Can anyone cite a case to dealing with the original intent of the deed as it relates to the following description? I have a very strong opinion as to how this should be handled, which I will state later. Here is the situation. The following description is taken from a condemnation involving a Federal Agency. The underlined calls are the ones being questioned by this Agency. The call is to a concrete monument set along a Ga Power Easement and then along the Easement to another concrete monument. We found the monuments and the measurement checkout in reason for this area with the deed calls. The point where I am being challenged is that the monument are not on the Ga. Power Easement. On the plat not referenced in the deed, the original surveyor called for a 200 foot Ga Power Easement. The Ga. Power Easement deed calls for a 150 foot easement, which places the monuments 25 feet from the easement. The Agency has asserted that the property line may be along the easement and not defined by the monuments found. What say you? A strong ruling by the courts would be greatly appreciated.
The call to the easement would prevail for me. Doubtful that the INTENT was to have a gap. I'd rather explain away the monuments than the presence of a gap. But, prior to any further work I would re-research the project looking for an additional 25ft of easement.
Steve
sjc1989, post: 345987, member: 6718 wrote: The call to the easement would prevail for me. Doubtful that the INTENT was to have a gap. I'd rather explain away the monuments than the presence of a gap. But, prior to any further work I would re-research the project looking for an additional 25ft of easement.
Steve
+1
Ditto above. (+2).
The description is clearly ambiguous. You can't ignore that fact either; so that should be cleared up by the time you are finished.
To be clear. There is no ownership gap either way. Ga Power has an easement. They are not the owner. The line described in the deed was created by the Declaration of Taking. The Defendant had a remainder piece. The Defendant later sold their property to another entity and the deed uses the monumented line. If the easement line had been an existing property line, it would be a slam dunk.
Yes the area between the easement and the monumented line will be shown with calls and a separate area and with a note giving the facts. So would you show this area within or outside the overall parcel?
Given the info provided, outside.
Did you survey both edges of the easement? If you had never seen the unrecorded plat, what would your opinion be?
We did. The easement is based on 75 feet each side of centerline. The clearing is consistent with 150 feet as well. Honestly, I am not sure how not seeing the plat would have influenced my thinking. The plat was not referenced in the deed; however, it was a part of the Condemnation proceeding. The main thing in this instance the plat shows is that the Easement width was in error. I am just trying to cite all the facts. My opinion will come later.
My thought was that if you had not seen the plat, you might have blown right by those monuments for a point 75 feet from the center line and wondered why the monuments were not in, or possibly stopped at the monuments and wondered why the easement was "off".
To the easement, clear intent
If I understand correctly, you are surveying the parcel that abuts he easement? If so, I would probably take the leap and show that conflicting area as being part of the parcel that abuts the easement. I would suggest that the monuments are "offsets" to the easement corners./points of curvature. I would show that this is the case in my professional opinion. One might suggest that some kind of corrective deed clarifies the exact intent of the original deed.
It sounds like you know what you're doing though, so I suspect your plat will make it clear to the user.
My opinion is that you go to the monuments which were set as the definition of the property.
I would hold the monuments as set.
- The parties at the time of the condemnation believed the Easement to be 200' wide.
- The lines were run and the monuments set and called for at the time of the condemnation. The monuments were visible for all parties to see. The call to an easement is not visible to the common landowner.
- Ambiguities in the Deed should be construed against the condemner (the federal agency). In cases of doubt or ambiguity, contract must be construed most strongly against party who prepared it and favorably to party who had no voice in the selection of its language. Herbil Holding Co. v. Commonwealth Land Title Ins., 183 A.D.2D 219, 590 N.Y.S.2d 512
Have you checked with Georgia Power's Land Office? They have always been VERY helpful to me in the past. They provided deeds, plats, etc. Not all their easements are centered on the power lines and not all clearing is to the limits of the easement. If you haven't already, that would be my first move. If nothing else than to compare other easements up and down the line for common threads.
Andy
I don't see ambiguity. I would hold the concrete monuments as called for in the Deed. "Along the easement line" is locative but not determinative, the monuments are determinative.
If the Feds intended to take to the easement, I don't see it in the description provided.
Yes we checked. We do not use clearing lines. It just enforces that it is their understanding. The location of the easement line is clear in the deed which agrees with the Ga. Power Survey Plat.
"Thence with the right of way" seems pretty determinative.
Dan we are on the same page. I believe the fact that this was a condemnation is important. The easement line represents usage and not ownership. No ownership gap exist. The Court mandated the transaction. The defendant was forced to sell. The area between the monuments and the easement is property for which the defendant was not justly paid. If Grantor and Grantee had agreed that they wanted the property to go to the easement, it would be a different story. The Grantee in this case didn't agree to anything. I will read the case that you have cited.
Thanks
Dave Karoly, post: 346036, member: 94 wrote: I don't see ambiguity. I would hold the concrete monuments as called for in the Deed. "Along the easement line" is locative but not determinative, the monuments are determinative.
If the Feds intended to take to the easement, I don't see it in the description provided.
I assume you are using some kind of legal interpretation of the terms "locative" and "determinative"? Could you expound on this? How do you know you are on the definite monuments if they are not contiguous with the "easement line" (or the reverse).
I consider it ambiguous a lot because it appears that a reasonable interpretation of the deed could come up with two different locations on the ground. If they meant to describe monuments that are "X feet from and parallel to" an easement line, I could think of a lot better way to express that.