I agree that 60 acres when referenced to the original survey is unambiguous. Everything else seems to be by the replies given here and thus the danger in departing from the rules for subdivision on a line that has never been run.
Holy Cow, post: 406061, member: 50 wrote: The key point that has been largely ignored so far is that one must know where "west" is. We've beat "north" to death so now we've moved on to "west".
Does "west" equate to "westernmost"?
Where would the "west 0.05 acres" be found in this section? Would the east line(s) of the "west 0.10 acres" be parallel to the east line(s) of the "west 0.05 acres"?
Is the east line a single line or two lines?
In order for the westernmost 60 cares to be true the East line of that 60 acres must be N-S or parallel to the tract East line.
Paul in PA
Paul, the "Westerly 60 ac, of the SW1/4" is UN-ambiguous, as is. I have to disagree with the rest of you, who want to muck it up.
Without a qualifier, it is plain.
N
It most definitely is ambiguous. The only thing that isn't ambiguous is something that we all would agree on without discussion.
I wouldn't conflate the west 60 acres with the W2W2, W2E2W2, unless there is a chain that leeds you to that conclusion.
paden cash, post: 406006, member: 20 wrote: A slight hijack here..
I had a client a few years back that owned (amongst a thousand other) "The NE 8.53 acres of Gov't. Lot 3 of Sec. 5" (8N, 3W, I.M. I believe) . The intent (and boundary) was truly an aliquot division. It took some looking at and a research of the surrounding chain of title, but when I realized the solution it was apparent. Anybody else see the correlation? This is one example of "deeded acreage" being intended as proportional.
8.53 acres accurately describes the aliquot NE 1/4.
8 acres however is ambiguous, does it mean 8.53 or was other evidence found to truly mean 8.0 acres?
Paul in PA
Perhaps we interpret thing differently in our state. Our code states: ""Forty-acre aliquot part" means one-quarter of one-quarter
of a section." Many here use the south 20 and the S 1/2 of a 40 interchangeably in deeds.
All it takes is a room full of surveyors, to make trouble....
linebender, post: 406107, member: 449 wrote: Perhaps we interpret thing differently in our state. Our code states: ""Forty-acre aliquot part" means one-quarter of one-quarter
of a section." Many here use the south 20 and the S 1/2 of a 40 interchangeably in deeds.
"Forty-acre aliquot part" means one-quarter of one-quarter of a section."
That is easy to say, but when the text only says forty acres, it does not always mean the same thing.
Paul in PA
Nate The Surveyor, post: 406112, member: 291 wrote: All it takes is a room full of surveyors, to make trouble....
Boundaries
Part I Descriptions
The description, "The west 60 acres of the southwest quarter..." is unambiguous on its face. A Judge can't admit extrinsic evidence here. Evidence of surrounding circumstances may be admissible but not to change the description. This is important, the Surveyor like the Judge has no authority to change the description which is the west 60 acres. The details of exactly how to construe the east line may be in play to some extent but don't go too far in inventing solutions, it looks like speculation at some point. See Crook County v. Sheridan County, 17 Wyo. 424 (1909) for a pretty extensive discussion on changing descriptions or not.
If both parties believe it was really supposed to be an aliquot description (or something else substantially out of compliance with the existing Deeds) then I believe this is within the Statute of Frauds and they need to take steps to change the Deed descriptions.
Part II Establishment
According to the O.P. no establishment has occurred so we can't go here to find an existing boundary since there isn't one. The parties may agree to the specifics of a boundary which encloses 60 acres. If both parties want to agree to a substantial departure from the description as given then see my second paragraph above.
*My discussion here is based solely on the information given in the O.P. Receipt of new information, especially information in the public record, may lead to a revision of this opinion.
Without knowing State code here I would think that the description should have technically been described as the "Westerly" 60acres, not the "West". Clearly many here are comfortable taking that leap with the knowledge that the scrivener may not have been aware of this nuance. But if it's your survey, it's all about your own comfort level. If you feel a line of agreement is the way to go, by all means go for it, there is nothing quite like a metes and bounds description calling for physical monuments in the ground. There is also a value in looking at things through the lense of leaving the client with something that has the least possibility of challenge (right or wrong)and ending up in court, rather than one that is technically correct and would prevail if taken to court.
It may not be as straightforward as many who say there is no ambiguity. When was the description written? There was a completion survey that puts a significant skew to the N_S line. Was the original conveyance prior to or after the completion survey?
You have to interpret the description according to the information known to the parties to the original conveyance. If the record at that time included the Completion Survey, then it seems a bit more straightforward. But then, did the intend 60 acres proportional to the acreage shown on the survey record they had, or did they mean exactly 60.000 acres according to how Len Day would measure it in 2016/17? Is there much of a difference?
Descriptions reading "the West 80 acres of the SW 1/4..." were often written with the belief that the record showing 160 acres was accurate, and conflating The West 80 acres to be synonymous with the West 1/2 of the SW 1/4 (by govt measure) is more often than not the correct interpretation to get to the intent of the original parties. Taking that logic to this problem, conflating the W 60 acres to be synonymous with the W 1/2 of the W 1/2 together with the W 1/2 of the E 1/2 of the W 1/2 may likewise be correct.
If there is no way to determine which of these interpretations was actually intended, and there has been no previous establishment of the line, IMO, it would be arrogant and arbitrary of the surveyor to impose the interpretation that applies to the general case. Imposing that, or opining to that interpretation may be best if the current landowners each hold to conflicting locations and cannot agree on one of the reasonable interpretations.
The boundary was legally created by the original conveyance of the parcel, but it was never established and thus never physically fixed on the ground. If there were only one reasonable interpretation, then the job is much simpler. But whether or not some of you want to admit it, there are at least 3 reasonable interpretations. Leon has recognized this. I agree with his approach of plotting out the various reasonable interpretations and getting the landowners to mutually agree to one of them. When the map is filed, I advise a narrative that explains the various reasonable interpretations, why they are reasonable, and that the landowners mutually agreed to the one depicted on the map. Ideally, get them to file a BLA to memorialize the agreement.
It is our job to follow the available evidence to the conclusion of where the boundary exists. When the evidence does not take us all the way there, and leaves open the possibility that the true location is in one of several places, it is not our place to impose our opinion of the correct location by referring to a general rule according to this author or that one. It is our job to explain the limits of the evidence and the technical interpretations that additional evidence, if it existed, could lead us. If we find ourselves in such a position, we serve the landowners and society as a whole much better if we involve the landowners to get to an amicable solution that is a reasonable interpretation of the description rather than risk creating a dispute by imposing what we think is required by some inflexible rule.
Imposing one of two or more possible solutions when none of the solutions is fully supported by available evidence because we suppose that to be the rule we must follow but supported by no additional logic is arbitrary rather than well-reasoned. It serves the landowners and society well only if it is a solution that the landowners will agree to accept or if there are no other reasonable interpretations. If it comes to litigation with you as the expert that says "This is the only correct interpretation" and you point to a supposed rule in a text book, or to a case where the circumstances may or may not fit the case at hand, you may be the most credible witness. But if the other side produces an expert with equal or greater experience and or training, and that expert explains why other interpretations of the description are equally plausible and ties the reasoning to the specific circumstances of the case, you very well could be surprised by the judgment.
roger_LS, post: 406155, member: 11550 wrote: Without knowing State code here I would think that the description should have technically been described as the "Westerly" 60acres, not the "West". Clearly many here are comfortable taking that leap with the knowledge that the scrivener may not have been aware of this nuance. But if it's your survey, it's all about your own comfort level. If you feel a line of agreement is the way to go, by all means go for it, there is nothing quite like a metes and bounds description calling for physical monuments in the ground. There is also a value in looking at things through the lense of leaving the client with something that has the least possibility of challenge (right or wrong)and ending up in court, rather than one that is technically correct and would prevail if taken to court.
I didn't see this before I posted, and I agree with almost all of it. Many would impose the textbook, technically "correct" solution on the assumption that the scrivener was aware of the technical nuances that have built up in the rules so many surveyors take as absolute. The result being surveys performed with the attitude of "They may have meant something different that the technically correct interpretation of this description, but if that's so, they should have described it correctly. So they get what they get, whether or not either party likes it."
In truth, a lot of descriptions have been written by people who lacked the legal or technical background to know how to write a description that didn't leave any ambiguities to interpret. Was it written by the grantor, the grantor's lawyer, or a surveyor? In a case like this, if the scrivener knew (or should have known) enough to know the "correct" technical interpretation of what he wrote, then he should have also known enough to say "the West 60 acres, the East line of which being parallel to the westerly Section line", or " the W 1/2 of the W 1/2 together with the W 1/2 of the E 1/2 of the W 1/2", or whatever other possible interpretation one might derive. But he didn't. It may even be that some of the court rulings that the "rule" is based on didn't even exist at the time the description was written.
Even most surveyors don't know how to write a complete description properly. During the years I was involved in grading the CA LS Exam, typically less than 30% of the examinees were able to get 30% or more of the points of the land description problem. It didn't matter if the problem was one of writing a description with given data, or one of interpreting a description relative to given evidence. It didn't matter if it had a dozen courses or two (and to my great consternation, there was one with just two courses one of the years I graded). The results varied little. I was told by others who had been grading much longer than I that examinees grouped by year invariably did very poorly on the description problem.
If most lawyers can't write good descriptions, and even most surveyors can't write good descriptions, why should there be any expectation that a landowner or an unknown party write a description that completely and accurately reflects the actual intent of the original parties?
Many states have case law that instructs lower courts (and by extension, surveyors) to consider any possible interpretation in light of the situation and circumstances of the original transaction. For that reason, especially if you are in a state with such case law, unless there is evidence that tends to place the technically "correct" interpretation above other possible interpretations, or that tends to rule out other possible interpretations, then any of those interpretations might be the one that would prevail in court.
Courts tend to fall back on the technically "correct" only when there is insufficient evidence to support any other solution and there is a dispute where one of the parties to the action asserts the technically "correct" as being the true boundary. If each party asserts some different interpretation, then one of those technically "incorrect" interpretations will prevail. Technically "correct" is merely a presumption when it comes to existing boundaries.
roger_LS, post: 406155, member: 11550 wrote: Without knowing State code here I would think that the description should have technically been described as the "Westerly" 60acres, not the "West". Clearly many here are comfortable taking that leap with the knowledge that the scrivener may not have been aware of this nuance. But if it's your survey, it's all about your own comfort level. If you feel a line of agreement is the way to go, by all means go for it, there is nothing quite like a metes and bounds description calling for physical monuments in the ground. There is also a value in looking at things through the lense of leaving the client with something that has the least possibility of challenge (right or wrong)and ending up in court, rather than one that is technically correct and would prevail if taken to court.
I just saw that distinction in Brown. He doesn't cite any authority for this, it seems to be his personal opinion.
The law in California is the plain meaning of the words control, not the technical meaning.
I agree with everything Evan said except I think the description conveys 60 acres, not an aliquot part. If the quarter section is short then construing in favor of the grantee would deliver 60 acres who has a right to receive 60 acres. On the other hand if the quarter section is long then the grantee receives what he paid for. I think equity is in favor of my opinion either way. I do believe there may be times when the northwest 40 acres of..., for example, would equal the northwest quarter of..., but not here.
As I said before I'm going on the original post...if, for example, it turns out the real description is an aliquot then my opinions will be different.
We too frequently encounter the flip flop of descriptions that the writers believe to be identical. One conveyance may call out the east half of the north half of the southeast quarter. A later conveyance may call that the north half of the east half of the southeast quarter. Another may refer to it as being the north 40 acres of the east half of the southeast quarter. It might even show up as being the east half of the southeast quarter less the south 40 acres.
Swapping quarter-quarters and Government lots happens all the time. It may flip flop several times through the decades. Sometimes the deed uses one and the mortgage uses the other. In rare cases the whole quarter section has come under common ownership and, then, the owner conveys away a quarter-quarter and keeps the remainder. Did he mean the Govenment lot or did he mean a true division of whatever size the quarter section happens to be.
That is why I don't grab the first description that comes my way and assume it is absolutely the correct description for the intended action.
Similarly, no layman really means a strip precisely of a uniform width of say 30 feet is being conveyed off of a lot in a subdivision. What they fully intend is to go to a certain corner, measure down the somewhat perpendicular boundary that 30 feet then go to the far corner on the same initial boundary and measure 30 feet down the somewhat perpendicular boundary there. That is something they can do without having to be brilliant mathematicians schooled in trigonometry. Sure, it drives surveyors batty, but some of us are halfway batty already.
Holy Cow, post: 406198, member: 50 wrote: Similarly, no layman really means a strip precisely of a uniform width of say 30 feet is being conveyed off of a lot in a subdivision. What they fully intend is to go to a certain corner, measure down the somewhat perpendicular boundary that 30 feet then go to the far corner on the same initial boundary and measure 30 feet down the somewhat perpendicular boundary there. That is something they can do without having to be brilliant mathematicians schooled in trigonometry. Sure, it drives surveyors batty, but some of us are halfway batty already.
NO!
Don't make me smack you with my copy of Brown!
😉
I would question a surveyor's ability, in most cases, to even know as fact that a line has not been previously "established" on the ground. Even in so-called recording states like ca. the practice of regularly recording surveys didn't start happening until the mid 1980's around this area, so we have 100 plus years of potential "first" or "original" surveys being done that we may have no idea of today. We can see a fence, but may not notice a string of old buried pipes set 30' feet from where we now think the line is, or an old unfiled map in some dead surveyors records showing, indeed, the line was establish, and there is evidence to be found if you just knew where to look. So I don't know that I buy into the concept that, because we have no record of it being established, we have some more free rein to work with.
LRDay, post: 405625, member: 571 wrote: An associate called me about surveying the West 60 acres of the southwest quarter of Section 33. Not a new deed but the line has never been run (fenced or occupied to any line). So he is the guy. His concern was due to a GLO completion survey there is quite a skew to the west section line. So the question was parallel to section line, average of north/south section line and quarter section line, or just North to include the 60 acres.
My opinion was to use North for the line but run it by the landowners first to see if they are OK with it.
What do others think?
BTW other deed reads SW1/4 less the West 60 acres.
If there were evidence of a line run, and it showed a proportional acreage or something close to it, I would say that's evidence enough of intent to recognize proportional divide. Because, in the PLSS, it was common to use acreage in a proportional sense. But with no supporting evidence or testimony, then it becomes an original subdivision survey and nothing more or less than 60 acres can be read into it. I agree it would be best to get the landowners to agree on the location of the dividing line, and based on other evidence (or lack thereof) it might be wise to first get an agreement on the location of the westerly line if that is not clearly monumented, fenced, etc.. The 1920 work shows hatching to indicate re-survey of subdivisions, and it shows re-survey of north and south lines. It's not exactly clear if the west line in question was actually surveyed, or if the kink is merely due to connecting old map points and new survey points. The westerly adjoiner might yet claim no kink in that line. In which case your (friends) agreement could end up shorting what's supposed to be a 60 acre parcel. Which could result in a claim for damages because the surveyor suggested a solution that cost the landowner a real and measureable loss. But that's why we get the big bucks right.
Duane Frymire, post: 406236, member: 110 wrote: If there were evidence of a line run, and it showed a proportional acreage or something close to it, I would say that's evidence enough of intent to recognize proportional divide. Because, in the PLSS, it was common to use acreage in a proportional sense. But with no supporting evidence or testimony, then it becomes an original subdivision survey and nothing more or less than 60 acres can be read into it. I agree it would be best to get the landowners to agree on the location of the dividing line, and based on other evidence (or lack thereof) it might be wise to first get an agreement on the location of the westerly line if that is not clearly monumented, fenced, etc.. The 1920 work shows hatching to indicate re-survey of subdivisions, and it shows re-survey of north and south lines. It's not exactly clear if the west line in question was actually surveyed, or if the kink is merely due to connecting old map points and new survey points. The westerly adjoiner might yet claim no kink in that line. In which case your (friends) agreement could end up shorting what's supposed to be a 60 acre parcel. Which could result in a claim for damages because the surveyor suggested a solution that cost the landowner a real and measureable loss. But that's why we get the big bucks right.
GLO surveys to the west and east of the hills had been completed in 1856 and 1876. The 1920's survey completed the gap. The 1920 survey added about 240 acres in section 33 which is the 6 lots. Other portions of section 33 were eligible for patent based upon prior surveys but hadn't yet gone to patent. I posted the 1920 notes for the west line of section 33 which indicates he found the southwest corner and west quarter corner of section 33 and did some proportioning for the northwest corner. The patent for the section is from 1953 so the section was patented based upon the 1920's survey. I don't know yet when the west 60 acres was deeded from the SW 1/4. I'll get that and hope it sheds some light on the situation. I'll also talk with my associate and find out if he has discovered any further info from the landowners.
