision if its boundaries are not described by a patent.?ÿ
I can definitely see the argument for junior/senior rights in older subdivsions where an owner owns X amount of lots and portions of another. Around South Florida, these instances are usually the older and or oldest neighborhoods in the area and the plats date back to around the early 1900's to 1940 and the lots were all 25' wide. There is still some of that in the newer plats but most "modern" subdivisions around here are relatively cut and dry with a few errors here and there. In the older plats more so I can see where junior/senior rights could come into play, however within a "modern" subdivision created recently, most definitely not. Could there be a point in time, or a legibility factor?ÿ that should be considered when determining if these rights could come into play? A sort of, definite "it depends" line?
I can definitely see the argument for junior/senior rights in older subdivisions where an owner owns X amount of lots and portions of another. Around South Florida, these instances are usually the older and or oldest neighborhoods in the area and the plats date back to around the early 1900's to 1940 and the lots were all 25' wide. There is still some of that in the newer plats but most "modern" subdivisions around here are relatively cut and dry with a few errors here and there. In the older plats more so I can see where junior/senior rights could come into play, however within a "modern" subdivision created recently, most definitely not. Could there be a point in time, or a legibility factor?ÿ that should be considered when determining if these rights could come into play? A sort of, definite "it depends" line?
The 19th century cases I have read don't consider whether the Plat created lots simultaneously because that is not the theory upon which they base apportionment. What they say is given there was a Survey that set a series of stakes and only two stakes remote from each other can be found, it cannot be presumed that the discrepancy in measurement between the two found stakes is limited to one part of the line rather the discrepancy must be apportioned along the whole line because that is most likely how the stakes were set originally. Platted lots and PLSS aliquots have descriptions which do not conflict rendering the senior/junior positions of the Lot owners irrelevant.
The California appellate courts have stated in recent opinions the Plats before the first Subdivision Map Act did not create lots, they were only a graphical description which could be used in deeding out property. If the owners never held title with reference to the Plat then the lots were not created and do not exist.
Some have mentioned the remnant rule. Some of the opinions decline to adopt the rule saying it doesn't make sense to penalize the odd Lot owner just because his lot is odd shaped.
"It is typical in platted subdivisions that all lots created are not or cannot be subdividable"??????ÿ?ÿ
Not at all true.?ÿ I frequently have created subdivision plans on lots that were created by a subdivision plat.?ÿ Whether it be a simple land swap to create a better building lot, or even dividing a lot that was oversized.......
Around here, nothing in land use is "typical".?ÿ We regulate subdivision at the county/municipality level, so there are 175 +/- different subdivision regulations in the state (24 counties, about 150 towns, cities, villages, etc.)
A filed map subdivision creating building lots typically creates them just above the minimum allowable lot size. Lots may be larger but may also have restrictions to further development, such as failure to have sufficient locations for septic systems. It is not usual to subdivide a lot into more legal size building lots.
Interesting that 10.1.7.1.4 gives conditions in which deed/map staking is the correct procedure. It does not rule out that evidence on the ground may show apportioned monuments not in agreement with map/deed distances.
This is the summary page laying out areas where PA boundary law may be unique
Here is the section on junior/senior consideration in plat retracement
It appears that Merlino v. Eannotti, 177 Pa. Super. 307, 110 A.2d 783 (1955), calls for the date of execution, not the date of recording.?ÿ Subsequent grantees would be bound by the date of execution if they have actual notice of the prior Deed but if they only have constructive notice of the prior Deed then it would be the date of recording.
[1] Boundaries Control of Metes and Bounds or Courses and Distances Over Other Elements
An original grantor who, after dividing a plot of land into lots and filing a map thereof, sold a portion, describing the boundary line as 111 feet and 3 inches along the avenue, and later conveyed the remaining portion by metes and bounds as described on the map, could convey to the second grantee only such portion of the plat as was left after the first conveyance even though there was a discrepancy between the amount actually conveyed by the first deed and the same lot as shown on the map.
[1] Boundaries Control of Natural Objects and Monuments Over Other Elements in General
The boundaries of land, as marked out by definite monuments, will control courses and distances called for.
[2] Boundaries Location of Corners Where calls in a deed are readily ascertainable, all corners are of equal dignity and a survey may be started at any one of them, but where the beginning corner is the only one marked on the ground it is necessarily of controlling force.
[3] Boundaries Courses and Distances Reversing lines of a survey should be resorted to only when the terminus of a line cannot be ascertained by running forward, and when the beginning corner is known, the calls ought not to be reversed except in order to make the survey close.
[4] Boundaries Control of Water Courses, Highways, and Fences Over Other Elements In action in ejectment to determine boundary lines, where surveyors for both parties could not reconcile courses and distances given in plaintiffs' deed with the established place of beginning at the intersection of two streets, nor could the fourth call in the deed be adjusted to meet street, deed was clearly erroneous, and distances in it were given no recognition.
[5] Vendor and Purchaser Effect of Notice Where boundaries of two adjoining lots overlapped, and plaintiffs had actual notice prior to time of their purchase that defendants had purchased the adjoining lot from common grantor and had constructed and were living in house, it was incumbent upon plaintiffs to ascertain the boundary line of the prior conveyance, for their line did not only yield to, but extended up to the line of the earlier deed.
[6] Boundaries Priority of Grants and Deeds Where there is clash of boundaries in two conveyances from same grantor, title of grantee in conveyance first executed is, to?ÿextent of conflict, superior, and this is so even though the conveyances were made with reference to a map or plat.
[7] Boundaries Control of Calls for Adjoiners Over Other Elements Where land is described in a deed by courses and distances and also by calls for adjoinders, the latter, where there is a discrepancy, must govern.
[8] New Trial Determination in General The Court of Common Pleas en banc has no fact-finding power.
[9] Boundaries Location of Corners, Lines, and Monuments In action in ejectment to determine boundary dispute, where plaintiffs in their complaint set forth the description as it appeared in their deed and made no allegation that such description was erroneous, evidence did not support a finding which rewrote plaintiffs' deed by increasing the length of frontage along road from original 75 feet to 81.21 feet.
[10] Reformation of Instruments Matter of Description Where description in plaintiffs' deed was clearly erroneous, and defendants' deed from common grantor was prior in time, and boundary lines overlapped, plaintiffs' deed was reformed to conform to monuments and defendants' boundary line.
