SurveyLTD brought up a good issue below, that makes me want to ask a couple of questions:
The grantor tells me he wants to grant the East 1000' of his property; no more no less. He doesn't want a monument to control, he wants the distance to control (I don't know why, maybe he promised someone they would get that distance....You could imply the same scenario if it were area...it is the desired primary controlling call).
So I write a deed for him making the 1000' the primary call and do not call to monuments, fences or have any call in the deed that is a higher order in the rules of construction. Now: another surveyor (or I) go out after the deed is written, and stake the property at 900', due to a bust (for instance). Does that first mark hold? Even after the sale has taken place and the owner relied on the mark I set? If not, what if the surveyor busted 10', 5', or 1'? If the deed called to a monument, then I get it, but isn't the distance the deeded higher-order call in this scenario?
I think that is the very quandary Mr. LTD is describing, but I wanted to exaggerate it with a 100' error....
What do you guys think?
That is exactly the point I was trying to make.
I can go out and survey the East 330 feet of the lot - so whay tell me explicity where the East line is located ? Must be a good reason - lost to time.
> SurveyLTD brought up a good issue below, that makes me want to ask a couple of questions:
>
> The grantor tells me he wants to grant the East 1000' of his property; no more no less. He doesn't want a monument to control, he wants the distance to control (I don't know why, maybe he promised someone they would get that distance....You could imply the same scenario if it were area...it is the desired primary controlling call).
>
> So I write a deed for him making the 1000' the primary call and do not call to monuments, fences or have any call in the deed that is a higher order in the rules of construction. Now: another surveyor (or I) go out after the deed is written, and stake the property at 900', due to a bust (for instance). Does that first mark hold? Even after the sale has taken place and the owner relied on the mark I set? If not, what if the surveyor busted 10', 5', or 1'? If the deed called to a monument, then I get it, but isn't the distance the deeded higher-order call in this scenario?
>
> I think that is the very quandary Mr. LTD is describing, but I wanted to exaggerate it with a 100' error....
>
> What do you guys think?
Unless the monuments were set simultaneously and part of the land transaction/sale the deed should hold. This assumes that the property has already been sold.
If he is still the owner of the new tract and has someone stake it and they stake it in error and then he sells the property ( which is now staked on the ground with shiny new monuments) the monuments would hold imo.
I was always taught that the grantor's intent controls over ALMOST everything in the deed. It is just usually the hardest to prove. My opinion would be if it is clearly stated that the "Intent of the Grantor" is to grant 1,000' then I don't really see how it could be correctly derived to mean anything else. Just as the same as if the grantor intended to grant 5 acres, no more and no less. I would believe that the call for 5 acreage would have to be given much higher priority due to intent.
> I was always taught that the grantor's intent controls over ALMOST everything in the deed. It is just usually the hardest to prove. My opinion would be if it is clearly stated that the "Intent of the Grantor" is to grant 1,000' then I don't really see how it could be correctly derived to mean anything else. Just as the same as if the grantor intended to grant 5 acres, no more and no less. I would believe that the call for 5 acreage would have to be given much higher priority due to intent.
Neil, that make sense to me. And aren't we taught that the intent is written within the four corners of the deed? Even if they didn't spell out that as the intent, is saying "1000'" as the distance without a call to a monument enough? How can you read into the deed a bound of "a number 5 rebar with a yellow plastic cap" when the only call is "1,000 feet". We have been bombarded with the fact that a monument trumps everything else, even if a monument is not called for. But is that right? Most books I have read use the terminology seniorty (or priority) of calls and don't put down uncalled for monuments anywhere in their list.
Same with acreage. If I deed you 10 acres, and don't call to any monuments; and you only get 8 acres due to "uncalled-for" monuemnts:
wouldn't you be coming back to me and saying "hey I paid you for 10 acres, and you only gave me 8?"
Would I be in breach of the contract for misrepresenting the acreage?
Now that you posted this and I know it's there it is an original corner set by the original surveyor - I would hold the rod. Intent is what really counts but you just called out the monument which rules. Actually, I don't know where the survey is located so you are messing with my mind? That changes everything. Was it known/relied on by by all?
The four corners rule has gone the way of the horse and buggy. There is the occassional application but usually it does not apply. A habendum clause at the end that tries to explain the intent, again usually does not overule particular language in the body, but can bolster it. Most of the hard and fast bright line rules of law have given way to an analysis of what is fair and reasonable.
IN any event, what you illustrate is a mistake in fact. It could be bilateral or unilateral. The solution would depend on subsequent occurences and passage of time and other surrounding facts. Did either party notice the discrepency, which one or both, when was it noticed, have they or others relied on the deed or monuments, should someone have noticed or is it hard to determine, what are the current equitable consequences for any given solution, etc...
But your hypothetical is different than the situation posted below. Smaller differences in the distance or area would be considered fullfillment of the bargain and deal done. If I buy a pound of butter and open the box to find one stick, I'm entitled to some relief. If I find 4 sticks, but it weighs out slightly different on my home scale, then it is still good enough to fulfill the contract. If I resell that "pound" the new buyer gets exactly what I got, not a remeasure that makes exactly a pound on the new buyers scales.
I had a similar situation to that posted involving about 30 feet of lakefront that the grantee was shorted. The grantor sold the remaining land, but later bought it back. The court granted 30 feet of the remainder to the original grantee's lot (a different owner now) by way of estoppel. In other words, the original monuments held until the original grantor came back into possession. But the original would not have held had it been discovered before the original grantor sold the remainder based on the existing monuments. I have never seen anything like this when there is up to 5 feet floating around. That's just measurement error typical in this area, not mistake.
I like that butter analogy Duane. Puts it in terms a nonsurveyor could understand quite well. Although I know surveyors who would argue that the pound would need to measure exactly a pound on the new scales when resold.