So, in reviewing Craddock v. Humble Oil (Sketch), the appellant argued:
"The court erred in instructing the jury to disregard the calls for distance in all deeds, for the reason that, if the original deeds executed by the owner of the 100 acre tract of land show his intention to equally divide said tract and convey to Stewart the East one-half and to Justin Wilcoxson the West one-half, and the jury finds that there is a shortage in said tract, the court will presume this to be his intention and decree to each of the owners, L. Wilcoxson and W. M. Craddock, one-half of said tract."
But the court ruled:
"We overrule this point because the record reveals that there was no plan or scheme on the part of Dawson to divide the two tracts of land equally and to convey the same accordingly. The record shows that he deeded intervenors' tract of 50 acres some two or three months before he deeded the one now owned by appellant. Neither of the deeds refers to a plan, design or intention to equally divide the land but evidently does reveal that Dawson thought he owned 100 acres. So we find the facts in this case do not justify an application of the apportionment rule. See 97 A.L.R., pp. 1227-1230, and cases there cited."
I would normally be inclined to hold junior/senior rights in reconstructing the lots in the [msg=305646]unrecorded subdivision in H&TC Block 33[/msg].
However, I think the grantor of the lots did show his intent by calling specifically for the lot numbers in the heading of the metes and bounds descriptions. To use the language of the court, the deed does refer to a plan - even if unrecorded - that shows his intention to equally divide the section. Does you think that this distinction gives me sufficient cause to prorate the section?
> I would normally be inclined to hold junior/senior rights in reconstructing the lots in the [msg=305646]unrecorded subdivision in H&TC Block 33[/msg].
>
> However, I think the grantor of the lots did show his intent by calling specifically for the lot numbers in the heading of the metes and bounds descriptions. To use the language of the court, the deed does refer to a plan - even if unrecorded - that shows his intention to equally divide the section. Does you think that this distinction gives me sufficient cause to prorate the section?
I'd say that the question is this: If a description of a tract by metes and bounds can actually be located on the ground by the latitudes and longitudes given by the seller and actually is in conflict with land owned by others, does the language of the description still control if the deed has never been reformed?
As I recall the standard GIS firm metes and bounds descriptions, didn't they recite the lats and longs of various corners and wasn't part of the sales pitch that the purchaser would be able to locate his own property using those positions?
The other think that I recall is that in some of the internet sales, a map was displayed as part of the package to show the land being offered.
I suppose you had to pay extra for coordinates because they were not used in these legals.
If you sketch the description (which doesn't close by about 3 feet), there is a +/-2 acre overlap onto my client.
As mentioned in the previous thread, the only map I was able to locate was obtained by me from one of the former employees of Carto, which is now out of business. I have found no evidence that the map has been filed, but the legal descriptions call for the lot numbers shown on the map and the courses and distances in the descriptions conform to the map.
Well, supposing that the plat represents the original seller's scheme of subdivision and that it can be shown that the buyers did purchase their lots with the plat in view, are the metes and bounds descriptions of lots all tied to the same survey corner?
So, what's the problem? Lots on map, and metes and bounds agree. If you're thinking of holding either or both over monuments found that have an agreement with each other reasonable for standard practice at the time; then NO, don't change things (on the ground things). Intent is objective, and determined by acts (not thoughts) of the parties.
Yes, they all call for the "north" corner, a rock mound on the hill. In the field, it is actually the northwest corner and we tied a rock mound on a hill with 1/2 iron rod found in the middle. That is where all similarity between deed and field begin and end.
Someone's fixing to lose some acreage.
Duane, I think through both posts I've adequately stated the conditions on the ground and reasons for my uncertainities.
> Yes, they all call for the "north" corner, a rock mound on the hill. In the field, it is actually the northwest corner and we tied a rock mound on a hill with 1/2 iron rod found in the middle. That is where all similarity between deed and field begin and end.
Have you been able to identify where the person who drew the plat actually got his or her ideas about the exact shape of the tract subdivided? Is it just lifted from the patent?
Identical to the corrected field notes. The call for the POB monument is identical as well as the bearings and perimeter distances. Just their luck that the POB monument is actually still there.
> Identical to the corrected field notes. The call for the POB monument is identical as well as the bearings and perimeter distances. Just their luck that the POB monument is actually still there.
Are you sure that the plat was based upon the corrected field notes used for the sale of the land by the State?
This is the description of Survey 94 as given by the CFN:
****************************
Beginning at the West corner of Survey No. 93 on North bank of said [Pecos] river,
Thence N40°E, 3474 vrs to the East corner in South line of T & P. Ry. 16 Mile Reservation,
Thence with said South line S89°10'W at 1097 vs. pass a stone mound in head of a draw, 2355 vs. to stone mound on top of hill for North corner,
Thence S40°W, 23.3 vs to a corner,
Thence S50°E, 950 vs. to an L corner,
Thence S40°W, at 154 vs. pass a stone mound fr. wh. El Capitan Mtn. brs. N83-1/4W & West end of Davis Mtn S22-1/2W, at 2078 vs. a road, 2927 vs. to an earth mound & 3 pits on said bank for West corner fr. wh. a Mesq. 3" brs N50°W, 8 vs.,
Thence down said river with its meanders:
S28-1/2°E, 61;
S30-1/2°E, 76;
N73°E, 212;
N81°E, 70;
N49-1/4°E, 233;
N62-1/2°E, 207;
S68-1/2°E, 201;
S81-1/2°E, 193;
N26-1/2°E, 170 and
S88-1/4°E, 139 vs. to the Place of Beginning.
*******************************
The patent call of 23.3 varas would be along what was platted as the NW line of Lot 1, right?
My bad. They rotated so that the line is east-west. The north line of the section is
"Thence with said South line S89°10'W at 1097 vs. pass a stone mound in head of a draw, 2355 vs. to stone mound on top of hill for North corner."
The stone mound on hill in bold to is their POB. The "north" corner.
Which might explain the source of the misclosure since the bearing on the west line was not rotated the same 50'
To be more specific, I think you will have a hard time using the map to overcome any lines or improvements, even if they have only existed since 2006. I see this as little different than many protracted plans that have actually been recorded. And the map certainly has little standing against parties who can't obtain a copy of it. I think you need to honor any locations already done and relied on, as long as they are reasonable attempts to locate based on the descriptions. Then get the map recorded (if that is allowed) and then use an equitable division for the remainder.
I don't think the 1920 map has any meaning at all at this time.
What a mess. Are the internet land companies still allowed to do this? Isn't there some kind of subdivision survey/map requirement?
I agree with you except, this is in Texas, not a normal place.
> The stone mound on hill in bold to is their POB. The "north" corner.
>
> Which might explain the source of the misclosure since the bearing on the west line was not rotated the same 50'
But how did they arrive at a length of 181.06 ft. for a line that is given in the patent field notes as 23.3 vrs (= 64.72 ft.)? Is that a calculated distance based upon a North line of the survey being run WEST from the NE corner and a NW line of the survey being run N40E from the W'ly NW corner?
I think I'd be concerned that it could be shown that the one inconsistent element of the description (which states that it wasn't based upon a survey) is the call for the point of beginning if basing your location entirely upon it gives a crazy-looking result that is inconsistent with the entire scheme of subdivision.
:good:
To be more specific, I think you will have a hard time using the map to overcome any lines or improvements, even if they have only existed since 2006.
There are no improvements or interior lines. The surface is worthless desert scrub. These lots have been purchased off the internet by clueless people who will probably never see their land.
I see this as little different than many protracted plans that have actually been recorded. And the map certainly has little standing against parties who can't obtain a copy of it. I think you need to honor any locations already done and relied on, as long as they are reasonable attempts to locate based on the descriptions. Then get the map recorded (if that is allowed) and then use an equitable division for the remainder.
There are no existing locations. I plan to file a copy of the new as an exhibit with the right-of-way plat I am filing.
I don't think the 1920 map has any meaning at all at this time.
It is not relevant to the current scheme, but it is of record and if it served the needs of the grantor, I would think he could refer to it since it does exist. I bet when he finds out that it exists, he will kick himself for paying for a new "plat".
What a mess. Are the internet land companies still allowed to do this? Isn't there some kind of subdivision survey/map requirement?
Yes, it is a mess. The laws are loose enough in rural counties that subdivisions that create lots larger than a certain acreage are generally unregulated. The rules are a little tighter in border counties to prevent substandard colonia development and I did read a court case where the state actually prosecuted one of these guys but most of them know enough to get these junk plats filed.
I see what you mean. I honestly do not know how they arrived at their boundary, but I have seen no evidence in field or in records that any surveying was involved. I assumed last night that they had used the corrected field notes but you see where that assumption led me.
I'm going to do my best to reconcile the unrecorded plat with the field measurements and present my conclusion to the client. I have been writing a surveyor's report (which parts of have been posted and refined here) and will include that with my recommendations.
> I see what you mean. I honestly do not know how they arrived at their boundary, but I have seen no evidence in field or in records that any surveying was involved. I assumed last night that they had used the corrected field notes but you see where that assumption led me.
>
> I'm going to do my best to reconcile the unrecorded plat with the field measurements and present my conclusion to the client. I have been writing a surveyor's report (which parts of have been posted and refined here) and will include that with my recommendations.
Given what information you've posted, I wouldn't be surprised if there were at least two alternate constructions of the subdivision, one of which ignored the call for the rock mound at the POB as purely speculative in favor of actually fitting the pattern of subdivision to Survey 94 as conveyed to the subdivider.
I think I'd want, as a matter of equity, to study the entire pattern of conveyances by the subdivider to identify which construction, if either, would be more favorable to purchasers and less so to subdivider and which would do the most minimal damage to the subdivider's scheme.
Since the subdivider appears to have been obviously grossly mistaken as to the bearing of the North line of Sur. 94 and to have incorporated that error into his descriptions of the lots adjoining the North Line of Sur. 94, if the other lines actually do fit the patent calls, then the POB may be best described as a fictitious mathematical point that was mistakenly identified as being a particular survey corner without ever having visited the corner on the ground.
Fun stuff. BTW, I happen to own a square inch of the Chisholm trail somewhere in Texas. The deed came with a pair of boots I purchased back in the 70's. Can you survey that for me if I send the deed:-) I'm wondering if there's some oil or gas royalties I'm missing out on:-(
I have a deed for 1 square inch of heaven on earth; in Arkansas. It came in a Black Oak Arkansas album. LOL
