Keith
> When I find a legal description that blatantly overlaps a senior line, I argue that the intent of the deed isn't to overlap a senior line. And even if the intent was to overlap, the fact that the grantor "can't sell what he doesn't own", comes in to play. I am having a hard time with you calling "you can't sell what you don't own" a bogus concept. I think it is an extremely apropos argument in surveying. I don't think it applies to your example about a monument that is slightly off some calculated line.
Excellent point, Tom. There certainly are issues when a adjoining deed clearly overlaps a senior line by calling to an entirely different line. In this case, however, you've got a subdivision plat that more than likely corresponds with the senior line. I doubt there is any title conflict needing to resolved by the application of the title principle, "You can't sell what you don't own."
The principle has no application when we're determining the location of the common boundary between two parcels of land.
JBS
Keith
JB,
You have been around the block a few times and have read extensively; and I am wondering if you have read the bogus statement anyplace credible?
Keith
edit: The principle has no application when we're determining the location of the common boundary between two parcels of land.
Seems to me like that is what we generally do?
Keith
> In this case, however, you've got a subdivision plat that more than likely corresponds with the senior line. I doubt there is any title conflict needing to resolved by the application of the title principle, "You can't sell what you don't own."
>
> The principle has no application when we're determining the location of the common boundary between two parcels of land.
>
> JBS
Well, I believe that is what I have been saying. That the phrase is not a bogus concept, and that it is not applicable to this sort of case. Note: I have not been arguing the particular case, but only the "side-argument" that this phrase is a bogus concept.
Keith
> Well, I believe that is what I have been saying. That the phrase is not a bogus concept, and that it is not applicable to this sort of case. Note: I have not been arguing the particular case, but only the "side-argument" that this phrase is a bogus concept.
I agree completely, Tom. The statement isn't bogus. It's entirely credible when applied to questions of title. Applying the statement to boundary determination is bogus.
JBS
Here's a case in NY that might apply. They described the newer survey and its monuments (natural and man made) as being of "questionable authority" because it deviated from a common point.
If it can be said that the line of the senior parcel and monuments is and always has been straight, that there is no other evidence besides the questioned monuments that is is not straight, and it is/was a common line of the parcels before the subdivision. Then the questioned monuments might not control.
Here's another interesting thing...
I realize that this case involved a blatant action by the property owner but it's another reason why we can't just blindly accept monuments...called or uncalled.
Generally, where the lands conveyed are described by courses and distances, and also by reference to natural objects or fixed and permanent monuments, and there is a discrepancy between the two, the former description must yield to the latter (Baldwin v Brown, 16 N.Y. 359, 361; see also, Case v Dexter, 106 N.Y. 548, 554; Robinson v Kime, 70 N.Y. 147, 154; Morgan v City of Glen Cove, 6 Misc 2d 434, 437, affd 6 AD2d 704, affd 5 N.Y.2d 1041; County of Erie v Bourne, 59 AD2d 1008, appeal dismissed 43 N.Y.2d 947). That rule, however, is by no means inflexible (Baldwin v Brown, supra). "Where there is anything in the description which shows that the courses and distances are right, they will, of course, control; because the primary object, in all cases, is to arrive at the real intent of the parties" (Baldwin v Brown, supra, at 361).
It's this that I like... "because the primary object, in all cases, is to arrive at the real intent of the parties".
If the primary intent of the parties in the deeds and on the filed map and in the original monuments was that it was a straight line...then it is and should be a straight line.
Keith
Very interesting reading. It supports that the "you can't sell what you don't own" doctrine applies to title only (what is the property), not boundary location (where is the property).
Keith
I do like the reference to the MERS in the article. That's something that has always perturbed me, it's nice to see someone else agrees.
Like many of these court cases reading the cites might take you closer to the exact situation you're looking for, but yes this case is dealing with title issues.
Keith
I am thinking my point has been made, since we usually talk about survey procedures, not title transfer procedures.
Brian,
I agree since usually we deal with where it is!
Right on!
The statement isn't bogus. It's entirely credible when applied to questions of title. Applying the statement to boundary determination is bogus.
And my point being is that those who cannot bend a line through a junior corner, use this bogus concept as their guideline.
That's what I am talking about!
TH1
> Is this the one you are referring to?
>
> TH Investments
>
> I'd suggest one study this case, it is a very good, detailed decision, that covers land surveying and boundary law quite thoroughly.
>
> Here is another good one (not from TX).
>
> Newfound Mgmnt
>
> Enjoy
The TH1 case is quite interesting to me for the discussion of riparian boundary issues. But I also really like this cite:
"see also Kenedy Mem'l Found., 90 S.W.3d at 281 ("tare decisis is never stronger than in protecting land titles, as to which there is great virtue in certainty.")."
Jerry
edit. don't know why the text is lined through and I don't know how to fix it. Please ignore.
Keith
> I agree completely, Tom. The statement isn't bogus. It's entirely credible when applied to questions of title. Applying the statement to boundary determination is bogus.
>
> JBS
Applying the statement to boundary determination is bogus? 'you can't sell what you don't own'. How many times have you looked at junior/senior ownership, and researched all of the adjoiners' deeds in order to determine where a property is? Have you ever just found the vesting deed only and said "hey that's what you own, since that's what the deed says". If I know John Stahl, the I would say he has never done that. I think we apply this principle all the time, in every survey we do. Yes, it's a question of title....but gee, isn't that what your staking? The ownership?
Even if you "bend" a line through a junior corner, you are acknowledging that the junior corner represents a point on the senior line. It is applying the principle by virtue of saying that is where the junior owner owns to. He owns to the junior corner which is on the senior line.
I'm agree with you and Keith in how I would handle accepting the corner, but I can't buy in to the fact that this statement is "bogus" in boundary determination. Boundaries are based on title, aren't they?
Keith
> You have been around the block a few times and have read extensively; and I am wondering if you have read the bogus statement anyplace credible?
>
Keith, The statement is a universal truth that really needs no citation to lend it credibility. I'm not sure one could trace the statement to its origin, but it has been a foundational maxim of jurisprudence for centuries at least traceable to ancient Roman law. There are a few of them, actually. Aristotle referred to them as "natural laws."
The following are quoted from A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, by John Bouvier, Revised Sixth Edition, 1856. Bouvier lists 1181 legal maxims.
MAXIM. An established principle or proposition. A principle of law universally admitted, as being just and consonant with reason.
561. Nemo dat qui non habet. No one can give who does not possess. Jenk. Cent. 250.
575. Nemo plus juris ad alienum transfere potest, quam ispe habent. One cannot transfer to another a right which he has not. Dig. 50, 17, 54; 10 Pet. 161, 175.
1142. Vendens eandem rem doubus falsarius est. It is fraudulent to sell the same thing twice. Jenk. Cent. 107. See Stalionat.
JBS
P.S. Of course, I really like this one... Nemo ex consilio obligatur. No man is bound for the advice he gives. ;o)
Keith
>Boundaries are based on title, aren't they?
That's what I used to think. I was taught by the same books and the same mentors. It didn't take too much of an in-depth study of the law to realize that title law and boundary law are completely separate from one another. Thinking back on the way I was taught the principles, they were just lumped together with no distinction. I was taught a bunch of "rules" without really being taught the "reasons" for the rules.
Title law deals strictly with the ownership of property, the methods of conveyance for property, the quality of title of property, and the inheritance of property. None of those laws (principally statutes) tell you how to determine the location of the boundary between two contiguous estates.
Boundary law, on the other hand, focuses on the actions of the landowners taken to establish the location of boundaries on the ground. Those actions result in physical representations intended to mark the boundary followed by their acceptance and satisfaction. Once the actions of the landowners have fulfilled one of the boundary law principles, the boundary is established. It is the retracing surveyor's duty to gather the evidence necessary to determine where the boundary has been established.
Two sets of laws for two completely different reasons.
JBS
I have a reference in the "Commonwealth of Kentucky Case Law for Land Boundary Issues Reference Manual" book that sounds interesting, but I need to get time to either stop by an attorney's office or the law library to get a copy of it.
The synopsis reads:
"A boundary line described in instrument will be interpreted as being straight across from one designated point to another, in absence of apparent contrary intent of parties, as where intermediate monuments along a diversion are mentioned or there is apparent purpose to follow course of stream or ridge."
Edwards v Williamson, 211 S.W.2d 862, 307 Ky. 584
Sounds like a straight line is a straight line.
As most of the time I find that surveyors setting pins have not even spoken with the neighbor, how would the parties (read as plural and meaning even the guy to the north who's line is affected by the new pins) have an intent to bend the line.
There is another one that I will try and get a copy of that reads as follows:
"Even unmarked line of an abutting tract, when used as a boundary in description of another tract is controlling factor if it can be established."
Powell v Reid, 519 S.W.2d 388
Sounds like if the southern property called for or showed on a plat that the new lots ran to the northern abutter, then the easily found line that should have been straight would be a controlling factor.
When I have a chance, I'll get copies to read and post. I know nothing more about the cases than what is stated in the synopsis.
Keith
Mr. Stahl,
[Sarcasm on] You have done it now! You mean to say there is a difference between property lines and boundary lines?! Wha, wha, what?! Is that why the California Business and Professions Code makes the distinction? [Sarcasm off].
Thank you for the distinction. I have been told by fellow California surveyors property lines and boundary lines are interchangeable terms (alluding to the fact the Legislature didn’t know the distinction).
Next question, aren’t monuments and corners the same thing? (kidding).
Best,
DWoolley
I'd be very interested in reading those if you can find the sources!
fattiretom
Great post and I don't think I disagree with any of it.
However......we are talking about junior corner monuments that have been established on that senior line and my opinion is that those junior corner monuments that were set by methods satisfactory to both sides of the line; that they now control the line....even if not a straight line anymore.
And of course, surveyors have stated that those junior corner monuments cannot control the senior line for the reason that, you cannot sell what you do not own and that is what I am calling a bogus concept.
Did your court cases address that issue?
Keith