I have been asked to provide a cost estimate on a piece of property that has a metes and bounds legal description that gives bearings and distances to a creek "as it existed in 1960". Not sure yet how the creek fits these days, but am wondering how to handle it if a conflict does exist.
Which holds?
Jim_H, post: 380117, member: 11536 wrote: I have been asked to provide a cost estimate on a piece of property that has a metes and bounds legal description that gives bearings and distances to a creek "as it existed in 1960". Not sure yet how the creek fits these days, but am wondering how to handle it if a conflict does exist.
Which holds?
I haven't ever seen the "as it existed in year" before. Calling for the meanders of the branch is pretty common. Maybe it's in steep country and it has solid banks, usually the creeks in the lower flatter areas will change course a lot over the years. Mountain streams no so much.
Jim_H, post: 380117, member: 11536 wrote: I have been asked to provide a cost estimate on a piece of property that has a metes and bounds legal description that gives bearings and distances to a creek "as it existed in 1960". Not sure yet how the creek fits these days, but am wondering how to handle it if a conflict does exist.
Which holds?
A boundary of a tract that calls for a creek or other waterway is ordinarily a riparian boundary that follows the waterway as it moves by the natural processes of accretion and erosion. When meanders are recited along a riparian boundary, they are ordinarily for the purposes of area calculation, not to fix the location of the boundary for all time. In tha context, I'd think that the natural meaning of "as it existed in 1960" would be to qualify the area calculation unless there is some other intention plainly evident from examining the conveyance in the chain of title that originally created the boundary along the creek.
In NC, if the creek moves gradually it is accepted that the line moves with the creek. Unless there is a rapid change such as a flood or human persuasion, perhaps there was a flood in your area and someone was sharp enough to document it when it happened.
Adam, post: 380121, member: 8900 wrote: In NC, if the creek moves gradually it is accepted that the line moves with the creek. Unless there is a rapid change such as a flood or human persuasion, perhaps there was a flood in your area and someone was sharp enough to document it when it happened.
Yes, the same principles apply here. It's the time stamp that is throwing me a bit. I think it coincides with the date of the first conveyance as it also calls out a road as it existed on that date.
I'd be interested in how one could ascertain the 1960 location of the creek (if it has meandered). Available field evidence might be difficult to date.
Also I don't know the size of the creek, but around here available 1960 aerial images aren't a real desirable quality. Usually the contact prints were 1"=800', 1"=400' of you're lucky.
Like everybody else, I've never seen a description call that refers to a creek "as it existed..." on a specific date. Could be a big ambiguity, or might not. GOod luck.
Kent McMillan, post: 380120, member: 3 wrote: A boundary of a tract that calls for a creek or other waterway is ordinarily a riparian boundary that follows the waterway as it moves by the natural processes of accretion and erosion. When meanders are recited along a riparian boundary, they are ordinarily for the purposes of area calculation, not to fix the location of the boundary for all time. In tha context, I'd think that the natural meaning of "as it existed in 1960" would be to qualify the area calculation unless there is some other intention plainly evident from examining the conveyance in the chain of title that originally created the boundary along the creek.
This is what I would think, they are just saying that to qualify their closure, I can see some of the old surveyors in our office saying something like that.
paden cash, post: 380126, member: 20 wrote: I've never seen a description call that refers to a creek "as it existed...
It must be a regional thing. I have surveyed another piece of property that was described similarly. In that case though, the property was described as lying easterly of a certain creek as it existed in 1913. That one was a little simpler because it didn't have corresponding measurements to place the creek in a certain position. I just put a disclaimer on the record of survey basically saying that the survey depicts the creek in it's present location and doesn't purport to represent it's position in 1913.
In this case, I would definitely feel more comfortable accepting the creek in it's current position rather than not. Just wanted to be sure I wasn't missing a precedent that may have been set.
I think Kent is right. Unless there has been some major avulsion event radically changing the course of the creek, access to the water of the creek should be protected as it is specifically called out as a natural boundary and the date 1960 is only a qualifier for the purpose of calculating the acreage. Any interpretation on your part that results in the denial of access to water could result in a significant loss of value to the property. Me .02'.
Williwaw, post: 380153, member: 7066 wrote: I think Kent is right. Unless there has been some major avulsion event radically changing the course of the creek, access to the water of the creek should be protected as it is specifically called out as a natural boundary and the date 1960 is only a qualifier for the purpose of calculating the acreage. Any interpretation on your part that results in the denial of access to water could result in a significant loss of value to the property. Me .02'
I agree completely, just wanted to make sure. Here is the legal.
paden cash, post: 380126, member: 20 wrote: I'd be interested in how one could ascertain the 1960 location of the creek (if it has meandered). Available field evidence might be difficult to date.
Also I don't know the size of the creek, but around here available 1960 aerial images aren't a real desirable quality. Usually the contact prints were 1"=800', 1"=400' of you're lucky.
Like everybody else, I've never seen a description call that refers to a creek "as it existed..." on a specific date. Could be a big ambiguity, or might not. GOod luck.
"I'd be interested in how one could ascertain the 1960 location of the creek ..."
Aerial photography - I have been amazed at how far back one can obtain aerial images - some in remote places that have no particular interest that I could figure out. It may take some digging but I have found some amazingly old images. State historical socities and military archives can yield real surprises!
Jim_H, post: 380155, member: 11536 wrote: I agree completely, just wanted to make sure. Here is the legal.
I disagree.
I've read the legal in its entirety and a plain reading of the creek calls is unambiguous to me; the scrivener intends the 1960 creek location to be the fixed boundary, no matter where the creek is today or in the future. The legal provides the bearings and distances of the 1960 centerline of the creek so its 1960 location is determinable from the legal itself, no need for extrinsic evidence. Also note that there are calls for the creek from the point of commencement to the point of beginning; if the POB moved with the creek the entire parcel location would shift with the creek, how does that make sense?
This is a case where riparian rights do not apply. To step outside of the four corners of the legal and declare the creek boundary riparian ("because that's how it's usually interpreted") is a mistake here because there's no ambiguity in the legal which would allow extrinsic interpretation(s) to enter the boundary determination.
Just to ward off rebuttals, I'm well aware of what a call to a riparian boundary implies, and that the bearings and distances cited along such a boundary are secondary to the actual location of the boundary, which moves with the watercourse forever attaching the parcel to the water and the profound rights that entails (except in an avulsive situation). In this case I'd be quite comfortable appearing in court to defend my boundary determination against a surveyor who places the boundary at the present location of the watercourse because of the diminished estate of the owner were he/she to lose access to the creek. That's a subjective and unwarranted interpretation of an unambiguous deed that is clear in its intent.
Mike Marks, post: 380174, member: 1108 wrote: This is a case where riparian rights do not apply. To step outside of the four corners of the legal and declare the creek boundary riparian ("because that's how it's usually interpreted") is a mistake here because there's no ambiguity in the legal which would allow extrinsic interpretation(s) to enter the boundary determination.
The missing element is, of course, the conveyance that first created the boundaries along the road and creek and the point in the chain of title where the phrase "as it existed in 1960" or something similar first entered the picture. If the road and the creek were existing boundaries before the reference to 1960 (as seems likely), then the boundary along the creek was already riparian and the reference to 1960, unless the same grantor owned land on both sides of the creek at the time the reference first appeared, could not make it otherwise.
This is exactly the sort of question that abstracting answers.
Kent McMillan, post: 380175, member: 3 wrote: The missing element is, of course, the conveyance that first created the boundaries along the road and creek and the point in the chain of title where the phrase "as it existed in 1960" or something similar first entered the picture. If the road and the creek were existing boundaries before the reference to 1960 (as seems likely), then the boundary along the creek was already riparian and the reference to 1960, unless the same grantor owned land on both sides of the creek at the time the reference first appeared, could not make it otherwise.
This is exactly the sort of question that abstracting answers.
I agree with Kent on this, also what do the adjoiners say? If they are clearly riparian then I think you would hold the creek as it is today. Also, whoever wrote the fieldnotes you have shown call to "as it so existed" after every call when referring to the creek, the road, and the westerly line. Seems like that is just something they would do for some strange reason. Maybe they were sued recently for a creek moving after they did a survey and were a little gun shy on what they wrote?
Kent McMillan, post: 380175, member: 3 wrote: The missing element is, of course, the conveyance that first created the boundaries along the road and creek and the point in the chain of title where the phrase "as it existed in 1960" or something similar first entered the picture. If the road and the creek were existing boundaries before the reference to 1960 (as seems likely), then the boundary along the creek was already riparian and the reference to 1960, unless the same grantor owned land on both sides of the creek at the time the reference first appeared, could not make it otherwise.
This is exactly the sort of question that abstracting answers.
An interesting observation.
I assumed the grantor was in 1960 parcelling off a piece of his larger land holding (owned the land on both sides of the creek) using the 1960 creek location as the dividing line, i.e. this is the first deed describing this parcel, based on no reference to an earlier deed in the description. Agreed a chain of title search is in order, but conjecture that he's engaging in a subdivision and no prior deed using the creek as a boundary exists.
I agree, the existence of a deed(s) prior to 1960 referencing the creek with no time element establishes the riparian nature of the boundary. But to muddy the waters, accept my assumption, that this deed is intentionally non-riparian based on its plain reading and is a subdivision of a larger parcel that does not reference the creek in this area. Does the grantor's remaining holding on the other side of the creek automagically also become non-riparian? If not, imagine the conflicts as the creek changes location.
You raise an issue that perplexes me. Assuming the other side of the creek is owned by others, is it possible for a grantor to sever the riparian nature of his parcel boundary by wording in a deed? It would appear not possible because the adjacent owner also has a riparian interest in the creek that would be affected by the deed, and he/she's not a signatory, introducing a defect in the deed as you outline above. which allows extrinsic (the earlier deed) evidence to be considered.
But, title to land is considered as a whole (subject to prior restrictions) and the owner controls any portion he holds valid title to (mineral & water rights, easements, permits, et. al.), and one element of title would be holding rights to a riparian boundary. There's really no way to divest that right without permission of the adjacent landowner? Hopefully a lawyer type can chime in on this.
There is no patent ambiguity in the description, but there is a latent one - that of the riparian nature of the boundary. That allows for extrinsic evidence to come into play.
Mike Marks, post: 380185, member: 1108 wrote: I assumed the grantor was in 1960 parcelling off a piece of his larger land holding (owned the land on both sides of the creek) using the 1960 creek location as the dividing line, i.e. this is the first deed describing this parcel, based on no reference to an earlier deed in the description.
I think this is likely the case. The desription of the larger remaining piece excepts this parcel as written. I will have to do more digging to be sure, but I think its a safe assumption that the original grantor owned both sides of the creek and conveyed this chunk in 1960.
Warren Smith, post: 380186, member: 9900 wrote: There is no patent ambiguity in the description, but there is a latent one - that of the riparian nature of the boundary. That allows for extrinsic evidence to come into play.
Agreed. It's odd how often a perfectly formed deed comes under attack based on earlier records which reveal the deed cannot transfer what the grantor did not own. In this case (my position is weakened by Kent's and your observations) I'll still hold the 1960 non-riparian boundary unless the title/abstract process uncovers evidence to the contrary.
If I remember the geography in that part of WA correctly, many of the streams flow over gravelly valley bottoms in braided channels that are prone to more or less continual change within the wider bed of the river, and somewhat prone to avulsive changes at the edges of the bed.
Is the geography at this location such that the creek would be prone to avulsive movement? What about other nearby creeks? Have you noticed that it is or was local practice among those who might not have a very good grasp of riparian boundaries that they would ad the "as it existed on..." language as a means of trying to avoid confusion in the event of some future avulsive event?
I agree with those who say that the language of the description is unambiguous, at least on its face, and that it is the location of the creek as it existed in July, 1960 that is the controlling factor and that barring some convincing extrinsic info from the chain of title, adjoiners' descriptions, or evidence of circumstances or local/regional practices that indicate otherwise, that the boundary is not riparian.
In most western states, boundary location and surface water rights are not necessarily bound together. Water rights are, in fact often a completely separate issue. When a boundary is riparian, the only rights that are tied to the title as an incident of the boundary are fishing, waterborne travel/commerce, and the right to access the waterway for those purposes. Although it most often exists for riparian properties, the right to use the water for any form of irrigation or even livestock watering isn't necessarily automatic.
I'm not aware of any case law where the date qualifier could be disregarded. If such case law exists, it would be local or regional in its application for precedence in recognition of some local/regional practice.
In my practice, I often have to look to historic info to determine the last natural or last pre-avulsive location of a river, which in reality is a best estimate of that location. We do that with historic aerials of the area before, during, and after the time period of the artificial or avulsive changes, historic mapping from state and federal agencies, from local flood & irrigation districts, and from recorded maps. Sometimes, if there isn't much info in aerial image or map format, we have to broaden our scope to ground based photos, old news accounts, etc. Of course, you also need to inspect the ground for evidence of any historic channel/bank locations, and if they exist, analyze how those locations match up with any other documentary or parol evidence you are able to gather.
Hopefully you'll find the creek to match the courses fairly closely and be able to avoid the more PITA aspects of the exercise.
I was scheduled to perform a survey on the Green River just prior to Mt. St. Helens erupting in 1980. It's a good thing I postponed it. The watercourse was certainly avulsed shortly thereafter.
BTW, the disease one gets from breathing volcanic ash is known as pneumonoultramicroscopicsilicavolcanoconiosis. You don't want that ...
