Morning, all.
Fairly new to the forum, typically lurk (few meat-less comments here and there) and appreciate the depth of discussion and tact consistently displayed.
If you have a few minutes, please tell me what you think of this (attached image w/ text of "note #9" below for reference).
Map north is to the top of the picture. Record from the south is generally "to the run of the branch", consistently, and goes back to 1913 (seems to go further). The record to the north runs back to a map filed in 1941 w/ no apparent deed reference differing from the map and no prior deeds (earlier than '41) being cited or found.
Possession is not demonstrated by either side; although, I found remnant of 'hog-wire' fence appearing to possess from the south (I am not in a PLSS state; east-coast, metes and bounds).
From the north, there is clearly no management or occupation across the "branch".
The northern "owner" is HOA and the area is considered common area on a map filed in the 90s (that map largely reflects the 1941 map).
NOTE #9:
9. OVERLAP OF RECORD; xxxxxxxx COUNTY REGISTRY. SPECIFICALLY, THE SUBJECT TRACT IN THIS PORTION OF THE PROPERTY BOUNDARY IS DESCRIBED AS, "...DOWN AND WITH THE CENTER OF THE RUN OF THE BRANCH..." (DEED BOOK xx, PAGE xxx; DATED 11/05/1913). FROM RECORD, THE PROPERTY TO THE NORTH (xxxxxx SUBDIVISION) FOLLOWS THE SURVEYED LINE S 63° 51' 08" E (RECORD LINE S 63° 49' E) TO ITS INTERSECTION WITH xxxxx CREEK TO DESCRIBE THE SAME PORTION OF THE PROPERTY BOUNDARY (MAP BOOK xx, PAGE xxx; DATED 01/02/1941). THE RESULT IS AN OVERLAP OF +/- 0.11 ACRES (+/- 4,722 SQUARE FEET).
I am surveying for the owner to the south of the creek and feel the boundary is the creek.
The overlap is all within 'AE' flood hazard and is probably 'wet' to some extent.
Has the land aquiesced to the '41 or 1990s map?
Do I tell an HOA?
Am I being clear enough with the map/ note?
Am I not going far enough?
Your thoughts are appreciated. I will try to reply if followup is sought but it may be a good bit later (only employee in my new business).
Last note: I actually posted about this survey a while back because I knew there would be encroachments before even starting (different adjoiner and I believe that is settled).
[msg=244410]Original post about encroachments/ start of this boundary.[/msg]
Opinions On Possession
Check back to the original patents or junior senior rights, make sure your record is complete.
The 1941 map and old fence may show possession in the past. The 1990 map and monument show claim of possession for more than 21 years. What can be gained from adversity can be lost to adversity.
I would lean toward the monument, informing my client that his claim must be made in the courts and give him a cost for defense. Possession is a fact to be determined by the courts.
At a minimum your survey most show the overlap and record for each line.
You must think like a surveyor, not an advocate.
Paul in PA
Opinions On Possession
I partially agree with Paul. Research the chain of title for each parcel either to a common grantor or back until each calls for a common boundary.
I disagree with holding to the artificial monument simply because it was placed later but has existed for longer than the statutory period of repose. It is a set monument, it is not use and occupation. The branch is a monument, but it is a natural monument. You have conflicting monuments circumscribing an area that neither party has used for many years.
From your description, the only evidence of a history of actual use and enclosure that you have is the old HWF that appears to have been placed by a predecessor of the southerly property owner. The artificial monument is not accompanied by any evidence of enclosure or actual use by the northerly property owner (HOA), but the area was included on the map of the subdivision and used in open space calculations.
Both deeds and subdivision maps constitute constructive notice, but with no other overt acts of ownership exercised over the area between the monument and the branch, I doubt that a monument which is somewhat remote from the rest of the development and which was not relied upon to guide any use south of the branch would gain stature over a pre-existing and still existing, more prominant natural monument if that natural monument marks the senior line.
Open space is a designated non-use area, so I don't know how the NC courts would view that when considering either acquiesence or AP. I suspect that they would instead look at the seniority of each title and decide the case on that basis.
I would attempt to facilitate an amicable resolution between the landowners, but first, I would get all of the information pertinent to the apparent conflict that I could. If no resolution seems possible between the landowners, I would note the area, show the lines according to each conveyance, but place my dark line according to the senior title and include a detailed narrative explaining my research, the facts as I found them, and the potential claim of the other party.
There may be the requisite elements for AP or some other doctrine of repose. Note what you find with respect to that. If you can't facilitate an agreement between landowners, it is not up to you to determine if property has transferred as an operation of law.
Stream V. Monument Is Dependant On Jr. Sr. Rights
Possession for either side being very arguable.
Open Space is very often a dedication or easement to the municipality. Beware about trying to hold against the Sovereign.
Paul in PA
What is a:
6" CONC
W/ 1/2" RBF
(4" AG)
?
> What is a:
>
> 6" CONC
> W/ 1/2" RBF
> (4" AG)
>
> ?
Hmmm... 6-inch concrete (post) with 1/2" ReBar Found (4" Above Ground)...??????
Okay.
I use plain English but that's just me.
Found 6"x6" Concrete Monument, with 1/2" rebar (no tag), up 0.4'
Stream V. Monument Is Dependant On Jr. Sr. Rights
A municipality is not a sovereign although where it holds lands for public use, state law may afford it some of the same protections as those of the sovereign (the State).
Even if the land was dedicated to the municipality, a party cannot dedicate that which he has no right to in the first place. If the true title is with the southerly property, the dedication by the subdivider of the northerly parcel would have no effect. If that were the case, and the municipality wanted to retain that open space, it would need to either go through condemnation proceedings for it, or attempt to perfect title to it as a private party would through a QT suit.
I wonder why the 1941 map shows it that way, of course you do too.
Maybe they missed an exception (e.g. Excepting therefrom that portion south and west of the branch"). Or maybe they are right, they had a deed from the south. It's not unusual to see Deeds in a chain that sold a portion continue using the same description although they granted out a portion, particularly when it's family property (the deed from Grandma who sold the portion transferred the whole to Mom who transferred it to Son, etc.)
Opinions On Possession
> You must think like a surveyor, not an advocate.
>
> Paul in PA
Understood. I do lose perspective on that, sometimes.
I've been into the handwritten deeds for the parent tract to the south (difficult to read, I must admit).
However, I lost the chain from the north because I found no references further back than the '41 map.
Will re-re-re-re-review what I have. Might end up at the registry one more time.
Opinions On Possession
Mr. Page/ all:
I should add, I advised the owner that there is ambiguity and that I couldn't find agreement because of the 'dropped' chain from the north.
He has not shown any strong inclination to "own" the overlap and it is fairly 'poor' land (flood AE and probably wet).
You did just click my head into getting something formal on my notification and his statements about not fighting for it.
Opinions On Possession
In this case, the open space is dedicated to the home owners (HOA) not to the muni.
It is a requirement of the recorded subdivision and does tally into their approved land use.
I have struggled with approaching that neighbor (an HOA) as I would a person living in their home. Fear of the "communitied" mind. 😀
Mr. Sellman gest the prize. Sorry I wasn't able to chime in Mr. Karoly (I see you're west coast).
I came up under a gentleman that preferred abbreviations and I still fight, internally, when putting longer lines of text at the vertex of a boundary.
I did find an exception of that type for the subject tract. However, it only affected the eastern 'half' (I am working on what remains to the west)... less and excepting that land to the west, if you will.
Nothing on the northern portion of the subject tract.
Side note, all parcels of the same vintage and south of the creek are deeded 'to the run of the branch'.
On whole, I'm going to go through my research again and make sure I didn't miss anything. Ask the client if he wants to get an attorney to chase the title from the north if I can't find the bridge over that break in title.
I appreciate the thoughts. Have a good weekend.
