I am currently looking at a scenario where a subdivision was created in the 1890's and the original notes and plats were lost in the 30's by the county engineer (his recorded statement on a map) so the engineer made a new map with no bearings or distances showing the lots and blocks. This map was recorded and nearly all of the metes and bounds descriptions refer to being in one of these lots and blocks. The lot I am looking at backs up to a branch running through town and all of the descriptions (1890-present) go to rods set in a fence along the north bank of said branch. The East adjoiner goes to the centerline, the West adjoiner goes to the North bank and all of the South adjoiners go to the centerline. thereby leaving a strip between the North bank and the centerline on two lots. I have gone back in the research as far as I can and no one reserved the strip. This is 1/2 the bed of a wet weather branch i.e. little value
From the best of my knowledge and research The strip and gore doctrine requires the strip
(1) to be small in comparison to the land conveyed,
(2) to be adjacent to or surrounded by the land conveyed,
(3) to belong to the grantor at the time of conveyance,
(4) to be of insignificant or little practical value.
Since this is obviously a candidate for Strips and Gores how would you show the strip? Would you go to the CL and possibly open up a can of worms down the road or stay with the well monumented North bank and let someone else worry about 1/2 of the creek bed later?
> (3) to belong to the grantor at the time of conveyance,
well, does it? was it conveyed to the grantor? was it, has it ever been, is it currently occupied by the grantor?
without more info, my first inclination would be to hold to occupation and delineate (both verbally and graphically) the area between the CL and the north bank as an area of unclear possession. let the title company do the title work. let the lawyers be lawyers.
It did belonged to the original Grantor in the 1890's
The reasoning could go like this:
There is a conflict between the rods (artificial monument) and the branch (natural monument). Generally natural monuments are superior to artificial monuments. A call for a monument is presumed to be a call to the center of the monument, generally it would be presumed the fee would extend to the center of the branch. Common sense indicates a grantor would not have a reason to keep a strip of land that has no use to him. There is no conflict with the south adjoiners.
A more likely location for rods marking side lines would be on top of the bank where the property owner can use them.
This is a question of boundary location, not title.
dave,
while i agree with you, i'm guessing there's a real (though probably not very likely, though i have no way of knowing) possibility that those working in more litigious professions might take issue with that statement.
my practice in the past- here in texas- is to raise the issue and let those who like to fight fight. i measure stuff, the attorneys make themselves feel important, and the title company ultimately decides what they're going to insure.
again, i'd show the area of occupation and the "lot" as two distinct tracts (if there is a difference). i'd annotate and note areas for each tract, each line, for both tracts together, and write 3 descriptions. then they can close on whatever they want to close on. again, from my own personal experience, this is the most expedient way around here to make sure you don't get bitten down the road.
You don't even have the original subdivision plat, how do you know the line is on the bank? What about the vesting deed that the subdivision was created from? Where does it run?
> You don't even have the original subdivision plat, how do you know the line is on the bank? What about the vesting deed that the subdivision was created from? Where does it run?
I agree with Andy. You need the vesting deed that the subdivision was created from.
The subdivision is on both sides of the creek. The deeds pertaining to the original subdivision were lost along with the original plat. On the map recorded by the county engineer he made a statement that said he "mislaid the original notes and plat" now all of the deeds refer to the new map without dimensions.
